Legal History and Criminal Law

Markus D. Dubber, University of Toronto Faculty of Law, is publishing Histories of Crime and Criminal Justice and the Historical Analysis of Criminal Law in the Oxford Handbook of the History of Crime and Criminal Justice (Paul Knepper & Anja Johansen eds.; Forthcoming). Here is the abstract.

This essay reflects on the relationship between the history of crime, the history of criminal justice, and the history of criminal law. It suggests an account of the historical analysis of criminal law that locates it within the general project of critical analysis of law (CAL).

Download the essay from SSRN at the link. 

Looking At Looking Down

Yxta Maya Murray, Loyola Law School (Los Angeles), is publishing Peering in the Georgetown Journal on Poverty Law Policy. Here is the abstract.

“Peering” designates a legal practice of gazing at poor people. Legal actors literally peer, that is, look at the poor; they also peer in another fashion, which determines whether the visual subject is their peer. If the observed falls short of the observer’s social class, the law fixes them in their “proper place.” In the Fifth Amendment takings context, this means they are at risk for condemnation.

This article traces peering’s evolution in Fifth Amendment law. It notes peering’s initial descent: From the 1920s until the 2000s, courts looked “down” at the poor, often describing them as monstrous. “Slums” – edifices typically depicted as housing contagious subhumans – proved perfect objects of condemnations since they threatened the upper strata. In the 1980s, however, another legal gaze flourished: One that looked “up,” and whose bearers peered themselves with wealthy developers. In cases stemming from Michigan’s 1981 Poletown Neighborhood Council v. City of Detroit to the Supreme Court’s 2005 Kelo v. City of New London, we find rhetoric signaling legislative and judicial alignment with affluence. Here, lawmakers and judges approved condemnations that fostered “world class” and “cutting edge” corporate factories. I call this the ascendant or aspirational gaze, and in its exuberant optics, both the poor and the middle class find themselves vulnerable to “economic rejuvenation” takings. An active lobby of activists and judges challenge this gaze with petit bourgeois perspectives, leading to reform. But the poor submerge in these visuals, finding vanishing chances to escape “blight” condemnations.

To understand and combat peering, I study Columbia University’s recent expansion into West Harlem. I contemplate New York Court of Appeals’ 2010 Matter of Kaur v. New York State Urban Development Corporation, which approved of Manhattanville’s condemnation, and also the political rhetoric and blight reports that justified the taking. I additionally reference interviews with members of the Harlem community, and offer their home photographs as counter‐images to the ones that filled the blight reports. Inspired by the legal history I recount, as well as the testaments and images offered by Harlem residents, I describe the racist, classist, and violent meanings of blight findings. I reject “blight” as unsalvageable, but sketch a Fifth Amendment doctrine that would foster what one Harlem leader describes as a “decent life.”

Download the article from SSRN at the link.

Snapshot: Scottish and English Law at James VI & I's Accession

Hector Lewis MacQueen, University of Edinburgh School of Law, has published Scots and English Law c.1603: Uniting or Dividing Kingdoms? as Edinburgh School of Law Research Paper No. 2014/15.

Here is the abstract. A brief discussion of how Scots and English lawyers saw their respective laws and legal systems at the time of the Union of the Crowns, when the prospect of a union of laws was also put before them.

Download the paper from SSRN at the link. 

Paved With Good Intentions

Charles J. Reid, Jr., University of St. Thomas School of Law (Minnesota), has published Highway to Hell: The Great National Highway Debate of 1830 and Congress as Constitutional Interpreter as U. of St. Thomas (Minnesota) Lgal Studies Research Paper No. 14-20. Here is the abstract.

This Article focuses on the role of the Constitution in the 1830 Congressional debate over the Buffalo to Washington to New Orleans National Road. It takes as its inspiration David Currie's monumental study of the ante-bellum Congress as constitutional interpreter. It moves beyond Currie, however, in the intensity of its focus on a single congressional debate.
The debate over the National Road was largely a proxy for the larger struggles over slavery and sectionalism. The Road's supporters generally represented Northern or Western states and took a nationalist view of the Constitution. They understood the Union as an organic entity, a single nation, comprising a single People, united to attain large and shared objectives. They understood the Constitution as facilitating these objectives. They were bold in the various creative if not novel constructions they placed on the Constitution. They paid little heed to arguments about states' rights or limited and enumerated constitutional powers.
The opposition was centered in the South although it drew support from some Northern sympathizers. They viewed the highway as a threat to the Southern slave-based economy and mustered various constitutional objections to it. The Constitution was one of limited and enumerated powers, they argued, and it did not include the authority to construct highways. Similarly, they argued, the Constitution created a loose "confederacy" of sovereign states, united for only a few specifically identified purposes. States' rights was, on this analysis, the central organizing principle of the Constitution. In all of this, the great concern was with the preservation of an "agricultural" way of life, understood by all to refer euphemistically to plantation slavery.
It becomes apparent that the contest over slavery, which was certainly the greatest constitutional debate of the nineteenth century - and very possibly the greatest constitutional struggle of all time - was playing out principally outside the purview of the judiciary. It was taking place, rather, in the halls of Congress and the court of public opinion.

 Download the paper from SSRN at the link.

A French Legal Philosopher and Louisiana Jurisprudence

François-Xavier Licari, University of Lorraine, has published François Gény in Louisiana at 6 Journal of Civil Law Studies 475 (2013). Here is the abstract.

In his book "François Gény and Modern Jurisprudence" (LSU Press, 1978), Jaro Mayda wrote (p.69): "The important point…is that, despite the art represented by the current literature, the pragmatic temper of America and of its mixed jurisdictions, such as Louisiana, may well be the environment that will send Gény’s themes toward their integration into a rational, modern jurisprudence". This paper tells the story of the realization of this scholarly prophesy. It identifies sociological, historical and cultural factors that contributed to Louisiana's unique reception of the "free objective search for a rule" as set forth in François Gény's manifesto, "Méthode d'interprétation et sources en droit privé positif". It also studies expressions of such successful reception, analyzing some leading cases of the Louisiana Supreme Court.

Download the article at the link provided. 

Radu Florescu, Romanian Historian and Specialist On Dracula, Dies

Radu Florescu, who with Raymond T. McNally wrote the popular book In Search of Dracula (Mariner Books, 1994), as well as numerous other volumes, has died at the age of 88. Professor Florescu was born in Romania and educated at Christ Church, Oxford, and Indiana University. Dr. Florescu served as head of the East European Research Center, Boston College, for more than two decades, and then retired to France with his wife.

Professor Florescu and his co-author suggest in In Search of Dracula that Bram Stoker modeled the famous vampire on the notorious Vlad the Impaler (1431-1476/77), Prince of Wallachia, called Dracula, who had a particularly awful way of dispatching his enemies (hence his nickname).

Short and very selective bibliography on law and Dracula below (Remember that Jonathan Harker, one of the narrators of the novel, is a young solicitor, and Professor Van Helsing is both a lawyer and a physician). Another link to the full e-text here (Project Gutenberg). Bram Stoker himself studied law later in life, and was admitted to the Inner Temple in 1890. See Barbara Belford, Bram Stoker and the Man Who Was Dracula (Da Capo Press, 2002).

Carpi, Daniela, A Biojuridical Reading of Dracula, 6 Polemos 169 (2012).

Dunleavy, Matthew, Tracing the Criminal Through Modern Myths: Frankenstein's Creature to Dracula, in 32 Conference Proceedings of the Quebec Universities English Undergraduate Conference, Bishop's University, March 15-16, 2013 (Bishop's University, 2013).

