Are Women Inherently "Better" Leaders?

Catherine Powell, Fordham University School of Law, has published What if Women Ran the World – Would it be a Better Place?: International Law as Gender Performance in the Fordham Law Legal Studies Research Paper Series. Here is the abstract.

This article would provocatively ask whether the world would be a better (more peaceful, more economically secure) place, if women assumed leadership positions in peace and security matters. The backdrop is not simply Hillary Clinton’s run for Commander-in-Chief – and her claim that women’s empowerment is not only the right thing to do, but the “smart” thing to do for global and economic security. This is also an important question for international law. This year marks the 15 year anniversary of the UN Security Council’s groundbreaking Resolution 1325 (2000), which rests on the assumption that women’s participation will lead to more sustainable peace, because women “perform” differently in matters of war and peace. Thus, the norms are unapologetically instrumentalist and reinforce essentialist views of women. In fact, empirical evidence demonstrates that women “perform” in ways that reduce conflict, violence, and extremism. But the article will illustrate that the forms of gender performance we see reflected in the data – and which international law has organized itself around – are based on the socially-constructed roles women play (i.e., as caregivers, nurturers, and collaborators). However, a potential danger is that international law reifies these roles and the stereotypes, even as it tries to open up opportunities for women. Moreover, not all women are “peace-loving.” One need only recall Margaret Thatcher, the Supreme Court’s VMI case, the Obama Administration’s decision to drop the combat ban on women serving in the U.S. military, the militarization of feminism, and Hillary Clinton’s support for the 2003 Iraq war. Drawing on psycho-social and legal theory, the article will suggest ways for women to transform the paradigm for peace and security, rather than conform to the hyper-“masculine” framework that prevails. In examining this puzzle, the project builds on my work on military intervention (Libya: Indicative of a Multilateral Constitutional Moment? 106 AJIL 298 (2012)) and critical feminist approaches to international law a (Gender Indicators as Global Governance: This is Not Your Father’s World Bank, in Big Data, Big Challenges in Evidence-Based Policy Making (Kumar Jayasuriya ed., 2015 Forthcoming)).

Download the article from SSRN at the link.

Machiavelli and the Nature of Law Practice

David Barnhizer, Cleveland-Marshall College of Law, has published The Moral Lawyer and the Machiavellian Nature of Law Practice as Cleveland-Marshall Legal Studies Paper 15-288. Here is the abstract.

In Western culture the name Niccolo Machiavelli has become Machiavellianism, a pejorative signifying the willingness to do anything to achieve desired ends. American lawyers do have limits, however, and are expected to operate according to an ethical code that is at least intended to prevent the worst abuses. The effectiveness of this ethical code has often been questioned, as have the questionable efforts of the organized bar to enforce its rules, but on the surface it differentiates law practice from hand-to-hand combat and military struggles. Even though I have sometimes used the concepts of the warrior lawyer, the general and the Machiavellian to communicate insights into the essence of the legal strategist, this does not signify that “anything goes.” This is particularly important to emphasize because becoming an effective legal strategist gives an individual more power, which for the responsible lawyer also means there is a greater need to be constantly aware of the dangers of going too far. Strategy as practiced by Sun Tzu in The Art of War and Musashi in A Book of Five Rings evolved in a different era and culture. Sun Tzu reportedly had two women who mocked him executed as his payment for winning the bet that elevated him to prominence with the Chinese emperor. Musashi claims to have killed more than sixty opponents in duels and has often been referred to as “a bloody old man.” In one situation he is reported to have accepted a duel from a challenger and set it up for a small island on the following morning. When the man landed on the island the skulking Musashi won the duel by sneaking up behind him and smashing his head in with an oar. The idea of a “fair fight” was obviously not at the core of the “bushwhacking” Musashi’s system of strategy. A fair number of lawyers most likely see nothing wrong with equivalent tactics in representing their clients and depending on the circumstances honesty requires me to include myself in that group. Lawyers work within a culture of deception, manipulation, and power. The advocate’s role is inherently deceptive rather than truth-directed. Aristotle captured this idea more than two millennia ago in describing the role of the advocate as one in which: “you must render the audience well-disposed to yourself, and ill-disposed to your opponent; you must magnify and depreciate [make whatever forms your case seem more important and whatever forms his case seem less].” Plato phrased it more poetically in saying the advocate “enchants the minds” of the courts of law, remarking, “rhetoric [is]...a universal act of enchanting the mind by arguments...[H]e who would be a skillful rhetorician has no need of truth — for that in courts of law men literally care nothing about truth, but only about conviction.” As these observations clearly suggest, manipulation of other humans is an inevitable and inescapable fact of our personal and professional lives. But there are moral limits to manipulation. All lawyers manipulate words, concepts, symbols, people and institutions. So do other people. If you practice law and don't manipulate the conditions of the environment in which you are operating (and especially other people), you aren't a very good lawyer. You may like to think of yourself as being a non-manipulative human being who doesn't take advantage of other people, but, for a lawyer, that is a disingenuous posture. We continually manipulate in our pleadings, interviews, investigations, discovery, and negotiations. We manipulate in trial, or we ought not be there. It is impossible for an effective advocate to avoid manipulating people, but not impossible to make moral choices about the limits of our behavior, and how far we are personally willing to go.

Download the article from SSRN at the link.

Teaching Administrative Law In the First Year Curriculum

Kevin M. Stack, Vanderbilt University School of Law, has published Lessons from the Turn of the Twentieth Century for First-Year Courses on Legislation and Regulation at 65 Journal of Legal Education 28 (2015). Here is the abstract.

This essay — part of a special journal issue on Legislation and Regulation and Regulatory State courses as core elements of the law school curriculum — approaches the debate over adopting these courses by looking back to the controversy stirred by teaching administrative law in law schools at the beginning of the twentieth century. This essay argues that sources of resistance to administrative law at that time not only help to explain the slow pace of adoption of “Leg-Reg” and “Reg-State” courses today, but also inform what material these new courses should cover. At the turn of the century, both commitment to the case method as the exclusive pedagogy for law teaching and jurisprudential principles that understood courts to be the privileged sources of law resulted in early administrative law courses being normalized within the case method, excluding the internal law and decisionmaking of administrative agencies from their coverage. Based on the premise that law students should confront the primary sources of law in our current regulatory legal system, first-year Leg-Reg and Reg-State courses should not replicate the traditional, exclusive focus on judicial decisions. Rather, these new courses are the right occasion to introduce regulatory and congressional materials as primary sources. That coverage choice, moreover, provides preparation for an upper-level administrative law course focused on how courts review agency action, while minimizing duplication in coverage. Even more importantly, treatment of nonjudicial primary sources in these new courses helps to bring the image of law conveyed to first year students closer to the true dimensions of our legal order.

Download the essay from SSRN at the link.

Re-Interpreting Blackstone

Christopher Tomlins, University of California, Berkeley, Jurisprudence and Social Policy Program, is publishing Adelaide's Blackstone in the Adelaide Law Review. Here is the abstract.

This essay is an extended commentary on the recently-published (2014) essay collection entitled Re-Interpreting Blackstone’s Commentaries: A Seminal Text in National and International Contexts, edited by Wilfrid Prest. The collection is an important element in an ongoing multi-year project of engagement with Blackstone based at the University of Adelaide. It has staked out an ambitious interpretive terrain. In matters of interpretation, essayists move beyond legal analysis and legal history to literary criticism and art history. In assessing the Commentaries’ dissemination and impact, they pursue Blackstone beyond the usual concentration on the British Atlantic world into new, less familiar climes – the French Atlantic (Louisiana and Quebec) and Australasia. In charting the Commentaries’ influence, finally, they move beyond the history of common law adjudication to the distinctly contemporary subject of American constitutional originalism and its genealogy. The essay finds that *Re-Interpreting Blackstone’s Commentaries* is both enjoyable and instructive. Given the challenge of circumstance – an exceptionally familiar work written by a ‘conventionally dull’ man – this is no small achievement. The essay concludes with commentary on the place of Blackstone in the history of Australian settler-colonialism, with particular reference to the leading "native title" (indigenous land rights) cases of the past half century. It reflects on the place of history in native title litigation, and also on the meaning of resort to Blackstone by indigenous activists and their allies.

Download the essay from SSRN at the link.

Reading the Character of Atticus Finch in "Go Set a Watchman"

Allen Mendenhall, Auburn University, has published Children Once, Not Forever: Harper Lee's Go Set a Watchman and Growing Up in volume 91 of the Indiana Law Journal Supplement (2015). Here is the abstract.

This is the first law review article to analyze Harper Lee's novel Go Set a Watchman and in particular its portrayal of the famed attorney Atticus Finch. This article argues that the latest, controversial depiction of Atticus Finch is not a sharp departure from the depiction of Atticus Finch in To Kill a Mockingbird. The notion that Go Set a Watchman presents a new or different Atticus Finch is predicated on ahistorical assumptions and a willful misreading of the ominous, violent, and dangerous world of the fictional, yet eminently recognizable, Maycomb, Alabama.

Download the article from SSRN at the link.

Mark Lemley and Machiavelli

Brian L. Frye, University of Kentucky College of Law, has published Machiavellian Intellectual Property. Here is the abstract.

In his controversial essay, Faith-Based Intellectual Property, Mark Lemley argues that moral theories of intellectual property are wrong, because they are based on faith, rather than evidence. This article suggests that Lemley’s argument is controversial at least in part because it explicitly acknowledges that consequentialist and deontological theories of intellectual property rely on incompatible normative premises: consequentialist theories hold that intellectual property is justified only if it increases social welfare; deontological theories theories hold that intellectual property is justified even if it decreases social welfare. According to Berlin, the genius of Machiavelli was to recognize that when two moral theories have incompatible normative premises, societies may be forced to choose between the theories. But Berlin observed that it is possible to adopt different moral theories in different contexts. This article suggests that we can reconcile consequentialist and deontological theories of intellectual property by adopting a consequentialist public theory and deontological private theories.

Download the essay from SSRN at the link.

Thinking Philosophically About Property

Manuel R. Vargas, University of San Francisco School of Law and College of Arts and Sciences, Department of Philosophy, is publishing Contested Terms and Philosophical Debates in Philosophical Studies. Here is the abstract.

There is a standard set of theoretical options that tend to be proposed in response to putative errors in ordinary thinking about some property. The two main options are forms of either eliminativism or revisionism. Roughly, eliminativism is the denial that the target property exists, and revisionism is the view that the property exists, even if people tend to have false beliefs about it. Recently, Shaun Nichols has proposed a third option: discretionism. Discretionism is the idea that some terms have multiple reference conventions, so that it may be true to say with eliminativists that the property does not exist, and true to say with revisionists (and others) that the property does exist. This article explores the viability of discretionism, and argues that it faces serious difficulties. Even if the difficulties faced by discretionism can be overcome, it is unclear that discretionism secures anything beyond what is already available to standard revisionist views. The article concludes with some reflections about Nichols’ account of the bare retributive norm.

Download the article from SSRN at the link.

Some New Posts From John Denvir

Two new posts from John Denvir at his blog, Guile Is Good, The Heart As Well as the Head and The Price of Innocence.

Comparing Chinese and Western Approaches To Valuing Love and Law

Xiangyang Qian, University of Edinburgh, has published Love Beyond Law: A Chinese/Western Contrast on Law and Emotion. Here is the abstract.

It has been a tradition in China to value emotion over law until today as shown by a recent case in 2014. Such an attitude makes a sharp contrast to the Western one in terms of the law/emotion relation. The differences are rooted in the understanding of the fundamental concepts of reason, emotion and law. China holds a concept of intuitive reason, concrete and broad concept of emotion, and positive and narrow concept of law while the West has the rational reason, analytic and narrow concept of emotion, and abstract and broad concept of law. The Western conceptualization seems to prevail over the Chinese one, epistemolgocially and technically.

Download the article from SSRN at the link.

Pope Francis and the Natural Environment

John Copeland Nagle, Notre Dame Law School, is publishing Pope Francis, Environmental Anthropologist, in volume 28 of the Regent University Law Review (2016). Here is the abstract.

