December 19, 2018

Stern on The Legal Imagination in Historical Perspective @ArsScripta

Simon Stern, University of Toronto Faculty of Law, is publishing The Legal Imagination in Historical Perspective in Virtue, Emotion, and Imagination in Legal Reasoning (Amalia Amaya and Maksymilian Del Mar, eds., Hart, 2019). Here is the abstract.
After considering the different meanings that commentators have assigned to "the legal imagination," this chapter asks what is specifically legal about these imaginative uses: what distinctively imaginative traits do we find in law, by contrast with other intellectual domains? In the law, the imagination operates under constraint, whereas in many fields, imaginative activity is associated with free play. Exploring this idea with respect to the introduction of "the reasonable man" in 19th-century law, the chapter takes up an overlooked episode in the history of figure: its unsuccessful use in the law of negotiable instruments, in the 1820s and 30s. By asking what accounts for the move to adopt this figure and to reject it ten years later, and then to find it taken up shortly afterwards in the law of torts, I seek to demonstrate how lawyers' and judges' lateral-looking, analogy-seeking efforts exhibit the legal imagination, operating under constraint, and how the example of an unsuccessful effort can help to reveal the limits that govern this enterprise.
Download the essay from SSRN at the link.

Witte and Latterell on The Little Commonwealth: The Family as Matrix of Markets and Morality in Early Protestantism

John Witte and Justin Latterell, both of Emory University School of Law, are publishing The Little Commonwealth: The Family as Matrix of Markets and Morality in Markets and Morality: Spirit and Capital in an Age of Inequality (Ted A. Smith and Robert P. Jones, eds., 2018). Here is the abstract.
Max Weber traced the rise of the modern economy back to the convergence of new Protestant teachings on vocation, predestination, and asceticism. It was especially the marital household, this Article argues, that served as an incubator of these Protestant teachings and a laboratory for their application to economic activity. The early modern Protestant family was structured and schooled to cultivate the critical habits of discipline and organization in the economic lives of its members. Early modern Protestant catechisms and household manuals set out in detail the moral and religious rules, rights, and responsibilities that husbands and wives, parents and children, masters and servants had to each other and to their neighbors in different stages of life. It is here, in the elementary ethics and intimate experiences of the Protestant household, that many of the basic norms and habits of modern economic life were slowly instilled and cultivated in each new generation. This chapter offers case studies of Heinrich Bullinger, Robert Cleaver, William Perkins, and Richard Baxter to illustrate how the early modern Protestant family was structured to support church, state, society, and economy alike.
Download the essay from SSRN at the link.

December 17, 2018

Rise of the Automatons, A Savannah Law Review Symposium Issue, Now Available @SavLawRev @WendellWallach @brianlfrye @cybersimplesec @CGIntelligence

Rise of the Automatons, symposium issue of the Savannah Law Review, is available on the Law Review's website. Among the articles to peruse:

Wendell Wallach, Rise of the Automatons

Brian L. Frye, The Lion, the Bat & the Thermostat: Metaphors on Consciousness

Christine A. Corcos, "I Am the Master": Some Popular Culture Images of AI in Humanity's Courtroom

Jason Zenor, Endowed By Their Creator With Certain Unalienable Rights: The Future Rise of Civil Rights For Artificial Intelligence?

Jeffrey M. Lipshaw, Halting, Intuition, and Action: Alan Turing and the Theoretical Constraints on AI-Lawyering

Charlotte A. Tschider, Deus ex Machina: Regulating Cybersecurity and Artificial Intellgience For Patients of the Future

Philip Segal, Legal Jobs in the Age of Artificial Intelligence: Moving From Today's Limited Universe of Data Toward the Great Beyond

December 14, 2018

Ricca on Bestiaries, Moral Harmonies, and the "Ridiculous" Source of Natural Rights

