Thucydides and Law

Darien Shanske, University of California Hastings College of the Law, has published Thucydides and Lawfulness, in Thucydides--A Violent Teacher? History and Its Representations (Georg Rechenauer & Vassiliki Pothou eds; 2011). Here is the abstract.

For the classical Athenians, legitimate law is public and yet usually arises from no person in particular, with the rule-proving exception being the laws that emerge from famous (and often mythical) lawgivers such as Solon. This notion of law that is public, yet indeterminately grounded, though commonly encountered in classical literature (e.g., in the Antigone), is hard to grasp. If the laws of Athens are public and controlled by the demos, both ideas that are central elements of Athenian democratic ideology, then how can it be sensible that the laws often, and often in particularly importance instances, are discussed as having an indistinct provenance? Such a paradoxical notion of law would seem to encourage lawlessness, though in fact what we know about Athens indicates the reverse. The Athenian historian Thucydides provides an exemplary demonstration of the nature of the Athenians’ paradoxical approach to the law. This is surprising. For one thing, Thucydides’ account, like that of other elite authors (like Plato or Aristophanes), seems to emphasize the lawlessness of Athens. Furthermore, at various points Thucydides’ narrative suggests that it is a simple thing to predict when laws will hold and when they will not; in particular, they will not hold in moments of extreme distress. It does not matter if they are ancient or unwritten or public. And yet a close reading of Thucydides demonstrates that lawfulness sometimes obtains even under the worst of circumstances, even and especially in Athens. It may have been surprising to Thucydides, as it seemed to have been to other Athenians and Greeks generally, but in a concrete way the Athenian polis was more resilient and more lawful than perhaps any other (and perhaps precisely because of the intensity of the Athenian attachment to its paradoxical notion of law). This point is easily missed, as there is a lack of an explicit explanation or theoretization of this phenomenon in Thucydides or elsewhere. Moreover, the nature of this insight is not such as to give much comfort or guidance to the would-be political reformer, but the strangeness of this approach only makes it more important.

Download the essay from SSRN at the link. 

Leo Tolstoy, Ernest H. Crosby, and Shakespeare

José Calvo González, University of Malaga, has published Lev N. Tolstói & E. H. Crosby:Sobre la geografía de la recepcíon literaria y jurídico-social Tolstiana, con apunte acerca del reformista social norteamericano Ernest Howard Crosby (1856-1907). at 2 Revista Europea de Historia de las Ideas Políticas y de las Instituciones Públicas 87 (February 2012). Here is the abstract.

Geography of the receipt of the work and thought of Tolstoy, presenting his map in Europe, Asia and USA. Interspersed references to the reception among jurists. Particular care in the U.S. figure of Ernest Howard Crosby and his contribution to the spread of tolstoism, and about his criticism and social reform. Recovery and analysis, in line Law and Literature, of one of the texts of Crosby (Shakespeare's attitude toward the working classes, 1903).

The full text is available at the link.

"Crime and Punishment" and False Confessions

Rinat Kitai-Sangero, Academic Center of Law & Buriness, Ramat Gan, Israel, has published Can Dostoyevsky's Crime and Punishment Help Us Distinguish between True and False Confessions? at 9 Ohio State Journal of Criminal Law 231 (2011). Here is the abstract.

Dostoyevsky's Crime and Punishment is also a story about confessions. Raskolnikov, who committed a double murder, and Nikolay, an innocent suspect, each confesses to the same crime. An analysis of Raskolnikov’s and Nikolay's confession demonstrates the complexity of motives that drive the guilty and the innocent alike to confess and points to the distinction between true and false confessions. Finally this novel supports the conclusion that the accused should be required to provide significant details of the crime as a requirement for relying on his or her confession.

Download the article from SSRN at the link. 

The Public Uses of Poetry

Tom Clark, Victoria University, has published Public Poeisis: Theorising Contemporary Civic Uses of Poetry in Australia and the United States. Here is the abstract.

Uses of poems and extracts from poems for ceremonial or ritual purposes within civic discourse reveal the inherently aesthetic nature of all political language. We can read in these civil and stately appropriations of poetry a desire for validation or embodiment of the aesthetic qualities of the events they embellish, and of the public and political agendas those events carry. This paper argues that poetry as public language reveals how public language is poetry. It illustrates that proposition by a critical comparison of excerpts from Australia’s annual ANZAC Day dawn service and from the oath of office ceremony for USA President Barack Obama in 2008.

Download the paper from SSRN at the link. 

National Poetry Month

The Gallagher Law Library notes that April is National Poetry Month and devotes a post on its blog to law and poetry here.

Very Assisted Insemination

Kara W. Swanson, Northeastern University School of Law, has published Adultery by Doctor: Artificial Insemination, 1890–1945, at 87 Chicago-Kent Law Review 591 (2012). Here is the abstract.

In 1945, American judges decided the first court cases involving assisted conception. The challenges posed by assisted reproductive technologies to law and society made national news then, and have continued to do so into the twenty-first century. This article considers the first technique of assisted conception, artificial insemination, from the late nineteenth century to 1945, the period in which doctors and their patients worked to transform it from a curiosity into an accepted medical technique, a transformation that also changed a largely clandestine medical practice into one of the most pressing medicolegal problems of the mid-twentieth century. Doctors and lawyers alike worried whether insemination using donor sperm was adultery by doctor, producing illegitimate offspring. Drawing upon the legal and scientific literatures, case law, popular sources and medical archives, I argue that insemination became identified in medicine and law as a pressing problem at mid-century after decades of quiet use because of the increasing success of the technique, increasing patient demand, and increasing use -- three interrelated trends that led to increasing numbers of babies whose origins were “in the test tube.” In examining the history of a medical procedure becoming a legal problem, I also trace the development of a medical practice in the face of legal uncertainty and the shifting control of the medical profession over assisted conception. I argue that doctors modified the way they treated patients in response to perceived social and legal condemnation of artificial insemination, keeping tight control over all aspects of the procedure, but that doctors’ persistence in meeting patient demand for fertility treatments despite such condemnation helped make artificial insemination into a medicolegal problem. Once it became identified as a medicolegal problem, artificial insemination became the subject of a broad social discussion, in which medical voices did not receive automatic deference, and medical control was challenged.

Download the article from SSRN at the link. 

