March 31, 2018

ICYMI: Trials, Edited by Martha M. Umphrey (Taylor and Francis, 2017) @tandfonline

ICYMI: Trials (Martha Merrill Umphrey, ed., Taylor and Francis, 2017).
This volume gathers a collection of the most seminal essays written by leading experts in the fields of law, and cultural studies, which address the cultural dimension of trials. Taken together, these essays conceive of trials as sites of legal performance and as critical public spaces in which the law both encounters and interacts dialogically with the culture in which it is embedded. Inquiring into the contours of that dialogic relation, these essays trace the paths of cultural stories as they circulate in and through trial settings, examine how trials emerge out of particular social and historical contexts, and suggest ways in which trials themselves, as both singular events and generic forms, circulate and signify in culture.
Here's a link to the contents page.  Essays include Milner S. Ball, The Play's the Thing: An Unscientific Reflection on Courts Under the Rubric of Theater, Robert P. Burns, The Lawfulness of  the American Trial, Randy Hertz and Anthony G. Amsterdam, An Analysis of Closing Arguments to a Jury, Richard K. Sherwin, Law Frames: Historical Truth and Narrative Necessity in a Criminal Case, Austin Sara, Speaking of Death: Narratives of Violence in Capital Trials, Kim Lane Scheppele, Just the Facts, Ma'am: Sexualized Violence, Evidentiary Habits, and the Revision of Truth, Nancy West and Jennifer L. Mnookin, Theaters of Proof: Visual Evidence and the Law in Call Northside 777, Lawrence Douglas, Film as Witness: Screening Nazi Concentration Camps Before the Nuremberg Tribunal, William Finnegan, A Reporter at Large, Robert A. Ferguson, Story and Transcription in the Trial of John Brown, Paul Schiff Berman, Rats, Pigs, and Statues on Trial: The Creation of Cultural Narratives in the Prosecution of Animals and Inanimate Objects, Stephane Leman-Langlois, Constructing a Common Language: The Function of Nuremberg in the Problematization of Postapartheid Justice, David Lipset, "The Trial": 1 A Parody of the Law Amid the Mockery of Men in Post-Colonial Papua New Guinea, Shoshana Felman, Forms of Judicial Blindness, or the Evidence of What Cannot Be Seen: Traumatic Narratives and Legal Repetitions in the O. J. Simpson Case and in Tolstoy's The Kreutzer Sonata. 

March 30, 2018

Forthcoming From DeGruyter: As You Law It: Negotiating Shakespeare, edited by Daniela Carpi and François Ost @degruyter_lit

Forthcoming from DeGruyter:

As You Law It: Negotiating Shakespeare (Daniela Carpi and François Ost, eds., 2018) (Law and Literature; 15).

Shakespeare was fascinated by law, which permeated Elizabethan everyday life. The general impression one derives from the analysis of many plays by Shakespeare is that of a legal situation in transformation and of a dynamically changing relation between law and society, law and the jurisdiction of Renaissance times. Shakespeare provides the kind of literary supplement that can better illustrate the legal texts of the sixteenth and early seventeenth centuries. There was a strong popular participation in the system of justice, and late sixteenth-century playwrights often made use of forensic models of narrative. Uncertainty about legal issues represented a rich potential for causing strong reactions in the public, especially feelings concerning the resistance to tyranny. The volume aims at highlighting some of the many legal perspectives and debates emplotted in Shakespearean plays, also taking into consideration the many texts that have been produced during the latest years on law and literature in the Renaissance.

Poetry and the Federal Rules @RuleHaiku

Are the Federal Rules of Civil Procedure just a little too much in their unvarnished form? Try them out in seventeen syllables each, courtesy of Levi Jones and Rule Haiku. In fact, Mr. Jones has made both the FRCP and the Federal Rules of Appellate Procedure available in easily digestible form and in both hardcover and ebook versions. Right now when you order, you can also get a personal haiku written for you on your favorite rule. Now that is a procedural win!

Follow Rule Haiku on Twitter at @RuleHaiku and on YouTube.

Bricker on After the Golden Age: Libel, Caricature, and the Deverbalization of Satire

Andrew Bricker, Ghent University of Belgium, has published After the Golden Age: Libel, Caricature, and the Deverbalization of Satire, at 51 Eighteenth-Century Studies 305 (2018). Here is the abstract.
It is a commonplace of literary history that satire vanishes in the middle of the eighteenth century. It is clear, however, that written and especially visual satire witnessed massive growth in the final decades of the century and throughout the Romantic era. My goal is to explain this simultaneous contraction and expansion of the satiric marketplace. Rather than dying, I argue, satire began to migrate to visual media, and especially caricature, after mid-century. The reason for this migration was the shifting procedural norms of libel law itself. Over the first half of the century, the courts developed procedures for delimiting verbal ambiguity in trials for libel that made the publication of written satire perilous. These same procedures were largely useless, however, in the prosecution of visual materials, which made at best sparing use of words—they were, as I put it, "deverbalized"—and were therefore not subject to the same rulings and interpretive procedures.
You may be able to download the text from Project Muse at the link.

Burset on Why the Common Law Didn't Follow the Flag

Christian Burset, NYU School of Law; Yale University Faculty of Arts & Sciences, Department of History (PhD candidate), is publishing Why Didn't the Common Law Follow the Flag? in the Virginia Law Review (2019). Here is the abstract.
This Article considers a puzzle about how different kinds of law came to be distributed around the world. The legal systems of some European colonies largely reflected the laws of the colonizer. Other colonies exhibited a greater degree of legal pluralism, in which the state administered a mix of different legal systems. Conventional explanations for this variation look to the extent of European settlement: where colonizers settled in large numbers, they chose to bring their own laws; otherwise, they preferred to retain preexisting ones. This Article challenges that assumption by offering a new account of how and why the British Empire selectively transplanted English law to the colonies it acquired during the eighteenth century. The extent to which each colony received English law depended on a political decision about what kind of colony policymakers wanted to create. Eighteenth-century observers agreed that English law could turn any territory into an anglicized, commercial colony on the model of Britain's North American settlements. Preserving preexisting laws, in contrast, would produce colonial economies that enriched the empire as a whole but kept local subjects poor and politically disadvantaged. By controlling how much English law each colony received, British officials hoped to shape its economic, political, and cultural trajectory. This historical account revises not only our understanding of how the common law spread but also prevailing ideas about law's place in development policy today.
Download the article from SSRN at the link.

