December 27, 2020

Newly Published: Emily Zobel Marshall, American Trickster: Trauma, Tradition, and Brer Rabbit (Rowman & Littlefield: 2020) @EmilyZMarshall @LeedsBeckett @RLPGBooks

Emily Zobel Marshall, Leeds Beckett University, has published American Trickster: Trauma, Tradition and Brer Rabbit (Rowman & Littlefield, 2020). Here from the publisher's website is a description of the book's contents.
Our fascination with the trickster figure, whose presence is global, stems from our desire to break free from the tightly regimented structures of our societies. Condemned to conform to laws and rules imposed by governments, communities, social groups and family bonds, we revel in the fantasy of the trickster whose energy and cunning knows no bounds and for whom nothing is sacred. One such trickster is Brer Rabbit, who was introduced to North America through the folktales of enslaved Africans. On the plantations, Brer Rabbit, like Anansi in the Caribbean, functioned as a resistance figure for the enslaved whose trickery was aimed at undermining and challenging the plantation regime. Yet as Brer Rabbit tales moved from the oral tradition to the printed page in the late nineteenth-century, the trickster was emptied of his potentially powerful symbolism by white American collectors, authors and folklorists in their attempt to create a nostalgic fantasy of the plantation past. American Trickster offers readers a unique insight into the cultural significance of the Brer Rabbit trickster figure, from his African roots and through to his influence on contemporary culture. Exploring the changing portrayals of the trickster figure through a wealth of cultural forms including folktales, advertising, fiction and films the book scrutinises the profound tensions between the perpetuation of damaging racial stereotypes and the need to keep African-American folk traditions alive. Emily Zobel Marshall argues that Brer Rabbit was eventually reclaimed by twentieth-century African-American novelists whose protagonists ‘trick’ their way out of limiting stereotypes, break down social and cultural boundaries and offer readers practical and psychological methods for challenging the traumatic legacies of slavery and racism.

December 26, 2020

Newly Published: Monsters, Law, Crime: Explorations in Gothic Criminology, edited by Caroline Joan Picart @fdu_press @RLPGBooks

Newly published: Monsters, Law, Crime: Explorations in Gothic Criminology (Caroline Joan S. Picart, ed., Rowman & Littlefield for Fairleigh Dickinson Press University Press, 2020) (The Fairleigh Dickinson University Press Series in Law, Culture, and the Humanities). Here from the publisher's website is a description of the book's contents.
Monsters, Law, Crime, an edited collection composed of essays written by prominent U.S. and international experts in Law, Criminology, Sociology, Anthropology, Communication and Film, constitutes a rigorous attempt to explore fertile interdisciplinary inquiries into “monsters” and “monster-talk,” and law and crime. This edited collection explores and updates contemporary discussions of the emergent and evolving frontiers of monster theory in relation to cutting-edge research on law and crime as extensions of a Gothic Criminology. This theoretical framework was initially developed by Caroline Joan “Kay” S. Picart, a Philosophy and Film professor turned Attorney and Law professor, and Cecil Greek, a Sociologist (Picart and Greek 2008). Picart and Greek proposed a Gothic Criminology to analyze the fertile synapses connecting the “real” and the “reel” in the flow of Gothic metaphors and narratives that abound around criminological phenomena that populate not only popular culture but also academic and public policy discourses. Picart's edited collection adapts the framework to focus predominantly on law and the social sciences.


More here at the website.  

December 18, 2020

Kellogg on Pragmatism, Logic, and Law (Lexington Books, 2020)

Frederic R. Kellogg, Universidade Federal de Pernambuco; George Washington University, has published Pragmatism, Logic, and Law (Lexington Press, 2020). Here is the abstract.
Pragmatism, Logic, and Law offers a view of legal pragmatism consistent with pragmatism writ large, tracing it from origins in late 19th century America to the present, covering various issues, legal cases, personalities, and relevant intellectual movements within and outside law. It addresses pragmatism’s relation to legal liberalism, legal positivism, natural law, critical legal studies (CLS), and post-Rorty “neopragmatism.” It views legal pragmatism as an exemplar of pragmatism’s general contribution to logical theory, which bears two connections to the western philosophical tradition: first, it extends Francis Bacon’s empiricism into contemporary aspects of scientific and legal experience, and second, it is an explicitly social reconstruction of logical induction. Both notions were articulated by John Dewey, and both emphasize the social or corporate element of human inquiry. Empiricism is informed by social as well as individual experience (which includes the problems of conflict and consensus). Rather than following the Aristotelian model of induction as immediate inference from particulars to generals, a model that assumes a consensual objective viewpoint, pragmatism explores the actual, and extended, process of corporate inference from particular experience to generalization, in law as in science. This includes the necessary process of resolving disagreement and finding similarity among relevant particulars.
Download the introduction from SSRN at the link. The book is available from Lexington Press. Here is a link to the publisher's website.