Harse, Katie, "Power of Combination": Dracula and Secret Societies, in Flashes of the Fantastic: Selected Essays from the War of the Worlds Centennial, Nineteenth International Conference on the Fantastic in the Arts 195 (David Ketterer, ed.; Greenwood Press, 2004).

McGillivray, Anne, "He Would Have Made a Wonderful Solicitor": Law, Modernity, and Professionalism in Bram Stoker's Dracula, in Lawyers and Vampires: Cultural Histories of Legal Professions 225 (W. Wesley Pue and David Sugarman (Hart Publishing, 2003).

McGillivray, Anne, "What Sort of Grim Adventure Was It On Which I Had Embarked?": Lawyers, Vampires and the Melancholy of Law, 4 Gothic Studies 116 (2002).

Senf, Carol A., Dracula: The Unseen Face In the Mirror, 9 The Journal of Narrative Technique 160 (1979).

Wasson, R., The Politics of Dracula, in 9 English Literature in Translation 1880-1920 24 (1966).

From the Wall Street Journal: More here on Dracula and a tax lawyer's contribution to an annotated version of the manuscript. (Tax lawyers are everywhere).

Cubism

Some fun for a Monday: today's Google Doodle features the Rubik's Cube. Need help with the solution? Check  here. More Cubes here.  Coverage of the Cube's popularity today here from the International Business Times. At his blog, Andrew Lovelock creates an analogy between the Cube and the law of trusts. 

"This Kiss, This Kiss..."

Hector Lewis MacQueen, University of Edinburgh, School of Law, has published Ae Fond Kiss: A Private Matter? in Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry 473 (Oxford 2013). Here is the abstract.

The Ben Beinart Memorial Lecture given at the University of Cape Town on 16 April 2013. The paper discusses the 1804 case of Cadell & Davies v Stewart, in which the existence of rights to publish or to prevent publication of private letters between the poet Robert Burns and his close friend Agnes McLehose was ventilated at length by the advocates and judges appearing in the court. The paper assesses the evidence for what really happened between Burns and Agnes, and discusses the contemporary significance of the court's decision to prevent publication.

Download the essay from SSRN at the link. 

Original Meanings and Original Dictionaries

Gregory E. Maggs, George Washington University Law School, has published A Concise Guide to Using Dictionaries from the Founding Era to Determine the Original Meaning of the Constitution at 82 Geo. Wash. L. Rev. 358 (2014). Here is the abstract.

This Article explains how dictionaries published in the Founding Era may provide evidence of the original meaning of the Constitution. In addition, the Article identifies and discusses six potential problems with relying on definitions from these dictionaries, and cautions that these potential problems must be considered when using Founding Era dictionaries either to make claims about the Constitution’s original meaning or to evaluate claims about original meaning made by others. Finally, the Article includes an Appendix describing nine English language dictionaries and four legal dictionaries from the Founding Era that the Supreme Court has cited in constitutional cases, and indicates where free versions of these dictionaries can be found online. Download the article from SSRN at the link.

Judicial Review In the Ancien Regime

Francesco Di Donato, University Parthenope of Napoli, has published La hiérarchie des normes dans l’ordre juridique, social et institutionnel de l’Ancien Régime (The Hierarchy of Norms in the Juridical, Social and Institutional Order of the Ancient Regime), at 21 Revus: Journal of Constitutional Theory and Philosophy of law 237 (2013). Here are the abstracts (French and English).  

 Le contrôle de constitutionnalité, dont la magistrature parlementaire de l’Ancien Régime revendiquait le plein droit, n’était pas fondé uniquement sur les lois fondamentales du royaume, mais sur l’ensemble des principes (les maximes) tirés de la Tradition. Cette dernière était composée en premier lieu par le droit divin et le droit naturel, c’est-à-dire par des systèmes juridiques qui nécessitaient, tous les deux, une interprétation juridictionnelle ‘sapientiale’. Cette activité interprétative était ‘révélatrice’ d’un corpus de valeurs métaphysiques à laquelle seule la Scientia Juris des magistrats pouvait puiser. Mais dans la sphère de la Tradition juridique rentraient aussi le dépôt légal, c’est-à-dire l’ensemble de toutes les lois, même des lois ainsi dites ordinaires, c’est-à-dire celles qui avaient été produites par la simple manifestation de volonté souveraine d’un roi prédécesseur car tel avait été son plaisir (moderne formulation du brocarde de droit romain: quidquid principi placuit legis habet vigorem). Ainsi la juridiction parlementaire donnait lieu à un jugement de constitutionnalité qui était normalement exercé de manière très flexible par le corps de la magistrature, dépendant des circonstances et des intérêts politiques momentanés des situations juridiques qu’elle voulait protéger. La hiérarchie des normes était ainsi un formidable instrument de protection de cet ordre juridique dont les legum doctores se sentaient les tuteurs. Elle était, donc, directement liée au gouvernement politique des juges.
The judicial review, to which the Ancient Regime’s parliamentary judiciary claimed full and unique right, was not only founded on the fundamental laws of the French kingdom, but also on a set of principles (les maximes) drawn from the Tradition. This Tradition was first of all composed of the divine law and the natural law, that is of legal systems both of which needed a judicial sapiencial interpretation. This interpretative activity provided revealing insight into the body of metaphysical values that only the magistrates’ Scientia Juris was able to draw on. However, the legal Tradition also included the dépôt légal, i.e., the totality of all laws, including, so to say, ordinary laws, that is to say statutes created as a result of the simple manifestation of the sovereign will of an earlier King car tel avait été son plaisir (modern formulation of the Roman expression: quidquid principi placuit legis habet vigorem). Thus, parliamentary jurisdiction used to give rise to judicial review that was usually exercised very flexibly by the Judiciary, i.e. depending on the circumstances and momentary political interests of the legal situations it wanted to protect. Thus, the hierarchy of norms was a remarkable instrument for protecting this legal order whose tutors were, according to their own opinion, legum doctores. And so the hierarchy of norms was directly connected with the political government of judges.

Download the article from SSRN at the link.

The Legal Image

Elizabeth G. Porter, University of Washington School of Law, is publishing Taking Images Seriously in the Columbia Law Review. Here is the abstract.

Law has been trapped in a stylistic straitjacket. The Internet has revolutionized media and communications, replacing text with a dizzying array of multimedia graphics and images. Facebook hosts 150 billion photos. Courts spend millions on trial technology. But those innovations have barely trickled into the black-and-white world of written law. Legal treatises continue to evoke Blackstone and Kent; most legal casebooks are facsimiles of Langdell’s; and legal journals resemble the
Harvard Law Review circa 1887. None of these influential forms of disseminating the law has embraced — or even nodded to — modern, image-saturated communication norms. Litigants, scholars and courts have been rebooting the same formalist templates for over a century — templates that were formed before widespread use of the camera, never mind the computer. Outside of trial, where image-driven advocacy has a long history, legal practice begins and ends with text.
But over the past five years, for the first time — unrecognized by scholars or courts — creative trial lawyers, receptive judges and the iPhone camera are breaching these conservative bulwarks. Images are moving out of the evidentiary margins, driving argument in litigation documents from pleadings to judicial opinions. Unregulated, visual argument threatens fundamental premises of legal discourse and decision-making. Yet in comparison with law’s rich and detailed traditions for interpreting ambiguous text, lawyers and judges have few tools beyond common sense with which to ameliorate the interpretive risks of visual persuasion. “I know it when I see it” is not merely an aphorism; it is the reigning interpretive canon for images in law.
This Article, the first comprehensive scholarly treatment of images in written legal argument, establishes and critiques the nascent phenomenon of multimedia written advocacy as a vital, if potentially problematic, element of a lawyer’s toolbox. It argues that despite substantial risks, the profession should cautiously embrace the communicative power of multimedia writing. It concludes by offering concrete suggestions for the fair regulation of multimedia persuasion, including two foundational canons of visual interpretation — the basis for developing new traditions for integrating images into written advocacy.

