August 29, 2019

Cavanagh on Legal Thought and Empires @cambridge_cpt

Edward Cavanagh, University of Cambridge, is publishing Legal Thought and Empires: Analogies, Principles, and Authorities From the Ancients to the Moderns in Jurisprudence: An International Journal of Legal and Political Thought (2019). Here is the abstract.
Empire reveals some of the reasons why the history of legal thought should not be prepared in precisely the same way as the history of political thought. This article, beginning in the Mediterranean before adopting a more transnational scope, identifies analogy, principle, and authority as some of the principal modes of legal reasoning, and then seeks to examine several instances of their application within different imperial and colonial contexts. The British Empire is the most obvious trajectory in what follows. Like many other modern empires, however, it is optimally approached in view of longer term institutional and intellectual developments in Europe. Substantively and procedurally, European law became elaborate over time as dominant communities expanded to interact with more fixed communities. The motivations of those lawyers who elaborated this body of law were various and must be comprehended. While imperialism spurred innovation and change in the kind of objectives that were tasked to legal thinkers, what remained essential to the realisation of those objectives was their ability to enjoy recourse to those very modes of reasoning (analogies, principles, and authorities) that had characterised the development of European legal thought for millennia.
Download the article from SSRN at the link.

Bonica and Klein on Adam Smith on Reputation, Commutative Justice, and Defamation Laws @mbonica @GeorgeMasonU

Mark Bonica, University of New Hampshire, Health Management and Policy, and Daniel B. Klein, Department of Economics, have published Adam Smith on Reputation, Commutative Justice, and Defamation Laws as GMU Working Paper in Economics No. 19-24. Here is the abstract.
We explore two issues in reading Smith. The first concerns whether he thought that “one’s own” as covered by commutative justice included one’s reputation. Several passages point to the affirmative. But reputation is left out of Smith’s “most sacred laws” description of commutative justice. Moreover, so much of reputation—e.g., “Steve’s work stinks”—does not fit Smith’s description of commutative justice’s rules (precise and accurate). Our reading makes use of older terminology from Pufendorf, Carmichael, and Hutcheson distinguishing “simple” and “intensive” esteem, and suggests that the “reputation” that sometimes appears is of a simple variety (“Steve steals horses”) that potentially incites invasion of commutative justice’s three staples—person, property, promises due. On that reading the “reputation” that comes under commutative justice would be adjunctive to the three staples. Our reading also recruits Hume, who nowhere even hinted at reputation being a constituent of commutative justice. The second matter explored is Smith’s policy inclination about defamation laws (libel, slander) as they would pertain to intensive esteem. By our lights, were Smith to favor intensive-reputation defamation laws (against, say, “Steve’s work stinks”), we would have to count that as another exception made to the liberty principle. Smith’s remarks are mixed, but we think he was rather inclined against aggressive or extensive laws of such kind. (Also, we draw a parallel to patent and copyright.) Looming behind our discussion is the question: Why did Smith leave us with contrarieties and unclarity? We figure that if Smith thought that wantonly telling malicious lies like “Steve’s work stinks” was not a violation of commutative justice and, moreover, is best left perfectly legal, those are judgments that the liberal project’s great prophet would hardly want to make plain, because indifferent readers would misunderstand them and adversaries would misrepresent them.
Download the paper from SSRN at the link.

August 28, 2019

Call For Nominations: Connecticut Supreme Court Historical Society Collier Prize

Call for Nominations for the Connecticut Supreme Court Historical Society’s Collier Prize:

