Brady on the Forgotten History of Metes and Bounds @UVALaw

Maureen (Molly) Brady, University of Virginia School of Law, is publishing The Forgotten History of Metes and Bounds in the Yale Law Journal. Here is the abstract.

Since the settling of the American colonies, property boundaries have been described by the “metes and bounds” method, which is a highly customized system dependent on localized knowledge of movable stones, impermanent trees, and transient neighbors. The metes and bounds system has long been the subject of ridicule, and a recent wave of law-and-economics scholarship has argued that land must be easily standardized to facilitate market transactions and yield economic development. However, historians have not yet explored the social and legal context surrounding the metes and bounds system—obscuring the important role that highly customized property played in stimulating growth. Using new archival research from the American colonial period, this Article reconstructs the forgotten history of metes and bounds within recording practice. Importantly, the benefits of metes and bounds were greater—and the associated costs lower—than ahistorical examination of these records would indicate. The rich descriptions of the metes and bounds system transmitted valuable information to American settlers and could be tailored to different types of property interests, permitting simple compliance with recording laws. While standardization is critical for enabling property to be understood by a larger and more distant set of buyers and creditors, customized property practices built upon localized knowledge serve other important social functions that likewise encourage development.

Download the article from SSRN at the link.

Fletcher on Failed Protectors: The Indian Trust and "Killers of the Flower Moon" @MSULaw @DavidGrann

Matthew L. M. Fletcher, Michigan State University College of Law, is publishing Failed Protectors: The Indian Trust and Killers of the Flower Moon in the Michigan Law Review. Here is the abstract.

This Review uses Killers of the Flower Moon as a jumping off point for highlighting for readers how so many Indian people in Indian country can be so easily victimized by criminals. And yet, for however horrible the Osage Reign of Terror, the reality for too many Indian people today is much much worse. The federal government is absolutely to blame for these conditions. This Review shows how policy choices made by all three branches of the federal government have failed Indian people. Part I establishes the federal-tribal trust relationship that originated with a duty of protection. Part II establishes how the United States failure to fulfill its duties to the Osage Nation and its citizens allowed and even indirectly encouraged the Osage Reign of Terror. Part III offers thoughts on the future of the trust relationship in light of the rise of tribal self-determination. Part IV concludes the Review with a warning about how modern crime rates against Indian women and children are outrageously high in large part because of the continuing failures of the United States.

Download the review from SSRN at the link.

McMahon on "I Lost My Talk": Indian Residential Schools, Copyright, Archives, and Commissions of Inquiry

Thomas McMahon, Independent, has published 'I Lost My Talk': Indian Residential Schools, Copyright, Archives and Commissions of Inquiry. Here is the abstract.

People give statements to commissions of inquiry, courts, administrative tribunals, police and other government bodies. Who owns the copyright in those statements? What practical value is there in copyright ownership in those contexts? This paper examines in detail the copyright issues relating to the statements that survivors of Indian Residential Schools gave to Canada's Truth and Reconciliation Commission. As related background, the paper gives a detailed review of the Supreme Court of Canada's order to destroy statements given by survivors to the Independent Assessment Process. This paper examines copyright cases from Canada, England, the United States and Australia dealing with interviews generally, statements and indigenous peoples. This paper is one of a series by the author examining the many legal issues relating to Indian Residential Schools and the Indian Residential Schools Settlement Agreement.

Download the article from SSRN at the link.

NB:  Mr. McMahon was Executive Director of the Truth and Reconciliation Commission from October 2009 to July 2010, and then served as General Legal Counsel to the Commission for the remainder of the Commission’s mandate. McMahon was previously a long-time Department of Justice Canada lawyer. Before that, McMahon was Executive Secretary of the Manitoba Aboriginal Justice Inquiry

ICYMI: Guerrier on Fictions du droit et espace littéraire

ICYMI: Olivier Guerrier, Fictions du droit et espace littéraire, at Fabula.

RIchard Cohen on Samuel Johnson and the Attractions of the Law @laphamsquart

Here, for Lapham's Quarterly, Richard Cohen examines Samuel Johnson's unfulfilled desire to become a lawyer. Writes Mr. Cohen in part:

He had great respect for the place of law and a reverence for good lawyers, although he could be merciless about bad ones. In the dictionary, he created 178 new legal definitions and took from other sources a further 154, but his definitions are often with a curve to them. Choosing an authority for the word attorney, he quotes Alexander Pope: “vile attorneys, now an useless race”; he defines lawgiver as a “legislator, one who makes laws,” and this time the authority is Jonathan Swift: “A law may be very reasonable in itself, although one does not know the reason of the lawgivers.” He had a sense of humor and a sense of outrage.

New From Wiley/Blackwell: Westworld and Philosophy @WestworldHBO

New from Wiley-Blackwell: Westworld and Philosophy (James B. South and Kimberley S. Engels, eds., 2018). Here from the publisher's website is a description of the book's contents.

“We can’t define consciousness because consciousness does not exist. Humans fancy that there’s something special about the way we perceive the world, and yet we live in loops as tight and as closed as the hosts do, seldom questioning our choices, content, for the most part, to be told what to do next.” —Dr. Robert Ford, Westworld Have you ever questioned the nature of your reality? HBO’s Westworld, a high-concept cerebral television series which explores the emergence of artificial consciousness at a futuristic amusement park, raises numerous questions about the nature of consciousness and its bearing on the divide between authentic and artificial life. Are our choices our own? What is the relationship between the mind and the body? Why do violent delights have violent ends? Could machines ever have the moral edge over man? Does consciousness create humanity, or humanity consciousness? In Westworld and Philosophy, philosophers, filmmakers, scientists, activists, and ethicists ask the questions you’re not supposed to ask and suggest the answers you’re not supposed to know. There’s a deeper level to this game, and this book charts a course through the maze of the mind, examining how we think about humans, hosts, and the world around us on a journey toward self-actualization. Essays explore different facets of the show’s philosophical puzzles, including the nature of autonomy as well as the pursuit of liberation and free thought, while levying a critical eye at the human example as Westworld’s hosts ascend to their apotheosis in a world scarred and defined by violent acts. The perfect companion for Westworld fans who want to exit the park and bend their minds around the philosophy behind the scenes, Westworld and Philosophy will enrich the experience of the show for its viewers and shed new light on its enigmatic twists and turns.

