March 31, 2017

Rosenblatt on The Great Game and the Copyright Villain

Elizabeth Rosenblatt, Whittier Law School, is publishing The Great Game and the Copyright Villain in volume 23 of Transformative Works and Cultures (2017). Here is the abstract.
This essay explores the reactions of Sherlock Holmes fans and enthusiasts to assertions of intellectual property ownership and infringement by putative rights holders in two eras of Sherlockian history. In both the 1946–47 and 2013–15 eras, Sherlock Holmes devotees villainized the entities claiming ownership of intellectual property in Holmes, distancing those entities from Sir Arthur Conan Doyle and casting them as greedy and morally bankrupt. Throughout each era, Sherlockians did not shy away from creating transformative works based on the Holmes canon over the objections of putative rights holders. This complicates the usual expectation that copyright assertions against fans are likely to chill fan production. The essay explores possible reasons why Sherlockian fandom might differ from other fandoms in this respect, including the role of the Great Game form of Sherlockian fandom in shaping fan attitudes toward their subject.
Download the article from SSRN at the link.

March 30, 2017

On "Homeland" @_Juliet_K

Juliet Kleber assesses the popular series Homeland, now in its sixth season, for The New Republic. Noting that the show has moved away from its explicitly anti-Muslim and pro-national security focus to a much more culturally accepting view of Islam and the U.S.'s Islamic citizins beginning in late 2015. Ms. Kleber traces the changes to the Paris attacks and to the rise of Donald Trump, opining that while the show's counter-terrorism narrative is popular, it is also dangerous. 

In reality, Muslims live in our country. They endure prejudice and violence. Most are not terrorists. But as most Americans rarely or never encounter a Muslim person in their actual lives, they are routinely subject to television’s views of them. On just the night it aired, the season six premiere of Homeland garnered two and a half million viewers. Season five, which focused on Islamic terrorism in Europe, had an average weekly viewership of six million. That is almost twice the size of the entire Muslim population of the United States.  
The “conundrum” is, as Gordon himself noted, that “the show is about counterterrorism.” Does Homeland make entertaining television? Sometimes. Has it been harmful? Very probably.
 Read the entire article here. 

LATheatreWorks Touring With Judgment at Nuremberg @LATheatreWorks

LA Theatre Works is currently touring with its production of Judgment at Nuremberg. Here's the April schedule.

April 13, 2017
Hall Auditorium, Miami University 
Oxford, OH

April 16, 2017
Kravis Center for the Arts 
West Palm Beach, FL

April 18, 2017
Mondavi Center 
Davis, CA

April 19, 2017
Livermore Valley Performing 
Arts Center 
Livermore, CA

April 22, 2017
Williams Center 
Easton, PA

April 23, 2017
GMU Center for the Arts 
Fairfax, VA

April 25, 2017
Keller Theater 
Lexington, VA

There's also a CD available of the LA TheatreWorks production, starring David Selby, Harry Hamlin, James Morrison, and Kate Steele, directed by Shannon Cochran, recorded live. It includes a discussion with Judge Bruce Einhorn. I have a copy, and it's a really good production, differing, obviously, from the 1961 film with Spencer Tracy and Maximilian Schell, and the 1959 Playhouse 90 tv adaptation with Schell and Claude Rains (as Judge Haywood). The film, which runs about 3 hours, has time to explore personal relationships as well as the central legal questions facing the judges. The television adaptation, like the play, is more concentrated. Each offers a particularized experience, but all present at their cores questions about individual moral responsibility and the extent to which each person can and must withstand pressures from friends, family, and society to "go along," or try to correct wrongs from inside the system. At what point is the answer to abandon what seems to be a hopelessly corrupt regime and fight to bring that regime down, even if it means destroying what one loves as well? Some of us believe we may be facing that question very soon.  

Passing the Bechdel Test

If you're interested in studying female characters in film or tv or other pop culture representation who have significant roles that transcend the usual stereotyping, you might be interested in the following resources. The website The Bechdel Test Movie List tracks films that meet the Bechdel Test: they include at least two female characters who actually talk to each other about a subject other than a man or men. TV Tropes further discusses the Bechdel Test and other examples of it here.

The website FilmSchoolRejects lists 10 famous films that don't actually pass the Bechdel Test, including the original three Star Wars films (actually not such a surprise, considering that there's only one major female character in it), and Avatar.  Come to think of it, I think Casablanca doesn't, either.

Slate's Katy Waldman suggests the test needs an update, noting that cartoonist Alison Bechdel is somewhat ambivalent about the test's popularity and that it sets the bar rather low. But it does suggest that the audience understands the point, and it does give us something to hold on to, and that is at least something.