Lloyd on Why Legal Writing Is Doctrinal and More Importantly Profound @LloydEsq

Harold Anthony Lloyd, Wake Forest School of Law, has published Why Legal Writing is 'Doctrinal' and More Importantly Profound. Here is the abstract.
So as long as we must use the questionable term “doctrinal” when referring to law school courses, this article challenges everyone (including law professors who teach legal writing) to stop directly and indirectly referring to legal writing as a “non-doctrinal” course. Use of “non-doctrinal” can be code for “lesser” thereby suggesting that legal writing has lesser import than other law school courses. Erroneously so marking legal writing as “lesser” damages legal education across the board. It damages students and law professors not teaching legal writing by suggesting that legal writing and the theory, skills and insights taught by legal writing merit less of their time which in turn increases the odds that both students and other faculty will remain ignorant of the critical knowledge and skills that legal writing teaches. It also damages law professors teaching legal writing because it invites disparate treatment such as lack of tenure, lower pay, and lack of equal respect. As a result, law professors teaching legal writing encounter greater difficulties in publishing scholarship, difficulties which deprive us all of the scholarship so silenced or deterred. Such erroneous code also ignores the profound subject matters addressed in legal writing courses today, a number of which subject matters are briefly surveyed in this article. Such erroneous code further ignores fundamental principles of semantics and fundamental insights of modern cognitive psychology embraced by legal writing courses today. In addition to examining the foregoing, this article also explores why the term “doctrinal” should be replaced with such terms and phrases as “meaningful” when referring to courses and “proper subject matter” when referring to course content.
Download the article from SSRN at the link.

Amy Werbel's New Book on Anthony Comstock and Censorship in the Gilded and Progressive Periods; "Lust on Trial" @awerbel @LustonTrial @ColumbiaUP

Amy Werbel, Fashion Institute of Technology, State University of New York, is publishing Lust on Trial:Censorship and the Rise of American Obsenity in the Age of Anthony Comstock (Columbia University Press).  Here from the publisher's website is a description of the book's contents.
Lust on Trial offers a new and unadulterated view of the risqué behaviors and complex sexualities of Americans in the Gilded Age and Progressive Eras, and a fresh perspective on legal efforts to expand civil liberties before World War I. Extensive new research conducted in dozens of public and private archives makes it possible for the first time to fully tell the story of Anthony Comstock’s censorship of American visual culture, and to publish examples of the “obscenities” he suppressed. Lust on Trial illuminates the complex relationship between censorship and cultural change, and offers thought-provoking insight to our nation’s long struggle to live up to the promise of the First Amendment.

March 29, 2018

Maryland Appellate Court Upholds Lower Court Ruling, Retrial, in Syed Case, Featured On "Serial" @serial

The Maryland Special Court of Appeals has upheld a lower court ruling overturning Adnan Syed's conviction for murder and ordering a new trial. The first season of the popular podcast Serial featured Mr. Syed's trial, conviction, and appeals over the 1999 murder of his classmate and former girlfriend Hae Min Lee. The podcast focused a great deal of attention on the case.

The government could still decide to appeal the latest ruling.

On Serial's effect on law and popular culture, here's a selected bibliography.

Rabia Chaudry, Undisclosed: Five Legal Lessons From the Case of Adnan Syed. 48 Tex. Tech. L. Rev. 363

Julie Gafney, Teaching Serial at the Criminal Justice College.

Tony Jeff, Crowdsourcing Justice. 35 Miss. C. L. Rev. 365 (2016/2017).

March 28, 2018

ICYMI: Sobecki on A Southwark Tale: Gower, the 1381 Poll Tax, and Chaucer's The Canterbury Tales @SebSobecki

ICYMI: Sebastian Sobecki, University of Groningen, has published  A Southwark Tale: Gower, the 1381 Poll Tax, and Chaucer’s The Canterbury Tales, at 92 Speculum  630 (July 2017).

Download the article at the link.

ICYMI: Stern on Law and Narrative: A Bibliography of Recent Work @ArsScripta

ICYMI: Simon Stern, University of Toronto Faculty of Law, has published Law and Narrative: A Bibliography of Recent Work. Here is the abstract.
This bibliography collects work focused specifically on law and narrative, published (approximately) over the last four years (i.e., 2013-17). A significant amount of work touches on narrative, without taking that as its focus; this work will be included in a bibliography of recent work on law and literature more generally (now being compiled). I have tried to link to non-paywalled versions, but in many cases that was not possible.

Download the article from SSRN at the link. 

Henderson on The Intersectional Life and Times of Lutie A Lytle @ProfTajaNia

Taja-Nia Y. Henderson, Rutgers School of Law, Newark, has published ‘I Shall Talk to My Own People’: The Intersectional Life and Times of Lutie A. Lytle at 102 Iowa Law Review 1983 (2017). Here is the abstract.
In the fall of 1898, the Chicago Tribune hailed Lutie A. Lytle of Topeka as the “only female law instructor in the world.” Notwithstanding this purported shattering of the legal academy’s glass ceiling, Lytle’s accomplishments — her path to the professoriate, and her career in the years following her appointment to the faculty of a Nashville law school — have been largely lost to historians of legal education. She is not among those honored or commemorated by our profession, and her name is largely unknown beyond a small circle of interest. The biographical sketch that follows fills this scholarly gap through an examination of Lytle as a historical figure, using contemporary newspaper accounts and other primary source material to provide context for her achievements and linking her life to previously understudied legal, political and social movements.
Download the article from SSRN at the link.

March 27, 2018

Twenty-Five Classic Crime Novels, Twenty-Five Evenings @CrimeReads

From Crime Reads, a list of 25 classic crime novels that you can read quickly or savor for hours or days. The list includes well-known works such as James Cain's The Postman Always Rings Twice, George Simenon's The Widow,(La Veuve Couderc), Margaret Millar's Beast In View, snd Jean-Patrick Manchette's The Prone Gunman (La position du tireur couché), the basis for the Sean Penn film The Gunman and Chester Himes' Cotton Comes To Harlem. Nice additions to the classic crime fiction shelf. Buy or download--but read.

March 26, 2018

Leary on the First Woman To Graduate From the University of Michigan Law School, First To Pass the Bar @LawPals


Margaret A. Leary published Michigan 's First Woman Lawyer: Sarah Killgore Wertman at 48 Law Quad. Notes 8 (2006). Link to the full text here.

Appleman on Deviancy, Disability, and Dependency: The Forgotten History of Eugenics and Mass Incarceration @lawandlitprof

Laura I. Appleman, Willamette University College of Law, is publishing Deviancy, Disability, and Dependency: The Forgotten History of Eugenics and Mass Incarceration in the Duke Law Journal. Here is the abstract.
Racism, harsh drug laws, and prosecutorial overreach have formed three widely-discussed explanations of the punitive carceral state. These three narratives, however, only partially explain where we are. Neglected in our discussion of mass incarceration is our largely-forgotten history of the long-term, wholesale institutionalization of the disabled. This form of mass detention, motivated by a continuing application of eugenics and persistent class-based discrimination, provides an important part of our history of imprisonment, shaping key contours of our current supersized correctional system. Only by fully exploring this forgotten narrative of long-term detention and isolation will policy makers be able to understand, diagnose, and solve the crisis of mass incarceration.
Download the article from SSRN at the link.