In June 2015, after much anticipation and a few leaks, Pope Francis released his encyclical entitled “Laudato Si’: On Care for Our Common Home. “Laudato si’” means “praise be to you,” a phrase that appears repeatedly in Saint Francis’ Canticle of the Sun poem. The encyclical itself has been widely praised and widely reported, far more than one would expect from an explicitly religious document. The encyclical is breathtakingly ambitious. Much of it is addressed to “every person living on this planet,” while specific parts speak to Catholics and others to religious believers generally. It surveys a sweeping range of environmental and social problems. Along the way, it relies on anthropology, theology, science, economic, politics, law, and numerous other disciplines. Especially anthropology. The popular response often described Laudato Si’ as a “climate change” encyclical. It’s not: only five of the 180 pages specifically address climate change, about the same as the discussion of the noise and ugliness, crime, housing, and transportation that affect the “ecology of daily life.” It is not really even an environmental encyclical, for the natural environment does not play the starring role. Rather, it is an encyclical about us. Francis contends that the natural environment suffers because we misunderstand humanity. This Article examines the encyclical from the perspective of Christian environmental thought more generally. It begins by outlining the development of such thought, and then it turns to the contributions of the encyclical with respect to environmental anthropology, environmental connectedness, environmental morality, and environmental governance. As the article explains, Pope Francis is a powerful advocate for a Christian environmental morality but a less convincing advocate for specific regulatory reforms. His greatest contribution is to encourage more people, religious believers and non-believers alike, to engage in a respectful dialogue about how we can better fulfill our responsibilities to each other and the natural world that we share.

Download the article from SSRN at the link.

The Foundations of Hugo Grotius' Ius Naturae et Gentium

Janne Elisabeth Nijman, Amsterdam Center for International Law, University of Amsterdam, is publishing Grotius’ Imago Dei Anthropology: Grounding Ius Naturae et Gentium in International Law and Religion (Martti Koskenniemi, Monica Garcia-Salmones, and Paolo Amoroso, eds., International Law and Religion,--). Here is the abstract.

The standard account has it that Hugo Grotius secularised international law by grounding it on human nature. This chapter argues we should not stop at the standard account, but rather should dig deeper and examine the theological anthropology grounding Grotius’ ideas on the law of nature and nations. With some attention for the influence of both (neo-)scepticism and (neo)stoicism in analyses of Grotius’ understanding of human nature and natural law, this chapter examines Grotius’ ideas through the lens of the Christian theological notion of imago Dei – the idea that human beings are different from other animals in that they are created in ‘the image and likeness of God’. The chapter relates the concept of the imago Dei briefly to the early seventeenth-century theological and political debates in the Dutch Republic and discusses the Arminian interpretation of the imago Dei along the lines of three dimensions generally set apart: ontological, teleological (the telos being to reach God, also through others in society), and functional (linked to the function of dominium). This chapter argues that the Arminian imago Dei anthropology is foundational to Grotius’ theory of the law of nature and nations in (at least) three ways along the lines of these three dimensions. The chapter concludes with a few remarks on how a post-skeptical reading of Grotius, through the lens of his imago Dei anthropology, is relevant for the future of international law thinking.

Download the essay from SSRN at the link.

Constitutional Review In Europe

Now available in paperback from Hart Publishing:

Maartje de Visser, Constitutional Review in Europe: A Comparative Analysis (hardcover, 2013, paperback 2015). 

Here is a description of the contents from the publisher's website.

Constitutions serve to delineate State powers and enshrine basic rights. Such matters are hardly uncontroversial, but perhaps even more controversial are the questions of: Who should uphold the Constitution? How should constitutional review be organized? These two questions are the subject of this book, which offers a comprehensive comparative analysis of how eleven representative European countries answer these questions, as well as a critical appraisal of the EU legal order in light of these national experiences. Where possible, the book endeavors to identify Europe's common and diverse constitutional traditions of constitutional review. The raison d'etre, jurisdiction, and composition of constitutional courts are explored and, so too, are core features of the constitutional adjudicatory process. Yet, this book also deliberately draws attention to the role of non-judicial actors in upholding the Constitution, as well as the complex interplay among constitutional courts and other actors at the national and European level. The Member States featured are Belgium, the Czech Republic, Finland, France, Germany, Italy, Hungary, the Netherlands, Spain, Poland, and the UK. The book will be of interest to practitioners, academics, and students in constitutional law. (Series: European and National Constitutional Law - Vol. 1)

 

The Origins of the Confidence Man

The late Jean Braucher, University of Arizona College of Law, and Barak Orbach, University of Arizona, are publishing Scamming: The Misunderstood Confidence Man in volume 27 of the Yale Journal of Law and the Humanities (2015). Here is the abstract.

Samuel Thompson, the swindler who gave name to confidence men (“con men”) was “a man of genteel appearance,” “ladies’ man,” and gifted with “persuasive powers.” He approached his victims — “perfect strangers” — on the street, engaged them in a short conversation, and then asked them express confidence in him by lending him money or a watch. A few men placed confidence in Thompson and gave him gold watches and money. Thompson became known as the “Confidence Man” for his method and primarily for his signature question: “Have you the confidence in me to trust with me your watch until tomorrow?” His modus operandi was used to reframe swindling as exploitation of trust and define swindling as “confidence game.” “Scamming,” also known as the “confidence game,” “diddling,” and “swindling,” is the exploitation of predictable imperfect decisions for profit facilitated by persuasion tricks. The practice is as old as the human race, yet still confuses lawmakers, courts, and scholars. We use the story of the Confidence Man to explain some of the core elements of scamming. Specifically, we explain why the abuse of trust in the pursuit of profit is conceptually confusing. Our study consists of two parts. First, we examine the origins of the terms “confidence game” and “confidence man.” Numerous studies describe Thompson as a genius operator. We argue that this attribution of sophistication illustrates broad misunderstanding of scamming. The record shows that Thompson was a clumsy thief and unsophisticated scammer and that his limitations were useful for illustrative purposes. We identify the reporter who coined of the term and explain the historical context in which the term was introduced. Second, we utilize insights from the story of the Confidence Man and its conceptualization to explain some of the confusing elements of scamming. Specifically, we emphasize (1) the common abuse of trust for profit; (2) the folly of attributing rationality to consumers and scammers; (3) scammers’ use of time to trap people in situations where they are likely to make mistakes; (4) challenges created by institutional scammers; (5) the role of intent and knowledge in scams; and (6) the possibility of using industry standards for scams.

Download the article from SSRN at the link.

Call For Student Papers, Writing Competition On Dispute Resolution

From Stacie I. Strong, University of Missouri:

A student writing competition is being organized in conjunction with the annual symposium convened by the Center for the Study of Dispute Resolution at the University of Missouri School of Law.  This year’s symposium is convened by Prof. Carli Conklin and is entitled “Beyond the FAA: Arbitration Procedure, Practice, and Policy in Historical Perspective.”  The symposium features Professor James Oldham, the St. Thomas More Professor of Law and Legal History at Georgetown University Law Center, as keynote speaker as well as expert panelists from England and the United States.

The competition is sponsored by the Center for the Study of Dispute Resolution and offers a $500 prize to the competition winner.  The author of the winning paper may be invited to publish the winning submission in the symposium issue of the Journal of Dispute Resolution, subject to the agreement of both the editors of the Journal of Dispute Resolution and the winning author.

Submissions should bear some relationship to the history of dispute or conflict resolution, broadly defined.  Topics may therefore consider issues relating to the historic development of international or domestic negotiation, mediation, conciliation and/or arbitration, among other things.  There is no requirement that papers discuss U.S. law, and submissions may approach the issues from a legal, historical, and/or political science perspective.  Papers must be received no later than 11:59 p.m., Central time, on Monday, November 9, 2015.

Further information on the writing competition is available on the symposium website.

Questions may be directed to:
Professor S.I. Strong
University of Missouri School of Law
Email:  strongsi@missouri.edu
Tel.:  +1 573 882 2465

Please feel free to circulate this information to other interested persons.

Kind regards,

S.I. Strong, FCIArb

Manley O. Hudson Professor of Law
Senior Fellow, Center for the Study of Dispute Resolution
University of Missouri
216 Hulston Hall
Columbia, MO  65211 USA
Tel.: +1 573 882 2465
Email:  strongsi@missouri.edu

Fault-Based Norms, Legal Standards, and Conduct

Bruno Deffains, Université Paris 2 Panthéon Assas, and Claude Fluet, University of Quebec, Montreat (UQAM) have published Social Norms and Legal Design as CIRPEE Working Paper 15-20. Here is the abstract.

We compare fault-based and strict liability offences in law enforcement when behavior is influenced by informal prosocial norms of conduct. Fault tends to be more effective than strict liability in harnessing social or self-image concerns. When enforcement relies on fines and assessing fault is not too costly, the optimal legal regime is fault-based with a standard consistent with the underlying social norm if convictions would seldom occur under optimal enforcement; otherwise liability should be strict. When sanctions are nonmonetary or when stigmatization imposes a deadweight loss, the legal standard may be harsher or more lenient than the social norm.

Download the working paper from SSRN at the link.

A Workshop On the Role of Language, Linguistics, and Translation In Developing Precedent In EU Law

From Karen McAuliffe, University of Exeter, news of a one-day workshop on "Precedent in EU Law: The Linguistic Aspect," to be held at the Dun Library, Dublin, Ireland on December 5, 2015. Register online here.

Here's more.

Legal Narrative, Civil Rights, and the Constitution

Linda L. Berger, University of Nevada, Las Vegas School of Law, is publishing The Color-Blind Constitution: Choosing a Story to Live By in the Michigan State Law Review. Here is the abstract.

The two phrases most associated with the U.S. Supreme Court's decisions in Brown v. Board of Education have taken on Orwellian meanings. Like the "Patriot Act" and "family values," the original intention and meaning of the words have been obscured by the context and the history of their use. "The color-blind Constitution" is a rationale for rejecting attempts to integrate public schools. No one is able to proclaim without irony that an action will be taken "with all deliberate speed." In this article, these terms will be the vehicle for examining unanticipated consequences, particularly those associated with brief writing in the U.S. Supreme Court. My thesis is that some unanticipated consequences — for example, those associated with the Government's friend of the court briefs filed in Brown I and Brown II and eventually with the term all deliberate speed — are far more troublesome than others — in this case, those associated generally with the color-blind Constitution and specifically with the NAACP Legal Defense and Education Fund (NAACP) briefs filed on behalf of the school children in Brown and associated cases. The article's claim is that the real, qualitative difference between the arguments made in these briefs has affected the nature of their unanticipated consequences. To support the claim, I suggest and follow an approach that combines narrative, metaphor, and constitutional interpretation. Together, these may provide guidelines for "judging" the arguments made.

Download the article from SSRN at the link.

Representations of Harm In Law and Narrative

Honni Van Rijswijk, University of Technology Sydney, Faculty of Law, is publishing Encountering Law's Harm Through Literary Critique: An Anti-Elegy of Land and Sovereignty in volume 27 of Law and Literature (2015) (Special Issue). Here is the abstract.

This article focuses on the significance of practices of representation to law’s role in adjudicating harm — both the role of representation in the adjudication of past harms, and in law’s present-day assertions of authority. I focus in particular on the ways in which questions of harm to the person, relation to land, and sovereignty have been separated in law, and the effects of these practices in constructing legal authority. I turn to Wright’s The Swan Book (2013) to provide a reading of the “undoing” of narratives of harm based on the person, and to thereby critique law’s representations of harm. I argue that, as an anti-elegy in the Modernist tradition, Wright’s novel provides a metaphor of harm and responsibility that reorganises time, destabilises law’s claims to authority over the adjudication of harms, and queries law’s claim to authority over other legal systems and sovereignties. This reading takes the framework of harm beyond the personal, to include the violent histories that have produced legal concepts including “land,” “sovereignty” and even “law” itself — histories and contexts that are separated and obscured in law.

Download the article from SSRN at the link.

An October Workshop on Law and Humanities at the University of Warwick

From Illan rua Wall at the Critical Legal Thinking Blog, news about the upcoming Scenes of Unrest: Law and Humanities Dissent Workshop, scheduled for October 14 at the University of Warwick. Among the scheduled presenters are Nadine El-​Enany (Birkbeck) Julen Etxabe (Helsinki) Adam Gearey (Birkbeck) Silvija Jestrovic (Warwick) Daniel Matthews (Hong Kong) Rashmi Varma (Warwick) Scott Veitch (Hong Kong) Marco Wan (Hong Kong) Gary Watt (Warwick) Andrew Williams (Warwick)

Among the questions the workshop will address: How might Law and Humanities enable us to make sense of a setting of popular dissensus, of widespread economic, political and environmental chaos and inequity? What does it mean to choose the disciplinary apparatus of Law and Humanities in the quintessential political setting – the moment of popular dissensus and disagreement? What are the possibilities of an aesthetic engagement with law, protest and dissent?

