October 31, 2017

ICYMI: Christine Grogan, Father-Daughter Incest in Twentieth-Century American Literature (Rowman & Littlefield, 2016) @fdu_press @RLPGBooks @penn_state


Christine Grogan, Pennsylvania State University, University Park, Department of English, has published Father-Daughter Incest in Twentieth-Century American Literature: The Complex Trauma of the Wound and the Voiceless (Rowman & Littlefield, 2016). Here from the publisher's website is a description of the book's contents.
The first major study to challenge the narrow definition of post traumatic stress disorder (PTSD) by rereading six American literary texts, this book argues for the importance of literature in representing not just circumscribed, singular traumatic events, as Cathy Caruth argued in the late nineties, but for giving voice to chronic and cumulative, or complex, traumatic experiences. This interdisciplinary study traces the development of father–daughter incest narratives published in the last hundred years, from male-authored fiction to female-authored memoir, bringing new readings to Fitzgerald’s Tender Is the Night, Ellison’s Invisible Man, and the Dylan Farrow-Woody Allen case. This study builds on the work of those ushering in a second-wave of trauma theory, which has argued that the difficulty of speaking about a traumatic experience is not necessarily caused by neurobiological changes that prevent victims from recalling details. Rather, it’s from social and political repercussions. In other words, they argue that many who experience trauma aren’t unable to deliver accounts; they fear the results. There is a significant gender component to trauma, whose implications, along with those of race and class, have largely gone unexamined in the first-wave of trauma theory. Exploring two additional questions about articulating trauma, this book asks what happens when the voice of trauma is crying out from what Toni Morrison has called the “most delicate,” “most vulnerable” member of society: a female child; and, second, what happens when the trauma is not just a time-limit event but chronic and cumulative experiences. Some traumatic experiences, namely father–daughter incest, are culturally reduced to the untellable, and yet accounts of paternal incest are readily available in American literature. This book is written in part as a response to the psychological community which failed to include complex PTSD in the latest edition of the DSM (DSM-5), denying victims, many of whom are father–daughter incest survivors, the validation and recognition they deserve and leaving many misdiagnosed and thereby mistreated.

Rose on Raisin, Race, and the Real Estate Revolution of the Early 20th Century @uarizonalaw

Carol M. Rose, University of Arizona College of Law, is publishing Raisin, Race, and the Real Estate Revolution of the Early 20th Century in Power, Prose, and Purse (2018). Here is the abstract.
Lorraine Hansberry’s hit play of 1957, A Raisin in the Sun, centered on the decision of an African American family in Chicago, the Youngers, to move to a house in a white neighborhood. The play is set in the post WWII era, but many of its scenes and actions relate back to real estate practices that began at the turn of the century and that continued to evolve into the mid-century and to some degree beyond. During those decades, housing development and finance increased dramatically in scale, professionalization and standardization. But in their concern for their predominantly white consumers’ preferences for segregation, real estate developers, brokers, financial institutions, and finally governmental agencies adopted standard practices that excluded African Americans from many housing opportunities, and that then reinforced white preferences for housing segregation. Many seemingly minor actions in the play reflect the way that African Americans had been sidelined in the earlier decades’ evolving real estate practices—not just the family’s overcrowded apartment, but also more subtle cues, such as the source of the initial funds for the new house, the methods for its finance, and the legal background to the white homeowners’ effort to discourage the purchase. This paper, a draft chapter for the forthcoming law-and-literature collection, Power, Prose and Purse, pinpoints these and other small clues, and describes how standardizing real estate practices dating from the turn of the century effectively crowded out African American consumers like the Youngers, with consequences that we continue to observe in modern patterns of urban segregation.
Download the essay from SSRN at the link.

October 30, 2017

Distinguished Indian Jurist Gives Lecture On Law and Literature

From the Hindu:

Justice A. P. Shah, former Chief Justice of the Delhi High Court, gave the second annual Hindu Lit for Life Lecture on the subject of law and literature on October 28, 2017. Here's more.

Workshop On Making Sociolegal Research Visible and Tangible @ThomGiddens @aperrykessaris @KentLawSchool @IALS_law

News about a workshop taking place at the Institute of Advanced Legal Studies, March 9, 2018, organized by Amanda Perry-Kessaris, Professor of Law, Kent Law School, and Diamond Ashiagor, Professor of Law, Institute of Advanced Legal Studies

Workshop: Making Sociolegal Research Visible and Tangible

We invite you to attend a workshop devoted to reframing your current sociolegal research project using design-based strategies, and in so doing to improve your abilities to explain (ask: how?), to generate (ask: why?) and to speculate (ask: what if?) in relation to it.
In this one day hands-on workshop you will make three types of models (modular, found and bespoke) about your own research project; and experience the risks and rewards—in terms of communication, agility and openness—of making your research visible and tangible in an communal setting.

More here.

Via Thom Giddens, St. Mary's, London

Sean Coyle, Modern Jurisprudence: A Philosophical Guide, 2nd Edition, Now Available in Paperback @hartpublishing

Newly published: Sean Coyle, Modern Jurisprudence: A Philosophical Guide, 2d edition (Hart Publishing, 2017). Paperback.
The second edition of this book provides a concise and accessible guide to modern jurisprudence, offering an examination of the major theories as well as highlighting principal themes such as legality and justice. Together with new material, the second edition explores the historical developments and ideas that give modern thinking its distinctive shape. A key feature of the book is that readers are not simply presented with opposing theories, but are guided through the rival standpoints on the basis of a coherent line of reflection from which an overall sense of the subject can be gained. Chapters on Hart, Fuller, Rawls, Dworkin and Finnis take the reader systematically through the terrain of modern legal philosophy, tracing the issues back to fundamental questions of philosophy, and indicating lines of criticism that result in a fresh and original perspective on the subject.