Download the article from SSRN at the link. 

Bach To the Future

Jonathan Yovel, Yale Law School; NYU School of Law, Straus Institute for the Advanced Study of Law and Justice; University of Haifa Faculty of Law, is publishing From Status to Contract: The Unhappy Case of Johann Sebastian Bach in the Canadian Journal of Law and Jurisprudence. Here is the abstract.

In May of 1723, Johann Sebastian Bach was appointed Musical Director and Cantor of the Thomasschule, the city musical academy, in the mercantile city of Leipzig, a laboratory for an emerging self-conscious urban bourgeoisie. Bach departed from a tiny 1700s feudal court, moving to a devout, materialistic, new-money city ecstatic with the sense of its own progress and modernization. Socially and politically, he left behind one Europe and joined another.

Not less significant, although generally ignored by scholarship, was the matter of Bach’s legal status. Up to this point in his career, Bach always served as a status-determined servant within a feudal hierarchy. In Leipzig he signed a contract of employment; no longer a servant, he became an employee. In a sense he embodied Henry Maine’s characterization of modernity as a gradual shift “from status to contract.” And in most respects, his life turned much to the worse.

This essay explores the failings of contract in early modernity through Bach’s case, and especially how contract perpetuated hierarchical social structures he was ostensibly leaving behind. Bach was a modern in his entrepreneurial spirit; to the extent that he finally did manage to take advantage of contract — a later period that coincided with a decline in his liturgical output — that was not due to a supposed “freedom of contract” in any sense of empowerment or even bargaining, but to contract’s relative incomprehensiveness and fracturing of social and professional roles.

Download the article from SSRN at the link. 

Is the Day of the Courtroom Sketch Artist Coming To An End?

From the New York Times' Opinion pages, discussion of a documentary on a courtroom sketch artist and the impact of cameras in the courtroom on his career.

Below, a short bibliography on courtroom sketch artists and the law:

Burnett, M. Dallas, The Utah Federal Court's Ban on Sketching of Courtroom Scenes, 1975 BYU L. Rev. 21.

Caffrey, Denise, United States v. CBS: When Sketch Artists Are Allowed In the Courtroom, Can 
Photographers Be Far Behind? 1975 Duke L.J. 188.

Cohen, Mark C., United States v. Columbia Broadcasting System, Inc.: Courtroom Sketching and the Right To Fair Trial, 10 New Eng. L. Rev. 541 (1974/1975).

Krien, Anna, Drawn Faces, The Monthly, May, 2012.

Moran, Leslie J., Every Picture Speaks a Thousand Words: Visualizing Judicial Authority in the Press, in Intersections of Law and Culture 31 (P. Gisler, S. Steinert Borella, and C. Wiedmer, eds.; Palgrave Macmillan, 2012) (Palgrave Macmillan Socio-Legal Studies).

Stecker, Naseem, The Case of the Disappearing Courtroom Sketch Artist, Michigan Bar Journal, July 2002, at 16. 

Taylor, Karen T. Forensic Art and Illustration (CRC Press, 2001).

See U.S. v. CBS, 497 F. 2d 102 (5th Circ., (1974)) (vacating orders by the lower court that prohibited a artist employed by the network from sketching courtroom scenes and prohibited the network from publishing the artwork.

An examination of the position of the various courts on sketching suggests precisely the opposite conclusion from that reached by the Estes Court. To our knowledge, no state or federal court has prohibited the publication of sketches. Of the eighty federal district courts which have written rules, only three have provided, pursuant to a suggestion in the Kaufman Committee Report, that in certain widely publicized cases the court may direct "that the names and addresses of jurors or prospective jurors not be publicly released except as required by statute,   and that no photograph be taken or sketch made of any juror within the environs of the court." ...We express no views, of course, on the wisdom or validity of such rules, but mention them only to demonstrate that virtually no courts have found it necessary to restrict the publication of sketches. It is also significant that those jurisdictions which have regulated sketching have done so in very narrowly drawn circumstances. Even if we were to determine that sketching presented a danger sufficient to warrant a prior restraint, it is basic constitutional law that the limitation can be no broader than necessary to accomplish the desired goal. ...In the matter sub judice, even though the district court was legitimately concerned with preventing prejudicial publicity from poisoning the impartial atmosphere essential to a fair trial, we conclude that the total ban on the publication of sketches is to remotely related to the danger sought to be avoided, and is, moreover, too broadly drawn to withstand constitutional scrutiny. We hold, therefore, that the portions of the district court's orders which ban the publication of sketches are unconstitutional.

Turning now to the second issue in this appeal, we further hold that in the circumstances of this case the rule which forbids in-court sketching is also invalid. In so doing, we do not question the power of the district court to issue orders regulating conduct in the courtroom. Ordinarily the trial judge has extremely broad discretion to control courtroom activity, even when the restriction touches on matters protected by the First Amendment. ...We are unwilling, however, to condone a sweeping prohibition of in-court sketching when there has been no showing whatsoever that sketching is in any way obtrusive or disruptive. As noted earlier, some districts have adopted narrowly drawn rules applicable only to highly publicized cases. Though this is not the appropriate occasion to pass on the constitutionality of more limited restrictions, we are firmly of the view that the restraint imposed by the court below is overly broad and thus invalid. 

Reminder: Law and Magic Conference, June 6, 2014: Registration and Hotel Information

Reminder: The Conference on Law and Magic, co-sponsored by the Law and Humanities Institute and Thomas Jefferson School of Law, takes place on June 6, 2014 at the Thomas Jefferson School of Law, 1155 Island Avenue, San Diego CA 92101. For additional information, please contact Stephanie Marquez at smarquez at tjsl.edu. CLE is being applied for.

Conference hotels are the Hotel Indigo and the Marriott San Diego Gaslamp Quarter, both a short walk from the law school. Click on the links for access to the hotels' reservations pages.

Registration is free for TJSL faculty, alumni, staff, and students, and $20 for all others. Registration includes lunch and the closing reception.

Here is the final schedule of presentations for June 6.

Revealing the Links Between Law and Magic:

A Conference Co-Sponsored by the Law and Humanities Institute 

and the Thomas Jefferson School of Law

June 6, 2014

8:00                 Breakfast and Check-in

8:30-10:00      Panel 1

                        First Amendment and Magic

                        Christine Corcos, LSU Law

                        Paul Finkelman, Albany Law

                        Rob McQueen, University of London

                        Julie Cromer-Young, Thomas Jefferson School of Law, Chair and Discussant

10:15-11:45    Panel 2

                       

                        Law, the Humanities, and Magic

                        Anthony Farley, Albany Law School

                        Richard Weisberg, Cardozo Law School

                        Annette Houlihan, St. Thomas University, New Brunswick (Canada)

                        Christine Corcos, Chair and Discussant

12:00-1:15      Lunch

                        Entertainment by Curt Frye

1:30-3:30        Panel 3

Intellectual Property and Magic

                        Jay Dougherty, Loyola (Los Angeles) Law School

                        Jennifer Hagan, Hagan and Hagan, P.A.