Oliver Wendell Holmes and Pragmatism

Allen Mendenhall, Auburn University, is publishing Pragmatism on the Shoulders of Emerson: Oliver Wendell Holmes Jr.'s Jurisprudence as a Synthesis of Emerson, Peirce, James, and Dewey in volume 48 of the South Carolina Review (2015). Here is the abstract.

Oliver Wendell Holmes Jr. turned forty in 1881. The publication of The Common Law that year afforded him the opportunity to express his jurisprudence to a wide audience. Over the next year, he would become a professor at Harvard Law School and then, a few months later, an associate justice of the Massachusetts Supreme Judicial Court. Emerson died in 1882, and Holmes began to articulate Emersonian pragmatism in new ways more suited for the industrial, post-Civil War environment in which transcendentalism no longer held credence. This essay examines Holmes's adaptation of Emersonian pragmatism as a synthesis of some pragmatic theories of C.S. Peirce, William James, and John Dewey.

Download the article from SSRN at the link.

Prosecuting and Defending "Enemies of the State"

Carole I. McCartney, Northumbria University; University of Leeds, School of Law; Bond University; and Clive Walker, University of Leeds, Centre for Criminal Justice Studies, have published Enemies of the State and Miscarriages of Justice at 32 Delhi Law Review 17 (2014). Here is the abstract.

Miscarriages of justice are exceptionally prevalent, acute and most often irredeemable when the subject is ‘an enemy of the state’. Nowadays, these subjects usually take the guise of ‘terrorists’ or other variants of ‘extremists’, and the impacts of the miscarriages upon them can be extreme, including the death penalty. Evidence will be provided for this premise mainly from the United Kingdom, but with further examples from other jurisdictions. Reasons for this correlation will be considered. One response is to demand the observance of fundamental rights within the justice process even in times of crisis and threat. In fact, states frequently adopt processes, which diminish normal safeguards and checks against wrongful conviction in such cases. Therefore, given the predilection of states to dilute due process in terrorist/extremist cases, a more practicable remedy might be to concentrate on post-conviction review mechanisms.

Download the article from SSRN at the link.

Why Mysteries Haunt Us

David Gramm, via the Arts & Letters Daily, on the enduring qualities of the best mystery and detective stories. Says Mr. Gramm,

The most profound and haunting detective stories are, ultimately, not about the tidy solving of a mystery. This week’s New Yorker story, “The Avenger,” by Patrick Radden Keefe, is a powerful illustration. The story traces the quest by Ken Dornstein to solve the case of the Lockerbie terrorist bombing, which killed all 259 passengers aboard Pan Am Flight 103 in 1988, and 11 people on the ground in Scotland. One of the passengers was Dorstein’s older brother, David.

I would tend to agree. What grips us about mystery and detective writing is the passion of the protagonist who seeks justice, whether inside or outside the legal system. When law and justice align, that is the best of both worlds, but we know that all too often law and justice do not align. So the protagonist must choose whether to be satisfied with law by itself, or to seek justice alone--sometimes truly alone. These are the stories that haunt us.

The Statute of Northampton and Carrying Weapons In Public

Clayton E. Cramer, College of Western Idaho, has published The Statute of Northampton (1328) and Prohibitions on the Carrying of Arms. Here is the abstract.

The Statute of Northampton (1328) has been claimed as an ancient prohibition on civilians carrying deadly weapons in public. Analysis of its history and subsequent interpretation reveals otherwise.

Download the article from SSRN at the link.

The Definitions of Terrorism

Ben Saul, University of Sydney Faculty of Law, is publishing Defining Terrorism: A Conceptual Minefield in The Oxford Handbook of Terrorism (A. Gofas, R. English, S. N. Kalyvas, and E. Chnoweth, eds., Oxford University Press, 2016). Here is the abstract.

Calls to define ‘terrorism’ as a legal concept arose in the context of efforts to extradite ‘political offenders’ from the 1930s onwards, with many efforts, over 80 years to the present, to define, criminalize, and depoliticise a common global concept of ‘terrorism’. Those international efforts remain largely unsuccessful to this day. After the terrorist attacks on the United States of 11 September 2001 (‘9/11’), many states enacted ‘terrorism’ offences, spurred on by the perceived threat of global religious terrorism, obligations imposed by the UN Security Council, gaps in existing criminal liabilities and police powers, and the expressive function of stigmatising terrorism as a special kind of violence against public interests. National laws remain, however, startlingly diverse and there is still a global divergence. At the international level, there is certainly a basic legal consensus that terrorism is criminal violence intended to intimidate a population or coerce a government or international organisation; some national laws add an ulterior intention to pursue a political, religious or ideological cause. There remain intense moral and political disagreements, however, on whether there should be exceptions for just causes (such as liberation violence and rebellion), armed conflicts, and state violence. As a result, a conceptual impasse continues, even if agreement has been edging closer.

Download the essay from SSRN at the link.

The Judicial Voice and the Analysis of Legal Opinions

Andrea L. McArdle, CUNY School of Law, has published Understanding Voice: Writing in a Judical Context at 20 Legal Writing 189 (2015). Here is the abstract.

This article argues that the concept of judicial voice is a valuable analytic and interpretive resource. After examining various conceptualizations of voice in literary writing and legal writing generally, it identifies two complementary dimensions of judicial voice: one (genre-based) is tied to recurring features of appellate opinions as well as the advocacy briefs and bench memoranda that are related textually to these opinions; the other (authorial) is linked to an author’s signature rhetorical choices and expressive style. The article develops an analytic framework that draws on both of these dimensions of judicial voice, and then applies the framework to illustrate that becoming attuned to how an opinion is voiced, and how it resonates, is an important analytic tool that can aid our understanding of a judicial writing’s deeper structure s of meaning.

Download the article from SSRN at the link.

Call For Submissions: Constitutional Studies

From Mark Graber, on behalf of Howard Schweber:

Call for Submissions Constitutional Studies invites submissions. The journal seeks work of the highest quality that expands our understanding of constitutional democratic institutions and the bases for their legitimacy, practices of constitutional self-government, formal and informal constitutional systems, approaches to constitutional jurisprudence, and related subjects.

We welcome submissions from a comparative, empirical, historical, normative, or analytic perspective from scholars across the range of the social sciences and humanities. Interested authors should visit our website at <constitutionalstudies.wisc.edu> for instructions on formatting and submission. Potential articles should be no more than 10,000 words. All submissions will be subjected to double-blind peer review.

Questions about the journal or submissions can be sent to <constitutional.studies@uwpress.wisc.edu>.

The journal is supported by generous funding from the Bradley Foundation and the Center for the Study of Liberal Democracy and published by the University of Wisconsin Press. Howard Schweber, Editor -- howard.schweber@wisc.edu

 Jennifer Brookhart, Managing Editor -- jbrookhart@wisc.edu.

Another "Best Of" From Scribes

Gerald Lebovits, Columbia University Law School; Fordham University School of Law; New York University School of Law; New York Law School, has published On Terra Firma with English at 16 Scribes Journal of Legal Writing 123 (2014/2015). Here is the abstract.

This article discusses how to write legal prose in clear, forceful, and plain English and without turgid, boring, and unclear legalisms. From the Editor: "We finish with the next installment of our 'Best of' series, this time featuring short pieces by Gerald Lebovits. Judge Lebovits . . . offers practical advice shaped by his years as a legal reader and writer. He has written many pieces worthy of inclusion here, but we’ve picked our favorite favorites."

Download the essay from SSRN at the link.

Historical Explanations and Counterfactual History

Cass R. Sunstein, Harvard Law School, is publishing Historical Explanations Always Involve Counterfactual History in the Journal of Philosophy of History. Here is the abstract.

Historical explanations are a form of counterfactual history. To offer an explanation of what happened, historians have to identify causes, and whenever they identify causes, they immediately conjure up a counterfactual history, a parallel world. No one doubts that there is a great deal of distance between science fiction novelists and the world’s great historians, but along an important dimension, they are playing the same game.

Download the essay from SSRN at the link.

The Right To Truth As a Human Right

Dermot Groome, Pennsylvania State University Dickinson School of Law, has published The Right to Truth: The Evolution of a Right. Here is the abstract.

This piece traces the history of the right to truth and considers whether or not it has achieved normative status.

Download the article from SSRN at the link.

A New Book On Cesare Beccaria and His Relationship To the American Revolution

John D. Bessler has published The Birth of American Law: An Italian Philosopher and the American Revolution (Carolina Academic Press, 2015). Here is a description of the contents from the publisher's website.

The Birth of American Law: An Italian Philosopher and the American Revolution tells the forgotten, untold story of the origins of U.S. law. Before the Revolutionary War, a 26-year-old Italian thinker, Cesare Beccaria, published On Crimes and Punishments, a runaway bestseller that shaped the Declaration of Independence, the U.S. Constitution, and early American laws. America’s Founding Fathers, including early U.S. Presidents, avidly read Beccaria’s book—a product of the Italian Enlightenment that argued against tyranny and the death penalty. Beccaria’s book shaped American views on everything from free speech to republicanism, to “Life, Liberty and the pursuit of Happiness,” to gun ownership and the founders’ understanding of “cruel and unusual punishments,” the famous phrase in the U.S. Constitution’s Eighth Amendment. In opposing torture and infamy, Beccaria inspired America’s founders to jettison England’s Bloody Code, heavily reliant on executions and corporal punishments, and to adopt the penitentiary system. The cast of characters in The Birth of American Law includes the usual suspects—George Washington, Thomas Jefferson, John Adams and James Madison. But it also includes the now little-remembered Count Luigi Castiglioni, a botanist from Milan who—decades before Alexis de Tocqueville’s Democracy in America—toured all thirteen original American states before the 1787 Constitutional Convention in Philadelphia. Also figuring in this dramatic story of the American Revolution: Madison’s Princeton classmate William Bradford, an early U.S. Attorney General and Beccaria devotee; John Dickinson, the “Penman of the Revolution” who wrote of Beccaria’s “genius” and “masterly hand”; James Wilson and Dr. Benjamin Rush, signers of the Declaration of Independence and fellow Beccaria admirers; and Philip Mazzei, Jefferson’s Italian-American neighbor at Monticello and yet another Beccaria enthusiast. In documenting Beccaria’s game-changing influence, The Birth of American Law sheds important new light on the Constitution, the Bill of Rights, and the creation of American law. This book is part of the Legal History Series, edited by H. Jefferson Powell, Duke University School of Law.

The Birth of American Law was awarded the 2015 Scribes Book Award and the First Prize in the 2015 AAIS Book Award competition (in the 18th/19th century category). It was also named INDIEFAB's 2014 Gold Winner for History.

The Green Bag Publishes a "Micro-Symposium": Studies of the Supreme Court Justices and Their Work

Ross E. Davies, et al., have published Micro-Symposium: Top Ten Rankings of the U.S. Supreme Court at 18 Green Bag 2d, 2015. Here is the abstract.

A few months ago the Green Bag issued a call for short (1,500 words) essays on “Top Ten Rankings of the Supreme Court.” We were looking for “original and empirical stud[ies] involving some kind of ranking of the Justices or their work, accompanied by illuminating analysis and commentary, that will help readers better understand the Supreme Court of the United States, the people who work there, and the products of their labors.” 18 Green Bag 2d 126. We found plenty. In fact, we received much more good work than we could print. So, we hardened our hearts and picked some excellent exemplars, and the result is this micro-symposium.

Download the text from SSRN at the link.

"Twilight" As Representation of Victimization and Violence

Susan L. Brody, The John Marshall Law School, has published Twilight: The Unveiling of Victims, Stalking, and Domestic Violence at 21 Cardozo Journal of Law & Gender (2014). Here is the abstract.

