The CSA's Legal History

G. Edward White, University of Virginia School of Law, has published Recovering the Legal History of the Confederacy as Virginia Public Law and Legal Theory Research Paper No. 2011-11. Here is the abstract.

Although the government of the Confederate States of America has been formally treated as a legal nullity since 1878, from February, 1861 to April, 1865 the Confederacy was a real government, with a Constitution, a Congress, district courts, and administrative offices. This Article seeks to recover the legal order of the Confederacy in its robust state, before the prospect of its obliteration came to pass.

The Article explores the question why certain southern states would have considered seceding from the United States, and forming a separate nation, in late 1860 and early 1861. It then turns to the legal order of the Confederacy that was erected after secession. If focuses on two characteristics of that legal order: its architecture, including the drafting of the Confederate Constitution, the establishment of Confederate district courts, and the failure of the Confederate Congress to organize a Supreme Court for the Confederacy; and the central legal issues with which the Confederate government was preoccupied. The Article concludes that in the minds of contemporaries, the outcome of the Civil War and the dissolution of the Confederacy that accompanied it represented a transformative phase in American history, in which the way of life that the Confederacy symbolized was confined to oblivion.

Download the paper from SSRN at the link.

UCLA Conference On Pedro Almodovoar

UCLA's New Center for Psychoanalysis is hosting a conference devoted to the films of Pedro Almodovor, Mirrors of the Heart: The Films of Pedro Almodovar. It takes place April 16. Says coordinator Dr. Thomas Brod, "These films are like dreams...There's anxiety in small measures, and you're always in identification with the characters, no matter what they're doing. It's open to all sorts of possibilities. The visual qualities are so exciting, and there's plenty to chew on psychoanalytically. So we like to have psychoanalysts from many different kinds of theoretical perspectives discussing it."

While the experts at this conference don't seem to have the intersection of psychoanalysis and law directly in their sights, I would think that that intersection would be interesting to examine, particularly considering Mr. Almodovor's subjects. Notes another speaker, Dr. Sandra E. Fenster, at the upcoming conference, "Voyeurism, blackmail, unconscious fantasy, early relationships that persist in an adult's mind -- his films really capture that." She will be discussing the film Broken Embraces (2009) "to illustrate obsessive love triangles and jealous revenge."


Last year's conference centered on Charlie Kaufman (Being John Malkovich, Eternal Sunshine of the Spotless Mind).

Garrow the Lawyer

The first season of Garrow's Law, the popular BBC series based on the life of eighteenth century barrister William Garrow, is now available in the U.S. U.K. fans can obtain both season 1 and season 2.

More about lawyer Garrow's brilliant career here in an article from the Daily Mail, which notes,

Garrow was the Robin Hood of the courtroom - a poor boy who had worked his way up and was now determined that the penniless, the ignorant and the weak would no longer be tried by corrupt officials and framed for crimes they did not commit. It was Garrow who coined the phrase 'innocent until proven guilty'. But the extraordinary story of the young barrister, who became the celebrity of his day, might have been confined to the annals of history had it not been for the publication of Old Bailey trials from 1674 to 1913. When these transcripts were put online for the first time in 2008, dozens of television production companies fell upon them, scouring the court reports to find possible dramatic spin-offs. It was researchers for TwentyTwenty Television who came across Garrow's incredible courtroom performances, and spotted a potential hero from the past who could be immortalised in a television drama. The BBC eagerly agreed, and the project was handed to 51-year-old Tony Marchant, the award-winning writer behind Holding On and The Mark Of Cain.

Clive Anderson of the Telegraph discusses Garrow here. Here's a link to the Garrow Society. Also of interest: The Old Bailey Online, an immense project which allows access to information about nearly 200,000 trial held at the criminal court. John Hostetler and Richard Braby have written a biography of William Garrow, Sir William Garrow: His Life, Times, and Fight For Justice (Waterside Press, 2009).

A New Blog From Osgoode Law School

Kate Sutherland of Osgoode Law School has launched a new blog, law.arts.culture. Below, the welcome post.