                        Mark Tratos, Greenberg Traurig (via Skype)

                        Pierre Fleury-LeGros, University of LeHavre

                        Guilhem Julia, University of Paris XIII

                        Jay Dougherty, Chair and Discussant

                       

3:45-5:30        Panel 4

                        Magic in the Courtroom

                        Sydney Beckman, Duncan School of Law

                        Curtis Frye, Independent

                        Rostam Neuwirth, University of Macao Faculty of law

                        Julie Cromer Young, Chair and Discussant

5:30-6:30        Closing reception for panelists and attendees

A Conference on Law, Psychoanalysis, and J. M. Coetzee

From our good friend José Calvo Gonzalez, Universidad de Málaga, news of an upcoming Conference in Law and Psychoanalysis to be held in Curitiba (Brazil), and dedicated to J. M. Coetzee's novel Disgrace (1999). 

Doctor Jacinto Nelson de Miranda Coutinho, Professor of Criminal Procedure, Federal University of Paraná, is organizing the conference, which will take place May 28-30, 2014, in the Hall of the Faculty of law of the Federal University of Paraná, a historic building on Santos Andrade Square, Centro, Curitiba-Pr, Brazil. This year the invited speakers are: Lawrence Flores Pereira, Federal University of Santa Maria, Rio Grande do Sul, José Calvo Gonzalez, Universidad de Málaga, Spain, and José Martin, Universidade Lusófona, Lisbon. Portugal.

Poster

Conference Schedule

Call For Papers: JOTWELL, the Journal of Things We Like (Lots)

From Michael Froomkin, University of Miami Law School:

Call for Papers:

Legal Scholarship We Like,
and Why It Matters

University of Miami School of Law
November 7-8, 2014

JOTWELL, the Journal of Things We Like (Lots), is an online journal dedicated to celebrating and sharing the best scholarship relating to the law. To celebrate Jotwell’s 5th Birthday, we invite you to join us for conversations about what makes legal scholarship great and why it matters.
In the United States, the role of scholarship is under assault in contemporary conversations about law schools; meanwhile in many other countries legal scholars are routinely pressed to value their work according to metrics or with reference to fixed conceptions of the role of legal scholarship. We hope this conference will serve as an answer to those challenges, both in content and by example.
We invite pithy abstracts of proposed contributions, relating to one or more of the conference themes. Each of these themes provides an occasion for the discussion (and, as appropriate, defense) of the scholarly enterprise in the modern law school–not for taking the importance of scholarship for granted, but showing, with specificity, as we hope Jotwell itself does, what good work looks like and why it matters.

I. Improving the Craft: Writing Legal Scholarship

We invite discussion relating to the writing of legal scholarship.
1. What makes great legal scholarship? Contributions on this theme could either address the issue at a general level, or anchor their discussion by an analysis of a single exemplary work of legal scholarship. We are open to discussions of both content and craft.
2. Inevitably, not all books and articles will be “great”. What makes “good” legal scholarship? How do we achieve it?

II. Improving the Reach: Communicating and Sharing

Legal publishing is changing quickly, and the way that people both produce and consume legal scholarship seems likely to continue to evolve.
3. Who is (are) the audience(s) for legal scholarship?
4. How does legal scholarship find its audience(s)? Is there anything we as legal academics can or should do to help disseminate great and good scholarship? To what extent will the shift to online publication change how people edit, consume, and share scholarship, and how should we as authors and editors react?

III. Improving the World: Legal Scholarship and its Influence

Most broadly, we invite discussion of when and how legal scholarship matters.
5. What makes legal scholarship influential? Note that influence is not necessarily the same as “greatness”. Also, influence has many possible meanings, encompassing influence within or outside the academy.
6. Finally, we invite personal essays about influence: what scholarship, legal or otherwise, has been most influential for you as a legal scholar? What if anything can we as future authors learn from this?

Mechanics:

Jotwell publishes short reviews of recent scholarship relevant to the law, and we usually require brevity and a very contemporary focus. For this event, however, contributions may range over the past, the present, or the future, and proposed contributions can be as short as five pages, or as long as thirty.
We invite the submission of abstracts for proposed papers fitting one or more of the topics above. Your abstract should lay out your central idea, and state the anticipated length of the finished product.
Abstracts due by: May 20, 2014. Send your paper proposals (abstracts) via the JOTCONF 2014 EasyChair page, https://www.easychair.org/conferences/?conf=jotconf2014.
If you do not have an EasyChair account you will need to register first – just click at the “sign up for an account” link at the login page and fill in the form. The system will send you an e-mail with the instructions how to finish the registration.
Responses by: June 13, 2014
Accepted Papers due: Oct 6, 2014
Conference: Nov. 7-8, 2014
University of Miami School of Law
Coral Gables, FL
Symposium contributions will be published on a special page at Jotwell.com. Authors will retain copyright. In keeping with Jotwell’s relentlessly low-budget methods, this will be a self-funding event. Your contributions are welcome even if you cannot attend in person.

The Passing of Gabriel Garcia Marquez

Dan Solove on Gabriel Garcia Marquez (from Concurring Opinions).

Horton's Whos

Jorge L. Contreras, American University College of Law, has published No Matter How Small ... Property, Autonomy and State in Horton Hears a Who! at 58 New York Law School Law Review 603 (2014). Here is the abstract.

This essay was presented at New York Law School Law Review's 2013 Symposium "Exploring Civil Society through the Writings of Dr. Seuss". It explores property law concepts that appear in Dr. Seuss's classic children's book "Horton Hears a Who!" and analyzes their relationship to the author's personal history and the sociopolitical landscape of post-war America. 

Download the essay from SSRN at the link.

Law and Humor

Laura E. Little, Temple University School of Law, has published Legal Restriction and Protection of Humor, in the Encylopedia of Humor (Salvatore Attardo, ed., Sage, 2014).  Here is the abstract. 

Law and humor intersect in many ways. First, humor provides an essential vehicle for the social critique of the many foibles of lawyers, legislators, judges, and the legal process. In addition, lawyers, judges, and law makers sometimes try to be funny as they dispatch their duties. And then there’s a ubiquitous cultural phenomenon: the lawyer joke, which exposes important insights into how society views lawyers and the legal process.
Yet the substance of the law also interacts with humor as well. This entry in the first ENCYCLOPEDIA OF HUMOR surveys these interactions between legal regulation and humor. The entry first describes how laws such as the First Amendment and intellectual property laws protect humor. The second half of the entry analyzes instances where the law restricts humor, with emphasis on defamation law, contract law, trademark violations, and employment discrimination laws. This latter part concludes that the law tends to avoid regulating humor that contains a significant degree of incongruity.

Download the paper from SSRN at the link. 

Law, Narrative, and the Use of Legal Fictions

Simon Stern, University of Toronto Faculty of Law, is publishing Legal and Literary Fictions in New Directions in Law and Literature (Elizabeth Anker and Bernadette Meyler, forthcoming). Here is the abstract.

Commentators on legal fictions often apply the term to doctrines that make the law’s image of the world seem distorted, bizarre, or fanciful. When doctrines such as corporate personhood and civil death are seen as fictional, this characterization depends on the starting point, but also on what flows from it. The fiction, it seems, holds the seed of a plot, and this latent narrative potential explains why legal fictions are sometimes likened to literary fictions. However, given that common-law judgments present themselves as rooted in precedent and are written in anticipation of their own use as precedents, this narrative potential is an ordinary feature of the law, not a distinctive quality of a few judgments or doctrines. Judgments, like Tribbles, are born pregnant, always capable of spawning. To single out, as fictions, a few that are wrapped in openly metaphorical language would imply that other doctrines, sparer of their means and more banal in their mode of expression, lack this quality. Thus to question the characterization of corporate personhood as a legal fiction is not to limit the scope of narratological inquiry in legal analysis, but to broaden that scope to include areas not usually considered to exhibit such self-consciously literary features as metaphor. As to legal fictions in particular, I argue that if they display a generative potential that invites analogy to literary fictions, that kinship owes more to the ways in which both fictional modes solicit a particular kind of attention, than to a shared ability to spin out narrative arrays. To develop these ideas, I consider the relation between patent misuse and copyright misuse; the question of whether steamboats are "floating inns"; the relation between legal fictions and what recent scholarship by literary critics has called "unnatural narrative"; and Duchamp's "Fountain" (1917).

