June 29, 2018

McSweeney on Fiction in the Code @GSULawReview

Thomas McSweeney, William & Mary Law School, is publishing Fiction in the Code in volume 34 of the Georgia State University Law Review (2018). Here is the abstract.
One of the major branches of the field of law and literature is often described as “law as literature.” Scholars of law as literature examine the law using the tools of literary analysis. The scholarship in this subfield is dominated by the discussion of narrative texts: confessions, victim-impact statements, and, above all, the judicial opinion. This article will argue that we can use some of the same tools to help us understand non-narrative texts, such as law codes and statutes. Genres create expectations. We do not expect a law code to be literary. Indeed, we tend to dissociate the law code from the kind of imaginative fiction we expect to find in a narrative text. This article will take a historical example, the medieval Icelandic legal manuscript known as Konungsbók, and examine it for its fictional elements. This article will examine Konungsbók for the ways in which it creates an imagined world, populated by free, equal householders, a world that was very different from the Iceland in which its creator lived. Its creator may have created it less to tell his reader anything about the law as it stood in thirteenth-century Iceland than as an elegy to a world he thought he had lost. It therefore stands as a testament to the law code’s literary potential.
Download the article from SSRN at the link.

June 28, 2018

A New Series on Movies and Popular Culture From Rutgers University Press @RutgersUPress

Of interest from Rutgers University Press: Quick Takes: Movies and Popular Culture

Blair Davis, Comic Book Movies (Rutgers University Press, 2018).

Steven Gerrard, The Modern British Horror Film (Rutgers University Press, 2018).

Barry Keith Grant, Monster Cinema (Rutgers University Press, 2018).

Ian Olney, Zombie Cinema (Rutgers University Press, 2017).

Valerie Orlando, New African Cinema (Rutgers University Press (2017).

Stephen Prince, Digital Cinema (Rutgers University Press, 2019) (forthcoming).

Steven Shaviro, Digital Music Videos (Rutgers University Press, 2017).

David Sterritt, Rock 'n' Roll Movies (Rutgers University Press, 2017).

John Wills, Disney Culture (Rutgers University Press, 2017).

June 27, 2018

Macias on Utilitarian Constitutionalism: A Comparison of Bentham & Madison @SIUSchoolofLaw

Steven J. Macias, Southern Illinois University School of Law, is publishing Utilitarian Constitutionalism: A Comparison of Bentham & Madison in volume 11 of the NYU Journal of Law & Liberty (2018). Here is the abstract.
Jeremy Bentham (1748–1832), the father of modern utilitarianism, had much in common, ideologically, with James Madison (1751–1836), the father of the U.S. Constitution. This Article is an attempt to bridge the literature on the two figures and to show that knowledge of Bentham’s constitutional theory is useful in understanding the intellectual environment that produced the U.S. Constitution. Although lawyers’ knowledge of Bentham might be limited to catchphrases such as, “nonsense upon stilts,” or concepts associated with modern surveillance technology like the Panopticon (his design for a prison), Bentham was a serious legal and political philosopher. His interests extended to the United States, so much so, that he engaged in serious analysis of the U.S. Constitution and communicated with leading American politicians, including Madison, Benjamin Franklin, John Jay, Aaron Burr, and John Quincy Adams. This Article demonstrates the similarities of thought between Bentham and Madison and argues that the Constitution is best viewed as a document inspired by, and compatible with, the rationalism represented by English utilitarianism.
Download the article from SSRN at the link.

McGuinness on Presidential Human Rights Talk

Margaret E. McGuinness, St. John's University, School of Law, is publishing Presidential Human Rights Talk in volume 56 of the Washburn Law Review (2018). Here is the abstract.
In response to Professor Harold Hongju Koh's March 2017 keynote at Washburn University, "The Trump Administration and International Law," this essay examines the diplomatic and political rhetoric deployed by past presidents in support of human rights to argue that such "presidential human rights talk" represented an important element of U.S. human rights policy and promoted the transnational transmission of human rights norms. President Trump's complete abandonment of presidential human rights talk signals an end to what remains of American "human rights exceptionalism." Combined with Trump's "America First" approach to foreign policy, which rejects the value of the international institutions the U.S. helped build and sustain over the past 70 years, the end of presidential human rights talk may also mark the end of U.S. human rights diplomacy.
Download the article from SSRN at the link.

June 26, 2018

Mr. and Mrs. Loving

You can once again watch the wonderful Mr. and Mrs. Loving, with Timothy Hutton and Lela Rochon (made for television, 1996), and not available on DVD right now, on Amazon Prime. While Nancy Buirski's Loving and The Loving Story, interpretations of the battle Mildred and Richard Loving fought to overturn the Virginia law against miscegenation are also available, I have a soft spot for the 1996 film and am glad to see it for the first time in a number of years.

I hope it remains on Amazon Prime long enough for my fall class on Law and Society to get a chance to see it. Many of my students would have been five years old or younger when it first aired, and of course wouldn't have been born yet when the U.S. Supreme Court decided the history-making case (1967). Maybe their parents weren't either?

A short bibliography of the movie and the case.