Welcome to law.arts.culture, a blog devoted to exploration of the intersection of law and the arts. I’m blogging solo for the moment which is apt to tilt the blog in a literary direction given that much of my research and teaching is in the field of law and literature, and that I’m a fiction writer besides. But I’m in the process of recruiting a team of bloggers—Osgoode colleagues, students, and alumni—whose diversity of interests and expertise will soon broaden the focus to include music, film, theatre, visual art, and more. Please visit often, and join in the conversation!

Professor Sutherland has another life, as Kate Sutherland, author of  Summer Reading, which won the 1995 Saskatchewan Book Award for Best First Book, and of Kate's Book Blog, at which she blogs about numerous things, including the intersection of law and literature.

Iurisdictio-lex Malacitana: An Interesting Law and Humanities Blog

José Calvo González, Professor of Philosophy of Law, University of Malaga, writes the blog Iurisdictio-lex Malacitana in French, Spanish, and English (there might be a few more languages in there) on the intersections of law, the arts, philosophy, and narrative. Professor Calvo's most recent work is a book on Tolstoy and the law.

According to the Encyclopedic Dictionary of Roman Law, the Lex Malacitana, together with the Lex Salpensana, was found on bronze tablets in Spain, near Malaga. The Lex Malacitana contains information about "municipal assemblies, candidates in elections and voting, the adminsitration of municipal funds, tax-farming, fines, and the like." See Adolf Berger, Encyclopedia Dictionary of Roman Law, Transactions of the American Philosophical Society, vol. 43, part 2, n.s. (1953) at 559.

Bob Dylan and the Law

Fordham University is hosting a conference on Bob Dylan and the Law.

Bob Dylan and the Law


Fordham Law School

April 4-5, 2011

Co-Sponsored by the Louis Stein Center for Law and Ethics, Touro Law School and the Fordham Urban Law Journal

Free and Open to the Public

April 4th McNally Amphitheater

6:00 PM: Welcome – Professor Bruce A. Green, Fordham Law School

Panel Discussion

Moderator: Corny O’Connell, Fordham Law Graduate and DJ with WFUV


Panelists:

Professor David Hajdu, Columbia University Graduate School of Journalism

Professor Alex Long, University of Tennessee College of Law

Professor Abbe Smith, Georgetown Law School

7:00 PM: Performance of “The Lonesome Death of Hattie Carroll” and other Bob Dylan songs by The Kennedys


The academic portion of the conference will take place on April 5th and is by invitation only.


Contact: Jessi Tamayo

Telephone: 212-636-6988

Email: jtamayo@law.fordham.edu

For more on the law in Bob Dylan's work see the works below (not an exhaustive bibliography).

Idealawg: The Jurisprudence of Bob Dylan

Long, Alex B., [Insert Song Lyrics Here]: The Uses and Misuses of Popular Music Lyrics In Legal Writing (published in volume 64, Washington and Lee Law Review (2007)). Hat tip to Legal Blog Watch

Chicago Comes To Neuilly

Noted feminist critic Hélène Cixous takes on the rhetoric of French president Nicolas Sarkozy in Nicolas Sarkozy, the murderer of the Princess of Cleves, an essay written for The Guardian. She says in part,

To set an example he, the smooth talker, would "first of all shed his hang-ups about theFrench language". Let's get rid of this weight, of these manners. Style? Grammar? All in the past! The French language? Those centuries of literature, these treasures of humanity? What's the use? Do you need a fine turn of phrase to be president of the republic? To sway the people? A good kick up the arse, quick and cheap. But language and its inexhaustible resources, its quaintnesses – it empowers speech, carries thought. Like I said, the French people, they don't need to think no more, says the smooth talker. I'm making your lives simpler, look: "Work more to earn more." Ain't that beautiful? As good as Racine, La Fontaine or Hugo. Henceforth (now that's a word we'll chuck out), we'll have less words, more dosh. People of France, don't bother; I am the Law, take it from me.

All of a sudden France is owned by a man possessed, an outlaw; it's like Chicago's come to Neuilly. One no longer has talks or discussions, one lightens the conversation with gunshots, punches and kicks. The sovereign lashes out. He is now separated from the French language, in a thunderous divorce. You've got to see what he does to language. He mauls it, he beats it, he pummels it, he dismembers it. Pushing syncope to the limit, he swallows half the syllables and he spits the rest in his opponent's face. He imposes his idiolect on the world. Only he "speaks" this idiom; only stand-up comedians imitate it. Language gets a hammering from him. Upon its ruins he proclaims the disgrace of culture and the reign of ignorance.