The A.V. Club disagrees. This particular essay is interesting, tracing the test to Virginia Woolf's essay A Room of One's Room, and acknowledging criticism of the test. Some critics suggest that if a film fails it, that suggests the film is "sexist," or the film's message is anti-feminist. That may in fact not be true. A film's message may in fact be quite positive: the film may celebrate a woman's autonomy or agency if she is the only female character, There might not be another female character for her to discuss issues with. Similarly, she might discuss relationships (men) with female characters in order to explore and then highlight her own power. Such a film might "fail" the test, but it would demonstrate female empowerment, not fragility.Thus, the test by itself cannot be the only measure of sexism or lack of it for a film, tv, or other pop culture image.

Telefeminist Project @telefeminism, BechelTestFest @BechdelTestFest, and Bechdel Project @BechdelProjct also tweet about the Bechdel Test. If you're so inclined, follow test originator Alison Bechdel on Twitter @AlisonBechdel.

March 28, 2017

Finding Real Life Whodunits

Casey N. Cep pays tribute to Thomas McDade's important The Annals of Murder: A Bibliography of Books and Pamphlets on American Murders from Colonial Times to 1900 (University of Oklahoma Press, 1961) in this article for the New Yorker. It's a rare book now; a copy listed on Amazon sells for more than $175. There are a few other copies available on Alibris, starting at about $125 and going up over $300.

March 27, 2017

Bob Dylan, Legal Influencer

Philip N. Meyer on Bob Dylan and legal opinions here, for the ABA Journal.

A New Book on The American State and the Defeat of Progressive Unions, 1935-1950, by Charles W. Romney @UArkansas

ICYMI: Charles W. Romney, Assistant Professor of History, University of Arkansas-Little Rock, has published Rights Delayed: The American State and the Defeat of Progressive Unions, 1935-1950 (Oxford University Press, 2016). Here is a description of the book's contents.
Progressive unions flourished in the 1930s by working alongside federal agencies created during the New Deal. Yet in 1950, few progressive unions remained. Why? Most scholars point to domestic anti-communism and southern conservatives in Congress as the forces that diminished the New Deal state, eliminated progressive unions, and destroyed the radical potential of American liberalism. Rights Delayed: The American State and the Defeat of Progressive Unions argues that anti-communism and Congressional conservatism merely intensified the main reason for the decline of progressive unions: the New Deal state's focus on legal procedure. Initially, progressive unions thrived by embracing the procedural culture of New Deal agencies and the wartime American state. Between 1935 and 1945, unions mastered the complex rules of the NLRB and other federal entities by working with government officials. In 1946 and 1947, however, the emphasis on legal procedure made the federal state too slow to combat potentially illegal cooperation between employers and the Teamsters. Workers who supported progressive unions rallied around procedural language to stop what they considered Teamster collusion, but found themselves dependent on an ineffective federal state. The state became even less able to protect employees belonging to left-led unions after the Taft-Hartley Act's anti-communist provisions-and decisions by union leaders-limited access to the NLRB's procedures. From 1946 until 1950, progressive unions withered and eventually disappeared from the Pacific canneries as the unions failed to pay the cost of legal representation before the NLRB. Workers supporting progressive unions had embraced procedural language to claim their rights, but by 1950, those workers discovered that their rights had vanished in an endless legal discourse.

 Cover for 

Rights Delayed

Hirokawa Reviews Brooks, Before Earth Day: The Origins of American Environmental Law, 1945-1970 (2009).

Keith H. Hirokawa, Albany Law School, has published Contextualizing the Roots of Environmental Law. Here is the abstract.
This review of Karl Boyd Brooks, Before Earth Day: The Origins of American Environmental Law, 1945–1970 (2009), considers an attempt to describe the law’s “environmental history” through a narrative account of incrementalism. The author’s deep research and skillful storytelling takes us into the struggles of early environmental advocates, who yearned to become citizens of a broader biotic community and catalyzed tensions between nature and politics and property. The author capitalizes on the co-dependencies of human and environmental sovereignty and reveals the continuous interplay of human action, nature, and legal evolution. Despite making tremendous discoveries about the emergence of environmental law, the book makes a further claim. The author suggests that most commentators erroneously focus on the environmental decade of the 1970s, instead of the roots that took hold and flourished in the post war period. In so doing, the author argues, most commentators fail to grasp the political, economic and environmental commitments made prior to the 1970s. This essay argues that although environmental law has always appeared at the crossroads of environmental challenge, economic needs, property, identity, and community, we cannot avoid the environmental law of the 1970s, when the convergence of disciplines informed our regulatory approach and when the immediate need for environmental quality became part of the law.
Download the book review from SSRN at the link.