Beginning in Spring 2020, the Connecticut Supreme Court Historical Society will institute an annual Christopher Collier Prize with a $1,000 award to historians, legal scholars, political scientists or others who have contributed an important work or works to advance the study of American legal and constitutional history that has Connecticut connections.  The prize is named in honor of former Connecticut State Historian, University of Connecticut history professor, Connecticut Supreme Court Historical Society vice president and author Christopher Collier, whose research, writing and editing over a long career broadened knowledge of the founding of American constitutional government, Connecticut’s role in the creation of the U.S. constitutional system, and the development of Connecticut’s own constitutional and legal order.  The prize will recognize and encourage scholars whose publications, teaching and/or public exhibits have furthered American and Connecticut legal and constitutional history in Professor Collier’s prolific and innovative spirit.  The society will consider any academic or independent historians, political scientists, law professors, judges, lawyers, students and others whose work (including work in progress) may be worthy of this prize.  For the 2020 award, the society invites nominations to be submitted to the society’s Collier Prize Committee by December 1, 2019.  Nominations should identify the nominee’s current employment (if applicable) or background, describe the work that he or she is presently working on and/or has recently contributed to the study of American legal-constitutional history and its Connecticut connections, and briefly explain why the nominee deserves the prize.  Self-nominations are permitted, and should include curriculum vitae or a resume covering the self-nominee's work.  The society will award the prize and its $1,000 stipend at its spring 2020 annual meeting, which the society expects that the recipient will attend.  Nominations should be submitted on paper to the Collier Prize Committee c/o Attorney Jeffrey J. White, Robinson & Cole, 280 Trumbull Street, Hartford Connecticut 06103 no later than December 1, 2019.

Frye on The Stolen Poem of Saint Moling @brianlfrye @ShubhaGhosh @ElgarPublishing

Brian L. Frye, University of Kentucky College of Law, is publishing The Stolen Poem of Saint Moling in Forgotten Intellectual Property Lore (Shubha Ghosh ed. Edward Elgar 2019). Here is the abstract.
It’s a truism of copyright scholarship that the modern concept of the author didn’t exist until the modern era. The medieval and Renaissance author was a vehicle for the text, but the modern author is the creator of the text. And in the 18th century, the Romantic movement transformed authorship into self-expression. This individualization of authorship enabled the creation of copyright. While the printing press made commercial publishing possible, the modern concept of the author created “literary property.” But is the truism entirely true? The concept of the author has certainly changed over time, and taken different forms in different places at different times. But is the modern concept of the author truly unique to the modern era, or does it merely reflect a particular literary economy? In other words, did our concept of the author create our literary economy, or did our literary economy shape our concept of the author? Surely, the answer is a bit of both. But a medieval Irish legend at least suggests that the modern concept of the author is only a particular expression of an economic phenomenon.
Download the essay from SSRN at the link.

August 27, 2019

Kahn on Mask Bans As Expressions of Memory Politics in the US

Robert Kahn, University of St. Thomas School of Law (MN), has published Mask Bans As Expressions of Memory Politics in the United States. Here is the abstract.
Mask laws have a lengthy history in the United States, one primarily, but not exclusively tied up with the Ku Klux Klan. They also are an instance of memory politics. In particular, mask bans complicate Nikolay Koposov’s distinction between narrow, self-centered memory politics (society casting itself as a victim), and broad, universalistic memory politics (society recognizing its past crimes). Sometimes, as in the Reconstruction Era, mask bans sent inculpatory or universal messages, albeit weak ones. By the 1920s, the mask bans protected Southern elites and by the 1950s, they partially exculpated the regime of segregation by focusing attention on the Klan as uncouth, cowardly, and unworthy defenders of a “progressive” South still deeply invested in segregation and White supremacy. As such, mask bans show that memory laws are sometimes used as tools of moral distancing, something also on display in recent attempts to anoint Antifa as the new Klan by “unmasking” it.
Download the article from SSRN at the link.

August 26, 2019

ICYMI: Babcock and Sassoubre on Deliberation in "12 Angry Men"

ICYMI: Barbara Allen Babcock and Ticien Marie Sassoubre, both of Stanford Law School, have revised Deliberation in 12 Angry Men, first published at 82 Chicago-Kent Law Review 633 (2007). Here is the abstract.
Talking with law students about 12 Angry Men is a lot like talking with law students about juries generally. The trained certainties drain away as they wonder whether they will be able to convince twelve diverse and unpredictable people of anything. Their responses remind us that this film is not just about juries, but also about lawyering, which helps make it both relevant-and teachable-fifty years after its release. Alexis de Tocqueville, who was a great fan of the American jury, observed that juries are "the most efficacious means of teaching [the people] how to rule well."' 12 Angry Men dramatizes the relationship between the deliberative process in which juries engage and the larger cultural work of law and democratic institutions. In the following pages, we will explore this dramatization, bringing to bear our own experiences: Babcock as trial lawyer and teacher of procedure, Sassoubre as a teacher of cultural studies of law.
Download the article from SSRN at the link.

