August 31, 2017

Krebs on The Legalization of Truth in International Fact-Finding @ShiriKrebs

Shiri Krebs, Deakin Law School; Stanford Center on International Security and Cooperation (CISAC), is publishing The Legalization of Truth in International Fact-Finding in volume 18 of the Chicago Journal of International Law (2017). Here is the abstract.
Do legal judgments influence people’s attitudes and beliefs concerning contested events? This article builds on studies from three disciplines – law, psychology, and political science – and employs experimental methods to shed light on the impact of legal institutions on their intended audiences. The article identifies a rising ‘legalization of truth’ phenomenon – the adoption of legal discourse to construct and interpret facts outside the courthouse. It argues that legal truth, while providing a framework of legal terminology and conventions to analyze and understand facts, comes with a price tag: it triggers cognitive and emotional biases that frustrate efforts to disseminate controversial information and to resolve factual disputes; and it lacks the emotional appeal, participatory value, and social cues that moral expressions or other types of social truth-telling entail. To demonstrate the legalization of truth process and to measure its impact on attitudes and beliefs, this article focuses on the practice of international fact-finding. In recent years, international fact-finding has become a dominant response to armed conflicts and political violence around the world. Lacking compulsory jurisdiction, international fact-finding bodies have adopted legal discourse, assuming that legal reports uniformly inform the relevant publics with an authoritative account of what happened and motivate domestic sanctioning of in-group offenders. This article challenges both assumptions. Based on two survey-experiments fielded in 2013 and 2014 on representative samples of 1,000 and 2,000 U.S. nationals, respectively, as well as on an original dataset of U.N. fact-finding missions, the study demonstrates that three elements of legal discourse – binary legal judgment, ‘hot’ legal terminology, and legal frame – harm the perceived credibility and persuasive value of fact-finding reports: the legal judgment of the fact-finding report is likely to trigger cognitive biases and belief polarization; ‘hot’ legal terminology is likely to trigger emotional biases and reduce the perceived fairness of the report; and the legal frame appears to be less effective than moral frame in influencing attitudes on accountability.
Download the article from SSRN at the link.

Solan on Patterns in Language and Law @lsolum

Lawrence Solum, Brooklyn Law School, has published Patterns in Language and Law at 6 International Journal of Language & Law 46 (2017). Here is the abstract.
Our language faculty is rule-like in some ways, pattern-like in others, as Steven Pinker (1999) has shown. Much of syntax is describable a set of rules, whereas the range of meanings attributed to a word is best described in terms of patterns. Laws are typically written as rules, but they are written in words, many of which display pattern-like arrays of usage. Legal systems default to an expression’s “ordinary meaning,” requiring estimates of patterns of usage. Recently, advances in corpus linguistics have been adduced by judges and legal scholars in this regard. Furthermore, open-textured legal terms, including the word “pattern” itself, are by their nature more describable in terms of patterns of their application than in terms of hard-and-fast rules. Apart from linguistic issues in legal interpretation, legal systems value coherence, requiring that like things be treated alike, often focusing on patterns of how laws are applied. At times, however, these patterns uncover biases in a law’s application. This article attempts to describe how this duality in both linguistic description law interact with each other.
Download the article from SSRN at the link.

Corbin on Picturing Terrorists: "Always Muslim But Never White" @CarolineMCorbin

Caroline Mala Corbin, University of Miami School of Law, is publishing 'Terrorists are Always Muslim But Never White': At the Intersection of Critical Race Theory and Propaganda in the Fordham Law Review. Here is the abstract.
When you hear the word “terrorist,” who do you picture? Chances are, it was not a white person. In the United States, two common though false narratives about terrorists who attack America abound. We see them on television, in the movies, on the news, and, currently, in the Trump Administration. The first is that “terrorists are always (brown) Muslims.” The second is that “white people are never terrorists.” Different strands of critical race theory can help us understand these two narratives. One strand examines the role of unconscious cognitive biases in the production of stereotypes, such as the stereotype of the “Muslim terrorist.” Another strand focuses on white privilege, such as the privilege of avoiding the terrorist label. These false narratives play a crucial role in Trump’s propaganda. As the critical race analysis uncovers, these two narratives dovetail with two constituent parts of propaganda: flawed ideologies and aspirational myths. Propaganda relies on pre-existing false ideologies, which is another way to describe racist stereotyping. Propaganda also relies on certain ideals and myths, in this case, the myth of white innocence and white superiority. Thus, the Trump Administration’s intentional invocation of both narratives amounts to propaganda in more than just the colloquial sense. Part I illustrates each of the two narratives. Part II analyzes them through a critical race lens, showing how they map onto two strands of critical race theory. Part III examines how these narratives simultaneously enable and comprise propaganda. Finally, Part IV argues that the propagation of these false narratives hurts the nation’s security.
Download the essay from SSRN at the link.

Diamond on The Transposition of Power: Law, Lawyers, and Social Movements @GeorgetownLaw

