Call For Papers: FRANKENLAW: Critical Legal Conference 2021, University of Dundee, September 2-4 @thomgiddens

 The Call For Papers for FRANKENLAW, the Critical Legal Conference 2021, University of Dundee, September 2-4, is now open. It will close on March 31, 2021.

Information and queries: contact@clc2021.com

Theme Information

I lived principally in the country as a girl, and passed a considerable time in Scotland. I made occasional visits to the more picturesque parts; but my habitual residence was on the blank and dreary northern shores of the Tay, near Dundee. Blank and dreary on retrospection I call them; they were not so to me then. They were the eyry of freedom, and the pleasant region where unheeded I could commune with the creatures of my fancy.

Mary Shelley, preface to the 1831 edition of Frankenstein, or The Modern Prometheus

Dundee had an embryonic role in the creation of Mary Shelley’s novel Frankenstein. Approaching the northern fringes of the United Kingdom, Dundee’s ‘eyry of freedom’ helped shape the imaginary that would result in Shelley’s famous text, and the infamous and unnatural conglomeration that it unleashed upon the world. Shelley’s reconstituted monster, created by Dr Frankenstein in his experimentations with the fringes of life, has become a cultural icon from page to stage to screen, and beyond. In taking it as inspiration for the theme of the delayed Critical Legal Conference 2021, Frankenstein’s monster is reformulated as a rich and productive concept that encounters many of the multiple and profound tensions of modern law.

Frankenstein’s monster is typically characterised by the joining together of dead parts to constitute a reanimated whole, brought (back) to life by the power of modern science. As a conceptual figure, it thus becomes a notion of both unity and separation, of life and death, and of the power of reason to structure and animate otherwise individual and decaying parts. Rendered as a form of law—as a Frankenlaw—it conjures questions of detachment and community, of touching and separation, of independence and being bound, of unity and corporation, of the rational resolution of multiplicity—and of the modern social order: a divided whole, a community of atomistic modern subjects under a single, sovereign hierarchy.

Partaking in critical legal studies at Dundee, in the temporal shadow of Mary Shelley’s nascent imagination, it seems appropriate to let the theme of Frankenlaw permeate our reflections. To think with Frankenlaw is to encounter questions of corporate personhood, of the relationship between life and science, of bodies and their parts, of post-state or post-sovereign modes of power, of law as dead things (texts, buildings, victims) compiled and brought to life in different ways, of the possibility of unifying plurality, of community and modern subjecthood. It is an invitation and an opportunity to construct new concepts and modes of legal thought out of dead and useless ones, to animate our encounters with law in controversial and provocative ways, to seek to go beyond the boundaries of reason and modernity and see what we find.

Huddled around the thought of law, the dark of the uncritical creeping in, we shall make ghost stories of our own—we shall conjure for one another our own terrifying and inspiring visions … of Frankenlaw!

Plenary Information

Click here for the full call for streams

Call For Papers: International Journal for the Semiotics of Law, Roundtables

Call for Papers: International Roundtables for the Semiotics of Law--IRSL 2021. The roundtables are scheduled for June 17-18, 2021, online. Frank Fleerackers is the organizer, and the Leuven University Faculty of Law will host the event, which is in honor of Jan M. Broekman's 90th birthday.

More information here.

Newly Published: Sal Nicolazzo, Vagrant Figures: Law, Literature, and the Origins of the Police (Yale University Press, 2021) @yalepress

Sal Nicolazzo, University of California, San Diego, has published Vagrant Figures: Law, Literature, and the Origins of the Police (Yale University Press, 2021). Here from the publisher's website is a description of the book's contents.

In this innovative book demonstrating the important role of eighteenth-century literary treatments of policing and vagrancy, Nicolazzo offers a prehistory of police legitimacy in a period that predates the establishment of the modern police force. She argues that narrative, textual, and rhetorical practices shaped not only police and legal activity of the period, but also public conceptions of police power. Her extensive research delves into law and literature on both sides of the Atlantic, tracking the centrality of vagrancy in establishing police power as a form of sovereignty crucial to settler colonialism, slavery, and racial capitalism. The first book in several generations to address policing and vagrancy in the eighteenth century, and the first in the field to center race and empire in its account of literary vagrancy, Nicolazzo’s work is a significant contribution to the field of eighteenth-century literary and cultural studies.