ICYMI: Some Recent Law and Humanities Publications From Robert E. Atkinson, Jr. @FSUCollegeofLaw


Robert E. Atkinson, Jr., Florida State University College of Law, has published and is publishing:

Growing Up With Scott and Atticus: Getting From "To Kill a Mockingbird" Through "Got Set a Watchman," 65 Duke L.J. Online 95 (2016).

Liberalism, Philanthropy, and Praxis: Realigning the Philanthropy of the Republic and the Social Teaching of the Church, 84 Fordham L. Rev. 2633 (2016).

A Primer on the Neo-Classical Republic Theory of the Nonprofit Sector (And the Other Three Sectors, Too), in Research Handbook on Not-For-Profit Law (Matthew Harding, ed., Edward Elgar, 2018).

Sea Captains and Philosopher Kings: "Billy Budd" as Melville's Republican Response to Plato's "Republic,"  in the Hofstra L. Rev. (forthcoming 2020).

Writer Re-Written: What Really (Might Have) Happened to Atticus and Scott, 69 Ala. L. Review 595 (2018).

Cornett on Hillbilly Atticus @UTKLaw

Judy M. Cornett, University of Tennessee College of Law, is publishing Hillbilly Atticus in volume 69 of the Alabama Law Review (2019). Here is the abstract.
In his controversial memoir, Hillbilly Elegy, J.D. Vance implicitly asserts a connection between the individual and his or her culture. Vance’s work rests on a number of premises. An individual is a product of a particular culture, and that culture defines the choices available to that individual. Therefore, understanding a person requires an understanding of the culture from which that person comes. Conversely, by looking at individuals within a given culture, we can define the culture and generalize its characteristics to other individuals within that culture. Although several commentators have pushed back against the latter proposition by pointing out that not all denizens of Appalachia underwent the same experiences as Vance, few commentators have challenged the former proposition: that we can understand an individual better by understanding the culture from which he or she comes.
Download the article from SSRN at the link.

August 23, 2019

ALSH Conference Set for November 21-24, 2019

ASLH has announced its 2019 Program. The meeting will take place in Boston from November 21 to November 24, 2019. Here's a link to the conference program.

Inniss on Slavery at Princeton @AuntieFeminist @SMULawSchool

Lolita Buckness Inniss, Southern Methodist University School of Law, has published ‘A Southern College Slipped from Its Geographical Moorings’: Slavery at Princeton at 39 Slavery & Abolition 236 (2018). Here is the abstract.
While slave-owning students at Princeton rarely constituted a majority of students, they were often a large plurality of the students in the antebellum period. Because of Princeton's historic role in educating southerners, it has sometimes been referred to as the most southern of the Ivy League schools. So many students from the United States South enrolled at Princeton during the first several decades of the college that one observer wrote that one might take Princeton for a ‘Southern college slipped from its geographical moorings.’ This article explores the extent to which and whether Princeton behaved like a southern institution in its speech and actions concerning slavery and emancipation.
The full text is not available for download from SSRN.

August 20, 2019

Home Run! The FIU Law Review's Microsymposium on Law and the Infield Fly Rule @FIULAWREVIEW @SWeberWaller @KarboraniAdrian @robneyer @oldfatherc @fiulaw

Look at this unusual and fresh approach to a law review symposium issue. I know less than nothing about baseball, as you can tell from the title of this post, but I enjoyed looking through FIU Law Review's Micro-Symposium: Infield Fly Rule Is In Effect: The History and Strategy of Baseball's Most (In)Famous Rule.  Here's a list of the articles included.

Adrian Karborani, Introduction to the Micro-Symposium: Infield Fly Rule in Effect

Richard D. Friedman, Just Say No To the Cheap Double Play

Mark A. Graber, Functionalism and the Infield Fly Rule

Andrew J. Guilford, Another Side to the Infield Fly Rule

Richard Hershberger, The Prehistory of the Infield Fly Rule

Rob Nelson, The Enfield Fly Rule

Rob Neyer, Teach the Controversy

Peter B. Oh, De-Limiting Rules

Chad M. Oldfather, Umpires, Judges, and the Aesthetics of the Infield Fly

Spencer Weber Waller, The Puzzle of the Infield Fly Rule

Howard M. Wasserman, Keeping the Infield Fly Rule in Effect 

August 19, 2019

Macey on the Central Role of Political Myth in Corporate Law @JonathanMacey @YaleLawSch