Michael Diamond, Georgetown University Law Center, has published The Transposition of Power: Law, Lawyers and Social Movements at 24 Georgetown Journal on Poverty Law & Policy 319 (2017). Here is the abstract.
Various groups of people have been the victims of oppression throughout time and across national borders and cultures. Many forms of oppression continue to exist all over the world today, including in the United States. I have been particularly concerned with oppression on the basis of race. The responses to oppression have taken many forms, ranging from passivity and acquiescence to rebellion. Much of the response, however, takes place between these extremes, often in the form of ongoing collective action by more or less organized groups. Broadly speaking, these actions have come to be known as social movements, and they have been the subject of a great deal of scholarly examination. Through this scholarship, we have learned much about the nature of social movements, who joins them, and how they have been able to succeed. We have not learned as much about how the law and lawyers affect such movements and how, if at all, law and lawyers contribute to their success. I would like to examine these issues in an effort to elucidate the relationship between law, lawyers, and social movements and to better understand how lawyers can be helpful (or detrimental) to such movements. My own interest in this field is somewhat more narrowly confined. For example, I have been skeptical of movements and lawyers who set as their goal the establishment of new or expansion of existing legal rights. New rights do not seem to have much social or political impact on subordinated groups, unless the holders of those rights have the power to enforce them. As an alternative to the rights discourse, I have been interested in the acquisition and utilization of power by marginalized and oppressed groups in the United States. Even more narrowly, my research has focused primarily on issues affecting the urban poor. Historically, there has been a significant intersection connecting social movements to urban poverty. The Civil Rights Movement, the Welfare Rights Movement, the Affordable and Fair Housing Movements, the Affordable Health Care Movement and the Black Lives Matter Movement among others, have had significant impetus from and impact on the urban poor. Many of these movements succeeded in creating new rights for various groups. Many were successful in changing, to some extent individual lives and social environments. Nevertheless, we see today a society where wealth and well-being are even more polarized, often on the basis of race, and groups of people who remain subject to the same forms of intergenerational oppression as those faced by their long departed ancestors. These groups continue to exist on the wrong side of what I have previously called the “power deficit.” If this assertion is correct the dedicated and well-intentioned efforts of lawyers have had only marginal results. Thus, I take the position, as do several others, that lawyers who work with oppressed groups must assist them in gaining and using power rather than pursuing rights as an end in themselves. That being said, there is little consensus among social scientists, philosophers, and lawyers on the meaning of power and virtually no legal literature on how it can be obtained and used (although a fair amount exists on the need to obtain and utilize it). “Of all the concepts used by sociologists, few are the source of more confusion or misunderstanding than power.” My intention in this paper is to dispel some of that confusion and to attempt to illuminate some issues concerning power in relation and as a response to oppression.
Download the article from SSRN at the link.

Kerr on The Law According to the Most-Cited Law Review Articles of All Time @GeorgetownLaw @GB2d

Andrew Jensen Kerr, Georgetown University Law Center, is publishing The Law According to the Most-Cited Law Review Articles of All Time in volume 20 of the Green Bag 2d (August 2017). Here is the abstract.
In this essay I address the perennial question of “What is law?” My data is our canon, as measured by citation counts. I limit my compass to the fifty most-cited articles in the modern Anglo-American tradition. My essay reads as a mosaic, but suggests the continuities in legal inquiry.
Download the article from SSRN at the link.

New From Elgar Publishing: Niels van Dijk: Grounds of the Immaterial: A Conflict-Based Approach to Intellectual Rights @ElgarPublishing

New from Elgar Publishing: Niels van Dijk, Postdoctoral Fellow, Research Group on Law, Science, Technology, and Society, Vrije Universiteit Brussel, Belgium, Grounds of the Immaterial: A Conflict-Based Approach to Intellectual Rights (2017).
This book applies a novel conflict-based approach to the notions of ‘idea’, ‘concept’, ‘invention’ and ‘immateriality’ in the legal regime of intellectual property rights by turning to the adversarial legal practices in which they occur. In doing so, it provides extensive ethnographies of the courts and law firms, and tackles classical questions in legal doctrine about the immaterial nature of intellectual property rights from a thoroughly new perspective. The book follows the legal proceedings of disputes in patent, copyright and trademark law as they circulate from the sites of enterprises, through the offices of law firms, the court registry, the courtroom and the judge’s office, until they finally arrive at judgment. In this way, the central matters of a dispute are gradually transformed into immaterial works, inventions, or signs through the ceaseless ‘material’ operations of legal practices. This analysis sheds light on how seemingly abstract philosophical notions are rendered workable as concrete legal concepts with important consequences. Grounds of the Immaterial offers an inventive and refreshing take on intellectual property rights which will be valued by academics and students in philosophy, legal theory, legal anthropology and intellectual property.

Grounds of the Immaterial  

August 29, 2017

CFP: AALS Sections on Constitutional Law and Legal History

From Rebecca Zietlaw, Chair of AALLS Section on Constitutional Law, 2017-2018 Call for Papers: The AALS Sections on Constitutional Law and Legal History invite paper submissions to participate in our joint program, “Reconstruction: The Second Founding,” at the 2018 AALS Annual Meeting on January 4, 2018. One paper will be selected among those submitted. The panel will take place from 3:00-4:30 on Thursday, January 4, 2018. TOPIC DESCRIPTION On the 150th anniversary of the 14th Amendment, the program celebrates the Reconstruction Constitution and explores its meaning to the law today. In an addition to a keynote luncheon speech by historian Martha Jones of the University of Michigan, the program will consist of two panels; the first on the history of Reconstruction and the second on Reconstruction’s present-day meaning. The AALS Sections on Constitutional Law and Legal History welcome submissions for the second panel. This panel discussion will focus on the impact of the Reconstruction Amendments on contemporary constitutional law, touching on topics from racial justice to sex equality and the law of empire. The Sections invite papers (historical, theoretical, doctrinal, empirical) on the present-day resonance of the Thirteenth and Fourteenth Amendments and their broader significance. ELIGIBILITY Full-time faculty members of AALS member law schools are eligible to submit papers. Preference will be given to junior scholars doing original work on the Reconstruction Amendments. Diversity of race, gender, sexual orientation, ideology and subject matter will be taken into account in evaluating proposals. Pursuant to AALS rules, faculty at fee-paid law schools, foreign faculty, adjunct and visiting faculty (without a full-time position at an AALS member law school), graduate students, fellows, and non-law school faculty are not eligible to submit. Please note that all faculty members presenting at the program are responsible for paying their own annual meeting registration fee and travel expenses. PAPER SUBMISSION PROCEDURE Paper submissions should be accompanied by a short abstract (no more than 800 words). While complete papers with abstract are preferred, paper abstracts without accompanying papers will also be accepted. Papers will be selected by the Sections’ officers in a double-blind review. Please submit only anonymous papers by redacting from the submission the author’s name and any references to the identity of the author. Please send proposals to Derinda Kirkland at Each submission should be in PDF format and come with a separate cover sheet including the applicant’s name, affiliation, and contact information. . The subject line of the email submission should read: “Submission – 2018 Joint Program on Reconstruction.” DEADLINE Deadline for submission of proposals is 5 pm EST on Friday, September 8 2017. Rebecca E. Zietlow Chair, AALS Section on Constitutional Law, 2017-2018 Charles W. Fornoff Professor of Law and Values University of Toledo College of Law (419) 530-2872