Newman on John Sherman, Russell Alger, and the Origins of the Sherman Act

Patrick Newman, Florida Southern College, is publishing Revenge: John Sherman, Russell Alger and the Origins of the Sherman Act in volume 174 of Public Choice (2018). Here is the abstract.
This paper argues that Senator John Sherman of Ohio was motivated to introduce an antitrust bill in late 1889 partly as a way of enacting revenge on his political rival, General and former Governor Russell Alger of Michigan, because Sherman believed that Alger personally had cost him the presidential nomination at the 1888 Republican national convention. When discussing his bill on the Senate floor and elsewhere, Sherman repeatedly brought up Alger’s relationship, which in reality was rather tenuous, with the well-known Diamond Match Company. The point of mentioning Alger was to hurt Alger’s future political career and his presidential aspirations in 1892. Sherman was able to pursue his revenge motive by combining it with the broader Republican goals of preserving high tariffs and attacking the trusts. As a result, this paper reinforces previous public choice literature arguing that the 1890 Sherman Act was not passed in the public interest, but instead advanced private interests.
Download the article from SSRN at the link.

Ruskola on Corporation Law in Late Imperial China

Teemu Ruskola, Emory University School of Law, is publishing Corporation Law in Late Imperial China in Research Handbook on the History of Corporate and Company Law (Harwell Wells, ed., Edward Elgar Press, 2018). Here is the abstract.
According to received wisdom, there is no such thing as a Chinese tradition of corporation law. In Max Weber’s pithy conclusion, “The legal forms and societal foundations for capitalist enterprise were absent in traditional China.” Although this claim is intuitively appealing, it is incorrect, or at least wildly exaggerated. Drawing on earlier work, I argue in this chapter that in late imperial China there existed a tradition of “corporation law,” to use a term that admittedly sounds anachronistic. Conventional wisdom to the contrary notwithstanding, and despite Confucian hostility to commerce, even before the introduction of European law at the turn of the century, the Chinese operated “clan corporations,” or relatively large commercial enterprises whose existence was justified by the legal fiction of kinship. Because of this fiction, these enterprises were governed by the norms of family law which in turn performed many of the key functions of corporation law.
Download the essay from SSRN at the link.

March 23, 2018

Mignanelli on John Grisham's Appearances in Judicial Opinions @nmignanelli

Nicholas Mignanelli, University of Miami School of Law, is publishing The Runaway Judge: John Grisham's Appearance in Judicial Opinions in volume 48 of the University of Memphis Law Review (2018). Here is the abstract.
Each year, countless scholars publish articles in law reviews across the country hoping to have some impact on the way courts interpret and apply the law. To have one’s labors approvingly cited or discussed by a court is one of the highest compliments a legal scholar can receive. Thus, it is the height of irony that judicial opinions have discussed or alluded to the works of novelist John Grisham — an attorney who has never authored a law review article — over two dozen times. This study begins with an explanation of methodology and an annotated bibliography of the results. Next, the author discusses the various ways that courts have used Grisham’s works, categorizing each case according to its function. The author concludes with further speculation about why judges are drawn to Grisham’s novels.
Download the article from SSRN at the link.

March 22, 2018

Immortalize Those Peeps! Enter the ABA's Peeps in Law Contest @ABAJournal @Molly_McDonough @Stranger_Things


They're not just for eating: use those marshmallow peeps to express your legal connection to the Upside Down. Enter the ABA's Peeps in Law contest. From the ABA Journal's website;

Those delightful marshmallow treats from Just Born aren't just for eating anymore. They now come in so many shapes and sizes that there are full sites devoted to honoring the beloved candy.
Our whimsical annual contests include diorama galleries created by our readers, highlighting legal stories, places and ideas with sugary sweet Peeps as the main characters.
Our rules are as follows: Create a law-related diorama with Peeps, take a photo of the diorama and send the photo (JPG, GIF or PNG) to peeps[at]abajournal[dot]com by 11:59 p.m. Central Time on Sunday, March 25, 2018. Include a title of the diorama, how you would like to be identified, and a short (no more than 150 words) description. ABA Journal staff will select finalists, looking for creative expression of legal themes. Finalists will be posted online for readers to vote for their favorites. Winners will be announced on April 2, 2018. The ABA is not responsible for late, lost, or misdirected entries, or for computer errors or technical failures.
By submitting a photo, you are acknowledging that you understand and agree to the ABA’s Terms of Use available at and the Fine Print Rules below. In addition, by submitting a photo you also agree to allow the ABA Journal to reprint your photo and description in all forms of media at any time. Individual email addresses will not be posted. 

More here, including all the legalese. Hey, they're lawyers. And check out prior Peeps in Law contests, including 2017 Peeps in Law: Rogue Peep, 2016 Peeps in Law: Peep Wars, and 2015 Peeps in Law: Game of Peeps. The contest began in 2009.

I'm looking forward to future Peeps in Law contests. Maybe Peeps in Law: Host Peeps (Westworld) or Peeps in Law: The Good Peeps (The Good Fight).

Stark on A Death of One's Own: Literature, Law, and the Right to Die @eckerdcollege

Jared Stark, Eckerd College, has published A Death of One's Own: Literature, Law, and the Right to Die (Northwestern University Press, 2018). Here is a description of the book's contents from the publisher's website.
To be or not to be—who asks this question today, and how? What does it mean to issue, or respond to, an appeal for the right to die? In A Death of One’s Own, the first sustained literary study of the right to die, Jared Stark takes up these timely questions by testing predominant legal understandings of assisted suicide and euthanasia against literary reflections on modern death from the nineteenth and twentieth centuries. Rigorously interdisciplinary and lucidly argued, Stark’s wide-ranging discussion sheds critical light on the disquieting bioethical and biopolitical dilemmas raised by contemporary forms of medical technology and legal agency. More than a survey or work of advocacy, A Death of One’s Own examines the consequences and limits of the three reasons most often cited for supporting a person’s right to die: that it is justified as an expression of personal autonomy or self-ownership; that it constitutes an act of self-authorship, of “choosing a final chapter” in one’s life; and that it enables what has come to be called “death with dignity.” Probing the intersections of law and literature, Stark interweaves close discussion of major legal, political, and philosophical arguments with revealing readings of literary and testimonial texts by writers including Balzac, Melville, Benjamin, and Améry. A thought-provoking work that will be of interest to those concerned with law and humanities, biomedical ethics, cultural history, and human rights, A Death of One’s Own opens new and suggestive paths for thinking about the history of modern death as well as the unsettled future of the right to die.

Cheah and Vormbaum on British War Crimes Trials in Europe and Asia, 1945-1949: A Comparative Study @Cheah_WL

W. L. Cheah, National University of Singapore, Faculty of Law, and Moritz Vormbaum, Humboldt University of Berlin, are publishing British War Crimes Trials in Europe and Asia, 1945–1949: A Comparative Study in the Leiden Journal of International Law. Here is the abstract.
Between 1945 and 1949, the British military conducted a large number of war crimes trials in Europe and Asia. Based on historical archival records, among other sources, this article evaluates and compares the British authorities’ implementation of the 1945 Royal Warrant and war crimes trials in Europe and Asia, with a specific focus on trials organized in Germany and Singapore. By examining the British war crimes trial experience in those two jurisdictions, the article analyses factors shaping the evolution of the Royal Warrant’s legal framework and trial model in different contexts. It therefore contributes to the growing historical work on post-Second World War trials and current debates among scholars of transitional justice and international criminal law on the contextual factors that impact on war crimes trials.
Download the article from SSRN at the link.