Jonathan R. Macey, Yale Law School, has published The Central Role of Political Myth in Corporate Law. Here is the abstract.
This Article shows that a variety of fundamental rules of corporate law are based on a set of myths. The Article explains that these myths play an important role in attracting public acceptance and support for what otherwise would be unpopular and controversial regulations. Thus, one can view the role played by myth in corporate law in a particular context as having either positive or negative social effects depending on one’s opinion of the social value of the underlying legal rule that being buttressed and affirmed by the myth. Four political and sociological myths that continue to play important roles in law are examined. These are: (1) the myth that corporations are owned by their shareholders and represent ownership interests in businesses rather than mere financial claims on the cash flows of those businesses, coupled with certain political (voting) rights that protect those claims; (2) the “shareholder value myth,” that corporate officers and directors are legally required to maximize firm value; (3) that subsidiary companies are independent from and not subject to the control of their parent companies and must remain so in order for the parent company to avoid liability for the contract and tort debts of the subsidiary under various alter ego and piercing the corporate veil theories of corporate law; and (4) the legal regulation of insider trading is justified because of the necessity of creating a “level playing field” among participants in financial markets. Reasonable people can disagree about whether the role played by these myths is normatively positive or negative in each of these contexts.
Download the article from SSRN at the link.

Reminder: CFP for 2019 Graphic Justice Discussions: "Drawing the Human: Law, Comics, Justice" @LexComica


2019 Graphic Justice Discussions – “Drawing the Human: Law, Comics, Justice”
28-29 November 2019, USC, Queensland, Australia

The 2019 conference of the Graphic Justice Research Alliance will be hosted by the USC School of Law and Criminology, University of the Sunshine Coast, Queensland Australia. The conference explores the theme Drawing the Human: Law, Comics, Justice and will run on the 28th and 29th November 2019.

The conference seeks to examine the role of comics, graphic novels and graphic art in constituting as well as critiquing law, rights and justice as they relate to and extend beyond the human. Proposals for papers and panels are welcome from academics, postgraduate students and artists from across a range of disciplines including law, criminology and justice, comics studies, visual and cultural studies and the humanities.

In addition, we are delighted to announce our confirmed keynotes:
  • Dr Sonja Schillings, who will be speaking on Conditioning the Law: Nature and Nuclear Energy in the Comic Form
  • Associate Professor Neal Curtis, who will be speaking on Redrawing the Lines: Superheroes as Law and Myth

Please see the attached call for papers which closes on the 31st of August.

In addition, you can find more details at our conference website here.

We look forward to welcoming you to the Sunshine Coast in November.


Timothy Peters, Dale Mitchell & Ashley Pearson
Conference Hosts – Drawing the Human: Law, Comics, Justice

August 14, 2019

Rub on Owning Nothingness: Between the Legal and the Social Norms of the Art World @Guy_A_Rub

Guy A. Rub, Ohio State University College of Law, is publishing Owning Nothingness: Between the Legal and the Social Norms of the Art World in the Brigham Young University Law Review. Here is the abstract.
Almost $8 million — that is what the Crystal Bridges Museum paid for one work of contemporary art in November 2015. What did that museum get for that hefty sum? From a legal perspective, absolutely nothing. The work it purchased was just an idea, and ideas of this kind escape legal protection. The reason that large, sophisticated, experienced, and legally-represented institutes are willing to pay millions of dollars for something that the law does not recognize has to do with the social norms of the art world. This Article is one of the first in legal scholarship to examine at depth those norms in this multibillion-dollar industry. It does so by, inter alia, reporting on interviews the author conducted with industry insiders concerning their practices. The Article suggests that those norms create property-like rights in all artworks, whether or not they are legally protected, as well as an ongoing right of artists to partly control the use of their works. Those social norms fill a gap between the ways in which the contemporary art world understands creativity and ways in which our legal system actually incentivizes creative endeavors. The Article analyzes the normative implications of these social norms and the gap they fill. First, it explains how those norms incentivize certain forms of creativity in a way that is more effective and efficient than property rights. Second, going beyond the art world, the Article shows how the social norms expose certain hidden assumptions in copyright authorship and their shortcomings. It suggests how the law can be improved to account for the richer description of creativity this Article provides. Third, the Article contributes to the ongoing debate concerning private-property ownership. The art world provides sellers with significant post-sale control over their works in a way that the law commonly finds undesirable. That tension might justify rethinking of the current legal rules that disincentivize post-sale control.
Download the article from SSRN at the link.