Byberg on the History of the Common Market Law Review 1963-1993

Rebekka Byberg, University of Copenhagen, has published The History of Common Market Law Review 1963–1993 at 23 European Law Journal 45 (2017). Here is the abstract.
The transnational organisation of an academic discipline of European law has been a key component in the history of European law. A constitutive element is explored in this article, namely, the journal Common Market Law Review (CML Rev.). General existing claims of a strong connection between the Community institutions and academia in the transnational, academic discipline of European law are substantiated, and it is documented how CML Rev. legitimised the jurisprudence of the ECJ, differentiated European law from international law and countered national criticism as the academic lighthouse of the discipline in the 1960s and 1970s. In the 1980s, other forces drove the academic field forward, and CML Rev. lost its position as the avant‐garde in the discipline, but the journal developed a critical stance and rejected the most radical claims of the ECJ on the ultimate authority as part of a development towards professional maturity in the same period.
Download the article from SSRN at the link.

Palmer on Empires as Engines of Mixed Legal Systems @TulaneLaw

Vernon V. Palmer, Tulane Law School, has published Empires as Engines of Mixed Legal Systems as Tulane Public Law Research Paper No. 17-13. Here is the abstract.
Nowhere else is the evolution of pluralism more accelerated than in the legal transformations brought about by assembling and managing empires. Whether Roman, Ottoman or English, Empires have been veritable engines of mixed and plural laws. This essay will suggest that mixed legal systems have been with us since antiquity and have been continually generated in conditions of increased social contact, commerce and communication between peoples. The incubation of mixed systems within empires suggests that legal mixing is unavoidable (and maintaining original purity unsustainable) when there is sufficient social and intellectual connection between peoples who fall under the same imperial sovereign. Different variables affect the speed and thoroughness of integration, for instance the social distance between cultures and civilizations, the prestige and rational appeal of the imperial law, and imperial policies which promote assimilation or seek to maintain separate laws for different peoples. Furthermore empires have distinctive purposes and devise distinctive strategies toward foreign laws. The Roman and Ottoman Empires clearly had different purposes and strategies and such differences have contributed to two forms of pluralism we find in the modern world.
Download the article from SSRN at the link.

Kiel on Racial Registration in Native American Communities @Doug_Kiel

Doug Kiel, Northwestern University, is publishing Bleeding Out: Histories and Legacies of 'Indian Blood', in The Great Vanishing Act: Blood Quantum and the Future and Native Nations (K. Ratteree and N. Hill, 2017). Here is the abstract.
This essay examines the origins of the blood quantum system of racial registration in Native American communities, evaluates arguments for and against its continuation, and identifies potential alternatives for reconciling sovereign Indigenous nationhood with racialized conceptions of indigeneity.
Download the essay from SSRN at the link.

August 24, 2017

Gebeye on Legal Theory in Africa: Between Legal Centralism and Legal Pluralism

Berihun Adugna Gebeye, Central European University (CEU), Department of Legal Studies, is publishing Legal Theory in Africa: Between Legal Centralism and Legal Pluralism in the Queen Mary Law Journal (2017). Here is the abstract.
The African legal universe is difficult to capture through the lens of legal centralism and legal pluralism. While the former excludes the pre-colonial African legal experience, the latter blurs the post-colonial legal dynamics. By employing Joseph Raz’s theory of legal system, this paper argues that there have been centralized legal systems and plural laws in Africa. Customary legal systems, colonial legal systems and constitutional legal systems have existed in pre-colonial, colonial and post-colonial Africa respectively. Plural laws such as diverse customary and religious laws, imperial colonial laws, and statutory laws constituted these legal systems in different time and space. Hence, the quest for African legal theory rests in between legal centralism and legal pluralism.
The full text is not available for download.

"Bohemian Rhapsody" as a Crime Film @openculture @digg

Via Open Culture and Digg: Jeff Schine and Deborah Ramaglia act out Queen's "Bohemian Rhapsody" as a crime film. Check it out here.

August 23, 2017

Burke on Why Novelists Write About the Criminal Justice System @alafairburke @Hofstra_Law

Alafair S. Burke, Hofstra University School of Law, is publishing Why Fiction? in the New England Law Review (2017). Here is the abstract.
When I sold my first novel the summer after my first year as a tenure-track law professor, I assured the dean of my law school that fiction was a hobby, completely separate from my academic work, no different than if a colleague were training for a marathon in her spare time. Fifteen years later, this symposium asks its participants - four of us published novelists, one of us a judge, all of us trained lawyers - to reflect on the depiction of the criminal justice system in fiction. Our contributions make clear that the promise I made to my dean was itself a type of fiction. Whether an author realizes it or not, it is impossible to create an interesting, albeit fictional, depiction of the criminal justice system without having something to say about its real-world counterpart. Successful legal fiction uses the legal system as a defining component of the narrative that feels entirely realistic, even if the plot that unfolds there is wholly fictional. To be of interest, a novel’s legal setting must serve a purpose. Legal detail should advance the development of character, plot, or atmosphere. Separate from the question of why a novelist might write about law is the question of why a legal professor might choose to write fiction. This symposium presses me to respond to that query. Fortunately, the five thoughtful and diverse essays contributed to this collection have helped clarify a decade and a half of my own thoughts. I appreciate the opportunity to comment on three themes that I hope I have developed at least as well through fiction as through traditional legal scholarship: (1) individual actors in the criminal justice system matter; (2) legal rules are only a starting point; and (3) justice is not inevitable. Comparing these three points to narrative, one could say that they provide lessons about character, structure, and surprise endings.
Download the article from SSRN at the link.