ACLU, Loving: Looking Back at the Landmark Case, Loving v. Virginia

Loving v. Virginia, 388 U.S. 1 (1967).

Patricia Hruby Powell, Loving Vs. Virginia: A Documentary Novel of the Landmark Civil Rights Case (Chronicle Books, 2017).

Robert A. Pratt, Essay: Crossing the Color Line: A Historical Assessment and Personal Narrative of Loving v. Virginia, 41 Howard L.J. 229 (1997/1998).

Peter Wallenstein, Virginia Hasn't Always Been For Lovers: Interracial Marriage Bans and the Case of Richard and Mildred Loving, 112 The Virginia Magazine of History and Biography 440(4) (2004).

New in Paperback: Mendenhall on Oliver Wendell Holmes, Jr., Pragmatism, and the Jurisprudence of Agon @allenmendenhall @BucknellUPress @RLPGBooks

New in paperback: Allen Mendenhall, Faulkner University School of Law, Oliver Wendell Holmes, Jr., Pragmatism, and the Jurisprudence of Agon: Aesthetic Dissent and the Common Law (Rowman and Littlefield/Bucknell University Press, 2016). Here from the publisher's website is a description of the book's contents.
This book argues that Oliver Wendell Holmes Jr., helps us see the law through an Emersonian lens by the way in which he wrote his judicial dissents. Holmes’s literary style mimics and enacts two characteristics of Ralph Waldo Emerson’s thought: “superfluity” and the “poetics of transition,” concepts ascribed to Emerson and developed by literary critic Richard Poirier. Using this aesthetic style borrowed from Emerson and carried out by later pragmatists, Holmes not only made it more likely that his dissents would remain alive for future judges or justices (because how they were written was itself memorable, whatever the value of their content), but also shaped our understanding of dissents and, in this, our understanding of law. By opening constitutional precedent to potential change, Holmes’s dissents made room for future thought, moving our understanding of legal concepts in a more pragmatic direction and away from formalistic understandings of law. Included in this new understanding is the idea that the “canon” of judicial cases involves oppositional positions that must be sustained if the law is to serve pragmatic purposes. This process of precedent-making in a common-law system resembles the construction of the literary canon as it is conceived by Harold Bloom and Richard Posner.

June 25, 2018

SCOTUS Denies Cert in "Making a Murderer" Case

The Supreme Court has denied cert in the "Making a Murderer" case, which gained traction after it because the basis for a popular Netflix series.  More about the show, and controversy, below.

From the New Yorker, here.
From the Guardian, here.
From Digital Spy, here.

See SCOTUSblog's page here.

June 22, 2018

Stalk Her Until She Loves You: Abduction As Romance @PopDetective

Via Pop Culture Detective (@PopDetective), a video essay discussing the way pop culture (often film) depicts the relentless way that a man pursues a woman in order to transform her initial dislike into attraction, desire, and ultimately love. Link here to Abduction As Romance. Pop Culture Detective has also posted a related video essay, Stalking For Love, which covers the ways in which pop culture seems to show society seeming to reward a man who won't take a woman's initial "no" for an answer. He continues to follow her and repeat his question, "Will you go out with me?" (or something similar) until he gets the answer he wants. Of course, because he's the "hero" in the situation, society usually excuses such behavior. In addition, the woman who finally (and charmingly) agrees to be wooed can give up responsibility for her actions and her choices. It's an all too comfortable position for many women, even today. It allows men to continue to be aggressive and seductive at the same time, and for women to play the victim and the prize. "Win, win," as they say. Or "second verse, same as the first."

Pop Culture Detective isn't the first pop culture observer to comment on this aberrant message, but these videos are very effective. For more on the "hero male as stalker," see these links.

Julie Beck, Romantic Comedies: When Stalking Has a Happy Ending (The Atlantic)

Radhiga Sanghani, Ten Times Pop Culture Romanticised Sexual Harassment (BBC)

Stalking Is Love (TV Tropes)

Why Is Stalking Romantic In Our Favorite Movies? (AAUW)

But for a contrasting opinion, see Cathy Young, Romantic Comedies Produce Stalkers? That's Laughable (The Observer)

June 21, 2018

Patrick on Evocative Advocates and Stirring Statesmen: Law, Politics, and the Weaponization of Imagery

Carlton Patrick, University of Central Florida, is publishing Evocative Advocates and Stirring Statesmen: Law, Politics, and the Weaponization of Imagery in volume 2 of the Evolutionary Studies in Imaginative Culture (Fall 2018). Here is the abstract.
This article shows how descriptive imagery can be used to hijack evolved psychological instincts and prejudice the judgments of others, particularly in the legal and political domains. By mimicking the cues that represented threats to our ancestors, those wishing to color the perception of others can subtly trigger the affective responses that evolved to help navigate ancestral threats. When this happens, logic may be unseated in favor of deep-seated instinctual responses, often to a problematic degree. In this way, lawyers, politicians, and activists, taking a page out of the playbook of novelists and other storytellers, can weaponize words, images, descriptions, and narratives to (often improperly) sway the opinions of others.
Download the article from SSRN at the link.