August 13, 2019

Visions Not So Splendid: Art, Law, Justice: August 22, 2019 at the Australian National University

The ANU Centre for Law, Art and the Humanities presents Visions Not So Splendid: Art, Law, Justice on Thursday 22 August, 12:00-4:30PM at the Sir Ronald Wilson Building Lecture Theatre, Australian National University.

This event includes the following panels:
Law and Art in Transition
§  Eliza Garnsey, ‘The Visual Jurisprudence of Transition’
§  Maya Broom, ‘Incursions of International Law: Representations in Cinema’
Representation and Justice
§  Rachel Joy, ‘The Work of Art in Decolonising Occupied Australia’
§  Laura Petersen, ‘Sites of Restitution: Gerhard Richter and the Birkenau Cycle’
§  Lola Frost, ‘Dream Painting and the Deterritorialisation of Democratic Politics’

Click here to access the Visions Not So Splendid: Art Law, Justice Program which contains the full schedule and abstracts for this exciting event.

For more information:

Dale Mitchell, Vice-President (Web), Law, Literature and Humanities Association of Australasia

Call For Proposals: The Golden Age of Crime, a 2-Day International Conference at the University of Chester, April 3-4, 2020

The Golden Age of Crime: A Re-Evaluation
A 2-day international conference at the University of Chester
3-4 April 2020

The Golden Age of crime fiction, roughly defined as puzzle-based mystery fiction produced between the First and Second World Wars, is enjoying a renaissance both in the literary marketplace and in scholarship. This conference intervenes in emerging academic debates to define and negotiate the boundaries of Golden Age scholarship.

As well as interrogating the staples of ‘Golden Age’ crime (the work of Agatha Christie and/or Ellery Queen, the puzzle format, comparisons to ‘the psychological turn’), this conference will look at under-explored elements of the publishing phenomenon.

We invite proposals for 20-minute papers or panel presentations of one hour. Topics can include, but are by no means limited to, the following:

Defining the parameters of Golden Age crime
The Queens of Crime (Agatha Christie, Margery Allingham, Dorothy L. Sayers, Ngaio Marsh, Josephine Tey, Gladys Mitchell)
Significant male writers of the Golden Age (John Dickson Carr, Anthony Berkeley, Ellery Queen)
Lesser-known Golden Age practitioners
Collaborative and round robin novels
Continuation novels
The Detection Club
Parody, pastiche, and postmodernism
Psychology and psychoanalysis
Meta-fiction and self- or inter-referentiality
The language of crime fiction
The Golden Age and social value
Nostalgia and heritage
Writing the past
Gender, sexuality, and queerness
Clues and coding
Crime and the Gothic
Magic and the supernatural
Place, space, and psychogeography
Reissues and rediscovery
Archival finds and innovations
The ‘Second Golden Age’
The influence of Golden Age crime writers on subsequent and contemporary writers
Interdisciplinary perspectives
Teaching Golden Age crime fiction

Organisers: Dr J C Bernthal (University of Cambridge), Sarah Martin (University of Chester), Stefano Serafini (Royal Holloway, University of London)

We welcome academic and creative paper proposals. Please email your 200-word proposal and short biographical note to no later than 15th December. Comments and queries should be directed to the same address.

CFP: 2019 Law, Literature & the Humanities Association of Australia Extended to August 31, 2019

From Dr. Timothy Peters, President, Law, Literature, & the Humanities Association of Australia:
The call for papers for the 2019 Law, Literature and the Humanities Association of Australasia Conference: Juris Apocalypse Now: Law in the End Times has been extended until 31st August 2019 (see attached). In addition, the application date for postgraduate bursaries has also been extended to 31st August. Please both distribute far and wide, and get your abstracts for panels and papers in now!