Solum on Triangulating Public Meaning: Corpus Linguistics, Immersion, and the Constitutional Record @lsolum @GeorgetownLaw

Lawrence B. Solum, Georgetown University Law Center, has published Triangulating Public Meaning: Corpus Linguistics, Immersion, and the Constitutional Record. Here is the abstract.
This Essay contributes to the development of an originalist methodology by making the case for an approach that employs three distinct methods, each of which serves as a basis for confirming or questioning the results reached by the other two. This approach will be called the Method of Triangulation. The three component techniques are as follows: (1) The Method of Corpus Linguistics: The method of corpus linguistics employs large-scale data sets (corpora) that provide evidence of linguistic practice. (2) The Originalist Method of Immersion: The method of immersion requires researchers to immerse themselves in the linguistic and conceptual world of the authors and readers of the constitutional provision being studied. (3) The Method of Studying the Constitutional Record: The method of studying the record framing, ratification, and implementation requires the researcher to examine the drafting process, including sources upon which the drafters relied, debates during the drafting and ratification process, and the early history of implementation of the constitutional provision. These three methods each provide different inputs into the process of constitutional interpretation and construction. Because each method can be checked against the others, the combination of the three methods results in what can be called "triangulation."
Download the article from SSRN at the link.

August 22, 2017

Del Gobbo on Unreliable Narration in Law and Fiction @danieldelgobbo

Daniel Del Gobbo has published Unreliable Narration in Law and Fiction, 30 Canadian Journal of Law and Jurisprudence 311 (2017). Here is the abstract.
This article revisits long-standing debates about objective interpretation in the common law system by focusing on a crime novel by Agatha Christie and judicial opinion by the Ontario High Court. Conventions of the crime fiction and judicial opinion genres inform readers’ assumption that the two texts are objectively interpretable. This article challenges this assumption by demonstrating that unreliable narration is often, if not always, a feature of written communication. Judges, like crime fiction writers, are storytellers. While these authors might intend for their stories to be read in certain ways, the potential for interpretive disconnect between unreliable narrators and readers means there can be no essential quality that marks a literary or legal text’s meaning as objective. Taken to heart, this demands that judges try to narrate their decisions more reliably so that readers are able to interpret the texts correctly when it matters most.

Lawrence Joseph's Sixth Book of Poetry Published @fsgbooks @StJohnsU

Lawrence Joseph, poet and professor of law at St. John's University, has published his sixth book of poems, So Where Are We? (Farrar, Straus, Giroux).

Other collections of his poetry include Into It (2005), and Codes, Precepts, Biases, and Taboos: Poems 1973-1993, both published by FSG. The latter collects his first three books of poetry. He is also the author of the novel Lawyerland, under option by Mr. Mudd Productions. 

CFP: John Grisham and the Law: The University of Memphis Law Review @uofmemphis

From the Mailbox: Via Andrew J. McClurg, University of Memphis School of Law:


Rudy Baylor, a Memphis Law graduate, lost his new associate job before it even started when a bigger firm bought the firm that had hired him as a 3L.  Defeated, yet still determined to pursue a career in the law, Baylor accepted an associate job at an ambulance-chaser firm.  Little did young Baylor know that he would soon find himself litigating against a white-shoe law firm representing a health insurance monolith in an insurance claim—his very first case—that wound up being worth $50 million.

Of course, none of this actually happened in real life.  Twenty years ago, this tale unfolded on the silver screen in the 1997 major motion picture The Rainmaker, which brought to life author John Grisham’s novel of the same name.

We hope you will join us in celebrating John Grisham’s contributions to the law by submitting your articles on legal topics that arise in Grisham’s stories to The University of Memphis Law Review.  An ideal submission will frame its content with specific reference(s) to Grisham’s work(s) and will offer a practical legal argument.  We aim to publish accepted manuscripts in Volume 48, Number 3 of The University of Memphis Law Review.

John Grisham has repeatedly found ways to use his novels to offer incisive commentary on our profession and has popularized timeless themes of law and justice for the masses, in the South and elsewhereTopics could include, but are not limited to:

The Runaway Jury

·         Voir dire / jury tampering
·         Settlements and arbitration
·         Collateral estoppel

The Chamber

·         Death penalty and politics
·         Working with hostile clients
·         Ethical considerations when representing members of the same family

A Time to Kill

·         Race and the law
·         Law in the South
·         Vigilante justice
·         Hate crimes
·         Advocacy techniques
·         Right to a fair trial (venue, voir dire)
·         Capital punishment

The Client

·         Fifth Amendment issues
·         Witness-protection program
·         Attorney-client privilege

The Firm

·         Mail fraud
·         Moral obligations when you know your client is guilty
·         Moral and professional conflicts arising for junior associates
·         Balancing the obligation to maintain clients’ confidentiality with the obligation to comply with law enforcement’s demands

The Rainmaker

·         Attorney-client relationships
·         Self-defense justifications
·         Refusal to pay insurance claims
·         Punitive damages
·         Tort reform

Submission Protocol
To submit an entry to this themed book, please submit directly to Maggie McGowan, Senior Articles Editor at with “Grisham Book” in the subject line.

August 21, 2017

Hiring Announcement: Louisiana State University Law Center

Hiring Announcement:

LOUISIANA STATE UNIVERSITY, PAUL M. HEBERT LAW CENTER seeks to hire three (3) tenure-track or tenured faculty members. Areas of particular interest to us include the following: business & transactional law; civil procedure; criminal law & procedure; environmental law; energy law; ethics and professionalism; evidence; family law; and juvenile justice clinical teaching.

We may consider applications who specialize in areas other than those listed. We also seek applications for the position of Director of the John P. Laborde Energy Law Center. Applicants should have superior academic credentials and publications or promise of productivity in legal scholarship. 

Contact: Melissa T. Lonegrass, Chair of the Faculty Appointments Committee c/o Pam Hancock Paul M. Hebert Law Center, Louisiana State University 1 East Campus Drive Baton Rouge, LA 70803-0106.

The Paul M. Hebert Law Center of LSU is an Equal Opportunity/Equal Access Employer and is committed to building a culturally diverse faculty and encourages applications from female and minority candidates.