This article posits that the Twilight protagonist, seventeen year old Isabella Swan, is not the strong, independent, and mature young woman that she appears to be, but rather, she is a victim. She is a victim of stereotypical life circumstances, the only child of divorced parents bereft of any parenting skills to care for her; she is thus crafted as a young woman who, reinforcing gender stereotypes, is in need of care, protection, and rescue by a “prince charming.” Worse yet, she is also a victim of power, control, and violence, which legally constitute stalking and domestic violence. Telling the story in a first person narrative, Bella falls in love with Edward Cullen, a teen aged boy who sits next to her in a typical high school biology class and who lives nearby in her small town community of Forks, Washington. As the saga unfolds, Bella learns that Edward is a vampire, who could kill her in an instant. Throughout their love story, Bella continuously conflates Edward’s acts of control and violence with love and sex and astonishingly, she even relishes the violent acts against her. She is a precarious role model for impressible young women readers (perhaps numbering in the millions), who may identify with Bella as they are embarking on their own teenage journeys of self-discovery. Although they may recognize as fiction and fantasy the vampire elements of the story, they may, as Bella does, dangerously label as “love” harmful and illegal acts of control and violence, and also like Bella, they may believe such acts are acceptable, normal, and even desirable in a relationship. Male readers likewise may subliminally receive the message that control and violence are normal in a relationship and seek to emulate Edward’s controlling and harmful conduct. Finally, while Bella in the end becomes herself quite powerful, she does not acquire that power by her own actions, but instead, she acquires it because Edward, the man in her life, has given it to her, indeed the result of a violent act against her. For all these reasons, Bella is a harmful role model and one whose decisions to accept the illegal acts against her should not be emulated by anyone, much less young teenagers who may be experiencing a relationship for the first time. This article ultimately presents several alternative ways to rewrite Twilight, which do not eliminate the “fantasy” or the “romantic relationship,” but would make Bella a far better feminist role model and a significantly more deserving heroine.

Download the text of the article from SSRN at the link.

The Islamic Tradition, the Arts, and Freedom of Expression

Eleni Polymenopoulou, Brunel University London, is publishing A Thousand Ways to Kiss the Earth: Artistic Freedom, Cultural Heritage and Islamic Extremism in volume 17 of the Rutgers Journal of Law and Religion (Fall 2015). Here is the abstract.

The paper discusses controversies on freedom of expression and the arts, focusing on Islam and Muslim sensibilities. Drawing from historical examples and the perception of visual arts and music in the Islamic tradition, it attempts to shed light upon incidents such as the Charlie Hebdo attacks and the intentional destruction of cultural heritage by extremists in Mali, Syria and Iraq in the case of global-scale controversies. After examining the concepts of blasphemy (sabb), apostasy (ridda) and idolatry (shirk) in Islamic law, it considers the legitimacy of legal claims related to blasphemous expressions from an international law perspective. The paper distinguishes between violent and non-violent claims and argues that freedom of expression should prevail in all cases involving blasphemy and offences to sensibilities. It also takes the view, however, that this solution is not necessarily a sustainable one. Empowering cultural rights as a whole, rather than seeking to resolve a fictitious conflict between rights, seems to be a more effective pathway to address complex issues involving religious extremism and hate speech.

Download the article from SSRN at the link.

How Ronald Reagan Communicated

New post from John Denvir's Guile Is Good blog on Ronald Reagan, the "Great Communicator." More here.

Law and Literature: Censorship, Democracy, and Human Rights, a Conference at the Faculty of Law, Espirito Santo, October 21-23, 2015

From our friend Jose Calvo, University of Malaga, an announcement of an interesting conference, Law and Literature: Censorship, Democracy, and Human Rights, at the Faculty of Law, (FDV), University of Espiritu Santo, Brazil. Here's the flyer for the conference, to be held October 21-23, 2015. Here is a link to the website, which includes the preliminary conference program.

 

The Origins and History of Land Registration In Scotland

Kenneth Reid, University of Edinburgh School of Law, is publishing From Registration of Deeds to Registration of Title: A History of Land Registration in Scotland in Land Registration (George L. Gretton and Kenneth G. C. Reid, eds.; Edinburgh: Avizandum Publishing Ltd. 2016). Here is the abstract.

The origins of land registration in Scotland lie in a series of statutes of the sixteenth century. A later Act of 1617, still in force today, set up a national system of deeds registration. There was a choice between registration in a local register or in a central register in Edinburgh (the General Register of Sasines); and registration was constitutive of the real rights which the deeds sought to create. From the beginning the registers were open to the public. These early developments were a source of national pride. Towards the end of the seventeenth century, for example, Sir George Mackenzie commented that ‘Scotland hath above all other Nations, by a serious and long experience, obviated most happily all frauds, by their publick Registers’. By the end of the nineteenth century, however, the pioneer country seemed in danger of being left behind. Beginning in South Australia in 1858, the ‘Torrens’ system of registration of title spread throughout the Australian colonies and then to many other parts of the British Empire. And in England, too, which had no national land register until the nineteenth century, the first hesitant steps were being taken for the introduction of registration of title. In the light of these developments, a Royal Commission was appointed in Scotland in 1906 to consider a switch from registration of deeds to registration of title but its members were unable to reach agreement. It was left to a second government committee, chaired by Lord Reid and reporting in 1963, to recommend the introduction of registration of title. The clinching argument was an expected reduction in transaction costs, and hence the prospect of cheaper conveyancing. Legislation to implement the Reid Committee’s recommendations was eventually passed in 1979. This paper explores the evolution of land registration in Scotland, analyses the key legal developments, and offers an evaluation of the move from registration of deeds to registration of title.

Download the essay from SSRN at the link.

A New Use For the Old Bailey Proceedings: The History of Linguistics

Magnus Huber, Department of English, University of Giessen, notes at the blog Varieng that The Old Bailey Corpus provides digitzed transcripts of the Old Bailey Proceedings that should allow linguists and historians to determine more precisely what spoken English sounded like before the invention of recorded sound. His post provides detail and an explanation of the scope and limitation of the project. He says that while the project didn't begin as a linguistic one, it does provide a lot of background information for linguistic researchers because it is a full-text database. However, it isn't keyword searchable.

The Rights of Privacy and Publicity

Samantha Barbas, SUNY Buffalo School of Law, has published Laws of Image: Privacy and Publicity in America (Stanford University Press, 2015). Here is a description of the contents from the publisher's website.

Americans have long been obsessed with their images—their looks, public personas, and the impressions they make. This preoccupation has left its mark on the law. The twentieth century saw the creation of laws that protect your right to control your public image, to defend your image, and to feel good about your image and public presentation of self. These include the legal actions against invasion of privacy, libel, and intentional infliction of emotional distress. With these laws came the phenomenon of "personal image litigation"—individuals suing to vindicate their image rights. Laws of Image tells the story of how Americans came to use the law to protect and manage their images, feelings, and reputations. In this social, cultural, and legal history, Samantha Barbas ties the development of personal image law to the self-consciousness and image-consciousness that has become endemic in our media-saturated culture of celebrity and consumerism, where people see their identities as intertwined with their public images. The laws of image are the expression of a people who have become so publicity-conscious and self-focused that they believe they have a right to control their images—to manage and spin them like actors, politicians, and rock stars.

 

How the Supreme Court Works: A New Explanation From Cass Sunstein

Cass R. Sunstein, Harvard Law School, has published Constitutional Personae: Heroes, Soldiers, Minimalists, and Mutes (Oxford University Press, October 2015). Here is a description of the contents from the publisher's website.

Since America's founding, the U.S. Supreme Court had issued a vast number of decisions on a staggeringly wide variety of subjects. And hundreds of judges have occupied the bench. Yet as Cass R. Sunstein, the eminent legal scholar and bestselling co-author of Nudge, points out, almost every one of the Justices fits into a very small number of types regardless of ideology: the hero, the soldier, the minimalist, and the mute. Heroes are willing to invoke the Constitution to invalidate state laws, federal legislation, and prior Court decisions. They loudly embrace first principles and are prone to flair, employing dramatic language to fundamentally reshape the law. Soldiers, on the other hand, are skeptical of judicial power, and typically defer to decisions made by the political branches. Minimalists favor small steps and only incremental change. They worry that bold reversals of long-established traditions may be counterproductive, producing a backlash that only leads to another reversal. Mutes would rather say nothing at all about the big constitutional issues, and instead tend to decide cases on narrow grounds or keep controversial cases out of the Court altogether by denying standing. As Sunstein shows, many of the most important constitutional debates are in fact contests between the four Personae. Whether the issue involves slavery, gender equality, same-sex marriage, executive power, surveillance, or freedom of speech, debates have turned on choices made among the four Personae--choices that derive as much from psychology as constitutional theory. Sunstein himself defends a form of minimalism, arguing that it is the best approach in a self-governing society of free people. More broadly, he casts a genuinely novel light on longstanding disputes over the proper way to interpret the constitution, demonstrating that behind virtually every decision and beneath all of the abstract theory lurk the four Personae. By emphasizing the centrality of character types, Sunstein forces us to rethink everything we know about how the Supreme Court works.

Hardcover: $24.95. Also available in eBook format.


 

American Journal of Legal History Relaunched; Gets New Editorial Team

News from the Faculty Lounge Alfred Brophy and Stefan Vogenauer are the co-editors of the American Journal of Legal History, and Roman Hoyos is now in charge of the section on book reviews. More here from Oxford University Press on the relaunch of the journal. Congratulations to all involved, past, present, and future, in carrying on the work of this extremely important publication.

Conscience In the Datasphere

Stephen Humphreys, London School of Economics & Political Science (LSE), is publishing Conscience in the Datasphere in volume 6 of Humanity (2015). Here is the abstract.

Much of the anxiety concerning ‘privacy’ in contemporary conditions of data immersion — which I here characterise as ‘life in the datasphere’ — may be better understood by reference to the neglected notion of conscience. This article undertakes an historical inquiry into this rich concept to reframe the debate on privacy, law and technology. To simplify, ‘conscience’ has historically articulated an impulse either to hide from an omniscient moral authority (‘bad conscience’) or to act righteously according to informed reason (‘good conscience’). Originating as a powerful premodern governing principle combining personal with public morality — notably in the medieval notion of synderesis — the personal and political content of conscience were each effectively critiqued by, respectively (in the examples I investigate here), Freud and Hobbes. The concept itself became ultimately marginal to public life. In this article I suggest that conscience in both guises returns forcefully under conditions of data ubiquity, pointing to broader shift in political settlements.

Download the article from SSRN at the link.

Fun For Tax Law Nerds

A crossword puzzle for tax law nerds, courtesy of Tax Notes.

Via my colleague Phil Hackney @EOTaxProf.

I'm classing this sort of thing in "law and linguistics." Because my blog, my rules.

Pragmatics and Law

Harold Anthony Lloyd, Wake Forest University School of Law, has published Law's 'Way of Words': Pragmatics and Textualist Error. Here is the abstract.

Lawyers and judges cannot adequately address the nature of text, meaning, or interpretation without reference to the insights provided by linguists and philosophers of language. Exploring some of those insights, this article focuses upon what linguists and philosophers of language call “pragmatics.” Pragmatics examines the relations between words and users rather than the relations of words to words (syntax) or the relations of words to the world (semantics). In other words, pragmatics studies how language users actually use and interpret words and other signs in communication. Pragmatics recognizes that speaker meaning can differ from (and even contradict) linguistic meaning including the literal meaning of text. In its proper context, for example, “Bob is indeed a good lawyer” can ironically mean just the opposite. Pragmatics also recognizes that relevant text is not a thing-in-itself that is simply given. Good lawyers look at such things as purpose and cohesion when determining relevant text. They do not simply take their opponent’s (or even their client’s) assertions of relevance. Pragmatics also provides lawyers with a number of specific concepts and tools which are helpful in determining speaker meaning. For user convenience, this article attempts to set out in one place a number of such concepts and tools. These include: (1) types of cohesion that help determine relevant text, (2) types of context that help determine meaning, (3) pragmatic principles of construction such as principles of relevance and politeness, and (4) important pragmatic notions or devices such as anaphora, cataphora, ellipsis, deixis, presupposition, unstated premises, entailment, and implementives. Finally, as a recurring example (among others) of pragmatics in action, this article examines from multiple perspectives textual issues raised in King v. Burwell, 576 U.S. __ (2015).

Download the article from SSRN at the link.

The Supreme Court's Civil Rights Jurisprudence and Competing Narratives

Peggy Cooper Davis, New York University Law School, Aderson Bellegarde Francois, Howard University School of Law, and Colin P. Starger, University of Baltimore School of Law, have published Beyond the Confederate Narrative. Here is the abstract.

