April 30, 2020

Stramignoni on Images of Law

Igor Stramignoni, London School of Economics, Law Department, has published Images of Law. Here is the abstract.
In this essay, I offer some initial thoughts about what may be roughly called a visual history of law or, more precisely, a history of the visual in law. To put it simply, I am interested to turn to what may be generally called early modern “images of law” – broadly, constellations of artefacts to do with law – with the purpose of taking them seriously. What may those images suggest if taken on their own terms rather than as merely impassive historical evidence of the particular process of conceiving law intellectually or, alternatively, as codes for certain pre-existing messages to be subsequently decoded? In order to answer this question, I start from a particular and relatively little-known picture, moving on to a related literary tract, and then on again to a few of the more familiar early modern visual representations of justice. The point of this exercise is simply to highlight certain alternative ways of approaching artefacts to do with law that may add to those that may come more readily to mind – that is, as objects illustrating or demonstrating the long-standing process of modernisation and written rationalisation of law after the Middle Ages. On approaching those artefacts differently, we discover that they often resist our analyses or interpretations forcing us to engage with them in interesting ways.
Download the essay from SSRN at the link.

Mirow on Scots Traders and Spanish Law in East Florida

M. C. Mirow, Florida International University College of Law, is publishing Scots Traders and Spanish Law in East Florida in Colonial Adventures: The Making of Commercial Law and Practice (Serge Dauchy, Albrecht Cordes, Dave De Ruysscher and Heikki Pihlajamäki, eds., Leiden: Brill, Forthcoming). Here is the abstract.
This chapter describes commercial litigation in 1802 threatening Panton Leslie’s trading post at Picolata, East Florida, and the firm’s very existence in the province. It reveals the legal sophistication and institutional limits of local actors in a small northern outpost of the Spanish empire. The parties considered and argued about the proper interpretation of royal orders, governors’ edicts, official correspondence, and other documents that shaped the dispute. Concerning commercial legal culture, the issues debated in the pleadings centered on Panton Leslie’s compliance with its unique trade status as delineated in a series of royal orders and agreements. Despite their remoteness from imperial economic and commercial centers, the parties did not play fast and loose with the legal sources or arguments. The dispute reveals that the nature of commercial enterprise within empires was not simply one of economic benefit. Trading companies were woven into the political fabric of imperial administration. In this context, Sánchez argued that for Spain to coexists with native populations and eventually to have Indian populations join its polity, the foreign trading house of Panton Leslie had to be removed as an intermediary between them. This extensive legal battle also has some explanatory benefit on the shift of Panton Leslie away from trade to debt collection and property management in the early years of the nineteenth century. William Panton died in 1801 and Bowles’s attacks against Panton Leslie had significantly disrupted its ability to trade profitably. This suit must be added to these causes of the firm’s shift from Indian trade to debt collection and land management. The case surely absorbed time and resources. It also created an atmosphere of uncertainty under which the firm would have to operate. Every shipment and every transaction after the case would be subject to the greatest and most jealous scrutiny by at least a portion of Saint Augustine’s population. Panton Leslie’s success was a hollow victory.
Download the essay from SSRN at the link.

Bernstein on Legal Corpus Linguistics and the Half Empirical Analysis @Cornell_Law_Rev

Anya Bernstein, SUNY Buffalo Law School, is publishing Legal Corpus Linguistics and the Half Empirical Attitude in volume 106 of the Cornell Law Review (2021). Here is the abstract.

Legal writers have recently turned to corpus linguistics for help interpreting legal texts. Corpus linguistics—a methodology that analyzes large data sets of language use —promises to give empirical grounding to the claims about ordinary language that pervade legal interpretation. Yet, I argue, legal corpus linguistics departs from these empirical origins by ignoring the crucial contexts in which legal language is produced and interpreted. First, legal corpus linguistics ignores the legal context of legal language—conditions, like judicial precedent and statutory co-text, that give legal language authority. So it provides evidence about language use that obscures and misstates the actual issues legal interpreters face. Second, legal corpus linguistics ignores the institutional context of legal language—the way it is produced by certain speakers, taken up by certain audiences, and formulated in particular genres. When legal corpus work treats language as socially undifferentiated, its empirical findings rest on a fictional basis. The underlying problem, I show, is a mismatch of methodology and goal. Corpus linguistics in linguistics makes an empirical claim that its analysis illuminates truths about the language it studies. Legal corpus linguistics, in contrast, uses empirical methods to support a normative claim that its analysis ought to influence our interpretation of legal texts. Treating normative claims as though they were empirical findings constitutes what I call a half-empirical attitude in legal interpretation. At the same time, I suggest ways that legal corpus linguistics could be useful to the production and interpretation of legal texts, as well as to the development of legal theory—if it embraces a more fully empirical attitude. 