 

 
Ms. Cixous is A.D. White Professor at Large, Cornell University. Among her most famous works is Le Rire de la Meduse (The Laughter of the Medusa), which has been translated into many languages.


 
President Sarkozy holds a degree in private law and the DEA in Business Law from the Université Paris X Nanterre. He also studied at the prestigious Institut d'Études Politiques de Paris (Sciences Po) but left before earning a degree.  He passed the bar and practiced as an attorney before entering politics.

Deadline Approaching For Harper Lee Prize for Legal Fiction

TUSCALOOSA, Ala. – The deadline for authors and publishers to enter a novel to win the Harper Lee Prize for Legal Fiction is April 8. The ABA Journal and The University of Alabama School of Law created the prize to celebrate the 50th anniversary of “To Kill a Mockingbird,” and to honor former Alabama law student Harper Lee for the role model she created.

The prize will be given annually to a book-length work of fiction that best exemplifies the role of lawyers in society, and their power to effect change. Only works first published in 2010 qualify. Completed entry forms must be submitted by the publisher prior to April 8. There is no entry fee.

Members of the Harper Lee Prize Selection Committee, who are responsible for choosing this year’s winner, are:

• Best-selling author David Baldacci

• Morris Dees, co-founder, Southern Poverty Law Center

• Best-selling crime novelist and former prosecutor Linda Fairstein

• Robert J. Grey Jr., partner, Hunton & Williams, past president of the American Bar Association

• CNN Senior Analyst Jeffrey Toobin

Visit www.HarperLeePrize.org for more information or to download an entry form.

The University of Alabama, a student-centered research university, is experiencing significant growth in both enrollment and academic quality. This growth, which is positively impacting the campus and the state's economy, is in keeping with UA's vision to be the university of choice for the best and brightest students. UA, the state's flagship university, is an academic community united in its commitment to enhancing the quality of life for all Alabamians.

CONTACT: Rebecca Walden, UA School of Law, 205/348-5195, rwalden@law.ua.edu or Allen Pusey, ABA Journal, 312/988-6214, Allen.Pusey@americanbar.org

Language and Evidence of Race Discrimination

Dawn D. Bennett-Alexander, University of Georgia, has published The Use of the Term 'Boy' as Evidence of Race Discrimination: Apparently the 11th Circuit Didn't Get the Memo? Here is the abstract.

In an unusual and interesting case, the 11th Circuit decision was appealed to the U.S. Supreme Court, the Supreme Court rendered a decision remanding the case with guidance, and upon remand, the 11th Circuit virtually ignored the Court's guidance and went its own way. The Supreme Court determined that the term "boy," when used in referring to an adult African American male, can, under certain circumstances, be evidence of race discrimination. Despite the evidence, the 11th Circuit on remand did not find such circumstances to be present in this case. The decision is not only peculiar in its decision to give only lip service to the Supreme Court's guidance, but also in its staunch refusal to recognize the vestiges of the stark historical realities of the three southern states within the circuit.

Download the paper from SSRN at the link.

Charles Darwin's Grandfather and Epigenetics

Andrew Ellington's essay in The Scientist on Erasmus Darwin's influence. Says Dr. Ellington, a chemistry prof at the University of Texas, Austin, "Erasmus believed that environmental influences, in particular the “Imagination” of the parents, greatly influenced the phenotype of the child. How very pre-Victorian (and post-). Erasmus anticipated Charles in many ways, but surprising results in the field of epigenetics—heritable (and reversible) changes in gene expression—suggest that he may have been very far ahead of his time indeed."

Discussing the current paradigm shift in theories of how evolution works, Dr. Ellington notes, "We can expect that epigenetics will be held up as the forerunner of that bastard child of Creationism, Intelligent Design. Dribs and drabs of this are already appearing on the Interwebs, but it may soon come to a school board near you. Second, the notion that environmental tags are embedded in our genome within a human time frame has got to be one of the best things to happen to tort law in a long time. DNA typing has led to the conviction of the guilty and the freeing of the innocent. Epigenetic typing may now lead to expert testimony regarding the presymptomatic impact of environmental disasters on susceptible populations. This may seem fanciful, but where there are moneyed interests (on either side), the science will inevitably follow."