Theater of Justice

Law students are turning life into art at the University of Maryland School of Law.They are using the real life trial and subsequent appeal of Michael Austin as the basis for a play, (IN)JUSTICE for Michael Austin, and will perform it on April 23 at the law school. Mr. Austin, convicted and sentenced to life in prison for murder and armed robbery in 1975, but released in 2001 and pardoned in 2003, will appear in the play. More here in an article by Karen Sloan of the National Law Journal. More here and here about Mr. Austin's release and pardon.

Some Newly Published Books of Interest

Some newly published books of interest: 

Andrews, Lori, I Know Who You Are and I Saw What You Did: Social Networks and the Death of Privacy (Free Press, 2012).

Cascardi, Anthony J., Cervantes, Literature, and the Discourse of Politics (University of Toronto Press, 2012).

Chong, Sylvia, Sin Huey, The Oriental Obscene: Violence and Racial Fantasies in the Vietnam Era (Duke University Press, 2012).

Cohen, Lara Langer, The Fabrication of American Literature: Fraudulence and Antebellum Print Culture (University of Pennsylvania Press, 2012).

Feenstra, Pietsie, New Mythological Figures in Spanish Cinema: Dissident Bodies Under Franco (Amsterdam University Press, dist. University of Chicago Press, 2012).

Kahn, Abraham Iqbal, Curt Flood in the Media: Baseball, Race, and the Demise of the Activist Athlete (University Press of Mississippi, 2012).

Kaplan, Paul, Murder Stories: Ideological Narratives in Capital Punishment (Lexington Books, 2012).

Maurer, Sara L., The Dispossessed State: Narratives of Ownership in Nineteenth-Century Britain and Ireland (Johns Hopkins University Press, 2012).

McDermott, Stacy Pratt, The Jury in Lincoln’s America (Ohio University Press, 2012).

Pamboukian, Sylvia A., Doctoring the Novel: Medicine and Quackery From Shelley To Doyle (Ohio University Press, 2012).

Pippin, Robert B., Fatalism in American Film Noir: Some Cinematic Philosophy (University of Virginia Press, 2012).

Starn, Orin, The Passion of Tiger Woods; An Anthropologist Reports on Golf, Race, and Celebrity Scandal (Duke University Press, 2012).

Takacs, Stacy, Terrorism TV: Popular Entertainment in Post-9/11 America (University Press of Kansas, 2012).

Towns, W. Stuart, Enduring Legacy: Rhetoric and Ritual of the Lost Cause (University of Alabama Press, 2012). Discusses the emergence of the “lost cause” mythology of the Southern identity after the War between the States.

Women's Rights To Property Within Marriage In Seventeenth and Eighteenth Century England

Allison Anna Tait, Yale Law School, has published Unhappy Marriages and Unpaid Creditors: Chancery’s Enforcement of a Wife’s Right to Property within Marriage in Seventeenth- and Eighteenth-Century England. Here is the abstract.

In a modern era in which wives can own and manage their financial assets, the idea that a wife could not hold legal claim to her own property seems archaic. Measuring the distance of women’s progress, historical accounts of married women’s property usually begin with statutory enactments that gave married women baseline property rights starting in America in the 1830s and 1840s and in England in the 1870s. A form of married women’s property existed before these statutes were on the books, however, beginning in late sixteenth-century England with a special type of trust called the separate estate which was created for the benefit of a married woman before, during, or after marriage. This article is an attempt to recover the nature as well as the significance of the separate estate. A new and detailed reading of the main corpus of separate estate cases – a set of cases that has long been overlooked and deserves to be unearthed – reveals how the separate estate was the forerunner to more modern forms of married women’s property and a key component in the development of married women as juridical beings and economic actors. The goals of this article are to recalibrate the history of married women’s property and deepen our understanding of the opportunities as well as the obstacles that have stood – and still stand – in the way of women seeking to be rightsholders.

Download the paper from SSRN at the link.

Language Usage In Revolutionary Russian Law

Tatiana Borisova, National Research University Higher School of Economics, has published The Legitimacy of the Bolshevik Order, 1917-1918: Language Usage in Revolutionary Russian Law as Higher School of Economics Research Paper No. 05/LAW/2012.

The article describes and analyzes the legislative politics of revolutionary regimes in Russia in 1917-1918. The author aims to demonstrate the political meaning of the form of early Soviet legislation and its legitimizing effect. The revolutionary legislators often used specific language in the new laws as a vehicle of legitimacy, i.e. to make the people comply. The two main types of legal language used by the Bolsheviks can be interpreted from the perspective of different types of legitimacy. The revolutionary strategy used propagandistic legislation, written in the language of lay people, which urged them to act according to the new law. It can be seen as a request for acts of the people to legitimize the soviets. On the contrary, the traditional strategy employed old bureaucratic means of writing and distributing legislation to the local soviets. The language used by this strategy was closed to the understanding of a lay audience and implied traditions of obeying the law written in familiar legal language, which in turn implied rational/legal legitimacy. The second strategy had already become dominant after the first months of the Bolshevik revolution. This observation demonstrates that from the very beginning of their rule, Soviet leaders approached legislative policy from a technocratic point of view, which determined the further development of Soviet legal theory and practice.

Download the paper from SSRN at the link.

Bernie's Weekends

Joe Rhodes muses on Bernie, a new film based on the murder of his aunt, who lived and died in the small town of Carthage, Texas. Mr. Rhodes sees both humor and tragedy in the event, which touched both the members of his family and residents of the town. More here in today's New York Times. The film stars Shirley MacLaine as Aunt Marge, the wealthy victim, Matthew McConaughey as the district attorney, and Jack Black as Bernie Tiede, the funeral director who befriended and then killed Marge, and proceeded to spend a great deal of her fortune before Marge's son and some police officers found her body in her freezer. Yes, under the chicken pot pies. Here's coverage of the trial and verdict from the Amarillo Globe News.

The Tax Man Cometh (Refiled)

Poetry for the season, from the New York Times. What, no Ogden Nash? See here.

Here Be Monsters

From the TLS, Marina Warner reviews Wes Williams' new book Monsters and Their Meanings in Early Modern Culture (Oxford University Press).

Naziism and the Geert Wilders Trial

Robert A. Kahn, University of St. Thomas School of Law (Minnesota), has published Who’s the Fascist? Uses of the Nazi Past at the Geert Wilders Trial as University of St. Thomas Legal Studies Research Paper No. 12-10. Here is the abstract.