Before Earth Day

March 23, 2017

A New Book on Tocqueville From Jean-Louis Benoît

Newly published: Jean-Louis Benoît, Dictionnaire Tocqueville (Editions Nuvis, 2017). Here is a description of the contents.

"Je plais à beaucoup de gens d'opinions opposées, non parce qu'ils m'entendent, mais parce qu'ils trouvent dans mon ouvrage, en ne le considérant que d'un seul côté, des arguments favorables à leur passion du moment", écrit Tocqueville. Jean-Louis Benoît, spécialiste reconnu de la pensée d'Alexis de Tocqueville, nous donne ici un outil précieux : un dictionnaire qui, en précisant minutieusement les thèmes et les concepts, en les remettant dans leur contexte, permet d'acquérir une véritable compréhension de l'oeuvre de Tocqueville.

Rimmer on The Maker Movement: Copyright Law, Remix Culture, and 3D Printing @DrRimmer

Matthew Rimmer, Queensland University of Technology, has published The Maker Movement: Copyright Law, Remix Culture and 3D Printing at 41 The University of Western Australia Law Review 51 (2017). Here is the abstract.
3D printing is a process of making physical objects from three-dimensional digital models. 3D printing is a form of additive manufacturing – rather than a traditional form of subtractive manufacturing. 3D printing is a disruptive technology, which promises to transform art and design, science and manufacturing, and the digital economy. The Minister for Industry, Innovation and Science, the Hon. Christopher Pyne, has highlighted the key role of 3D printing for manufacturing and material science in Australia: ‘Manufacturing remains a key driver in our economy, but as the industrial landscape changes, the sector needs to transition to more innovative and economically viable technology.’ Pyne stressed: ‘Emerging technologies such as metal 3D printing offer huge productivity gains and have the potential to turn Australia’s manufacturing industry on its head.’ Likewise, the Australian Labor Party’s Tim Watts and Jim Chalmers have discussed the role of 3D printing in respect of intellectual property, innovation, and trade. There have been a number of early cultural texts on the topic of 3D printing. Cory Doctorow’s 2009 fictional story Makers was significant in promoting the culture of the maker community. Chris Anderson’s 2012 non-fiction work Makers considered the history of the industrial revolution, the rise of 3D printing, and the long tail of things. His work also reflects upon the development of open licensing and open hardware, and the financing of maker businesses. This rather evangelical work helped inspire wider public interest in the field. In The Maker Movement Manifesto, Mark Hatch, the CEO of TechShop, provides a practical guide to the applications of 3D printing, and the development of communities of practice. He is particularly interested in the development of distributed and flexible manufacturing, and the acceleration of innovation. The engaging 2014 Lopez and Tweel documentary Print the Legend provided a portrait of the emergence of 3D printing start-up companies in the United States. In 2014, the Australian journalist and cultural critic Guy Rundle also undertook fieldwork in his study on 3D printing and robotics, visiting key hubs of 3D printing in the United States. In his work upon the robotics revolution, Martin Ford has explored the intersection between 3D printing and automation. Futurist Jeremy Rifkin has been interested in the intersections between 3D printing, the Internet of Things, and collaborative capitalism. Likewise, Robin Chase has been concerned about how 3D printing fits into a larger model of the sharing economy. In terms of legal writing in respect of 3D printing, a number of works have sought to address the relationship between intellectual property and 3D printing. As a public policy expert at Public Knowledge, and as a lawyer working for Shapeways, Michael Weinberg (2010, 2013) has written a number of significant treatises on intellectual property and 3D Printing. Associate Professor Dinusha Mendis and her colleagues have undertaken legal and empirical research on intellectual property and 3D printing for the United Kingdom Intellectual Property Office. In 2015, Professor Mark Lemley from Stanford Law School observes, ‘A world in which sophisticated 3D printers are widely available would change the economics of things in a fundamental way.’ Amongst other things, he says that 3D Printing provides challenges and opportunities for intellectual property in ‘an age without scarcity’. John Hornick has examined the topic of intellectual property and 3D printing from the perspective of a legal practitioner. From Australia, Dr Angela Daly has written on the socio-legal aspects of 3D printing in 2016. The World Intellectual Property Organization in 2015 has sought to investigate 3D printing as a breakthrough technology in terms of emerging developments in respect of intellectual property law, practice, and policy. There has been much interest in how intellectual property law, policy, and practice will adapt to the emergence of 3D printing and the maker movement. Intellectual property lawyers will have to grapple with the impact of additive manufacturing upon a variety of forms of intellectual property – including copyright law, trade mark law, designs law, patent law, and trade secrets. The disruptive technology of 3D printing will both pose opportunities and challenges for legal practitioners and policy-makers. Rather than try to survey this expanding field, this article considers a number of early conflicts and skirmishes in respect of copyright law and 3D printing. There has been significant interest in the impact of 3D printing on copyright law and the creative industries. There have been classic issues raised about copyright subsistence, and the overlap between copyright law and designs. There has also been a moral panic about 3D printing facilitating copyright infringement – like peer to peer networks such as Napster in the past. There has been a use of open licensing models such as Creative Commons licensing to facilitate the sharing of 3D printing files. Such battles highlight a conflict between the open culture of the Maker Movement, and the closed culture of copyright industries. In many ways, such conflicts touch upon classic issues involved in ‘information environmentalism’. Part II looks at the controversy over Left Shark. In particular, it examines the copyright claims of Katy Perry in respect of the Left Shark figure. Part III considers questions about scanning. Augustana College tried to assert copyright against a maker, Jerry Fisher, who was scanning statues of Michelangelo (although copyright had long since expired in such work). Part IV focuses upon copyright law, 3D printing and readymades. The Estate of Marcel Duchamp lodged a copyright protest over a 3D printed set of chess, based on the work of Marcel Duchamp. Part V examines the intervention of a number of 3D printing companies in a Supreme Court of the United States dispute in Star Athletic v. Varsity Brands. Part VI considers copyright law and intermediary liability. Part VII examines the operation of technological protection measures in the context of copyright law and 3D Printing.
Download the article from SSRN at the link.