 Download the article from SSRN at the link.

New From Routledge: Law, Lawyers, and Justice Through Australian Lenses @kscrawling @routledgebooks

New from Routledge:

Law, Lawyers, and Justice Through Australian Lenses ( Kim D. Weinert, Karen Crawley, and Kieran Tranter, eds., Routledge, 2020).  Here, from the publisher's website, is a description of the book's contents.

This book engages with the place of law and legality within Australia’s distinctive contribution to global televisual culture. Australian popular culture has created a lasting legacy – for good or bad – of representations of law, lawyers and justice ‘down under’. Within films and television of striking landscapes, peopled with heroes, antiheroes, survivors and jokers, there is a fixation on law, conflicts between legal orders, brutal violence and survival. Deeply compromised by the ongoing violence against the lives and laws of First Nation Australians, Australian film and television has sharply illuminated what it means to live with a ‘rule of law’ that rules with a legacy, and a reality, of deep injustice. This book is the first to bring together scholars to reflect on, and critically engage with, the representations and global implications of law, lawyers and justice captured through the lenses of Australian film, television and social media. Exploring how distinctively Australian lenses capture uniquely Australian images and narratives, the book nevertheless engages these in order to provide broader insights into the contemporary translations and transmogrifications of law and justice.

More about the book, including a table of contents, here. 

April 29, 2020

Murray on The Art of Yoko Ono and the Law of Rape @murrayyxta @LoyolaLawSchool

Yxta Maya Murray, Loyola (Los Angeles) Law School, is publishing Cut Piece: The Art of Yoko Ono and the Law of Rape in the United States in the Law & Literature Journal. Here is the abstract.
In 1964, Yoko Ono performed Cut Piece in New York’s Carnegie Hall. This performance art involved Ono sitting on a bare wood stage wearing dark stockings, a dress, and a cardigan. She sat still while largely white male and female members of the audience approached her and one by one cut off a piece of her clothing with a pair of scissors. In the years since Cut Piece was performed, it has attained a nearly mythic quality among feminist art historians; while Ono herself has not always embraced Cut Piece's illumination of sexual and racial violence, many art critics have recognized its capacity to express important aspects of sexual and racial violation that go unrecognized in legal and civil discourse. In this paper, I limn Cut Piece's relevance to a gendered and raced problem that law often confronts when a woman has experienced a sexual violation, but did not resist, did not complain during or afterwards, appears to have "invited it," and otherwise does not conform to the stereotype of what Susan Estrich has described as a "real rape" victim. I study Cut Piece in relationship to mainstream legal responses to sexual violation that occurs in this context, as well as feminist and intersectional and anti-essentialist approaches. I also examine the important relationship that exists between law, art, and feminist legal theory. In the end, I conclude that Cut Piece is resonant with intersectional, anti-essentialist, and radical feminist approaches to sexual violations that exhibit Cut Piece's complex dynamics: While the law does not now recognize these violations as illegal, these theories and Cut Piece together offer a new pathway toward understanding the connections between race and sexual violation.
Download the article from SSRN at the link.

April 28, 2020

Cutler on A Hebrew Republic in the Gilded Age? Henry George's Single Tax and the Hebrew Bible