This essay looks at how, during his trial, Geert Wilders and his opponents used references to the Nazi era – including but not limited to the Holocaust – to frame debates over Muslim immigration, Wilders himself, and the acceptability of hate speech trials. The Wilders trial is especially interesting because each side sought to call the other a “fascist.” For Wilders, the Quran was a fascist book, an Islamic Mein Kampf. To his opponents, Wilders was a “prototypical” fascist, one who spoke to the gut not the mind. But perhaps the strongest use of the Nazi past involved victims. If a well-established Jewish community faced the Nazis largely without the support of their fellow Dutch citizens and today faces continued anti-Semitism, what should Muslim newcomers expect? On a broader level the multiple references to World War II, fascism, and the Holocaust in the Wilders case show how nearly seventy years after the Allied forces declared victory the Nazi past continues to play a major role in European discourse over hate speech laws.

Download the paper from SSRN at the link.

2012 International Osnabrück Summer Institute for the Cultural Study of the Law

From Peter Schneck, Chair of American Studies, University of Osnabrück, Germany

*Culture, Rights, Identity: Interfaces between the Humanities and the Law*




International Summer Institute on the Cultural Study of the Law



http://www.blogs.uni-osnabrueck.de/lawandculture



*Invitation*



The fourth annual International Summer Institute on the Cultural Study of the Law will be held from August 6 to 18, 2012 at the University of Osnabrück, Germany. Hosted by the Institute of English and American Studies (IfAA), the Summer Institute seeks to bring together advanced graduate, doctoral, and postdoctoral students of the humanities and/or the law from around the world to promote and examine the interdisciplinary study and research of law and culture.



During the two week program, students will partake in a unique experience of scholarly collaboration and exchange through workshops, public lectures, panel discussions, excursions and a final symposium.

Participating faculty in this year's Summer Institute include:



*Rosemary J. Coombe (York University, Toronto) *Helle Porsdam (University of Copenhagen) *Fiona Macmillan (Birkbeck School of Law, University of London) *Joseph Slaughter (Columbia University, New York)

* Kay Schaffer (University of Adelaide)



with more faculty to be announced in the upcoming weeks.



The Institute will offer a total of four workshops for 30-35 international participants (doctoral, post-doctoral and advanced M.A. - see below for

eligibility) over a two-week period. The first workshop will be concerned with basic theories, concepts and perspectives within the emerging field of cultural legal studies, focusing specifically on the range and potential of interdisciplinary studies and approaches. The remaining three workshops will focus on key areas of critical inquiry that have been central to the dynamic development of the field and are of particular importance within a European context:



* The relation between human rights and cultural rights

* Historical development and current debates about culture as heritage, property and as a resource and its legal definition and regulation (including concepts such as copyright, intellectual property and

authorship)

* The cultural presence and representation of the law and the role of culture in the representation and dissemination of the concept of rights (e.g. law and literature, life writing and human rights, visual culture and rights rhetoric)



*Participant Eligibility*

The Summer Institute aims at advanced graduate, doctoral, and postdoctoral students from various academic fields, whose research interests and projects are situated at the interface between law and the humanities and who are concerned with a better understanding of the interdependence of law and culture.

Even though the Institute strongly invites students from a broad variety of disciplines and academic backgrounds, it focuses almost exclusively on questions and issues related to research done in the humanities and legal studies.

Doctoral candidates in literature, the law, the arts, the humanities, and the related social sciences are invited to apply, as are advanced students pursuing a J.D. or its equivalent (such as the L.L.B). Young scholars or junior faculty members who have received a Ph.D. or corresponding degree in the last five years are also eligible. While applications by doctoral/post-doctoral students are prioritized, the Summer Institute also encourages applications from advanced Master students about to conclude their studies and with a strong interest in interdisciplinary research.

There are openings for 30-35 students to participate in the Summer Institute.

Due to its international audience, the Summer Institute will be completely conducted in English. It does not offer language instruction classes, either in German or in English.



*Application Process*



Applicants should complete:



* An application form:

http://www.blogs.uni-osnabrueck.de/lawandculture/application-2012/

* A statement of purpose no more than two pages long, describing current scholarly interests, previous research, and plans for how the Summer Institute would specifically further these interests and plans.

* An up-to-date curriculum vitae.



Students interested in taking part in the Summer Institute should submit their applications no later than April 30, 2012. Detailed information about the Institute, the workshops, international faculty, admission and fees can be found at:



http://www.blogs.uni-osnabrueck.de/lawandculture

*Questions*



Please direct all inquiries and questions to the main coordinator of the Institute at

lawandculture@uos.de

Interdisciplinary Summer Workshop for Junior Faculty, Stanford, California

From Maeva Marcus, Director, Institute for Constitutional History, New-York Historical Society and The George Washington University Law School

Interdisciplinary Summer Workshop for Junior Faculty


July 8-14, 2012

Stanford, California



ASSESSING THE US CONSTITUTION: TWENTY-FIRST-CENTURY RESPONSES TO EIGHTEENTH-CENTURY ASSUMPTIONS



Sponsored by the Institute for Constitutional History

with the Stanford Constitutional Law Center







DESCRIPTION:

It is an obvious truth that the drafters of the 1787 Constitution had a number of basic assumptions about the workings of what they called a “Republican Form of Government” and that the institutions established in Philadelphia reflected these assumptions. To be sure, some of them, such as equal voting power in the Senate or the basis of representation in the House (i.e., the 3/5 rule), were the result of compromises, in which the losers (like James Madison with regard to the Senate) viewed the result as a “lesser evil” (to the greater evil of no Constitution at all) rather than a positive good. Still, almost all of the institutions were defended by proponents of the Constitution, the most prominent, of course, being the collective Publius. To a remarkable degree, America in 2012 continues to be governed through the structures established in 1787.



The purpose of the seminar is quite simple: To look at the justifications offered, particularly at the Philadelphia Convention and ensuing ratification debates (including, of course, The Federalist) and to assess the degree to which we find them persuasive over two centuries later. The seminar is not about “constitutional interpretation” as that topic is usually defined. That is, we will not be looking at the parts of the Constitution that have been significantly litigated and, therefore, “interpreted,” over the years, such as the assignment of powers to Congress in Article One, Section Eight. Rather, we will be looking at examples of what in my forthcoming book I call “the Constitution of Settlement” (in contrast to the endlessly-litigated “Constitution of Conversation”)—bicameralism, the particular organization of power in the Senate, the presidential veto ,and the process of constitutional amendment, among others.