Rossner, Tait, McKimmie, and Sarre on Courtroom Design and the Presumption of Innocence @meredithrossner @blakemckimmie @UniversitySA

Meredith Rossner, London School of Economics & Political Science, David Tait, University of Western Sydney College of Arts, Blake McKimmie, University of Queensland, and Rick T. Sarre, University of South Australia School of Law, have published The Dock on Trial: Courtroom Design and the Presumption of Innocence at 44 Journal of Law and Society 317 (2017). Here is the abstract.
This article examines the place of the criminal dock in courtroom design. Challenges to the use of the dock have been based upon the inability of the defendants to hear effectively, to communicate with counsel, to maintain their dignity, and to benefit from the presumption of innocence. Increasingly courts are incorporating secure docks, where defendants are partially or completely surrounded by glass (or in some countries, metal bars). To what extent do these changes and modifications undermine the right to the presumption of innocence? We present the results of an experimental mock jury study that was designed to test whether the placement of the accused influences jurors’ perceptions. We find that jurors are more likely to convict defendants when they are located in a traditional dock or a secure dock, compared to sitting next to their counsel at the bar table. We conclude by discussing the implications for trial procedures, counsel communications, and courtroom design.
The full text is not available from SSRN.

August 17, 2017

"Suits" Spinoff Will Star Gina Torres In a Series Set In Chicago @Suits_USA

From The Hollywood Reporter: USA Network is planning a Suits spinoff to star Gina Torres, who plays Jessica Pearson in the current series. The pilot for the possible series will air as Suita' season 7 finale and debut in spring of 2018. The Pearson character will move to Chicago and start a new life in politics, which will propel the stories in this new series. More here from International Business Times.

August 16, 2017

Makela on Whether Law Is an Academic Discipline

Finn Makela, Université de Sherbooke, Faculty of Law, has published Is Law an Academic Discipline? at 50(3) R.J.T.U.M. 422 (2017). Here is the abstract.
This article engages with the existing literature on the role of legal research in the University by framing the question as whether law is an academic discipline. I answer in the affirmative but my defense of this position is based on a sociological rather than an ontological conception of disciplinarity. Law is an academic discipline not by virtue of its relationship to a specific object or methodology, but by virtue of the institutional recognition of its legitimacy to produce a scholarly discourse. The argument relies on the distinction between points of view internal and external both to law and to disciplines.
Download the article from SSRN at the link.

A Book on the Superhero "Green Arrow" from Richard Gray, Phil Hester, Neal Adams, Mike Grell, Chuck Dixon, Brad Meltzer, and Jeff Lemire

New from the Sequart Organization:

Richard Gray et al., Moving Target: The History and Evolution of Green Arrow (2017).

For 75 years, Green Arrow has been a part of the DC Comics world, working his way up from a supporting player to the star of a flagship television series. Yet for much of his career, he was a hero without a home, separate from his contemporaries, or unfavorably compared with a certain Dark Knight. Whether it is the “cowboys and Indians” influences of the 1940s and 1950s, the rebellious realism of the 1970s, the darker edge of the 1980s, or the melodrama of his TV personas, Green Arrow has remained the conscience of the comics world, and perhaps an even better representative than Batman of what one person can do. This collection is the definitive analysis of the Emerald Archer, from his Golden Age origins to his small screen adventures and beyond. Exploring overlooked chapters of Green Arrow’s life, and those of alter ego Oliver Queen, this book shows that Green Arrow has never been just one thing, but rather a perpetually moving target. Includes new interviews with Green Arrow creators from across the decades, including Neal Adams, Mike Grell, Chuck Dixon, Phil Hester, Brad Meltzer, and Jeff Lemire.

A New Book on the Development of Sherlock Holmes Into a Worldwide Literary and Cultural Icon: Bostrom's From Holmes To Sherlock

Newly available in English translation: Mattias Boström, From Holmes to Sherlock: The Story of the Men and Women Who Created an Icon (The Mysterious Press, dist. by Grove Atlantic, 2017).
Everyone knows Sherlock Holmes. Sir Arthur Conan Doyle created a unique literary character who has remained popular for over a century and is appreciated more than ever today. But what made this fictional character, dreamed up by a small-town English doctor in the 1880s, into such a lasting success? In From Holmes to Sherlock, Swedish author and Sherlock Holmes expert Mattias Boström recreates the full story behind the legend for the first time. From a young Arthur Conan Doyle sitting in a Scottish lecture hall taking notes on his medical professor’s powers of observation to the pair of modern-day fans who brainstormed the idea behind the TV sensation Sherlock, from the publishing world’s first literary agent to the Georgian princess who showed up at the Conan Doyle estate and altered a legacy, the narrative follows the men and women who have created and perpetuated the myth. It includes tales of unexpected fortune, accidental romance, and inheritances gone awry and tells of the actors, writers, and readers who have transformed Sherlock Holmes from the gentleman amateur of the Victorian era to the odd genius of today. Told in fast-paced, novelistic prose, From Holmes to Sherlock is a singular celebration of the most famous detective in the world—a must-read for newcomers and experts alike.

Cummings on The Social Movement Turn in Law @UCLA_Law

Scott L. Cummings, University of California, Los Angeles, School of Law, is publishing The Social Movement Turn in Law in Law & Social Inquiry. Here is the abstract.
The rise of social movements in US legal scholarship is a current response to an age-old problem in progressive legal thought: harnessing law for social change while maintaining a distinction between law and politics. This problem erupted in controversy around the civil rights–era concept of legal liberalism defined by activist courts and lawyers pursuing political reform through law. Contemporary legal scholars have responded by building on social science to develop a new concept — movement liberalism — that assigns leadership of transformative change to social movements to preserve conventional roles for courts and lawyers. Movement liberalism aims to achieve the lost promise of progressive reform, while avoiding critiques of legal activism that have divided scholars for a half-century. Yet rather than resolving the law-politics problem, movement liberalism reproduces long-standing debates, carrying forward critical visions of law that it seeks to transcend.
Download the article from SSRN at the link.