Joshua Cutler, University of Houston College of Business, has published A Hebrew Republic in the Gilded Age? Henry George’s Single Tax and the Hebrew Bible. Here is the abstract.
Henry George sparked a vast popular movement following the publication of his classic work Progress and Poverty. Seeking to explain why poverty always seemed to increase along with progress, George proposed that, as societies advanced, land owners were able to capture an increasing share of wealth. To remedy this, George proposed a “Single Tax” on the unimproved value of land, which would prevent land speculation and hoarding and make land available for all who desired to work it. While George was ostensibly an economist, he is best understood as an ethical-religious figure, and his most devoted followers were a diverse array of religious leaders and reformers. However, the actual religious substance of George’s ideas has been largely unexplored. I propose that George’s program was inspired by Jewish ideas and institutions originating from the Hebrew Bible. In Hebraic thought, by virtue of creating the earth, God is the only rightful owner of land. This principle was embodied in the Hebrew Bible’s land laws that ordained an equal distribution of land along with institutions to maintain this distribution over time. Centuries before George, I discuss how medieval Jewish rabbis had already derived a taxing power from the Hebraic land laws. These biblical land laws would also come to have a strong influence on European political thought through an intellectual tradition known as the “Hebrew Republic.” I attempt to understand Henry George’s thought as an unwitting revival of this tradition, with his Single Tax as an innovative adaption of the Hebraic institutions. The Hebraic understanding of land ownership continues to offer potential inspiration for alternative systems of taxation and economic regulation.
Download the article from SSRN at the link.

April 27, 2020

CFP: The Director's Series 2020/21 Law and Humanities In a Pandemic

CALL FOR PAPERS - The Director's Series 2020/21 Law and Humanities in a Pandemic

The COVID-19 pandemic already has had a vast array of legal implications which have dramatically altered daily life. While liberal, universal rights such as liberty and privacy are being radically curtailed in the name of public health, legal responses impact upon populations in radically unequal ways. These dimensions include - but certainly are not limited to - race, gender, disability, vulnerability and social class. Legal interventions are consistently justified on the basis of science, which is assumed to be unequivocal and beyond debate. At the same time, resistance to legal action is also apparent, as rumours and conspiracy theories - like the virus itself - multiply around the globe. At the same time as public policy measures are introduced, systems of legal regulation and compliance (which were often themselves justified on the basis of public protection) are modified or suspended in the name of necessity, with no indication as to when or how they will be restored. Moreover, the relationship between law and discretion has been reshaped, and this in turn has impacted upon individuals and communities.

The aim of this series is to seek to ‘make sense’ of the wide ranging relationship between law and the pandemic through the insights of the humanities, broadly understood as the set of cultural influences which are shaping the use of law and the responses to it. Sarah Churchwell argues that ‘as this pandemic is so brutally reminding us, nothing in our society occurs in a vacuum. Everything occurs in a historical, political, economic, and cultural context, and the humanities is in the business of understanding context’. As Churchwell observes, ‘the pandemic has stripped away all our usual contexts, and in so doing it has made much more visible, and much more urgent, what it is that we do when we need to be human’.

Law is a vitally important component of that context and it warrants close attention. It forms an integral part of the challenge of ‘being human’ and, in turn, law can be illuminated through a turn to the humanities, whether it be history, political theory, literary analysis, philosophy, gender studies, film theory or cultural studies (and that list is far from exhaustive). In an effort at understanding the context of the pandemic, scholars at all career stages and across disciplinary boundaries are invited to contribute to a series of ‘work in progress’ seminars at the Institute of Advanced Legal Studies during the 2020-21 academic year. Given the uncertain and changed times for knowledge production (like all other forms of production), the format for the presentations will be flexible - remote, ‘live’, or some combination - depending upon the circumstances that we face. Innovative and experimental forms of presentation can be accommodated. Scholars from all parts of the world are welcome to contribute. Those located in the Global South are particularly encouraged, especially given the way in which the pandemic has (once again) privileged knowledge, expertise and experience from the Global North. 
The Institute of Advanced Legal Studies is itself part of the School of Advanced Study, which unites nine internationally renowned institutes in the humanities at the centre of the University of London. Together it forms the UK's national centre for the support of researchers and the promotion of research in the humanities.
A special issue proposal is planned for the publication of the output of the series. Preliminary interest has been expressed by the Editor of the Institute’s online, open access journal, Amicus Curiae. The Institute also has the capacity to publish the special issue as a hard copy volume with the University of London Press. 
Anyone interested in contributing is invited to contact the Director of the Institute, Professor Carl Stychin, by email: carl.stychin@sas.ac.uk.  A title and abstract for proposed contributions should be submitted to the Director by 30th June 2020. The seminars will be scheduled throughout the 2020-21 academic year.
Sarah Churchwell, ‘Being Human Under Lockdown’, https://beinghumanfestival.org/being-human-under-lockdown/

ICYMI: Shniderman on Ripped From the Headlines: Juror Perceptions in the Law & Order Era @adam_shniderman

ICYMI: Adam B. Shniderman, University of Michigan Law School, has published Ripped from the Headlines: Juror Perceptions in the Law & Order Era at 38 Law & Psychology Review 97 (2014). Here is the abstract.