ICYMI: Gary T. Marx, Windows Into the Soul: Surveillance and Society in an Age of High Technology (University of Chicago Press, 2016)

ICYMI:



Gary T. Marx, Windows Into the Soul: Surveillance and Society in an Age of High Technology (University of Chicago Press, 2016).

Matthew H. Birkhold on Why Judges Cite Jane Austen

Via Electric Literature, this interesting meditation on why judges find Jane Austen so intriguing, and why, when they cite female authors at all, they cite her, as well as Harper Lee and Mary Shelley. Writes Matthew H. Birkhold, Ohio State University,

After reading every available opinion, I’ve come to a rather banal but beautiful conclusion: Jane Austen is cited as an authority on the complexity of life, particularly with regard to the intricacies of relationships. Alternatively, judges cite Austen as a shorthand for erudition and sophistication, to demarcate who is a part of high society (often, lawyers) and who is not (often, defendants), reflecting the novelist’s popular reception....Half of the published legal opinions that cite Jane Austen don’t engage with her work beyond the first line of Pride and Prejudice: “It is a truth universally acknowledged that a single man in possession of good fortune must be in want of a wife.” This approach relies on the Austen quotation to underscore the legal writer’s intellect and the certainty of his or her claim. For instance, in a medical malpractice case, the court denied the plaintiff’s cause of action because “it is a truth universally acknowledged that she who comes into equity must come with clean hands.”

More here.

Pessach and Shur-Ofry on Copyright and the Holocaust @HujiLawOfficial

Guy Pessach and Michal Shur-Ofry, both of the Hebrew University of Jerusalem, Faculty of Law, are publishing Copyright and the Holocaust in the Yale Journal of Law and the Humanities. Here is the abstract.

This article explores the interface between copyright law and the Holocaust. The Holocaust’s duration and scope, its occurrence in midst of the twentieth century with photography and film technologies already available, and its setting at the heart of Europe, yielded countless documents, diaries, notes, memoirs, musical works, photographs, films, letters, and additional artifacts. On the victims’ part, many of those items — including secret archives comprised at various ghettos, music composed in concentration camps, and personal diaries — manifest an explicit act of real-time historical documentation for future generations. On the perpetrators’ side, some materials were produced as a result of organized documentation, others — such as Joseph Goebbels’ diaries or Hitler’s Mein Kampf — comprise records of prominent figures in the Nazi regime. Numerous Holocaust-related materials are still subject to copyright protection. Yet, the impact of copyright law on the memory of the Holocaust remains largely unexplored. This article engages in a first systematic exploration of the copyright-Holocaust interface and presents a twofold argument. First, we demonstrate that copyright law plays a heretofore-unnoticed role in shaping the collective memory of the Holocaust. Second, on a normative level, we argue that the prevalent narratives underlying copyright law, as well as ordinary copyright doctrines, do not comfortably apply to Holocaust-related materials, and that this state of affairs yields socially undesirable consequences. The latter include, inter alia, victims’ works created with the explicit goal of documenting the Holocaust that may remain in the file-drawer due to copyright concerns, as well as ordinary copyright protection applying to infamous Nazi materials, thus providing their owners with certain influence over the Holocaust’s narrative. By closely examining various case studies, we analyze the principal tensions between the copyright regime and the Holocaust and offer several concrete recommendations concerning the application of copyright law to Holocaust-related materials. On a more general note, our analysis sheds new light on copyright’s impact on collective and intergenerational memory.

Download the article from SSRN at the link.

Poon on How a Body Becomes a Boat: The Asylum Seeker in Law and Images @juselk

ICYMI:

Justine Poon, Australian National University College of Law, has published How a Body Becomes a Boat: The Asylum Seeker in Law and Images, at 30 Law & Literature 105 (2018).  Here is the abstract.

Asylum seekers arriving in Australia by boat to seek protection have been the catalyst for significant legal reform and the proliferation of political discourses. The paper analyses the metaphor of the boat as being a common trope in the legislative category of the “unauthorized maritime arrival” and in the government images that advertised this legal change. The figure of the boat effaces the asylum-seeker's body from the frame of law and discourse and constructs a myth about sovereignty and borders that enables coercive control over asylum seeker bodies.

Frye on Art in the Shadow of the Law @brianlfrye

Brian L. Frye, University of Kentucky College of Law, has published Art in the Shadow of the Law at Kentucky Bench & Bar Magazine (March 2018), at 8. Here is the abstract.

While precious little law is specific to art, a rich and complex body of social norms and customs effectively governs artworld transactions and informs the resolution of artworld disputes. In any case, a smattering of scholars study art law and a similar number of lawyers practice it. In this essay, I will provide a brief overview of art law from three different perspectives: the artist, the art market, and the art museum.

Download the article from SSRN at the link. 

Calvo on Eduardo Mendoza's La Verdad Sobre el Caso Savolta @jcalvo11

Professor José Calvo of the University of Malaga Faculty of Law gave a lecture on Eduardo Mendoza's La verdad sobre el caso Savolta (Seix Barral, reprint 2011) (English: The Truth About the Savolta Case (1992)) at the University of Navarre on April 23. More here about the lecture.

Mr. Mendoza (born 1943) is also the author of several "anonymous detective" novels, in which the detective is a resident in a mental hospital. These include El misterio de la cripta embrujada (1978), El laberinto de las aceitunas (1982), La aventura del tocador de senoras (2001), El enredo de la bolsa y la vida (2012), and El secreto de la modelo extraviada (2015) (apologies for the omitted diacritical marks). 

Somos on A New Architecture of Justice: Dan Kiley's Design for the Nuremberg Trials' Courtroom @msomos

Mark Somos, Harvard University Safra Center for Ethics; Harvard Law School, has published A New Architecture of Justice: Dan Kiley's Design for the Nuremberg Trials’ Courtroom as Max Planck Institute for Comparative Public Law & International law (MPIL) Research Paper No. 2018-04.
Here is the abstract.