December 17, 2020

Johns on Songs and Static: Legalities of White Noise @FleurEJ

Fleur Johns, University of New South wales Faculty of Law, has published Songs and Static: Legalities of White Noise. Here is the abstract.
This paper was delivered as a keynote talk at the 13th Annual Doctoral Forum on Legal Theory, 'Sirens + Silences: Law in Lockdown', co-hosted by Melbourne Law School and UNSW Law. Responding to the convenors' invitation to reflect on "a year marked by upheaval and stasis", it explores how legal scholars in various settings might plan a route out of the global COVID-19 pandemic that is not simply a return home. Five legal and political "songs" in broad circulation are identified – songs of salvation, separation, suspension, stagnation, and absurdity – and arguments made for resisting some of their appeals. Instead, the paper suggests, legal scholars might do well to look to the commonplace normativity of survival: the ceaseless static of making do and getting by. By planning and organizing around some of the ways that people have lived the pandemic, legal scholars might perhaps become attuned to possible ways of living lawfully without casting sectors of the population into surplus.
Download the essay from SSRN at the link.

December 16, 2020

Leeming on Lawyers' Use of History, from Entick v. Carrington to Smethurst v. Commissioner of Police @SydneyLawSchool

Mark Leeming, University of Sydney Law School, has published Lawyers' Uses of History, from Entick v Carrington to Smethurst v Commissioner of Police at 49 Australian Bar Review 199 (2020). Here is the abstract.
Lawyers use history in different ways. This is partly because judges are directed to decide consistently with what has been decided before, such that continuity with the past is a matter of legal duty. But, as Maitland said, historical research serves the purpose of explaining and therefore lightening the pressure that the past exercises on the present, and the present upon the future. This article considers – including by reference to images of original documents – the multiplicity of ways in which lawyers use history, including the need for a contextual understanding of judgments, the deployment of expert evidence by legal historians, and the haphazard and imperfect reporting of judgments. It considers three quite different sources of Entick v Carrington, including one manuscript only recently published, and how that decision has been used to address modern disputes.
Download the article from SSRN at the link.

December 14, 2020

ICYMI: Strassfeld on Vietnam War on Trial: The Court-Martial of Dr. Howard B. Levy @CWRU_Law

ICYMI: Robert N. Strassfeld, Case Western Reserve School of Law, has published Vietnam War on Trial: The Court-Martial of Dr. Howard B. Levy at 1994 Wis. L. Rev. 839. Here is the abstract.
This Article examines the history of a Vietnam War-era case: the court-martial of Dr. Howard B. Levy. The U.S. Army court-martialled Dr. Levy for refusing to teach medicine to Green Beret soldiers and for criticizing both the Green Berets and American involvement in Vietnam. Although the Supreme Court eventually upheld Levy's conviction in Parker v. Levy, its decision obscures the political content of Levy's court-martial and its relationship to the war. At the court-martial Levy sought to defend himself by showing that his disparaging remarks about the Green Berets, identifying them as "killers of peasants and murderers of women and children," were true and that his refusal to teach medicine to Green Beret soldiers was dictated by medical ethics, given the ways in which the soldiers would misuse their medical knowledge. Ultimately, Levy put the war itself on trial by arguing that had he trained the soldiers he would have abetted their war crimes. This Article seeks to recapture the history of the Levy case as a case about the Vietnam War. Yet the case was also about much more. The Article shows how imagery evoking beliefs about race and racial difference, war, frontier violence, and medicine and healing all came into play in the Levy case. It also explores the manner in which the court-martial became a forum in which the Vietnam War and aspects of U.S. Army policy and conduct were debated, and in which that debate was eventually suppressed. Ultimately, this Article begins the exploration of how American legal institutions coped with the crisis of political and moral legitimacy that they confronted in the late 1960s.
Download the article from SSRN at the link.

Kessler on Family Law By the Numbers: The Story That Casebooks Tell @sjquinney

Laura T. Kessler, University of Utah College of Law, is publishing Family Law by the Numbers: The Story That Casebooks Tell in volume 62 of the Arizona Law Review (2020). Here is the abstract.
This Article presents the findings of a content analysis of 86 family law casebooks published in the United States from 1960 to 2019. Its purpose is to critically assess the discipline of family law with the aim of informing our understandings of family law’s history and exposing its ideological foundations and consequences. Although legal thinkers have written several intellectual histories of family law, this is the first quantitative look at the field. The study finds that coverage of marriage and divorce in family law casebooks has decreased by almost half relative to other topics since the 1960s. In contrast, pages dedicated to child custody and child support have increased, more than doubling their relative share. At the same time, the boundaries of family law appear to remain quite stubborn. Notwithstanding sustained efforts by family law scholars and educators to restructure the field of family law so that it considers additional domains of law affecting families (such as tax, business, employment, health, immigration, and government benefits), the core of the academic field of family law has remained relatively static in the past 60 years. Marriage, divorce, child custody, and child support continue to dominate the topics presented in family law casebooks, representing 55% to 75% of their content since the 1960s.
Download the article from SSRN at the link.