 Media of Modern Jurisprudence

Newly Published: The Oxford Handbook of the Sources of International Law, Edited by Jean d'Aspremont and Samantha Besson @JdA_IntLaw @OxUniPress

Newly published:

The Oxford Handbook of the Sources of International Law (Jean d'Aspremont and Samantha Besson, eds., Oxford University Press, 2017). 

The question of the sources of international law inevitably raises some well-known scholarly controversies: where do the rules of international law come from? And more precisely: through which processes are they made, how are they ascertained, and where does the international legal order begin and end? These traditional questions bear on at least two different levels of understanding. First, how are international norms validated as rules of international The Oxford Handbook of the Sources of International Law is the very first comprehensive work of its kind devoted to the question of the sources of international law. It provides an accessible and systematic overview of the key issues and debates around the sources of international law. It also offers an authoritative theoretical guide for anyone studying or working within but also outside international law wishing to understand one of its most foundational questions. Thisandbook features original essays by leading international law scholars and theorists from a range of traditions, nationalities and perspectives, reflecting the richness and diversity of scholarship in this area.


October 26, 2017

Reminder: ASLCH Annual Meeting To Take Place at Georgetown Law Center March 16-17, 2018 @Law_Cult_Huma


The Association for the Study of Law, Culture and the Humanities is pleased to announce that its Twenty-First Annual Meeting will be held at the Georgetown Law School, in Washington D.C. on March 16-17, 2018.

ASLCH invites your participation. Please note that panel or individual paper proposals are welcome. All proposals are due Wednesday, November 1, 2017.

Individual proposals should include title, contact information and an abstract (no more than 300 words). Panel proposals should include contact information and abstracts for all members, a panel title, and proposal outlining the panel (no more than 300 words).

If multiple panels are forming a stream, please indicate the name of the panel and its order (e.g. law and time I, II etc.) in order to avoid clashes.

All proposals should be sent to LCH2018submissions@gmail.com.

The Association for the Study of Law, Culture and the Humanities is an organization of scholars engaged in interdisciplinary, humanistically-oriented legal scholarship. The Association brings together a wide range of people engaged in scholarship on legal history, legal theory and jurisprudence, political theory, law and cultural studies, law and anthropology, law and literature, law and the performing arts, and legal hermeneutics. We want to encourage dialogue across and among these fields about issues of interpretation, identity, and values, about authority, obligation, and justice, and about law's role as a constituent part of cultures and communities 

If you have any general questions about the conference, please do not hesitate to ask me at kbshoemaker@wisc.edu.

Special thanks to Hyo Yoon Kang of Kent Law School for serving as chair the program committee. 

Sincerely, Karl Shoemaker Professor of History and Law University of Wisconsin, Madison President, Association for the Study of Law, Culture, and the Humanities

[announcement re-formatted for posting--Ed.]

ASLCH Graduate Student Workshop To Be Held March 15, 2018 @Law_Cult_Huma

The Annual Association for the Study of Law, Culture, and the Humanities Graduate Student Workshop will be held on Thursday, March 15, 2018 (the day before the annual conference begins).
Applications are due November 30, 2017.
The workshop is designed for graduate students who are undertaking research that cuts across the disciplines of law, cultural studies, literature, philosophy, legal studies, anthropology, political science, among others. The workshop is designed to have some fun while, first, affording graduate students the opportunity to experience the LCH community in a smaller venue with more sustained contact with one another and some faculty and, second, providing graduate students with an opportunity to present their own work in anticipation of such things as job talks and publication.
Applications to the workshop should include a current curriculum vitae, a 5-page maximum abstract of a current project, as well as a short (5-page maximum) "text" relating to that project. This "text" could be a case, literary work, time-line, photo, sound or video file, or whatever source-"text" will help the workshop participants reflect on the subject of their work.
Use your judgment and best guesses in deciding how audio, visual, or audio-visual materials "translate" into pages of text. Applicants whose proposals are accepted will receive some support towards an extra night's accommodation by ASLCH as well as some support (varying, depending on distance traveled) towards the cost of transportation to the conference site.
Please send your applications by email to Mark Antaki (mark.antaki@mcgill.ca) by November 30, 2017, with the subject line: ASLCH Grad Workshop Application. For inquiries, please write to Mark.

October 25, 2017

Curran on Comparative Law and Language Revisited @PittLaw @pittlawfaculty @OxUniPress

Vivian Grosswald Curran, University of Pittsburgh School of Law, is publishing Comparative Law and Language Revisited in the Oxford Handbook of Comparative Law, (Mathias Reimann & Reinhard Zimmermann, eds., forthcoming). Here is the abstract.
Comparative law shares with language the pitfalls of miscommunication and misunderstanding, as well as the potentials of learning to see, to communicate and to shed light in that elusive, inevitable, shifting and ever-reconfiguring space that, like language, it occupies between the same and the other. Today, the role of comparative law as translator for the international, the cross-border, the transnational, has emerged as so crucial so often and in so many places that one may say what comparative law has become today has changed as domestic courts’ confrontations with foreign law has made the need for comparative law understanding vital, if not dire.
Download the essay from SSRN at the link.

d'Aspremont on What Was Not Meant To Be: General Principles of Law As a Source of International Law @JdA_IntLaw ‏

Jean d'Aspremont, University of Manchester, School of Law, and Sciences Po Law School, is publishing What Was Not Meant to Be: General Principles of Law As a Source of International Law in Global Justice, Human Rights, and the Modernization of International Law (R. Pisillo Mazzeschi and P. De Sena, eds., Brill, 2018). Here is the abstract.
This paper reflects on the modest role fulfilled by general principles of law in contemporary international legal thought and practice. It submits that the tepidity with which international lawyers have resorted to general principles of law in practice and legal thought — and especially in their expansionist enterprises — is the result of the inability of general principle of law to operate a source of international law. In particular, it is argued here that the miserable fate of general principles of law can be traced back to a choice by early 20th century international lawyers to locate and organize the prevention of non liquet as well as analogical reasoning within the sources of international law. The following will show that the doctrine of sources of international law may not have proved the most adequate framework for the prevention of non liquet and gap-filling function that was bestowed upon general principles of law. It is only once general principles of law come to be construed and deployed in international legal thought and practice as an argumentative technique of content-determination (i.e. a mode of interpretation) and thus not as a source of international law that they have a chance to play a meaningful role in international legal argumentation.
Download the essay from SSRN at the link.