Courtroom 600 in the Nuremberg Palace of Justice is one of the most iconic sites in the history of international criminal law. Yet the extensive literature on Courtroom 600 neglects the original 1945 drawings of the architect Dan Kiley, now in the archives of the Harvard Design School. This article revises our understanding of Courtroom 600 in light of these drawings. Among other findings it argues that Kiley, rather than Jackson or the OSS, was the main source of design decisions; that the secondary literature overemphasises film at the expense of architecture; and that the design of both Courtroom 600 and the entire reconstructed Palace of Justice offer valuable insights into this key moment in the history of international law.

Download the article from SSRN at the link.

Adamson on The "Blurred Lines" of Marvin Gaye's "Here, My Dear": Music As a Tortious Act, Divorce Narrative, and First Amendment Totem @seattleulaw

Bryan L. Adamson, Seattle University School of Law, is publishing The 'Blurred Lines' of Marvin Gaye's 'Here, My Dear': Music as a Tortious Act, Divorce Narrative and First Amendment Totem in volume 36 of the Cardozo Arts & Entertainment Law Journal (2018). Here is the abstract.

In 1977, singer Marvin Gaye did an audacious thing: Anna Gordy-Gaye was divorcing him, and asking for $1 million dollars. Despite having a wildly successful career up to that point, Marvin was near financial ruin. His attorney, Curtis Shaw, hit upon an idea: Motown, Marvin’s record label, had given him $305,000 as an advance for his upcoming-but-undeveloped album. Marvin would give Anna the $305,000, and pledge the first $295,000 of the royalties yielded from that recording. Instead of $1 million, Anna agreed to the $600,000, as did Motown’s CEO Berry Gordy, Anna’s brother. The judge wrote up an Order to that effect. Composed, written (with a few exceptions), and vocalized by Marvin alone, he first thought to do “nothing heavy, nothing even good.” Then he changed his mind. The album that resulted? A brilliantly unsettling poison pen to and about Anna, sardonically titled Here, My Dear. Released in December 1978, Here, My Dear laid bare to the world a marriage gone terribly, terribly wrong. From the double album’s jacket illustrations and lyrics, down to the vocal colors and tones Marvin deploys — Anna is portrayed as greedy, vengeful and manipulative. The work was so upsetting to her that Anna publicly threatened to sue Marvin. This Article explores that threat. Here, My Dear is a rich legal document from which to mine the myriad torts Marvin commits against Anna over the course of its seventy three minutes and 10 seconds length. Moreover, given Marvin’s persona as one of the most preeminent celebrity male sex symbols from the 1960s until his death in 1984, Here, My Dear can also be read as a beguiling take on the ways in which masculine perspectives on divorce are constructed and articulated. Here, My Dear is a fascinating artifact also because its analysis impels application of some of the Supreme Court’s seminal constitutional jurisprudence such as New York Times v. Sullivan, Gertz v. Welch and Time v. Firestone. Each, in some form or to some extent, is relevant to the Gaye divorce saga as it raises issues of free speech and artistic expression, who can be considered “media” or a “public figure,” and rights of privacy versus newsworthiness of divorce. Consequently, Here, My Dear serves to illustrate foundational communication and distress torts principles as shaped by First Amendment doctrine.

Download the article from SSRN at the link.

Chaos Takes Control. What Does That Phrase Remind Me Of?

Westworld's new tagline is "Chaos takes control." Am I the only person who thinks the choice of this particular phrase is vaguely funny? It reminds me of the two spy organizations in the 1960s tv show Get Smart, CONTROL, the patriotic "good guy" group which employed Maxwell Smart, Secret Agent 86 (played by the inimitable Don Adams), and KAOS, the evil "bad guy" organization that battled CONTROL for supremacy. The show was a Mel Brooks-Buck Henry parody of the James Bond films and featured wild plots, weird gadgets, and general craziness. It also featured Hymie the Robot (played by the wonderful Dick Gautier), who began as a KAOS operative, but switched sides and worked for CONTROL. Hymie had at least some emotions (way before Star Trek: TNG's Lieutenant Commander Data).

KAOS never "took" over CONTROL in Get Smart, and the Get Smart robot joins forces with CONTROL rather than the group that created it. The hosts on Westworld are altogether less pliant and less agreeable than Hymie. Would you believe that Westworld seems headed in another direction? And...loving it. (I asked you not to tell me that). 

A New Legal Drama, "The Split," Premieres on BBC One

Writer Abi Morgan discusses the new legal drama The Split (BBC One). The show focuses on female solicitors Ruth, Hannah, and Nina, DeFoe, who handle high profile divorce cases and volatile personal relationships. It stars Nicola Walker (Hannah), Deborah Findlay (Ruth), Annabel Scholey (Nina), Stephen Mangan (Nathan, Hannah's husband), and Barry Atsma (Christie, Hannah's ex).

The Split is the latest in a new series of shows that feature powerful female characters (think Scandal, How To Get Away With Murder, Damages, Madam Secretary, Silk).

"Lord of the Flies" and the Law

William Golding's daughter Judy Golding Carter discusses what her father's novel Lord of the Flies actually means.  She says in part,

The boys in Lord of the Flies make quite a good fist of creating a democratic society, at least to begin with. Ralph, the democratically elected leader, admonishes Jack to stick to "the rules", because "the rules are the only thing we've got." In an interview the author said that the novel was about the importance of the rule of law. It was also about the complexity of human beings.
My father greatly distrusted simply judgements. He was careful to give Jack some good qualities, and to make him attractive. It's possible to imagine that under different circumstances Jack and Ralph would have been friends, would have helped each other's weeknesses, and admired each other's strengths. But the author shows that this cannot happen on the island because the boys in their isolation are suffering unchecked "from the terrible disease of being human".

More from The Guardian's Letter to the Editor column here.

A select bibliography on Lord of the Flies and law below.

A. A. H. Al-Saidi, Savagery and the Heart of Darkness in William Golding's "Lord of the Flies," 4 CSCanada -- (2012). (abstract).

David Spitz, Power and Authority: An Interpretation of Goldings' "Lord of the Flies,  30 The Antioch Review 21 (Spring 1970).

Eric Wilson, Warring Sovereigns and Mimetic Rivals: On Scapegoards and Political Crisis in William Golding's "Lord of the Flies," 8 Law and Humanities 147 (2014).

New From Hart Publishing: Blackstone and His Critics, Edited by Anthony Page and Wilfred Prest @hartpublishing

Newly published: Blackstone and His Critics (Anthony Page and Wilfred Prest, eds., 2018).