A Confederate narrative haunts Supreme Court doctrine and unnecessarily weakens the Court’s civil rights jurisprudence. This narrative has several sources, but it is most significantly the creature of an embarrassed wish to preserve the right to engage in human chattel slavery. The Confederate narrative protected slave power, survived Reconstruction, and then protected Jim Crow and other forms of human subordination. Although its influence waned during the civil rights movements of the last century, the Confederate narrative survived in doctrine and has reemerged to help defeat claims that certain fundamental human rights are federally guaranteed and federally enforceable. According to what we term the People’s narrative, Reconstruction and the ratification of the 13th, 14th, and 15th amendments changed the constitutional balance of Federal, State, and People power, such that basic civil rights became the People’s privileges and the United States government became the ultimate protector of those rights. We attribute the Court’s failure to recognize important human rights to a failure to take appropriate account of the People’s narrative. This Article identifies and analyzes the dialectic between the Confederate and People’s narratives that has shaped the Supreme Court’s federalism and civil rights doctrine. Through careful exegesis of critical lines of Court opinions – attending especially to overlooked dissents and concurrences embracing the People’s narrative – we demonstrate how the Confederate narrative has subverted post-bellum ideals of human dignity and equal respect for all people. This demonstration is visually represented in an innovative, online series of doctrinal “maps” with links to significant judicial opinions.

Download the article from SSRN at the link.

Some Considerations on "Go Set a Watchman" From John Denvir

John Denvir has published a post on Go Set a Watchman here at his blog Guile Is Good.

Mining the Trial Reports of the Connecticut Colony

Jon C. Blue, a New Haven District Superior Court Judge, has published The Case of the Piglet's Paternity: Trials from the New Haven Colony, 1639-1663 (Wesleyan University Press) (Driftless Connecticut Series & Garnet Books). Here is a description of the contents from the publisher's website.

In the middle of the seventeenth century, judges in the short-lived New Haven Colony presided over a remarkable series of trials ranging from murder and bestiality, to drunken sailors, frisky couples, faulty shoes, and shipwrecks. The cases were reported in an unusually vivid manner, allowing readers to witness the twists and turns of fortune as the participants battled with life and liberty at stake. When the records were eventually published in the 1850s, they were both difficult to read and heavily edited to delete sexual matters. Rendered here in modernized English and with insightful commentary by eminent Judge Jon C. Blue, the New Haven trials allow readers to immerse themselves in the exciting legal battles of America’s earliest days. The Case of the Piglet’s Paternity assembles thirty-three of the most significant and intriguing trials of the period. As a book that examines a distinctive judicial system from a modern legal perspective, it is sure to be of interest to readers in law and legal history. For less litigious readers, Blue offers a worm’s eye view of the full spectrum of early colonial society—political leaders and religious dissidents, farmhands and apprentices, women and children.

The American Constitutional Identity

Oz Bassok, European University Institute Department of Law, is publishing Interpretative Theories as Roadmaps to American Identity in Global Constitutionalism (Forthcoming). Here is the abstract.

As long as the American Constitution serves as the focal point of American identity, many constitutional interpretative theories also serve as roadmaps to various visions of American constitutional identity. Using the debate over the constitutionality of the Patient Protection and Affordable Care Act, I expose the identity dimension of various interpretative theories and analyze the differences between the roadmaps offered by them. I argue that according to each of these roadmaps, courts’ authority to review legislation is required in order to protect a certain vision of American constitutional identity even at the price of thwarting Americans’ freedom to pursue their current desires. The conventional framing of interpretative theories as merely techniques to decipher the constitutional text or justifications for the Supreme Court’s countermajoritarian authority to review legislation and the disregard of their identity function is perplexing in view of the centrality of the Constitution to American national identity. I argue that this conventional framing is a result of the current understanding of American constitutional identity in terms of neutrality toward the question of the good. This reading of the Constitution as lacking any form of ideology at its core makes majority preferences the best take of current American identity, leaving constitutional theorists with the mission to justify the Court’s authority to diverge from majority preferences.

Download the essay from SSRN at the link.

Movies With an International Legal Slant

Lyo Louis-Jacques at the University of Chicago has posted this list of movies dealing with international legal issues to the International Law Librarians List (Int-Law).

Wonderful and helpful resources (both this list and the listserv).

Please send suggestions for updating the list to Professor Louis-Jacques at llou at uchicago.edu

Foreign, Comparative, and International Law and Justice on Film and TV:

An A to Z List

(compiled by Lyonette Louis-Jacques, August 2010 rev.)*

4 Months, 3 Weeks and Two Days (Romania, 2007)  http://www.imdb.com/title/tt1032846/

Drama about a woman who assists her friend to arrange an illegal abortion in 1980's Romania.

10e chambre, instants d'audience = The 10th Judicial Court: Judicial Hearings (France, 2004; Director: Raymond Depardon)

http://www.imdb.com/title/tt0395421/

The proceedings of a Paris courtroom are the grist for this documentary. Drawn from over 200 appearances before the same female judge, the director chooses a dozen or so varied misdemeanor and civil hearings to highlight the subtle details of human behavior. In the process he draws attention to issues of guilt, innocence, policing and ethnicity in France.

12 (Russia, 2007)  http://www.imdb.com/title/tt0488478/

12 jurors must decide the fate of a Chechen teenager charged with murdering his stepfather.

*The Advocate (UK/France, 1993; Director: Leslie Megahey; starring Colin Firth, Ian Holm, Donald Pleasence)

http://www.imdb.com/title/tt0107146/  http://www.law.berkeley.edu/library/dynamic/dvds.php

In medieval France, young lawyer Richard Courtois leaves Paris for the simpler life in the country.

***

Set in the 15th century, this is the story of a young lawyer-advocate whose quest for the simple life leads him to a position in a small rural village. Instead of the peaceful life, however, he finds more depravity and intrigue than in the city.

L’Affaire Lafarge = The Lafarge Case (France, 1938)

http://www.imdb.com/title/tt0028556/

The movie portrays Marie Chapelle, who was accused of having poisoned her husband Charles Lafarge in the 1850s. The grand-niece of Charles Lafarge sued the film producer for defamation of the memory of her grand-uncle.

Andaz (India, 1949; Director: Mehboob Khan)  http://www.imdb.com/title/tt0041123/

Andaz, one of Mehboob Khan’s great melodramas, exposes the anxiety unleashed by the prospect of gender equality after Independence. A westernized young woman (Nargis) encourages the love of an acquaintance (Dilip Kumar)

even though she is already engaged to another man (Raj Kapoor). The film’s casting, its thematic deployment of law as a source of restoring social order, and its

final scene—where husband and wife are separated as the heroine begins to serve her prison sentence—all deeply influenced Awāra. – Bollywood Law

Die Anwälte (Germany, 2009; documentary)(The Lawyers – A German Story, a movie about Otto Schily, Hans-Christian Stroebele, and Horst Mahler)

http://www.imdb.com/title/tt1439446/

Die Anwälte (Germany, ARD, 2008; TVseries; in 8 episodes; interestedlookatpracticeoflawin Germany) http://www.imdb.com/title/tt1167324/

*Ashita e no yuigon = Best Wishes for Tomorrow (Japan, 2007)  http://www.imdb.com/title/tt1052343/

A Japanese Class B war criminal sets out to take full responsibility for the execution of American Airmen…Lieutenant General Tasuku Okada.

Awara (India, Hindi, 1951; Director: Raj Kapoor; Top 3 Bollywood law movie; has long courtroom scene)

http://www.imdb.com/title/tt0043306/

Raju lives as a derelict as a result of being estranged from his bitter father, a district judge, who threw Raju's mother out of the house years ago...

Bamako (Mali/USA/France, 2006)(mock trial against the World Bank and the IMF by African civil society)

http://www.imdb.com/title/tt0814666/

Black and White (Australia/UK, 2002)  http://www.imdb.com/title/tt0299547/

Recreation of the landmark 1958 South Australian Court trial in which young aboriginal Max Stuart was sentenced to hang, having been found guilty of the murder of a nine year old white girl.

Bollywood Law: Commercial Hindi Films with Legal Themes (Michael H. Hoffheimer, 98 Law Library Journal 61 (2006)(list Top 3 movies, and Top 20 recommended Bollywood law films)  http://www.aallnet.org/products/pub_llj_v98n01/2006-03.pdf

Les bonnes causes = Don’t Tempt the Devil (France, 1963; Director: Christian-Jaque)  http://www.imdb.com/title/tt0132892/

Paul Dupré meurt soudainement suite à une injection faite par son infirmière, Gina Bianchi. Gina a été la maîtresse de Dupré et est accusée de l'avoir tué quand on découvre un testament qui la nomme héritière de tous ses biens. Catherine est par conte la femme de Dupré et en même temps la maîtresse de Maître Cassidi, à qui elle avoue d'être l'auteur du crime. Il commence ainsi un duel judiciaire, dans lequel ce qui compte ne sont pas les faits, mais leur interprétation et la capacité des deux avocats. Ce sera la justice qui gagnera ou bine l'habileté dans la manipulation des évènements?

*Breaker Morant (Australia, 1980)  http://www.imdb.com/title/tt0080310/  http://www.amazon.com/Breaker-Morant-Edward-

Woodward/dp/B000X73NCM/ref=sr_1_1?s=dvd&ie=UTF8&qid=1281028183&sr=1-1

Three Australian lieutenants are court martialed for executing prisoners as a way of deflecting attention from war crimes committed by their superior officers.

*The Castle (Australia, 1997; a comedy)  http://www.imdb.com/title/tt0118826/  http://en.wikipedia.org/wiki/The_Castle_(film)

The blue collar Kerrigan home is filled with love as well as pride in their modest lifestyle, but their happiness is threatened when developers attempt the compulsory acquisition of their house to expand the neighboring Melbourne Airport.

*China from the Inside (PBS, 2007; documentary; episode 4 focuses on freedom & justice)  http://www.pbs.org/kqed/chinainside/

Commis d’office (France, 2009; Director: Hannelore Cayre)  http://www.imdb.com/title/tt1179836/

http://www.rue89.com/la-bande-du-cine/2009/05/06/allez-consulter-un-avocat-commis-  doffice-au-cinema

“« Commis d'office » est un roman paru en 2004, qui faisait le point sur la loi française et la magistrature à l'époque de Dominique Perben et des lois Sarkozy sur le racolage passif. L'avocate pénaliste Hannelore Cayre y faisait une peinture au vitriol de la

« justice des pauvres et des proxos », du côté de l'avocat en même temps que du côté du mis en examen.”

Confronting the Truth (United States Institute of Peace, 2006; documentary on truth commissions)

http://www.law.berkeley.edu/library/dynamic/dvds.php

Shows how countries which have experienced massive human rights violations have created official, independent bodies known as truth commissions, and documents the work of these commissions in South Africa, Peru, East Timor, and Morocco.

Le Conseil Constitutionnel (France, 2010; videos of French constitutional council/court public hearings)

http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/videos/toutes-les-  videos.48281.html

The Constant Gardener (UK/Germany, 2005; starring Ralph Fiennes and Rachel Weisz)(English diplomat’s wife murdered in Kenya)

http://www.imdb.com/title/tt0387131/  http://www.law.berkeley.edu/library/dynamic/dvds.php

A widower is determined to get to the bottom of a potentially explosive secret involving his wife's murder, big business, and corporate corruption.

***

In a remote area of Northern Kenya, activist Tessa Quayle is found brutally murdered. Tessa's companion, a doctor, appears to have fled the scene, and all the evidence points to a crime of passion. Members of the British High Commission in Nairobi assume that Tessa's widower, their mild-mannered and unambitious colleague Justin Quayle, will leave the matter to them. Haunted by remorse and jarred by rumors of his late wife's infidelities, Quayle surprises everyone by embarking on a personal odyssey that will take him across three continents. Using his privileged access to diplomatic secrets, Justin  risks his own life and will stop at nothing to expose the truth - a conspiracy more far- reaching and deadly than Quayle could ever have imagined.

Le Corbeau (France, 1943; Director: Henri-Georges Clouzot)  http://www.imdb.com/title/tt0035753/

French village doctor becomes target of poison-pen letters sent to village leaders, accusing him of affairs and practicing abortion.