Conference on Philosophy of Customary Law, May 14-16, 2018, Nice, France

From the mailbox:

The Centre de recherche en histoire des idées is organizing a conference on the philosophy of customary law, to take place in Nice (France) from May 14 to 16th, 2018.

The conference It aims to gather a wide range of competencies that are crucial to properly analyze the many facets of customary law, from John Austin to contemporary applications and issues such as de-colonization: not only history of law and sociology, but also history of art and anthropology.

The conference has a few grants to cover travel expenses, especially for early career researchers. At this link, you will find the complete call and details. Deadline for abstracts submission is November 15th, 2017.

The description of the Call for Papers provided by Edoardo from AIR (Atelier Ideas & Research).

October 24, 2017

Mosvick on Courtroom Wars: Pennsylvania Judges and Popular Constitutional Discourse in the Civil War North @nmosvick

Nicholas M. Mosvick, University of Mississippi School of Law, has published Courtroom Wars: Pennsylvania Judges and Popular Constitutional Discourse in the Civil War North at 8 Faulkner L. Rev. 269 (2017).
In November 1863, the Pennsylvania Supreme Court issued a temporary injunction in the case of Kneedler v. Lane by a vote of 3-2 which declared the Enrollment Act of 1863 or the Conscription Act unconstitutional. This article seeks to describe how, over the course of 1863, Pennsylvania judges confronted the constitutional arguments over the Conscription Act amidst a background of Judge Woodward's campaign for governor and the push by Democratic newspapers and party members to share constitutional critiques of the Conscription Act with the public. The article also accesses newly unearthed evidence in the form of briefs, interrogatories, and oral arguments before the Pennsylvania Supreme Court in the case of Kneedler, showing the meticulous ways in which anti-administration lawyers crafted their arguments against the constitutionality of the Conscription Act. The robust debate that emerges from these cases and legal arguments reflects the constitutional discourse among Northern citizens, which reflects their trepidation over expanding federal power and changing notions of sovereignty.
Download the article from SSRN at the link.

Tilburg Law Review, Special issue: Translating Law, Now Available @TilburgLaw @tilburglawrev

From the mailbox: The Tilburg Law Review, volume 22 (2017), is now available. It is a double issue, on the theme of Translating Law.
This special issue seeks to continue the legacy of Willem Witteveen, a professor of jurisprudence at Tilburg Law School who tragically passed away in the MH17 disaster in Ukraine of July 2014. Willem Witteveen was an interdisciplinary scholar who created multiple spaces for law and humanities in and outside the Netherlands. The issue comprises of a collection of nine research articles exploring amongst others the translation of law across disciplines, the translation of legal languages and cultures and the right to translation. Together, the articles provide a broad pallet of essays on the theme Translating Law, hereby providing new and thought-provoking insights in the field. This issue also includes Tilburg Law School’s annual Montesquieu Lecture, held this year by the much distinguished Boaventura de Sousa Santos. In his lecture on ‘The Resilience of Abyssal Exclusions in Our Societies’, he stresses the pressing need to move toward a post-abyssal law. Both the Montesquieu lecture as well as two accompanying responses are freely accessible online.
The editors also announce that beginning in 2018 TiLR will be an open-access journal. All new issues as well as the five latest volumes will be freely available.

October 23, 2017

A New Collection of John William Corrington's Writings, Edited by Allen Mendenhall @allenmendenhall @UnivPressNG

Newly published: The Southern Philosopher: Collected Essays of John William Corrington (Allen Mendenhall, ed., University of North Georgia Press, 2017).

John William Corrington was an English professor (D. Phil, University of Sussex) and lawyer (Tulane Law) who became known as a writer of screenplays and poetry. With his wife Joyce, he wrote for such daytime dramas as Search for Tomorrow and General Hospital. The couple also wrote the screenplays for the films The Omega Man and Battle for the Planet for the Apes, among other films.

Professor Mendenhall's new book highlights Professor Corrington's writings on literature, law, and society.

Here's a link to an interview with Professor Mendenhall on his research for the book.

Here's Richard Bishirjian's review of the new collection from Anamnesis. 

The Southern Philosopher

Schlag on Reason as a Fundamental Concept in International Law @ColoLaw

Pierre Schlag, University of Colorado Law School, is publishing Reason in Fundamental Concepts for International Law (Jean d'Aspremont & Sahib Singh, eds., Edward Elgar Publishing, 2018). Here is the abstract.
This brief essay, prepared for a compendium of fundamental concepts in international law, explores the character of reason in law. The particular focus here is on the challenges that reason confronts when faced with a law whose authorities, aesthetics, and self-idealization are resistant to reason. By focusing on a close reading of some passages from Ronald Dworkin’s “Law’s Empire,” the essay shows how the “partisans of reason” who seek to represent law as a reasoned endeavor rhetorically prepare their grounds by engaging in a suspect reductionism and purification. That is to say, they recast law into reason’s idea of law (a pale imitation of the former). With this rhetorical work out of the way, the partisans of reason proceed to show that, in law, reason rules. This widespread and largely successful substitution of reason’s image of law for law itself often goes unnoticed. Not only does this substitution do damage to the collective intellect, but to reason itself. And this — at a political-legal moment when a rigorous and widespread understanding of the uses and limits of reason might be of considerable help.
Download the essay from SSRN at the link.