Film and Media Studies scholars have long claimed that television is a primary source of information about the criminal justice system for most Americans. These scholars have also found that television can significantly impact viewer’s perceptions of the world. In the last decade, Jerry Bruckheimer’s CSI: Crime Scene Investigation has been the subject of significant scrutiny. Many have claimed that CSI’s highly dramatized, romanticized, and generally unrealistic portrayal of forensic science and the investigative process has significantly altered juror expectations and poses a challenge for lawyers trying criminal cases. The concept has been discussed in nearly 400 news articles and more than 100 academic journal articles. With all of this attention paid to CSI, the impact of Law & Order on jurors’ perceptions of the criminal justice system has been largely overlooked.
In this Article, I analyze the dominant narrative in the Law & Order franchise, demonstrating that the show is rooted in Packer’s Crime Control Model. This Article discusses the various techniques the Law & Order franchise employs to construct that narrative and shape our views, through the use of basic psychological principles, detailed character backstories, casting choices of various characters, and dialogue and specific plot events. This Article considers the potential impact of this narrative on peoples’/jurors’ perceptions of various aspects of criminal investigations and the justice system, including interrogation techniques, eyewitness identification and lineup procedures, and the presumption of innocence. Finally, this Article makes suggestions for future research.

Download the article from SSRN at the link. 

April 26, 2020

Call For Papers: International Journal of Legal Discourse, Special Issue: Semiotic Perspectives on Environment, Forestry, Fishery, Hunting, and Law


Guest Editors: Dariusz GWIAZDOWICZ, Aleksandra MATULEWSKA & Anne WAGNER

Environmental issues have bothered people for the last several decades. In some countries, legislation devoted to the protection of endangered species dates back to 15th and 16th century. The modern world is highly urbanized and people get more and more distanced from nature. At the same time, they are more and more aware of the need to protect the natural resources of the Earth. That however, is not always done in accordance with the suggestions of scientists but lobbying groups either pursuing their own goals or simply their vision of the world. The recent case of Greta Thunberg’s popularity is one of the examples of such actions. The child got more attention of politicians and media than any scientist well versed in the field. Celebrities create their image using environmental issues as a popularity stimulator, just to mention one of the first ones who was Bridgit Bardot. The animal rights’ movements take various forms. In some countries farmed animals were released to the wild which affects the environment negatively as invasive species start exerting pressure on local species, depriving them of habitats. The Animal Liberation Front considers such acts legal, whereas they frequently constitute a breach of property law. In the urbanized world we observe that inhabitants of cities lack the knowledge about the tasks of sustainable environment protection and its role in sustainable management of natural resources (frequently leading to stereotyping, cyberbullying); they have specific social expectations which do not take into account the laws of nature but rely on fake news or over-idealized concept of environment; eco-hypocrisy. Another factor affecting our perception of environment is the ubiquitous antropomorphisation of animals as a result of which the wild world is deprived of its real features and becomes humanized (there are even movements propagating giving animals civic rights). In general, contemporary people lack inquisitiveness, are exposed to ubiquitous fake news and media infostrategy striving for scandalous news (Gwiazdowicz 2017, Gwiazdowicz and Matulewska 2020). As a result, two types of ecology have emerged recently: one which is based on scientific foundations and research results and the other one which is the media affected and based on stereotypical, idealized vision of the world. As it turns out, legislators change labels to gain support of eco-hypocrites but the problem of the conflict existing between human expectations and needs and environment remains and must be solved. In the Netherlands the government under the pressure of ecologists banned bird hunting. Though not many people realize that the problem of agricultural damage inflicted by the birds is solved through different means that is to say baby geese are killed by putting them into specially designed gas chambers. The meat of geese is no longer fit for human or animal consumption and must be liquidated. The question may be posed about the semiotic aspect of such actions. In the urbanized world there is and there will be a constant fight between humans who want highways, nice homes with fenced gardens, nice-looking vegetables and fruit, comfortable, healthy lifestyles and environment. Vegetarianism and similar lifestyles are becoming more and more popular as environment- and especially animal-friendly though little attention is placed on the effect of production of plants rich in protein and other valuable nutrients on environment (contamination of groundwaters with pesticides, herbicides, deforestations, deprivation of animals of their habitats). All activities and lifestyles affect the environment but we rarely find reliable sources of information providing a deeper insight into both pros and cons. 
To sum up, all those problems affect legislation regulating environment, forestry, fishery and hunting. The issue opens a new sphere of semiotic analysis of communication in legal settings and adopted solutions. This Special Issue hopes to construe presentations of environment, forestry, fishery and hunting to orientate our vision of legal solutions and their environmental consequences. The aim of this Special issue is to offer broader perspectives for understanding the roles of scientists, lobbyists and legislators in the debate of preserving the nature for future generations from both theoretical and practical angles. Therefore, the papers devoted to the following topics and presenting both advantages and disadvantages are welcome:
1. Animal rights and legislation
2. Animal owners’ rights
3. Environment and law
4. Forestry and law
5. Law and exploitation of nature
6. Consequences of releasing wild animals and plants into the wild and consequential legislation on invasive species
7. Ecology and law
8. Hunting and law
9. Fishery and law
10. Social expectations in the field of environment versus law
11. Poaching
12. Legal and illegal environment protection
13. Cyberbullying of foresters, hunters, fishermen
14. Repealed laws and their replacements