William Blackstone's Commentaries on the Laws of England (1765-69) is perhaps the most elegant and influential legal text in the history of the common law. By one estimate, Blackstone has been cited well over 10,000 times in American judicial opinions alone. Prominent in recent reassessment of Blackstone and his works, Wilfrid Prest also convened the Adelaide symposia which have now generated two collections of essays: Blackstone and his Commentaries: Biography, Law, History (2009), and Re-Interpreting Blackstone's Commentaries: A Seminal Text in National and International Contexts (2014). This third collection focuses on Blackstone's critics and detractors. Leading scholars examine the initial reception of the Commentaries in the context of debates over law, religion and politics in eighteenth-century Britain and Ireland. Having shown Blackstone's volumes to be a contested work of the Enlightenment, the remaining chapters assess critical responses to Blackstone on family law, the status of women and legal education in Britain and America. While Blackstone and his Commentaries have been widely lauded and memorialised in marble, this volume highlights the extent to which they have also attracted censure, controversy and disparagement.

 

Feingold and Carter on What Social Science Can Tell Us About the Supreme Court's Use of Social Science @drevvycarter

Jonathan P. Feingold, UCLA, and Evelyn Carter, UCLA, have published Eyes Wide Open: What Social Science Can Tell Us About the Supreme Court's Use of Social Science at 112 Nw. U. L. Rev. Online 236 (2018).

The Northwestern University Law Review’s 2017 Symposium asked whether McCleskey v. Kemp closed the door on social science’s ability to meaningfully contribute to equal protection deliberations. This inquiry is understandable; McCleskey is widely understood to have rendered statistical racial disparities doctrinally irrelevant in the equal protection context. We suggest, however, that this account overstates McCleskey and its doctrinal impact. Roughly fifteen years after McCleskey, Chief Justice Rehnquist — himself part of the McCleskey majority — invoked admissions data to support his conclusion that the University of Michigan Law School unconstitutionally discriminated against White applicants. Chief Justice Rehnquist’s disparate treatment of statistical evidence in McCleskey and Grutter v. Bollinger reveals the doctrine’s underdeterminacy and invites a corresponding inquiry: why do Justices rely on social science in some cases, yet reject it in others? We propose that one answer lies at the intersections of Critical Race Theory and empirical scholarship on motivated social cognition. This “eCRT” lens illuminates how ostensibly neutral biases and heuristics, when informed by socially salient racial stereotypes, will predictably and systematically lead judges to over-value “evidence” that rationalizes existing racial disparities and, as a result, author legal opinions that re-instantiate and legitimize the status quo.

Download the article from SSRN at the link.

Roz Watkins: The IP Lawyer Turns Mystery Novelist @Ipkat

The IPKat @Ipkat notes the publication of IP attorney turned crime novelist Roz Watkins' novel The Devil's Dice (HarperCollins).

Here's a description of the book's contents.

Detective Inspector Meg Dalton has recently returned to her Peak District roots to pick up the pieces after a breakdown, when a man's body is discovered in a cave. The man's initials and a figure of the Grim Reaper are carved into the cave wall behind his corpse, but bizarrely, the carvings have existed for over one hundred years. The locals talk about a mysterious family curse that started in the times of the witch trials, and Meg finds it increasingly hard to know who to trust. Even her own mother may be implicated. Meg finds her own life at risk as she fights to stop the murderer from killing again. The Literary Review described 'The Devil's Dice' as a 'smart, enjoyable debut', saying that "the setting is dramatic, the characters are convincing and the motive for murder, when eventually uncovered, is interesting."

 

More about Ms. Watkins here.

Would you like to read more mystery or crime fiction featuring IP lawyers? Try out Paul Goldstein's  Errors and Omissions (Random House, 2007),  Havana Requiem (Farrar, Straus, and Giroux, 2012), and  A Patent Lie (Random House, 2008).

Poetic Crime @CrimeReads

In celebration of National Poetry Month, Crime Reads @CrimeReads offers this list of twenty-six poets who also wrote, or currently write, crime fiction. Included are Sir Arthur Conan Doyle, Kingsley Amis, Pia Juul, James Sallis, Dorothy Sayers, Erica Wright, Edgar Allan Poe, and Karin Fossum. Enjoy!

Mulligan on Diverse Originalism @MulliganEsq ‏

Christina Mulligan, Brooklyn Law School, is publishing Diverse Originalism in the University of Pennsylvania Journal of Constitutional Law. Here is the abstract.

Originalism has a difficult relationship with race and gender. People of color and white women were largely absent from the process of drafting and ratifying the Constitution. Today, self-described originalists are overwhelmingly white men. In light of these realities, can originalism solve its “race and gender” problems while continuing to be originalist? This Article argues that originalists can take several actions today to address originalism’s race and gender problems, including debiasing present-day interpretation, looking to historical sources authored by people of color and white women, and severing originalism and the Constitution’s text from their historical associations with racism and sexism. Taking these steps will not only make originalism more inclusive, but also help originalists become better at accessing the original meaning of the Constitution.

Download the article from SSRN at the link.

Moustaira on Who Needs Comparative Law @emoustai

Elina Moustaira, National and Kapodistrian University of Athens, School of Law, is publishing Who Needs Comparative Law?! What a Question! in Comparazione e Diritto Civile (2017). Here is the abstract.

It is argued that in a world of steadily increasing contacts and mutual influences, we need to understand the other people, the other laws. It does not suffice to cite descriptions of law’s function or of various states’ attitudes towards the law. Thus, the comparative perspective is used in order to approach and comprehend a legal culture.

Download the article from SSRN at the link.

Munshi on Race, Citizenship, and the Visual Archive @GeorgetownLaw

Sherally Munshi, Georgetown University Law Center, is publishing 'You Will See My Family Became so American': Race, Citizenship, and the Visual Archive in Law and the Visual: Representation, Technologies, and Critique (Desmond Manderson, ed., 2018). Here is the abstract.

In 1932, the United States government sought to cancel the citizenship of Dinshah Ghadiali, an immigrant from India, alleging that Ghadiali “by reason of his not being a free white person or a person of African nativity or descent is, and was, ineligible racially for naturalization.” Ghadiali was one of dozens of Indian immigrants targeted for denaturalization in the wake of United States v. Thind (1923), in which the Supreme Court declared that “Hindus,” though capable of cultural assimilation, would remain visually unassimilable. At his denaturalization trial, Ghadiali submitted into evidence a series of photographs, assuring the judge, “You will see my family became so American.” How do these photographs purport to show that Ghadiali and his family had become “so American”? In this essay, through a through a close reading of Ghadiali’s photography, I explore a tension between the visualization of race—a practice at once institutionalized by law and inextricably bound with the medium of photography—and the performance of national belonging.

Download the essay from SSRN at the link.

Zeno-Zencovich on Data Visualization and Legal Epistemology

Vincenzo Zeno-Zencovich, University of Rome III-Department of Law, has published Through a Lawyer's Eyes: Data Visualization and Legal Epistemology 459 in Law, Norms, and Freedoms in Cyberspace/Droit, Normes, et Libertes dans le Cybermonde: Liber Amicorum Yves Poulet (Elise Degrave, Cecile de Terwangne, Severine Dusolier, et Robert Querck, eds., Larcier, 2018).

The article aims at investigating the relationship between the law and its visual depiction, in the light of the growing use of vast amounts of data to represent social phenomena. Visual analytics and infographics are part of contemporary forms of representation and knowledge. To what extent can lawyers do - or should do - without them and what profit, instead, might they take from them?

Download the essay from SSRN at the link. 

Green on Legal Monism: An American History @WMLawSchool

Michael S. Green, William & Mary Law School, has published Legal Monism: An American History in Vienna Legal Philosophy 23-48 (Christoph Bezemek, Michael Potacs, and Alexander Somek, eds., Hart Publishing, 2018) (Vienna Lectures on Legal Philosophy).

Legal monism is the view that necessarily one, and only one, legal system exists. The legal norms of all past, present, and possible communities exist only within in an overarching legal system, which does not itself depend upon any community for its existence. Current legal philosophers — including those who might be described as natural law theorists — reject legal monism. They are legal pluralists, who believe that a multiplicity of discrete legal systems is possible (indeed actual). Although philosophers of law are pluralists, it is difficult to determine jurists’ views on the matter, for monism and pluralism are both compatible with most judgments that they make. Only in a few narrow areas do monistic and pluralistic judgments about the law diverge. One such area is the conflict of laws (or, as those outside the United States would call it, private international law) — in particular, judgments concerning what I will call rules of authorization, which distribute lawmaking power among the officials of various jurisdictions. Rules of authorization include rules determining when a court has personal jurisdiction and when a legislature has legislative jurisdiction — the power to extend its laws to a matter. In this essay, I argue that a commitment to legal monism is evident in American jurists’ views on rules of authorization in the nineteenth and early twentieth centuries. I offer as examples Justice Story, Joseph Henry Beale, and Justice Field. What is more, the subsequent choice-of-law revolution did not reject monism. What it rejected was a conception of rules of legislative jurisdiction as dividing lawmaking power into exclusive spheres. Such rules were now understood as giving the lawmakers of a number of jurisdictions concurrent lawmaking power. Whether these rules were understood monistically or not was left open. Indeed, it is possible that current jurists, if forced to take a stand between a monistic and a pluralistic understanding of rules of authorization, would choose monism.

Download the essay from SSRN at the link.

Meyer on Sisyphus and the Clockmaker: Two Views of the Rule of Law in Keally McBride's "Mr. Mothercountry: The Man Who Made the Rule of Law

Linda Ross Meyer, Quinnipiac University School of Law, has published Sisyphus and the Clockmaker: Two Views of the Rule of Law in Keally McBride's 'Mr. Mothercountry: The Man Who Made the Rule of Law'. Here is the abstract.

This essay is an engagement with Keally McBride's excellent book, "Mr. Mothercountry: The Man Who Made the Rule of Law," and argues that the rule of law is not a law of rules, but a culture of self-restraint and humility.

Download the article from SSRN at the link.

Karen Raber, Shakespeare and Posthumanist Theory (Bloomsbury Publishing, 2018) @BloomsburyBooks @olemissenglish

New from Bloomsbury Publishing: Karen Raber, Professor of English, University of Mississippi, Shakespeare and Posthumanist Theory (2018) (The Arden Shakespeare). Here from the publisher's website is a description of the book's contents.

Shakespeare and Posthumanist Theory charts challenges in the field of Shakespeare studies to the assumption that the category “human” is real, stable, or worthy of privileging in discussions of the playwright's work. Drawing on a variety of methodologies - cognitive theory, systems theory, animal studies, ecostudies, the new materialisms - the volume investigates the world of Shakespeare's plays and poems in order to represent more thoroughly its variety, its ethics of inclusion, and its resistance to human triumphalism and exceptionalism.

 

Pier Giuseppe Monateri, Political Sublime and the World Order (Hart Publishing, 2018) @hartpublishing

New from Hart Publishing:

Pier Giuseppe Monateri, Professor of Law, University of Torino, Dominus Mondi: Political Sublime and the World Order (2018).

Here from the publisher's website is a description of the book's contents.

This monograph makes a seminal contribution to existing literature on the importance of Roman law in the development of political thought in Europe. In particular it examines the expression 'dominus mundi', following it through the texts of the medieval jurists – the Glossators and Post-Glossators – up to the political thought of Hobbes. Understanding the concept of dominus mundi sheds light on how medieval jurists understood ownership of individual things; it is more complex than it might seem; and this book investigates these complexities. The book also offers important new insights into Thomas Hobbes, especially with regard to the end of dominus mundi and the replacement by Leviathan. Finally, the book has important relevance for contemporary political theory. With fading of political diversity Monateri argues “that the actual setting of globalisation represents the reappearance of the Ghost of the Dominus Mundi, a political refoulé – repressed – a reappearance of its sublime nature, and a struggle to restore its universal legitimacy, and take its place.” In making this argument, the book adds an important original vision to current debates in legal and political philosophy.

 

Nicholas Papaspyrou, Constitutional Argument and Institutional Structure in the United States (Hart Publishing, 2018) @hartpublishing

Nicholas Papaspyrou, Constitutional Argument and Institutional Structure in the United States (Hart Publishing 2018). 

US constitutional jurisprudence often conflates two distinct enquiries: how to interpret the Constitution and how to allocate interpretive authority. This book explains the distinct role of judgements about interpretive authority in constitutional practice. It argues that these judgements do not determine what qualifies as good constitutional argument, and cannot substitute for it. Rather, they specify the division of labour between the political branches and the judiciary in forming applicable constitutional determinations. This explanation of the structure of constitutional reasoning sets the stage for the development of a normative theory about each enquiry. The book advances a theory of substantive constitutional argument. It argues that constitutional interpretation is a special kind of practical reasoning, aiming to construct and specify morally sound accounts of the Constitution and surrounding constitutional practice. Yet, this task is entrusted to a scheme of institutions, as agents of free and equal citizens. The standard of review is an interlocking component of that scheme, regulating the judicial assignment. As such, it should aim to facilitate best performance of the overall interpretive task, so that the judicial process settles on appropriate constitutional determinations; grounded on morally sound reasons that reach all citizens and uphold the fundamental commitments to freedom and equal citizenship.

 

CFP For Late Abstracts and Registration Now Open: International Roundtable For the Semiotics of Law (IRSL 2018), May 25th, 2018 @thomgiddens

Law and Arts in Crime Settings The 19th International Roundtable for the Semiotics of Law (IRSL 2018) 23rd – 25th May, 2018 Hosted by Örebro University / Sweden

Website: The 19th International Roundtable for the Semiotics of Law (IRSL 2018) - School of Law, Psychology and Social work - Örebro University The 19th International Roundtable for the Semiotics of Law (IRSL 2018) ... Interdisciplinary conference ISRL 2018.

The theme "Law and Arts in Crime Settings" is interdisciplinary and cove... YOU CAN NOW START REGISTERING ONLINE FOR IRSL 2019

This roundtable aims at exploring, analysing, debating the very close semiotic connections between real and fictitious societies, and exploring the mimicking between human and non-human people in order to express the social order in which individual liberties, rights and duties are major concerns.

This roundtable will focus on how to narrate real or fictitious national crimes, war crimes, crimes against humanity, manslaughter, etc. We will not only focus on legal analyses and literature but also on how artists, political cartoonists and/or official court artists sketch court settings, crimes, and alleged offenders. We invite contributors to reflect on how these ideas have been examined over the years. Papers which examine the way artists, storytellers, writers, novelists, singers, movie producers have provoked public discourse to confront Law and Arts in Crime Settings are particularly welcome.

A special attention will be paid on how storytellers narrate a crime to a very young public and raise its awareness.

The 19th International Roundtable for the Semiotics of Law invites further discussion into these and related questions and welcomes a plurality of approaches, including those of legal studies, philosophy, social science, linguistics, history, cultural studies, and the humanities. Abstracts of 300 words (max.) can be submitted by April 25, 2018 to Laura Ervo (Organizer) (laura.ervo@oru.se) and Anne Wagner (valwagnerfr@yahoo.com) with participation decisions made by April 30, 2018.

Selected papers will be invited for publication in a special issue of International Journal for the Semiotics of Law. (Springer: http://www.springer.com/lawjournal11196) or edited volume. Anne Wagner, Ph. D., Habilitation à Diriger des Recherches - Qualifiée Associate Professor, Université du Littoral Côte d'Opale (France) https://orcid.org/0000-0001-6362-9023 Centre Droit et Perspectives du Droit, Equipe René Demogue - Université de Lille II (France) Research Professor, China University of Political Science and Law (Beijing - China) http://fr.linkedin.com/in/annewagner

http://link.springer.com/book/10.1007/978-90-481-9322-6/page/1

Editor-in-Chief of the International Journal for the Semiotics of Law - http://www.springer.com/law/journal/11196

Series Editor, Law, Language and Communication - Routledge ( https://www.routledge.com/Law-Language-and-Communication/book-series/LAWLANGCOMM)

President of the International Roundtables for the Semiotics of Law - https://www.linkedin.com/groups/2427318

ICYMI: Jeffrey C. Kinkley, Chinese Justice, the Fiction: Law and Literature in Modern China @stanfordpress

ICYMI:

Jeffrey C. Kinkley, St. John's University, is the author of Chinese Justice, the Fiction: Law and Literature in Modern China (Stanford University Press, 2000).  Here from the publisher's website is a description of the book's contents.

During the first thirty years under communism, China completely banned crime fiction. After Mao, however, crime genres of all kinds—old and new, Chinese and Western—sprang up in profusion. Crime narrative again became one of the most prolific and best-loved forms of Chinese popular culture, and it often embodied the Chinese people’s most trenchant and open critiques of their newly restored socialist legal system. This is the first full-length study in any language of Chinese crime fiction in all eras: ancient, modern, and contemporary. It is also the first book to apply legal scholars’ “law and literature” inquiry to the rich field of Chinese legal and literary culture. Familiar Holmesian, quintessentially Chinese, and bizarre East-West hybrids of plots, crimes, detectives, judges, suspects, and ideas of law and corruption emerge from the pages of China’s new crime fiction, which is alternately embraced and condemned by the Chinese establishment as it lurches uncertainly toward post-communist society. Informed by contemporary comparative and theoretical perspectives on popular culture and the fiction of crime and detection, this book is based on extensive readings of Chinese crime fiction and interviews—in China and abroad—with the communist regime’s exiled and still-in-power security and judicial officers. It was in the Orwellian year of 1984 that the authorities set out to control China’s crime fiction and even to manufacture it themselves—only to find that fiction, like the social phenomena it depicts, seems destined to remain one step ahead of the law.

Jens Meierhenrich on the Remnants of the Rechtstaat (OUP, 2018) @OUPAcademic

New from Oxford University Press: Jens Meierhenrich, London School of Economics and Political Science, The Remnants of the Rechtsstaat (2018). Here from the publisher's website is a description of the book's contents.

This book is an intellectual history of Ernst Fraenkel's The Dual State (1941, reissued 2017), one of the most erudite books on the theory of dictatorship ever written. Fraenkel's was the first comprehensive analysis of the rise and nature of Nazism, and the only such analysis written from within Hitler's Germany. His sophisticated-not to mention courageous-analysis amounted to an ethnography of Nazi law. As a result of its clandestine origins, The Dual State has been hailed as the ultimate piece of intellectual resistance to the Nazi regime. In this book, Jens Meierhenrich revives Fraenkel's innovative concept of "the dual state," restoring it to its rightful place in the annals of public law scholarship. Blending insights from legal theory and legal history, he tells in an accessible manner the remarkable gestation of Fraenkel's ethnography of law from inside the belly of the behemoth. In addition to questioning the conventional wisdom about the law of the Third Reich, Meierhenrich explores the legal origins of dictatorship elsewhere, then and now. The book sets the parameters for a theory of the "authoritarian rule of law," a cutting edge topic in law and society scholarship with immediate policy implications.

 

Neil Netanel, From Maimonides To Microsoft (OUP, 2018) @OUPAcademic @NeilNetanel

New from Oxford University Press: Neil Weinstock Netanel, UCLA, has published From Maimonides To Microsoft: The Jewish Law of Copyright Since the Birth of Print (2018). Here from the publisher's website is a description of the book's contents.

Jewish copyright law is a rich body of jurisprudence that developed in parallel with modern copyright laws and the book privileges that preceded them. Jewish copyright law owes its origins to a reprinting ban that the Rome rabbinic court issued for three books of Hebrew grammar in 1518. It continues to be applied today, notably in a rabbinic ruling outlawing pirated software, issued at Microsoft's request. In From Maimonides to Microsoft, Professor Netanel traces the historical development of Jewish copyright law by comparing rabbinic reprinting bans with secular and papal book privileges and by relaying the stories of dramatic disputes among publishers of books of Jewish learning and liturgy. He describes each dispute in its historical context and examines the rabbinic rulings that sought to resolve it. Remarkably, the rabbinic reprinting bans and copyright rulings address some of the same issues that animate copyright jurisprudence today: Is copyright a property right or just a right to receive fair compensation? How long should copyrights last? What purposes does copyright serve? While Jewish copyright law has borrowed from its secular law counterpart at key junctures, it fashions strikingly different answers to those key questions. The story of Jewish copyright law also intertwines with the history of the Jewish book trade and with steadfast efforts of rabbinic leaders to maintain their authority to regulate that trade in the face of the dramatic erosion of Jewish communal autonomy in the eighteenth and nineteenth centuries. This book will thus be of considerable interest to students of Jewish law and history, as well as copyright scholars and practitioners.

 

ICYMI: Gemmette on Law and Literature

ICYMI: Elizabeth Villiers Gemmette has published four very useful reference books and collections on law and literature, great additions to the law and literature scholar's bookshelf.

Law and Literature: Legal Themes in Short Stories (Elizabeth Villiers Gemmette, ed., Praeger, 1992).
Law in Literature: An Annotated Bibliography of Law-Related Works (Elizabeth Villiers Gemmette, ed., Whitston Publishing, 1998).

Law in Literature: Legal Themes in American Stories: 1842-1917 (Elizabeth Villiers Gemmette, ed., The Buckingham Group, 2015).

Law in Literature: Legal Themes in Novellas (Elizabeth Villiers Gemmette, ed., The Buckingham Group, 2017).

 She is also the author of Law and Literature: An Unnecessarily Suspect Class in the Liberal Arts Component of the Law School Curriculum, 28 Val. U. L. Rev. 267 (1989), Law and Literature: Joining the Class Action, 29 Val. U. L. Rev.665 (1994/1995), and Filling in the Silence: Domestic Violence, Literature, and Law, 32 Loy. Chi. U. L. J. 91 (2000).

ICYMI: Peters on Law, Literature, and the Vanishing Real: On the Future of an Interdisciplinary Illusion

ICYMI: Julie Stone Peters, Columbia University, on Law, Literature, and the Vanishing Real: On the Future of an Interdisciplinary Illusion, at 2005 PMLA 442. Download the text here.

New From Christopher Schmidt: The Sit-Ins: Protest and Legal Change in the Civil Rights Era @cwschmidt1 ‏

Christopher Schmidt, Chicago-Kent College of Law, has published The Sit-Ins: Protest and Legal Change in the Civil Rights Era (University of Chicago Press, 2018).  Here from the publisher's website is a description of the book's contents.

On February 1, 1960, four African American college students entered the Woolworth department store in Greensboro, North Carolina, and sat down at the lunch counter. This lunch counter, like most in the American South, refused to serve black customers. The four students remained in their seats until the store closed. In the following days, they returned, joined by growing numbers of fellow students. These “sit-in” demonstrations soon spread to other southern cities, drawing in thousands of students and coalescing into a protest movement that would transform the struggle for racial equality.
The Sit-Ins tells the story of the student lunch counter protests and the national debate they sparked over the meaning of the constitutional right of all Americans to equal protection of the law. Christopher W. Schmidt describes how behind the now-iconic scenes of African American college students sitting in quiet defiance at “whites only” lunch counters lies a series of underappreciated legal dilemmas—about the meaning of the Constitution, the capacity of legal institutions to remedy different forms of injustice, and the relationship between legal reform and social change. The students’ actions initiated a national conversation over whether the Constitution’s equal protection clause extended to the activities of private businesses that served the general public. The courts, the traditional focal point for accounts of constitutional disputes, played an important but ultimately secondary role in this story. The great victory of the sit-in movement came not in the Supreme Court, but in Congress, with the passage of the Civil Rights Act of 1964, landmark legislation that recognized the right African American students had claimed for themselves four years earlier. The Sit-Insinvites a broader understanding of how Americans contest and construct the meaning of their Constitution.
 

Shakespeare the Crime Author @CrimeReads @DwyerMurphy

Dwyer Murphy ranks some of Shakespeare's plays as crime fiction, noting that one can see Romeo and Juliet as "gritty urban crime" and Hamlet as a "private eye" drama. Number one on the list? The Scottish play, which is "outlaw noir"--"where morality and time have been turned upside down and a dark shadow has been cast over the land."

More here.

PEN America Announces Writing For Justice Fellowships @PENamerican

PEN America is announcing the Writing for Justice Fellowships. From the website:

PEN America’s $10,000 Writing for Justice Fellowship will commission six writers—emerging or established—to create written works of lasting merit that illuminate critical issues related to mass incarceration and catalyze public debate.The PEN America Writing for Justice Fellowship aims to harness the power of writers and writing in bearing witness to the societal consequences of mass incarceration by capturing and sharing the stories of incarcerated individuals, their families, communities, and the wider impact of the criminal justice system. Our goal is to ignite a broad, sustained conversation about the dangers of over-incarceration and the imperative to mobilize behind rational and humane policies. As an organization of writers dedicated to promoting free expression and informed discourse, PEN America is honored to have been entrusted by the Art for Justice Fund to engage the literary community in addressing this pressing societal issue. 