October 20, 2017

Narrative and Metaphor in the Law, Edited by Michael Hanne and Robert Weisberg, Due in 2018 From Cambridge University Press @Stanford @AucklandUni

Forthcoming from Cambridge University Press in 2018: Narrative and Metaphor in the Law, edited by Michael Hanne, University of Auckland, and Robert Weisberg, Stanford University. Here is a description of the book's contents.
It has long been recognized that court trials, both criminal and civil, in the common law system, operate around pairs of competing narratives told by opposing advocates. In recent years, however, it has increasingly been argued that narrative flows in many directions and through every form of legal theory and practice. Interest in the part played by metaphor in the law, including metaphors for the law, and for many standard concepts in legal practice, has also been strong, though research under the metaphor banner has been much more fragmentary. In this book, for the first time, a distinguished group of legal scholars, collaborating with specialists from cognitive theory, journalism, rhetoric, social psychology, criminology, and legal activism, explore how narrative and metaphor are both vital to the legal process. Together, they examine topics including concepts of law, legal persuasion, human rights law, gender in the law, innovations in legal thinking, legal activism, creative work around the law, and public debate around crime and punishment.

Takes the form of nine conversations between pairs of eminent scholars in different disciplines
Opens up discussion for the first time of the joint roles of narrative and metaphor in the law
Topics include legal persuasion, gender in the law, judicial opinions and public debate around crime and punishment

Includes contributions by Michael Hanne, Robert Weisberg, Greta Olson, Lawrence Rosen, Michael R. Smith, Raymond W. Gibbs, Simon Stern, Peter Brooks, Linda L. Berger, Kathryn M. Stanchi, Roberto H. Potter, Dahlia Lithwick, L. David Ritchie, Katherine Young, Bernadette Meyler, Lawrence Joseph, Meredith Wallis, Mari Matsuda.

The Rights of the Undead, and Some Related Issues

It's Halloween, and naturally our thoughts turn to the rights of ghoulies and ghosties and long-legged beasties. Some clarification here, courtesy of Findlaw.

October 19, 2017

Sugarman on Promoting Dialogue Between History and Socio-Legal Studies: The Contribution of Christopher W. Brooks and "Legal Turn" in Early Modern English History @LancasterUni

David Sugarman, Lancaster University Law School, has published Promoting Dialogue between History and Socio-Legal Studies: The Contribution of Christopher W. Brooks and the ‘Legal Turn’ in Early Modern English History at 44 Journal of Law & Society 37 (October 2017) (Special Issue: Main Currents in Contemporary Sociology of Law). Here is the abstract.
This paper argues that the work of socio-legal scholars and historians would benefit from greater dialogue, and from taking the social history of law itself more seriously. It points up the benefits and the difficulties that might arise from greater cross-fertilization. By way of a case study, it focuses on the ‘legal turn’ in recent history writing on early modern England, particularly, Christopher W. Brooks’s ground-breaking analysis of the nature and extent of legal consciousness throughout society, and the central role of law and legal institutions in the constitution of society. The paper critically reviews Brooks’s principal ideas and findings, the contexts within which they arose, their theoretical underpinnings, and their larger significance. It highlights Brooks’s engagement with diverse scholars, including John Baker, Marc Galanter, Jürgen Habermas, Robert W. Gordon, J.G.A. Pocock and E.P. Thompson. It is proposed that Brooks investigated both elite and popular legal consciousness on an almost unparalleled scale, adopting top-down and bottom-up approaches that revealed the trickle-up, as well as trickle-down, diffusion of legal ideas, transcending the boundaries of social, political, and legal history. More generally, the paper seeks to demonstrate that the turn to law in early modern English history has enlarged the field in terms of subject-matter, methodologies and the range of sources utilised, deepening understanding of the workings of law and its wider importance. Indicative subject areas and topics enhanced by the legal turn are outlined including: law, gender, agency and social hierarchy; legal consciousness; trust, contractual thinking, and capitalism; governance and the growth of state power; and the decline in the participation of ordinary people in the legal system, and the so-called ’vanishing trial’. The paper concludes that a convergence between history, legal history and socio-legal studies has been underway in recent decades, that it provides opportunities for greater cross-fertilization, and that this would enhance our understanding of the role of law in society, and of society. For that greater dialogue to happen there would need to be better institutional support, changes in the cultures and mind-sets of history, socio-legal studies and legal history, and greater self-reflexivity. It would also generate difficult questions and controversy as to what sort of rapport might be appropriate, when, how and to what effect.
Download the article from SSRN at the link.

Biggs on Jousting at Windmills: Cervantes and the Quixotic Fight for Authorial Control

Henry Parkman Biggs, Washington University, St. Louis, has published Jousting at Windmills: Cervantes and the Quixotic Fight for Authorial Control. Here is the abstract.
Achieving a fair balance between the rights of first and follow-on authors has long proved challenging. A less considered aspect of this tension involves the degree to which the first author may be creatively and productively compromised by the follow-on author and whether such interference diminishes creative production. A look at the early 17th century copyright landscape of Don Miguel de Cervantes proves instructive. Cervantes would dramatically change the second half of his masterpiece Don Quixote in terms both of plot and content because of an author who— perfectly legally—published a rival version of Don Quixote, Part II. The resultant war of words ultimately calls the very functioning of copyright’s protections into question: if greater creative production is ultimately the goal, is it purely financial gain that we believe engines that productivity? Or do we also believe protection of the author from creative interference plays a role in improving creative productivity? From a purity standpoint, are we concerned that without any rights of exclusion the author may write something substantially different than he might have without that interference? The copyright landscape and creative sparring that created the Don Quixote we read today provides an example of how deeply such interference can affect a final work.
The paper is not available for download.