March 21, 2018

Harris on Secularizing a Religious Legal System: Ecclesiastical Jurisdiction in Early Eighteenth Century England

Troy L. Harris, University of Detroit Mercy School of Law, has published Secularizing a Religious Legal System: Ecclesiastical Jurisdiction in Early Eighteenth Century England. Here is the abstract.
The constitutional position of the English ecclesiastical courts remained a divisive subject after 1688, as demonstrated by a range of printed sources from the early eighteenth century including visitation charges, law books, and political pamphlets. This theoretical debate culminated in challenges to ecclesiastical jurisdiction in Parliament and Hardwicke's famous decision in Middleton v. Crofts, which represented a significant advance toward a contractarian view of religious authority.

The full text is not available for download from SSRN. 

Unconscious States: Is There Anybody There? Dr. Andrew Hanrahan, Speaker, St. Mary's University, March 22, 2018 @CBET_StMarys @thomgiddens

From Trevor G. Stammers, Reader in Bioethics, Director, Centre for Bioethics and Emerging Technologies, St. Mary's University

On Thursday, March 22, 5:45 p.m.-7:30 p.m., Senior Common Room, St. Mary's University, Twickenham TW1 4SX

Unconscious States: Is there anybody there?

Dr Andrew Hanrahan, Consultant in Neurorehabilitation, Royal Hospital for Neuro-disability, Putney
 Disorders of consciousness arise from sudden profound brain injury, and instantaneously deprive that person of all awareness of self and social connectedness. While these persons are typically totally unaware of the catastrophe that has befallen them, it is left to the families now stunned into a period of intense loss, to pick up the pieces of their shattered lives.
When this situation persists and hope of recovery gradually wanes, realisation dawns and an array of coping mechanisms are displayed. These range from anger to ambiguous loss and back again. Resolution of these feelings, crystallisation of patients' previously expressed wishes, a re-statement of the clinical possibility or futility of treatments, lead inevitably to questions of withdrawal of these treatments, previously reserved to the Courts, but now possibly resolved without a legal ruling.This then affects staff, external agencies and it matters tremendously to society in which we all live, and die. This talk will hope to inform, yet stimulate thought and discussion.

The event is free.  Further details contact

Dr Trevor G Stammers BSc, MA, FRCGP, DRCOG, FHEA, Dip Psych.
Reader in Bioethics,
Director, Centre for Bioethics and Emerging Technologies,
Editor, The New Bioethics
Room E201, St Mary’s University, Waldegrave Road, Twickenham, TW1 4SX Tel 0208 240 4310

Ayres on Claudia Rankine's "Citizen": Documenting and Protesting America's Halting March Toward Racial Justice and Equality @TAMULawSchool

Susan Ayres, Texas A&M University School of Law, is publishing Claudia Rankine's 'Citizen': Documenting and Protesting America's Halting March Toward Racial Justice and Equality in the Alabama Civil Rights & Civil Liberties Law Review. Here is the abstract.
After the first election of President Barak Obama in 2008, there was a sense that the United States had reached a post-racial phase in its history. That sentiment was relatively short-lived, because by 2013, when Michael Brown was killed in Ferguson, it was clear that President Obama’s election was not transformative. More recently, during the presidential campaign and after the election of President Donald Trump in 2016, undisguised racism in the United States has reared its ugly head. Activists such as the Reverend Al Sharpton have been outspoken in their criticism of President Trump. Sharpton has claimed, “Everything King fought so tirelessly for is under attack once again.” Similarly, poet and activist Claudia Rankine considers the Trump Administration to be “about the primacy of whiteness,” and that as citizens, we must discuss and confront the concept of white privilege which undergirds our society. Rankine does this in Citizen, a multi-genre work that documents racist microaggressions and macroaggressions. In this article Citizen is analyzed using the tools of critical race theory and rhetoric for its potential to effect change in the fight for racial justice and equality.
Download the article from SSRN at the link.

March 20, 2018

Hulsebosch on Protecting Foreign Expectations in the Early United States @nyulaw

Daniel J. Hulsebosch, New York University School of Law, is publishing From Imperial to International Law: Protecting Foreign Expectations in the Early United States in volume 65 of the the UCLA Law Review Discourse (2018). Here is the abstract.
This Essay argues that several principles associated with modern international investment law and dispute resolution arose in the wake of the American Revolution, as the revolutionaries and Britons sought to restructure trade relations, previously regulated by imperial law, under new treaties and the law of nations. They negotiated such problems as the currency in which international debts would be paid; the ability of foreign creditors pursue domestic collection remedies; whether creditors had to exhaust those remedies before their nation could resort to international arbitration; and the form of state-state arbitration of private disputes. The specific setting of these negotiations — the aftermath of a colonial settler revolution — narrowed the compass of disagreement, compared to many later postcolonial negotiations. In addition, the negotiations assumed that the exhaustion of national remedies remained the standard method of resolving private debt disputes. Notwithstanding these important differences, the principles and institutions developed after an imperial civil war influenced the development of international investment law.
Download the essay from SSRN at the link.

Howlin on The Trials of Peter Barrett @N_Howlin @ucddublin

Niamh Howlin, Sutherland School of Law, University College Dublin, has published The Trials of Peter Barrett: A Microhistory of Dysfunction in the Irish Criminal Justice System as UCD Working Papers in Law, Criminology, & Socio-Legal Studies Research Paper No. 0218. Here is the abstract.
In 1869 an assassination attempt was made on Captain Thomas Eyre Lambert, a prominent Galway landowner. Lambert was returning home from visiting his brother, Giles, who resided at neighbouring Moor Park. He spotted a man lurking beneath some lime trees near the entrance to his house, Castle Lambert. He was fired at a number of times, and was eventually felled by a shot to the forehead. He staggered to the door of his house, later stating: ‘[w]hen I reached the hall door I knocked violently, my butler opened the door and I fell into his arms.’ He soon sent for his brother. Given a description of the assailant, Giles hastened to the Athenry constabulary station, a mile or two away, and relayed the information to acting constable John Griffith. Sub-constable Edward Hayden was quickly dispatched, in plain-clothes, to take the midnight train to Oranmore, ten miles away, to try to apprehend the suspect. He returned around 5 a.m. the following morning with Peter Barrett in custody. He had spotted Barrett sleeping in his train compartment, and he matched the description provided by Giles Lambert. On being asked a few questions by sub-constable Hayden, his answers were ‘both evasive and contradictory’, and he was arrested. Barrett appeared to match the description given by Lambert: ‘I described the assassin as a man of slight figure dressed in dark clothes sharp features with not much hair on his face darkish complexion’. Furthermore, Lambert said he told his brother that ‘if Peter Barrett was in the country he was the man.’ Lambert, as will be seen, had reason to suspect that Barrett might have had a motive for the assault. Barrett was committed for trial at the next assize in August. On the face of it, it had the appearance of a relatively straightforward case destined for a quick resolution. However, this was not to be. What ensued was three trials, a change of venue to Dublin, allegations of jury intimidation, extensive press coverage around the United Kingdom, enormous expense and, ultimately, an acquittal.
Download the article from SSRN at the link.