 

Gould on Natural Law and the "Resistance": A Normative Approach to the Skywalker Narrative in "The Last Jedi"

James Gould, University of Plymouth, School of Law, Criminology, and Government, has published Natural Law and the ‘Resistance’: A Normative Approach to the Skywalker Narrative in The Last Jedi, at 34 International Journal for the Semiotics of Law 357-375 (2021). Here is the abstract.

The motion picture The Last Jedi involves important decisions and actions taken by the protagonist of the original Star Wars trilogy, Luke Skywalker. It will be argued that Luke’s narrative in The Last Jedi can be explored through analysing new natural law thought. In particular it draws on Robert P. George’s discussion of the good (human flourishing) to consider whether the opposition provided by Luke Skywalker can been seen as a successful form of opposition to restore public morality. The contrast between Skywalker’s morality and the behaviour of the First Order will be established. It will be argued that the Skywalker narrative symbolises public morality against the politics of the First Order. It will be analysed whether Luke’s sacrifice in The Last Jedi can provide legal restraint to a militant invading force. This will further be shown to be helpful to legal philosophy in negotiating the boundaries over natural rights. As such, it will be shown that key features of George’s natural law reasoning can be usefully applied to examine Luke’s actions, and this will shed light upon concepts such as liberty, sacrifice and fear. Legal idealism in the form of natural law will provide further insight into the jurisprudence that pervades Luke’s narrative arch to demonstrate the film’s wider relevance.

Zhou on The Historical and Formal Foundations of Canadian Constitutional Law @hanruzhou

Han-Ru Zhou, University of Montreal, has published The Historical and Formal Foundations of Canadian Constitutional Law in F. Chevrette and H. Marx, Constitutional Law: Fundamental Principles - Notes and Cases (Thémis), 2020. Here is the abstract.

Canadian constitutional history, since France ceded Canada to the British Crown, can be divided into five broad stages: the beginning of the British colonial regime, the establishment of “responsible government,” the establishment of the federal system, independence, and finally federal-provincial relations and patriation of the Constitution. The Constitution of Canada is made of a number of components that include certain British Acts and decrees, certain federal and provincial laws, constitutional conventions, the common law and case law, and, to a lesser extent, certain secondary sources, such as legal commentaries and literature, and federal-provincial agreements. The purpose of this chapter is twofold. On the one hand, it is to conduct a very brief review of the major periods of Canadian constitutional history and, on the other, to present the various formal components of Canada’s Constitution.

Download the chapter from SSRN at the link.

Morse on Before and After Hinckley: Legal Insanity in the United States @pennlaw

Stephen Morse, University of Pennsylvania Law School, is publishing Before and After Hinckley: Legal Insanity in the United States in The Insanity Defense: International and Comparative Perspectives (Ronnie Mackay & Warren Brookbanks, eds., Oxford, 2022). Here is the abstract.

This chapter first considers the direction of the affirmative defense of legal insanity in the United States before John Hinckley was acquitted by reason of insanity in 1982 for attempting to assassinate President Reagan and others and the immediate aftermath of that acquittal. Since the middle of the 20th Century, the tale is one of the rise and fall of the American Law Institute’s Model Penal Code test for legal insanity. Then it turns to the constitutional decisions of the United States Supreme Court concerning the status of legal insanity. Finally, it addresses the substantive and procedural changes that have occurred in the insanity defense since the wave of legal changes following the Hinckley decision.

Download the chapter from SSRN at the link.

Fischer and Fredericks on The Creeps as a Moral Emotion

Jeremy Fischer, Department of Philosophy, University of Alabama, Huntsville, and Rachel Fredericks, Ball State University, have published The Creeps as a Moral Emotion in Ergo, at 191 (2020). Here is the abstract.

Creepiness and the emotion of the creeps have been overlooked in the moral philosophy and moral psychology literatures. We argue that the creeps is a morally significant emotion in its own right, and not simply a type of fear, disgust, or anger (though it shares features with those emotions). Reflecting on cases, we defend a novel account of the creeps as felt in response to creepy people. According to our moral insensitivity account, the creeps is fitting just when its object is agential activity that is insensitive to basic moral considerations. When, only when, and insofar as someone is disposed to such insensitivity, they are a creep. Such insensitivity, especially in extreme forms, raises doubts about creeps’ moral agency. We distinguish multiple types of insensitivity, respond to concerns that feeling the creeps is itself objectionable, and conclude with a discussion of epistemic issues relating to the creeps.