Matei on Art on Trial: Freedom of Artistic Expression and the European Court of Human Rights

Andra Matei has published Art on Trial. Freedom of Artistic Expression and the European Court of Human Rights. Here is the abstract.
The way that art is judged in the courtroom shapes the way it is perceived at large and has a direct consequence on how it can be appreciated by the society. Surely, not all art is to everybody's liking. Even the judges at Strasbourg fall into subjective definitions of artistic merit sometimes, despite their commendable attempts to stay detached and open-minded. In the recent Sinkova v. Ukraine case, a divided Fourth Section of the European Court of Human Rights ruled that the applicant's conviction for an artistic performance featuring the applicant frying eggs over the Eternal Flame at a war memorial, did not breach her freedom of expression; finally, protecting the memory of soldiers from insult, outweighs the applicants right to free expression. The artistic nature of the applicant's actions is ignored by the ECtHR and in the absence of an explanatory context, the performance is dismissed as a senseless provocation. But how informed are judges in art theory and form and on what grounds do they speculate about artistic merit and motive? This essay will focus on the significance the ECtHR attaches to the protection of artistic expression and the ways in which it regulates the dynamics between artistic freedom and public morals. A cursory review of the relevant case-law (cases which have at their center controversial artworks) will show that, more often than not, when freedom of artistic expression is set against the need to protect public morals, or "the rights of others", the ECtHR favors the latter.
Download the article from SSRN at the link.

Schauer on Law as a Malleable Artifact

Frederick Schauer, University of Virginia School of Law, is publishing Law as a Malleable Artifact in Law as an Artifact (Lukas Burazin, Kenneth Einar Himma, and Corrado Roversi, eds., Oxford University Press, 2018 Forthcoming). Here is the abstract.
Within contemporary analytic philosophy of law, most of the scholars who understand themselves to be engaged in conceptual analysis of the concept of law perceive that project to be analytic and descriptive, but not normative. But the concept of law is itself a human creation, and what humans can create humans can also re-create. And thus there is a different project of conceptual prescription or conceptual revision, one in which the goal is to reflect on (and to prescribe, at times) on how a society ought to understand the very idea of law – what concept of law a society ought to have. This project, which under one reading may have informed both H.L.A. Hart and Lon Fuller in their 1958 debate, need not displace the analytic/descriptive project of conceptual analysis of the concept of law, but, given its provenance going back at least as far as Jeremy Bentham, nor should it be dismissed from what John Austin labeled “the province of jurisprudence.”
Download the essay from SSRN at the link.

June 20, 2018

Superheroes and Immigration @nancywyuen @INHERITANCEmag

Giovanny Panginda and Gene Luen Yang explore the ethnic origins of comic book superheroes for inheritancemag.com. Such characters come to the U.S., or countries, fleeing natural disasters or war, and they come without papers. The authors note in part,

Not only is Superman an immigrant, more specifically, he is a refugee, one forced to leave his country because of war, persecution, or natural disasters. Superman's cultural narrative starts with him as a baby on the planet Krypton, where his parents send him to Earth not just to escape the planet's destruction, but to offer him a chance at a better life.

Although we usually think of Superman as the great icon of "truth, justice, and the American Way," we often forget that he started out as a foreigner, and a literal unaccompanied minor alien. 

Via @nancywyuen.

Gaughan on D-Day, Collateral Damage, and the 1923 Hague Draft rules of Aerial Warfare

Anthony J. Gaughan, Drake University Law School, has published D-Day, Collateral Damage, and the 1923 Hague Draft Rules of Aerial Warfare. Here is the abstract.
This paper examines the question of whether the adoption of the 1923 Hague Draft Rules of Aerial Warfare as binding international law might have changed the outcome of the D-Day invasion during World War II. The delegates to The Hague conference proposed a severe restriction on the use of air power in urban areas, but the rules were never adopted as international law. Two decades later, the international community’s failure to adopt the 1923 Hague Draft Rules had a significant impact on the D-Day invasion. On June 6, 1944, the Allies mounted the largest amphibious operation in history as 150,000 troops stormed the Normandy beaches of Nazi-occupied France. The landings succeeded in no small part because of the Allied air forces, which mounted a massive interdiction campaign to prevent the German army from rushing to the French coastline and destroying the Normandy beachhead. Operation Overlord, the code name for the D-Day invasion, marked a major turning point in the war, accelerating the collapse of Nazi Germany, which surrendered 11 months later. As the historian Ian Kershaw has observed, Operation Overlord marked “the beginning of the end for the Third Reich.” The D-Day air campaign, however, came at a severe cost for French and Belgian civilians. At least 12,000—and possibly more than 25,000—French and Belgian civilians died as unintended casualties of the Allied bombing campaign. Although the Allied air strikes clearly played a critical role in interdicting the German army, it was by no means clear that the vast scale of the bombing was necessary. Whether the interdiction objectives could have been achieved by a more modest—and less destructive—air campaign was an open question at the time and remains so for many historians today. One of the principal reasons why the Allies implemented a massive area bombing campaign against French and Belgian rail centers was because international law did not provide clear guidance regarding air warfare. But it might have had the 1923 Hague Draft Rules of Aerial Warfare been adopted as binding international law. The Draft Rules prohibited area bombing in urban areas, which is precisely what the Allies engaged in during the D-Day air campaign. Had the Rules been in effect in 1944, the Allied air campaign in support of the D-Day operation may well have been much more modest in nature. But would the reduction in collateral damage have come at the cost of jeopardizing the invasion’s success? The story of The Hague Draft Rules and the controversy over the D-Day air campaign demonstrates the unique challenges and inherent complexity of the effort to use international law to protect civilian populations during wartime.
Download the article from SSRN at the link.