The Special Issue can comprise only 14 papers of no more than 30 pages.

Deadline for abstract: 10 February 2021
Decision for inclusion: 30 March 2021
Deadline for full paper: 15 January 2022 (instructions will be sent after decision to include papers in the special issue)

April 17, 2020

Stern on Legal Fictions and Legal Fabrication @ArsScripta

Simon Stern, University of Toronto Faculty of Law, has published Legal Fictions and Legal Fabrication at Fictional Discourse and the Law 191 (Hans Lind, ed., Routledge, 2020).
This chapter examines two of the most influential theories of legal fictions, suggesting that neither one explains the distinctive features that doctrines such as corporate personhood, coverture, and civil death have in common. The chapter first examines Henry Sumner Maine’s theory; although his account is often quoted, it has received comparatively little scholarly attention. Sumner offers a genealogical account: on his view a doctrine’s fictional status depends crucially on the doctrine’s source — and yet scholars who draw on his theory rarely pay any heed to this criterion. For Fuller, the fictional status of a doctrine depends on its falsity, and this requirement, too, accords poorly with the category of legal fictions, when we consider the examples that usually account for scholarly interest in the subject. I suggest that a better way of understanding legal fictions is to see them as achieving, in legal thought, what metafiction achieves in the literary realm. I close by developing some implications of this analogy.
Download the essay from SSRN at the link.

April 15, 2020

Johnson and Koenig on Aristotle and the Ethics of Narrative @LoriDelaneyJ

Lori D. Johnson, UNLV School of Law, and Melissa Love Koenig, Marquette Law School, have published Walk the Line: Aristotle &  The Ethics of Narrative as an UNLV Boyd School of Law Legal Studies Research Paper and a Marquette Law School Legal Studies Paper. Here is the abstract.
Lawyers are storytellers who face tremendous pressure to persuade judges and juries of the rightness of their stories. Zealous advocacy has long been a touchstone in lawyering, but lawyers need to balance zealousness with candor to the tribunal. As narrative and storytelling have evolved in scholarship and practice as powerful tools for persuasion, lawyers can find themselves walking a delicate ethical line. The applicable Model Rules of Professional Conduct do not provide a sufficient framework for ensuring sufficient candor in the use of narrative, particularly when considering the cultural and psychological power inherent in stories. Thus, lawyers can find themselves sliding on a slippery slope into ethically actionable misrepresentation. These are not new problems, and the classics have something to teach modern lawyers using narrative to persuade. Aristotle addressed the same types of concerns in his Nicomachean Ethics and On Rhetoric. Aristotle discussed the importance of keeping one’s conduct within the “mean”—to maintain a balanced approach to one’s life and practice. He also stressed the value of using good habits to develop a person’s character. Aristotle’s wisdom can guide a lawyer who seeks to be a candid, ethical, and still zealous advocate. Thus, this Article posits that incorporating Aristotle’s concepts of virtue ethics into the Preamble of the Model Rules will provide guidance to lawyers seeking to use legal storytelling in an ethical, balanced way. Providing lawyers with intrinsic motivation to behave ethically provides a more workable framework than adding additional proscriptive requirements to the Model Rules, particularly for lawyers walking the line between truth and falsity when retelling client facts through storytelling.
Download the article from SSRN at the link.