Download the article from SSRN at the link.

Schwabach on Bringing the News from Ghent to Axanar: Fan Works and Copyright After Deckmyn and Subsequent Developments @UARKLaw

Aaron Schwabach, UALR William H. Bowen School of Law, is publishing Bringing the News from Ghent to Axanar: Fan Works and Copyright after Deckmyn and Subsequent Developments in volume 22 of the Texas Review of Entertainment & Sports Law (2021). Here is the abstract.

Fan works offer a lens through which to view the complex future of copyright law. Recent years have seen an explosion in academic interest in fan works, for reasons including the ongoing crisis in copyright law, changes in the way we consume copyrighted content, and increasing interest in fandom itself. Scholarship on fan works has continued to explore the key questions of fair use, parody, and First Amendment protection that allow fan works to exist yet fail to clearly delineate the boundaries of the legal twilight zone in which they reside and thrive. It has also continued to address the intersection between fanfic and gender and what this says about the gendered nature of intellectual property law. Much has also been written about the future of copyright in general, and of fan works in particular, often looking at fan works from new perspectives, including law and economics and the closely related vexing problem, for content owners, of how to address possible infringement without alienating the fanbase. This article looks at recent developments relating to fanfic first by looking at the historical context and current state of fan works, and next by looking at story elements and the ways in which they are and are not protected by copyright. The article devotes special attention to the related issues of cultural appropriation and reinterpretation, looking at Own Voices stories and street murals as a means of reclaiming a right to cultural property appropriated by others. The article then looks at the shrinking space for online fan works, with a look at two fairly recent decisions dealing with works based on existing popular culture franchises. One, Paramount Pictures Corp. v. Axanar Productions, deals with true fan art (a Star Trek fan film), while the other, Deckmyn v. Vandersteen, deals with hate speech masquerading as fan art. Ultimately the article concludes that there is both good and bad news for fans in the current situation. The good news is that the formerly frustratingly nebulous legal status of fan works is increasingly coming to be understood by fan work creators, courts, and content owners. The bad news is that the balance of powers in copyright generally, is increasingly shifting to large content owners.

Download the article from SSRN at the link.

Journal for the History of Knowledge Publishes Special Issue: "Histories of Bureaucratic Knowledge" @jhokjournal

The Journal for the History of Knowledge has published its Special Issue, "Histories of Bureaucratic Knowledge," edited by Sebastian Felten and Christine von Oertzen. Here is a link to the Special Issue.

Contributions: Sixiang Wang, Chosŏn’s Office of Interpreters: The Apt Response and the Knowledge Culture of Diplomacy John Sabapathy, Making Public Knowledge—Making Knowledge Public: The Territorial, Reparative, Heretical, and Canonization Inquiries of Gui Foucois (ca. 1200–1268) Susanne Friedrich, Caveat from the Archive: Pieter van Dam’s Beschryvinge van de Oostindische Compagnie and Crisis Management Harun Küçük, The Bureaucratic Sense of the Forthcoming in Seventeenth-Century Istanbul Sebastian Felten, Sustainable Gains: Dutch Investment and Bureaucratic Rationality in Eighteenth-Century Saxon Mines Maura Dykstra, A Crisis of Competence: Information, Corruption, and Knowledge about the Decline of the Qing State Kathryn M. Olesko, The Indaganda Survey of the Prussian Frontier: The Built World, Logistical Power, and Bureaucratic Knowledge in the Polish Partitions, 1772–1806 Anna Echterhölter, Shells and Order: Questionnaires on Indigenous Law in German New Guinea Theodore Porter, Revenge of the Humdrum: Bureaucracy as Profession and as a Site of Science.

The Journal for the History of Knowledge is an open access, peer-reviewed journal.