June 19, 2018

ICYMI: Bailey and Knight on Writing Histories of Law and Emotion @drkjknight

ICYMI: Merridee L. Bailey and Kimberley-Joy Knight, Writing Histories of Law and Emotion, 38 Journal of Legal History 117 (2017). Here is the abstract.
In recent years the study of emotions in the past has received considerable attention. At the same time, many historians of law have shown reluctance to acknowledge and systematically explore emotions in legal sources and legal contexts. This issue of the Journal of Legal History addresses this imbalance and demonstrates how emotions have played important roles in legal reasoning, legal doctrine, the behaviour of legal actors, and the development of law over time. This article investigates recent developments in the study of the history of emotions and of emotions in contemporary law, before assessing the challenges of writing law and emotions histories. It argues for the importance of utilizing both legal and extra-legal source material to uncover the relationship between legal rationality and emotion; to gain insights into the emotional worlds of those participating in legal systems; and to provide a deeper understanding of the workings of the law.

Klein and Matson on Mere-Liberty in David Hume @MasonEconomics

Daniel B. Klein and Erik Matson, both of George Mason University, Department of Economics, are publishing Mere-Liberty in David Hume in A Companion to David Hume (Universidad Francisco Marroquin). Here is the abstract.
What does Hume mean by liberty? Though clearly important to him, Hume never clarifies the matter explicitly. In his texts, liberty often seems to be a matter of government rules being certain, general, regular, etc., and often a matter of political form or constitution—the place of parliament or republicanism, checks to power, and so on. Many scholars have highlighted such ideas as Hume's idea of liberty. We argue that liberty in Hume bears a central meaning: liberty is a flipside of (commutative) justice. The basic injunction of (commutative) justice is to not mess with other people’s stuff. The flipside is: Others not messing with one's stuff. And it is especially in relation to government (as opposed to, say, a robber) that that flipside concept is what Hume often signifies with the word liberty. Because liberty is polysemous in Hume's writings, we call that meaning “mere-liberty.” Hume sees the achievement of high degree of mere-liberty as dependent on authority, which itself depends on contraventions of mere-liberty. We advance mere-liberty not against the other meanings, but with them, with mere-liberty central to Hume’s political outlook.
Download the essay from SSRN at the link.

Brooks and Sankey on the Legal Importance of Emotions @thom_brooks @LJMU

Thom Brooks, Durham University, and Diana Sankey, Liverpool John Moores University, have published Beyond Reason: The Legal Importance of Emotions in Ethical Rationalism and the Law 131-148 (Patrick Capps and Shaun D. Pattison eds., Oxford/Hart, 2018). Here is the abstract.
Deryck Beyleveld has forged a theory of ethical rationalism that has made an important impact on legal and moral philosophy—that this collection of essays makes clear. He has not only refined and improved the original account developed by Alan Gewirth, but provides us with ethical rationalism’s most prolific defender today. One area of particular insight is Beyleveld’s many applications of ethical rationalism to practice and, most especially, to medical law and ethics which has been especially influential. This work has set the bar for all proponents and critics alike. We focus narrowly on a specific concern that we have with ethical rationalism: its primacy of rationality over other characteristics, such as our emotions. This is not to deny the importance of reason in our thinking about law and ethical concerns. But we have concerns with any view that holds that reason is the only key to how any tensions should be resolved. Such a position claims for reason a privileged status it does not have or merit. One problem for us is that, in our view, ethical rationalism does not appear to adequately consider the importance of emotions and so it does not provide a satisfactory account of law and morality as a result. We examine this concern in the first part of our chapter. This chapter’s second part raises concerns with the application of ethical rationalism as a model for understanding sexual offences. We highlight both the need to foreground emotion in order to understand the current law, as well as the dangers from a normative perspective of appearing to marginalise the role of emotion in sexual offences. Not only would a prioritisation of rationality fail to reflect the role emotion can play in current rape law, but we would argue, is particularly problematic in this area of law in terms of promoting justice. In summary, Beyleveld’s ethical rationalism exercises an important impact on legal theory and legal practices. Nonetheless, we raise some reservations about its connection to these impacts that lead us to support revisions to this approach.
Download the essay from SSRN at the link.