Readings will be taken from Professor Levinson’s book, Framed: America’s 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012); The Federalist; The Founders’ Constitution; Akhil Reed Amar,America’s Constitution: A Biography; and John Dinan, The American State Constitutional Tradition.



WORKSHOP LEADER

Sanford Levinson is the W. St. John Garwood Jr. Centennial Chair in Law, University of Texas Law School, and Professor of Government, University of Texas at Austin. Among other books, he has written: Constitutional Faith(Princeton U. Press, 1988, 2nd ed. 2011), and Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It) (Oxford U. Press, 2006, pb. ed. 2008). He is also the co-editor of a widely used casebook, Processes of Constitutional Decision Making (5th ed. 2006). He has written over 350 articles in law reviews as well as more general venues. He was elected to the American Academy of Arts and Sciences in 2001.



STIPENDS AND SUPPORT: Participants will receive accommodation at the Munger Graduate Residence on the campus of Stanford Law School and a modest stipend for meals. Participants will also receive a travel reimbursement up to $250. Workshop participants are expected to attend all sessions and engage in all program activities.



ELIGIBILITY AND APPLICATION PROCEDURE: The summer workshop is designed for university instructors who now teach or plan to teach courses in constitutional studies, including constitutional history, constitutional law, and related subjects. Instructors who would like to devote a unit of a survey course to constitutional history are also welcome to apply. All university-level instructors are encouraged to apply, including adjuncts and part-time faculty members, and post-doctoral fellows from any academic discipline associated with constitutional studies (history, political science, law, anthropology, sociology, literary criticism, etc.).



To apply, please submit the following materials: a detailed résumé or curriculum vitae with contact information; syllabi from any undergraduate course(s) in constitutional studies you currently teach; a 500- word statement describing your interest in both constitutional studies and this workshop; and a letter of recommendation from your department chair or other professional reference (sent separately by e-mail or post). The application statement should address your professional background, any special perspectives or experiences you might bring to the workshop, and how the workshop will enhance your teaching in constitutional studies.



THE DEADLINE FOR APPLICATIONS IS MAY 1, 2012. Applications should be sent via electronic mail to MMarcus@nyhistory.org. Successful applicants will be notified soon thereafter.





FOR FURTHER INFORMATION PLEASE CONTACT:

Maeva Marcus

Director, Institute for Constitutional History

New-York Historical Society and

The George Washington University Law School

(202) 994-6562

MMarcus@nyhistory.org

www.nyhistory.org/ich

Acting In the World

A review of a biography, Love, Fiercely, of Edith and Isaac Newton Stokes, who gave generously and thought broadly, about life and the future. Edith championed the idea of the kindergarten, and Newton, an architect, helped bring about the passage of the (New York) Tenement House Act, 1901.

The History of Interracial Marriage In Washington State

Jason Gillmer, Gonzaga University School of Law, has published Crimes of Passion: The Regulation of Interracial Sex in Washington, 1855-1950 at 47 Gonzaga Law Review 393 (2012). Here is the abstract.

This Article explores the regulation of interracial sex and marriage in the state of Washington from its time as a territory through the first half of the twentieth century. Drawing on local records rather than canonical cases, the Article's main thesis is that, although the criminal bans on the practice were short-lived, Washingtonians used legal mechanisms to discourage and penalize interracial families in much the same way. The result of these efforts may not have been prison time; but, lawyers and judges regularly used the law to ensure that wealth and property remained in the hands of whites rather than racial minorities. In doing so, the legal system became an effective deterrent to interracial relationships, perpetuating existing notions of race that privileged whiteness over other racial groups.

Download the article from SSRN at the link.

The Court of Chancery, Inheritance, and Policy in the Eighteenth Century

Adam S. Hofri-Winogradow, Hebrew University of Jerusalem, Faculty of Law, has published Parents, Children and Property in the Late Eighteenth Century Chancery in volume 32 of the Oxford Journal of Legal Studies (2012). Here is the abstract.

The late eighteenth century court of Chancery established a balance between the respective interests of parents and their children in the family’s property. The court required parents, especially fathers, to themselves provide for the maintenance and education of their minor children, even where money was made available for these purposes from a non-parental source. It prevented parents from intercepting gifts given to their children by third parties. It permitted parents, however, to make their children's entitlements to marriage portions conditional, for children marrying before majority, on the children's choice of spouse being consented to by a parent or parental surrogate. Chancery’s overall intergenerational policy was notably anti-dynastic: it made sure that younger generations, specifically those just reaching adulthood, marriage and parenthood, were endowed with sufficient property to give them at least a measure of independence from their elders, and some power over their own children.

Download the article from SSRN at the link.

Law, Arbitrary Rule, and the Oresteia

Timothy Sandefur, Pacific Legal Foundation, has published Love and Solipsism: Law and Arbitrary Rule in Classical Drama

What distinguishes the rule of law from the lawless, arbitrary rule of brute force — which can almost interchangeably be described as tyranny or as anarchy — is that in a lawful rule the government’s coercive power operates according to principles of generality, regularity, fairness, rationality and public-orientation, whereas the arbitrary or lawless ruler wields power in the service of his (or their) own self-interest, or by mere ipse dixit. Law is to arbitrariness as reason is to mere will. In this paper, I explore the dichotomy between lawful and arbitrary rule as it has been represented in literature. I examine first the primal foundation of lawful rule, as depicted in Aeschylus’ Oresteia, in which law is generated by domesticating the use of force, through persuasion and willing union. Athena creates lawful order, not by fiat, but by marrying the Furies to “Persuasion”: the ambient coercive powers of the people — morally justified, yet dangerously personal urges for vengeance — will now be rationalized in accordance with public, logical, and articulable principles. By contrast, in Shakespeare’s Richard III, we witness the subversion and near-destruction of lawful order by a man who will tear apart the newly framed lawful order and make the state serve his own private ends. The contrast of these two dramas reveals that the tyrant is essentially a solipsist: his ultimate goal is to make the real world obey his say-so. And if law is like love, the tyrant is like the rapist: the forced surrender of intimacy is the best facsimile of love the solipsist can create; but it can never actually be love, because the two are separated by the same invisible and impenetrable boundary that separates truth from falsehood, or genuine loyalty from the rule of terror.