New From Cambridge University Press: Elizabeth Papp Kamali, Felony and the Guilty Mind in Medieval England @LizPappKamali @cambUP_History

Now available: Elizabeth Papp Kamali, Harvard Law School, is publishing Felony and the Guilty Mind in Medieval England (Cambridge University Press) in September 2019). Here from the publisher's website is a description of the book's contents.
This book explores the role of mens rea, broadly defined as a factor in jury assessments of guilt and innocence from the early thirteenth through the fourteenth century - the first two centuries of the English criminal trial jury. Drawing upon evidence from the plea rolls, but also relying heavily upon non-legal textual sources such as popular literature and guides for confessors, Elizabeth Papp Kamali argues that issues of mind were central to jurors' determinations of whether a particular defendant should be convicted, pardoned, or acquitted outright. Demonstrating that the word 'felony' itself connoted a guilty state of mind, she explores the interplay between social conceptions of guilt and innocence and jury behavior. Furthermore, she reveals a medieval understanding of felony that involved, in its paradigmatic form, three essential elements: an act that was reasoned, was willed in a way not constrained by necessity, and was evil or wicked in its essence.
Felony and the Guilty Mind in Medieval England

August 12, 2019

Gordon and O'Donnell on The Power and Potential of Committed Legal Writing @DrexelKline

Deborah S. Gordon, Drexel University School of Law, and Kait O'Donnell have published Of Skepticism, Illegitimacy, and Fools: The Power and Potential of Committed Legal Writing. Here is the abstract.
The law is once again facing a legitimacy crisis—one brought into full relief during Justice Kavanaugh’s confirmation hearings, wherein the future of the independent judiciary was, if not decimated, at least hotly debated. Though this current crisis may be novel in its precise implications, such crises are not new. Indeed, skepticism concerning the legitimacy of the law and the act of lawyering has been leveled at the profession from its beginnings. Nevertheless, the divisiveness of our current political and social climate has given the issue fresh meaning. How can legal practitioners and participants respond to this crisis without perpetuating a cycle of cynicism? This article argues for an increased reliance on several skeptics of the law—William Shakespeare and Simone de Beauvoir among them—to help realign our understanding of what contemporary legal actors—and legal writers in particular—can do in the face of illegitimacy. It draws on these classic thinkers to propose a model of “committed legal writing” that advocates for disrupting illegitimate modes of legal reasoning with a goal of restoring legitimacy to legal practice more generally.
Download the article from SSRN at the link.

August 7, 2019

Santamaria on Foucault and Modern Law: A Review

Gerardo del Cerro Santamaria has published Foucault and Modern Law: A Review at 26 Foucault Studies 111 (June 2019). Here is the abstract.
Professor Jacopo Martire’s book, A Foucauldian Interpretation of Modern Law. From Sovereignty to Normalisation and Beyond deserves careful attention. The book represents the author’s project of making Foucault’s thought compatible with modern legal theory. Dr. Martire (from the University of Bristol) tries to put together and reconcile two seemingly incompatible approaches to understanding the workings of modern society. Jürgen Habermas’s forceful critique of Foucault still looms large. Other traditional interpretations of Foucault’s work have emphasized “the expulsion thesis,” that is, the fact that Foucault, relying too much on discipline and governmentality, effectively expelled law from the locus of power and excessively downplayed the role of law in our times.
Download the article from SSRN at the link.

Kerr on The Perfect Opinion @GeorgetownLaw

Andrew Jensen Kerr, Georgetown University Law Center, has published The Perfect Opinion. Here is the abstract.
In this Article I collate favorite judicial opinions to inductively derive an archetype of perfection. The question of which opinions we like the most is decidedly subjective, but it also reveals implied preferences for creative judging that might not register on citation counts or be prioritized when editing casebooks. Importantly, our choice of a favorite reflects something about *us*. So why do judges often select non-authoritative opinions (alternative concurrences, or dissents) or no-citation opinions (that don’t cite to prior case law) when asked of their favorite opinion? We might predict that most judges would select, for example, a Cardozo majority opinion that deftly marshals a wide swath of precedent to justify a remarkable turn in the doctrine. Instead it seems that at least some judges share a critical perspective that citation is a “mask hiding other considerations” , and regard over-citation with caution. Despite innovative thinking from academics like Frederick Schauer on the nature and use of authority, this topic remains under-theorized. I contribute to this literature by making a novel observation about implicit authority. Judges who rely on first principles reasoning are making both an empirical claim that these principles inform our positive law, and a normative claim that these principles are in fact a better reflection of our law than the “ordinary legal materials” (case law, etc.) we have to work with. This intellectual move requires tacit knowledge and feel, and so it’s not surprising these opinions write so effortlessly. These above-great opinions together limn an archetype of perfection that we can use as an ideal form. Not surprisingly, this theorizing echoes the work of Ronald Dworkin, who built his own normative theory of perfection in the construct of Hercules. None of us can be him. But perhaps one of our own has enjoyed the herculean moment. This Article searches for it.
Download the article from SSRN at the link.