Tzanaki on The Interbeing of Law and Economics: Building Bridges, Not Walls--Interdisciplinary Scholarship and Dialectic Pedagogy @AnnaTzanaki

Anna Tzanaki, Lund University, Faculty of Law; University College London, Centre for Law, Economics and Society, has published The Interbeing of Law and Economics: Building Bridges, Not Walls – Interdisciplinary Scholarship and Dialectic Pedagogy in Interdisciplinary Pedagogy in Higher Education - Proceedings from Lund University’s Teaching and Learning Conference 2019 (Johanna Bergqvist Rydén, Anne Jerneck, Jessika Luth Richter and Karin Steen (eds.), Lund, 2020). Here is the abstract.

Some fifty years ago, Pink Floyd topped the music charts irreverently vocalizing the idea that education is just “Another Brick in the Wall.” Should this popular enchantment of hearts and minds cause alarm to professional teachers and higher education scholars? How much relevance does the progressive rock band’s verse have to the spirit of contemporary academy? A calmer, more composed reaction of educators would be one of constructive introspection over disciplinary and our own pedagogical practice. It is important to pause for a moment and ask what the enduring value, function and role of university education in the 21st century are. In the modern-day “knowledge society,” where the sources and means of learning abound, formal education is to be regarded as a tool of individual empowerment and “enlightenment” rather than some off-the-shelf commodity to be provided en masse. By this view, academic training is a building block in creating sustainable and inclusive societies and not merely a functional production machine of a future skilled workforce. With this mission clear, could it be said that legal education today is up to task? Could the discipline of law expand, learn and be enriched by other disciplines? In an equally irreverent manner, this article claims that connecting Law with Economics may recast the image of scholarly education as a cross-disciplinary bridge, instead of a brick wall, in the quest for finer quality and resilience in the curriculum and beyond.

Download the essay from SSRN at the link.

Geddis on Liberty and the Rule of Law @otago

Andrew Geddis, University of Otago Faculty of Law, is publishing Liberty and the Rule of Law in A Cultural History of Democracy in the Age of Empire (2020). Here is the abstract.

During the "Age of Empire" (1800-1920), the concepts of "Liberty" and the "Rule of Law" were subject to various contested understandings or "visions". This chapter examines how these visions were reflected through different cultural outputs, ranging across literature, painting, music and cartoons.

Download the essay from SSRN at the link.

McGlynn on Moving From Written Records To Bureaucratic Mind: Imagining a Criminal Record @ArsScripta

 Via Simon Stern, Professor of Law, University of Toronto:

Margaret McGlynn, University of Western Ontario, has published From Written Record to Bureaucratic Mind: Imagining a Criminal Record, at 250 Past & Present 55-86 (2021). Here is the abstract.

In 1518 the chief justice of King’s Bench initiated an attempt to track successful claims of benefit of clergy on the assize circuits to ensure that laymen could make such claims only once, as mandated by a statute dating from 1490. By doing so he was the first to attempt to create a criminal record in England, where an individual felon’s crimes were recorded with the expectation that an earlier crime would have implications for the punishment of a subsequent one. Both this attempt and a later statutory attempt in 1543 were largely unsuccessful, however. They failed, not because of principled opposition or even inertia, but because the well-established bureaucratic structures of the early Tudor period struggled to keep up with the bureaucratic imagination of those who sought to reform or extend the reach of government. The failed attempt to construct a criminal record demonstrates that as the development of print changed information cultures, and the policies of the Tudors led to an intensification of governance, legal records remained profoundly limited by the intellectual and administrative structures within which they operated. Masters of the gathering of information, Tudor governors struggled to adapt old documents to new purposes or to manage information dynamically.

 

ICYMI: Banks on Civil Trials: A Film Illusion? @UMDLaw

ICYMI: Taunya Lovell Banks, University of Maryland School of Law, has published Civil Trials: A Film Illusion? Fordham Law Review, Vol. 85 (2017)in volume 85 of the Fordham Law Review (2017). Here is the abstract.

The right to trial in civil cases is enshrined in the United States Constitution and most state constitutions. Most people, laypersons and legal professionals alike, consider trials an essential component of American democracy. But real life civil trials are disappearing from the American legal landscape. Films, like books designed for consumption by the general public, are cultural documents that embody a society’s attitudes about and views of the law and the legal system. Courtroom films are the most easily recognizable and popular subset of films about law because they provide the stage for an examination of some aspect of a trial—juries, lawyers, litigants, laws or the legal process itself. Some legal commentators contend that legal films have the capacity to teach and encourage film audiences to think more critically about the legal system. But most trial films involve criminal cases. Thus this essay asks whether the distinction between criminal and civil films trials is important when determining the impact of the decline in real-life civil trials on American popular culture and courtroom films in particular.