March 16, 2018

When the Snow Hits Your Eye on a Day in---March, Itsa Lawyer @ABAesq @Kirkland_Ellis

I thought this video was great when the media was reporting that it was about a man in an Elsa outfit pushing a police car out of a snow bank in Boston. Now, as it turns out, it was a lawyer in an Elsa outfit pushing a police car out of a snow bank in Boston. His name is Jonathan Triplett, and he's manager of attorney recruiting at Kirkland and Ellis. Excellent!

March 14, 2018

ABA Announces Silver Gavel Awards Winners For 2018 @ABAesq

The American Bar Association has announced its finalists for the Silver Gavel Award for 2018.  They include


An American Sickness by Elizabeth Rosenthal; Penguin Random House.
In Praise of Litigation by Alexandra Lahav; Oxford University Press.
Unwarranted: Policing without Permission by Barry Friedman; Farrar, Straus and Giroux.
Secrecy Rules; Star Tribune (Minneapolis); James Shiffer, reporter; Karen Lundegaard, digital editor.
Death-Penalty Defense Drama at Guantanamo War Court; Miami Herald; Carol Rosenberg, military affairs reporter; Dave Wilson, senior editor.


Breakdown Season 6: A Jury of his Peers; The Atlanta Journal-Constitution; Richard Halicks, senior editor; Kevin Riley; editor-in-chief; Bill Rankin, legal affairs writer; Pete Corson, audience specialist.
The Bookie, the Phone Booth, and the FBI; WNYC Studios New York Public Radio; Manoush Zomorodi, host and managing editor; Kat Aaron, senior producer; Jen Poyant, executive producer.
Null and Void; Radiolab at WNYC; Maria Matasar-Padilla, managing director; Tracie Hunte, reporter; Matt Kielty, producer; Soren Wheeler, managing editor.


Abacus: Small Enough to Jail; PBS Distribution, Frontline and ITVS; Mitten Media, Motto Pictures and Kartemquin Films Production; Steve James, director; Mark Mitten, producer; Julie Goldman, producer.
Baltimore Rising; Blowback Productions for HBO Documentary Films; Sonja Sohn, director and executive producer; Marc Levin, Anthony Hemingway, George Pelecanos and Mark Taylor, executive producers; Sheila Nevins, executive producer for HBO; Nancy Abraham. senior producer.
48 Hours: “Guilty Until Proven Innocent48 Hours/CBS News; Charlotte Fuller and Alicia Tejada, field producers; Maureen Maher, correspondent; Peter Schweitzer, senior producer; Nancy Kramer, executive story editor; Judy Rybak, producer.

Steilen on How to Think Constitutionally About Prerogative @MJSteilen

Matthew J. Steilen, State University of New York at Buffalo, Law School, is publishing How to Think Constitutionally About Prerogative: A Study of Early American Usage in the Buffalo Law Review. Here is the abstract.
This Article challenges the view of "prerogative" as a discretionary authority to act outside the law. For seventy years, political scientists, lawyers and judges have drawn on John Locke's account of prerogative in the Second Treatise, using it to read foundational texts in American constitutional law. American writings on prerogative produced between 1760 and 1788 are rarely discussed (excepting The Federalist), though these materials exist in abundance. Based on a study over 700 of these texts, including pamphlets, broadsides, letters, essays, newspaper items, state papers and legislative debates, this Article argues that early Americans almost never used "prerogative" as Locke defined it. Instead, the early American understanding of "prerogative" appears to have been shaped predominantly by the imperial crisis, the series of escalating disputes with the British ministry over taxation which preceded the Revolutionary War; in this crisis Americans based their claims to enjoy rights of self-taxation on their colonial charters, which were issued by the King's prerogative. The primary connotations of "prerogative" for Americans were thus self-government and the benefits of government, principally the protection of property and liberty. Drawing on this innovative view, the Article then proffers several principles for constructing the powers of the President. It argues that the Article II Vesting Clause should be treated as a substantive grant of executive power, but conceived narrowly as the power to carry out the law, not as a grant of prerogative. It is the enumerated powers in Article II that establish presidential prerogatives. These powers should be treated as "defeasible" in the sense that they may be regulated by statute and judicial decision, within limits the Article describes. This framework is consistent with the series of modern statutes regulating presidential emergency powers, including the War Powers Resolution and the National Emergencies Act.
Download the article from SSRN at the link.

March 12, 2018

What You Can Do With a Law Degree: Teach Criminal Law and Write and Perform Songs @RobCurrieMusic

Rob Currie, professor of law at the Schulich School of Law, Dalhousie University, teaches Canadian and international criminal law. So far, so good, But he also writes and performs music, and is known for his "graceful...lyrics" and "traditional style."  His song "Romeo" explores the story of Romeo Phillion's conviction and eventual exoneration.  More here.

Superheroes and Law Degrees @YaleLawLibrary

CFP: Workshop on Cultural Expertise and Litigation in the History of Law, Oxford, July 4, 2018 @thomgiddens @OxfordCSLS

Call for papers:  Workshop on Cultural Expertise and Litigation in the History of Law, to be held at the Centre for Socio-Legal Studies, University of Oxford, July 4th, 2018.

Abstracts between 500 and 1000 words plus a short bio (indicating current affiliation and main publications) should be sent to Livia Holden at Accommodation and some meals will be provided. Subject to availability of funds and exhaustion of the participant’s institutional resources, funds may also cover some travel expenses. 

More here: 

March 11, 2018

Legalrama @TheLawMap @legalcheek @BarristerSecret

The Secret Barrister (@BarristerSecret, "wears a black cape and fights crime") analyzes the law in Bananarama's "Love in the First Degree" and it is something to behold. The Tweeter offers up the niceties of criminal liability, the roles of judge and jury, and some points of sentencing.  (Thread here, from March 2:

I would point out that, however, that 1) the law that applies would seem to be U.S. law, and 2) it all takes place in a dream (or nightmare)--"Last night I was dreaming/I was locked in a prison cell..."

More here, courtesy of Legal Cheek. And The Secret Barrister teases us with the possibility of more to come, perhaps analysis of Meatloaf's "I Would Do Anything For Love (But I Won't Do That)." There's also The Supremes' "Stop! In the Name of Love." Request for an injunction?

Also check out Alabama's "Love in the First Degree" here.  There's also a film, "Love in the First Degree" (2004), about a "tightly-wound corporate lawyer." Is there any other kind?