Damodaran on Resistance to Power as Depicted in the Hacker Wars

Saigopal AP Damodaran, Christ College, has published Resistance To Power as Depicted in the Hacker Wars at 7 IMPACT: International Journal of Research in Humanities, Arts and Literature 51 (June 2019). Here is the abstract.
The Hacker Wars(2014) is a documentary film directed by Vivien Lesnik Weisman. This documentary film focuses on hackers, specifically hacktivists and their battles against the US government over surveillance, privacy and who should hold information. The film tells the story of three prominent faces in the hacktivist movement. They are Andrew Aurenheimer, known by his hacker handle Weev, Barrett Brown, a journalist and propagandist for the hacker group, Anonymous and Jeremy Hammond who was known by his hacker handle, Anarchaos. There is the fourth character Sabu, a hacker who turned informant to the FBI and help nab these hackers. This paper will look at this documentary film and try to understand the way resistance to power is carried out in the cyberspace and what is the discourse these dissenters subscribe to and also briefly look at how these resistances are confronted. To do so, this paper will employ the ideas of Michel Foucault on power, discourse and resistance.
Download the essay from SSRN at the link.

August 6, 2019

Newly Published: The Media Method: Teaching Law With Popular Culture

Available August 16, 2019: The Media Method: Teaching Law With Popular Culture (Christine A. Corcos, ed., Durham, Carolina Academic Press, 2019). Here from the publisher's website is a description of the book's contents.
Many law professors now teach courses by using examples from popular culture, but there is no comprehensive overview of ways to integrate non-law materials into the legal curriculum. In this text, more than two dozen law professors from the United States, Canada, and Australia demonstrate how to integrate fiction, poetry, comic books, film, television, music, and other media through the first year curriculum traditionally offered in U.S. law schools as well as a number of advanced courses in many subjects. The heavily illustrated book also includes best practices as well as pedagogical justifications for the use of such methods.
Here is a link to the table of contents.

The Media Method book jacket

Authors of the twenty-seven chapters are Michael Asimow, Cynthia D. Bond, Alex Glashausser, Cassandra Sharp, Deborah Ahrens, Susanna Frederick Fischer, Marybeth Herald, Stacey M. Lantagne, Richard J. Peltz-Steele, Jeffrey E. Thomas, Brandon Beck, Catherine Martin Christopher, DeLeith Duke Gossett, Brie D. Sherwin, Nancy Soonpaa, Sha-Shana Crichton, JoAnne Sweeny, Stephen Parks, Paul Bergman, Christine A. Corcos, Robert M. Jarvis, Madeleine June Kass, Kellyn O. McGee, Geraldine Szott Moohr, Jennifer L. Schulz, Kate Sutherland, 
Priya Baskaran, Laila Hlass, Allison Kron, Sarah Sherman-Stokes, Wendy-Adele Humphrey, Terri LeClercq, Kelly E. Collinsworth, and Rebecca Bratspies.

Newly published: Frank O. Bowman, High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump (Cambridge, 2019)

Newly published: Frank O. Bowman, III, High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump (Cambridge University Press, 2019). Here from the publisher's website is a description of the book's contents.
For the third time in forty-five years, America is talking about impeaching a president, but the impeachment provisions of the American constitution are widely misunderstood. In High Crimes and Misdemeanors, constitutional scholar Frank O. Bowman, III offers unprecedented clarity to the question of impeachment, tracing its roots to medieval England through its adoption in the Constitution and 250 years of American experience. By examining the human and political history of those who have faced impeachment, Bowman demonstrates that the Framers intended impeachment to be a flexible tool, adaptable to the needs of any age. Written in a lively, engaging style, the book combines a deep historical and constitutional analysis of the impeachment clauses, a coherent theory of when impeachment should be used to protect constitutional order against presidential misconduct, and a comprehensive presentation of the case for and against impeachment of President Trump. It is an indispensable work for the present moment.