June 14, 2018

Women's Legal Landmarks: Celebrating 100 Years of Women and the Law in the UK and Ireland: Forthcoming From Hart Publishing @hartpublishing

Forthcoming from Hart Publishing: Women's Legal Landmarks: Celebrating 100 Years of Women and Law in the UK and Ireland (Erika Rackley and Rosemary Auchmuty, eds., Hart Publishing, 2018). Here is a description of the book's contents.
Women's Legal Landmarks commemorates the centenary of women's admission in 1919 to the legal profession in the UK and Ireland by identifying key legal landmarks in women's legal history. Over 90 authors write on landmarks that represent a significant achievement or marked an important stage or turning point in women's engagement with law and law reform. The landmarks embrace a wide range of topics, including the right to vote, equal pay, forced marriage, sexual violence, abortion and the ordination of women bishops, as well as the life stories of women who were the first to undertake key legal roles and positions. The collection was produced using an established feminist practice whereby each contribution was presented in collaborative workshops to ensure shared knowledge and insights into both the legal area and the historical context. Women's Legal Landmarks offers a scholarly intervention into the recovery of women's lost history, employing the methodology of feminist legal history to provide accounts which are accurate as to both law and historical context and which, taken together, demonstrate women's agency and activism in the achievement of law reform and justice.

Media of Women's Legal Landmarks 

June 13, 2018

Literature and the Judicial Opinion

Via Benjamin Woodring, news that Judge Michael Baylson went literary in his ruling in favor of the City of Philadelphia, finding that the federal government cannot cut off funding because the city insists it will only surrender undocumented immigrants if the feds have proper warrants. Here, courtesy of Dr. Woodring, is a link to Judge Baylson's opinion. It begins with quotations from Hamlet and Coriolanus and from Dr. Woodring's own article Liberty to Misread, published in the Yale Journal of Law & the Humanities, and continues to the Odyssey.

I think a lot of literature profs out there must be very pleased! More about the law and literature references in this opinion here in an Atlantic essay by Walt Hunter of Clemson University, one of the aforementioned lit profs.

Law and the humanities lives!

June 12, 2018

Owley and Phelps on Understanding the Complicated Landscape of Civil War Monuments @JessicaOwley

Jessica Owley, University at Buffalo Law School, and Jess R. Phelps, Dinse, Knapp, & McAndrew, have published Understanding the Complicated Landscape of Civil War Monuments at 93 Indiana Law Journal Supp. 15 (2018). Here is the abstract.
This essay examines the controversy regarding confederate monuments and attempts to contextualize this debate within the current preservation framework. While much attention has been paid to this topic over the past year, particularly with regard to “public” monuments, such discussion has generally failed to recognize the varied and complicated property law layers involved—which can fundamentally change the legal requirements for modification or removal. We propose a spectrum or framework for assessing these resources ranging from public to private, and we explore the messy space in-between these poles where most monuments actually fall. By highlighting these categories, we provide an initial introduction of a typology for evaluating confederate monuments, serving as a foundation for an exploration into the nature of property law and monument protection.
Download the Essay from SSRN at the link.

June 11, 2018

Forthcoming from Routledge: Pierre Legendre: Lessons III: God in the Mirror: A Study of the Institution of Images (2018) @routledgebooks

Forthcoming: Pierre Legendre, Lessons III: God in the Mirror: A Study of the Institution of Images (Translated by P. G. Young (Routledge, 2018). Here from the publisher's website is a description of the book's contents.
In the context of our increasingly global legal order, Pierre Legendre’s God in the Mirror reconsiders the place of law within the division of existing bodies of knowledge. Navigating the texts of Ovid, Augustine, Roman jurists, medieval canon lawyers, Freud, Lacan, the notebooks of Leonardo de Vinci, and the paintings of Rene Magritte, this third volume of Pierre Legendre’s Lessons focuses on the relation of the subject to the institution of images. Legendre tracks the origins and vicissitudes of the specular metaphor within western history, carrying out a critique of its dependence on the discourse of the Imago Dei. A crucial landmark within Legendre’s ongoing reconsideration of a medieval ‘revolution of interpretation’, this book dissociates the western normative tradition from its mythic foundation, separating theology and law. It thereby documents the advent of modern rational doubt, as a new legal foundation or ground: one that, for Legendre, was not only a revolutionary invention, but one that produced the modern European idea of the State.

Civil Rights Attorney Ben Crump's New Series Evidence of Innocence Now Airing On TV One @tvonetv @BenCrumpLaw @FSUCollegeofLaw @AttorneyCrump

Via the National Law Journal:

Noted civil right attorney Ben Crump is launching Evidence of Innocence, a new television show devoted to exploring the stories of the wrongly convicted. In an interview with Angela Morris of the NLJ, he explained,

One thing we are trying to do with the show is affect the hearts and minds of prospective future jurors who will be sitting in court passing judgment. The message is simple: Don’t take what the police and prosecutors say, their narrative, as the gospel and disbelieve the poor people of color. You see in this show there are a lot of nefarious things being done by government officials who are convicting and incarcerating many people who are innocent—especially people of color.

 The show's first episode aired June 4. 

From José Calvo González, A New Book on Law and Literature @jcalvo11

José Calvo González, University of Malaga, has published La destreza de Judith: Estudios de Cultura literaria del Derecho (Granada: Editorial Comares, 2018).