March 8, 2018

Kerr on Aesthetic Play and Bad Intent @GeorgetownLaw

Andrew Jensen Kerr, Georgetown University Law Center, is publishing Aesthetic Play and Bad Intent in Minneosta Law Review Headnotes (2018) (forthcoming). Here is the abstract.
Threatening words or images are assumed by American courts to be non-art. But this threshold question of art status is complicated by the evolution of rap and performance art. There is no articulable way to discern art from non-art for these non-textual media, a problem compounded in the unique context of the Internet. In civil litigation we can resort to institutionalist tests like audience reception. But mens rea matters in criminal prosecution. I favor judicial pragmatism in what I argue here is a very non-legal area of law.
Download the article from SSRN at the link.

A Suits Spinoff Is in the Offing @USA_Network

USA has greenlit the Suits spinoff which stars Gina Torres (Jessica Pearson) and will feature the character as a Chicago politician. Aaron Korsh and Daniel Arkin will write and executive produce; Ms. Torres will also be an executive producer on the show.

Suits itself will return for an eighth season, although without Patrick J. Adams (Mike Ross), the now iconic character on whom the first 7 seasons of the show centered. Also gone is (of course) Meghan Markle (Rachel Zane), who will have a much bigger part to play on the world stage. Starting in May, she will be the wife of Harry, younger son of Charles, Prince of Wales and the late Princess Diana.                                                                                                                                                                 

More here from Variety.

March 7, 2018

Allen on Doctrinal Reasoning as a Disruptive Practice

Jessie Allen, University of Pittsburgh, School of Law, is publishing Doctrinal Reasoning as a Disruptive Practice in volume 6 of the Journal of Law and Courts (2018). Here is the abstract.
Legal doctrine is generally thought to contribute to legal decision making only to the extent it determines substantive results. Yet in many cases, the available authorities are indeterminate. I propose a different model for how doctrinal reasoning might contribute to judicial decisions. Drawing on performance theory and psychological studies of readers, I argue that judges’ engagement with formal legal doctrine might have self-disrupting effects like those performers experience when they adopt uncharacteristic behaviors. Such disruptive effects would not explain how judges ultimately select, or should select, legal results. But they might help legal decision makers to set aside subjective biases.
Download the article from SSRN at the link.

Kessler and Pozen's Response To Barzun's Response To Kessler and Pozen on the Life Cycle of Legal Theories @jeremykkessler @ColumbiaLaw @UVALaw

Jeremy Kessler and David Pozen, both of Columbia University Law School, have published Some Legal Realism About Legal Theory as Columbia Public Law Research Paper No. 14-584. Here is the abstract.
This is a brief surreply to Charles Barzun, Working for the Weekend: A Response to Kessler & Pozen, 83 U. Chi. L. Rev. Online 225 (2017), which responds to Jeremy K. Kessler & David E. Pozen, Working Themselves Impure: A Life Cycle Theory of Legal Theories, 83 U. Chi. L. Rev. 1819 (2016). Our article Working Themselves Impure concludes by calling for lawyers to take more seriously the failure of prescriptive legal theories to produce the results they once promised. When prescriptive legal theories that fail to achieve their initial, publicly stated goals nonetheless gain and sustain broad support, "external" explanations of their persistence may offer a compelling alternative to increasingly convoluted internal explanations. The former kinds of explanation cannot decisively defeat the latter, but they do give the legal community a choice. Barzun would prefer to foreclose this choice: while sociologists and political scientists might be expected to prefer a given external explanation, he submits, the puzzled lawyer "likely will (and probably should) adopt the internal account." Barzun certainly has history on his side in assuming that many in the legal community will be inclined toward internal accounts of theory persistence—believing that those prescriptive theories that enjoy long lives do so in virtue of their "intrinsic merits" or "rightness." Yet a dissenting tradition of lawyers, judges, and legal scholars, from early-twentieth-century legal realists to late-twentieth-century crits, has sought to trouble this professional panglossianism. It is our hope that Working Themselves Impure will prove useful to those who might wish to do so in the future.
Download the paper from SSRN at the link.

Read Charles Barzun, Working for the Weekend: A Response to Kessler & Pozen, Virginia Public Law and Legal Theory Research Paper No. 2017-33, here. Here is the abstract.

In Working Themselves Impure: A Life Cycle Theory of Legal Theories, Professors Jeremy Kessler and David Pozen argue that prescriptive legal theories tend to cannibalize themselves over time. Drawing on four case studies (originalism, textualism, popular constitutionalism, and cost-benefit analysis), the authors show how these theories tend to gain popularity and momentum only at the cost of abandoning the theoretical and normative motivations that originally inspired them. This brief Response does not take issue - at least not directly - with the authors’ characterizations of the theories they examine. It instead focuses on the last few pages of their article, where the authors discuss what they take to be their study’s methodological implications. I focus on these methodological suggestions because they deal most directly with a question their study as a whole naturally invites: Is the life-cycle theory likely to be helpful to the lawyer, judge, or legal scholar interested in assessing these theories? I offer some reasons for skepticism on this score.

Download the response at the link.

Read Jeremy Kessler and David Pozen, Working Themselves Impure: A Life Cycle Theory of Legal Theories, 83 University of Chicago Law Review 1819 (2016), here. Here is the abstract.

Prescriptive legal theories have a tendency to cannibalize themselves. As they develop into schools  of thought, they become not only increasingly complicated but also increasingly compromised, by their own normative lights. Maturation breeds adulteration. The theories work themselves impure.
This Article identifies and diagnoses this evolutionary phenomenon. We develop a stylized model to explain the life cycle of certain particularly influential legal theories. We illustrate this life cycle through case studies of originalism, textualism, popular constitutionalism, and cost-benefit analysis, as well as a comparison with leading accounts of organizational and theoretical change in politics and science. And we argue that an appreciation of the life cycle counsels a reorientation of legal advocacy and critique. The most significant threats posed by a new legal theory do not come from its neglect of significant first-order values -- the usual focus of criticism -- for those values are apt to be incorporated into the theory. Rather, the deeper threats lie in the second- and third-order social, political, and ideological effects that the adulterated theory's persistence may foster down the line.
Download the article at the link.

Peace out?  :-)

Kar on Formal Argument That Contract Meaning Depends On Linguistic Cooperation @UIllinoisLaw

Robin Bradley Kar, University of Illinois College of Law, has published Formal Argument that Contract Meaning Depends on Linguistic Cooperation. Here is the abstract.
In Pseudo-Contract and Shared Meaning Analysis, Professor Radin and I recently drew on contemporary insights into meaning, pioneered by Paul Grice, to develop a contemporary approach to contract interpretation — “shared meaning analysis” — which is adapted to modern circumstances. Part of our argument for using shared meaning analysis rested on the claim that when interpreting contracts, “the primary search is for a common meaning of the parties” — as the Restatement (Second) of Contracts puts the point. When identifying this common meaning, we argued that courts and parties implicitly rely on presuppositions of linguistic cooperation in ways that often go unrecognized. We suggested that the dependence of contract meaning on linguistic cooperation is pervasive and practically ineliminable. But some tests for contract interpretation, which are repeated more from habit than careful thought, have begun to delink contract meaning from the common meaning of the parties. This brief essay separates out and develops a detailed formal argument for the proposition that contract meaning depends on linguistic cooperation. Following Grice, I define “sentence meaning” as the meaning that a competent speaker of a language would attribute to a sentence independent of any knowledge of its occasion of use. I define “speaker meaning” as the meaning that a speaker intends to convey to another person within an interpersonal conversation, which often depends upon both parties relying on implicit presuppositions of linguistic cooperation. Building on these distinctions (but also departing from both in some ways), Professor Radin and I have offered a contemporary definition of the “shared meaning” of a contract. It is the meaning that the parties produced and actually agreed to based on the presupposition that both were using language cooperatively to contract. The purpose of this essay is to establish just how pervasive and practically ineliminable the presupposition of linguistic cooperation is to derive pervasive and uncontroversial aspects of contract meaning. Neither contemporary “objective” nor long-rejected “subjective” approaches to interpretation are getting contract interpretation perfectly right in some contemporary settings.
Download the article from SSRN at the link.