April 13, 2020

Harwick and Root on The Feudal Origins of the Western Legal Tradition @C_Harwick @hiltonroot

Cameron Harwick, SUNY College, Brockport, and Hilton L. Root, George Mason University, School of Policy, Government, and International Affairs; George Mason University, Schar School of Policy and Government, have published The Feudal Origins of the Western Legal Tradition at 70 Jahrbuch für die Ordnung von Wirtschaft und Gesellschaft (Ordo) 3 (2020). Here is the abstract.
This paper draws a distinction between ‘communitarian’ and ‘rationalist’ legal orders on the basis of the implied political strategy. We argue that the West’s solution to the paradox of governance – that a government strong enough to protect rights cannot itself be restrained from violating those rights – originates in certain aspects of the feudal contract, a confluence of aspects of communitarian Germanic law, which enshrined a contractual notion of political authority, and rationalistic Roman law, which supported large-scale political organization. We trace the tradition of strong but limited government to the conflict between factions with an interest in these legal traditions – nobles and the crown, respectively – and draw limited conclusions for legal development in non-Western context
Download the essay from SSRN at the link.

April 10, 2020

Lopez on The Law of Gravity @Rachel_E_Lopez

Rachel Lopez, Drexel University School of Law, Yale University Law School, is publishing The Law of Gravity in the Columbia Journal of Transnational Law. Here is the abstract.
Gravity is frequently referenced in treaties, judicial decisions of international and regional bodies, human rights reports, and the resolutions and proclamations of various bodies of the United Nations. These documents refer to certain violations of international law as being “gross,” “serious,” and “grave.” These terms are frequently used interchangeably but seldom defined, and it is often unclear what makes a violation particularly grave. Is it the extreme harm to the victim, the type of violation involved, who committed the violation, or rather the intention of the wrongdoer? Despite the lack of clarity around the concept, classifying a violation as grave has significant legal consequences under international law. Gravity can determine whether an international court has jurisdiction to prosecute a crime or when a treaty monitoring body can take up an issue. States are prohibited from selling arms to other States if they commit grave violations of human rights or humanitarian law. Gravity has also been used to justify military intervention or punishing a State more harshly for its wrongful acts. This Article brings more grounding to gravity by examining the concept in all of its forms and offers the first scholarly treatment of gravity across public international law as a whole. As legal history demonstrates, gravity is a, if not the, principal unifying force across international criminal law, human rights law, and humanitarian law. Despite the absence of a formal definition of grave violations, a close examination of gravity’s jurisprudence reveals a common set of factors that international courts and other entities typically weigh when determining that a violation is grave. Closer adherence to these factors will result in more uniform and cohesive accountability for those violations that are of most concern to humankind.
Download the article from SSRN at the link.

April 7, 2020

Zareifard, Hosseini, and Zarei on The Investigation of the Grammatical Metaphors of Iranian Legal Texts

Raha Zareifard, Jahrom University, Zahra Hosseini, and Tayyebe Zarei, Jahrom University, Department of Linguistics, are publishing The Investigation of the Grammatical Metaphors of Iranian Legal Texts in volume 2020 of the International Journal of Linguistics, Literature and Translation. Here is the abstract.
Nowadays, scientific analysis of language has a special place in the sciences, since the scientific methods give a better understanding of the texts. The emergence of forensic linguistics in recent years in Iran and the presentation of various approaches in this field has greatly accepted. This article analyzes a number of advisory theories of Iranian Justice Department based on the systemic functional grammar. One of the concepts in the systemic functional grammar is grammatical metaphor. Grammatical metaphor is one of the hallmarks of the language of science, and according to Holliday (2004) grammatical metaphor is of great importance in the development of scientific discourse and the advancement of reasoning in texts. Holliday has introduced and distinguished three types of grammatical metaphor, i.e. ideational, interpersonal and textual. The purpose of this research is to study the application of these types of metaphors in legal texts, to gain a better understanding of them. For this purpose, we examine the use of ideational, interpersonal and textual metaphors by examining about 20 advisory theories of Iranian Legal Department of Justice randomly. The results of this study suggest that legal texts have their own unique style and that the reason for applying such metaphors is to make these texts distinctive. Therefore, a better and more accurate understanding of these texts can be achieved with a closer look at the analytical tools presented.
Download the article from SSRN at the link.