The Lincoln Lawyer

To mark the release Matthew McConaughey's newest film, The Lincoln Lawyer, (based on a Michael Connelly novel), which debuted March 18, MSNBC.com devotes a web gallery to "some of the greatest lawyer movies of all time."

The Difficulties of Judging

Peter Tiersman, Loyola Law School, Los Angeles, is publishing The Rule of Text: Is it Possible to Govern Using (Only) Statutes? in the NYU Journal of Law & Liberty. Here is the abstract.

This essay explores whether it is possible to govern solely by means of written text, with little or no interpretive discretion allowed to judges. The rule of text, as we might refer to this concept, appears to be a goal that textualist judges are hoping to achieve. The essay first reviews the attractions of written law, which came into being not long after writing was invented. Yet it was only in the late eighteenth and early nineteenth centuries that rulers like Frederick the Great of Prussia and later the French revolutionaries tried to govern their nations by means of comprehensive codes of law, which judges were forbidden to interpret. Those efforts to implement a pure form of the rule of text largely failed. Next, we consider several U.S. Supreme Court cases that involved interpretive questions. Could the problems have been avoided by more careful drafting? I conclude that mistakes and ambiguities can in principle be prevented at the drafting stage or be solved by means of amendment after they are discovered, but that vagueness is a far more difficult problem. To the extent that the rule of text demands that judges not interpret, they would have to refer statutory uncertainties to the legislature. Both the Prussians and the French had a procedure of this kind, sometimes known as référé legislatif. Asking the legislature to interpret statutes ultimately proved impractical. Although to some extent it violates the separation of powers, there seems to be no feasible alternative to giving judges the authority to resolve the uncertainties that inevitably arise in written text.

Download the article from SSRN at the link.

Stanley Fish On "The Fugitive"

Jenny Diski reviews Stanley Fish's new book The Fugitive in Flight: Faith, Liberalism and Law in a Classic TV Show (University of Pennsylvania Press, 2010) in the London Review of Books here.

Seasons 1 and 2 of The Fugitive, starring David Janssen, William Conrad, and Barry Morse, is available on DVD. Harrison Ford and Tommy Lee Jones starred in the 1993 movie version; Jones reprised his U.S. Marshal role (Samuel Gerard) in the film U. S. Marshals (1998). Wesley Snipes and Robert Downey, Jr. co-starred.

Law In Context

Reza Banakar, University of Westminster School of Law, has published Having One’s Cake and Eating It: The Paradox of Contextualisation in Socio-Legal Research in the International Journal of Law in Context (2011). Here is the abstract.

In Law in Modern Society, Denis Galligan argues that adopting a social scientific perspective, which describes and analyses the law in extra-legal terms, can easily entail losing sight of the law as a distinct social formation. To avoid this pitfall, socio-legal research should contextualise those features of the legal system which are relevant to the actions of citizens and officials of the law. This essay argues that since the “relevant” features described by Galligan are, ultimately, related to legal rules, his approach amounts to a top-down method of contextualising the impact of the law on society and as such loses sight of law’s fluidity and societal embeddedness. Using Galligan’s methodology as its backdrop, this essay sketches the contours of three ideal typical approaches to the contextualisation of law. The first approach examines how social institutions absorb law within their existing networks of rules and relations; the second reverses law’s method of dislodging actions from their socio-historical context; and the third uncovers the socio-cultural and historical embeddedness of the legal system. This paper concludes by arguing that these three approaches reverse the de-contextualising effects of modern Western law in different ways and degrees. Scholars who employ the second and the third approaches often do so as part of their search for alternative forms of law and legality. What is identified by Galligan as losing sight of the distinctiveness of the law should, in their case, be explored in light of the ongoing struggle for law, rather than as the failure of social sciences to account for the specificity of positive law.

Download the article from SSRN at the link.