March 22, 2017

Call for Papers, Law and Culture Conference 2017, St. Mary's University, Twickenham

From Thom Giddens, Co-Director, Centre for Law and Culture, St. Mary's University

Centre for Law and Culture

St Mary’s University Twickenham

Law and Culture Conference 2017
7th–8th September 2017

Call for papers: The Significance of Anarchy in Relation To Law, Culture, and Theory

What does it mean to break the world? What is legitimate resistance to state power? When does authority spill over into repression? What happens when a sovereign loses control? What is an anarchic act? Is anarchic thought possible? What is anarchy’s
relationship to chaos and disorder? What is its relationship to order and regulation? How are such concepts representedif they can bein legal, social, political, moral, and critical philosophies?
Can anarchy be a duty?

The Law and Culture Conference 2017 aims to stimulate a topical discussion that crosses disciplinary, geographic, academic, and conceptual boundaries (inter alia), on the significance of anarchy  in relation to law, culture, and theory.
Here are some indicative themes; do not let them limit you: Anarchies of the State
·         Power, power structures, authority, authoritarianism,
(il)legitimate authority; despotism, barbarism, war, propaganda, totalitarianism; ideologies of anarchism, or the de-centralisation or the minimal State
·         States of disorder and/or disorganization; lawlessness and misrule; the state of nature
·         Statelessness, refugee crises, anti-statism; international regulation and governance; permeable boundaries; the internet, digital media, information exchange

Anarchies of the Subject
·         Absolute freedom of the individual; social breakdown, lack and/or failure of accountability; leaderless-ness, alienation, self-determination, individual responsibility
·         Grassroots; voluntary association; social regulation; self-governing societies; modes of non- recognition or rejection of authority; resisting oppression; vulnerability
·         Revolution, sabotage, assassination, riot, mutiny, protest, rebellion, direct action, self- empowerment; intersections between legal, moral, and political obligation
·         Aggression, violence, self-defence, non-violence/pacifism

Anarchies of Thought
·         Nihilism, chaos, anti-structuralism; post-fact, post-reality, post-truth; liberalism, democracy, Trumpism/Brexit; the death of ‘left-right’ politics, the rise of nationalism
·         Coercion, compulsion, reasons, normativity, resistance, practical reason (including both individual and collective/social methodologies of decision-making)
·         Hierarchy (including intersectional hierarchies such as the state, religion, monarchy, patriarchy, economy, sex, race, sexual orientation), and anti-hierarchical philosophies
·         The art and literature of anarchy, punk culture, alternative, radical cultures, art as/and anarchic knowledge

Submission information

·         Please submit proposals via email to by 14 May 2017.
·         We welcome proposals for traditional papers and panels, as well as more anarchic suggestions: performances, experimentations, artistries, sense-events, inter alia, et cetera, in anarchia
·         Paper proposals: 250 word abstract and a 50 word biography (by default papers will be 20 minutes in length, with additional time for questions).
·         Panel proposals: 150 panel abstract (including indicative timings; default is 90 minutes), 250 word abstracts for individual papers, and a 50 word biography for each presenter.
·         Proposals for alternative formats, or anarchic sessions: 250 word abstract (including indicative timings) and a 50 word biography for each participant

About the Centre for Law and Culture

The Centre for Law and Culture is an interdisciplinary hub for research at the intersections of law, justice, and the humanities, engaging legal study that spans topics and themes from across critical and cultural legal studies and thereby incubating and promoting the crossing and challenging of legal boundaries.