Courthouse on the Horseback 《马背 上的法庭》(China, 2006; Director: Liu Jie; Ma Bei Shang)

http://www.imdb.com/title/tt1064775/

The film follows three characters on a tour of the remote Yunman province of China where they travel with a horse to deal with legal disputes in mountain villages.

Government policy is forcing the retirement of "Auntie" Yang (Yang Yaning) and she will have to separate after years of professional partnership from Feng (Li Baotian). They are accompanied by her replacement, recent law school graduate Ah-Luo (Lu Yulai).

Un crime au Paradis = A Crime in Paradise (France, 2001; Director: Jean Becker)  http://www.imdb.com/title/tt0245530/

In the 1980 French countryside, farmer Jojo and his ill-tempered wife Lulu hate each other, though their respective interests speak against divorce. The only thing that keeps the oppressed Jojo from murder is the threat of the guillotine.

Crude (USA, 2009)(lawsuit by Ecuadorans against Chevron for oil spills in the Amazon)  http://www.imdb.com/title/tt1326204/

*Cry Freedom (UK, 1987; Director: Richard Attenborough; starring Denzel Washington and Kevin Kline

http://www.imdb.com/title/tt0092804/

South African journalist Donald Woods is forced to flee the country after attempting to investigate the death in custody of his friend the black activist Steve Biko.

*A Cry in the Dark (Australia/USA, 1988; Director: Fred Schepisi; starring Meryl Streep & Sam Neill)

http://www.imdb.com/title/tt0094924/

The story of a mother whose child was killed in an animal attack, only to have herself accused of the infant's murder.

Damini – Lightning (India, 1993)  http://www.imdb.com/title/tt0106655/

The theme revolves around the character Damini who represents truth and innocence. After her marriage in renowned wealthy family, Damini happens to see a cruel act done by her brother-in-law. She wants the pray to get justice, but the family including her husband opposes her, which leads her to quit the home. She is flanked

by a drunkard, an ex-advocate, who helps her in all respect to reach to her aim therefore justice.

Délits flagrants (France, 1994; Director: Raymond Depardon; documentary)  http://www.imdb.com/title/tt0109697/

This documentary is a collection of footage of 14 suspects being 'interviewed' by the deputy public prosecutors.

Divorce Iranian Style (Iran/UK, 1998; documentary  http://www.imdb.com/title/tt0166169/

Divorce - Italian Style = Divorzio all’italiana (Italy, 1961; starring Marcello Mastroianni)  http://www.imdb.com/title/tt0055913/

A married Sicilian baron falls in love with his cousin and vows to wed her, but with divorce illegal he must concoct a crime of passion to do away with his wife.

Do Ustad (India, 1959; starring Raj Kapoor)  http://www.imdb.com/title/tt0135399/

From its opening image of a courthouse, director Tara Harish’s Do Ustad

signals that it is modeled on Awāra. Like its model, the narrative emerges as flashback from a criminal trial. Jagannath (Sheik Mukhtar), defended by his younger

brother (Raj Kapoor), confesses to killing but insists social conditions forced him to the deed: “I wasn’t born a murderer.” – Bollywood Law

Le dossier noir = Black Dossier/The Black File (France/Italy, 1955; Director: André Cayatte)  http://www.imdb.com/title/tt0048011/

About the difficulties of being a sentencing judge – André Bazin  http://www.brightlightsfilm.com/64/64bazinfrenchcinema.html

En cas de malheur = Love Is My Profession (France/Italy, 1958; Director: Claude Autant-Lara; starring Brigitte Bardot and Jean Gabin)

http://www.imdb.com/title/tt0051579/

Married French lawyer Andre defends successfully the case of Yvette, who committed a robbery. He falls in love with her, but she isn't true to him.

En plein coeur = In All Innocence (France, 1998; Director: Pierre Jolivet)  http://www.imdb.com/title/tt0150464/

Cécile and Samira can't pay their expensive Paris rent. Walking down the street the two girls see an art gallery reception and finesse their way in. In attendance are Michel Farnèse, a very well-to-do corporate lawyer, and his wife Viviane, an artist… Cécile needs to find a lawyer…Michel agrees to take the case, since Cécile comes from the same poor neighbourhood he worked his way out of.

The Face of AIDS (2007)(Malawi)  http://www.law.berkeley.edu/library/dynamic/dvds.php

'The face of AIDS' shines a light on the stigma and discrimination suffered by women living with HIV/AIDS in Malawi ... These conditions persist despite Malawi's commitments under international law to protect people living with HIV/AIDS from discrimination.

Four Days in September = O Que É Isso, Companheiro? (Brazil/USA, 1997; starring Alan Arkin)  http://www.imdb.com/title/tt0119815/

Fernando, a journalist, and his friend César join terrorist group MR8 in order to fight Brazilian dictatorial regime during the late sixties. Cesare, however, is wounded and captured during a bank hold up. Fernando then decides to kidnap the American ambassador in Brazil and ask for the release of fifteen political prisoners in exchange for his life.

Franz Fuchs – Ein Patriot (Austria, 2007; TV semidocumentary about a “xenophobic bomb planter” in the 1990s)

http://www.imdb.com/title/tt1104065/

The French Criminal Trial (Cornell University Law School; video segments under each actor)  http://legal1.cit.cornell.edu/court_trials/criminal/index.htm

*Gandhi (UK/India, 1982; Director: Richard Attenborough; starring Ben Kingsley, etc.)  http://www.imdb.com/title/tt0083987/

Biography of Mahatma Gandhi, the lawyer who became the famed leader of the Indian revolts against the British through his philosophy of non-violent protest.

Garde à vue (France, 1981; Director: Claude Miller)  http://www.imdb.com/title/tt0082436/

A police inspector, suspecting an attorney of two child sex murders, has him held for a questioning session that goes on for hours.

Goodbye Baby (2005)(Guatemala)  http://www.law.berkeley.edu/library/dynamic/dvds.php

The number of adoptions from Guatemala to the US has risen dramatically in recent years, as has the controversy. What is seen as an act of love by adoptive parents is viewed with suspicion inside Guatemala, and the film examines the ramifications that money, private lawyers, media coverage and women's rights have on the adoption process…intercountry adoption.

L’Habit vert (France, 1937; Director: Roger Richebé)  http://www.imdb.com/title/tt0150807/

Hail, the Judge! = Jiu pin zhi ma guan: Bai mian Bao Qing Tian  (Hong Kong/China, Cantonese, 1994; starring Stephen Chow)(comedy)

http://www.imdb.com/title/tt0110201/

Pao Lung-Sing, a descendant of the famous Judge Pao Ching Tient, is a 9th degree corrupt judge…

Human Rights in China: The Search for Common Ground (Sacred Mountain Productions, 2004; documentary)

http://www.sacred-mountain.com/movies/humanrights.shtml

Ich klage an = I accuse (Germany, 1941)(jury room debate on euthanasia)  http://www.imdb.com/title/tt0033750/

In Search of International Justice (2005)  http://www.law.berkeley.edu/library/dynamic/dvds.php

Discusses the evolution of the International Criminal Court (ICC), the world's first, permanent, international judicial body capable of prosecuting individuals accused of genocide, war crimes, and crimes against humanity when national courts are unable  or unwilling to do so. The film travels to Kosovo, northern Uganda, Iraq, Rwanda and Darfur, focusing on offenses that have or could have fallen under the ICC's jurisdiction. The film also discusses the United States' current opposition to the ICC.

*In the Name of the Father (Ireland/UK, 1993; Director: Jim Sheridan; starring Daniel Day- Lewis and Emma Thompson)

http://www.imdb.com/title/tt0107207/

Man's coerced confession to an IRA bombing he didn't do imprisons his father as well; a British lawyer helps fight for their freedom.

In the Tall Grass (2006)(Rwanda)  http://www.law.berkeley.edu/library/dynamic/dvds.php

Focuses on the Hutu and Tutsi as they struggle through Rwanda's unique reconciliation process: Gacaca, a network of grassroots community courts.

In This World (2002)  http://www.law.berkeley.edu/library/dynamic/dvds.php

Tells of the hazardous journey of two Afghan boys as they travel from Pakistan through Iran, Turkey, Italy, France and the UK in search of refuge in London, revealing the desperate measures people take to escape persecution and life-threatening conditions.

Les inconnus dans la maison = Strangers in the House (France, 1942; Director: Henri Decoin)  http://www.imdb.com/title/tt0034893/

“A former lawyer,[Hector Loursat], called it quits when his wife left him; and now, he lives with his daughter whom he does not seem to love very much. Then he discovers  a dead body in his house. The girl and her pack of youngsters are involved. But he acts as like he doesn't care. He agrees to defend the suspect, his daughter's boyfriend.”

L’Ivresse du pouvoir = Comedy of Power (France/Germany, 2006; Director: Claude Chabrol; starring Isabelle Huppert)

http://www.imdb.com/title/tt0463486/

A magistrate investigates a corporate executive.

Judge 《透析》(China, 2009; Director: Liu Jie)  http://www.imdb.com/title/tt1499698/

A man sentenced death for stealing two cars looks to avoid execution in China.

***

“*A+ great movie and a super look into several grave issues in China's criminal justice system; corruption, death penalty and court control.  Although the story is set in 1997 (based on a real case), the movie concerns questions that are just as pertinent today.”

The Judge = Domaren (Sweden, 1960)  http://www.imdb.com/title/tt0053781/

Krister and his fiancée Brita return to Stockholm after a stay in Italy. Shortly upon their return Krister learns that all his assets left to him by his father has disappeared.

Together with Brita he tries to obtain justice in a aristocratic and corrupt legal system.

*Judgment at Nuremberg = Urteil von Nürnberg (USA, 1961; Director: Stanley Kramer; stars Maximilian Schell, Spencer Tracy, Marlene Dietrich, Burt Lancaster, Richard Widmark, Judy Garland, Montgomery Clift, Werner Klemperer, and William Shatner)  http://www.imdb.com/title/tt0055031/

In 1948, an American court in occupied Germany tries four Nazi judges for war crimes.

Le Juge = The Judge (France, 1984; Director: Philippe Lefebvre)  http://www.imdb.com/title/tt0087515/

Le juge et l’assassin = The Judge and the Assassin (France, 1976; Director: Bertrand Tavernier)  http://www.imdb.com/title/tt0073219/

France, 1893. Joseph Bouvier, a former Sergeant in the French military, shoots his beloved and attempts to kill himself. Having survived with two bullets in his brain, he is released from the Dole medical facility, a place of mental and physical filthiness.

Then begins a five-year period of wandering on the roads of the South East of France, during which Bouvier rapes and eventually kills two dozen defenseless shepherds and farm servants of both sexes. Judge Rousseau thinks this case would help his career as a right wing politician and therefore issues warrants of arrests to find any hobo fitting the description. But if Bouvier was declared insane, the Judge's plan may become a trap...

Le juge Fayard dit le Shériff = Judge Fayard Called the Sheriff (France, 1977; Director: Yves Boisset)

http://www.imdb.com/title/tt0076242/

Justice est faite = Justice Is Done (France, 1950; Director: André Cayatte)  http://www.imdb.com/title/tt0042625/

Know as "Justice Is Done" in 1953 when it was first shown in the USA, it opens with a short briefing in English on the French jury system and then reverts to French with English subtitles. The Marshal summons the jury and an insight is given into the background of the seven jurors who are to decide on the guilt of the accused, a sick man's mistress on trail for his mercy killing. The trial appears to be not presented to prove her innocence or guilt, but rather to let the court (film) philosophize on the moral acceptability of euthanasia.

Justice, My Foot! = Sam gei goon (Hong Kong/China, Cantonese, 1992; starring Stephen Chow)  http://www.imdb.com/title/tt0105385/

Justiz (Switzerland/Germany, 1993; writer: Friedrich Dürrenmatt)  http://www.imdb.com/title/tt0107296/

Senator Isaak Kohler shoots and kills Professor Winter in a crowded restaurant, while Winter is dining with the struggling idealistic young lawyer...

Kanoon (India, 1960)  http://www.imdb.com/title/tt0053985/

A murder mystery, told with the help of five characters - or six if you count the dead man.

Karakter (Netherlands/Belgium, 1997; Director: Mike van Diem)  http://www.imdb.com/title/tt0119448/

Jacob Katadreuffe lives mute with his mother, has no contact with his father who only works against him and wants to become a lawyer, at all costs.