Download the article from SSRN at the link.

Newly Published: Peter Goodrich: Advanced Introduction To Law and Literature (Edward Elgar, 2021) @ElgarPublishing

New from Edward Elgar: Peter Goodrich, Cardozo School of Law, has published Advanced Introduction to Law and Literature (2021). Here from the publisher's website is a description of the book's contents.

Peter Goodrich presents a unique introduction to the concept of jurisliterature. Highlighting how lawyers have been extraordinarily productive of literary, artistic and political works, Goodrich explores the diversity and imagination of the law and literature tradition. Jurisliterature, he argues, is the source of legal invention and the sign of novelty in judgments.

 

ICYMI: Aprill on A Tax Lawyer's Interpretation of Shakespeare @EllenAprill

ICMYI: Ellen P. Aprill, LMU Loyola Law School, has published A Tax Lawyer’s Interpretation of Shakespeare, in 13 Tax Bytes: ABA Section of Taxation News Quarterly 13 (Fall 2009). Here is the abstract.

Shakespeare has been quoted and invoked in numerous contexts, but, inexplicably, the insights his immortal words bring to tax law have been ignored. This short and lighthearted piece begins to fill that gap. Expanding on my remarks in accepting the 2009 Dana Latham Memorial Award from the Los Angeles County Bar Association Taxation Section, I discuss quotations from Shakespeare’s plays that illuminate important tax doctrines.

Download the article from SSRN at the link.

Hrdy and Brean on Enabling Science Fiction @CamillaHrdy @AkronLaw @yaleisp

Camilla Alexandra Hrdy, University of Akron School of Law; Yale University Information Society Project; and Daniel Harris Brean are publishing Enabling Science Fiction in the Michigan Telecommunications and Technology Law Review, Science Fiction and the Law Symposium Issue (2021). Here is the abstract.

Patent law promotes innovation by giving inventors 20-year-long exclusive rights to their inventions. To be patented, however, an invention must be “enabled,” meaning the inventor can actually describe it in enough detail to teach others how to make and use the invention at the time the patent is filed. When inventions are not enabled, like a perpetual motion machine or a time travel device, they are derided as “mere science fiction”—products of the human mind, or the daydreams of armchair coots, that are not suitable for the patent system. This Essay argues that, in fact, the literary genre of science fiction has its own unique—albeit far laxer—enablement requirement. Since the genre’s origins, fans have demanded that the inventions depicted in science fiction meet a minimum standard of scientific plausibility. Otherwise, the material is denigrated as lazy hand- waving or, worse, “mere fantasy.” Taking this insight further, the Essay argues that, just as patents positively affect the progress of science and technology by teaching others how to make and use real inventions, so too can science fiction, by stimulating scientists’ imagination about what sorts of technologies might one day be possible. Thus, like patents, science fiction can have real world impacts for the development of science and technology. Indeed, the Essay reveals that this trajectory—from science fiction to science reality—can be seen in the patent record itself, with several famous patents tracing their origins to works of science fiction.

Download the article from SSRN at the link.

Guerra-Pujol on Love or Liberty? A Short History of Adam Smith in Love @lawscholar

F. E. Guerra-Pujol, University of Central Florida; Pontifical Catholic University of Puerto Rico, is publishing Love or Liberty? A Short History of Adam Smith in Love in Econ Journal Watch. Here is the abstract.

Who were Adam Smith’s lost loves, and how does the enigma of Smith’s love life inform his defense of personal and economic liberty? With a view toward systematizing the available evidence and extending the work of previous scholars, I will re-assemble all the admissible amorous evidence, subject such facts to critical scrutiny, and draw reasonable inferences from these sundry proofs. First, I will present four pieces of primary evidence regarding Adam Smith’s lost loves. Secondly, I will make several new conjectures and revisit several intriguing hypotheses concerning Doctor Smith’s sexuality and romantic attachments. Thirdly, I speculate about Smith’s adamant desire to have his private papers and correspondence destroyed upon his death and about the possibility of a lost travel diary from his Grand Tour of France, and lastly, I will consider two additional clues that may shed light on this amorous enigma. Specifically, I will revisit Adam Smith’s analysis of love and lust in The Theory of Moral Sentiments, and I will conclude this paper by exploring the geographical dimension of Adam Smith’s enigmatic love life: the strict ecclesiastical regulation of sex in the Scotland of Doctor Smith’s youth.