The Law In Haiku

Fun for a Friday: Supreme Court Haiku, a blog devoted to, well, the high court's pronouncements transformed into that elegant poetic form,  the 17 syllable poem called the haiku. But other haiku include those devoted to the Bill of Rights (the Ninth Amendment: Enumeration/Not construed to disparage/Rights people retain/), sitting and past Justices, those devoted to cases, and other blogs (with haiku describing them).

When the blogger, Keith Jaasma, responds to people who ask why he writes haiku by saying,

Some ask: Why haiku?
Why seventeen syllables?
No time for real blog

I would note that writing a good haiku can take as much time as (or more than) writing a good blog post.

On his disclaimer page Mr. Jaasma adds,

As should be quite clear
Haikus aren't legal advice
Consult a lawyer

Supreme Court Haiku
Not affiliated with
Real Supreme Court (duh)

 
Haiku has many, many rules to follow; the rules in Japanese are different from those in English. This article from the Times of India notes that many Japanese are finding solace from the recent earthquake and tsunami and continuing devastation by writing haiku to express their pain. For more about haiku, follow this link to the webpages of the Haiku Society of America.



Thanks to Gordon Firemark for the tweet.

Using Law

Jamal Greene, Columbia University Law School, is publishing The Anticanon in the Harvard Law Review. Here is the abstract.

Argument from the “anticanon,” the set of cases whose central propositions all legitimate decisions must refute, has become a persistent but curious feature of American constitutional law. These cases, Dred Scott v. Sandford, Plessy v. Ferguson, Lochner v. New York, and Korematsu v. United States, are consistently cited in Supreme Court opinions, in constitutional law casebooks, and at confirmation hearings as prime examples of weak constitutional analysis. Upon reflection, however, anticanonical cases do not involve unusually bad reasoning, nor are they uniquely morally repugnant. Rather, these cases are held out as examples for reasons external to conventional constitutional argument. This Article substantiates that claim and explores those reasons. I argue that anticanonical cases achieve their status through historical happenstance, and that their status is reaffirmed as subsequent interpretive communities avail themselves of the rhetorical resource the anticanon represents. That use is enabled by at least three features of anticanonical cases: their incomplete theorization, their amenability to traditional forms of legal argumentation, and their resonance with constitutive ethical propositions that have achieved consensus. I argue that it is vital for law professors in particular to be conscious of the various ways in which the anticanon is used – for example, to dispel dissensus about or sanitize the Constitution – that we may better decide if and when that use is justified.

Download the article from SSRN at the link.

New Books

Boros, Claudine L. Maria-Julia, Justice Henry Fielding's Influence on Law and Literature (Xlibris Corp., 2010).

The Cambridge Companion To American Crime Fiction (Catherine Ross Nickerson, ed., Cambridge University Press, 2010).

The Cambridge Companion To English Renaissance Tragedy (Emma Smith and Garrett A. Sullivan, Jr. eds.; Cambridge University Press, 2010).

Goldberg, Edward, Jews and Magic in Medici Florence: The Secret World of Benedetto Blanis (University of Toronto Press; 2011).

Gotteri, Nicole, Le film noir américain, 1940-1955 (Atelier, Fol'fer, 2010).

Hemmings, Clare, Why Stories Matter: The Political Grammar of Feminist Theory (Duke University Press (2011).

Letort, Delphine, Du filme noir au neo noir: mythes et stéreotypes de l'Amérique 1941-2008 (L'Harmattan, 2010).

Shiloh, Ilana, The Double, the Labyrinth, and the Locked Room: Metaphors of Paradox in Crime Fiction and Film (Peter Lang Publishing, 2011).


Woodbridge, Linda, English Revenge Drama: Money, Resistance, Equality (Cambridge University Press, 2010).

Yonglin, Jiang, The Mandate of Heaven and "The Great Ming Code" (University of Washington Press, 2011).

Teen Mom 3: Out of the Library and Onto the Small Screen

The Chronicle of Higher Education's Gina Barreca speculates on how Teen Mom 3 would play out if its contestants included, say, Tess Durbeyfield, Hetty Sorel, and that little troublemaker Hester Prynne. Not only would it continue to draw the college student crowd, which already loves the show, but it would "help MTV and the producers avoid pesky lawsuits and various other forms of judicial actions incurred when the stars get arrested for domestic violence, drug possession, or overuse of heavy black eye-liner and “smoky” lid-color...".