Mario Ricca, University of Parma, is publishing Ironic Animals: Bestiaries, Moral Harmonies, and the ‘Ridiculous’ Source of Natural Rights in volume 31 of the International Journal for the Semiotics of Law (2018). Here is the abstract.
The Bible recounts that in Eden, Adam gives names to all the animals. But those names are not only representations of the animals’ nature, rather they shape and constitute it. The naming by Adam contains in itself the divide between the human and non-human. Then, there is the Fall: Adam falls and forgets Being. Though he may still remember the names he gave to the animals in Eden, he is no longer sure about their meaning. Adam will have to try to remember his own intentions. Through this effort he can also become aware of how he thinks, who he is, and what was the natural order he knew before the Fall. Medieval bestiaries tell us this story. Bestiaries are works of word play populated by animal figures. They depend on back-and-forth anthropomorphization, or circular metaphor. Animal figures are portrayed as both a mirror of human nature and a window on it. Bestiaries served as means for the moral education of human beings and, at the same time, a way to criticize the current state of humanity, including political and ethical habits. Within the moral irony of medieval bestiaries we can find the origin of the invented nature that modernity will try, subsequently, to insert into natural rights discourse through the teleological oxymoron of their naturalized and naturalizing counter-factuality (natural rights will be simultaneously “being” and “ought,” nature and values/ends). I will propose a historical-semiotic journey through the ironic representations of the human-beasts from the ancient world to contemporaneity. The proposal resulting from this cultural excursion is that the words included in the many national and international Rights declarations operate much like the names Adam gave to the animals and still more as they were re-read in medieval bestiaries, both textual and musical. So, can the words of Rights still serve as musical scores, open to an infinite play of re-signification? If we were able to overcome the modern culture/nature and human being/animal dualisms, we could cast, today as in the past, a zoological gaze on human rights by means of contemporary bestiaries and, in this way, perhaps find the gist of rights’ names and our ever regained and ever lost again humanity.
The full text is not available for download.

December 13, 2018

Nadler on The Value of Homicide Victims in "The Wire" @NorthwesternLaw @ABFResearch

Janice Nadler, Northwestern University School of Law, and American Bar Foundation, is publishing 'Deserve Got Nothin’ to Do with It': The Value of Homicide Victims in The Wire in the University of Chicago Legal Forum. Here is the abstract.
The moral principle of placing the highest value on human life is a basic one. It underlies a central responsibility of criminal law. But within the universe of the American crime drama series The Wire, these fundamental principles break down. The focus of government investigations is framed by the drug war, which sometimes distorts the goals and decisions of law enforcement strategy. At most, each killing in the inner city is typically acknowledged by the state in the form of an uptick in the police department’s weekly ComStat counts, by the press as a story buried deep within the paper, or not mentioned at all. In this Article, I argue that the frequency of killings and the sheer number of victims can itself result in the distortion of basic values and priorities. Exposure to large human death tolls can result in what researchers have called psychic numbing. Against the background of a large aggregate tragedy, each new death represents an incremental increase, which fails to register emotionally because our compassion becomes fatigued. In The Wire, psychically-numbed characters pursue institutional goals unencumbered by the negative emotions that otherwise might prompt them to question their participation in acts that lead to perverse outcomes. Less visible is the implicit hierarchical ordering of victims which, in addition to psychic numbing, contributes to law operating in a manner not always predicted by the law in the books. There were many premeditated murders depicted in The Wire, and the responsible individuals were depicted as almost never receiving punishment by the criminal justice system. This fictional depiction of the absence of accountability for killings is unfortunately largely accurate in many large U.S. cities today.
Download the article from SSRN at the link.

Call For Submissions: ABA Silver Gavel Awards, 2019 @ABAesq @abapubliced

From the mailbox:

The ABA invites submissions for the 2019 Silver Gavel Awards for Media and the Arts. The nine eligible categories include books, commentary, documentaries, drama and literature, magazines, multimedia, newspapers, radio, and television. More here. 

December 12, 2018

Donelson and Hannikainen on Fuller and the Folk: The Inner Morality of Law Revisited @LSULawCenter

Raff Donelson, LSU A&M and LSU Law Center, and Ivar Hannikainen, University of Sheffield, Department of Philosophy, and Pontifical Catholic University of Rio de Janeiro, are publishing Fuller and the Folk: The Inner Morality of Law Revisited in 3 Oxford Studies in Experimental Philosophy (T. Lombrozo and S. Nichols, eds, Oxford University Press, forthcoming). Here is the abstract.
The experimental turn in philosophy has reached several sub-fields including ethics, epistemology, and metaphysics. This paper is among the first to apply experimental techniques to questions in the philosophy of law. Specifically, we examine Lon Fuller's procedural natural law theory. Fuller famously claimed that legal systems necessarily observe eight principles he called "the inner morality of law." We evaluate Fuller's claim by surveying both ordinary people and legal experts about their intuitions about legal systems. We conclude that, at best, we should be skeptical of Fuller's inner morality of law in light of the experimental data.
Download the essay from SSRN at the link.