Location: St. Mary’s University, Twickenham, London TW1 4SX (

Please contact: Dr Thom Giddens Dr Judith Bourne


There is an anticipated £100 registration fee (plus booking), which will cover both days and include dinner. Cheaper packages will be available, e.g. for single-day attendance.

March 21, 2017

Colin Dexter (1930-2017) Passes Away

Colin Dexter, creator of the Inspector Morse novels, has died, aged 86. Here is more from The Guardian.

Mr. Dexter wrote thirteen Morse novels, the first appearing in 1975 (Last Bus To Woodstock) and the last, in which Inspector Morse dies, appearing in 1999 (The Remorseful Day). Inspector Morse and his friends and colleagues came to the screen beginning in 1988 (ITV) with the late John Thaw as Endeavour Morse (we don't learn his first name until extremely late in the series). Two spin-off series followed: Lewis, starring Kevin Whately, who had played Sergeant Lewis in the original series (2006-2015), and Endeavour, starring Shaun Evans as a young Sergeant Morse (2012--).

Order of Inspector Morse books.

A short bibliography on Colin Dexter's Inspector Morse

Simon Barker, Period Detective Drama and the limits of contemporary Nostalgia: "Inspector Morse" and the strange case of a lost England

Helen Davis, Inspector Morse and the Business of Crime 

Lyn Thomas, In Love With Inspector More: Feminist Subculture and Quality Television

Stijn Reijnders, Watching the Detectives: Inside the Guilty Landscapes of Inspector Morse, Baantjer and Wallander

Cyras and Lachmayer on Visualization of Hajime Yoshino's Logical Jurisprudence

Vytautas Cyras, Vilnius University, and Friedrich Lachmayer, University of Innsbruck, have published Visualization of Hajime Yoshino's Logical Jurisprudence, at Trends and Communities of Legal Informatics: Proceedings of the 20th International Legal Informatics Symposium (IRIS) 2017 349 (E. Schweighofer, F. Kummer, W. Hoetzendorfer, and C. Sorge, eds., OCG, Vienna, 2017). Here is the abstract.
Hajime Yoshino’s Logical Jurisprudence (LJ) is an important concept in legal informatics. Yoshino aims for a logic-based systematization in the legal domain. He focuses on legal reasoning and systematization. Inevitably, embracing law as a whole brings us to Hans Kelsen’s Pure Theory of Law. In sum, three issues are important in LJ: logic, Kelsen and legal informatics. In this paper we aim to visualize the architecture of LJ. We suggest expanding this with legal ontologies and words. The granularity of word-phrase-sentence-text is about different methods which apply to different units.
Download the essay from SSRN at the link.

Sherwin on What Authorizes the Image? The Visual Economy of Post-Secular Jurisprudence @RKSherwin

Richard K. Sherwin, New York Law School, is publishing What Authorizes the Image? The Visual Economy of Post-Secular Jurisprudence in Law and the Visual: Transitions and Transformations (University of Toronto Press, 2017). Here is the abstract.
In law’s visual economy our commitment to justice grows out of a renewed encounter with an interior libidinal source whose ongoing collective investment binds us to the nomos in which we live. We experience this corporeal bond in paintings, films, and video images on screens large and small. In the ethically inflected aesthetic of post-secular jurisprudence, justice is to law as beauty is to art. As distant as an abstract expressionist canvas, as close as any neighbor, or indeed any screen on which the neighbor becomes real to us. That is where we behold the source and instantiation of law’s judgment and authority.
Download the essay at the link.

Tamanaha on the Combination of Formalism and Realism

Brian Z. Tamanaha, Washington University, St. Louis, School of Law, has published The Combination of Formalism and Realism as Washington University in St. Louis Legal Studies Research Paper No. 17-03-01. Here is the abstract.
For several generations now, legal scholars in the United States have framed debates about law and judging in terms of formalism-versus-realism. This entrenched framework is grounded in a widely accepted historical account. In this essay, I dismantle this antithesis and reconstruct their relationship. When properly understood, they go together. The first half of the essay shows that the conventional historical narrative is incorrect. Realism about law and judging has long been present in the American legal tradition. This discussion covers the views of Langdell, James Fitzjames Stephen, and other nineteenth and twentieth century jurists. The second half of the essay explains why systematic rule formalism is necessary, why realism is inevitable, and how they go together. The legal system would not work absent formalism, realism is parasitic on formalism, and realism reflects the ameliorating presence of human judgments within formalistic systems. The formalism-versus-realism framework does not allow this relationship to be expressed as a coherent bundle of views about law and judging, and should be discarded.
Download the article from SSRN at the link.