Download the article from SSRN at the link.

Lash on The 1791 Amendments as the "Bill of Rights," Founding To Reconstruction (A Response To Revisionists) @URLawSchool

Kurt T. Lash, University of Richmond School of Law, has published The 1791 Amendments as the 'Bill of Rights,' Founding to Reconstruction (A Response to Revisionists). Here is the abstract.

Unlike the “Declaration of Rights” annexed to many state constitutions, the ten amendments added to the federal Constitution in 1791 have no formal title at all. It is only by cultural tradition that Americans refer to these provisions as our national “Bill of Rights.” Until recently, most scholars assumed that this tradition could be traced back to the moment of ratification. Over the last decade or so, however, a number of scholars have challenged this assumption. These “Bill of Rights revisionists” claim that Americans did not commonly refer to the first ten amendments as “the bill of rights” until the twentieth century. Prior to that, most Americans either did not believe they had a national bill of rights or they would have more likely pointed to the Declaration of Independence as the country’s “bill of rights” than to the 1791 amendments. If the revisionists are right, then a substantial portion of constitutional historical scholarship is shot through with historical error, in particular scholarship supporting the incorporation of the Bill of Rights as part of the Fourteenth Amendment. This essay examines the historical record in order to determine whether the claims of the Bill of Rights revisionists are correct. It presents the results of an exhaustive investigation of political, legal and cultural references to the “bill of rights” from the time of the Founding to Reconstruction (and beyond). These references, most of which are presented here for the first time, suggest that the revisionist claims about the ten amendments are false. Long before the twentieth century, and decades before Reconstruction, Americans commonly referred to the first ten constitutional amendments as “the Bill of Rights.” Moreover, references to the 1791 amendments as the national bill of rights vastly outnumber historical references to the Declaration of Independence as a “bill of rights,” and indicate that nineteenth century Americans were not at all confused about the meaning and content of their national “Bill of Rights.” If any “revision” is in order, it is the need to (1) revisit and revise our understanding of the original theoretical role played by the Bill of Rights at the time of the Founding and (2) recognize the remarkably broad coalition of Americans who, by the time of Reconstruction and the Fourteenth Amendment, embraced an altogether different theory of the 1791 amendments.

Download the article from SSRN at the link.

ICYMI: Peter Leman, Singing the Law: Oral Jurisprudence and the Crisis of Colonial Modernity in East African Literature (Liverpool University Press, 2020) @BYU @LivUniPress

 ICYMI:

Peter Leman, Department of English, Brigham Young University, has published Singing the Law: Oral Jurisprudence and the Crisis of Colonial Modernity in East African Literature (Liverpool University Press, 2020). 

The Journal of Law and Religion, Volume 35 (December 2020), Now Available @JLRatEmory

 Volume 35 of the Journal of Law and Religion (December 2020) is now available. Here's a link to the table of contents. 

Among the very interesting pieces: Cuilan Liu, "The Fall of a Chinese Buddhist Monk: Law and State Governance of Buddhism in Post-Imperial China," and a book review of Nathan C. Walker's "The First Amendment and State Bans on Teacher's Religious Garb (Routledge, 2020) by Ashley Rogers Berner.

ICYMI: Sherwin on Law's Enchantment: The Cinematic Jurisprudence of Krzysztof Kieslowski @RKSherwin @OxUniPress

ICYMI: Richard K. Sherwin, New York Law School, has published Law's Enchantment: The Cinematic Jurisprudence of Krzysztof Kieslowski in Law and Popular Culture (Michael Freeman, ed., Oxford University Press, 2005). Here is the abstract.

Mythos begets nomos. In myth begins the normative universe in which we live. Law emerges to maintain that universe, and to foreclose others. Law polices the normative reality through the official stories that it tells, for these are the stories whose meanings are backed by the force of the state. But law's stories are often shaped and informed by popular narratives from the culture at large. This shared process of narrative production, adaptation, and critique attests to law's deep entanglement in the meaning-making function of culture.

The full text is not available from SSRN.