December 11, 2018

Said and Silbey on Narrative Topoi in the Digital Age @zahr_said @JSilbey

Zahr Said, University of Washington School of Law, and Jessica M. Silbey, Northeastern University School of Law, are publishing Narrative Topoi in the Digital Age in volume 68 of the the Journal of Legal Education. Here is the abstract.
Decades of thoughtful law and humanities scholarship have made the case for using humanistic texts and methods in the legal classroom. We build on that scholarship by identifying and describing three “narrative topoi” of the twenty-first century – podcasts, twitter and fake news. We use the term “topos” (from the Greek meaning “place”) and its plural, “topoi,” to mean “a literary commonplace” and “general setting for discussion” in the context of literary forms. Like an identifiable genre, narrative topoi are familiar story paths for audiences to travel. These narrative topoi live in contemporary popular culture and are products of digital technology’s capacity to share and shape communication in new ways that draw on older narrative conventions and forms. In a law school, drawing on new narrative topoi can reorient legal analysis through inquiry into twenty-first-century problems of language, narrative form, authenticity, and audiences. Legal educators may also highlight historical continuity between cultural and legal history and today’s forms and experiences, foregrounding issues central to legal skills, such as analogic reasoning, advocacy, counseling, and factual analysis. We address all of these points while exploring particular examples of these narrative topoi of our digital age.
Download the article from SSRN at the link.

December 10, 2018

CFP: Special Workshop at the "Dignity, Diversity, Democracy" Conference of the International Association for the Philosophy of Law and Social Philosophy, Lucerne, Switzerland, July 7-13, 2019

CFP for Special Workshop at the "Dignity, Diversity, Democracy" Conference (Annual Congress of the International Association for the Philosophy of Law and Social Philosophy) Lucerne, Switzerland, July 7-13, 2019 (at the University of Lucerne)

Convenors: Andrew Majeske, Gilad Ben-Nun

Workshop Description

In the United States the contentious midterm elections of 2018 will occur shortly. The narratives dominating the public conversation in respect to immigration (currently in the news is the migrant caravan of Honduran refugees, and the move to restrict birth-right citizenship) and nationalism (“make American great again”, and “America first”) by all appearances are controlled respectively by the far right and the far left of the political spectrum. Certain it is that these more extreme narratives garner the bulk of mainstream media attention, and offer the least opportunity for identifying a common ground upon which productive public discussion can work to counter the fear-mongering and demonizing that constitute the core of these narratives. A similar dynamic has been playing out in many if not most of the nations that constitute the EU. 

It is the hope of the conveners that the papers that will be shared in this special workshop will work towards addressing , from the interdisciplinary standpoint of law, literature & culture, the problem of the missing middle, and to identify ways in which a different narrative can be structured that can either bridge the extremes of the political left and right, or if that is not feasible, to work towards creating a new narrative (or resurrecting an older one). This new or restored narrative must be one that creates a broad and stable middle ground, a middle-ground that highlights the core values of dignity, democracy & diversity, and the principles that support these values—namely, that the only legitimate government is one based on the consent of those governed, and its necessary analogue, that there is at the least a fundamental initial political equality of all persons. Whether this new or restored narrative will be of sufficient power and vitality to push the extreme narratives back to their native ground, the margins, is uncertain; but it is the position of the conveners that we have a duty to try. 

The conveners are therefore hopeful that given the myriad of perspectives and approaches that characterize the interdiscipline of law, literature & culture, that the workshop will be productive in identifying such new or restored narratives with which we can begin to confront what is presenting itself as the fundamental crisis of our times.  We trust that the urgency of establishing a trans-Atlantic (and hopefully even broader) dialogue on this theme is evident to all.

The special workshop will be held in English. 

If you are interested in presenting a paper in this workshop, please send a short abstract (max. 300 words) to the workshop conveners by January 31, 2019. Decisions will be made by February 28, 2019. Full papers will be circulated among the workshop participants approximately two weeks before the start of the conference. 