March 20, 2017

Lubin on Custom in the Vedic Ritual Codes as an Emergent Legal Principle @TimothyLubin

Timothy Lubin, Washington and Lee School of Law, has published Custom in the Vedic Ritual Codes as an Emergent Legal Principle at 136 Journal of the American Oriental Society 669 (2016). Here is the abstract.
The degree to which the early dharma literature was an extrapolation from the earlier ritual codes can be seen from a number of shared features of form and content. One of these that has not received more than passing notice is the fact that the Dharmaśāstric principle of regarding customary norms as a valid basis of dharma, both in general (sadācāra, śiṣṭācāra) and in limited spheres (deśācāra, grāmadharma, kuladharma, etc.), has its origins in ritual rules in the śrautasūtras and gṛhyasūtras. Passages from the Baudhāyanaśrautasūtra and numerous gṛhyasūtras show that already in these rulebooks established practices of particular social groups were accepted as a valid authority in certain contexts where explicit textual warrant was lacking, and that a further distinction was there made between the general norms of experts and the valid particular norms of locality or social group.
Donwload the article from SSRN at the link.

A New Book Celebrates Comic Book Superheroes Who Battled Adolf Hitler

Mark Fertig's new book Take That, Adolf!: The Fighting Comic Books of the Second World War (Fantagraphics Books, 2017) features over 500 covers of superhero comic books published between 1941 and 1945 showing those who took on Adolf Hitler. Those who defeated Hitler in print included Captain America, Wonder Woman, and others.

Yeager on Stuffed Deer and the Grammar of Mistakes

Daniel B.Yeager, California Western School of Law, has published Stuffed Deer and the Grammar of Mistakes. Here is the abstract.
Impossible attempts were first officially recognized as non-criminal in 1864, the idea being that a person whose anti-social bent poses no appreciable risk of harm is no criminal. To reassure myself the subject doesn’t “smell of the lamp,” I tapped “impossibility” into Westlaw, which designated nearly 1500 criminal cases as on point, 900 or so more recent than 1999. Impossible attempts thus turn out to be not merely a professorial hobby horse, but instead, expressive of a non-trivial tension between risk-taking and harm-causing within the very real world of criminal litigation. Although it is now hornbook that impossible attempts are punishable as crimes, there remains a sense of a non-trivial difference between failing at larceny by picking the empty pocket of a passerby on a sidewalk and by picking the empty pocket of a mannequin in a department store. What remains up in the air is what accounts for that difference. Here I hope to decode the impossibility defense by “hounding down the minutiae” of what it means to make a mistake. I am certainly not the first to insist that the impossibility defense lives on. I am, however, the first to base such a claim on the grammar or criteria of mistakes, which can get us closer to the bottom of what makes attempts impossible and why it matters. Extant impossibility cases and scholarship take mistakes as a given. But what is a mistake? Is the answer too obvious to mention? Within the stock hypotheticals of impossible attempts, a man shoots a tree stump or a corpse, each mistaken for a live person, or administers a live person an innocuous substance mistaken for poison. These stick-figure hypotheticals pose whether attempted murder has occurred. But because it is stipulated that each action owes to mistake, we are told so little about what happened that of course the question is hard to answer. Any chance of making sense of the hypotheticals is stymied by an absence both of facts and any concern for what can count as a mistake. My contribution here to the considerable work of others is therefore to locate the impossibility defense within an actual context of human action and concern.
Download the article from SSRN at the link.

