Critical Legal Conference, 2016: Call For Stream Proposals Now Open

Via James Martel:

CRITICAL LEGAL CONFERENCE 2016
Kent Law School
1st – 3rd September

Turning Points

The Call for Stream Proposals is OPEN NOW – please send proposals of no more than 500 words along with short bios of the stream organisers to klsclc2016@kent.ac.uk. The Call for Stream Proposals closes 7 March 2016.

“…there are no witnesses to changes of epoch. The epochal turning is an imperceptible frontier,
bound to no crucial date or event.” 

The present is notoriously difficult to diagnose. Are we living at a decisive turning point for global and European history, politics and law? Are we witnesses to a new epoch? Or perhaps we just have a bad case of “presentism”? The Critical Legal Conference 2016 will open a forum for critical reflection on precarious political situations, particularly that of Europe in a global context - an apposite theme for a critical conference at the University of Kent, ‘the UK’s European University’ and a point of origin for the CLC.

Taking a global and historicised view of contemporary Europe and its intellectual and political traditions (as well as an interrogative stance on their centrality), we anticipate that this year’s CLC will enable a creative response to some of the many problems of our collective present. The difficulty in thinking the present lies partly in its immediacy, and partly in the way in which spaces for that thinking are themselves precarious, colonised, dis-placed, degraded, recast or simply made untenable. From individuals’ housing, employment and migration experiences to the broader question about the intensification or disintegration of the European political project, are life’s very objects and experiences now peculiarly shaped by precarity?

Law forms part of the architecture of precarity, shaping both its production and governance, whether through specific rules and regulations relating to welfare provision, housing law or the structuring and regulation of financial markets; or through changing images and enactments of justice, (fragmented) genealogies, and shifting understandings of modernity. One approach within the critical legal tradition has been to expose these architectures: to show how it produces inequity, to demonstrate its contingencies, to trace its genealogies, to question law’s production of a normative order of life. In this sense it might be said that the role of critique is to render law itself precarious. What is the contemporary nature, role and position of academic work generally, in relation to political life and cultural and intellectual history? Are we post-human? Post-Europe? Post-law? Post-critique? And what about the core critical legal concerns: law, justice and ethics?

True to the tradition of the CLC, we hope participants will approach these general provocations through a rich plurality of critical and radical thematics and interdisciplinary approaches.

Confirmed Plenary Speakers:

·         Donatella Alessandrini, Kent Law School

·         Kathleen Davis, University of Rhode Island

·         Isabell Lorey, European Institute for Progressive Cultural Policies

·         Davide Tarizzo, University of Salerno

The Call for Stream Proposals is OPEN NOW – please send proposals of no more than 500 words along with short bios of the stream organisers to klsclc2016@kent.ac.uk. The Call for Stream Proposals closes 7 March 2016. The Call for Papers and Panels will be opened in March when streams are announced – and as ever there will be a general stream. *Conference registation will open via the webpage shortly*: http://www.kent.ac.uk/law/research/clc-2016/index.html

We also invite participants to curate screenings, performances, happenings and other creative formats at the conference. Please contact us at klsclc2016@kent.ac.uk with your plans – we will do our best to facilitate them.

Connal Parsley, Nick Piška and the KLS CLC Committee

Racial Norms and Legal Classifications

SpearIt, Saint Louis University School of Law, has published Enslaved by Words: Limits and Liminalities of 'Post-Racial' Language. Here is the abstract.

This article examines racial language in the legal institutions of the United States to show how the law is instrumental in establishing linguistic norms about race. By examining federal and state constitutions, Supreme Court opinions, and government surveys like the U.S. Census, the article unveils a hidden transcript embedded in normative language and attempts to describe how legal classifications work to subordinate minority groups. Racial language is legalized and normalized in society by the force of law, which has institutionalized words like “Indian,” “colored,” and other seemingly innocuous terms like “black” and “white.” Yet, despite their politically correct appeal, these terms effectively subordinate groups, create false binaries, and reinforce racial hierarchies like the “one drop rule.” They are words of everyday parlance that exert an invisible, yet powerful, negative force on minorities. In this census year, for example, who is formally “Hispanic,” “Latino,” or “Spanish” can be people whose “origin” derives from Cuba, Puerto Rico, Mexico, Spain and a whole host of other countries, yet determining the principles which guide the U.S. Census in combining these nationalities under a single banner is a more daunting task. Even more challenging is trying to determine how a “Latino” must then pick between “white” and “black” on the census survey to describe “race” since “Latino” is not a race, but “black” and “white” are. The logic of these divisions is puzzling, yet their negative effects are clear; racial language is never “only words,” but instead can become a conceptual building block of slavery, colonialism, and other forms of subjugation. Terms of today’s common speech can embody the very epitome of discrimination - hegemonic words of the slave master that are still alive and captivate minds in the present. To remedy these iniquities, the article concludes by offering a set of ideas to move beyond the trappings of contemporary racial language and closer to
true freedom of speech.