Strang on An Evaluation of Historical Evidence for Constitutional Construction From the First Congress's Debate Over the Constitutionality of the First Bank of the United States

Lee J. Strang, University of Toledo College of Law, has published An Evaluation of Historical Evidence for Constitutional Construction From the First Congress’ Debate Over the Constitutionality of the First Bank of the United States at 14 University of St. Thomas Law Journal 193 (2018). Here is the abstract.
In this Essay, I review a modest selection of important evidence from the early Republic, the debate over the constitutionality of the First Bank of the United States in the First Congress, to evaluate whether, to what extent, and how Americans utilized constitutional construction in the early Republic. This Essay derives a number of tentative conclusions from this evidence. First, the participants in this early debate appeared to believe that a necessary precondition for constitutional construction — underdeterminacy — existed. Second, the participants also argued as if, after the application of a number of interpretative rules, the Constitution provided a determinate answer to the constitutional question. Third, the participants seemed ultimately to conclude that the Constitution’s meaning provided a determinate answer to the question under debate (though they continued to disagree about what that answer was).
Download the essay from SSRN at the link.

Ho on Chinese Legal Thought in the Han-Tang Transition: Liu Song's Theory of Adjudication

Norman Ho, Peking University School of Transnational Law, is publishing Chinese Legal Thought in the Han-Tang Transition: Liu Song's (D. 300) Theory of Adjudication in volume 35 of the UCLA Pacific Basin Law Journal (2018). Here is the abstract.
This article explores and analyzes the fourth century Chinese legal official and legal scholar Liu Song’s (d. 300) theory of adjudication through a full translation into English (the first translation of its kind) of his famous “Memorial on Adjudication,” which urged judicial and legal reforms during the reign of Emperor Hui (r. 290–306) of the Western Jin dynasty (265–316). This article argues that Liu believed that written law should reign supreme over other factors (e.g., societal needs, public opinion) in adjudicating cases. He was also one of the first major Chinese legal thinkers to explicitly set forth what we would today call the “legality principle.” But while Liu’s theory of adjudication was centered on written law, it was also motivated by a desire to control the power and discretion of judicial officials and preserve the authority of the emperor. Liu’s theory of adjudication is significant in the history of Chinese legal thought as it runs counter to the so-called “qing-li-fa” (QLF) theory of adjudication, which has strongly influenced contemporary theoretical accounts and descriptions of traditional Chinese law as a whole. This article also briefly considers Liu’s theory in a comparative legal theory perspective, arguing that Liu’s theory is different from key Western theories on adjudication— namely, Hart’s and Dworkin’s theories of adjudication with respect to hard cases. Finally, this article also briefly discusses the relevance of Liu Song’s legal thought to 21st century Chinese law, given the current Chinese leadership’s penchant for using traditional Chinese political and legal philosophy as sources and justifications for government and administration. This article suggests that Liu Song is a figure whose legal thought could be equally palatable to rule of law reformers and more conservative party officials in China today.
Download the article from SSRN at the link.

June 10, 2018

"The Staircase" Returns on Netflix @netflix @The_Staircase

The remarkable 8 part 2005 documentary The Staircase, which first aired in 2005, has gotten an update and has returned to Netflix as a 13 parter. Jean-Xavier de Lestrade's examination of TV executive Kathleen Peterson's death, and the subsequent trial of her husband, novelist Michael Peterson, for that death, continues to fascinate.

Mr. Lestrade's work has influenced newer looks at true crime, such as Making a Murderer. The Staircase is a chance to see the beginnings of the serial documentary movement.  More here from the New York Times.

More about the background of the case and the film here from The Cut,  Esquire. More about Mr. Peterson's life after the trial and conviction (he took an Alford plea in 2017) here.

If you want to compare tragedy and comedy, try out Trial and Error, the comedy legal series starring John Lithgow and Nicholas D'Agosto. Lithgow is poetry professor Larry Henderson, accused of killing his wife; D'Agosto is the hapless lawyer hired to defend him. The plot reflects the Peterson case, but it adds in a number of familiar legal show tropes (attraction between the defense attorney and the prosector, an eccentric but capable private investigator). More here from the New Yorker.

Death In Paradise (Season Seven) Now Available on Amazon Prime @deathinparadise

The seventh season of Death in Paradise is now available for streaming on Amazon Prime. This very popular series now features a new D.I., Jack Mooney,  along with the Saint Marie team of Officer Myers, Sergeant Cassel, Officer Hooper, Superintendent Patterson, Mayor Bordey, and of course, Harry the lizard. The plots are a little less mysterious than in previous seasons, but the island is still beautiful and the characters are always as charming. Might I point out, though, that we've had four white men in charge posted to Saint Marie as D.I.s? That's counting the one whose murder started it all, D. I. Charlie Hulme, D.I. Richard Poole, who arrives from the U.K. to solve his murder, D.I. Humphrey Goodman who arrives from the U.K. to solve his murder, and D.I. Jack Mooney who flies over from the U.K. (although he's Irish), to replace D.I. Goodman, who returns to the U.K. to stay with his--Goodman's--girlfriend. Maybe the next D.I., assuming we have one, could be female? A person (woman) of color? Women also know things.