I conclude with a look at the dissenter living in a lawless order, as depicted in two variations on the story of Antigone — the first by Sophocles and the second by Jean Anouilh. In both, the lawless, arbitrary rule is challenged in the name of law, and in each, the ruler nearly succeeds in substituting his private realm of mere words for the public realm of actual things. What emerges from this study is that the basic premise of all lawful order — the root of all secure liberty — is that there is a gap between the will of the ruler and the genuine law. Whenever such a gap exists — whenever it is meaningful to deliberate over whether the ruler’s commands are, in fact, law — the society will, to that extent, become one of lawful order and of (at least some) freedom. The link between tyranny and solipsism is that where the ruler’s will is accounted the law, there can be no genuine law, and thus no freedom. The paradox whereby tyranny is lawless is explained by the fact that tyranny is an attempt to impose by convention what does not originate in nature — and in the end, neither physical nature nor the nature of human relationships can be subjected to such commands. The ultimate demand of the lawless ruler(s) is to substitute his (or their) word for the world — to compel the subject to love him (or them). And because that can never be accomplished, arbitrary rule is doomed to eventual collapse.

Download the paper from SSRN at the link.

A New Book Series: Law, Knowledge, and Imagination

Dean Ken Randall and the School of Law at The University of Alabama are pleased to announce a new book series – Law, Knowledge, and Imagination – edited by Austin Sarat, the Justice Hugo L. Black Visiting Senior Faculty Scholar and the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.

Books in the series, some of which are published by Cambridge University Press and others by The University ofAlabama Press, explore the ways law is known and imagined in a diverse array of disciplines, including political science, history, cultural studies, philosophy, and science. The series examines the conjunctions of law, knowledge, and imagination as they play out in debates about theory and policy and speak to venerable questions as well as contemporary issues.

Books published so far include:

§ Dissenting Voices in American Society: The Role of Judges, Lawyers, and Citizens
§ Imagining Legality: Where Law Meets Popular Culture


§ Merciful Judgments and Contemporary Society: Legal Problems, Legal Possibilities
§ Sovereignty, Emergency, Legality
§ Speech and Silence in American Law
§ Transitions: Legal Change, Legal Meanings
For more information on the entire series please see the Symposium Archives page here.

Rape, Law, and Art

Yxta Maya Murray, Loyola Law School Los Angeles, has published Rape Trauma, the State, and the Art of Tracey Emin in volume 100 of the California Law Review (2012). Here is the abstract.

Prosecutors use “rape trauma syndrome” evidence at rape trials to explain victims’ “counterintuitive” behaviors and demeanors, such as their late reporting, rape denials, returning to the scenes of their attacks, and lack of emotional affect. Courts and experts, in instructions and testimony, usually describe victim reticence as a product of “shame” or “trauma.” Feminist critics of R.T.S. evidence posit that the syndrome’s profile is based on incomplete evidence, because most rapes are unreported. Furthermore, they object to its condescending, sexist, and colonial construction of rape victims and their emotions.

In this Article, I respond to feminist critics by studying the work of Tracey Emin. Emin is a British-Turkish artist who suffered an unreported rape at the age of 13, and who has been commenting on that rape through her art ever since. Expanding and innovating upon the work of law and humanities scholars, I apply the insights found in art – or, what I describe as “artifacts,” with a deliberate play on the word – to rape law. Through my study of the facts limned in art, I show how the complexities of Emin’s reactions to rape challenge the too-streamlined and often confusing stories of victims told by prosecutors, experts, and courts. Emin’s art demonstrates that she harbors suspicions of the state, a skepticism based in part on her failure to correspond to “real rape” victim stereotypes. Her critique adds much needed insight into problems of the R.T.S. model. Based on the lessons learned, I make suggestions for rape law reform, and for changes to be made to the administration of rape prosecutions in the U.S. and U.K.

Download the Article from SSRN at the link.

American Society for Legal History Announces Paul Murphy Prize

The American Society for Legal History announces the Paul Murphy Prize to support the completion of a book on the history of civil liberties that addresses any topic or any time in American history. The award will be given out two times only, in 2012 and 2013. Recipients will receive $5000 to support their work. Nominees at all levels of seniority will be considered, however the award is not for the completion of a dissertation.


The award honors Paul L. Murphy (1923-1997), who spent much of his career at the University of Minnesota where he rose to the rank of Regent’s Professor of History and American Studies. At the time of his death, he was in the second year of his term as president of the ASLH. During his tenure at Minnesota he became one of the nation’s leading constitutional historians and a mentor to generations of undergraduate and graduate students. Among his most important books were: The Meaning of Freedom of Speech: First Amendment Freedoms from Wilson to FDR (1972); World War I and the Origin of Civil Liberties in the United States (1979); Historic Background of the Bill of Rights, Vol. 1 (1990); and The Shaping of the First Amendment: 1791 to the Present (1991). In addition, civil liberties played a fundamental role in the argument he developed in what was likely his most influential book, The Constitution in Crisis Times 1918-1969 (The New American Nation Series, 1972). Murphy’s commitment to civil liberties and his passion for the subject was evident in his deeds as well as his words. He was an ardent and committed member of the American Civil Liberties Union throughout his life. For additional information on Murphy please see the tribute to him in the Law and History Review, 16 (Spring 1998), ix-xi.

To be considered for this award, authors or nominators should send a book proposal with chapter descriptions, a discussion of the book’s contributions, and a time-line for completion; a sample chapter; and a c.v. to committee chair Mary L. Dudziak at

mdudziak at law.usc.edu

Submissions via e-mail are preferred, and attachments can be in Word or PDF. Please put “Murphy Prize” in the subject line. If you must submit by hardcopy, please send four copies of these materials to arrive by the deadline to this address: Professor Mary L. Dudziak, USC Gould School of Law, 699 Exposition Blvd., Los Angeles, CA 90089. The deadline for receipt of proposals for this year’s award is June 30, 2012.