March 6, 2018

Call For Papers: Murder, She Tweeted: Crime Narratives and the Digital Age, August 23-24, 2018, University of Tampere, Finland @thomgiddens @tiina_mantymaki

Murder, She Tweeted: Crime Narratives and the Digital Age

August 23-24, 2018

University of Tampere, Finland

Keynote speakers: Andrew Pepper (Queen's University Belfast) & Fiona Peters (Bath Spa University) 
Second  Call for Papers

The advent of new technologies and digital media have transformed society and influenced cultural narratives. The changes brought about by technological innovations, digitalisation, and globalisation have affected not only the subject matter and themes of contemporary crime narratives but also the production, distribution, and consumption of crime fiction on the global market, as well as the analytical tools, techniques, research methods, and theories available to scholars. 
These changes are readily visible in detectives' digital investigations or in how criminals employ digital technology in committing cybercrimes such as online stalking or theft. Moreover, the potential of digitalisation in modifying crime narratives nowadays ranges from podcasts such as "Serial" to Sherlock Holmes fan fiction to transmedia narration in "Sherlock" and the Twitter adaptation of Agatha Christie's The Body in the Library.

We invite proposals for paper presentations on crime narratives and the digital age from different language and cultural spheres. The conference's approach to crime and the digital context is wide and covers a variety of contemporary crime narratives (e.g. novels, films, TV series, adaptations, true crime, fan fiction, vlogs, blogs and other social media) that can be examined in a number of ways.

We would like to welcome proposals which address one or several of the following topics (please note that the list is by no means exhaustive):

- production and the global market of crime narratives
- crime narratives, participatory production and fan practices
- new modes of narration and serialised storytelling in crime narratives
- multimodality and transmedia crime narratives
- remakes and social media adaptations of crime narratives
- social media and mobile technologies in or about crime narratives
- crimes and criminal agency
- criminal networks and transnational crime
- crime and thriller narratives and digital geopolitics
- policing, detective agency and (digital) methods of detection
- true crime narratives and cold case archives
- digital humanities and the study of crime narratives
- crime and digital culture in the postcolonial world
- virtual crime
- ecology, crime and digital technologies

Participants may contribute with individual presentations (20 min) or panel proposals (three presenters).

Please submit your proposal (max 300 words for individual presentations; for panels, please submit titles and abstracts of each
paper) and a short biographical statement (including name, email address, institutional affiliation) to and as attachments in rtf or doc format by March 20, 2018.

Conference fee: there is a conference fee of 70 euros (coffee, lunches, reception) and participants are expected to cover all costs for travel, accommodation, and subsistence themselves.

Organising committee:

Dr Helen Mäntymäki, University of Jyväskylä, Finland.
Dr Maarit Piipponen, University of Tampere, Finland.
Dr Aino-Kaisa Koistinen, University of Jyväskylä, Finland.
Dr Andrea Hynynen, University of Turku Finland.

Goodman on Nevertheless She Persisted: From Mrs. Bradwell To Annalise Keating: Gender Bias In the Courtroom

Christine Chambers Goodman, Pepperdine University School of Law, is publishing Nevertheless She Persisted: From Mrs. Bradwell to Annalise Keating, Gender Bias in the Courtroom in volume 24 of the William & Mary Journal of Women and the Law (2017). Here is the abstract.
Part I of this Article gives some brief background on the nature of implicit gender biases, and discusses the evolution of gender bias against female attorneys, with particular attention to how the media influences those biases. Part II analyzes the specific manifestations of gender bias in the courtroom. Part III addresses concrete strategies that law schools, firms, the bench, and bar can implement to reduce its impact.
Download the article from SSRN at the link.

March 5, 2018

John Copenhaver on Parallels Between the Crime Novel and the Coming Out Narrative @ElectricLit @CutterStreeby @johncopenhaver

John Copenhaver discusses similarities between the crime novel and the coming-out novel. He begins by saying,
The act of coming out is an unveiling. Since queer people live in a straight, cis-gendered dominant culture, we have the burden of proclaiming our sexual orientation or our gender identity. As a narrative, the coming-out story is one we’re familiar with, and one we’ve embraced. Crime stories have a similar structure, which perhaps is why they resonate with queer readers and writers: the tension of withheld secrets, the satisfying snap of the puzzle pieces fitting together, the wonder of the reveal. We’re drawn to a narrative where the unknown becomes known. Where motives are made clear. Where identity is made evident.

Among the crime narrative he offers for inspection:  Truman Capote's In Cold Blood, Katherine V. Forrest's Apparition Alley, and Patricia Highsmith's The Talented Mr. Ripley.

More here. 

CFP: Law and Humanities Forum of the MLA Plans Session on Literature, Law, and Violence at Next Year's Convention @MLANews

The Law and Humanities Forum of the Modern Language Association is sponsoring a guaranteed session on "Literature, Law, and Violence" at next year's MLA convention in Chicago (January 3-6, 2019).  We invite papers examining the relationship between law and violence in literary or legal texts from any period and all regions of the world.  

Here is a link to the CFP, as listed on the MLA website, with contact information. Please send 250-500 word abstracts and brief CV  by March 13, 2018 to Melissa J. Ganz (

Melissa J. Ganz
Assistant Professor of English
Marquette University
Marquette Hall 226
Milwaukee, WI 53201-1881

Rodriguez-Navarro and Zambrano on One Myth of the Classical Natural Law Theory: Relfecting on the "Thin" View of Legal Positivism @LawatSurrey

Veronica Rodriguez-Blanco, University of Surrey, Centre for Law and Philosophy, and Pilar Zambrano, University of Navarra, have published One Myth of the Classical Natural Law Theory: Reflecting on the “Thin” View of Legal Positivism at 31 Ratio Juris 9 (2018). Here is the abstract.
Much controversy has emerged on the demarcation between legal positivism and non‐legal positivism with some authors calling for a ban on the ‐as they see it‐ nonsensical labelling of legal philosophical debates. We agree with these critics; simplistic labelling cannot replace the work of sophisticated and sound argumentation. In this paper we do not use the term ‘legal positivism’ as a simplistic label but identify a specific position which we consider to be the most appealing and plausible view on legal positivism. This is the view advocated by Gardner in his paper 'Legal Positivism: 5½ Myths’ (Gardner [Gardner, J., 2001], 199), where he carefully scrutinises the most convincing and unifying postulates of legal positivism, which he calls “the thin view”. The study shows that this thin view presupposes an empirical conception of action that is untenable and implausible since it makes acts of engagement with the law unintelligible to an observer of such acts.
The full text is not available from SSRN.