Dembroff, Kohler-Hausmann, and Sugarman on What Taylor Swift and Beyonce Teach Us About Sex and Causes @taylorswift13 @Beyonce

Robin Dembroff, Issa Kohler-Hausmann, and Elise Sugarman, all of Yale University, are publishing What Taylor Swift and Beyonce Teach Us About Sex and Causes in the University of Pennsylvania Law Review. Here is the abstract.

In the consolidated cases Altitude Express v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC, the Supreme Court will decide whether or not Title VII prohibits discrimination on the basis of sexual orientation or gender identity. Although the parties disagree as to the appropriate formulation of a but-for test to determine whether or not there was a discriminatory outcome, all parties do agree to the use of such a test, which asks “whether the evidence shows ‘treatment of a person in a manner which but for that person’s sex would be different.’” City of Los Angeles, Dep’t. of Water and Power v. Manhart, 435 U.S. 702, 711 (1978). However, but-for tests confuse more than they clarify the inquiry; a discriminatory outcome cannot be explained by appeal to just a discrete characteristic of a particular person. Individuals are not discriminated against because of these characteristics per se. Rather, they are discriminated against because of the social meanings and expectations that attach to these characteristics. Beyoncé and Taylor Swift illustrate the difference between individual-level causation and social explanation in two separate songs, “If I Were a Boy” and “The Man.” The explanation for why the counterfactual ‘male’ Beyoncé and Swift are evaluated differently than their current ‘female’ versions does not lie in individual-level features considered apart from the social world, but in social-level roles and expectations associated with those features. For this reason, a social explanation test—one that asks whether the social meanings of sex characteristics, rather than the characteristics per se, explain the outcome in question—is more suitable for determining whether or not Title VII has been violated.
Download the article from SSRN at the link.

Call for Papers: Law, Technology and Humans Volume 2, Issue 2 @CrimeJusticeQUT

Law, Technology and Humans (ISSN 2652-4074) is an innovative open access, double blind reviewed journal that encourages research and scholarship on the human and humanity of law and technology. Sponsored by the Faculty of Law, Queensland University of Technology, Australia, Law, Technology and Humans is advised by a leading International Editorial Board. More about the journal, submission and accessing published articles is available at https://lthj.qut.edu.au/
Papers for consideration in volume 2(2) are invited. Volume 2(2) will be published in November 2020. Preference will be given to research and scholarship that:
· Challenges and critically examines the promises and perils of emergent technologies;
· Engages with the futures (and pasts) of law, technology and humans;
· Involves critical, philosophical or theoretically informed work on law and technology;
Uses humanities, social science or other approaches to study law and technology;
· Examines law and technology from non-Western locations and perspectives; or
· Locates law and technology in wider concerns about the Anthropocene, pandemics, climate change or relations with non-humans.
Interested contributors may discuss their research and scholarship with the General Editor, Professor Kieran Tranter: lawtechhum@qut.edu.au
Deadline for submissions for Volume 2, Issue 2: Monday 15 June 2020.  Submissions: https://lthj.qut.edu.au/about/submissions

April 6, 2020

Call For Papers: Special Issue--Law and the Janus-Faced Morality of Political Correctness @AnneWag26082949


Title of the Special Issue: Law and the Janus-faced Morality of Political Correctness