Khuda Kay Live (Pakistan, 2007)(Muslim Pakistanis after 9/11)  http://www.imdb.com/title/tt1068956/  http://www.law.berkeley.edu/library/dynamic/dvds.php

Lawyer, Lawyer = Suen sei cho (Hong Kong/China, Cantonese, 1997; starring Stephen Chow of “Kung Fu Hustle” fame)

http://www.imdb.com/title/tt0133059/

The Lemon Tree (Israel/Germany/France, 2008)  http://www.imdb.com/title/tt1172963/

http://www.amazon.com/Lemon-Tree-Etz-Limon-  Region/dp/B002BZTOEU/ref=sr_1_2?s=dvd&ie=UTF8&qid=1281028055&sr=1-2

The story of a Palestinian widow who must defend her lemon tree field when a new Israeli Defense Minister moves next to her and threatens to have her lemon grove torn down.

*Let Him Have It (UK/France, 1991)  http://www.imdb.com/title/tt0102288/  http://www.law.berkeley.edu/library/dynamic/dvds.php

The shocking story of an unbelievable miscarriage of justice…In 1950s England, slow-

witted Derek Bentley falls in with a group of petty criminals led by Chris Craig, a teenager with a fondness for American gangster films.

Liebling-Kreuzberg (Germany, 1986; comedy TV series with Manfred Krug playing Robert Liebling, a lawyer in Kreuzberg; called “Schulfernsehen” by law school students)  http://www.imdb.com/title/tt0090472/

*The Lives of Others = Das Leben der Anderen (Germany, 2006)  http://www.imdb.com/title/tt0405094/

In 1984 East Berlin, an agent of the secret police [public prosecutor], conducting surveillance on a writer and his lover, finds himself becoming increasingly absorbed by their lives.

*“M” (Germany, 1931; Director: Fritz Lang; starring Peter Lorre)  http://www.imdb.com/title/tt0022100/

When the police in a German city are unable to catch a child-murderer, other criminals join in the manhunt.

*A Man for All Seasons (UK, 1966)  http://www.imdb.com/title/tt0060665/  http://www.law.berkeley.edu/library/dynamic/dvds.php

The story of Thomas More, who stood up to King Henry VIII when the King rejected the Roman Catholic Church to obtain a divorce and remarriage.

***

Chancellor of England, Sir Thomas More, is placed in a difficult position when Henry VIII breaks with the Catholic Church over its refusal to annul his marriage to Katherine of Aragon so he can marry Anne Boleyn. Henry demands More's endorsement of this act. Torn between his conscience and duty to the crown, Sir Thomas chooses to say nothing.

Maria Full of Grace (Colombia/US/Ecuador, 2004; Director: Joshua Marston)(Colombia)  http://www.imdb.com/title/tt0390221/

Maria, a poor Colombian teenager, is desperate to leave a soul-crushing job. She accepts an offer to transport packets of heroin -- which she swallows - - to the United States. The ruthless world of drug trafficking proves to be more than for which she bargained.

A Matter of Life and Death (UK, 1946; starring David Niven; also called Stairway to Heaven)(fantasy legal system)

http://www.imdb.com/title/tt0038733/  http://www.law.berkeley.edu/library/dynamic/dvds.php

Watch: http://www.archive.org/details/A_Matter_of_Life_and_Death

A British wartime aviator who cheats death must argue for his life before a celestial court.

Midnight Express (USA/UK, 1978)(Turkey)  http://www.imdb.com/title/tt0077928/

Billy Hayes is caught attempting to smuggle drugs out of Turkey. The Turkish courts decide to make an example of him, sentencing him to more than 30 years in prison. Hayes has two opportunities for release: the appeals made by his lawyer, his family, and the American government, or the "Midnight Express".

Moksha: Salvation (India, 2001)  http://www.imdb.com/title/tt0301240/

Appalled at the manner lawyers treat less affluent people, Vikram Saigal decides to do something for the poor...

*The Motorcycle Diaries (Argentina/USA/Chile/Peru/Brazil/UK/Germany/France, 2004; starring Gael García Bernal):

http://www.imdb.com/title/tt0318462/

Deals with Che Guevara's trip through Latin America.  Encounters issues of indigenous and human rights.

*Music Box (USA, 1989; Director: Costas-Gavras; starring Jessica Lange)(Hungarian immigrant in U.S. accused of war crimes is defended by lawyer-daughter)  http://www.imdb.com/title/tt0100211/

*The Name of the Rose = Der Name der Rose (France/Italy/Germany, 1986; Director: Jean- Jacques Annaud: starring Sean Connery & Christian Slater)  http://www.imdb.com/title/tt0091605/

1327: after a mysterious death in a Benedictine Abbey, the monks are convinced that the apocalypse is coming. With the Abbey to play host to a council on the Franciscan's Order's belief that the Church should rid itself of wealth, William of Baskerville, a respected Franciscan monk, is asked to assist in determining the cause of the untimely death. Alas, more deaths occur as the investigation draws closer to uncovering the secret the Abbey wants hidden, and there is finally no stopping the Holy Inquisition

from taking an active hand in the process. William and his young novice must race against time to prove the innocence of the unjustly accused and avoid the wrath of Holy Inquisitor Bernardo Gui.

*Nuremberg (Canada/USA, 2000; TV mini-series starring Alec Baldwin)  http://www.imdb.com/title/tt0208629/

The dramatized account of the war crime trials following the defeat of Nazi Germany in World War II.

The Official Story = La historia oficial (Argentina, 1985)  http://www.imdb.com/title/tt0089276/

Alicia Marnet de Ibáñez is a high school history professor and a well-to-do housewife in Buenos Aires, circa 1983, after the fall of the "junta militar" that had taken over the government since 1976. She has a husband, Roberto, who is a successful lawyer and a five-year-old adopted daughter.

***

Alicia is blissfully ignorant about what happened in the military coup until one of her history students asks her if she only believes what the history books say. She embarks on a mission to find if her daughter is the daughter of one of the women who disappeared during the coup. When her husband finds out, he does everything in his power to prevent her from finding the truth, but she's determined and nothing he does is going to stop her.

*Paper Dolls = Bubot Niyar (USA/Israel/Switzerland, 2006; Director: Tomer Heymann; documentary) (Philippines, Israel immigration)

http://www.imdb.com/title/tt0783681/

Passport to Pimlico (UK, 1949; Director: Henry Cornelius)  http://www.imdb.com/title/tt0041737/

Residents of a part of London declare independence, when they discover an old treaty [that proves it is part of the medieval kingdom of Burgundy]. This leads to the need for a 'Passport to Pimlico'.

The Passion of Joan of Arc = La passion de Jeanne d'Arc (France, 1928; Director: Carl Theodor Dreyer; starring Maria Falconetti)(courtroom drama)

http://www.imdb.com/title/tt0019254/

A chronicle of the trial of Jeanne d'Arc on charges of heresy, and the efforts of her ecclesiastical jurists to force Jeanne to recant her claims of holy visions.

*Paths of Glory (USA, 1957; Director: Stanley Kubrick; starring Adolphe Menjou and Kirk Douglas)(court-martial before a military tribunal in France)  http://www.imdb.com/title/tt0050825/

The futility and irony of the war in the trenches in WWI is shown as a unit commander in the French army must deal with the mutiny of his men and a glory-seeking general after part of his force falls back under fire in an impossible attack.

*The People’s Court (PBS “Wide Angle”, 2007)(law of China)  http://www.pbs.org/wnet/wideangle/episodes/the-peoples-court/introduction/162

*Praying in Her Own Voice (Israel, 2007; documentary)  http://www.imdb.com/title/tt1020986/

This powerful film documents the courageous struggle of a religious female's group called Women of the Wall movement for equality next to the wailing wall, perhaps the holiest place on earth for Jews.

Le président Haudecœur (France, 1940; Director: Jean Dréville; comedy)  http://www.imdb.com/title/tt0198935/

A public prosecutor wants his son to marry an ugly girl(who has a squint) because her mom is very rich.But it's too late for the boy has already fallen in love with another girl who is pregnant by him.Angry dad is to stop his shameless son's allowance.

La présidente (France, 1938; Director: Fernand Rivers; comedy)  http://www.imdb.com/title/tt0160709/

Der Prozeß (Austria, 1948)  http://www.imdb.com/title/tt0040714/

Historical (XIX. century) court process: Jewish community accused of ritual murdering Esther Solymosi.

Rabbit-Proof Fence (Australia, 2002)  http://www.imdb.com/title/tt0252444/

If you were kidnapped by the government, would you walk the 1500 miles back home?... In 1931, three aboriginal girls escape after being plucked from their homes to be trained as domestic staff and set off on a trek across the Outback.

*Rashomon (Japan, 1950; Director: Akira Kurosawa; starring Toshiro Mifune)  http://www.imdb.com/title/tt0042876/

Set in the Middle Ages, the nature of truth and subjective reality are probed in a series of flashbacks from four viewpoints to present the case history of a man's murder and the rape of his wife by a bandit.

The Reader (USA/Germany, 2008; starring Ralph Fiennes and Kate Winslet)  http://www.imdb.com/title/tt0976051/  http://www.law.berkeley.edu/library/dynamic/dvds.php

Post-WWII Germany: Nearly a decade after his affair with an older woman came to a mysterious end, law student Michael Berg re-encounters his former lover as she defends herself in a war-crime trial.

A Reasonable Man (South Africa, 1999; Director: Gavin Hood)  http://www.imdb.com/title/tt0178860/

A Reasonable Man tells the story of a city lawyer who comes across the case of a herdboy from remote, rural Zululand, who has killed a one year old baby in the mistaken belief that he was killing an evil spirit, known throughout Southern Africa as the "Tikoloshe". Dark Secrets which lie buried deep within the lawyer connect him to the boy. He takes the case and enters a world of African witchcraft and mysticism to discover the truth about the killing - and himself.

“*B+ased on a true story of a young black South African man who stands trial for the murder of an infant, whom he mistook for an evil spirit. The lawyer who defends him is plagued by his own demons. The film was made by, and stars, Gavin Hood (of Tsotsi fame).”

The Reckoning: The Battle for the International Criminal Court (USA, 2009)  http://www.imdb.com/title/tt1212439/  http://www.law.berkeley.edu/library/dynamic/dvds.php

*Red Corner (USA, English & Mandarin, 1997; starring Richard Gere & Bai Ling)(American lawyer in China)

http://www.imdb.com/title/tt0119994/

Le retour de Martin Guerre = The Return of Martin Guerre (France, 1982; starring Gérard Depardieu)(“false impersonation in medieval times in the framework of a court session”)  http://www.imdb.com/title/tt0084589/

Robe rouge (France, 1933)  http://www.imdb.com/title/tt0191404/

*Rome (UK/USA, 2005-2007; TV series)  http://www.imdb.com/title/tt0384766/

The subject of an American Association of Law Libraries (AALL) program called “Rome: The Power of Film to Teach Foundations of Roman and Civil Law”. Betsy Chessler reported on the program in the Sept/Oct 2007 issue of the AALL Spectrum:  Making Rome Come to Life. The program included a clip on the murder trial of Titus Pullo.

***

A down-to-earth account of the lives of both illustrious and ordinary Romans set in the last days of the Roman Republic.

*Rumpole of the Bailey (UK, 1978-1992; TV series)(criminal law barrister)  http://www.imdb.com/title/tt0078680/

Sacco e Vanzetti (Italy/France, 1971; Director: Giuliano Montaldo; starring Gian Maria Volonté)  http://www.imdb.com/title/tt0067698/

The story of two anarchists who were charged and unfairly tried for murder when it was really for their political convictions.

The Secret in Their Eyes = El secreto de sus ojos (Argentina/Spain, 2009)  http://www.imdb.com/title/tt1305806/

A retired legal counselor writes a novel hoping to find closure for one of his past unresolved homicide cases and for his unreciprocated love with his superior - both of which still haunt him decades later.

Seoul Train (USA, 2004)(North Korean refugees living underground in China)  http://www.imdb.com/title/tt0402492/  http://www.law.berkeley.edu/library/dynamic/dvds.php

The gripping documentary exposé into the life and death of North Koreans as they try to escape their homeland and China.