Willdenthal on Reflections on Spelling and the Shakespeare Authorship Question

Bryan H. Wildenthal, Thomas Jefferson School of Law, is publishing Reflections on Spelling and the Shakespeare Authorship Question: 'What's in (the Spelling of) a Name?' at the Shakespeare Oxford Fellowship website (Forthcoming). Here is the abstract.
What’s in a name? Perhaps, as Juliet recognized, not much (see Romeo and Juliet, act 2, sc. 2). This essay argues that the differences in spelling between “Shakspere,” “Shakespeare,” and their variants do not in themselves provide a very strong argument for doubt about the authorship of the works of "William Shakespeare" (the likely pseudonym of Edward de Vere, 17th Earl of Oxford, 1550-1604), conventionally said to be written by William Shakspere of Stratford-upon-Avon (1564-1616). While this essay does not go as far as the late Oxfordian scholar Peter Moore (one of our best), who called it a “zero argument,” it does agree with Moore—and to some extent with David Kathman, a Stratfordian scholar—that many non-Stratfordians have placed too much emphasis on spelling issues. But the spelling issues do raise interesting questions as part of the broader Shakespeare Authorship Question (SAQ). They add to the evidence indicating early doubts about the identity of the author “Shakespeare,” the subject of Professor Wildenthal's 2017 conference presentation and forthcoming book.
Download the article from SSRN at the link.

June 9, 2018

ICYMI: Shaw on Law and the Passions: A Discrete History @routledgebooks @dmuleicester ‏


Julia Shaw, De Montfort University, has published Law and the Passions: A Discrete History (Routledge Publishing, 2016). Here from the publisher's website is a description of the book's contents.

 Although the connection of law, passion and emotion has become an established focus in legal scholarship, the extent to which emotion has always been, and continues to be, a significant influence in informing legal reasoning, decision-making, decision-avoidance and legal judgment – rather than an adjunct – is still a matter for critical analysis. Engaging with the underlying social context in which emotional states are a motivational force – and have produced key legal principles and controversial judgments, as evidenced in a range of illustrative legal cases – Law and the Passions: A Discrete History provides a uniquely inclusive commentary on the significance and influence of emotions in the history and continuing development of legal institutions and legal dogma. Law, it is argued, is a passion; and, as such, it is a primarily emotional endeavour.

Note: The publisher's page says both that this book was published in 2016 and that it is forthcoming in 2018, so I'm not sure whether it's published or is forthcoming. ?? 

June 8, 2018

Davies on Ranking the Olympians Before U.S. News @GB2d

Ross E. Davies, George Mason University Law School, has published Ranking the Olympians Before U.S. News: When Vanity Fair and The Bookman Told Their Readers Who Really Mattered at 21 Green Bag 2d 241 (2018). Here is the abstract.
When were the first law-related rankings published? Answering that question would be like determining when the first baseball game was played. You would have to start by settling fundamental and disputable definitional issues: What is a publication (or what is baseball)? What counts as a ranking (or a game)? And so on. Experts, even those who are most eminently knowledgeable and admirably reasonable, sometimes disagree about such things. Then, if you were to miraculously manage to settle all such matters of meaning, you would have to look everywhere that such a ranking might have been published (or such a game recorded). That is too much. Better to work incrementally – to report ever-earlier sightings as you find them and hope that definitional consensuses grow as unexplored territories shrink. That is the spirit in which I offer this report on two sets of rankings published in the early 20th century.
Download the article from SSRN at the link.

June 7, 2018

Marrani on Space, Time, Justice: A New Book From Routledge Publishing @routledgebooks @Doubledegree

David Marrani, Dean, Institute of Law, Jersey, has published Space, Time, Justice: From Archaic Rituals to Contemporary Perspectives (Routledge, 2018). Here from the publisher's website is a description of the book's contents.
This book merges philosophical, psychoanalytical and legal perspectives to explore how spaces of justice are changing and the effect this has on the development of the administration of justice. There are as central themes: the idea of transgression as the starting point of the question of justice and its archaic anchor; the relation between spaces of justice and ritual(s); the question of use and abuse of transparency in contemporary courts; and the abolition of the judicial walls with the use of cameras in courts. It offers a comparative approach, looking at spaces of justice in both the civil and common law traditions. Presenting a theoretical and interdisciplinary study of spaces of justice, it will appeal to academics in the fields of law, criminology, sociology and architecture.

 Space, Time, Justice: From Archaic Rituals to Contemporary Perspectives (Hardback) book cover

June 4, 2018

Conference: Law and Poetics in Early Modern England and Beyond, July 2-4, 2018, University of Cambridge @CRASSHlive @Rachel_E_Holmes

From the emailbox:

Law and Poetics in Early Modern England and Beyond, 2–4 July 2018, Trinity Hall, University of Cambridge

Law and Literature has come of age, evolving from the vexations of the early 1990s into a thriving field across periods, with the English Renaissance still a major locus. With the authority and intellectual security this progress gives us, however, come new responsibilities. What can we now see about this interdiscipline, and its historically specific interrelations, that we could not have had clarity about at the movement’s inception? What are the disciplinary anxieties it is time to shake off? Have new ones emerged which we need to examine? And what does work on interactions between the legal and literary imagination in other periods or cultures put in perspective for anglophone early modernists? Our 3-day conference on Law and Poetics will address the trends and urgencies in the field now, with a view to teasing out their implications for the methods and motives of knowing, and considerations of knowability. It will, in the process, raise new questions about the remit of legal, poetic or artistic knowledge.