October 18, 2017

Stewart on Australian Stories of Tax and Fairness: A Feminist Reading of Peter Carey's The Tax Inspector @AusTaxProf


Miranda Stewart, Australian stories of tax and fairness: a feminist reading of Peter Carey's The Tax Inspector, at 18 Australian Feminist Law Journal 1 (2003) (published online 2015). Here is the abstract.
It was Alistair who said, on national television, that being a Tax Officer was the most pleasant work imaginable, like turning on a tap to bring water to parched country. It felt wonderful to bring money flowing out of multi-national reservoirs into child-care centres and hospitals and social services. He grinned when he said it and his creased-up handsome face creased up some more and he cupped his hands as if cool river water were flowing over his big, farmer's fingers and it was hard to watch him and not smile yourself.… He sold taxation as a public good. It can be seen as a rather perverse notion but I happen to think it's an attractive one: the idea of redistributing wealth. So I'm a writer, and I should be able to make it attractive to the reader. OK, so none of us like paying taxes, but I thought I could at least make readers consider the idea that tax might be a wonderful thing. That's a challenge, of course, an amusing one, so I enjoyed trying. Did I fail or succeed? My opinion varies every time I think about it.

Gries and Slocum on Ordinary Meaning and Corpus Linguistics @McGeorgeLaw

Stefan Th. Gries, Deoartment of Linguistics, University of California, Santa Barbara, and Brian G. Slocum, University of the Pacific, McGeorge School of Law, are publishing Ordinary Meaning and Corpus Linguistics in Brigham Young University Law Review (2018). Here is the abstract.
This paper demonstrates how corpus analysis, and similar empirically-based methods of language study, can help inform judicial assessments about language meaning. We first briefly outline our view of legal language and interpretation in order to demonstrate the importance of the ordinary meaning doctrine, and thus the relevance of tools such as corpus analysis, to legal interpretation. Despite the heterogeneity of the current judicial interpretive process, and the importance of the specific context relevant to the statute at issue, conventions of meaning that cut across contexts are a necessary aspect of legal interpretation. Indeed, such conventions are an important aspect of the sequential nature of legal interpretation, where a court first determines the ordinary meaning of the textual language and then: (1) accepts that meaning as the legal meaning of the text, (2) rejects it in favor of an unordinary meaning, or (3) precisifies it in some way because the ordinary meaning is indeterminate in relation to the interpretive question before the court. Nevertheless, the constituent question of what makes some permissible meaning the ordinary meaning is an inherently normative issue that courts typically, and incorrectly, treat as self-evident. Corpus analysis can provide valuable insights about language usage but cannot by itself resolve normative issues. We demonstrate the potential of corpus analysis (and similar empirically based methods of language analysis) through the study of two rather infamous cases where the reviewing courts made various general claims about language meaning. In both cases, United States v. Costello and Smith v. United States, the courts made statements about language that are contradicted by corpus analysis. We also demonstrate the potential of corpus analysis through Hart’s no-vehicles-in-the-park hypothetical. A discussion of how to approach Hart’s hypothetical shows the potential but also the complexities of the kind of linguistic language analyses that such situations and scenarios require. Corpus linguistics can yield results that are relevant to legal interpretation, but the necessary analysis is complex and requires training. We conclude that while it is doubtful that judges will themselves become proficient at corpus linguistics, they should be receptive to the expert testimony of corpus linguists in appropriate circumstances.
Download the article from SSRN at the link.

Solan and Gales on Corpus Linguistics as a Tool in Legal Interpretation @brooklynlaw @HofstraU

Lawrence M. Solan, Brooklyn Law School, and Tammy A. Gales, Hofstra University, are publishing Corpus Linguistics as a Tool in Legal Interpretation in the Brigham Young University Law Review (2018). Here is the abstract.
In this paper, we set out to explore conditions in which the use of large linguistic corpora can be optimally employed by judges and others tasked with construing authoritative legal documents. Linguistic corpora, sometimes containing billions of words, are a source of information about the distribution of language usage. Thus, corpora and the tools for using them are most likely to assist in addressing legal issues when the law considers the distribution of language usage to be legally relevant. As Thomas Lee and Stephen Mouritsen have so ably demonstrated in earlier work, corpus analysis is especially helpful when the legal standard for construction is the ordinary meaning of the document’s terms. We argue here that four issues should be addressed before determining that corpus analysis is likely to be maximally convincing. First, the legal issue before the court must be about the distribution of linguistic facts. Second, the court must decide what makes an interpretation “ordinary.” Third, if one wishes to search a corpus to glean the ordinary meaning of a term, one must decide in advance what to search. Fourth, there are different reasons as to why a particular meaning might present a weak showing in a corpus search and these need to be understood. Each of these issues is described and discussed.
Download the article from SSRN at the link.

Rosenberg on Contract and Freedom: Constrained Existence in Middlemarch and The Mayor of Casterbridge @AnatRosenberg