August 14, 2017

Swanson on "Great Men," Law, and the Social Construction of Technology @KaraWSwanson

Kara W. Swanson, Northeastern University School of Law, is publishing 'Great Men,' Law, and the Social Construction of Technology in Law and Social Inquiry. Here is the abstract.
Alexander Graham Bell is famous as the inventor of the telephone. Is his fame owing to law and lawyers? Two recent histories argue that some popular tales of invention originated with lawyers and judges as part of patent litigation battles. (Stathis Arapostathis and Graeme Gooday, Patently Contestable: Electrical Technologies and Inventor Identities on Trial in Britain (2013); Christopher Beauchamp, Invented by Law: Alexander Graham Bell and the Patent that Changed America (2015)). Bringing law into the historical project of understanding the social construction of technology, the authors unsettle great man narratives of invention. A tale of a recent patent war, however, is a case study in the persistence of such narratives, highlighting the uses of legal storytelling. (Ronald K. Fierstein, A Triumph of Genius: Edwin Land, Polaroid, and the Kodak Patent War (2015)). Together, these works invite consideration of the cultural power possessed by invention origin stories, the role of narratives in law and history, and the judicial performance of truth-finding in Anglo-American law.
Download the article from SSRN at the link.

Marmor on What Law Is and What Counts as Law @CornellLaw

Andrei Marmor, Cornell University Law School, has published What Is Law and What Counts as Law? The Separation Thesis in Context at Cornell Legal Studies Research Paper No. 17-34. Here is the abstract.
The separation thesis associated with the legal positivist tradition in legal philosophy holds that the legal validity of norms depends only on their sources, not on considerations of merit or value. In this essay I show that the separation thesis comes under pressure from cases in which an answer to the question: Is o an F? partly depends on the values associated with the nature of F. This is certainly the case when we try to determine whether an object is a work of art, for example. In response, proponents of the separation thesis would want to resist the analogy with art, and maintain that the ascription of legal validity to a norm does not involve any evaluative dimensions. I argue that this line of response is not very firm, and a better way to defend the separation thesis is to see it as an answer to the question of what makes it the case that an o counts as an F in the relevant society. I try to show that this latter type of question follows from the theoretical context in which the separation thesis comes up, namely, a reductionist explanation of legal validity. My purpose here is to show how a proper construal of the separation thesis, in the context of legal positivism’s reductionist ambition, goes a long way in supporting its truth.
Download the article from SSRN at the link.

August 11, 2017

McCutcheon on Some Observations Inspired by Kelley v. Chicago Park District

Jani McCutcheon, University of Western Australia Faculty of Law, is publishing Natural Causes: When Author Meets Nature in Copyright Law and Art. Some Observations Inspired by Kelley v Chicago Park District in volume 86 of the University of Cincinnati Law Review. Here is the abstract.
This article considers the interplay between author and nature in United States copyright law, using Kelley v Chicago Park District as a catalyst. In Kelley, the Seventh Circuit repudiated Chapman Kelley’s authorship of his enormous wildflower garden, Wildflower Works, partly on the basis that natural forces, rather than Kelley, were primarily responsible for the form of the work. The article has two broad purposes. The first is to critique the Seventh Circuit’s denial of Kelley’s authorship. The article argues that the Seventh Circuit misconceived Wildflower Works by conflating the work with the plants constituting it. This skewed its assessment of Kelley’s authorship, failing to give sufficient weight to his selection and arrangement effort. The second, and primary, purpose of the article is to explore the ramifications of Kelley for other contemporary art employing natural materials and natural forces, and to more deeply examine authorship doctrine in this context. Using a number of examples of artists who collaborate with nature, the article explains how natural forces can disturb authorship, but may not defeat it. The aims of the article are to fuel discussion, prompt reflection, and question some deeper assumptions about the relationship between nature and authorship in copyright law.
Download the article from SSRN at the link.

FX's "The Americans," False Identities, and a Real-Life Canadian Citizenship Conundrum

FX Network's The Americans is a well-done series about the lives of two KGB agents living undercover in Washington, DC during the 1980s, raising a family and carrying out their mission. The show examines both the personal and political costs of such choices, and it's very good at drawing us into its fictional world.

But there' are real-life counterparts to the lives of the show's characters, Philip and Elizabeth Jennings, and their children. They are Canadian born Alexander and Timothy Foley, who have discovered that their names are those of two dead Canadian babies, and their parents are two Russian spies. The Canadian government is attempting to strip them of their Canadian citizenship, on the theory that because their parents were "employees of a foreign government," the boys could not obtain Canadian citizenship legally. Alex has won his case on appeal to regain his citizenship, although the Canadian government can still appeal. Tim is still fighting his battle in court. More here from Maclean's.

Meyer on Hearing the Constitutional Infirmity of the Modern American Death Penalty in the Bygone Songs of Ozark Folklore @NSULawCollege

Chance Meyer, Nova Southeastern University, Shepard Board College of Law, is publishing Twas the Devil: Hearing the Constitutional Infirmity of the Modern American Death Penalty in the Bygone Songs of Ozark Folklore in volume 87 of the Mississippi Law Journal (2017). Here is the abstract.
In the midcentury Ozark Highlands, folklorist Mary Celestia Parler collected over 4,500 reel-to-reel recordings of hillfolk singing the songs and spinning the tales of their ancestors. The Ozark Folksong Collection was recently digitized in a preservation effort at the University of Arkansas Libraries, providing new access to the deeply rooted folk knowledge of the region. Murder ballads reveal that murderers were consistently portrayed to generations of Ozarkers as inhuman monsters, purely evil, with an inevitable deservingness of the death penalty uncomplicated by complex behavioral drives or moral vagaries. News reports, commentary, rhetoric, and prosecutorial arguments surrounding twenty-first century executions of capital defendants tried in Ozark counties of Missouri, Arkansas, and Oklahoma reflect that Ozarkers still rely on folkloric attributes to understand murderers. As a result, folk knowledge supplants Eighth Amendment principles that require capital sentencing jurors to view defendants as complexly, multidimensionally human and subject to biopsychosocial influences. Because there are regional folk traditions across the country, the folklore-based constitutional infirmity of the modern American death penalty apparent in the Ozarks is sure to occur beyond the hilltops.
The full text is not available for download.