I can see other positives. It would make Teen Mom 3 part of the law and lit curriculum. All of a sudden, Teen Mom 3 would be relevant not just in psychology, social work and criminal justice classes--it would be hip in lit. No more ha-ha-ing Hawthorne or har-har-ing Hardy. Fictional Teen Moms. I like it.

The Face of Murder

The flap over showrunner Brian True-May's remarks concerning the whiteness of the hit show Midsomer Murders shows no sign of abating; indeed, it has spilled over to comments from stars of other shows concerning whether a TV drama ought to reflect reality.

What did Mr. True-May say about the lack of non-white faces on Midsomer Murders? In part, "We just don't have ethnic minorities involved. Because it wouldn't be the English village with them." What he seems to have meant is the the "perfect English village" at least in imagination is completely white--no minorities exist at all. Broadcaster ITV was so taken aback that it suspended Mr. True-May, effective immediately. Criticism poured in, aimed not just at Mr. True-May's lack of sensitivity to the realities of contemporary British society, but at the fact that while he does not allow four-letter words or the actual depiction of violence in his scripts, he does allow viewers to imagine violence, and all sorts of horrific crimes actually do go in the quiet imaginary English village of Causton and the other villages around it. Incest, murders of all kinds using every kind of implement or manner, sexual deviance of nearly every kind pops up on Midsomer Murders. While Mr. True-May and the other creators of the show certainly have a right to express themselves, and everyone agrees that the show is fiction, not reality, the critics argue, to suggest that only white people live in it is to propound a fiction so divorced from reality as to be unimaginable, especially when the crimes that go on in the show are actually usually very imaginable. (Unfortunately).

Reporters have been checking out the actual area in which the show films, and note that minorities actually do live in the area. Apparently the show doesn't hire them as extras, perhaps on the theory that the actual area doesn't represent Causton or its fictional county. Well, it's true: Causton is imaginary, like Agatha Christie's St. Mary Mead. But Mrs. Christie wrote decades ago, but she actually included ethnic minorities in her work--quite a lot of them. One might not like her portrayals, or her allusions--the original British title of And Then There Were None was actually something quite different. But one can find them in her work. Again, if one supports the notion that Mr. True-May can create whatever imaginary venue he wants, and that venue has only Caucausians in it, then of course Midsomer County could exist and Mr. True-May's vision is as "true" as any other.

Mr. True-May may have specific reasons for not hiring ethnic minorities for the show, including the ones he gives. If he really doesn't cast ethnic minorities because he thinks the viewing audience won't accept them, then that's a shame. But is it so clear that the Midsomer Murders viewing audience would wander away if ethnic minorities turned up among the cast? I'd suggest lack of ethnic minorities isn't necessarily the reason for the show's success. Granted, I don't live in the UK, but I watch the show regularly, and I'd suggest these reasons as some of those for its popularity. One is predictability. In every episode the show provides a murder. It's titillating, it's more or less gruesome, it's puzzling. It provides interesting characters. Another is safety. Whatever the murder(s) is/are they are "safe," because Causton and their surroundings are imaginary, and the whole thing will be wrapped up by reliable officers who are smart, likeable, and trustworthy. A third is comfort, or one might say "reliability." The bad people get caught. Justice is served and the officers serve that justice while staying within the bounds of the law. What could be sweeter, or more comforting? At the end of the day, after the world's problems overwhelm us, what could be more satisfying than to settle into the knowledge that we can return to a well known realm in which we can have complete faith in the honesty, intelligence and reliability of cops who will carry out both the spirit and the letter of the law and who will catch the bad people? Yes, we know it's all fiction, but it's comforting fiction. Most viewers tend to like the popular culture depiction of law when it coincides with justice. But do they really require that it be a particular color of justice?

Whether recurring characters are ethnic or not, when they are intelligent, likeable and sure to get their man or woman, the writing is smart,  and the events not too graphic, an audience will ask for more of the same. To that extent, the success of Midsomer Murders isn't that much of a mystery. If Mr. True-May adds some non-white faces to the cast, for example a couple of recurring characters with whom the audience can fall in love,  he might be surprised at the outcome.