Our speakers are: Kevin Curran (University of Lausanne), Maksymilian Del Mar (Queen Mary, University of London), Kathy H. Eden (Columbia University), Alex Feldman (Haifa University), Peter Goodrich (Benjamin N. Cardozo School of Law), Rachel E. Holmes (University of Cambridge), Lorna Hutson (Merton College, University of Oxford), Torrance Kirby (McGill University), Doyeeta Majumder (Jadavpur University), Charles McNamara (Columbia University), Bernadette Meyler (Stanford University), Subha Mukherji (University of Cambridge), George Oppitz-Trotman (University of Cambridge), Jan-Melissa Schramm (University of Cambridge), Richard K. Sherwin (New York Law School), Regina Schwartz (Northwestern University), Sebastian Sobecki (University of Groningen), Christopher N. Warren (Carnegie Mellon University), Gary Watt (University of Warwick), Carey Young (Slade School of Fine Art, University College, London), and Andrew Zurcher (Queen's College, University of Cambridge).

This conference also features Law and the Arts: Staging Law, Performing Trials, an integrated three-part public event. This event, involving actors, visual artists and legal professionals comprises:
  • a professional performance event directed by Adele Thomas and Caroline Williams, whose previous credits include: Shakespeare's Globe/Sam Wanamaker Theatre, The Oresteia (2015) and The Knight of the Burning Pestle (2014).
  • a talk and screening by visual artist Carey Young (The Slade School of Fine Art, University College, London; creator of law-based artistic works including Before the Law, Legal Fictions, and Palais du Justice)
  • a widely interdisciplinary, inter-professional Round Table on Law and the Arts featuring: Subha Mukherji (University of Cambridge), Nicola Padfield, QC (Fitzwilliam College, Cambridge), Richard K. Sherwin (New York Law School), Adele Thomas (Freelance Director), Caroline Williams (Freelance Director), and others t.b.a.
More details about the conference including a provisional schedule and speakers' abstracts can all be found here: http://www.crassh.cam.ac.uk/events/27722.

Registration is required and accessible here: https://webservices.admin.cam.ac.uk/cbk/vmwy/index.cgi. Fees are £40 (full price) or £25 (student/unwaged). Fees include lunches and refreshments. Those registering for this conference will automatically be registered for the integrated public event, Law and the Arts: Staging Law, Performing Trials on the 3rd of July. Registration will close on Monday 25th June. 

This conference is part of the research project Crossroads of Knowledge in Early Modern England: the Place of Literature, a five-year project funded by the European Research Council, based at the Faculty of English and CRASSH, University of Cambridge.  

Via @Rachel_E_Holmes

This conference looks absolutely wonderful!

June 2, 2018

Kelsey Grammar Joins Fox Legal Show "Proven Innocent"

Kelsey Grammer will co-star in the new Fox legal drama Proven Innocent. He will take on the role of D. A. Gore Bellows. The series focuses on a team of defense attorneys that takes on the causes of the wrongly convicted. The show will air beginning in the 2018/2019 season.

June 1, 2018

A New Edition of Hervé de Tocqueville's Memoirs Now Available in Electronic Format

Newly published by Les Classiques des Sciences Sociales (Chicoutimi, Quebec):

Mémoires d’Hervé Clérel,Comte de Tocqueville, 1772-1856 (Jean-Louis Benoît, Nicole Fréret et Christian Lippi, eds., 2018).

This publication is available electronically at the links below.

Word version. (also available in RTF version).

PDF version.

More about the book here.

An exciting and important new addition to the Tocquevillian bibliography.

Via Jean-Louis Benoît. Voir aussi le blog de JL Benoît.. 

Bindsell on Some Pre-1800 French and German Central Bank Charters and Regulations

Ulrich Bindseil, European Central Bank, has published Some Pre-1800 French and German Central Bank Charters and Regulations. Here is the abstract.
In some recent studies, the question of the origins of central banking has been revisited, leading to the conclusion that beyond Swedish and British central banking, also a number of earlier European continental central banks would have played a more important role. However, it has been often difficult to access the charters and regulations of these early continental central banks – in particular in English – with Dunbar (1892) being the exception. This note contributes to close this gap in a limited sense by providing some translations of few charters and regulations of pre-1800 central banks from France and Germany, namely of the Hamburger Bank of 1619, the Leipziger Bank of 1698, the Banque Générale of John Law of 1716, the Prussian Royal Bank of 1766, and the Caisse d’Escompte of 1776. These early central banks were of heterogeneous success and duration, and actually some only partially or only temporarily deserved to be called a central bank. Moreover, they did not necessarily apply precisely their charters and regulations. Still, the texts provide important insights into the objectives and design of early continental central banks. This note does provide neither an interpretation, nor discussion, nor comparative review of the charters and regulations covered. However, it provides schematic introductions to each of the early central banks.
The full text is not available from SSRN.