Mańko on Form and Substance of Legal Continuity

Rafał Mańko, University of Amsterdam, Centre for the Study of European Contract Law (CSECL), is publishing Form and Substance of Legal Continuity in volume 17(2) of Zeszyty Prawnicze. Here is the abstract.
The paper claims that the form vs. substance dichomoty is relevant for the study of legal continuity, however, only provided that the notion of ‘form’ refers to the ‘form of law,’ and the notion of ‘substance’ refers to the socio-economic reality which the law strives to regulate. Therefore, the study of legal continuity despite a socio-economic transformation is, ultimately, the study of interaction between the (unchanged) form and (changed) substance.
Download the article from SSRN at the link.

August 10, 2017

Cooney on Passive Voice Phrasing, Linguistic Ambiguity. and the Board Game "Clue" @WMUCooleyLaw ‏

Mark Cooney, Western Michigan University Cooley Law School, has published Give a Clue (A Linguistic Whodunit) at 96 Michigan Bar Journal 60 (June 2017). Here is the abstract.
This column cites and quotes a number of cases in which ambiguity caused by passive-voice phrasing determined the outcome or hindered a court's interpretation of a statute or pleading. The column presents this material within the context of a mock British murder mystery, complete with thinly veiled references to characters from the popular board game Clue. It's a short humor piece with a serious message to lawyers: passive voice is a substantive issue in the law, not merely a matter of style.
Download the article from SSRN at the link.

August 9, 2017

Kellogg on the Trolley Problem, Pragmatism, Moral Particularism, and the Continuum of Normative Inquiry

Frederic R. Kellogg, Universidade Federal de Pernambuco, has published Take the Trolley Problem . . . Please! Pragmatism, Moral Particularism, and the Continuum of Normative Inquiry. Here is the abstract.
Departing from hypothetical dilemmas and drawing on examples from law, this paper offers a pragmatist account of normative induction that characterizes moral particularism and generalism as stages of inquiry into ethical problems, rather than rival accounts of moral knowledge and motivation. Ethical particularism holds that the evaluative cannot be “cashed out” propositionally, that it is descriptively “shapeless.” Real moral problems occur in a continuum, and at first encounter a shapeless particularist context of seemingly unlimited non-moral properties. But normativity is driven by repetition of similar situations toward shared practices and descriptive predication. Rather than a Dancian retention of epistemic status by defeated reasons, this illustrates retirement of relevant properties and accompanying reasons, transformation of the reasons environment, and a pluralist normative ontology. This paper contends that pragmatism’s response to analytical moral theory lies in understanding the transformative nature of John Dewey’s social continuum of inquiry. The actual continuum is unrecognized in the analysis of hypothetical dilemmas, like the trolley problem, but can clearly be seen in studies of law. Real moral dilemmas represent actual conflicts, the solution of which cannot be addressed through the analysis of cleverly balanced moral puzzles. Repeated over time, real problems drive the consensual formation and revision of social practices and the predication of general moral rules and principles.
Download the article from SSRN at the link.

Stephens and Boyce on The Struggle for Civic Space Between a Minority Legal Language and a Dominant Legal Language: The Case of Māori and English @MamariStephens @VicUniWgtn ‏

Māmari Stephens, Victoria University of Wellington, and Mary T. Boyce, University of Canterbury, have published "The Struggle for Civic Space between a Minority Legal Language and a Dominant Legal Language: The Case of Māori and English in Legal Language: A Comparative Perspective 289 (2016). Here is the abstract.
Our experience in creating a bilingual Māori-English legal dictionary (He Papakupu Reo Ture – a dictionary of legal Māori terms LexisNexis 2013) has shown us that legal lexicography offers fascinating insights into the relationship between the legal language for special purposes (LSP) of a dominant language such as English, and the legal LSP3 of a minority language such as Māori. This chapter demonstrates three particular insights. A diachronic corpus comprising texts of a threatened indigenous language will yield rich and useful data, but may not provide true comparability between texts. Investigation into how borrowings from the dominant language can change in usage over time yields potentially useful insights into lexical change in a diachronic corpus. Finally, paying particular attention to customary legal terms will yield insights into how an indigenous language absorbs and expresses Western legal concepts.
Download the chapter from SSRN at the link.

Desnoyer and Alexander on Race, Rhetoric and Judicial Opinions: Missouri as a Case Study @MizzouLaw

Brad Desnoyer and Anne Alexander, both of the University of Missouri School of Law, have published Race, Rhetoric, and Judicial Opinions: Missouri as a Case Study at 76 Maryland Law Review 696 (2017). Here is the abstract.
This Essay studies the relationship between race, rhetoric, and history in three twentieth century segregation cases: State ex rel. Gaines v. Canada, Kraemer v. Shelley, and Liddell v. Board of Education. Part I gives a brief overview of the scholarship of Critical Race Theory, majoritarian narratives and minority counter-narratives, and the judiciary’s rhetoric in race-based cases. Part II analyzes the narratives and language of Gaines, Kraemer, and Liddell, provides the social context of these cases, and traces their historical outcomes. The Essay contends that majoritarian narratives with problematic themes continue to perpetuate even though court opinions have evolved to use less explicit race-based rhetoric. The Essay proposes that this rhetoric has been replaced with majoritarian enthymemes, i.e., unstated assumptions about race. These majoritarian enthymemes allow the underlying narratives of historic court opinions to retain vitality even outside of the courts. The Essay concludes that long-lasting societal change has been elusive, in part, because, without explicitly rebutting majoritarian narratives and giving voice to counter-narratives, even progressive judicial opinions cannot effectively challenge the status quo.
Download the essay from SSRN at the link.