Members of the Murphy Prize Committee are:

Mary L. Dudziak, Chair, University of Southern California

Robert Kaczorowski, Fordham University

Serena Mayeri, University of Pennsylvania

David M. Rabban, University of Texas

New Adaptation of "1984" Under Consideration

George Orwell's 1984 may be returning to the screen. Brian Grazer and Ron Howard at Imagine Entertainment were looking into adapting the iconic novel with the assistance of artist Shepard Fairey. At the same time, LBI Entertainment's Julie Yorn had a similar project in the works.As a result, the two companies have decided to team up.

1984 has been adapted before: In 1956 Edmond O'Brien and Michael Redgrave starred in a big screen adaptation and in 1984 John Hurt and Richard Burton starred in a big screen production.

Love, Loyalty, and Sacrifice in "To Kill a Mockingbird"

Linda Ross Meyer, Quinnipiac University School of Law, has published Love, Law and Sacrifice in 'To Kill a Mockingbird'. Here is the abstract.

This paper reflects on themes of love, loyalty, and sacrifice in the film version of 'To Kill a Mockingbird.' Using the typology of Kierkegaard's knight of the infinite/knight of faith, the paper argues that Atticus does not stand for liberal principles of universal law but rather faith in the possibilities of friendship and neighborliness.

Download the paper from SSRN at the link.

Crime Shows Recognized At Royal Television Society Programme Awards

Two law-related shows won awards at the Royal Television Society Programme Awards, held March 20th in London. The acclaimed crime drama Luther, which stars the wonderful Idris Elba, took home honors as best drama series. Mr. Elba won a Golden Globe earlier this season for his role as Luther, the conflicted detective.

Dominic West and Emily Watson, stars of Appropriate Adult, a miniseries dramatizing the career of serial killer Fred West and Janet Leach, the social worker who sat in on his meetings with police, won for their roles as Fred and Janet. The Sundance Channel bought the rights to the series last fall. More here from the BBC about the miniseries.

Law and Literature In the First Year Curriculum: Tort Law

Zahr Said, University of Washington School of Law, has published Incorporating Literary Methods and Texts in the Teaching of Tort Law at 3 California Law Review Circuit 170 (January 2012). Here is the abstract.

This essay, presented in a Law and Humanities Section panel at the 2012 AALS Annual Meeting, discusses my use of literature to aid and amplify legal analysis in a first-year Torts class. Literary texts and methods helped my students investigate how the law conceives of, and expresses, duties and losses among parties. The course drew on several diverse strands of law-and-literature methodology and it incorporated literary texts and methods into discussions of case law and legal policy to produce analysis that is deeply interdisciplinary.



Content and methodology, to the extent they can be satisfactorily decoupled, informed my teaching of Torts in separate ways. First, I incorporated a central literary text that accompanied more traditional legal materials. Second, I required students to engage in close reading and I helped them theorize the act of reading itself. By emphasizing the textually mediated nature of the cases — both as a function of common law’s system of authority through analogy, and as a function of the casebook editors’ choices — I hope to have made clear to students that this is a new type of reading they are doing in law school, and that they are learning to think in new ways. In growing acculturated to legal analysis, law students are learning not just a new language, but a new awareness of how and why they read the way they do.



The paper includes an appendix listing some discussion questions for The Sweet Hereafter, by Russell Banks, one of the texts I used in the class.

Download the article from SSRN at the link.

International Law, Torture and "24"

Knut Fournier has published Torture Justification in ‘24’: Aesthetics of the Bush Administration

In the context of the War on Terror, fiction is a support of ideologies for the Bush administration. The TV series '24' resorts on all legal justifications of torture made by the Bush administration, and justifies torture as being necessary, effective, and lawful. In that justification process, the thesis of the main international lawyers supportive of the Bush doctrines are used in a very detailed way, maintaining a 'simulacra' in the sense of Baudrillard.

Download the paper from SSRN at the link. NB: The text is in French.

Law, Culture, and Housing Law and Policy

Lisa T. Alexander, University of Wisconsin Law School, has published Hip-Hop and Housing: Revisiting Culture, Urban Space, Power, and Law, at 63 Hastings Law Journal 803 (2012).

U.S. housing law is finally receiving its due attention. Scholars and practitioners are focused primarily on the subprime mortgage and foreclosure crises. Yet the current recession has also resurrected the debate about the efficacy of place-based lawmaking. Place-based laws direct economic resources to low-income neighborhoods to help existing residents remain in place and to improve those areas. Law-and-economists and staunch integrationists attack place-based lawmaking on economic and social grounds. This Article examines the efficacy of place-based lawmaking through the underutilized prism of culture. Using a sociolegal approach, it develops a theory of cultural collective efficacy as a justification for place-based lawmaking. Cultural collective efficacy describes positive social networks that inner-city residents develop through participation in musical, artistic, and other neighborhood-based cultural endeavors. This Article analyzes two examples of cultural collective efficacy: the early development of hip-hop in the Bronx and community murals developed by Mexican immigrants in Chicago's Pilsen neighborhood. These examples show that cultural collective efficacy can help inner-city residents mitigate the negative effects of living in a poor and segregated community and obtain more concrete benefits from urban revitalization in their communities. Cultural collective efficacy also provides a framework to examine important microdynamics in the inner-city that scholars and policymakers have ignored. Lastly, this Article devises new combinations of place-based laws that might protect cultural collective efficacy, such as: (1) historic districts with affordable housing protections secured through transferable development rights, (2) foreclosure prevention strategies, (3) techniques to mitigate eminent domain abuse, and (4) reinterpretations of the Fair Housing Act's "affirmatively furthering" fair housing mandate. These examples of place-based lawmaking may more effectively promote equitable development and advance distributive justice in U.S. housing law and policy.

Download the article from SSRN at the link.

More Baseball Trading Cards

Ross E.Davies, George Mason University School of Law; The Green Bag, Craig D. Rust, George Mason University School of Law Alumni, and Adam Aft, George Mason School of Law Alumni, have published Supreme Court Sluggers: Introducing the Scalia, Fortas, and Goldberg/Miller Trading Cards in volume 2 of the Journal of Law (2012). Here is the abstract.