Download the essay from SSRN at the link. 

Victorian Law and Literature

Volume 5, number 2 (Winter 2013) of Victorian Network features the theme Victorians and the Law: Literature and Legal Culture, edited by Cathrine O. Frank. The content is quite interesting and includes pieces by Professor Frank, Cécile Bertrand on early Victorian broadsides, Erica McCrystal on nineteenth century crime fiction, M. Colleen Willenbring on Harriet Martineau's The Town, and Alison Moulds on Elizabeth Gaskell's Mary Barton. Download the entire issue at this link.

Again, thanks to Simon Stern, University of Toronto, for alerting me to this publication.

CFP for 13th International Connotations Symposium

The journal Connotations has issued a Call for Papers for its 2015 symposium, which it will hold at the Eberhard Karls University in Tuebingen from July 26 to July 30 of 2015. Here is more information.

The first textbook definition of the concept of poetic justice goes back to Thomas Rymer’s The Tragedies of the Last Age Consider’d (1678). According to him, the term signified “the distribution, at the end of a literary work, of earthly rewards and punishments in proportion to the virtue or vice of the various characters” (Abrams, Glossary of Literary Terms 299-300). The introduction of virtue and vice into the concept immediately refers to a moral dimension; on aesthetic grounds, however, it was soon (and has continued to be) criticized.
Poetic justice, as examples from literary texts across the genres illustrate, may be realized in various ways – and sometimes the term may mean much more than the distribution of earthly rewards and punishments. Literary texts may suggest or even envision a justice never to be established in real life. But literary texts may likewise abstain from offering judgments at all, whereas the real world is full of them. In these cases, they may make us recognize vindictiveness dressing up as the pursuit of justice; or, as in John Gay’s The Beggar’s Opera, they may show us the absurdity of passing judgment. Are human beings entitled to pass judgement at all, or should this be left entirely to God? If this is a valid question, the relation of human, divine and poetic justice should be taken into account.
The symposium does not primarily aim at the connection between literature and the law which has recently met with increased attention in literary studies. Rather, we are interested in papers that combine reflections on poetic justice with close readings of literary texts in the field of literature in English.
Questions to be asked may include the following:

• Is the relationship between crime, punishment and justice an example of literature mirroring real life, or does it primarily give evidence to literary art producing “another nature”?
• Is poetic justice the reason for our satisfaction with tragic action? What are the stylistic and semantic features of a text that suggest a particular idea of poetic justice, i.e. what is it that makes us see justice as an aesthetic quality?
• What is the relation between the representation of law and justice and the kind of justice provided or withheld by the action of the story, play, or poem?

Please send an abstract (300 words max.) to the editors of Connotations by October 31, 2014: symposium2015[a.t]connotations.de
As the emphasis of the Connotations symposia is on critical debate, talks should not be longer than 30 minutes, leaving another 30 minutes for discussion.
A PDF version of the Call for Papers can be downloaded here.
The symposium will take place at Schloss Hohentübingen, „Fürstenzimmer“ [“The Earl’s Room” in Tübingen Castle], Burgsteige 11, 72070 Tübingen, Germany.
Click here if you want to learn more about former Symposia.
Prof. Matthias Bauer
Eberhard Karls Universität Tübingen
Department of English
Wilhelmstr. 50
72074 Tübingen
Germany

Link here to the webpage for the CFP.

A tip of the chapeau to Simon Stern, University of Toronto, for this info. 

What's New On the Small Screen For Fall

The Hollywood Reporter on likely pilot pickups for the fall: included is a new Shonda Rhimes series, How To Get Away With Murder, about a criminal defense professor, played by Viola Davis (The Help, Extremely Loud and Incredibly Close, Law & Order: SVU) for ABC, Bruno Heller's Gotham, a Batman back story series featuring Ben McKenzie (and maybe Jada Pinkett Smith), and a CSI spinoff for CBS starring Patricia Arquette (Medium), and perhaps an NCIS spinoff set in New Orleans (called unoriginally NCIS: New Orleans). Another CBS selection for fall might be a series from Tea Leoni about a female Secretary of State, Madam Secretary.

The CW network might schedule the supernatural crime thriller iZombie, which focuses on the adventures of a female medical student-zombie who gets a job at the coroner's office (how convenient). NBC is interested in the Debra Messing (Will and Grace) vehicle Mysteries of Laura as a detective with an ex-husband and twin sons. The network is also looking at Constantine, derivative of the comic hit Hellblazer. Yes, comics and the supernatural do seem to be something of a theme.

More here from THR.

Frost For Lawyers

Sherman J. Clark, University of Michigan Law School, has published Frost for Lawyers: 'The Best Thing that We're Put Here For's To See'  in volume 112 of the University of Michigan Law Review (2014). Here is the abstract.

Why should lawyers read Frost? First of all, of course, it can bring great pleasure. As Robert Pinsky put it, poetry brings pleasures “both intellectual and bodily” and can provide “a satisfaction central to life.” And this is particularly true of Frost, whose poems are both accessible and enjoyable. This does not mean that there are no challenges in his poems. Frost does make us work. Indeed, as I hope to explore in this Essay, the work he asks us to do is essential to what we can learn from his poems. But this work is itself engaging and invigorating — like the exhilarating challenge of rock climbing. Or, for those inclined to more grounded pleasures, it is akin perhaps to the satisfaction one can get from the hard, rewarding work of splitting wood, which Frost, through his narrator in “Two Tramps in Mud Time,” describes this way: "You’d think I never had felt before The weight of an ax-head poised aloft, The grip on earth of outspread feet, The life of muscles rocking soft And smooth and moist in vernal heat." (p. 276) Both intellectual and bodily indeed.

Download the article from SSRN at the link. 

How Mystery-Novel Savvy Are You?

Take this Buzzfeed quiz to see your Classic Mystery Novel Lovers quotient. Mine is Rookie Detective (my score was 59 novels of 99, and no, I'm not revealing which novels I've read).

Most of the choices are fairly modern publications, by U.S. and U.K. authors, with some obvious exceptions (Umberto Eco, Stieg Larsson, Dostoyevsky). If you had to make up your own, international, list of classic mystery novels, which ones would be on your list? Edgar Allan Poe's collection Tales of Mystery and Imagination?  (which is on the Buzzfeed list)? Dostoyevsky's Crime and Punishment (which is also on the list)? A Simenon novel? Voltaire's Zadig? A Judge Dee novel by Robert van Gulik? Something by Qiu Xiaolong?

Check out other lists here provided by LibraryThing, including the UK Crime Writers' Association Top 100, H.R.F. Keating's Top 100 picks, and Julian Symons' choices. 

The Royal Proclamation of 1763

Ghislain Otis, University of Ottawa, Civil Law Section, has published The Impact of the Royal Proclamation of 1763 on Quebec: Then and Now. Here is the abstract. 