Anat Rosenberg, Interdisciplinary Center Herzliyah-Radzyner School of Law, is publishing Chapter 4: Contract and Freedom(?): Constrained Existence in Middlemarch and The Mayor of Casterbridge in Liberalizing Contracts: Nineteenth Century Promises Through Literature, Law and History (Routledge 2018). Here is the abstract.
The book examines nineteenth-century liberal thought in England, as developed through, and as it developed, the concept of contract, understood as the formal legal category of binding agreement, and the relations and human practices at which it gestured, most basically that of promise, most broadly the capitalist market order. It does so by placing canonical realist novels in conversation with legal-historical knowledge about Victorian contracts. Liberlalizing Contracts argues that current understandings of the liberal effort in contracts need reconstructing from both ends of Henry Maine’s famed aphorism, which described a historical progress “from status to contract.” On the side of contract, historical accounts of its liberal content have been oscillating between atomism and social-collective approaches, missing out on forms of relationality in Victorian liberal conceptualizations of contracts which the book establishes in their complexity, richness, and wavering appeal. On the side of status, the expectation of a move “from status” has led to a split along the liberal/radical fault line among those assessing liberalism’s historical commitment to promote mobility and equality. The split misses out on the possibility that liberalism functioned as a historical reinterpretation of statuses – particularly gender and class – rather than either an effort of their elimination or preservation. As the book shows, that reinterpretation effectively secured, yet also altered, gender and class hierarchies. There is no teleology to such an account. The chapter examines the liberal association of contracts with freedom. With George Eliot’s Middlemarch and Thomas Hardy’s The Mayor of Castebridge we see a move from the midcentury project of pressing on readers the importance of relationality for individual agency and for the morality of choice, toward explorations of the constraining implications of living in a web of relationships. The consciousness of constraints highlighted relationality as the basis of the contractual order, yet reversed associations of contracts with freedom.
Download the essay from SSRN at the link.

Agha on Un-Doing Law: Public Art as Contest Over Meanings @CharlesUniPRG

Petr Agha, Charles University in Prague, Law Faculty, has published Un-Doing Law – Public Art as Contest Over Meanings as Charles University in Prague Faculty of Law Research Paper No. 2017/III/4. Here is the abstract.
The following text explores the relationship of symbolic, performative and discursive exchange in the public sphere and the effect it has on the practices and processes of cultural and legal signification. We shall consider the mutually interdependent relationality between law and (public) art, understood as a contest over meanings, modes of interpretation and knowledge-production, with an eye to examining how artistic activities contribute to ongoing legal, political and cultural discussions in society. This chapter will in particular consider whether and how street art, graffiti art and performance art can produce new concepts and ideas, and whether they are able to re-shape existing symbolic, legal and political boundaries by first producing new (symbolic) spaces and secondly reinterpreting existing ones.
Download the article from SSRN at the link.

Vaughn on Michael Crichton's View of Lawyers


Lea B. Vaughn, University of Washington School of Law, has published A Few Inconvenient Truths About Michael Crichton’s State of Fear: Lawyers, Causes and Science at 20 Seton Hall Journal of Sports & Entertainment Law 40 (2010). Here is the abstract.
Although Crichton has lost the battle regarding global warming, his characterization of lawyers and law practice remains unchallenged. This article challenges his damning portrait of lawyers as know-nothing, self-aggrandizing manipulators of various social and environmental causes. A more nuanced examination of “cause lawyering” reveals that lawyers are not part of a vast conspiracy to grab power through the causes for which many work; in fact, the rules of professional responsibility as well as the structure of “cause lawyering” limit their power and influence. Regardless, lawyers are nonetheless vital, and generally principled, participants in the debates and causes that inform environmental (and other scientific) policy-making in a democratic society.
Download the article from SSRN at the link.

Vaughn on Susanna Blumenthal, Law and the Modern Mind

Lea B. Vaughn, University of Washington School of Law, is publishing Book Review - (Of Susanna L. Blumenthal, Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture (2016)) in volume 67 of the Journal of Legal Education (Autumn 2017). Here is the abstract.
In a masterful book titled Law and the Modern Mind, Susanna Blumenthal simultaneously describes the battles among scientists, doctors, and jurists in the period following the Revolutionary War and up through the Gilded Age, and takes on traditional scholarship in legal history as to who this person or “mind” is. Her study not only provides an alternative account of the formation of American character, but also provides a series of detailed portraits of the various turning points in the formation of that character, and the legal determination of capable, accountable personhood. This review essay initially discusses Blumenthal’s approach to legal history and the challenge she presents to traditional scholarship. The second section provides an overview of Blumenthal’s methodology, which draws on a breathtaking base of source materials; she weaves hundreds of cases, treatises, and biographical notes into her observations. Finally, this review considers what is one of the most powerful and important contributions of her book—an in-depth analysis of the intersection of law and medicine in the period under study. The review points out ways in which Blumenthal’s insights can be brought to bear on modern conversations involving law, genetics, and neuroscience.
Download the book review from SSRN at the link.

October 17, 2017

Acosta Arcarazo on Open Borders in the Nineteenth Century: Constructing the National, the Citizen, and the Foreigner in South America @BristolUni

Diego Acosta Arcarazo, University of Bristol, has published Open Borders in the Nineteenth Century: Constructing the National, the Citizen and the Foreigner in South America as Robert Schuman Centre for Advanced Studies Research Paper No. 2017/46.
This working paper describes and explains the historical origins of the division between the national and the foreigner in South America. In the early nineteenth century, all the previously Spanish possessions in South America as well as Brazil achieved independence. With this new freedom, countries turned their attention to asserting their statehood through the delineation of three constitutive elements: government, territory and population. The new governments had to define who were going to be considered as nationals, citizens and foreigners, and the rights that pertained to each of these categories. These countries were all concerned with attracting new settlers and very early on introduced constitutional provisions on open borders and equal treatment for foreigners. White, male Europeans were the principal addresses of open borders provisions in an effort to entice them to settle in territories presented as empty to the exclusion of indigenous groups, bring new industries, and contribute to the whitening of mixed race populations. Whilst weak statehood came with independence, forming nations was a much longer process and States used migration and citizenship policies as tools to define nationhood.
Download the article from SSRN at the link.

October 16, 2017

Lloyd on Why Originalism Cannot Work @LloydEsq

ICYMI: Harold Anthony Lloyd, Wake Forest University 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.

Ricca on How To Make Space and Law Interplay Horizonally


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.