We are pleased to introduce a few new members of the“Supreme Court Sluggers” trading card lineup. The addition of Justice Antonin Scalia to the team is in keeping with our goal of expeditiously compiling and publishing data for all current members of the Supreme Court. (We have issued cards featuring Chief Justice John G. Roberts and Justice John Paul Stevens, and Justices Sandra Day O’Connor and Samuel Alito are in the works.) This season, we have also completed the first two cards of what might be called our “Veterans” series of those who served long ago: Justice Arthur Goldberg, who appears in the company of baseball great Marvin Miller, and Justice Abe Fortas.

Download the article from SSRN at the link.

Race, Law, and American Literary Studies: A Conference at the University of Maryland

From Christopher Brown, Ph.D. candidate, Department of English, University of Maryland, news of an exciting upcoming conference at the University: Race, Law, and American Literary Studies. Among the speakers are Brook Thomas, Nan Goodman, and Eric Foner. The conference runs from March 29 through March 30.





Harry Potter in the Law School Curriculum

Marc Roark of the Literary Table on using Harry Potter in the Law School curriculum.

ASLCH Conference Underway In Dallas

The annual conference of ASLCH (the Association for the Study of Law, Culture and the Humanities) is going on this weekend at Texas Wesleyan School of Law in Dallas. The Graduate Student Workshop, the association's first, was yesterday, and Susan Ayres tells me it was very successful. Today the panel presentations begin. The law school is a lovely venue and everyone has been making us feel very welcome.

The theme for this year's conference is "Representing Justice." The keynote speakers are Judith Resnik and Dennis Curtis. Their recent book, Representing Justice, is featured here in the New York Times.

The US Constitutional Model and Chinese Legal History

Jedidiah Kroncke, Harvard Law School, has published An Early Tragedy of Comparative Constitutionalism: Frank Goodnow & the Chinese Republic. Here is the abstract.

This article recovers a lost episode in the neglected early history of American comparative constitutionalism. In 1913, pioneering comparative lawyer Frank Goodnow was sent to China to assist the new Chinese Republic in the writing of its first constitution. Goodnow’s mission reflected the growing interest of America in China’s legal development in this era, and his constitution-writing project won broad support from the American legal profession. Goodnow’s tenure ultimately generated great controversy when he advised China to adopt constitutional monarchy rather than continue on as a republic. This article describes this controversy and how American international engagement was increasingly shaped in the early 20th century by the attempted export of American legal models as a presumptively altruistic mechanism of modernization. Goodnow’s allegiance to comparative legal science agitated against this more parochial view of legal internationalism, and in the end he was excommunicated from American foreign policy affairs.



More broadly, this article shows how the early history of American comparative constitutionalism had its roots in the early 20th century American discourse on colonial administration. Goodnow and other American lawyers of the era turned to indirect engagements with foreign legal reform only after the popular rejection of colonialism that had been already constitutionally sanctioned by the now infamous Insular Cases. This article further argues that these colonial roots and Goodnow’s feckless misadventure in China hold key lessons for today’s comparative constitutionalists. It provides a vivid example of how the technocratic illusion of engaging in depoliticized legal reform abroad is self-defeating and untenable. Further, it warns against the inherent tensions between a methodologically coherent comparative law and the desire to export American constitutional models abroad, and how such tensions can undercut clear-sighted American understanding of foreign legal developments.

Download the paper from SSRN at the link.

Harry Potter and the First Year Curriculum

Nancy J.White, Central Michigan University, has published Harry Potter and the Denial of Due Process. Here is the abstract.

This paper is designed to be used to teach students the concept of due process using the book/move Harry Potter and the Order of the Phoenix. It contains an overview of due process and examples using due process violations from the book.

Download the paper from SSRN at the link.

Law and the Humanities in the Curriculum

The current issue of the California Law Review is a companion to the Ninth Circuit's Symposium on Excavating and Integrating Law and the Humanities into the Core Curriculum.  The symposium features contributions from Bret Asbury, Ariela Gross, Melissa Murray, Zahr Said, Carol Sanger, David Sklansky, and Rose Cuison Villazor.

[Information provided by Melissa Murray, Professor of Law, UC Berkeley].

Conference on the Iconography of Justice

The Warburg Institute is sponsoring a conference on the Iconography of Justice on May 7, 2012. Speakers include Dennis Curtis, Dame Hazel Genn, Martin Loughlin, Judith Resnik, Peter Mack, and Avrom Sherr. More here from the Institute's website.

[Information provided by Melissa Murray, Professor of Law, UC, Berkeley]

They're Not Lawyers, But They Play Them In the Movies

Attorney Alan L. Rupe discusses what movies have taught him about how to present a case in What I Learned at the Movies. Among the films he lists as worthy of legal study are Legally Blonde, North Country, Norma Rae, Philadelphia, and the lesser-known Office Space.

Swinish Behavior?

Robert Krulwich ponders law, journalism, ethics, and the three little pigs in this essay for National Public Radio. I would say he hams up it, but...

USA Network's Legal Series Return With New Episodes

USA Network's law-related series Fairly Legal returns Friday, March 16th at 9 p.m., 8 p.m. Central time. Sarah Shahi stars as Kate Reid, a lawyer turned mediator at her late father's San Francisco law firm. In addition, the pseudo-psychic detective show Psych returns this week, and the legal dramedy Suits is back this summer. Watch full episodes from its first season here.

The Norman Invasion and the Irish

Katherine Jacob, Case Western Reserve University School of Law, has published Divine Diversion: Divine Retribution as Dispute Resolution and the Norman Invasion of Ireland. Here is the abstract.

This essay reevaluates the Anglo-Norman invasion’s impact on native Irish culture by analyzing references to divine power in the medieval native Irish annals. This essay posits that native Irish society’s destabilization in the wake of the Anglo-Norman invasion may be better understood by analyzing patterns in the native Irish cultural belief in spiritual vengeance. Part I discusses divine retribution’s general cultural context, and explores its position in native Irish culture. It briefly compares saints’ roles in native Irish culture with their position in Anglo-Norman culture, and describes the Anglo-Norman incursion in Ireland and its wider impacts on native Irish society. Part II analyzes the native Irish annals and presents a process to assess variations in spiritual authority’s influence in native Irish culture. It presents statistical results, evaluates their significance in context, and contends that the Anglo-Norman arrival transformed native Irish perception of divine retribution as a legitimate form of dispute resolution. Then, it proposes a results-based model for dissecting divine retribution’s role in disputes. Part III discusses spiritual vengeance’s function in modern cross-cultural disputes. It then applies the proposed model to suggest that the way the Anglo-Normans avoided spiritual wrath in Ireland might provide a usable framework to suppress an opposition’s faith in, and utilization of, divine retribution as dispute resolution.