Andrew Majeske (John Jay College of Criminal Justice (CUNY), New York)

Bilad Ben-Nun (University of Leipzig)

Kirkby on Reconstituting Canada: The Enfranchisement and Disenfranchisement of "Indians": c 1837-1900 @CoelKirkby

Coel Kirkby, University of Sydney Law School, is publishing Reconstituting Canada: The Enfranchisement and Disenfranchisement of ‘Indians’, c. 1837-1900 in volume 69 of the University of Toronto Law Journal (2019). Here is the abstract.
The constitutional history of Canada and First Nations is often told as the promise fulfilled of Aboriginal rights and treaties. I will challenge this dominant story by recovering the story of the enfranchisement and disenfranchisement of ‘Indian’ subjects in the first three decades of Canadian confederation. Far from forgotten actors in a foretold play, ‘Indian’ voters were crucial to determining the outcome of three closely-contested federal elections and challenging settler ideas of the nascent Canadian nation. The question of the ‘Indian’ franchise was always embedded in competing constitutional visions for Confederation. The Canadian dream of transforming and assimilating Indigenous peoples would give way to a cynical idea of segregation under the permanent regime of the Indian Act. If the Indian franchise was the apotheosis of assimilation, its revocation marked the start of racial segregation. I juxtapose these Canadian constitutional visions with two alternative possibilities. The Anishinaabe-dominated Grand General Council accepted the franchise as part of its vision of reconciling membership in both their treaty-recognized nations and the Canadian state. The Confederacy Council of the Six Nations, in contrast, rejected the franchise as an existential threat to Haudenosaunee self-rule mediated by a treaty relationship with the Canadian and imperial governments. Recovering the constitutional contests driving Indian enfranchisement and disenfranchisement shows us of how the successful imposition of a single vision of a white democracy silenced alternative visions of a multi-national coexistence. It also reminds us of the multiplicity of constitutional possibilities for a common constitutional future.
Download the article from SSRN at the link.

Suuberg on Buck v. Bell, American Eugenics, and the Bad Man Test: Putting Limits on Newgenics in the 21st Century @alessuube

Alessandra Suuberg, indepdendant scholar, has published Buck v. Bell, American Eugenics, and the Bad Man Test: Putting Limits on Newgenics in the 21st Century. Here is the abstract.
With its 1927 decision in Buck v. Bell, the Supreme Court embraced the American eugenics program, which was then at its peak. An association with fascism and a discredited pseudoscience was one reason why the Buck case would later became infamous. Another reason was that, rather than resolving a true conflict, the case was seen as contrived: designed strategically to validate a particular Virginia law and ensure the success of the eugenics movement. Because the strategists were a close-knit group of elites and eugenics proponents, and the guinea pig at the center was poor and disadvantaged, the case provided a striking example of the way that a legal system intended to protect the most vulnerable members of society can instead be manipulated and used against them in the name of reform. Today, it is important to remember Buck and its legacy in order to avoid repeating the mistakes of the past.
Download the article froM SSRN at the link.

Kirkby on The Uses of Primitive Law in Anglo-American Concepts of Modern Law, 1861-1961 @CoelKirkby

Coel Kirkby, University of Sydney Law School, is publishing Law Evolves: The Uses of Primitive Law in Anglo-American Concepts of Modern Law, 1861-1961 in the American Journal of Legal History (2018). Here is the abstract.
This study traces how Anglo-American legal thinkers used primitive law to develop their concepts of modern law in the century from Austin to Hart. It first examines how Maine developed his historical jurisprudence as a form of social evolutionary analysis of law. Next, it traces the development of legal anthropology as a distinct discipline combining the scientific method of participant observation with the legal method of the case study. Finally, it looks at how Hart uses primitive law to make his famous argument that law was ‘the union of primary and secondary rules’. In each case, legal thinkers develop their concepts of modern law through a foundational contrast with primitive law. This is a striking feature of much Anglo-American jurisprudence that cuts across the borders of the positivist, natural, historical, realist, and other schools of jurisprudence. Appreciating these new uses of primitive law is a first step in excavating an intellectual history of legal thought grounded in the context of colonial knowledge.
Download the article from SSRN at the link.