The Royal Proclamation was the first imperial constitutional instrument in Canada that brought within its fold the indigenous people, the French people of Canada, and the British. For the first time in Canada the question of the fate of the French and the aboriginal peoples in British North America was posed. I want to frame my presentation within this foundational triangular or tripartite relationship, which was laid down in the Royal Proclamation and which substantially endures to this day, although it has very much evolved since then with the emergence of a strong multicultural dimension. In discussing the impact of the Proclamation on Quebec, I will of course be talking about its impact on the people that occupied the territory before the British took over and called it “The Province of Quebec” for the very first time in 1763. These people were the aboriginal peoples who occupied their traditional land and also some reserves created under the French regime and the French people of Canada who had been in the St-Lawrence Valley since the early 17th century. Of course, the territory of New France had been much larger than the tiny Province of Quebec created by the Proclamation but the majority of French settlers did live in that part of the territory claimed by France. I will first briefly canvass the impact of the Proclamation on the French people which has not yet been addressed in detail today. I will also touch on the impact of the Proclamation on the relationship between the French people and indigenous peoples. I will then move on to its impact on indigenous peoples. Since this aspect has been extensively covered by other speakers, I will only add a few additional comments.

Download the paper from SSRN at the link. 

The Posse Comitatus Act and Today's Navy

Mark Nevitt, U. S. Navy Judge Advocate General's Corps, is publishing Unintended Consequences: The Posse Comitatus Act in the Modern Era in the Cardozo Law Review. Here is the abstract.

America was born in revolution. Outraged at numerous abuses by the British crown — to include the conduct of British soldiers in the colonists’ daily lives — Americans declared their independence, creating a new republic with deep suspicions of a standing Army. These suspicions were intensely debated at the time of the nation’s formation and enshrined in the Constitution. But congressional limitations on the role of the military in day-to-day affairs would have to wait. They were not put in place until after the Civil War when southern congressmen successfully co-opted the framers’ earlier concerns of a standing Army and passed a criminal statute — the 1878 Posse Comitatus Act (“PCA”) — that restricted the ability of the Army to be used as a “posse comitatus” to “execute the laws.” Today, the PCA’s history and scope are often misunderstood with continual unintended consequences for today’s modern military that is far removed from the law’s earlier constitutional and statutory origins.

This article addresses a significant unintended consequence in the modern era: the PCA’s peculiar modern application to the Navy. The text of the PCA is silent on the Navy, yet the Department of Defense has determined that the PCA applies to the Navy worldwide. The early civil libertarian concerns that originated with the birth of the republic and at the time of the PCA’s passage are based on concerns over a standing Army. These are fundamentally distinguishable from the Navy, the maritime-based armed force that largely operates on the high seas, far away from America’s geographic borders and removed from its citizenry. The Navy’s mission includes the maintenance of freedom of the seas to include the suppression of piracy. But the DoD’s application of the PCA to the Navy limits its ability to participate in the full array of maritime missions — of continual concern with the rise of maritime terrorism that continually blurs the line between law enforcement and military activities. Building on the Navy example, this article concludes by offering recommendations to remedy this historical incongruity while touching upon other areas — such as the rise of the National Security Agency and the complex modern military organization — where the PCA and associated civil-military relationship need further re-examination.

Download the article from SSRN at the link. 

The History of Riparian Rights In Anglo American Law

David Schorr, Tel Aviv University, Buchmann Faculty of Law, has published Riparian Rights in Lower Canada and Canada East: Inter-Imperial Legal Influences. Here is the abstract. 

The development of the law of riparian rights in the Anglo-American world in the nineteenth century has been analyzed from several points of view, including economic property theory and Marxian legal history. Transnational aspects of the subject have not been neglected, as some have highlighted the transatlantic framework in which this body of doctrine developed, and others have examined the use of Continental, civil law sources by some of the American jurists responsible for that development. Yet the inter-imperial aspect of this story, in particular the meeting of the laws of the British and French Empires, has gone unremarked.
This paper examines the crossed histories of English common law, French civil law, and American law in the jurisprudence of water rights in Lower Canada/Canada East/Quebec in the mid-nineteenth century, and the influence of this jurisprudence on the developing water law of the British Empire.

Download the paper from SSRN at the link. 

Call For Papers: AALS Section on Law and the Humanities, January 2015 AALS Annual Meeting

From Charlton Copeland, University of Miami:

Call for Panelists

AALS Section on Law and Humanities

“Law and the Hero”

2015 AALS Annual Meeting

January 2-5, 2015, Washington, D.C.

Law and the Hero.  No, this is not an apt example of an “oxymoron” in the dictionary.  The law has had, and still has, many heroes.  For example, the federal judges in the South who implemented the desegregation mandate of Brown v. Board of Education were, as Jack Bass has written, unlikely heroes who maintained a steadfast commitment to the rule of law despite facing constant political opposition and personal attacks.  Ronald Dworkin argued that judges should aim to be heroes – specifically, like Hercules, acting with superhuman wisdom and patience to, in the words of Eric Posner, “bring order to the Augean stables of our law.”  (Posner did not agree with this view of the judge, arguing that judges should avoid making controversial constitutional decisions in order to allow such decisions to be worked out in the political process.)  Atticus Finch has long been hailed as heroic lawyer, albeit a fictional one, although Malcolm Gladwell has asked whether we should rethink Finch’s heroism.

What qualities define a hero in the law?  What role do heroes play in the law?  How is our thinking about heroism and the law influenced by other disciplines, such as history, literature, and philosophy?  And who are your heroes in the law?  This program will explore these issues with both invited panelists and panelists accepted through this call. 

The AALS Section on Law and Humanities invites your submissions on these questions and any others that touch upon the subject of “Law and the Hero.”  The Section will then select a number of submissions to be presented at the annual meeting in Washington, D.C., in January 2015.

To be considered as a panelist, please submit a statement of interest by Friday, May 9, 2014.  The statement should include a description – two to three paragraphs are sufficient – of your presentation that will address one or more of the themes highlighted in the above description and the methodology through which you will advance such themes. Please also submit a current curriculum vitae. Submit all materials to Professor Rodger Citron, Touro Law Center, via electronic mail at rcitron@tourolaw.edu.

Panelists will be selected by Friday, May 16, 2014. The Section hopes to have these papers published as part of an online mini-symposium sponsored by a law review, either in print or online.  All panelists will be responsible for paying their annual meeting registration fee and travel expenses. Full-time faculty members of AALS member law schools are eligible to submit papers. Foreign, visiting (and not full-time on a different faculty) and adjunct faculty members, graduate students, and fellows are not eligible to submit.

Freedom of Expression and the French Legal System

Robert A Kahn, University of  St. Thomas School of Law (Minnesota), has published Does it Matter How One Opposes Hate Speech Bans? A Critical Commentary on Liberté Pour L’Histoire's Opposition to French Memory Laws as U. of St. Thomas (Minnesota) Legal Studies Research Paper No. 14-16. Here is the abstract.

This paper examines Liberté pour l'Histoire, a group of French historians who led the charge against that nation’s memory laws, in the process raising unique arguments not found elsewhere in the debate over hate speech law. Some of these arguments – such as a focus on how the constitutional structure of the Fifth Republic encouraged memory laws – advance our understanding of the connection between hate speech bans and political institutions. Other arguments, however, are more problematic. In particular, Liberté historians struggle to distinguish the Holocaust (which is illegal to deny) from the Armenian Genocide (which is not). The Liberté historians also quite hostile toward multiculturalism. While this reflects the French culture in which the historians operate, it is normatively quite unappealing. This is especially true given the existence of other, more inclusive European arguments against hate speech regulation, such as those of Danish cartoon publisher Flemming Rose and Maltese Judge Giovanni Bonello. There has to be a better, more inclusive way to oppose French memory laws.