The full text is not available from SSRN.

Law and Tyranny

Timothy Sandefur, Pacific Legal Foundation, has published Love and Solipsism: Law and Arbitrary Rule in Classical Drama. Here is the abstract.

What distinguishes the rule of law from the lawless, arbitrary rule of brute force — which can almost interchangeably be described as tyranny or as anarchy — is that in a lawful rule the government’s coercive power operates according to principles of generality, regularity, fairness, rationality and public-orientation, whereas the arbitrary or lawless ruler wields power in the service of his (or their) own self-interest, or by mere ipse dixit. Law is to arbitrariness as reason is to mere will. In this paper, I explore the dichotomy between lawful and arbitrary rule as it has been represented in literature. I examine first the primal foundation of lawful rule, as depicted in Aeschylus’ Oresteia, in which law is generated by domesticating the use of force, through persuasion and willing union. Athena creates lawful order, not by fiat, but by marrying the Furies to “Persuasion”: the ambient coercive powers of the people — morally justified, yet dangerously personal urges for vengeance — will now be rationalized in accordance with public, logical, and articulable principles. By contrast, in Shakespeare’s Richard III, we witness the subversion and near-destruction of lawful order by a man who will tear apart the newly framed lawful order and make the state serve his own private ends. The contrast of these two dramas reveals that the tyrant is essentially a solipsist: his ultimate goal is to make the real world obey his say-so. And if law is like love, the tyrant is like the rapist: the forced surrender of intimacy is the best facsimile of love the solipsist can create; but it can never actually be love, because the two are separated by the same invisible and impenetrable boundary that separates truth from falsehood, or genuine loyalty from the rule of terror. I conclude with a look at the dissenter living in a lawless order, as depicted in two variations on the story of Antigone — the first by Sophocles and the second by Jean Anouilh. In both, the lawless, arbitrary rule is challenged in the name of law, and in each, the ruler nearly succeeds in substituting his private realm of mere words for the public realm of actual things. What emerges from this study is that the basic premise of all lawful order — the root of all secure liberty — is that there is a gap between the will of the ruler and the genuine law. Whenever such a gap exists — whenever it is meaningful to deliberate over whether the ruler’s commands are, in fact, law — the society will, to that extent, become one of lawful order and of (at least some) freedom. The link between tyranny and solipsism is that where the ruler’s will is accounted the law, there can be no genuine law, and thus no freedom. The paradox whereby tyranny is lawless is explained by the fact that tyranny is an attempt to impose by convention what does not originate in nature — and in the end, neither physical nature nor the nature of human relationships can be subjected to such commands. The ultimate demand of the lawless ruler(s) is to substitute his (or their) word for the world — to compel the subject to love him (or them). And because that can never be accomplished, arbitrary rule is doomed to eventual collapse.

Download the paper from SSRN at the link.

The Lawyer As Trickster

John Denvir, University of San Francisco, School of Law, has published Guile is Good: the Lawyer as Trickster. Here is the abstract.

What is the lawyer’s genius — the talent that distinguishes us from other professions? Movies and television suggest that it is more than legal knowledge and technical skills; it is the way lawyers use creativity and cunning to outwit their adversaries. Lawyers in films and television act much like the Trickster figure in mythology and folklore. Moreover, study of the professional lives of the best real life lawyers reveals these same trickster talents. The paper argues that lawyers should embrace the trickster identity because it celebrates the valuable contributions lawyers make to the public good.

Download the paper from SSRN at the link.

Buon Compleanno, Gioachino Rossini

Google celebrates with a Rossini "leap frog doodle!" Rossini makes so many allusions to law in his operas, beginning with his first work, La Cambiale di Matrimonio (The Marriage Contract, or The Bill of Marriage) and continuing through such works as The Barber of Seville (more marriage) to his last, Guillaume Tell (William Tell).  Italian censors found this opera particularly objectionable because of its subject matter, which dealt with rebellion against the government.


Short Bibliography

Peter Goodrich, Operatic Hermeneutics:Harmony Euphantasy and Law In Rossini's Semiramis, 20 Cardozo Law Review 1649 (1998-1999).

Daniel Tritter, Dramma Giocosa, at 20 Opera Quarterly 7 (Winter 2004).

Down These Mean Streets a Camera Must Go

From Smithsonian Magazine: Ron Rosenbaum on filmmaker Errol Morris's career as a private eye.

All Those Hobbits!

In case you have been waiting for it, here is a genealogy of Lord of the Rings characters, compiled by Emil Johannson. More here at CNN's Geekout Blog.

On law in Tolkien's writings, start with W. H. Stoddard, Law and Institutions in the Shire.

Women Writers, 1500-1700

The Folger Shakespeare Library has mounted a new exhibition devoted to women writers, 1500-1700. "Shakespeare's Sisters: Voices of European Women Writers, 1500-1700" runs from February 3 to May 3, 2012. Edward Rothstein reviews it here.

Championing Beckett, Malcolm X, and Erotica

From the New York Times, two appraisals, by Douglas Martin and Charles McGrath, of the career and contributions of Barney Rosset (1922-2012), who guided Grove Press. Over the years, Mr. Rosset defended many of the titles he published, in court and in the media. The work he brought to the attention of the public included Malcolm X's autobiography, Frederick Wiseman's documentary "Titicut Follies," the work of Samuel Beckett, Henry Miller, Eric Berne's "Games People Play," and, oh yes, that Swedish entry, "I Am Curious Yellow."

They're the Greatest

From Bloomberg Law: the 10 Greatest Movie Lines (US and British films only). Comments from Legal Blog Watch here. Which are your favo(u)rites? Some of the choices:

"Here's a dime..." (The Paper Chase)
"I hate lawyers. I just work for them." (Erin Brockovich)
"You can't handle the truth!" (A Few Good Men)

What's Wrong With This Picture

The New York Times explains how the University of California, Berkeley, lost, and the Huntingdon Library gained, a wonderful piece of art by the noted sculptor Sargent Johnson, all for the want of some money and care, and oh, yes--the fact that the federal government does not control WPA art "affixed to nonfederal buildings."