Legal Dimensions of Secularism

Rafael Palomino, Universidad Complutense/Facultad de Derecho, has published Legal Dimensions of Secularism: Challenges and Problems, given at the 17th Annual International Law and Religion Symposium, Brigham Young University, Provo, Utah, October 3-5, 2010. Here is the abstract.

This paper explains the differences between concepts like secularity, secularization, secularism, laïcité, applied to Church-State affairs. The paper address present and future challenges in the area of Law and Religion: educational rights, religious symbols, labour law, religious conscientious objection.

Download the paper from SSRN at the link.

Call For Papers

From the Executive Articles Editor of the West Virginia Law Review:

The West Virginia Law Review seeks papers on the topic of non-violence as a means of social change and pathway to democracy for former dictatorships or totalitarian regimes for its special issue, Non-Violence and the Road to Democracy.




Recently, Egypt joined the ranks of countries whose political landscapes are forever changed through non-violent protest. Today, the spirit of revolution spreads across the Middle East—with varying results. This spark and catching flame calls the West Virginia Law Review to contemplate the role of law in the occurrence of non-violence as means of social change and the law’s role in transitioning societies from non-violent revolution to democracy. This contemplation extends to topics including but not limited to:



• the development and treatment of non-violent resistance groups in the context of totalitarian or oppressive regimes;

• teachers of non-violence as agents of the law working against lawless regimes;

• models for effective transitions and peaceful revolution to democracy, including the role of international law and institutions in such transitions;

• the sources of non-violent revolutions, for example, Gandhi’s teachings;

• non-violent aspects of transitions to democracy in specific countries and regions, such as Egypt, India, Northern Ireland, Russia, Serbia (i.e. Otpor!), South Africa, and Spain; and

• the intersection of non-violent protest, technology (including social networks) and the “right to information.”



The West Virginia Law Review will consider papers from a variety of disciplines, including history, law, philosophy, and political science. Papers may stray from the traditional article format to adequately address the call above. To be considered for this call for papers, please submit an abstract of no more than 1,500 words, a current curriculum vitae, and cover letter to wvlrev@mail.wvu.edu or mailed to the address above. The deadline for these abstracts is April 15, 2011.



Most articles should be 10,000 to 20,000 words, but shorter works will be considered where appropriate. Selected authors will submit their first drafts to the West Virginia Law Review by July 15, 2011. Please contact Lara Omps, Senior Managing Editor, with questions at laraomps@gmail.com. We look forward to reading your submissions.

ALSCH Conference

I'm just back from the ALSCH (Association for the Study of Law, Society and Culture) Conference, this year hosted by the University of Nevada, Las Vegas, Law School, and I had a wonderful time, as did, I think, the other attendees. Dean John White and his faculty, staff, and students were charming and attentive to us all. The law librarians and staff in particular put up a great display featuring books written or edited by people presenting at the conference and the UNLV IT folks were in attendance to trouble shoot.

The panels were excellent. There were so many that I had trouble choosing among them, but those that I attended were one on the rhetoric of net neutrality that was really innovative, and another on gender and violence in popular music that got me thinking about the relationships between rhetoric and economics.

The officers--outgoing president Linda Meyer, secretary Serena Mayeri, treasurer Susan Ayres, webmaster Tucker Culbertson, and listserv moderator Susan Heinzelman--once again put on a great event. Next year Texas Wesleyan Law School will host, from March 15 to March 17, and then--save your pennies--it's off to Birkbeck College for the 2013 get-together.

Wife-Selling In "The Mayor of Casterbridge"

Julie C. Suk, Cardozo School of Law, has published The Moral and Legal Consequences of Wife-Selling in The Mayor of Casterbridge in Gender, Law and the British Novel (Alison LaCroix and Martha Nussbaum eds.; Oxford University Press eds.; 2011). Here is the abstract.