Download the paper from SSRN at the link. 

Law and Literature and Constitutions and Zombies: Where Does the "Oh, My" Come In?

William Baude, University of Chicago Law School, has published Zombie Federalism. Here is the abstract.

The most natural question to ask about zombies and constitutional law is whether zombies are persons within the meaning of the Constitution. But that question turns out to be remarkably difficult. The word "person" appears repeatedly throughout the Constitution, but without any clues about whether it extends to zombies.

What’s the best constitutional solution to this problem? Zombie Federalism. The Constitution does not resolve the question of zombie personhood, so we should understand it to leave that question to state law.

Download the paper at the link.

Have you now developed a taste for zombies? Indulge it by feasting on these articles.

Adam Chodorow, Arizona State University College of Law, Death and Taxes and Zombies, 98 Iowa Law Review 1207 (2013).

The U.S. stands on the precipice of a financial disaster, and Congress has done nothing but bicker. Of course, I refer to the coming day when the undead walk the earth, feasting on the living. A zombie apocalypse will create an urgent need for significant government revenues to protect the living, while at the same time rendering a large portion of the taxpaying public dead or undead. The government’s failure to anticipate or plan for this eventuality could cripple its ability to respond effectively, putting us all at risk.

This article fills a glaring gap in the academic literature by examining how the estate and income tax laws apply to the undead. Beginning with the critical question of whether the undead should be considered dead for estate tax purposes, the article continues on to address income tax issues the undead are likely to face. In addition to zombies, the article also considers how estate and income tax laws should apply to vampires and ghosts. Given the difficulties identified herein of applying existing tax law to the undead, new legislation may be warranted. However, any new legislation is certain to raise its own set of problems. The point here is not to identify the appropriate approach. Rather, it is to goad Congress and the IRS into action before it is too late.

Mark Graham, Oxford Internet Institute, Taylor Shelton, University of Kentucky, and Matthew Zook, University of Kentucky, Mapping Zombies: A Guide for Digital Pre-Apocalyptic Analysis and Post-Apocalyptic Survival, in Zombies in the Academy: Living Death in Higher Education (A. Whelan, R. Walker, and C. Moore, eds.; University of Chicago Press., 2013).

Zombies exist, though perhaps not in an entirely literal sense. But the existence, even the outright prevalence, of zombies in the collective social imaginary gives them a ‘realness,’ even though a zombie apocalypse has yet to happen. The zombie trope exists as a means through which society can playfully, if somewhat grimly and gruesomely, discover the intricacies of humanity’s relationship with nature and the socially constructed world that emerges from it.

In this chapter, we present an analysis of the prevalence of zombies and zombie-related terminology within the geographically grounded parts of cyberspace, known as the geoweb (see also Haklay et al. 2008 and Graham 2010). Just as zombies provide a means to explore, imagine and reconstruct the world around us, so too do the socio-technical practices of the geoweb provide a means for better understanding human society (Shelton et al. forthcoming; Graham and Zook 2011; Zook et al. 2010; Zook and Graham 2007). In short, looking for and mapping geo-coded references to zombies on the web provides insight on the memes, mechanisms and the macabre of the modern world. Using a series of maps that visualize the virtual geographies of zombies, this chapter seeks to comprehend the ways in which both zombies and the geoweb are simultaneously reflective of and employed in producing new understandings of our world.

Download all publications from SSRN at the links.  

A New Book On Alexis de Tocqueville's Thought

Scholars Zbigniew Rau and Marek Tracz-Tryniecki of the University of Lodz have co-edited a new book on my favorite nineteenth century political philosopher, Alexis de Tocqueville.

Tocquevillian Ideas: Contemporary European Perspectives (University Press of America, 2014) includes Zbigniew Rau and Marek Tracz-Tryniecki, Tocqueville and Europe: What Can We Learn From Him About the Past, the Present and the Future of the Old Continent?,Cengiz Çağla, Tocqueville: A Thinker of Freedom, Ewa Atanassow, Patriotism in Democracy: What We Learn From Tocqueville, Marinus R. R. Ossewaarde, Tocqueville on Citizen Participation, Attila K. Molnár, Tocqueville and the Democratic Churning, Oliver Hidalgo, Religion, Virtue, and the Ennobling of Democracy: Tocqueville's Vision of Civic Society, Marek Tracz-Tryniecki, Human Dignity Versus Goodness: Tocqueville's Dilemna, and William R. Stevenson, Jr., The American Melting Pot as Reductionist Kettle: Religious Liberty's Worrisome Condition.

Thoughtful coverage by well-known scholars of an important figure in European and U.S.philosophy and political science.

Lawyer Ethics In Legal Fiction: The New Zealand Edition

Grant Hamilton Morris, Victoria University of Wellington Faculty of Law, has published Devils Down Under: Perceptions of Lawyers' Ethics in New Zealand Fiction at 44 Victoria University of Wellington Law Review 609 (2013). Here is the abstract.

Sophisticated fictional portrayals of lawyers facing ethical dilemmas can provide important insights into the nature of legal ethics and morality in the New Zealand legal profession. These insights can assist the legal community in addressing complex issues surrounding professional regulation. This article reveals legal characters who act contrary to legal ethics but with moral justifications and characters who act ethically but in a way that laypeople may view as amoral or immoral. While the depictions of lawyers are generally negative, a close analysis reveals that this is partly a result of confusion over what Dare has termed the standard conception of a lawyer's role. Fewer insights can be gained from superficial characterisations. While much has been written on this topic in other jurisdictions, more light can be shed on New Zealand's ethical landscape through the study of New Zealand's fictional texts. This article exposes a rich resource for the legal community because as Economides and O'Leary have argued in relation to legal ethics, stories matter. This dictum should apply to works of non-fiction and fiction.

Download the article from SSRN at the link. 

Blackstone, Law, and Emotion

Simon Stern, University of Toronto Faculty of Law, is publishing Blackstone's Legal Actors: The Passions of a Rational Jurist in Impassioned Jurisprudence: Law, Literature and Emotion, 1660-1800 (Nancy Johnson, ed., Bucknell University Press, 2014) (Aperçus Series). Here is the abstract.

The success of Blackstone’s Commentaries is usually attributed to the ambition of his project: to give a synthetic and integrated overview of the common law. Blackstone’s effort, however strained, to display the law’s coherence, helps to explain why the Commentaries were taken up by so many generations of avid readers, but the book’s success also owes something to Blackstone’s method of showcasing this coherence and soliciting the reader’s enthusiasm for it. Blackstone does not simply methodize the law; he also personifies the law as an active force that produces consistency, and he similarly casts the reader as someone who partakes of the same sensibility and appreciates the same virtues. Blackstone places both the law and the law student in an affective relation to the rationalizing aims promoted in the Commentaries. By positing, within the text, a reader who attaches to the law in this fashion, Blackstone encourages his reader to take it for granted that this sense of attachment is part and parcel of the study of law.

The chapter begins by examining Blackstone’s figuration of the law and its passions, and the pattern in which he attributes the same dispositions to the reader. Next, the chapter considers Blackstone’s treatment of emotion in the criminal law, which describes the violent impulses of passionate actors – now presented as objects rather than subjects of legal thought – whose feelings are distinguished from the emotions that inform the law’s operations and that animate the law’s human exponent. Finally, the discussion turns to the place of emotion in Blackstone’s often-quoted paean to the imaginative power of the property right – a tribute that also positions the property-owner and his “affections” as the objects of legal thought. When this passage is considered in relation to Blackstone’s other accounts of legal passion, the property-owner emerges as a figure whose feelings might themselves be the product of a Blackstonian legal education.