Sisters-In-Law (Cameroon/UK, 2005; documentary)  http://www.imdb.com/title/tt0474361/

Set in Kumba in South West Cameroon Sisters in Law follows Adultery, Rape and Abuse cases led by a Female Judge.

*Sore de mo boku wa yattenai = I Just Didn't Do It (Japan, 2006)(sexual harassment in Japan)  http://www.imdb.com/title/tt0794350/

(Soredemo boku wa yattenai)

A young man is falsely accused of molesting a high-school girl on a train. He is arrested and charged, and goes through endless court sessions, all the while insisting that he is innocent.

State of Fear (USA, 2005)(Peruvian Truth and Reconciliation Commission)  http://www.law.berkeley.edu/library/dynamic/dvds.php

The Peruvian Truth and Reconciliation Commission's official report chronicles the atrocities of both sides during the twenty year war between Abimael Guzman's revolutionary "Shining path" Indian guerrilla movement and the establishment governments. The Commission presents an alternate lens through which citizens of Peru can evaluate the inequalities their Indian people sought to address and the inevitable ravages modern terrorism brings to everyone.

The Stoning of Soraya M. (USA, 2008)(Iran)  http://www.imdb.com/title/tt1277737/  http://www.law.berkeley.edu/library/dynamic/dvds.php

When a journalist is stranded in her remote village, Zahra takes a bold chance to reveal what the villagers will stop at nothing to keep hidden. Thus begins the remarkable story of what happened to Soraya, a kind-spirited woman whose bad marriage leads her cruel, divorce-seeking husband to trump up false charges of infidelity, which carry an unimaginable penalty.

***

A drama set in 1986 Iran and centered on a man, Sahebjam, whose car breaks down in a remote village and enters into a conversation with Zahra, who relays to him the story about her niece, Soraya, whose arranged marriage to an abusive tyrant had a tragic ending.

Storm (Germany/Denmark/Netherlands, 2009; Director: Hans-Christian Schmid; the workings of the International Criminal Tribunal for Yugoslavia/ICTY)  http://www.imdb.com/title/tt0768239/  http://www.filmmovement.com/filmcatalog/index.asp?MerchandiseID=207

*The Story of Qiu Ju = Qiuju da guan si  (China/Hong Kong, 1992; Director: Zhang Yimou; starring Gong Li)

http://www.imdb.com/title/tt0105197/  http://www.law.berkeley.edu/library/dynamic/dvds.php

In a small Chinese village a farmer (Qing Lai) and his chief quarrel over land. When Qing Lai is injured by the chief, who kicks him in the groin, Qing's wife Qiu Ju begins a quixotic odyssey that takes her from her small village to the provincial capital. She is relentless in her one-woman crusade to wreak a simple justice from the proud Chief ... she wants him to apologize.

The Story of Women = Une affaire des femmes (France, 1988; Director: Claude Chabrol; starring Isabelle Huppert)

http://www.imdb.com/title/tt0096336/

Based upon the true story of Marie-Louise Giraud, a French woman put to death for performing unlawful abortions.

Taishi Village (China, 2005; documentary)  http://www.youtube.com/watch?v=jj6tmPyx98Y

Tai Shi Village follows the famous events when villagers of Tai Shi, in suburban Guangzhou, tried to remove the appointed local officials. The villagers suspected that their land was illegally taken away by the local authorities. Shot under                                                               dangerous conditions, the film reflects vividly the growing number of serious conflicts in rural China.

The Tank Man (PBS “Frontline”, 2006; documentary on unarmed young man who stood his ground before tanks on the Avenue of Eternal Peace, June 5, 1989, China)  http://www.pbs.org/wgbh/pages/frontline/tankman/

Taxi to the Dark Side (2007)(investigation of torture and killing of Afghani taxi driver)  http://www.law.berkeley.edu/library/dynamic/dvds.php

*A Taxing Woman = Marusa no onna (Japan, 1987)  http://www.imdb.com/title/tt0093502/

Ryoko Itakura is a government tax agent who has just landed a big promotion. Her first assignment is to catch wheeler-dealer Hideki Gondo…

La tête des autres (France, 1973; written by Marcel Aymé)  http://www.imdb.com/title/tt0321330/

Frédéric Maillard is a procurer: the French court system's equivalent of an assistant district attorney… Frédéric convinced a jury to convict Valorin purely by means of his own eloquence [no evidence]. Valorin has received the death sentence. The victory party is so jubilant that none of the celebrants is particularly disturbed when news

arrives that Valorin has escaped. Guess who's coming to dinner. Valorin arrives chez Maillard, and proceeds to hold everyone prisoner. Now, they will listen to him ... or else.

The Tokyo Trial = Dongjing Shenpan (China, 2006)  http://www.imdb.com/title/tt0884868/

*Traffic (USA/Germany, 2000; Director: Steven Soderbergh; writer: Simon Moore, miniseries, Traffik; starring Michael Douglas and Benicio Del Toro)(Mexico-U.S.)  http://www.imdb.com/title/tt0181865/

A conservative judge is appointed by the President to spearhead America's escalating war against drugs, only to discover that his teenage daughter is an addict.

*The Trial (France/Germany/Italy, 1962; Director: Orson Welles; starring Anthony Perkins and Jeanne Moreau)

http://www.imdb.com/title/tt0057427/

An unassuming office worker is arrested and stands trial, but he is never made aware of his charges.

TheTrialof Joanof Arc = Procès de Jeanne d'Arc (France, 1962) http://www.imdb.com/title/tt0059616/

A reconstruction of the trial of Joan of Arc (based entirely on the transcripts of the real- life trial)...

The Unwritten Law = Fat ngoi ching (Hong Kong/China, Cantonese, 1985; starring Andy Lau)  http://www.imdb.com/title/tt0121259/

Andy Lau plays a brand new attorney, just back from England, who defends a prostitute accused of killing a high society playboy.

*Veer-Zaara (India, 2004; Top 3 Bollywood law movie)  http://www.imdb.com/title/tt0420332/

http://www.amazon.com/Veer-Zaara-Shahrukh-  Khan/dp/B0007V6MJA/ref=sr_1_25?s=dvd&ie=UTF8&qid=1281028621&sr=1-25

Squadron Leader Veer Pratap Singh is a rescue pilot with the Indian Air Force, who risks his own life to save the lives of others. One day, on duty, he comes across a stranded Zaara... a girl from Pakistan. Zaara, a carefree, sprightly girl has come to India to fulfill her surrogate mother's dying wish. She meets with a bus accident leaving her stranded

in a foreign land. Veer saves her life... and his life is never the same again... Twenty-two years later, Saamiya Siddiqui, a Pakistani lawyer on her first case, finds herself face-to- face with an ageing Veer Pratap Singh. He has languished in a Pakistan jail cell for 22 years and has not spoken to anyone all these years - and no one knows why. Her  mission is to discover the truth about Veer and see to it that justice is served. And thus starts her journey to unveil the truth... the story of Veer and his life... Why has Veer been silent for 22 years? Why is he in a jail in Pakistan? Where is Zaara? What happened to her? God has written the destinies of Veer and Zaara, such that they can never be joined together. Saamiya has come to change that... to join Veer and Zaara together... forever...

*Vera Drake (UK/France, 2004; starring Imelda Staunton)  http://www.imdb.com/title/tt0383694/

http://www.law.berkeley.edu/library/dynamic/dvds.php

Abortionist Vera Drake finds her beliefs and practices clash with the mores of 1950s Britain--a conflict that leads to tragedy for her family.

La Vérité = Die Wahrheit = The Truth (France/Italy, 1960; Director: Henri-Georges Clouzot; starring Brigitte Bardot)

http://www.imdb.com/title/tt0054452/

Dominique Marceau is on trial for the murder of Gilbert Tellier. The counsels duel relentlessly, elaborating explanations for why the pretty…

Volver (Spain, 2006; Director: Pedro Almodóvar; starring Penélope Cruz)  http://www.imdb.com/title/tt0441909/  http://www.imdb.com/title/tt0441909/plotsummary

“Involves the cover-up of what probably would be a justifiable homicide.  Young girl murders her stepfather when he is drunk and attempted to rape her.”

Widow of Saint- Pierre = La veuve de Saint-Pierre (France/Canada, 2000; starring Juliette Binoche and Daniel Auteuil)

http://www.imdb.com/title/tt0191636/

In 1849, in the Archipelago of Saint-Pierre et Miquelon, the drunken Ariel Neel Auguste and his partner Louis Ollivier kill for a futile motive (to see if he is fat or just big) the fishing boat captain Coupard. Nell, who stabbed the victim, is sentenced to die with his head severed in the guillotine while Louis is sentenced to hard labor. During the transportation to the prison under the custody of Captain Jean, there is an accident and Louis dies. While spending his days in the cell waiting for the guillotine and the

executioner, Neel is invited by the captain's wife Mrs. Pauline to help her in her garden and becomes her protégé. Later he has a process of rehabilitation helping the locals in minor works and becomes very popular in the island…

The Winslow Boy (UK, 1948; Director: Anthony Asquith; starring Robert Donat)  http://www.imdb.com/title/tt0040970/  http://www.law.berkeley.edu/library/dynamic/dvds.php

In Edwardian England, a thirteen year-old cadet, Ronnie Winslow, is expelled from the naval academy at Osborne for stealing a seven shilling postal order. His father and sister become obsessed with proving his innocence at any cost to themselves, and turn the case into a national cause celebre.

*The Winslow Boy (UK/USA, 1999; Director: David Mamet)  http://www.imdb.com/title/tt0155388/

Early 20th century England: while toasting his daughter Catherine's engagement, Arthur Winslow learns the royal naval academy expelled his 14-year-old son, Ronnie, for stealing five shillings. Father asks son if it is true; when the lad denies it, Arthur risks fortune, health, domestic peace, and Catherine's prospects to pursue justice. After defeat in the military court of appeals, Arthur and Catherine go to Sir Robert Morton, a brilliant, cool barrister and M.P., who examines Ronnie and suggests that they take the matter before Parliament to seek permission to sue the Crown…

*Witness for the Prosecution (USA, 1957; Director: Billy Wilder; starring Tyrone Power, Marlene Dietrich!, Charles Laughton, and Elsa Lanchester)  http://www.imdb.com/title/tt0051201/

Agatha Christie tale of a man on trial for murder: a trial featuring surprise after surprise.

Z (France/Algeria, 1969; Director: Costa-Gavras; stars Yves Montand, Irene Papas, and Jean- Louis Trintignant)(Greece)

http://www.imdb.com/title/tt0065234/

Following the murder of a prominent leftist, an investigator tries to uncover the truth while government officials attempt to cover up their roles.

Der zerbrochene Krug (Germany, 1937)(about a village judge and the case of a broken jug)  http://www.imdb.com/title/tt0029817/

Resources

Bollywood Law: Commercial Hindi Films with Legal Themes (Michael H. Hoffheimer, 98 Law Library Journal 61 (2006)(list Top 3 movies, and Top 20 recommended Bollywood law films)  http://www.aallnet.org/products/pub_llj_v98n01/2006-03.pdf

DVD Movies at D’Angelo Law Library

http://www.lib.uchicago.edu/e/law/using/dvd.html

International Law and Films (Institute for International Law and Justice, New York University School of Law, 2007-2008)

http://iiljfilms.blogspot.com/2008_02_01_archive.html

International Law on Film (Anthony Chase, 2000)  http://tarlton.law.utexas.edu/lpop/etext/lsf/chase24.htm

La justice au cinéma (Jean Tulard, April 3, 2006)  http://www.canalacademie.com/ida968-La-justice-au-cinema.html (audio file, 57 mins.)

http://www.asmp.fr/travaux/communications/2006/tulard.htm (excerpts from presentation)

La représentation de la justice au cinema (Institut du droit de la culture, June 23, 2003)  http://www.institut-culture.org/index.php/fr/ressources/dossiers-juridiques/260-la-  representation-de-la-justice-au-cinema

Movie Night @ YLS (Yale Law Library)  http://m-library.law.yale.edu/movie_night

*This list was compiled from suggestions from subscribers to the Int-Law <  http://listserver.ciesin.columbia.edu/cgi-bin/wa?A0=Int-Law> email list for exchange of foreign, comparative and international legal information, and Twitter colleagues. The plot summaries are mainly from IMDB, Berkeley Law library, and individual colleagues. Asterisked (*) titles are in the D’Angelo Law Library DVD Collection.