What kind of man sells his wife? Thomas Hardy’s The Mayor of Casterbridge opens with a famous episode in which a poor hay trusser, Michael Henchard, sells his wife, Susan, by impulsively putting her up for auction in a public market. Susan is purchased by a sailor, with whom she departs and subsequently lives as husband and wife. Subtitled “The Life and Death of a Man of Character,” the novel presents itself as a study of the flawed, complex, and ultimately tragic moral character of the man who sold his wife. This essay interprets the novel’s account of the moral consequences of the wife-sale in The Mayor of Casterbridge, by examining the shifting legal and social meanings of the practice in nineteenth century Britain. The novel exploits uncertainty about the legal consequences of wife-selling to generate the novel’s moral tragedy.

Download the essay from SSRN at the link.

The Legal and Cultural History of Legal Aid

Felice Batlan, Illinois Institute of Technology, Chicag-Kent College of Law, has published The Gendered Lives of Legal Aid: Lay Lawyers, Social Workers, and the Bar, 1863-1960. Here is the abstract.
 

The Gendered Life of Legal Aid, 1863-1960 (manuscript in process) will be the first monograph on the history of civil legal aid in the United States. By closely examining the history of legal aid in New York, Chicago, and Boston, it presents a number of arguments with wide-ranging implications and it is animated by a host of conflicts. These include the relationship between legal aid and citizenship, the changing status of domestic relations law, the interactions between lawyers and social workers and their different understandings of the role and nature of law, what services legal aid should provide, and even how the history of legal aid should be told. More specifically the work questions what it historically meant to “practice law” or “to be a lawyer” and argues that women practiced law before they were admitted to law school in large numbers or could be admitted to state bars. Thus it puts in historical context and collapses the categorical dichotomy of lawyer versus non-lawyer and argues that our understanding of women practicing law in the nineteenth century needs to account for women lay lawyers. It also demonstrates that the practice of law from the nineteenth century through the first decades of the twentieth century was more democratic, heterogeneous, and less elite than we currently appreciate.

Download the paper from SSRN at the link.

Post-Modernism, Law, and Behavioral Biology

Edwin S. Fruehwald has published When Did Ignorance Become a Point of View?: Postmodern Legal Thought and Behavioral Biology. Here is the abstract.

Postmodernism is a major influence on contemporary jurisprudence. This paper will critique Postmodern Legal Thought using insights from behavioral biology. As this paper will show, Postmodernism is based on the denial of human nature – it is based on ignorance (lack of knowledge), and it has had a pernicious effect on the law.

Part I of this article will examine Postmodern Legal Thought. This Part will include a traditional critique of Postmodernism and its most important element – strong moral relativism. Parts II and III will demonstrate how insights of behavioral biology weaken the foundations of Postmodern Legal Thought. Part II will demonstrate how behavioral biology has destroyed the Blank Slate (social constructionist) theory of human nature upon which Postmodernism is based. Part III will show the existence of neurocognitive (innate) universals in the human mind, which destroys the strong moral relativism underlying Postmodernism. Finally, Part IV will present an alternative to Postmodernism’s radical political theories, based on behavioral biology.

Download the paper from SSRN at the link.

Critical Legal Conference 2011

An announcement for the Critical Legal Conference, to be held at Aberyswyth University, September 9-11, 2011.

The History of the French Railroad Industry in the Nineteenth Century

Guy Numa has published On the Origins of Vertical Unbundling: The Case of the French Transportation Industry in the 19th Century in volume 20 of the European Journal of the History of Economic Thought (2013). Here is the abstract.

The paper retraces the origins of the unbundling of infrastructure, which is a monopoly, from services, which are subject to competition. Using the case of the railroad industry in France, I examine how both natural monopoly theorists and legislation dealt with this subject in the 19th century. I argue that the origins of vertical unbundling date to this period with legislation pertaining to inland waterways and railroads. This was particularly the case for the railroad industry due to pricing and competition rationales. I analyze the writings of Dupuit and Walras and show that they both agreed that infrastructure and services had to be unbundled for the inland waterways. In contrast, they expressed different justifications to defend the monopoly for the railroad industry. Following a chronological progression, the first section explores the origins of unbundling in legislation. The second section analyzes how theorists approached the way railroads had to be managed. Throughout, I highlight the interplay between their work and legislation.

Download the article from SSRN at the link.

Summer School Program on the Cultural Study of the Law

From Peter Schneck, Summer School Director:

The Third International Summer School on the Cultural Study of the Law will be held from this August 7th to August 21st in Osnabrück, