A Collection on Fatal Fictions: A New Book on Law and Criminal Literature from Oxford University Press @OxUniPress

The Law Library has sent me up a copy of the new publication Fatal Fictions: Crime and Investigations in Law and Literature (Alison L. LaCroix, Richard H. McAdams, and Martha C. Nussbaum, eds., Oxford University Press, 2017). It includes an introduction by Scott Turow.  Link to the Table of Contents here.


Here's a description of the book's contents, courtesy of the publisher's website.

Writers of fiction have always confronted topics of crime and punishment. This age-old fascination with crime on the part of both authors and readers is not surprising, given that criminal justice touches on so many political and psychological themes essential to literature, and comes equipped with a trial process that contains its own dramatic structure.

 This volume explores this profound and enduring literary engagement with crime, investigation, and criminal justice. The collected essays explore three themes that connect the world of law with that of fiction. First, defining and punishing crime is one of the fundamental purposes of government, along with the protection of victims by the prevention of crime. And yet criminal punishment remains one of the most abused and terrifying forms of political power. Second, crime is intensely psychological and therefore an important subject by which a writer can develop and explore character. A third connection between criminal justice and fiction involves the inherently dramatic nature of the legal system itself, particularly the trial. Moreover, the ongoing public conversation about crime and punishment suggests that the time is ripe for collaboration between law and literature in this troubled domain.

The essays in this collection span a wide array of genres, including tragic drama, science fiction, lyric poetry, autobiography, and mystery novels. The works discussed include works as old as fifth-century BCE Greek tragedy and as recent as contemporary novels, memoirs, and mystery novels. The cumulative result is arresting: there are "killer wives" and crimes against trees; a government bureaucrat who sends political adversaries to their death for treason before falling to the same fate himself; a convicted murderer who doesn't die when hanged; a psychopathogical collector whose quite sane kidnapping victim nevertheless also collects; Justice Thomas' reading and misreading of Bigger Thomas; a man who forgives his son's murderer and one who cannot forgive his wife's non-existent adultery; fictional detectives who draw on historical analysis to solve murders. These essays begin a conversation, and they illustrate the great depth and power of crime in literature.

Hill on Cheap Sentiment and "Dances With Wolves"

Claire A. Hill, University of Minnesota Law School, is publishing Cheap Sentiment in volume 81 of Law and Contemporary Problems (2018). Here is the abstract.

The Oscar-winning 1990 movie Dances With Wolves tells the story of Lieutenant John Dunbar, a Union officer who adopts a Sioux identity and name. The New York Times explained the movie’s appeal: “[A]n appealing hybrid, a western without guilt,” it enabled viewers to “enjoy a rousing old adventure and still feel they can save the planet.” A (white) person watching the movie could feel a virtuous identification with the Indians, and imagine that had he existed at the time, he too would have fought the good fight, and espoused pro-Indian laws and policies without having to do anything perilous, or really, anything at all. This article, in a symposium issue on Altruism, Community and Markets, labels this phenomenon “cheap sentiment.” Cheap sentiment is like cognitive dissonance and various forms of hypocrisy, but focuses on societal, external effects. A person gets the benefit of holding a particular ‘virtuous’ belief without incurring the cost; if the person acts, or presses for action to be taken, in furtherance of the belief, the cost may even be externalized—society bears the cost. Consider a person who objects to payment for organs as ‘commercializing what should be given freely’ when neither she nor anyone close to her is in need of organs. The same person, if she or a loved one needed organs, might (or might not) have a different view. Consider also people who object to low wages and unsafe working conditions in emerging economies, but who nevertheless buy the resultant products-- products whose (low) prices reflect how little was spent on labor and safer working conditions. Other examples discussed include differential pricing and NIMBY. The article argues that cheap sentiment adversely affects policy-making, especially insofar as it short-circuits (and sometimes even demonizes) due consideration of market-oriented solutions. My hope is that by characterizing the phenomenon of cheap sentiment as a pathology, and accommodation to it as problematic and not inevitable, my framing can serve as a needed counterweight, enabling such solutions to be given due consideration.

Download the article from SSRN at the link.

So, Is "The Americans" a Field Guide to Spotting Spies? @Variety @Danielletbd

In this article for Variety, Danielle Turchiano examines the popular culture image of the CIA on the hit FX television series The Americans (2013-2018) with the assistance of real life agents Martha Peterson and Mark Kelton. (And probably not a good idea to call them "spooks." Here's a guide to some agent lingo).

More about the show's March 28 finale in this Vox article and about the show generally in this Variety article.

A (very) selected bibliography on the spy and popular culture here.

Thomas Andrae, Television's First Feminist: "The Avengers" and Female Spectatorship, 18 Discourse 112-136 (Spring 1996).

Lisa Marie Bidlingmeyer, How the TV Image Destabilizes Identity in TV Spy Series (Thesis, MIT, 2007).

Wesley Britton, Spy Television (Praeger, 2004) (The Praeger Television Collection).

Christine Alice Corcos, "I Am Not a Number! I Am a Free Man!": Physical and Psychological Imprisonment in Science Fiction, 25 Legal Studies Forum 471 (2001) (discussing the series The Prisoner).

Luis M. Garica-Mainar, The Return of the Realist Spy Film, Cineaction 12-19 (2012).

Jon Heitland, The Man From U.N.C.L.E. Book: The Behind-the-Scenes Story of a Television Classic (St. Martin's Press, 1987).

Michael Kackman, Citizen Spy: Television, Espionage, and Cold War Culture (University of Minnesota Press, 2005) (Commerce and Mass Culture Series).

Stephen Keane, America (sic) Exceptionalism in Television Spy Dramas: Mainstreaming American With "I Spy," "Sleeper Cell," and "24"? (Thesis, Georgetown, 2007).

Tom Lisanti and Louis Paul, Film Fatales: Women in Espionage Films and Television, 1962-1973 (McFarland and Company, 2002).

J. Fred MacDonald, The Cold War As Entertainment In 'Fifties Television, 7 Journal of Popular Film and Television 3-31 (1978).

Trevor McCrisken, The Housewife, the Vigilante, and the Cigarette-Smoking Man: The CIA and Television, 1975-2001, 100 History: The Journal of the Historical Association 293-310 (April 2015).

Alan Nadel, Citizen Spy: Television, Espionage, and Cold War Culture, 60 Film Quarterly 71-72 (Summer 2007).

N. S. Stone, A Reader's Guide to the Spy and Thriller Novel (G. K. Hall, 1997).

Asses and Idiots and Dickens, Oh, My! @TheNLJ

Marcia Coyle examines the uses of Dickensian quotes in legal opinions in this piece for The National Law Journal, pointing out that Justice Alito's insertion of the phrase "the last is a ass--a idiot in the recently decided Collins v. Virginia is the latest appearance in a series that includes Justice Brennan's use in In re Sawyer, and Justice Stevens' in Califano v. Goldfano. Now Justice Ginsburg argued that case before the Court, by the way.

The phrase is a popular one with the judiciary. I'll cite just two other cases. See Judge Brorby, in dissent in Guidry v. Sheet Metal Workers Nat'l Pension Fund (10th Circuit) (he also cites Sam Ervin, "The rain it raineth on the just/And also on the unjust fella:/But chiefly on the just, because/The unjust steals the just's umbrella." And see Stone v. Essex County Newspapers, Inc (Massachusetts Supreme Judicial Court).  

The question thus arises whether the burden of adducing "clear"evidence on an issue is less than the burden of adducing "clear and convincing" evidence on an issue. If these phrases are not mere rhetoric, then each must set a precise, independent standard. If we hold, as the court apparently does, that one implication of the existence of such precise, independent standards is that juries must be instructed to find facts according to those standards, we raise the spectre of requiring trial judges in defamation cases to instruct juries as to four separate and distinct burdens of proof, falling variously on the plaintiff and defendant. That is to say that since the court today defines "clear and convincing" evidence as that which would satisfy a burden somewhere between those imposed by the ordinary preponderance of the evidence and reasonable doubt standards utilized in civil and criminal cases, and since "clear" evidence is presumably stronger than a preponderance of the evidence but not so strong as "clear and convincing" evidence, then a trial judge must instruct the jury as to the meaning of: (1) "a preponderance" of the evidence, by which most of the facts in issue must be found, (2) "beyond a reasonable doubt," so that the standard can help define other terms, (3) "clear and convincing" evidence, by which malice must be proved, and (4) "clear" evidence, by which the public character of the plaintiff's personality must be proved. A juror listening to a judge instructing him to draw such fine distinctions in his levels of belief would likely agree with Mr. Bumble: "If the law supposes that, . . . the law is a ass, a idiot."

On Charles Dickens and the law here's a selected bibliography.

Robert Coles, Charles Dickens and the Law, 59 The Virginia Quarterly 564 (Fall 1983).

Thomas Alexander Fyfe, Charles Dickens and the Law (Lawbook Exchange, 2006 (reprint 1910).

William S. Holdsworth, Charles Dickens as a Legal Historian (Lawbook Exchange, 1995) (reprint).

Anny Sadrin, Parentage and Inheritance in the Novels of Charles Dickens (Cambridge University Press, 1994)

Larry M. Wertheim, Law, Literature, and Morality in the Novels of Charles Dickens, 20 Wm. Mitchell L. Rev. 111 (1994).

Kearley on Roman Law Scholarhip and Translation in Early Twentieth-Century America

Timothy G. Kearley, University of Wyoming College of Law, has published Roman Law Scholarship and Translation in Early Twentieth-Century America. Here is the abstract.

This article provides an overview of the book Lost in Translations, which examines the lives and work of five twentieth century American Roman law translator-scholars: Wyoming Supreme Court Justice Fred H. Blume (1875-1971), who single-handedly translated Justinian’s Code and Novels; gentleman-scholar Samuel Parsons Scott (1846-1929) and classics professor Clyde Pharr (1883-1972), both of whom created massive translations of ancient Roman law; Charles Phineas Sherman (1874-1962), a lawyer-professor who translated some Roman law and wrote prolifically about it; and, finally, Charles Sumner Lobingier (1866-1956), a judge-professor who wrote about Roman law, translated a little, championed the publication of Scott’s work, and was connected to all of the others. All of these men were prominent during their lifetimes but are largely forgotten now. It is hoped that Lost in Translations will draw attention to the work these extraordinary men did and stir an interest to our classical past.

Download the article from SSRN at the link.

Wauters and de Benito on The History of Law in Europe: An Introduction: New From Edward Elgar @ElgarPublishing

Bart Wauters and Marco de Benito, both Professors of Law, IE University (Spain), have published The History of Law in Europe: An Introduction (Edward Elgar Publishing, 2018). Here from the publisher's website is a description of the book's contents.

Comprehensive and accessible, this book offers a concise synthesis of the evolution of the law in Western Europe, from ancient Rome to the beginning of the twentieth century. It situates law in the wider framework of Europe’s political, economic, social and cultural developments. Offering a readily graspable and sound structure, chapters are organized according to the civil law systems and common law systems. Each chapter is built around the evolution of the four sources of the law: legal science, legislation, courts and customary law, set chronologically against the relevant historical context. Throughout this in-depth presentation of the key determinants in European legal history, Bart Wauters and Marco de Benito allow readers to understand how the law arose and evolved in Europe as a shared language, of which its different national laws are but dialectal expressions – with the unique exception, perhaps, of English common law, whose peculiarity is likewise due to accidents of history which are themselves explored. With its elegant comparative approach, this book will appeal to European Law students and scholars looking for a concise, yet academically sound, account of the history of law in Europe.

Dostoyevsky's Influence on the True Crime Genre

Jennifer Wilson, a post-doctoral fellow at the University of Pennsylvania, discusses Feodor Dostoyevsky's relationship to today's extremely popular true crime genre (here, for the New York Times).  She says in part,

[T]oday’s true crime resurgence has an antecedent in the works of Fyodor Dostoyevsky, the Russian author of numerous novels about murder including, most famously, “Crime and Punishment.” Dostoyevsky was obsessed with the judiciary. He spent considerable time watching trials, debating with lawyers about the nature of innocence and guilt, visiting the accused in prison and trying to sway public opinion about certain cases. So enmeshed were Dostoyevsky and his writing in the legal consciousness of czarist Russia that defense attorneys were known to invoke Rodion Raskolnikov, the charismatic murderer-protagonist of “Crime and Punishment,” when seeking sympathy from the jury.

Zinos on Fundamental Rights in Early American Case Law: 1789-1859

Nicholas Zinos, Mitchell Hamline School of Law, is publishing Fundamental Rights in Early American Case Law: 1789-1859 in volume 7 of the British Journal of American Legal Studies (2018). Here is the abstract.

Fundamental Rights Law is a ubiquitous feature of modern American jurisprudence. Where did the term “Fundamental Rights” come from, and how was it applied in early American case law? This article outlines the genesis of fundamental rights law in early 17th century England and how this law developed and was applied over time. The English Bill of Rights of 1689 was the first attempt to codify these rights in English law. When the English legal system emigrated to America along with the early American colonists, it included the English conception of fundamental rights. The framers of the United States Constitution incorporated and expanded these rights. Early American Case law kept strictly within this tradition for the most past, and used the term “fundamental rights” usually for rights which had long been recognized in Anglo-American society. This article notes the concordance between the application of fundamental rights in early American case law and the long tradition of fundamental rights which ripened in the Anglo-American legal tradition.

Download the article from SSRN at the link.

Mirow on Spanish Law and Its Expansion

M. C. Mirow, Florida International University, College of Law, is publishing Spanish Law and Its Expansion in the Oxford Handbook of European Legal History (Pihlajamäki, Dubber & Godfrey, eds., Oxford: Oxford University Press, 2018) (Forthcoming). Here is the abstract.

This chapter provides an overview of the legal aspects of Spain's enterprise in the Americas. It addresses the uses of law in discovery, exploration and conquest; Castilian law before its expansion to new territories; the use of law to justify conquest; slavery and indigenous labour; institutions; sources of law; legal actors; and Spanish law after independence. It also presents some of the present debates surrounding the nature and construction of derecho indiano.

Download the essay from SSRN at the link.

Shaviro on Gilded Age Literature and Inequality @DanielShaviro

Daniel Shaviro, New York University School of Law, has published Gilded Age Literature and Inequality. Here is the abstract.

We are an intensely social species, and often a rivalrous one, prone to measuring ourselves in terms of others, and often directly against others. Accordingly, relative position matters to our sense of wellbeing, although excluded from standard economic models that look only at the utility derived from own consumption of commodities plus leisure. For example, people can have deep-seated psychological responses to inequality and social hierarchy, creating the potential for extreme wealth differences to invoked feelings of superiority and inferiority, or dominance and subordination, that may powerfully affect how we relate to each other. The tools that one needs to understand how and why this matters include the sociological and the qualitative. In my book-in-progress, Dangerous Grandiosity: Literary Perspectives on High-End Inequality Through the First Gilded Age, I use the particular tool of in-depth studies of particular classic works of literature (from Jane Austen’s Pride and Prejudice through Theodore Dreiser’s The Financier and The Titan) that offer suggestive insights regarding the felt experiences around high-end inequality at different times and from different perspectives. A successor volume will carry this account through the twentieth century and up to the present. On May 17, 2018, at Stanford Law School, I gave a talk on the book project in general, and a chapter on E.M. Forster’s Howards End in particular. This paper offers the approximate text of that talk.

Download the article from SSRN at the link.

Nijman on Seeking Change By Doing History

Janne Elisabeth Nijman, T. M. C. Asser Institut, Amsterdam Center for International Law, University of Amsterdam, has published Seeking Change by Doing History (2018). Here is the abstract.

In her Inaugural Lecture Janne E. Nijman explores the so-called ‘Turn to History’ in international legal scholarship. Interest in the intellectual history or ‘history of ideas’ of international law has surged around the last turn of the century. A new sub-field has thus emerged: ‘History and Theory of International Law’. Nijman contextualises this development and stages three possible approaches of why and how to study ideas and theories of the past. A central proposition is that the field of ‘History and Theory of international Law’ ultimately aims to establish a dialogue between international legal thought then and now. In this way (and by employment of e.g. the Cambridge School method) a critical distance emerges with respect to our own international legal thinking and its underlying political and moral ideas. The meaning of international law ideas changes through time – in the study thereof lies the critical potential and value for our own thinking. International law is often presented as an emancipatory, progressive project in which human dignity has come to be increasingly well-protected. With the ‘turn to history’ however the dark sides of international law, including the influence of European – also Dutch – colonial expansion on the development of international law (and vice versa), come to the fore. Studying for example the thought of Hugo de Groot uncovers this ambivalence. Nonetheless Grotius’ humanist thinking about humankind, society, and (international) law also opens up space for a perspective alternative to the ‘Hobbesian’ international order. Fundamental issues then are: who counts within the international legal order, and on which moral and political presuppositions is this order built? This Lecture makes a connection to the work of the French philosopher Paul Ricoeur and points to a possible alternative line of reasoning in which the concept of international legal personality functions as a starting point for questions about just international institutions and law. These are urgent questions at a time of globalisation, interdependency and hyperconnectivity, in which citizens are highly critical towards European and international/global institutions.

Download the lecture from SSRN at the link.

ABA Announces Silver Gavel Awards Winners For 2018 @ABAesq

The American Bar Association has announced the winners of the 2018 Silver Gavel Awards for Media and the Arts.

BOOKS

Silver Gavel: Unwarranted: Policing Without Permission, by Barry Friedman.
Honorable Mention: In Praise of Litigation, by Alexandra Lahav.

DOCUMENTARIES
Silver Gavel: And Then They Came for Us, by Ginzberg Productions.
Honorable Mention: They Call Us Monsters, by BMP Films.

DRAMA & LITERATURE
Silver Gavel: Marshall, directed and produced by Reginald Hudlin.

NEWSPAPERS
Silver Gavel: “Death-Penalty Defense Drama at Guantánamo War Court,” featured in the Miami Herald.
Honorable Mention: “Secrecy Rules,” featured in the Star Tribune of Minneapolis, Minnesota.

RADIO
Silver Gavel: Breakdown Season 6: A Jury of His Peers, by the Atlanta Journal-Constitution.
Honorable Mention: Null and Void, by Radiolab at WNYC.

TELEVISION
Silver Gavel: Abacus: Small Enough to Jail, by PBS Distribution, Frontline and ITVS.

The ABA has awarded Silver Gavels every year since 1958. ABA President Hilarie Bass will present the winners and honorable mentions on July 17 at the National Press Club in Washington D.C.

Maillard on Hollywood Loving @noblemaillard

Kevin Noble Maillard, Syracuse University College of Law, is publishing Hollywood Loving in volume 86 of the Fordham Law Review (2018). Here is the abstract.

In this Essay, I highlight how nongovernmental entities establish political, moral, and sexual standards through visual media, which powerfully underscores and expresses human behavior. Through the Motion Picture Production Code (the “Hays Code”) and the Code of Practices for Television Broadcasters (the “TV Code”), Americans viewed entertainment as a pre-mediated, engineered world that existed outside of claims of censorship and propaganda. This Essay critically examines the role of film and television as persuasive and integral legal actors and it considers how these sectors operate to maintain, and sometimes challenge, racial order.

Download the Essay from SSRN at the link.

Goold on the Lost Tort of Moral Rights Invasion @harvard_law

Patrick Russell Goold, Harvard Law School, is publishing The Lost Tort of Moral Rights Invasion in the Akron Law review. Here is the abstract.

Moral rights are often portrayed as an unwelcome import into U.S. law. During the nineteenth century, European lawmakers, influenced by personality theories of authorship, began granting authors rights of attribution and integrity. However, while these rights proliferated in Europe and international copyright treaties, they were not adopted in the United States. According to a common historical narrative, U.S. courts and lawmakers resisted moral rights because they were deemed incompatible with the copyright tradition of treating expressive works as alienable property. What little moral rights U.S. law provides today is thus seen as a necessary evil, grudgingly accepted, simply to comply with international obligations. This Article presents a history of moral rights protection that challenges, to a degree, that common historical narrative. The Article tracks how American courts adjudicated attribution and integrity disputes during the twentieth century. Doing so not only reveals that the American judiciary was more sympathetic to these claims than commonly appreciated, but, even more surprisingly, came close to developing a tort of moral rights invasion. While copyright historians know that courts have long provided proxy protection for moral rights under preexisting common law causes of action (e.g., defamation, unfair competition, privacy, etc.), what is not widely known is how frequently courts were willing to protect attribution and integrity interests directly under the banner of moral rights. This Article tells the story of how courts in the mid-twentieth century, applying state law, increasingly articulated a "sui generis tort" of moral rights invasion. It then proceeds to question why the moral rights tort stagnated and was forgotten about in the late twentieth century.

Download the article from SSRN at the link. Cross-posted to Media Law Prof Blog.

Cummings on Law and Social Movements: Reimagining the Progressive Canon

Scott L. Cummings, UCLA School of Law, is publishing Law and Social Movements: Reimagining the Progressive Canon in the Wisconsin Law Review (2018). Here is the abstract.

This Article examines the “progressive legal canon” — iconic legal campaigns to advance progressive causes — and explores the implications of canon construction and critique for the study of lawyers and social movements. Looking backward, it reflects on why specific cases, like Brown v. Board of Education and Roe v. Wade, have become fundamental to progressive understandings of the role that lawyers play in social movements and how those cases have come to stand for a set of warnings about lawyer and court overreach. It then explores what might be gained from constructing a contemporary progressive legal canon and under what criteria one would select cases for inclusion. A core contribution of the Article is to synthesize examples of significant contemporary campaigns that respond to original canon concerns and complicate notions of lawyering in current movements of social import around labor, the War on Terror, LGBT rights, immigrant rights, and racial justice. The comparison of old canon to new yields an important insight. Although the form of legal mobilization is generally quite different in contemporary campaigns, with greater emphasis on constituent accountability and integrated advocacy, the outcome is often quite familiar: legal success and positive change alongside weak implementation, countermobilization, and intramovement dissent. Although the comparison is not systematic, it points toward a potentially significant conclusion: that the progressive critique of old canon lawyering is misplaced. What stymied old canon campaigns was not an overreliance on law or top-down planning, but rather the inevitable pushback by more powerful forces, causing gains to slide back or be undercut in the enforcement stage and aggravating internal movement debates over goals and strategies.

Download the article from SSRN at the link.

Wildenthal on Shapiro "On the Media": Name-Calling and Bullying Students and Doubters @tjsl

Bryan H. Wildenthal, Thomas Jefferson School of Law, is publishing Shapiro 'On the Media': Name-Calling and Bullying Students and Doubters in the Shakespeare Oxford Fellowship Newsletter (2018). Here is the abstract.

For far too long, when it comes to the Shakespeare Authorship Question (SAQ), orthodox academics, whatever their motivations, have largely avoided the simple duty that any serious scholar has: to engage forthrightly with the evidence. Instead, such scholars, when they deign to mention the SAQ at all, have focused almost entirely on trying to denigrate or psychoanalyze authorship doubters. In its most insulting and ridiculous forms, this has involved suggestions of snobbery or even mental illness. A milder version — almost more maddeningly smug and condescending — has been to retreat behind a fog of fashionable academic jargon, analyzing authorship doubt as a purely contingent product of modern times and cultural preoccupations. This was largely the approach taken by English Professor James Shapiro of Columbia University in his book about the SAQ, "Contested Will" (2010). Somehow, from the orthodox perspective, it is never about the simple factual and historical issue at the heart of the SAQ: Does the available evidence, fully considered in context, raise reasonable questions about who actually wrote these particular works of literature? Professor Shapiro spoke at length about the SAQ in a December 2016 interview with Brooke Gladstone on her public radio show "On the Media." This essay criticizes the way in which both Shapiro and Gladstone approached the SAQ, especially the troubling implications of Shapiro's comments for how Shakespeare authorship doubters, especially students, should be treated.

Download the article from SSRN at the link.

ICYMI: Christiana Gregoriou, Crime Fiction Migration (Bloomsbury, 2017) @c_gregoriou @BloomsburyBooks

ICYMI: Christiana Gregoriou, Crime Fiction Migration: Crossing Languages, Cultures and Media (Bloomsbury Publishing, 2017) (Advances in Stylistics). Here from the publisher's website is a description of the book's contents.

Crime narratives form a large and central part of the modern cultural landscape. This book explores the cognitive stylistic processing of prose and audiovisual fictional crime 'texts'. It also examines instances where such narratives find themselves, through popular demand, 'migrating' - meaning that they cross languages, media formats and/or cultures. In doing so, Crime Fiction Migration proposes a move from a monomodal to a multimodal approach to the study of crime fiction. Examining original crime fiction works alongside their translations, adaptations and remakings proves instrumental in understanding how various semiotic modes interact with one another. The book analyses works such as We Need to Talk About Kevin, The Killing trilogy and the reimaginings of plays such as Shear Madness and films such as Funny Games. Crime fiction is consistently popular and 'on the move' - witness the spate of detective series exported out of Scandinavia, or the ever popular exporting of these shows from the USA. This multimodal and semiotically-aware analysis of global crime narratives expands the discipline and is key reading for students of linguistics, criminology, literature and film.

ICYMI: Crime Fiction as World Literature (Bloomsbury Publishing, 2017) @jcalvo11 @BloomsburyBooks

Via @jcalvo 11:

ICYMI: Crime Fiction as World Literature (Louise Nilsson, David Damrosch, and Theo D'haen, eds., Bloomsbury Publishing 2017). Here from the publisher's website is a description of the book's contents.

While crime fiction is one of the most widespread of all literary genresSchedule
, this is the first book to treat it in its full global is the first book to treat crime fiction in its full global and plurilingual dimensions, taking the genre seriously as a participant in the international sphere of world literature. In a wide-ranging panorama of the genre, twenty critics discuss crime fiction from Bulgaria, China, Israel, Mexico, Scandinavia, Kenya, Catalonia, and Tibet, among other locales. By bringing crime fiction into the sphere of world literature, Crime Fiction as World Literature gives new insights not only into the genre itself but also into the transnational flow of literature in the globalized mediascape of contemporary popular culture.

ICYMI: Bateman on the Supreme "Courts" of the Roman Empire @cg_bateman

ICYMI:

C. G. Bateman, University of British Columbia Faculty of Law, has published The Supreme 'Courts' of the Roman Empire: Constantine’s Judicial Role for the Bishops. Here is the abstract.

Constantine, the Roman Emperor from 312-337, was a law-giver who first put the Christian Church in the place of primacy in the organization of the state that it only lost as recently as the seventeenth century; as such, he is very important to legal and social history in the Western experience. This thesis explores the degree to which the Emperor Constantine’s adoption and adaptation of the Christian religion’s bureaucratic structure affected the social and legal order of the Roman state bureaucracy in the fourth century: I do this by examining both the question of his legislation pertaining to making bishops judges and the legal nature of his relationship with the bishops which developed as they appealed their own decisions to his imperial court, specifically in both the Donatist and Arian crises. Constantine’s two pieces of legislation that most directly bear on this question come from 318 and 333: Codex Theodosianus (CTh) 1.27.1 and Sirmondian Constitution (Sirm.) 1, respectively. In the first, an edict, Constantine allows that any litigant may have their case transferred to a bishop’s court if they so choose, but he is careful to emphasize the right of the presiding judge to make this transfer official. In the second, a rescript, Constantine significantly expands the powers of the bishop’s as judges, and indicates that, among other things, just as with decision of the praetorian prefects, any decision of a bishop is not subject to appeal. In this way, the bishop’s court seemed to be positioned by Constantine as an appeal court of kinds, but in practice and according to the small amount of evidence we have on the subject, these courts, the episcopalis audentia, heard most legal matters as a working court of first instance, like that of any other local magistrate. The uniqueness of the court is evident not so much in their powers as judges, but in the fact that they began to hear matters between litigants applying Roman law to enforce their rights. The focus of my research is the seeming expansion of powers that Constantine gives to the bishops from the first to the second piece of legislation. The 333 rescript was actually a reply to the Prefect of Rome, Ablavius, who was questioning the use of the Edict of 318, and because of this, perhaps, we learn a great deal more about what Constantine wanted that earlier law to mean in 333, but whether he initially had this in mind is unknown since the first piece of legislation was very brief. I argue that he did not have this in mind, and that only after his relationship with the bishops grew in the intervening years, highlighted jointly by his blatant adoption of the Christian religion and subsequently assuming state responsibility for their protection and dispute settlement mechanism at the Council of Nicaea in 325, would such expansion of judicial authority make any reasonable sense. The emperor was in some ways compelled into a relationship with the Church because of the internecine conflicts within it which threatened the stability of his Empire, the two most important being the Donatist and Arian crises.

Download the article from SSRN at the link.

ICYMI: Finkelman on Frederick Douglass's Constitution @PaulFinkelman @GratzCollege

ICYMI: Paul Finkelman, Gratz College, has published Frederick Douglas's Constitution: From Garrisonian Abolitionist to Lincoln Republican at 81 Missouri Law Review 1 (2016). Here is the abstract.

This Article explores how the great black abolitionist Frederick Douglass was both a constitutional actor and a constitutional theorist. Unlike most constitutional actors, Douglass was not a judge, lawyer, professor, or an elected official. Nevertheless, throughout much of his life, Douglass shaped the Constitution through his actions. He was also shaped by the Constitution as he went from being a fugitive slave – and thus an “object” of the Constitution – to being a free citizen and an appointed officeholder. He became a constitutional theorist who brought his theories into action through his speeches, writings, and activities as an abolitionist, as an antislavery activist, and then as a spokesman for African Americans during the Civil War. This Article provides insights into antebellum constitutional thought and the background to the Fourteenth Amendment. This Article also explores our understanding of the Constitution and its relationship to slavery through the lens of Frederick Douglass. First, the Article looks at how the Constitution impacted Douglass and how Douglass was himself a “constitutional actor,” even though he held no public office and was not even considered a U.S. citizen under the holding in Dred Scott v. Sandford. For example, Douglass was a constitutional actor when he escaped from slavery – and thus came under the Fugitive Slave Act of 1793 and Article IV, Section 2, Clause 3 of the Constitution; when he married in New York but was still a fugitive from Maryland; when he applied for, and received, a copyright for his first autobiography, even though he was a fugitive slave at the time; and when he left the United States for Great Britain without a passport. This Article also explores Douglass’s constitutional theories and understandings and how he used the Constitution to oppose slavery. I argue, in part, that his understanding of the Constitution and his approach to constitutional interpretation changed as his life circumstances changed. Thus, when he returned from England, he was a free man because British friends had purchased his liberty. This led him to a new understanding of how to approach the Constitution and how to fight slavery under the Constitution. While essentially a work of legal history, this Article also offers ways of understanding constitutional theory and the elements of being a constitutional actor. The Article also raises issues of interstate comity and the recognition in one state of a status created in another. While not explicitly stated – because this is a work of legal history – this Article obviously has implications for modern issues surrounding marriage equality, child-custody based on interstate recognitions of status changes, the interstate recognition of gender transitions, and the legal rights of non-citizens within the United States.

Download the article here.

Oguamanam on Traditional Knowledge and the "Public Domain" Revisited @Chidi_Oguamanam @

Chidi Oguamanam, University of Ottawa, Common Law Section, has published Wandering Footloose: Traditional Knowledge and the 'Public Domain' Revisited at 2018 JWIP 1. Here is the abstract.

Ongoing interdisciplinary theoretical interests over the “ownership of culture” is a complex conversation that has pitched traditional knowledge (TK) and its holders against other knowledge systems in a manner that implicates significant power relations and plural philosophical orientations over the governance of knowledge. Nowhere is the pressure on TK more pronounced than in the new- found interest of the United States and its allies over the public domain, as evident in the work of the WIPO's special committee charged with negotiating sets of legal instruments for effective protection of TK, genetic resources, and folklore (a.ka. traditional cultural expressions). TK stakeholders are put on the defensive on the assumption that effective protection of TK would undermine the public domain. Ironically, led by the United States, countries who worked tirelessly over the decades to ratchet up intellectual property protection at the expense of the public domain have now reconstituted themselves into its later day champions when it comes to TK. However, it is not as if the Indigenous and local community custodians of TK have no approximation of the public domain in their customary laws, practices and dealings with knowledge production. There has yet to be an interest in non-Eurocentric conceptions of the public domain. Such an interest presents an opportunity to revisit the public domain imperative in order to adumbrate an inclusive and multicultural jurisprudence of the phenomenon.

Download the article from SSRN at the link.

Evil Women: An Inclusive Interdisciplinary Conference, December 1-2, 2018, Vienna, Austria @ProgConnex

Via Thom Giddens, Co-Director, Centre for Law and Culture, St. Mary's University @thomgiddens:

Evil Women: Women and Evil, an Inclusive Interdisciplinary Conference, December 1-December 2, 2018, Vienna, Austria. Submit proposals by June 8, 2018. Here's a description of the conference.

Few things capture the human imagination as much as evil, a notoriously slippery concept that enjoys universal recognition yet defies easy definition. As a term which is frequently used in relation to people who commit appalling crimes, it provides a useful means of describing unimaginable wickedness and is bandied about in popular culture (particularly by the tabloid press) as a way of explaining behaviours which defy belief. Evil is something ‘more than’ doing something morally wrong, ‘more than’ simply committing a crime, ‘more than’ an act of senseless slaughter. Defining that ‘more than’ is difficult: it is precisely this elusive quality which seems to make an act, or a person, evil.
In many cultures, women have been long suspected as the source of sundry human miseries, however basic to society they may be. While ideals of purity and dedication to family have been exalted and feminine beauty lauded, women have been viewed as embodying sinister forces of evil. Mistrusted as seductive and beguiling, women are often thought of as vengeful, manipulative and even malevolent. In grappling with our understanding of what it is to be ‘evil’, the project aims to shine a spotlight on this dark area of the human condition and explore the possible sources of the fear and resentment of women.
Women are not expected to behave in aberrant or illegal ways and we will consider the structural and systemic reasons for the heightened interest, repulsion, condemnation – and even hatred – that feminine transgression generates. Women are condemned not only for what they do but also for what they fail to do; those who harbour, lie for and couple with nefarious men are seen to have failed in their duty as gatekeepers of male morality. Where women themselves are accused of evil they are typically judged more harshly than their male counterparts, as evil acts committed by women are seen to transgress not just legal and moral boundaries but also those imposed by gender.
Against this backdrop, this conference will explore the various conjunctions between evil, women and the feminine. We invite participants to explore evil women/women and evil from the full range of disciplinary, professional and social perspectives. The aim is to generate an inclusive dialogue involving researchers, practitioners, artists, activists, legal professionals, clinicians, social workers, representatives from the voluntary sector, individuals whose lives have been impacted by feminine evil and others with an interest in the field. Topics for discussion include, but are not restricted to:

• Representations of women and evil in popular culture, literature and history

• Historical and changing definitions of what constitutes evil behaviour in women

• Legal, social and cultural responses to evil women

• Postnatal depression and postpuerperal psychosis

• Motherhood, matricide and infanticide

• The intersectionality of feminine evil

• Mental illness and personality disorders

• The sexualization of female violence – foxy boxing, video games, film and television

• How women respond to evil

• ‘Feminazis’

• Violence, hysteria and the ‘wandering womb’

• Female serial killers

• Female psychopaths

• Girl gangs

• Cults

• ‘Mean girl’ school cliques

• Temptresses, tricksters and tarts

• Wicked stepmothers and evil queens

• Feminine perversions

• Women and the abject

• Menstruation: women and blood

• Female myths and icons – Delilah, Lilith, Medea, Medusa, Clytemnestra, the Harpies and the Femme Fatale

• The bitch

• Women and power

• Women, beauty and evil

• Vampires, witches and sirens

• Women as victims of evil

• Case studies

We particularly welcome creative responses to the subject, such as poetry/prose, short film screenings/original drama, installations, and alternative presentation styles that engage the audience and foster debate.
More information here

ICYMI: Lisa Hopkins on Shakespeare Allusion in Crime Fiction (Palgrave, 2016)

ICYMI: Lisa Hopkins, Sheffield Hallam University, has published Shakespeare Allusion in Crime Fiction (Palgrave Macmillan, 2016). Here from the publisher's website is a description of the book's contents.

This book explores why crime fiction so often alludes to Shakespeare. It ranges widely over a variety of authors including classic golden age crime writers such as the four ‘queens of crime’ (Allingham, Christie, Marsh, Sayers), Nicholas Blake and Edmund Crispin, as well as more recent authors such as Reginald Hill, Kate Atkinson and Val McDermid. It also looks at the fondness for Shakespearean allusion in a number of television crime series, most notably Midsomer Murders, Inspector Morse and Lewis, and considers the special sub-genre of detective stories in which a lost Shakespeare play is found. It shows how Shakespeare facilitates discussions about what constitutes justice, what authorises the detective to track down the villain, who owns the countryside, national and social identities, and the question of how we measure cultural value.

Richard Underwood on Gaslight Lawyers: Criminal Trials & Exploits in Gilded Age New York @smp_books

If you are looking for an engaging book about historical crime and the doings of late nineteenth and early twentieth century attorneys, check out Richard H. Underwood's Gaslight Lawyers: Criminal Trials & Exploits in Gilded Age New York  (Shadelandhouse Modern Press, 2017).

This entertaining volume examines what we might call the seedier and eminently colorful side of criminal law practice in the Big Apple during the period, and especially the doings of such well known attorneys as William Howe, who took on some of the biggest cases of the time.

A good read, and an excellent gift, for yourself or for a true crime maven of your acquaintance.

NB: I received a free copy of Gaslight Lawyers from the publisher/author in return for this independent review.

Corcos on Some Popular Culture Images of AI In Humanity's Courtroom @LSULawCenter @SavLawRev

Christine A. Corcos, Louisiana State University Law Center, is publishing ‘I Am the Master’: Some Popular Culture Images of AI in Humanity’s Courtroom in the Savannah Law Review (2018), as part of the symposium Rise of the Automatons. Here is the abstract.

Both serious literature and popular culture are flooding us with discussions of the rise of artificial intelligence (AI). As we note the rise of the subject of robot law and particularly the question of whether AI could possibly become sentient we begin to take seriously concerns about the regulation of the use of robots and the possibility that AI might pose a threat to the physical safety and privacy of human beings. In particular, we are beginning to wonder how we might control this new technology, which seems both more intelligent and more powerful than human beings. Suppose unethical or negligent programmers create situations in which AI escapes human controls and thus contravenes human norms or rules? Can we bring that AI to account? Ought we to do so, particularly if that AI is sentient or approaches sentience? At first, we might think that the answer should be “yes,” because after all we have created the AI and we should continue to control it. But the question is, I would submit, more complicated. We have created computers and robots as useful tools, but we have continued to develop them as far more — as devices that far outstrip our own capacities to decipher the mysteries of the Universe. If we deliberately endow them with characteristics that mimic our own, if they develop those independently, or develop others by analogy allowing them to function in ways that mirror human activities, can we continue to insist that we should treat them as property and that they should do our bidding? If at some point, they make some demand for the right not to follow commands that we issue, for whatever reason, ought we to ignore that demand? Novelists, filmmakers, and other artists who create popular culture have already considered this question for decades, if not centuries. In this Article, I discuss some of the ways in which some of them have thought about these issues and the insights they have had, which could guide us as we move through this important area.

Download the article from SSRN at the link.

See other articles in this symposium:  Brian L. Frye, The Lion, the Bat, & the Thermostat,  Philip Segal, Legal Jobs in the Age of Artificial Intelligence: Moving From Today's Limited Universe of Data Toward the Great Beyond.

Davies on Love, Understanding, & Justice, and Reading Comic Books

Ross E. Davies, George Mason University, Scalia Law School, and The Green Bag, has published Love, Understanding & Justice at Re-readings III at 1 (2018). Here is the abstract.

The great legal realist Llewellyn, then, thinks we should read and re-read a comic book because of what it can teach us about the significance of love and understanding to the administration of justice. It is a thought (a thought, that is, about love, understanding, and justice, not their exposition in comic books) that does seem to have occurred to at least a few judges and legal scholars. Or at least a few have mentioned it.

Download the article from SSRN at the link.

Frankenstein: A Multidisciplinary Conference, June 14, 2018, Northumbria University Law School @NorthumbriaUni @thomgiddens @CrimeStudiesNet

Via Thom Giddens @thomgiddens and Crime Studies Network @CrimeStudiesNet:

News of a very interesting multidisciplinary conference at Northumbria University Law School, June 14, devoted to Mary Shelley's Frankenstein, published 200 years ago this year.

Frankenstein: A Multidisciplinary Conference will be taking place on Thursday 14 June at City Campus East. Northumbria University Law School and Department of Social Sciences (in collaboration with the Crime Studies Network) is pleased to announce this multidisciplinary conference to celebrate the bicentenary of the first publication of Frankenstein or, The Modern Prometheus by Mary Shelley.  If you would like to attend the conference, please email bl.frankenstein.conference@northumbria.ac.uk to register.

Website here.

Timetable here.

West on Justice Stevens, the Writer @sonjawest

Sonja West, University of Georgia School of Law, has published Justice Stevens, the Writer at 94 Wash. U. L. Rev. 1417 (2017). Here is the abstract.

In any discussion about United States Supreme Court Justice John Paul Stevens, you're likely to hear him labeled in a variety of ways--as a brilliant “judge's judge,” the highly successful leader of the Court's more liberal wing, the prolific “maverick,” and a shrewd questioner from the bench. You might also hear him described simply as a polite and humble Midwesterner, bow-tie aficionado and diehard Cubs fan. Yet while Justice Stevens is and was all of these things, there is another important title he richly deserves yet often does not receive--Justice Stevens, the excellent writer. This essay strives to close that gap and celebrate the unsung writing talents of Justice Stevens. This is by no means meant to be a serious linguistic study of his writings, nor is it an exhaustive overview. My goal, rather, is simply to highlight his skills as a wordsmith with some of the most memorable examples. What follows is a collection of snippets of Justice Stevens's writing drawn from my own reservoir of personal favorites and an informal survey of other former Stevens clerks.

Download the article from SSRN at the link.

Weinrib on Ownership, Use, and Exclusivity: The Kantian Approach @UTLaw

Ernest J. Weinrib, University of Toronto Faculty of Law, has published, Ownership, Use, and Exclusivity: The Kantian Approach at 31 Ratio Juris 123 (2018). Here is the abstract.

Ownership combines the owner's right to exclude others from the owned object and the owner's liberty to use that object. This article addresses the relationship between using and excluding, by presenting Grotius's and Kant's classic accounts of ownership. Grotius's approach treats use and exclusivity as separate notions, with the latter evolving out of the former. For Kant, in contrast, use and exclusivity are integrated aspects of ownership as a right within a regime of equal reciprocal freedom. This article offers a Kantian critique of Grotius's account of the original right to use, and then presents Kant's notion of usability as the basis for his integration of use and exclusivity.

The full text is not available from SSRN for download.

Instituting Archives: One Day Symposium, Birkbeck School of Law @piyelhaldar

From Piyel Haldar,

To celebrate the 25th anniversary since its foundation and the launch of the Anniversary Archives, Birkbeck School of Law will be hosting ‘Instituting Archives.’

This one day symposium will explore the complexities, perversities and potentialities involved in the relationship between archives and institutions. Included will be a roundtable discussion on Cornelia Vismann’s files.

The event is organised by Peter Goodrich the founder of the present incarnation of Birkbeck Law school and Piyel Haldar.

Speakers: Peter Goodrich, Anselm Haverkamp, Brenna Bhandar, Vanessa Ruegger, Jose Bellido, Emma Sandon, Kanika Sharma, Nayanika Mathur, Bernard Keenan, Mayur Suresh, Shela Sheik & Angela Condello.

https://25th-anniversary-archive.eventbrite.co.uk

Hargreaves on Street Photography in the Service of the Male Gaze @CUHKofficial

Stuart Hargreaves, The Chinese University of Hong Kong, Faculty of Law, is publishing ‘I’m a Creep, I’m a Weirdo’: Street Photography in the Service of the Male Gaze in Surveillance, Privacy and Public Space (Bryce Clayton Newell, Tjerk Timan, and Bert-Jaap Koops, eds., Routledge, 2018)(Routledge Studies in Surveillance). Here is the abstract.

This chapter considers two phenomena, both of which involve the digitally-mediated collection and sharing of images of people without their knowledge or consent. In the first, “creepshots,” individuals take surreptitious photographs and share them on online message boards. In the second, individuals scour virtual street maps (such as Google Street View) for “notable” images that are then placed elsewhere online for others to review. In both cases, there is a large and anonymous audience viewing the images. In both cases, women in public or quasi-public spaces are the overwhelming targets of this digital gaze. In both cases, the online commentary quickly becomes sexual in nature, and is frequently overtly hostile. This chapter argues that these practices implicate different kinds of harms — broader, more diffuse — than conventional privacy invasions. As such, rather than being understood through the rubric of ‘privacy’ they are better understood as a new form of public surveillance. Consequently, legal mechanisms grounded in the typical (liberal) dichotomous understanding of what is public and what is private are unlikely to prove an adequate solution.

Download the essay from SSRN at the link.

Ted Laros: Literature and the Law in South Africa, 1910-2010 (2017) @Cultuur_OU @rowmanandlittlefield

Ted Laros, Open University of the Netherlands, has published Literature and the Law in South Africa, 1910–2010: The Long Walk to Artistic Freedom (Rowman and Littlefield, 2017). Here from the publisher's website is a description of the book's contents.

In 1994, artistic freedom pertaining inter alia to literature was enshrined in the South African Constitution. Clearly, the establishment of this right was long overdue compared to other nations within the Commonwealth. Indeed, the legal framework and practices regarding the regulation of literature that were introduced following the nation’s transition to a non-racial democracy seemed to form a decisive turning point in the history of South African censorship of literature. This study employs a historical sociological point of view to describe how the nation’s emerging literary field helped pave the way for the constitutional entrenchment of this right in 1994. On the basis of institutional and poetological analyses of all the legal trials concerning literature that were held in South Africa during the period 1910–2010, it describes how the battles fought in and around the courts between literary, judicial and executive elites eventually led to a constitutional exceptio artis for literature. As the South African judiciary displayed an ongoing orientation towards both English and American law in this period, the analyses are firmly placed in the context of developments occurring concurrently in these two legal systems.

 

ICYMI: Thomas Carlyle Resartus (Rowman and Littlefield, eds., 2010) @rowmanandlittlefield

ICYMI: Thomas Carlyle Resartus (Paul E. Kerry and Marylu Hill, eds., Rowman and Littlefield/Fairleigh Dickinson Press, 2010). Here is a description of the book's contents from the website.

One hundred and fifty years ago Thomas Carlyle was the intellectual gadfly whom many disagreed with but everyone read. Statesmen, philosophers, novelists, historians-anyone wrestling with the most vexed issues of modern life-had to come to grips with his writings. For much of the nineteenth century Carlyle was a prophetic voice-strong, bullying, passionate, and convincing; able to rouse his contemporaries to action and reform. This book reassesses Carlyle for a new generation in no less serious circumstances. Long before the phrase "sub-prime mortgage" came into vogue, Thomas Carlyle spoke eloquently and prophetically against the Gospel of Mammonism. Moreover, he recognized the threats to community that accompany a modern liberal society. Readers can now rediscover a Carlyle who challenges an increasingly self-absorbed culture, rails against the excesses of capitalist greed, teaches "Captains of Industry" to embrace a new kind of leadership, restores a meaningful connection to the past, and draws our gaze to genuine heroism. He champions the dignity of work, has much to say to those who would be leaders, and appeals for corporate reform in the name of love and community. The essays in this volume represent some of the most recent reconsiderations of the living legacy of Thomas Carlyle from both established and upcoming Carlyle scholars. Readers will have the opportunity to explore the richness of Carlyle's ideals, including the ones which challenge modern sensibilities the most. The essays examine carefully the complexities, difficulties, and contours of Carlyle's political and social vision. They also sample the breadth of Carlyle's thought, along with that of Jane Welsh Carlyle, his wife and fellow intellectual traveler, covering topics from political philosophy and cultural critique to education, historiography, biography, and the vagaries of editing.

 

A New Book on Teaching Crime Fiction @Palgrave_

New from Palgrave Macmillan: Teaching Crime Fiction (Charlotte Beyer, ed., 2018). Here from the publisher's website is a description of the book's contents.

More than perhaps any other genre, crime fiction invites debate over the role of popular fiction in English studies. This book offers lively original essays on teaching crime fiction written by experienced British and international scholar teachers, providing vital insight into this diverse genre through a series of compelling subjects. Taking its starting-point in pedagogical reflections and classroom experiences, the book explores methods for teaching students to develop their own critical perspectives as crime fiction critics, the impact of feminism, postcolonialism, and ecocriticism on crime fiction, crime fiction and film, the crime short story, postgraduate perspectives, and more.

A New Book on Irish Crime Fiction @BrianFCliff @Palgrave_

Brian Cliff, Trinity College Dublin, has published Irish Crime Fiction (Palgrave Macmillan, 2018). Here from the publisher's website is a description of the book's content.

This book examines the recent expansion of Ireland's literary tradition to include home-grown crime fiction. It surveys the wave of books that use genre structures to explore specifically Irish issues such as the Troubles and the rise and fall of the Celtic Tiger, as well as Irish experiences of human trafficking, the supernatural, abortion, and civic corruption. These novels are as likely to address the national regulation of sexuality through institutions like the Magdalen Laundries as they are to follow serial killers through the American South or to trace international corporate conspiracies. This study includes chapters on Northern Irish crime fiction, novels set in the Republic, women protagonists, and transnational themes, and discusses Irish authors’ adaptations of a well-loved genre and their effect on assumptions about the nature of Irish literature. It is a book for readers of crime fiction and Irish literature alike, illuminating the fertile intersections of the two

Birnhack on Colonial Intellectual Property @Birnhack @TAU_Law

Michael Birnhack, Tel Aviv University, Buchmann Faculty of Law, is publishing Colonial Intellectual Property in Handbook on Intellectual Property Research (Irene Calboli, and Maria Lilla' Montagnani, eds., Oxford University Pres, 2019). Here is the abstract.

Most of the literature on Intellectual property (IP) legal history focuses on Western IP norms and ideas, especially British, American, and former British colonies. This chapter, to be published in the OUP Handbook on IP Research, adds some critical questions, in the context of imperialism and colonialism, namely, a post-colonial view of IP in a colonial context. As the Empires of the late 19th century and early 20th century, especially the British Empire, extended their global reach, they applied their own IP law in the new territories they controlled. They did so first and foremost for their own benefit. The imposition of a foreign, external law onto a local population, might have resulted in conflicts. Thus far, most IP history was told from the colonizers’ perspective. The paper argues for the inclusion of the colonized perspective, and offers a conceptual research framework. Colonial IP lies at the intersection of (1) a critical approach to legal transplants that views it as a process and interaction of foreign law and local laws and norms; (2) applied in a colonial setting; and (3) taking into account IP’s unique features. This framework provides an organizing structure for the study of IP history in a colonial context. It offers a critical stance that is aware of the multiplicity of voices, and builds on lessons from the study of law and society about gaps between the law in the books and the law in practice, about the social construction of the law, and the powers at stake. It enables us to be skeptical of the official history, which was typically told or mediated by the colonizers. This is a post-colonial approach to IP. The chapter begins with the separate ingredients of the proposed framework, and then integrates them together and discussed its challenges and pitfalls. Along the discussion, I bring some examples, mostly from on copyright and trademark law in Mandate Palestine (1922-1948).

Download the article from SSRN at the link.

Keitner on Explaining International Acts @KeitnerLaw

Chimène Keitner, University of California, Hastings College of the Law, is publishing Explaining International Acts in the McGill Law Journal. Here is the abstract.

This contribution to a symposium on Evan Criddle & Evan Fox-Decent’s “Fiduciaries of Humanity” pushes against the strong claim by some critics that international legal norms are concerned solely with outcomes, rather than with processes of deliberation and justification more commonly associated with certain areas of domestic law. It explores this proposition by looking at examples including the 1999 Kosovo intervention, the April 2018 Syria strikes, and the results of the Chilcot Inquiry in the United Kingdom. Although deliberative processes that lead to international acts may not be judicially reviewable to the same extent as those that lead to purely domestic acts, the push for “transparency” among domestic constituencies, as well as other oversight mechanisms, create ex ante incentives for integrity in decision-making processes and rationales in the conduct of foreign affairs. In addition, ex post explanations of international acts may themselves carry legal significance as expressions of a state’s opinio juris. Scholars and practitioners should not discount the “culture of justification” that exists at the international level, even outside international courts and tribunals.

Download the article from SSRN at the link.

Hunt on The Law in Plato's Laws @radfordu

Luke William Hunt, Radford University, has published The Law in Plato's Laws: A Reading of the 'Classical Thesis' at 35 Polis 102 (2018).

Plato’s Laws include what H.L.A. Hart called the ‘classical thesis’ about the nature and role of law: the law exists to see that one leads a morally good life. This paper develops Hart’s brief remarks by providing a panorama of the classical thesis in Laws. This is done by considering two themes: (1) the extent to which Laws is paternalistic, and (2) the extent to which Laws is naturalistic. These themes are significant for a number of reasons, including because they show how Laws might be viewed as a sophisticated forerunner of natural law theory. The upshot is that Plato's metaphysical commitments about legal ontology allow him to base the truth of legal propositions on the way they relate to the truth of corresponding moral propositions.

Download the article from SSRN at the link. 

Hunt on Norms, Narratives, and Politics @radfordu

Luke William Hunt, Radford University, has published Norms, Narratives, and Politics at 101 Soundings 173 (2018). Here is the abstract.

This essay considers how legal and philosophical ideals relate to contemporary politics. While political commentary is often concerned with descriptive analysis of public affairs, this essay pursues normative analysis of emerging trends in public life. The essay’s underlying theme is that “liberal” states — such as the United States — from time to time become illiberal by departing from the basic legal and philosophical norms of that tradition. Although it is difficult to draw definitive conclusions while in the moment, the tentative conclusion is that we are in the midst of a departure from liberal norms. The essay takes a discursive approach — drawing upon Appalachian culture, popular culture, and personal narrative — to highlight the altered trajectory from those norms.

Download the article from SSRN at the link. 

Barry on The Words Under the Words

Patrick Barry, University of Michigan Law School, has published The Words Under the Words at 70 Stanford Law Review Online 70 (August 2017).

Combining insights from the poet Naoimi Shihab Nye and the psychologists Daniel Kahneman and Elizabeth Loftus, this paper offers ways to develop perhaps the most important skill advocates of all kinds can develop: being good with words.

Download the article from SSRN at the link.

Katz on Family Law as Criminal Law @elizabethdkatz

Elizabeth D. Katz, Stanford Center for Law and History; Harvard University, Department of History, is publishing Family Law as Criminal Law: The Forgotten Criminal Origins of Modern Family Laws and Courts in the University of Chicago Law Review (2019). Here is the abstract.

This Article challenges core understandings about the family law canon, the growth of probation, and the criminal-civil divide by providing the first history of a formative yet forgotten chapter in the development of specialized family courts and child support enforcement. A central tenet in family law scholarship holds that “family law” and “criminal law” are distinct, except in limited or modern circumstances. Scholars suggest this separation results from and reflects fundamental notions about family privacy and state nonintervention. Relying on extensive historical research, this Article radically revises that account by demonstrating that modern support enforcement is rooted in criminal statutes passed around the turn of the twentieth century. Criminal nonsupport prosecutions introduced novel state intervention in family behaviors, and especially marital finances, by assigning newly minted probation officers to reconcile, investigate, and monitor families. Probation officers, in turn, promoted and staffed specialized criminal nonsupport courts — initially called “domestic relations courts” and later “family courts” — that cities first opened in the 1910s. Beginning in the 1930s, perceived disadvantages of criminal law led legislators to strategically relabel family courts and support enforcement as “civil,” even while retaining procedures, personnel, and powers drawn from the criminal approach. Observers found the ongoing use of criminal-derived oversight methods unremarkable; the half-century in which family law was largely criminal law shifted norms about acceptable and desirable state involvement in family relationships. As the number of civil nonsupport suits surpassed prosecutions under criminal statutes, which all states retained, and divorce jurisdiction moved to family courts, family law and courts increasingly appeared civil, obscuring their criminal heritage and continued criminal-law reinforcement. The criminal origins of family courts and support enforcement hold significant implications for the millions of domestic relations cases filed each year, as well as for other types of litigation that blur boundaries between civil and criminal categories. The “civil” label can bring momentous consequences. In a prominent family-related example, Turner v. Rogers, 564 U.S. 431 (2011), the Supreme Court rejected a father’s claim that he was entitled to a public defender, when facing incarceration for a year for nonpayment of child support, on the basis that his imprisonment was for civil contempt. This Article employs history to demonstrate the superficiality of the Court’s holding and to formulate a sounder analysis for future cases in the child support context and beyond.

Download the article from SSRN at the link.

Barkow on Making Connection with The Wire @RachelBarkow

Rachel E. Barkow, New York University School of Law, is publishing Making Connections with The Wire: Telling the Stories Behind the Statistics in the University of Chicago Legal Forum. Here is the abstract.

The reality of human nature is that facts and statistics do not move people to action — stories and personal connections do. Narratives, more than raw numbers, help people see the relationship between social and economic inequality and crime. For most Americans, the stories that have informed their view of criminal justice have created the misleading impression that many, if not most, people who commit crimes are violent by nature and unredeemable. With that perception, the statistics cannot break through because the public incorrectly believes the people in prison must all deserve to be there and retribution and public safety demand no less. This essay, part of a symposium celebrating The Wire, argues that the show provided a different narrative that vividly demonstrated for its viewers the way crime and policing really look in America, offering many of its viewers their first realistic view of these dynamics. It showed how structural forces propel people to commit crimes and vividly captured the daily struggles of people living in poverty in America’s cities. Viewers came to care about the shows characters and saw their humanity even when they committed crimes. For many viewers, it would be the first time they had a realistic view of crime and policing up close. And once you have that perspective, you cannot help but see all that is wrong with the current approach to crime. The Wire was art at its transformative best.

Download the article from SSRN at the link.

Khoday on Law and Resistance in American Military Films @amarkhoday

Amar Khoday, University of Manitoba Faculty of Law, is publishing Valorizing Disobedience within the Ranks: Law and Resistance in American Military Films in volume 36 of the Cardozo Arts & Entertainment Law Journal (2018). Here is the abstract.

Over the past few decades, there has been a growing scholarship concerning the intersections between law and popular culture. Films, as one significant form of popular culture, can project and help shape public perceptions about various aspects of law and legal normativity. This article examines a series of American films as producers of a cinematic jurisprudence concerning the legitimate role of disobedience in military life. The author examines how a series of such films has stressed the importance of questioning orders and engaging in various forms of resistance to challenge illegal conduct. Through these stories, resistance is portrayed as legitimate and justified conduct when committed in favor of saving lives and exposing criminal conduct. In assessing this cinematic jurisprudence, the article also examines the narrow emphasis of such films on the role of male soldiers as agents and how females as resistive actors have largely been ignored.

Download the article from SSRN at the link.