Selkälä and Rajavuori on Traditions, Myths, and Utopias of Personhood @TSelkl @Ger_Law_Journal @UniTurku

Toni Selkälä and Mikko Rajavuori, both of the University of Turku Faculty of Law, have published Traditions, Myths, and Utopias of Personhood: An Introduction at 18 German Law Journal 5 (2017) 18 German Law Journal 1017 (2017). Here is the abstract.
Legal personhood continues to serve an important role in the legal system. The millennial distinction of persons and things, while often unarticulated, is an essential building block of all legal relations. This introduction to persons and things outlines the past tradition, draws on present myths, and construes a utopia of which the articles on this special issue will comment, clarify, and criticize. The tradition of personhood has been well-established in recent academic commentary on personhood. Often construed as a gradual evolution and expansion from its modest original scope covering only adult male heads of household to present universal human personhood, the concept of legal person is tightly connected to the rule of law and the emergence of human rights. On this tradition, personhood is reserved an emancipatory role: Personhood is a legal fiction that sets everyone on an equal footing before the law. Also, due to its fictional character, collective human enterprises from state to corporation are donned with personhood as tools for realization of humane personhood. As such, the tradition serves an important part in perception of law and justice as ultimately egalitarian and often blind. Recent interest in legal personhood has come to criticize the traditional narrative, claiming that it construes a myth concealing the fact that law remains profoundly discriminatory and unjust partly because of the way legal personhood is defined. A range of new entities commanding some or all features of a legal person — such as animals, cyborgs, and fetuses — are left outside legal protection due to their wanting personhood. Clinging on ideas equating humans to persons lead to affronts of morality in name of legality, the critics of the traditional narrative argue. According to them, rather than maintaining a material bind to a human being, a legal person should be a concept of art reserved to an artificial bundle of rights that can be allocated to anyone or anything. As truly artificial, legal personhood would better serve justice by providing rights to everyone and everything unlike the traditional account. The utopia proposed by this introduction as well as by all of the articles forming this special issue pushes both the tradition and its critics to their limits. The utopia, on the one hand, argues for a fully material account of personhood where all things stand initially on an equal footing and, on the other hand, demands that also artificiality takes itself seriously in its denouncement of any material bind. We argue that such a utopia will better highlight the functions personhood serves in law and allows for a reevaluation of our appreciation of things.
Download the article from SSRN at the link.

October 15, 2017

Hollander-Blumoff on Novel Negotiation

ICYMI: Rebecca E. Hollander-Blumoff, Washinton University, St. Louis, School of Law, is publishing Novel Negotiation in the Journal of Dispute Resolution. Here is the abstract.
In dispute resolution, a field of study that is inherently interdisciplinary, there is no clear metric for how we ought to delineate the limits of relevant domains. Literature, with its ability to transport us to different times, places, lives, and stories, can reveal critical and crystallizing truths about human interaction in both conflicts and transactions. Careful and cross-disciplinary analysis of literary works will only serve to amplify our understanding of negotiation behavior in ways that can enrich our writing, our teaching, and our thinking on negotiation. In this essay, I address three different novels and highlight the ways in which they help elucidate, and provide new insight into, some fundamental and familiar aspects of negotiation. While the situations in these novels often dovetail with academic dispute resolution literature on aspects relevant to the negotiation process, they add nuance and amplification.

Download the article from SSRN at the link.

October 14, 2017

Woman With a Mission: Frances Glessner Lee and Her Crime Dioramas

Frances Glessner Lee, a woman with a fortune, was also a woman with a mission--to convince law enforcement and others involved in the justice system to take forensic science seriously. She decided to use popular culture to do so. Specifically, she used meticulously created dioramas, called Nutshell Studies, and her own ability to bring important people together, to bring attention to the need to use science to solve crimes. More about Mrs. Lee here in an Atlantic Monthly article,  and in the articles listed below. An upcoming exhibition at the Renwick Gallery is devoted to her work.

Erika Engelhaupt, Peek Into Tiny Houses

Kirstin Fawcett, Frances Glessner Lee's Crime Dioramas Are Getting Their Own Exhibition

Frances Glessner Lee (National Library of Medicine)

How a Chicago Heiress Trained Chicago Detectives With an Unusual Tool: Dollhouses

The Nutshell Studies of Unexplained Death

October 8, 2017

Human Rights Lawyers in Films

Corallina Lopez-Curzi created this short list of human rights lawyers on film for Rights Info. While it includes Joe Miller from Philadelphia and Betty Ann Waters from Conviction, it also lists Erin Brockovich from the film of the same name, who isn't a lawyer (Ms. Lopez-Curzi concedes that). There are other human rights lawyers we could include, especially if we define "human rights lawyer" as she seems to, as lawyers who defend clients with rights claims, and not as lawyers who repeatedly take on human rights cases. Indeed, just about any lawyer could fill the bill.  How about Atticus Finch, the epitome of the human rights lawyer (To Kill a Mockingbird)? Jed Ward (iClass Action)? Sir Wilfred Robards (Witness for the Prosecution)? Paul Biegler (Anatomy of a Murder)? Martin Vail (Primal Fear)?  Kathryn Murphy (The Accused)? And of course Hans Rolfe and Richard Widmark in Judgment at Nuremberg?

October 3, 2017

Call For Papers: 2018 Law & Humanities Junior Scholar Workshop @ColumbiaLaw

From the mailbox:

CALL FOR PAPERS – 2018 Law & Humanities Junior Scholar Workshop

Columbia Law School, the University of Southern California Center for Law, History & Culture, UCLA School of Law, Georgetown University Law School, Stanford Law School, and the University of Pennsylvania invite submissions for the annual meeting of the Law & Humanities Junior Scholar Workshop, to be held at Stanford Law School in Palo Alto, California, on June 4 and 5, 2018.