December 9, 2020

Serban and Ciobanu on Law, History, and Justice in Romania: New Directions in Law and Society Research

Michaela Serban, Ramapo College of New Jersey, and Monica Ciobanu have published Law, History, and Justice in Romania: New Directions in Law and Society Research at 2 Journal of Romanian Studies 9 (2020). Here is the abstract.
This special issue of the Journal of Romanian Studies examines law as a social institution and the ways in which it intersects with the larger social, historical, political and economic world. The articles included here mostly explore the intersections between law, history, and justice, reject positivist and doctrinal analyses of law, and focus on “living law” and the complex interactions between law and social issues, including how law is created, interpreted and implemented, and how individuals and organizations live, shape and evade it in everyday interactions within and outside of the state. We bring together scholars from several disciplines in humanities and social sciences, including anthropology, comparative literature, history, political science, socio-legal studies, and sociology. Regardless of their academic field, the contributors engage in interdisciplinary studies of “law in action” located in various historical settings and different types of political regimes.
Download the article from SSRN at the link.

Bix on Reflections on Truth in Law @UofMNLawSchool

Brian Bix, University of Minnesota Law School, has published Reflections on Truth in Law in 8 Cosmos + Taxis (2020). Here is the abstract.
This short article was written as part of a Festschrift for Susan Haack (published in the journal, Cosmos + Taxis, vol. 8 (2020)). It focuses on the intricacies of statements of truth within and about law. Truth about particular legal propositions often turns on some combination of “will” and “reason”: the decisions made by officials authorized to make choices for the community, on one hand, and what follows from those decisions, as a matter of the distinct form of practical reasoning known as “doctrinal reasoning.” And where will and reason conflict, sometimes there may be, if only temporarily, more than one legal truth.
Download the essay from SSRN at the link.

December 3, 2020

Haviland on Misreading the History of Presidential War Power, 1789-1860

Aaron Haviland is publishing Misreading the History of Presidential War Power, 1789-1860 in volume 24 of the Texas Review of Law & Politics (2020). Here is the abstract.
The Office of Legal Counsel (OLC) justifies its expansive view of presidential war power by citing long lists of American military conflicts. But OLC misinterprets these events. This article surveys every U.S. conflict between 1789 and 1860 and evaluates whether the conflict was authorized by Congress, a limited defensive measure under Article II, or possibly unconstitutional. Viewed in its entirety, early American history does not support the OLC position. This article calls for a more restrained approach to war power that is based on the original meaning of the Declare War Clause, informed by a more accurate interpretation of history.
Download the article from SSRN at the link.

Thomas on Crime as an Assemblage @crowdedmouth

Phil Crockett Thomas, University of Glasgow, is publishing Crime as an Assemblage in the Journal of Theoretical & Philosophical Criminology for 2020. Here is the abstract.
This article seeks to make an original contribution to criminology and the sociology of crime and punishment by elaborating the ‘assemblage’, a concept which originates in the collaborative poststructuralist philosophy of Gilles Deleuze and Félix Guattari and discussing its ontological implications for researching crime. I will first introduce the concept and its application. I then discuss the relationship between the assemblage and Michel Foucault’s concept of the dispositif. I demonstrate how the assemblage could be used to analyze crime events and discuss questions of change and scale within the assemblage. I conclude by outlining some implications for how adopting this concept would change the way we practice and research crime and punishment.
Download the article from SSRN at the link.

December 2, 2020

Abrams on References to Children's Stories and Fairy Tales in Judicial Opinions and Written Advocacy @mobarnews

Douglas E. Abrams, University of Missouri School of Law, has published References to Children's Stories and Fairy Tales in Judicial Opinions and Written Advocacy at 76 Journal of the Missouri Bar 212 (Sept.-Oct. 2020). Here is the abstract.
Professor Abrams authors a column, Writing it Right, in the Journal of the Missouri Bar. In a variety of contexts, the column stresses the fundamentals of quality legal writing — conciseness, precision, simplicity, and clarity.
Download the essay from SSRN at the link.

Wexler on #MeToo and Law Talk @lesley_wexler

Lesley Wexler, University of Illinois College of Law, is publishing #MeToo and Law Talk in volume 29 of the University of Chicago Law Forum (2019). Here is the abstract.
How Americans talk when they talk about #MeToo is often deeply rooted in the law—even in non-legal settings, participants in the #Me-Too conversation often deploy legal definitions of victims and perpetrators, reference legal standards of proof and the role of legal forums, draw explicit or implicit comparisons to legal punishments, and derive meaning from legal metaphors and legal myths. In this essay, I identify and assess the deployment of such law talk to help understand both how legal rhetoric may facilitate the national #MeToo conversation and related legal reforms, but may also simultaneously limit and obscure some of the #MeToo’s more transformative possibilities. Such critical engagement seeks to open space for selective pushback, including initial thoughts on the possibilities of reclaiming colloquial law talk to better match the interests at stake in non-legal settings as well as bringing to the forefront the therapeutic, informative, and structural issues law talk might crowd out.
Download the article from SSRN at the link.