March 2, 2018

Postema on Meaning, Analysis, and Exposition: Bentham on the Technology of Thought

Gerald J. Postema, University of North Carolina, Philosophy and Law, is publishing Meaning, Analysis, and Exposition: Bentham on the Technology of Thought in Utility, Publicity, and Law: Essays on Bentham's Moral and Legal Philosophy (Oxford: Oxford University Press, forthcoming). Here is the abstract.
First and foremost a social and legal reformer, Bentham undertook philosophical reflection on language—its nature, use and abuse—in an effort to understand and improve the world. His intellectual energy was trained primarily on law and political ordering, but he looked to every mode of inquiry (“science”) available for analytic and normative tools with which to “rear the fabric of felicity.” The most important of his theoretical innovations, in his view, was his theory of meaning, the heart of which was his analysis of language in terms of “real” and “fictitious” entities. This theory mapped the relations between the domain of thought and physical reality and devised a method of analysis—definition by “paraphrasis”—that enabled systematic ordering of thought. Late in his life, Bentham set out the metaphysical and epistemological foundations of his life’s work, articulating and grounding the philosophical principles that had governed his thinking from the beginning of his career. Reflecting on language and its relation to thought and reality, he produced sophisticated theories of meaning and of the technology of thought—the techniques and principles by which the active mind populates and orders the domain of thought. With this technology, Bentham sought to discipline potentially wayward language and thereby to deprive arbitrary power of one of its favorite weapons.
Download the essay from SSRN at the link.

Sykes and Tranter on The Rise and Fall of Ziggy Stardust and Natural Law @GriffLawSchool

Robbie Sykes and Kieran Mark Tranter, both of Griffith University Law School, are publishing The Rise and Fall of Ziggy Stardust and Natural Law in the International Journal for the Semiotics of Law (2018). Here is the abstract.

In Natural Law and Natural Rights, John Finnis delves into the past, attempting to revitalise the Thomist natural law tradition cut short by opposing philosophers such as David Hume. In this article, Finnis’s efforts at revival are assessed by way of comparison with – and, indeed, contrast to – the life and art of musician David Bowie. In spite of their extravagant differences, there exist significant points of connection that allow Bowie to be used in interpreting Finnis’s natural law. Bowie’s work – for all its appeals to a Nietzschean ground zero for normative values – shares Finnis’s concern with ordering affairs in a way that will realise humanity’s great potential. In presenting enchanted worlds and evolved characters as an antidote to all that is drab and pointless, Bowie has something to tell his audience about how human beings can thrive. Likewise, natural law holds that a legal system should include certain content that guides people towards a life of ‘flourishing’. Bowie and Finnis look to the past, plundering it for inspiration and using it as fuel to boost humankind forward. The analogy of Natural Law and Natural Rights and Bowie’s magpie-like relationship to various popular music traditions ultimately reveals that natural law theory is not merely an objective and unchanging edict to be followed without question, but a legacy that is to be recreated by those who carry it into the future. Law’s instruments of critique must not forget these transformative qualities. 

Download the article from SSRN at the link.

March 1, 2018

Holtermann, Introduction to Alf Ross: On Law and Justice @JakovoHoHo

Jakob v. H. Holtermann, University of Copenhagen, iCourts, Centre of Excellence for International Courts, has published Alf Ross: On Law and Justice; Editor's Introduction, as iCourts Working Paper Series, No. 116. It is also forthcoming in Alf Ross, On Law and Justice (Jakob v. H. Holtermann, ed., tr. Uta Bindreiter, Oxford: Oxford University Press, 2018).
This paper constitutes the editor’s introduction to the new English translation of Alf Ross’s main work On Law and Justice forthcoming on Oxford University Press (2018). On Law and Justice is a classic work of twentieth-century legal philosophy. The original Danish manuscript (Om ret og retfærdighed) was first published in 1953. The first translation into English (1958) was notably poor – significantly abridged and misrepresenting Ross’s views. Translated in full from scratch, this critical edition sheds new light on Ross’s work and resituates it firmly in the context of current debates in the field. In recent years, Alf Ross (1899-1979) has attracted increasing levels of attention. Not only is he, in HLA. Hart’s words, “the most acute and best-equipped philosopher” of Scandinavian legal realism. On Law and Justice reveals why Ross is by prominent scholars considered one of the three or four most important legal philosophers of the past century – and why his relevance is on the rise again. On Law and Justice provides the most convincing take on a consistent legal realist position. Grounded in a moderate version of the logical empiricist philosophical outlook, the mature Alf Ross outlines a purely empirical legal research programme, which simultaneously fully recognizes the distinctly normative character of law. In this way, Ross’s legal realism avoids the standard critiques against behaviorist reductionism while remaining categorically distinct from legal positivism and natural law. This editor’s introduction to the new edition clarifies Ross’s general philosophical project and details his position including Ross’s sophisticated dual distinction between internal and external aspects of law which essentially anticipated and surpassed Hart’s celebrated but more crude analysis. Holtermann connects Ross’s work with the ongoing empirical turn in legal scholarship, and with related attempts to associate legal realism with more broad philosophical trends under the label naturalized jurisprudence. This paper also includes the editor’s “Note on the translation of ‘gyldig’ and ‘gældende ret’ as ‘valid’ and ‘scientifically valid law’”.
Download the introduction from SSRN at the link.

Stern on Copyright as a Property Right? Authorial Perspectives in Eighteenth-Century England @ArsScripta @UCILawReview

Simon Stern, University of Toronto Faculty of Law, is publishing Copyright As a Property Right? Authorial Perspectives in Eighteenth-Century England in volume 8 of the UC Irvine Law Rev (2018). Here is the abstract.
In recent decades, various scholars have questioned the proposition that copyright must necessarily be rooted entirely in a property paradigm, and have sought to show how, over the last century and a half or so, that paradigm has been applied increasingly strictly and its logic has been extended with ever greater force. An examination of eighteenth-century sources shows that the conception of copyright as a form of property was neither the only, nor even the dominant, paradigm in circulation at the time. Moreover, when studying these sources, we must ask who is using the language of property: judges, members of the bookselling industry and their lawyers, writers and their counsel, or some combination of these? Building on earlier work that traces some aspects of the property framework as it developed in eighteenth-century British jurisprudence, I show that writers were far cagier about the language of property than were their colleagues in the bookselling industry, sometimes adopting this language equivocally, sometimes repudiating it emphatically. Discovering that the word “property” appears in eighteenth-century discussions of copyright mark the beginning, not the end, of an inquiry into its significance at this time.
Download the article from SSRN at the link.