High Crimes and Misdemeanors 

August 5, 2019

Sassoubre on Realism and Melodrama in American Film Since "Birth of a Nation"

Ticien Marie Sassoubre, Stanford Law School, is publishing Knowing It When We See It: Realism and Melodrama in American Film Since 'Birth of a Nation' in Trial Films on Trial: Law, Justice, and Popular Culture, Tuscaloosa: University of Alabama Press (Austin Sarat, Jessica Silbey & Martha Umphrey, Eds., Tuscaloosa: University of Alabama Press, (2019).
In American film, official law tends to be indifferent, bureaucratic, and corruptible, constantly threatening to produce injustice. In contrast, “justice” is individual, unambiguous and readily accessible. As a result, seeing justice done often requires extralegal intervention. Films offer alternate trials in which apparently realistic but emotionally charged representations of personal experience, rather than legal procedure and evidentiary standards, determine guilt or innocence. The fairness of the verdict in the filmic alternate trial is measured not by the standard of due process, but by the viewer’s moral sense. Nevertheless, as Carol Clover has observed, the narrative substructure of both the Anglo-American trial and mainstream film bear a striking resemblance. I argue that this resemblance arises from a common set of assumptions about narrative plausibility and the social world: the conventions that govern mainstream film are also the (largely unspoken) conventions of credibility and verifiability in legal discourse. Filmic alternate trials follow realist rules of evidence but articulates an underlying epistemology that is fundamentally melodramatic. They have done so at least since D. W. Griffith’s deeply influential “Birth of a Nation” (1915), and they continue to do so today. And these melodramatic trials of our social realities inform our perception in legal and non-legal settings in ways that are so familiar they have become invisible to us.
Download the essay from SSRN at the link.

August 2, 2019

Quinta Jurecic on the Mueller Report as Detective Story @qjurecic @lawfareblog @lawfarepodcast

Quinta Jurecic, managing editor of Lawfare, compares the Mueller Report to a detective story, here, for the New York Times. She writes in part,
When the Mueller report was released, commentators reviewed it not only as a political and legal work but also as another genre: literature. In The Washington Post, Carlos Lozada described the report as “the best book by far on the workings of the Trump presidency.” Michiko Kakutani wrote in The Columbia Journalism Review that it held “the visceral drama of a detective novel, spy thriller, or legal procedural.” Laura Miller of Slate found it to be a work of “palace intrigues.”
The theatrical focus is a little much. But the literary critics are onto something. The report tells what is probably one of the biggest stories of our lifetimes — and understanding that narrative as a narrative can help make sense of the confused political moment. Exploring the assassination of John F. Kennedy, the writer Don DeLillo described in his novel “Libra” the endless work of sleuthing new information on the president’s death as an effort to draft the “book of America” — the novel “in which nothing is left out.” The same might be said of the Mueller report.
Susan Hennessey also hosts a podcast for Lawfare: The Report.

Simard on Slavery's Legalism: Lawyers and the Commercial Routine of Slavery @WillametteLaw

Justin Simard, Willamette University College of Law; Northwestern University; American Bar Foundation; has published Slavery's Legalism: Lawyers and the Commercial Routine of Slavery at 37 Law and History Review 571 (2019). Here is the abstract.
Elite southern lawyers professed and demonstrated commitment to a vision of legal practice and decisionmaking that they shared with their northern colleagues, even as legal arguments over slavery and secession played out contentiously in politics and the courts. This vision was rooted, not in commitments to slavery, free labor, or economic development but rather in legalism, characterized by commitment to legal rules and reasoning, and legal practice, distinguished by dedication to routine commercial work. Insulated from many of the political and economic conflicts of the antebellum era, a national legal culture allowed southern lawyers to serve as economic intermediaries between North and South. This article examines this culture through a study of the career of the Georgia lawyer E.A. Nisbet. During his legal education, time on the Georgia Supreme Court, and work as a private lawyer Nisbet demonstrated a consistent commitment to a technical American legal culture that allowed elite southern lawyers like him to support slavery in subtle but important ways.
The full text is not available for download.