The full text is not available from SSRN.

Legal Fictions

Nancy J. Knauer, Temple University School of Law, has published Legal Fictions and Juristic Truth, in volume 22 of St. Thomas Law Review (2010). Here is the abstract.

The classic legal fiction is a curious artifice of legal reasoning. In a discipline primarily concerned with issues of fact and responsibility, the notion of a legal fiction should seem an anathema or, at the very least, an ill-suited means to promote a just result. However, the deployment of a patently false statement as a necessary component of a legal rule is a widely practiced and accepted mode of legal analysis. In rem forfeiture proceedings rest on the fiction that the inanimate object was bad. Attractive nuisance re-imagines the child trespasser as an invitee. A host of doctrines bearing the term "constructive" in their titles adopt an "as if" rationalization that deems something to have occurred despite the fact that it did not (e.g., constructive notice, constructive eviction, and constructive discharge).

Legal commentators writing in the diverse fields of law and literature, tax policy, and empirical legal studies have taken a renewed interest in legal fictions, including Fuller’s influential work from the 1930s. They have applied the label "legal fiction" to an eclectic group of legal rules, including slavery, the doctrine of discovery, the tax code, and empirically erroneous legal presumptions (i.e., discredited legal regimes, complex statutory schemes, and empirical legal errors). These newly identified legal fictions do not satisfy Fuller’s classic definition of a legal fiction because they are neither acknowledged to be false nor demonstrably false. The enduring conundrum presented by the classic legal fiction is that it retains its utility despite its falsity, similar to false statements used in science and mathematics in order to advance a proof or hypothesis.

Any discussion of fiction necessarily invokes a concept of reality against which the fiction can be measured. Thus, before we can speak intelligibly of fictions, we must first be able to identify truth. Does it make any sense to refer to slavery as a fiction when it was, in fact, a legal system that brutalized millions? Is the choice of a tax base "false" simply because it is statutorily prescribed? Certain legal rules, such as those governing eye witness testimony, explicitly incorporate statements of fact that are readily verifiable by reference to real world events. Slavery and the doctrine of discovery encompass abstract concepts, such as liberty, autonomy and sovereignty that are not provable in any conventional sense of the term. They stand as juristic truths independent from questions of empirical proof.

Fuller cautioned that a legal fiction becomes dangerous when it is believed for then the fiction can approximate a lie, but there is also danger when the force of its constitutive power is ignored. When this occurs, the label of fiction works a denial and removes from memory important lessons regarding the law and the fragility of the human experience

Download via the link.

The Culinary and Contract Law

Marjorie Florestal, McGeorge School of Law, has published "Is a Burrito a Sandwich? Exploring Race, Class and Culture in Contracts," in volume 14 of the Michigan Journal of Race and Law (Fall 2008). Here is the abstract.