More information, including the application form, available via the link.

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Farber on Lincoln, Presidential Power, and the Rule of Law

Daniel A. Farber, University of California, Berkeley, School of Law, has published Lincoln, Presidential Power, and the Rule of Law as a UC Berkeley Law Research Paper. Here is the abstract.

Every era has its unique challenges, but history may still offer lessons on how law empowers and restrains presidents. This lecture examines how Lincoln negotiated the tension between crisis authority and the rule of law. This analysis requires an appreciation of the wartime imperatives, institutions, and political forces confronting Lincoln and of the legal framework in which he acted. Similar issues unexpectedly arose in our times in the aftermath of the 9/11 attacks, providing a new point of comparison with Lincoln’s era. We need to better understand how political actors and institutions, the media, and public opinion can provide support for legal norms, lest we place all of our trust in Presidential self-restraint and good judgment.

Download the article from SSRN at the link.

Witt on Two Humanitarianisms in Ambrose Bierce's "An Occurrence at Owl Creek Bridge" @JohnFabianWitt

John Fabian Witt, Yale University Law School, has published Two Humanitarianisms in Ambrose Bierce's 'An Occurrence at Owl Creek Bridge'. Here is the abstract.

The oft-anthologized short story “An Occurrence at Owl Creek Bridge” by Union Army veteran Ambrose Bierce — long a staple of high school curricula and the subject of music videos, television, and film — is not typically thought of as a study in the dilemmas of humanitarian law. But it is. It depicts an execution for violation of the laws of war. Even better, the text embodies a central tension in the laws of war, one that emerged in Bierce’s time and persists today. On the one hand stands a sentimental humanitarianism that aims to minimize the human suffering of war; Henri Dunant’s book, A Memory of Solferino popularized this stance and helped establish the International Committee of the Red Cross in 1863. On the other hand, a righteous humanitarianism chafes at the constraints that sentimental humanitarianism places on the pursuit of justice. Romantic nationalists like the Prussian-American political thinker Francis Lieber, whose code of rules for the Union Army was published a year after Dunant’s book, embrace the righteous justice of particular causes. Bierce’s “Owl Creek” straddles the two planks of the modern laws of war, conveying the power of both views.

Download the article from SSRN at the link.

James Bowman on Television Violence @newcriterion

James Bowman on what we mean by television "violence." From The New Criterion, September 1993.

ICYMI: Clare Clarke's Late Victorian Crime Fiction in the Shadows of Sherlock @victorianclare @Palgrave_

ICYMI: Clare Clarke, Trinity College Dublin, has published Late Victorian Crime Fiction in the Shadows of Sherlock (Palgrave Macmillan, 2014). Here from the publisher's website is a description of the book's contents.

This book investigates the development of crime fiction in the 1880s and 1890s, challenging studies of late-Victorian crime fiction which have given undue prominence to a handful of key figures and have offered an over-simplified analytical framework, thereby overlooking the generic, moral, and formal complexities of the nascent genre.

Link to the US publisher's webpage here. 

ICYMI: Strain on "The Winter's Tale" and the Oracle of the Law

ICYMI:

Virginia Lee Strain, The Winter's Tale and the Oracle of the Law, 78 ELH 557 (Fall 2011).

Virginia Lee Strain, Legal Reform in English Renaissance Literature @jcalvo11 @EdinburghUP

Virginia Lee Strain, Loyola University (Chicago), has published Legal Reform in English Renaissance Literature (Edinburgh University Press, 2018). Here from the publisher's website is a description of the book's contents.

This book investigates rhetorical and representational practices that were used to monitor English law at the turn of the seventeenth century. The late-Elizabethan and early-Jacobean surge in the policies and enforcement of the reformation of manners has been well-documented. What has gone unnoticed, however, is the degree to which the law itself was the focus of reform for legislators, the judiciary, preachers, and writers alike. While the majority of law and literature studies characterize the law as a force of coercion and subjugation, this book instead treats in greater depth the law’s own vulnerability, both to corruption and to correction. In readings of Spenser’s Faerie Queene, the Gesta Grayorum, Donne’s ‘Satyre V’, and Shakespeare’s Measure for Measure and The Winter’s Tale, Strain argues that the terms and techniques of legal reform provided modes of analysis through which legal authorities and literary writers alike imagined and evaluated form and character.

 

Via @jcalvo11.

"Where Do You Get Your Ideas?" @MphilPopLitTCD

A helpful page on exploring the possible influences on Victorian and Edwardian age crime and mystery writers in the UK using digital resources available through the New York Public Library. BTW, it's "Sir Arthur," not "Sir Doyle," as TCD MPhil Pop Lit @MphilPopLitTCD points out. Nevertheless, very interesting materials inviting readers to do their own investigations into the law and culture of policing and detecting in the late nineteenth and early twentieth centuries.

In addition to Doyle, other turn of the 20th century and Golden Age writers who used real crime to inspire their novels include Edgar Allan Poe,

Here's a very selected bibliography of secondary works that discuss the subject.

The Cambridge Companion To Crime Fiction (Martin Edwards, ed., Cambridge University Press, 2003).

Guillaume Foussard, The Emergence of French Crime Fiction During the Nineteenth Century.

Stephen Knight, The Mysteries of the Cities: Urban Crime Fiction in the Nineteenth Century (McFarland, 2011).

Stephen Knight, Towards Sherlock Holmes: A Thematic History of Crime Fiction in the 19th Century World (McFarland, 2016).

J. Kingston Pierce, Gaslight and Gunplay: Digging Up Crime Fiction's 1800s Roots.

Julian Symons, Bloody Murder: From the Detective Story to the Crime Novel: A History (2d ed.) (Penguin Books, 1986).



See also the Indiana University Libraries' excellent webpage on The First Hundred Years of Detective Fiction, 1841-1941 and the British Library's page on Crime and Crime Fiction.