The paper competition is open to untenured professors, advanced graduate students, and post-doctoral scholars in law and the humanities. In addition to drawing from numerous humanistic fields, we welcome critical, qualitative work in the social sciences.  Based on anonymous evaluation by an interdisciplinary selection committee, between five and ten papers will be chosen for presentation at the June Workshop.  At the Workshop, two senior scholars will comment on each paper.  Commentators and other Workshop participants will be asked to focus specifically on the strengths and weaknesses of the selected scholarly projects, with respect to subject and methodology.  The selected papers will then serve as the basis for a larger conversation among all the participants about the evolving standards by which we judge excellence and creativity in interdisciplinary scholarship, as well as about the nature of interdisciplinarity itself.

Papers must be works-in-progress that do not exceed 15,000 words in length (including footnotes/endnotes); most papers selected for inclusion in recent years have been at least 10,000 words long.  An abstract of no more than 200 words must also be included with the paper submission.  A dissertation chapter may be submitted, but we strongly suggest that it be edited so that it stands alone as a piece of work with its own integrity.  A paper that has been submitted for publication is eligible for selection so long as it will not be in galley proofs or in print at the time of the Workshop; it is important that authors still be in a position at the time of the Workshop to consider comments they receive there and incorporate them as they think appropriate in their revisions.  We ask that those submitting papers be careful to omit or redact any information in the body of the paper that might serve to identify them, as we adhere to an anonymous or “blind” selection process.

The selected papers will appear in a special issue of the Legal Scholarship Network; there is no other publication commitment.  (We will accommodate the wishes of chosen authors who prefer not to have their paper posted publicly with us because of publication commitments to other journals.)  The Workshop will pay the domestic travel and hotel expenses of authors whose papers are selected for presentation.  For authors requiring airline travel from outside the United States, the Workshop will cover such travel expenses up to a maximum of $1000.

Submissions (in Word, no pdf files) will be accepted until January 5, 2018, and should be sent by e-mail to:  juniorscholarsworkshop@sas.upenn.edu.    Please be sure to include your name, institutional affiliation (if any), telephone and e-mail contact information in your covering email (not in the paper itself).

For more information, please send an email inquiry to juniorscholarsworkshop@sas.upenn.edu.  To see selected papers from some of the previous years’ workshops, go to: http://www.law.columbia.edu/center_program/law_culture/lh_workshop.

Anne Dailey, University of Connecticut Law School
Katherine Franke, Columbia Law School
Sarah Barringer Gordon, University of Pennsylvania
Nan Goodman, University of Colorado
Ariela Gross, University of Southern California
Naomi Mezey, Georgetown University Law Center
Paul Saint-Amour, University of Pennsylvania
Hilary Schor, University of Southern California
Norman Spaulding, Stanford Law School
Clyde Spillenger, UCLA School of Law
Nomi Stolzenberg, University of Southern California
Martha Umphrey, Amherst College


Call For Papers/Call For Proposals: Association for the Study of Law, Culture, and the Humanities @Law_Cult_Huma

From Karl Shoemaker, University of Wisconsin, Madison:

We are pleased to announce that the Twenty-First Annual Meeting of the Association for the Study of Law, Culture and the Humanities will be held at the Georgetown Law School, in Washington D.C. on March 16-17, 2018.

We invite your participation.  Please note that panel or individual paper proposals are welcome.  All proposals are due Wednesday, November 1, 2017.Individual proposals should include title, contact information and an abstract (no more than 300 words).

Panel proposals should include contact information and abstracts for all members, a panel title, and proposal outlining the panel (no more than 300 words).  If multiple panels are forming a stream, please indicate the name of the panel and its order (e.g. law and time I, II etc.)  in order to avoid clashes.

All proposals should be sent to LCH2018submissions@gmail.com.

The Association for the Study of Law, Culture and the Humanities is an organization of scholars engaged in interdisciplinary, humanistically-oriented legal scholarship. The Association brings together a wide range of people engaged in scholarship on legal history, legal theory and jurisprudence, political theory, law and cultural studies, law and anthropology, law and literature, law and the performing arts, and legal hermeneutics.

We want to encourage dialogue across and among these fields about issues of interpretation, identity, and values, about authority, obligation, and justice, and about law's role as a constituent part of cultures and communities.

If you have any general questions about the conference, please do not hesitate to ask me at kbshoemaker@wisc.edu. Special thanks to Hyo Yoon Kang of Kent Law School for serving as chair the program committee.
 Karl Shoemaker
Professor of History and Law
University of Wisconsin, Madison
President, Association for the Study of Law, Culture, and the Humanities

October 2, 2017

Call For Papers: Third Annual Constitutional Law Scholars Forum, Barry University School of Law, March 2, 2018 @Barry_Law @TAMULawSchool @acslaw.org

The American Constitutional Society for Law and Policy,  Barry University Law School Student Chapter, and Texas A&M University School of Law are hosting the Third Annual Constitutional Law Scholars Forum at Barry University School of Law in Orlando, FL, March 2, 2018.

Here is a link to the Call for Papers. The deadline to submit is December 1, 2017.

The Constitutional Law Scholars Forum invites scholarly proposals on constitutional law at any stage of pre-publication development, from the germination of an idea to the editing stage.  The Forum provides an opportunity for scholars and educators to vet their work-in-progress in a welcoming, supportive environment.  (The Forum is not accepting proposals from students at this time.)

Barry University School of Law is located within close proximity to recreational activities: Universal Studios, Disney World, Epcot Center, Sea World, world class golf courses, and beaches.  Orlando offers an average temperature of 78°F in March/April. 

There are no conference fees and meals are provided, but participants are expected to pay their own travel expenses.

Abstract Submissions:
Email proposals to Professor Eang Ngov, engov@barry.edu, with “Constitutional Law Scholars Forum” in the subject line.  Submissions should include a short abstract (300 words maximum) and biography (150 words maximum).

Conference Organizers: 
Professor Eang Ngov, engov@barry.edu, office (321) 206 -5677, cell phone (571) 643-2691

Professor Meg Penrose, megpenrose@law.tamu.edu