Mirow on Léon Duguit and the Social Function of Property in Argentina @fiulaw

M. C. Mirow, Florida International University College of Law, is publishing Léon Duguit and the Social Function of Property in Argentina in Léon Duguit and the Social Obligation Norm of Property: A Translation and Global Exploration (Paul Babie and Jessica Viven-Wilksch, eds., Cham: Springer, forthcoming). Here is the abstract.
Despite its early introduction to Argentina in 1911, the doctrine of the social function of property was not quickly appropriated into the Argentine legal system. Only after a period of more than thirty-five years did this concept of property find expression in this country through the Constitution of 1949, the Peronist constitution drafted under the guidance of the Arturo Enrique Sampay. Duguit's writings formed part of a broader understanding of the social function of property that was informed by various scholars and sources, and particularly by works on Christian humanism and the social doctrine of the Roman Catholic church. Although mentioned in the debates of the Argentine Constitution of 1949, Duguit was only one of a variety of sources employed by advocates of the doctrine, and his direct influence in the area was significantly less than one might expect considering the historical link between his lectures in Buenos Aires and the creation of the doctrine.
Download the essay from SSRN at the link.

December 5, 2018

A Blog Devoted To Strange Tales of Crime @HorribleSanity

If you enjoy odd tales of crime and death, check out the very entertaining blog Strange Company, devoted to the weird and the macabre. Your host is Undine, who also maintains The World of Edgar Allan Poe. Follow her on Twitter @HorribleSanity.

Hammill on 40 Years At the Baldy Center: A Law and Society Hub in Buffalo @baldycenter

Luke Hammill, University at Buffalo Law School, has published 40 Years at the Baldy Center: A Law and Society Hub in Buffalo in Buffalo. Buffalo: University at Buffalo Baldy Center for Law & Social Policy. 2018. Here is the abstract.
The University at Buffalo’s Baldy Center for Law & Social Policy just turned 40. That’s 40 years of groundbreaking sociolegal research, conferences, teaching, support for graduate students and much more. To commemorate the Center’s many accomplishments, this monograph traces through its history, showing that it helped put (and keep) Buffalo on the map as a hub in the Law and Society movement. The monograph draws on a year’s worth of research and interviews with the key characters in the Baldy Center’s story. Thousands of pages of University at Buffalo archives, court records, academic papers, historical documents and more were reviewed to piece together a narrative showing the Baldy Center’s tremendous impact on institutions, the academic literature and people’s careers. What emerges is a picture of a place where interdisciplinary collaboration and unique ideas find a home that wouldn’t exist if not for an endowment created by a civic-minded Buffalo lawyer who died in the mid-20th century and couldn’t have imagined the legacy that awaited him.
Download the essay from SSRN at the link.

December 4, 2018

CFP: Workshop on the Protection of Cultural Heritage and Municipal Law, April 5, 2019 @asilorg

From the American Society of International Law's Cultural Heritage and the Arts Interest Group (CHAIG) and Fordham University School of Law's Urban Center, in collaboration with the Quebec Society of International Law (SQDI), a Call for Papers for a Workshop on the Protection of Cultural Heritage and Municipal Law.

The workshop will be held at Fordham University’s School of Law, in Midtown Manhattan, New York City, on Friday, April 5, 2019. The protection of cultural heritage has long been understood as the province primarily of international law, but this workshop will highlight the place of municipal or local law in the discourse, exploring continuities and discontinuities with international law. Do international law and municipal law draw on each other’s strengths? Do they complement each other in terms of their shortcomings? Do they connect, or are they disconnected, in practice? While international law is addressed to nations, local governance is highly relevant to the protection of cultural heritage, and yet sometimes working in silos from other cities, provinces or states, as well as national governments.

Paper proposals of no more than 500 words should be sent to before Sunday, December 30th, 2018. The authors of the selected proposals will be notified by Friday, January 18th, 2019. Proposals from emerging scholars and graduate students are highly encouraged. Draft papers must be submitted no later than Monday, March 18th, 2019, for circulation to the selected participants in preparation for the workshop. Please note that no funding is available to cover transportation and accommodation for participants. Attendance at the workshop is, however, free of charge, subject to prior registration. Lunch will be provided to workshop participants.

More about the CFP here.

Daniel Dae Kim, Warren Hsu Leonard Working on Korean-American Legal Drama "Exhibit A" For ABC

Daniel Dae Kim (Lost, Hawai'i Five-O) is producing and starring in a new legal drama for ABC, to be called Exhibit A. The show will center on a Korean-American former prosecutor, Andrew Cho, seeking to put his life back together after enemies sabotage his legal career. Warren Hsu Leonard is also executive producing and writing; Mr. Leonard is a Harvard Law graduate who practiced corporate law and worked on the Amazon series Goliath and How To Get Away With Murder.

Mr. Kim originally worked on Exhibit A for CBS. The series is based on the Korean series My Lawyer, Mr. Jo.

More here from Deadline.