Concerning the possibility of juridically relevant responses, is the culture of the so-called political correctness a significant challenge? Although the affirmative answer seems obvious, the relevance to be taken in account is not, however, as linear as an approach in terms of public policies and their legisla- tive prescriptions apparently justifies. The problem at stake has not only to do with the (more or less extensively grasped) opportunity to sustain a new branch of Politics of Law, the distinctive feature of which would be an explicit progressive sensitivity and responsiveness to the pluralism of margin- alised identities and their narrative intersections (involving gender, race, sexual orientation, practical-cultural and geo- political provenience, health, mental and physical disability, as well as the relation to the colonial past and the status of victim). The problem concerns also the difficulties which this plurality (whilst favoring the fragmentation of perspectives, meanings and semantic values) effectively creates, when we consider Law’s claim for an integrating context — and with this, the vocation for comparability related to the status or dig- nity of sui juris. Last but not least, the problem concerns also some institutionalizing procedures and social effects which the culture of political correctness has indisputably imposed: the hypertrophy of duties and their concentration in apparently trivial strongholds (justifying unresolved tensions be- tween universal and parochial claims), the legitimation of a limitless responsibility (with public devastating pre-juridical judgements, destroying lives and careers), the unconditional celebration of differences as a (paradoxically) ethical homo- genizing reference (if not as an effective intolerance factor, generating new and subtle forms of censorship).
We can say that the discussion of this cluster of themes, in their juridical (dogmatic and meta-dogmatic) systematic implications, is still fundamentally to be done. Favoring a context open to multiple perspectives, without excluding (ra- ther expecting!) the intertwining of juridical and non-juridical approaches, the volume which we now propose - as a first number of the journal Undecidabilities and Law -- aims to be part of this indispensable reflexive path.

This first issue will be coordinated by José Manuel Aroso Linhares, Full Professor at the Faculty of Law of the University of Coimbra and Coordinator at the University of Coimbra Institute for Legal Research.

The articles on the proposed theme, to be published in the first issue, in 2020/2021, must be submitted until September 15th, to ulcj@ij.uc.pt.

April 5, 2020

Madison on The Republic of Letters and the Origins of Scientific Knowledge Commons @profmadison @pittlawfaculty

Michael J. Madison, University of Pittsburgh School of Law, is publishing The Republic of Letters and the Origins of Scientific Knowledge Commons in Governing Privacy as Commons (M. Sanfilippo, K.J. Strandburg, and B. M. Frischmann, eds., Cambridge University Press, 2020). Here is the abstract.
The knowledge commons framework, deployed here in a review of the early network of scientific communication known as the Republic of Letters, combines a historical sensibility regarding the character of scientific research and communications with a modern approach to analyzing institutions for knowledge governance. Distinctions and intersections between public purposes and privacy interests are highlighted. Lessons from revisiting the Republic of Letters as knowledge commons may be useful in advancing contemporary discussions of Open Science.
Download the essay from SSRN at the link.

April 2, 2020

Fletcher on Textualism's Gaze @MSULaw

Matthew L. M. Fletcher, Michigan State University College of Law, is publishing Textualism's Gaze in the Michigan Journal of Race and Law. Here is the abstract.
In recent years, perhaps because of the influence of Justice Scalia, the Supreme Court appears to place greater emphasis on texts than ever before. “We’re all textualists now,” Justice Kagan declared in 2015. But it is one thing to say a court will prioritize the text. It is another thing to choose which text is to be prioritized. Follow the textualism of constitutional interpretation and one sees judges prioritize the public understanding of the privileged white men in power at the time of the framing of the constitutional text. Follow the textualism of federal statutory interpretation and one sees judges prioritize the text exclusively, and if the judges engage with the legislative history of the statute they will engage with the public understanding of the legislators who enacted the law, again, largely privileged white men. The victory of textualism is not necessarily in the outcomes, but in significantly narrowing the scope of evidence available to interpret the text, in some cases to almost nothing but the bare words of the statute. Women, persons of color, and other marginalized persons and entities are almost never relevant to the textualist’s gaze. The narrow focus of the textualist’s gaze also warps how Indian law matters are decided. The judiciary rarely considers how the governments and people most affected by the text — Indian tribes and individual Indians — understand the meaning of the text. The judiciary, whether it intends to or not, considers Indians and tribes as extraneous to the interpretive process.
Download the article from SSRN at the link.

April 1, 2020

Avi-Yonah on Studying Tax History (Book Review of Studies in the History of Tax Law, vol. 9)) @UMichLaw

Reuven S. Avi-Yonah, University of Michigan Law School, has published Why Study Tax History? Here is the abstract.
This book review addresses the question why studying tax history is helpful to tax policy makers and practitioners.
Download the book review from SSRN at the link.