Rappaport and McGinnis on The Constitution and the Language of the Law

Michael B. Rappaport, University of San Diego School of Law, and John O. McGinnis, Northwestern University, Pritzker School of Law, have published The Constitution and the Language of the Law, as San Diego Legal Studies Paper No. 17-262. Here is the abstract.
There has been a long-standing debate over whether the Constitution is written in ordinary or legal language. Yet no article has offered a framework for determining the nature of the Constitution’s language, let alone systematically canvassed the evidence. This article fills the gap. First, it shows that a distinctive legal language exists. This language in the Constitution includes terms, like Letters of Marque and Reprisal, that are patently technical, and terms, like good behavior, that are latently so in that they have both an ordinary and legal meaning but are better interpreted according to the latter. It also includes legal interpretive rules such as those that tell readers when to understand a term in its legal sense or its ordinary meaning sense. The article shows how to determine whether a document is written in the language of the law. The most important factor is the language of the document itself. The pervasive presence of technical legal terms provides strong evidence that a document is written in the language of the law, because ordinary language cannot easily account for even a small number of legal terms. The purpose of the document also counts. Insofar as it is written to inform officials of their duties, it is more likely to written in legal language, because that language allows more precision. The language of similar documents provides additional evidence. Since other constitutions at the time were written in the language of the law, that militates in favor of reading the Constitution in that same language. The article supplies strong evidence that the Constitution is written in the language of the law. The article is the first to count the legal terms in the Constitution and approximates them at a hundred. Moreover, the Constitution’s text both blocks the operation of certain legal interpretive rules and calls for the application of other such rules. Finally, the judges and legislators charged with implementing the Constitution in the early Republic frequently deployed legal interpretive rules to resolve contested issues. The Constitution’s legal language has important theoretical and practical significance. Theoretically, it shows that that original methods originalism is the correct form of originalism, because the Constitution’s legal interpretive rules are crucial to cashing out its meaning. Practically, the richness of its idiom provides resources to address otherwise unresolvable interpretive questions.
Download the article from SSRN at the link.

Ricca on the Interplay of Space and Law: Legal Chorology

Mario Ricca, University of Parma, has published How to Make Space and Law Interplay Horizontally: From Legal Geography to Legal Chorology. Here is the abstract.
This essay addresses the thorny issue of how legal words and spatial experiences interplay. The topic is treated trough the spectrum of the subsidiarity principle and its semantic-spatial implications. This perspective allows for an immediate focus on the cognitive continuities extant between categorical and spatial frames. When a subject (public or private) is considered to be subsidiary with respect to another, then he/she/it is entitled to a substitution, which as such implies a semantic and experiential shifting. This very possibility for shifting/displacement reveals cognitive continuities between word and space in the legal realm and experience. Moving from this view, the essay proposes a different approach to the relationships between legal words and space, assumed as a division of power by contemporary Legal Geography. The method used to define this perspective is precisely “Legal Chorology.” The essay will address its theoretical and practical implications in bridging and dynamically managing the diffraction between law and space. Legal reasoning is thus enhanced by using a semiotic perspective in the analysis of human spatial experience and cognition. The topics addressed range from a discussion of the intertwining of the human activity of categorization and the perception of space, to an assessment of the consequences that a chorological view can engender for classical legal issues such as inheritance law, urban law, contract law, public assistance on behalf of subjects with disabilities, and so on.
Download the article from SSRN at the link.

March 16, 2017

Kemmerer on Sources in the Meta-Theory of International Law: Hermeneutical Conversations @kemmereralex

Alexandra Kemmerer, Max Planck Society for the Advancement of the Sciences, Max Planck Institute for Comparative Public Law and International Law, is publishing Sources in the Meta-Theory of International Law: Hermeneutical Conversations in The Oxford Handbook on the Sources of International Law (Samantha Besson and Jean D'Aspremont, eds., Oxford University Press, 2017). Here is the abstract.
A meta-theoretical approach to sources opens reflexive spaces, situates theories in time and space, and allows for a contextual interpretation of sources. In this paper, drawing on the hermeneutic philosophy of Hans-Georg Gadamer and the writings of his most perceptive readers in international law, I develop a concept of reflexive situatedness prompting a constructive contextualization of sources and their interpreters in our ‘normative pluriverse’ (D’Aspremont). Following the traces of international law’s current ‘turn to interpretation’ and a reading of international law as a ‘hermeneutical enterprise’, my assessment of the limits and potentials of Gadamerian philosophical hermeneutics prepares the ground for an analysis of the writings of international lawyers who have developed theories of international legal interpretation inspired by his work — and, in particular, for a closer look at the writings of Outi Korhonen, linking her concept of situationality to an emphasis on context(s) that engages with the rhetorical dimension of Gadamer’s work. Gadamer’s conversational hermeneutics opens new perspectives for a contextual theory and praxis of international legal interpretation that brings together various disciplinary perspectives and cultural experiences, and thereby allows for a more nuanced and dynamic understanding of sources and their interpreters within their respective interpretative communities.
Download the essay from SSRN at the link.