Download the essay from SSRN at the link. 

King Lear and the Classroom

Karen E. Boxx, University of Washington School of Law, has published Shakespeare in the Classroom: How an Annual Student Production of King Lear Adds Dimension to Teaching Trusts and Estates at 58 St. Louis University Law Journal 751 (2014). Here is the abstract.

King Lear is the archetypal story of the tension an difficulties in parent-child and sibling relationships. In a Trusts and Estates class, it reinforces the message that those relationships are the starting point and bedrock of this body of law and the vast system of rules that has been developed to resolve these conflicts.
This Article first summarizes the plot of King Lear and then describes the process I use to get the play produced by student volunteers. It then sets forth some of the estate planning and lawyering lessons King Lear presents and describes some of the skills I think the play production helps develop. Finally, the Article discusses the less traditional benefits from holding an in-class performance of a play.

This Article is part of the St. Louis Law Journal's annual teaching issue, which is devoted to Trusts and Estates in 2014.

Download the article from SSRN at the link. 

Kathryn T. Preyer Scholar Memorial Competition

From Serena Mayeri, University of Pennsylania School of Law

Kathryn T. Preyer Scholars

Named after the late Kathryn T. Preyer, a distinguished historian of the law of early America known for her generosity to young legal historians, the program of Kathryn T. Preyer Scholars is designed to help legal historians at the beginning of their careers. At the annual meeting of the Society two younger legal historians designated Kathryn T. Preyer Scholars will present what would normally be their first papers to the Society. The generosity of Professor Preyer’s friends and family has enabled the Society to offer a small honorarium to the Preyer Scholars and to reimburse, in some measure or entirely, their costs of attending the meeting. The competition for Preyer Scholars is organized by the Society’s Kathryn T. Preyer Memorial Committee.
Submissions are welcome on any topic in legal, institutional and/or constitutional history.  Early career scholars, including those pursuing graduate or law degrees, those who have completed their terminal degree within the previous year, and those independent scholars at a comparable stage, are eligible to apply. Papers already submitted to the ASLH Program Committee–whether or not accepted for an existing panel–and papers never previously submitted are equally eligible. Once selected, Preyer Award winners must present their paper as part of the Preyer panel, and they will be removed from any other panel.

Submissions should be a single MS Word document consisting of a complete curriculum vitae, contact information, and a complete draft of the paper to be presented. Papers must not exceed 40 pages (12 point font, double-spaced) and must contain supporting documentation. In past competitions, the Committee has given preference to draft articles and essays, though the Committee will still consider shorter conference papers. as one of the criteria for selection will be the suitability of the paper for reduction to a twenty-minute oral presentation. The deadline for submission is June 15, 2014.

Kathryn T. Preyer Scholars will receive a $500 cash award and reimbursement of expenses up to $750 for travel, hotels, and meals. Each will present the paper that s/he submitted to the competition at the Society’s annual meeting in Denver, Colorado, on November 6-9, 2014.

The Society’s journal, Law and History Review, has published several past winners of the Preyer competition, though it is under no obligation to do so.
Please send submissions as Microsoft Word attachments by June 15, 2014, to the chair of the Preyer Committee, Gautham Rao <email>.  He will forward them to the other committee members.

The 2014 Preyer Memorial CommitteeSam Erman, Assistant Professor of Law, University of Southern California
Serena Mayeri, Professor of Law and History, University of Pennsylvania
Gautham Rao, Assistant Professor of History, American University
Michael Schoeppner, Visiting Assistant Professor of History, University of Maine at Farmington
Karen Tani, Assistant Professor of Law, University of California, Berkeley

For more information and for a list of past winners, please see: http://aslh.net/about-aslh/honors-awards-and-fellowships/preyer-scholars/  

Doing Justice In Early California

Paul H. Robinson, University of Pennsylvania Law School, and Sarah M. Robinson are publishing Justice: 1850s San Francisco and the California Gold Rush as Chapter 4, in Living Beyond the Law: Lessons from Pirates, Prisoners, Lepers, and Survivors (Rowman & Littlefield, 2014) (forthcoming). Here is the abstract.

Using stories from the 1848-1851 California gold miners, the 1851 San Francisco vigilante committees, Nazi concentration camps of the 1940s, and wagon trains of American westward migration in the 1840s, the chapter illustrates that it is part of human nature to see doing justice as a value in itself — in people’s minds it is not dependent for justification on the practical benefits it brings. Having justice done is sufficiently important to people that they willingly suffer enormous costs to obtain it, even when they were neither hurt by the wrong nor in a position to benefit from punishing the wrongdoer.

This is Chapter 4 from the forthcoming general audience book Living Beyond the Law: Lessons from Pirates, Prisoners, Lepers and Survivors (Rowman & Littlefield 2014). Included is a table of contents for the book and a summary of the line of argument of all of its chapters. (Chapter 3 of the book is also available on SSRN at http://ssrn.com/abstract=2413875.)

Download the chapter from SSRN at the link. 

Legal Communication

Katia Fach Gómez, University of Zaragoza, has published Why Does Legal English Sound Like Gibberish To Many Spanish Law Students? Here is the abstract.

Legal English is unfortunately still a rare bird in law faculties in public universities in Spain. However, a command of legal English — the generic term used in this article to refer to both a specific legal subject taught in English and an instrumental “English for Specific Purposes” (ESP) subject in the legal sphere — is one of the assets that the voracious labor market demands of even recent graduates. This article is a personal reflection on the multiple dysfunctional factors in Spain that, together, prevent this gap from closing as quickly and completely as would be desirable. My article also shows that other, more auspicious developments in the legal English teaching and learning field are starting to take root in Spain and that there are also reasons for believing that Spanish lawyers can be relied on to take the lead in the long overdue “degibberization” of legal English.

Download the paper from SSRN at the link. 

Revealing the Links Between Law and Magic: LHI and Thomas Jefferson School of Law Conference on Law and Magic Update

Here's an update on the Law and Magic Conference, sponsored by the Law and Humanities Institute and the Thomas Jefferson School of Law, which will take place June 6, 2014.

Registration and check-in is scheduled to begin at 7:15 a.m. Panels will begin at 8:15. Here is the preliminary schedule of panels.

As of now, the Hotel Indigo at 509 9th Avenue, San Diego, is the conference hotel. Here's the link. If you have problems booking a room, please contact Jackie Vu at Hotel Indigo

p: 619-906-4814

e-Fax:  619-923-3516

jackie.nguyenvu@ihg.com

Schedule for June 6

PANELS

(subject to change)

7:15                        Registration and Check-In

8:15-9:45              Panel 1

                                Law,  History, and Magic

                                Christine Corcos

                                Paul Finkelman

                                Rob McQueen

                                Julie Cromer-Young, Chair and Discussant

10:00-12:00         Panel 2

                                Intellectual Property and Magic

                                Jay Dougherty

                                Jennifer Hagan

                                Mark Tratos

                                Pierre Fleury-LeGros

                                Guilhem Julia

                                Jay Dougherty, Chair and Discussant

12:15-1:45           Lunch Break

2:00-3:30              Panel 3

                                Magic on Trial

                                Sydney Beckman

                                Curtis Frye

                                Rostam Neuwirth

                                Julie Cromer Young, Chair and Discussant

                               

3:45-5:15              Panel 4

                                Law, Literature, Popular Culture, and Magic

                                Anthony Farley

                                Richard Weisberg

                                Annette Houlihan

                                Christine Corcos, Chair and Discussant