Garon on Fandom and Creativity, Including Fan Art, Fan Fiction, and Cosplay @NSULawCollege

Jon Garon, Shepard Broad College of Law, has published Fandom and Creativity, Including Fan Art, Fan Fiction, and Cosplay. Here is the abstract.
Fandom has grown into a sufficiently important cultural phenomenon that it has engendered a number of scholarly journals, books, and conferences. As with any academic discipline, there are a multitude of theories and schools of thought on the cultural significance and motivating structure of these communities. These studies tend to focus on the complex relationship between the fan community and the producers of the creative works. While the theoretical understanding of this dynamic tension is worthy of study, the focus of this chapter is primarily on the practical implications of these phenomena and the Con organizer’s ability to foster these relationships.
Download the article from SSRN at the link.

August 8, 2017

Funk and Mullen on The Spine of American Law: Digital Text Analysis and U. S. Legal Practice @kellenfunk @lincolnmullen

Kellen R. Funk, Princeton University (Students), and Lincoln A. Mullen, Department of History and Art History, George Mason University, are publishing The Spine of American Law: Digital Text Analysis and U.S. Legal Practice in the American Historical Review (February 2018). Here is the abstract.
In the second half of the nineteenth century, the majority of U.S. states adopted a novel code of legal practice for their civil courts. Legal scholars have long recognized the influence of the New York lawyer David Dudley Field on American legal codification, but tracing the influence of Field’s code of civil procedure with precision across some 30,000 pages of statutes is a daunting task. By adapting methods of digital text analysis to observe text reuse in legal sources, this article provides a methodological guide to show how the evolution of law can be studied at a macro level—across many codes and jurisdictions—and at a micro level—regulation by regulation. Applying these techniques to the Field Code and its emulators, we show that by a combination of creditors’ remedies the code exchanged the rhythms of agriculture for those of merchant capitalism. Archival research confirmed that the spread of the Field Code united the American South and American West in one Greater Reconstruction. Instead of just a national political development centered in Washington, we show that Reconstruction was also a state-level legal development centered on a procedure code from the Empire State of finance capitalism.
Download the article from SSRN at the link.

The 'Net and True Crime @lithub @katelizabee

Kathleen Barber discusses the interaction of the new media and the Internet on post conviction remedies. Can lay investigators, those for whom true crime isn't just an ordinary interest but a passion, actually right the wrongs of the legal system? Real life crime has been of interest for decades, if not centuries. Does the Internet make a substantial difference in the way we look at it? Do we take it more seriously, precisely because we can be more exposed to it?

More here from Literary Hub.

August 7, 2017

Maatman on The Mockingbird's Brief: The Fairness Argument Stated In To Kill a Mockingbird @MaryEllenMaatma

Mary Ellen Maatman, Widener University Delaware Law School, is publishing The Mockingbird's Brief in volume 47 of the Cumberland Law Review (2017). Here is the abstract.
By comparing the texts of Harper Lee’s Go Set a Watchman and To Kill a Mockingbird, this article explores what Harper Lee ultimately wanted to say in To Kill a Mockingbird, and why she said it the way that she did. The article’s thesis is that To Kill a Mockingbird can be understood as the “brief” written to make the case that Go Set a Watchman attempted to state: the massive resistance movement of the 1950’s was wrong. This article examines the rhetorical situation Harper Lee confronted as she wrote Go Set a Watchman and then transformed it into To Kill a Mockingbird. This situation is defined by considering Harper Lee and her upbringing, her audience in the Deep South, and the need to speak to that audience as the White Citizens’ Council movement took hold in the region. Go Set a Watchman was Lee’s first attempt to respond to the rhetorical situation posed by the Council movement’s purposes, methods, and rhetoric. In that work, Lee responded to this situation with a raw, morality-based counterargument to the Council movement. This argument had little chance of success, as segregationists at that time regarded themselves to be on the moral side of history. Thus, this article examines how To Kill a Mockingbird works as “the Mockingbird’s brief.” If published in the 1950’s, Go Set a Watchman’s morality argument might have had traction with Southern moderates, but was unlikely to persuade segregationists. Yet, legal developments in desegregation litigation indicated that segregationists were willing to at least pay lip service to fairness principles. Thus, Harper Lee used the reworking of Go Set a Watchman into To Kill a Mockingbird to seize the rhetorical situation with a fairness argument calculated to win over her audience. The shift to fairness, which at first blush might be perceived as ducking segregationists’ punches, actually was a shift to greater effectiveness for the time and place for which Lee wrote. This article concludes that Lee’s rhetorical strategy with To Kill a Mockingbird was effective. Ultimately, Harper Lee held a kind of reverse mirror up to segregationists by remaking her Atticus into a man who embodied what southern law and lawyers could be, if guided by fairness principles.
Download the article from SSRN at the link.

August 3, 2017

Dubber on Legal History as Legal Scholarship @MarkusDubber

Markus D. Dubber, University of Toronto Faculty of Law, University of Toronto Centre for Ethics, has published Legal History As Legal Scholarship: Doctrinalism, Interdisciplinarity, and Critical Analysis of Law in the Oxford Handbook of Historical Legal Scholarship (2016). Here is the abstract.
Legal history is having a methodological moment. So is law (and, as it turns out, history as well). And not just in one country or legal system but across the common law/civil law divide. In this essay I try to capture some aspects of this methodological moment—or moments— and then to add some reflections of my own that locate legal history within the enterprise of legal scholarship. More specifically, I will outline an approach to legal history that regards historical analysis as one mode of critical analysis of law, along with other modes of “interdisciplinary” analysis (economical, philosophical, sociological, literary, etc.) and “doctrinal” analysis. In this way, legal history plays a key role in the general effort to move beyond the long-standing and rhetorically useful, but ultimately unproductive, distinction between “modern” and “traditional” legal scholarship, and that between “common law” and “civil law” scholarship besides. According to this view of legal history, it is a mode of jurisprudence (in fact, we might call it New Historical Jurisprudence) rather than a sub-specialty of law or a form of applied history.

Download the essay from SSRN at the link.