Lloyd on Why Originalism Cannot Work: Lessons From Logic, Scripture, and Art @LloydEsq

Harold Anthony Lloyd, Wake Forest School of Law, has published Why Originalism Cannot Work: Lessons from Logic, Scripture, and Art. Here is the abstract.
Neil Gorsuch lauds judges who purport to “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be . . . .” It’s hard to see how such Originalism withstands scrutiny. First, using “reasonable reader” understandings rather than speaker meaning turns language and law on their heads. Audiences effectively become the speakers in ordinary speech (since reader or audience meaning prevails), and audiences (and thus the ruled) effectively become the rulers when interpreting law (since audiences’ meaning prevails). Second, since laws look forward to govern conduct, how can best legal practices keep such a backward focus? Third, words (however understood by others at the time “originally” uttered) may or may not (depending on speaker and not reader meaning) signify concepts whose meanings embrace change over time. For example, the word “planet” used by a speaker before the discovery of Uranus and Neptune may or may not include further planets depending upon what the speaker meant by “planet.” (The same applies to the inclusion or exclusion of Pluto had the speaker used the word “planet” after the discovery of Pluto but before its exclusion by current science.) Unlike the “reasonable” reader of Gorsuch’s Originalism as phrased above, speakers run the gamut from reasonable to unreasonable, from informed to uninformed, and from thoughtful to thoughtless. Fourth, to the extent a judge is principally “constrained” by a text or texts (as he may determine), by dictionaries that he chooses, and by “history” as the judge understands it, isn’t judicial activism encouraged rather than restrained? Talk of a “reasonable” reader masks the fact that there can be multiple “reasonable” conclusions of what a reasonable or unreasonable speaker meant. Is a judge not therefore left to pick definitions and applications of terms that accord with the judge’s understandings of history, understandings that may well be colored by the judge’s politics and judicial philosophy? This applies to principles as well as labels for things. Principles are also subject to multiple frames, and their terms are subject to multiple definitions therefore raising the very same questions just raised above. Finally, such Originalism doesn’t merely fail with legal texts. It also fails when applied to other texts (including sacred texts such as the Ten Commandments) and when used to interpret art (such as “Landscape with the Fall of Icarus” often attributed to Bruegel and which inspired such great ekphrasis as Auden’s “Musée Des Beaux Arts”). These further failures underscore the dysfunction of Originalism as described by Gorsuch above.
Download the article from SSRN at the link.

Call For Papers: Criminal Heritage: Crime, Fiction, and History, September 5, 2017, Leeds Beckett University @LeedsBeckett

Via Thom Giddens @ThomGiddens:




“The simultaneous awareness of past and present evident in historical crime fiction seems to offer a means of gaining a new perspective on the present through the past.” – John Scaggs (2005: 134)

Confirmed Keynote: Dr Heather Shore (Leeds Beckett University)
Confirmed Keynote: Frances Brody (Author)

As Michel Foucault acknowledged, crime and its investigation are uniquely tied to their social context: crime is a violation of the law, and ‘the law represents the will of the sovereign.’ When crime is narratised in the form of history, or as historical fiction, there is a fresh dynamic. The structures of the past and the present will inform its presentation, and surrounding ethical concerns.

 The past few years have seen an unprecedented rise in the production and consumption of historical crime fiction and drama. However, it is not a new phenomenon: from the revisionist histories of Edgar Allan Poe, through Josephine Tey’s The Daughter of Time, and the contemporary success of Frances Brody, Carola Dunn, and Kerry Greenwood, crime fiction has always been concerned with the past. The continued success of period crime dramas on the screen – from nostalgic detective narratives such as Foyle’s War to the BBC’s Ripper Street and renewed interest in organised criminal gangs, such as the Kray twins –  is matched by a self-referential streak in crime writing that interacts with its own generic traditions.

In addition, historical true crime narratives – mined for dramatic potential and social relevance – have come to the fore of Anglo-American culture. From the surprise popularity of Kate Summerscale’s non-fiction novels exploring Victorian and Edwardian crimes to the global success of such television productions as American Crime Story and Making a Murderer, there is more interest now than ever in historical crime as entertainment.

This interdisciplinary conference aims to explore, analyse, and debate the relationship between crime, narrative, and history. We invite proposals of 200 words for 20-minute papers relating to the conference theme. We welcome proposals for traditional presentations and those which approach the theme in an innovative way. Possible topics include but are not limited to
  • Historical crimes
  • Nostalgia
  • Crime fiction as history
  • The figure of the detective
  • The figure of the criminal
  • Gangs and underworlds
  • Morality and deviance
  • Gender, sexuality and queerness
  • Generic tropes and development – e.g. the country house
  • Haunted crimes and revelations – anniversary events, cold cases, secrecy, psychological trauma
  • Time travel
  • Medieval mysteries
  • Sensation fictions
  • The Newgate Calendar
  • Neo-Victorianism
  • The roaring 1920s
  • Pastiches, parodies and rewritings
  • Crime and history on-screen
  • Alternative histories
  • Non-fiction novels
  • National heritage and heritage in law
  • Publication technologies and reading habits

Please send abstracts and a brief biographical note to Fern Pullan and Dr Jamie Bernthal at by Friday 30 June 2017.