A superior court in Worcester, Massachusetts, recently determined that a burrito is not a sandwich. Surprisingly, the decision sparked a firestorm of media attention. Worcester, Massachusetts, is hardly the pinnacle of the culinary arts - so why all the interest in the musings of one lone judge on the nature of burritos and sandwiches? Closer inspection revealed the allure of this otherwise peculiar case: Potentially thousands of dollars turned on the interpretation of a single word in a single clause of a commercial contract. Judge Locke based his decision on 'common sense' and a single definition of sandwich - 'two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.' The only barrier to the burrito's entry into the sacred realm of sandwiches is an additional piece of bread? What about the one-slice, open-face sandwich? Or the club sandwich, typically served as a double-decker with three pieces of bread? What about wraps? The court's definition lacked subtlety, complexity or nuance; it was rigid, not allowing for the possibility of change and evolution. It was a decision couched in the 'primitive formalism' Judge Cardozo derided nearly ninety years ago when he said '[t]he law has outgrown its primitive stage of formalism when the precise word was a sovereign talisman, and every slip was fatal. It takes a broader view today.' Does it? Despite the title of this piece, my goal is not to determine with any legal, scientific or culinary specificity whether a burrito is a sandwich. Rather, I explore what lies beneath the 'primitive formalism' or somewhat smug determination of the court that common sense answers the question for us. I suggest Judge Locke's gut-level understanding that burritos are not sandwiches actually masks an unconscious bias. I explore this bias by examining the determination of this case and the impact of race, class and culture on contract principles.

Download the article from SSRN here.

Building a Race Law Canon

Rachel F. Moran, University of California, Berkeley, School of Law; University of California, Irvine, Law School, and Devon W. Carbado, University of California, Los Angeles, Law School, have published Introduction: The Story of Law and American Racial Consciousness--Building a Canon One Case at a Time, in Race Law Stories (2008).

Here is the abstract.

This introduction explains the difficulties of consolidating a race law canon due to our nation’s general ambivalence about the significance of race. There is a tendency to treat racial injustice as an aberration or an accident in an otherwise democratic system. Transgressions are relegated to the past and sharply contrasted with the contemporary practice of rendering race a biological irrelevancy. These ideological commitments make it hard to conceive of race law in anything but an ephemeral way. That is, once upon a time, there was an anti-canon of race comprised of deplorable decisions like Dred Scott v. Sandford and Plessy v. Ferguson, then there were canonical cases like Brown v. Board of Education and Loving v. Virginia that countered these injustices, but now corrective justice has been done and these concerns are largely the stuff of history.

As the introduction makes clear, Race Law Cases rejects these assumptions and invites a dialogue about how to build a race law canon one case at a time. The process begins by recognizing that the collective narrative of law and American racial consciousness is decidedly multiracial, plays itself out across a number of doctrinal contexts, and reflects moments of both inequality and equality. This narrative is inextricably linked to the nation-building process as well as to the lives of individuals, many of whom were pushing back against racial injustices in particular historical moments. To understand these dynamics in the richly textured way necessary to build a canon, context is critical, the kind of context that comes from telling the stories behind both famous cases and hidden gems. The hope is that these stories will help in rethinking assumptions about the role of race in public and private conversations about equality, liberty, and national identity. At the same time, the accounts will pay homage to the contributions of individuals, whether lionized or little-known, who brought these issues to life by daring to question the conventional wisdom about America’s commitment to its most fundamental democratic values.

Download the chapter from SSRN here.

Rhetoric and Reparations

Lolita Buckner Inniss, Cleveland-Marshall School of Law, has published "A Critical Legal Rhetoric Approach to 'In Re African-American Slave Descendants Litigation'," as Cleveland-Marshall Legal Studies Paper No. 8-155. Here is the abstract.

In this paper I apply critical legal rhetoric to the judicial opinion rendered in response to the Defendants' Motion to Dismiss Plaintiffs' Second Amended and Consolidated Complaint in 'In Re African American Slave Descendants', a case concerning the efforts of a group of modern-day descendants of enslaved African-Americans to obtain redress for the harms of slavery. The chief methodological framework for performing critical legal rhetorical analysis comes from the work of Marouf Hasian, Jr. particularly his schema for analysis which he calls substantive units in critical legal rhetoric. Critical legal rhetoric is a potent tool for exposing the way in which the public ideologies of society and the private ideologies of jurists, legislators and other legal actors are manifested in legal and law-like pronouncements. After introducing this case, I briefly tracing the evolution and meaning of the term rhetoric and examine the relationship between rhetoric and law. I next explore the connection between rhetoric and ideology, which is crystallized in the form of the ideograph and its use as a tool of what is known as critical rhetoric. Finally, I show how critical legal rhetoric is achieved by bringing critical rhetoric to law, and thereafter apply critical legal rhetoric to the case of 'In Re African American Slave Descendants'.

Download the paper from SSRN here.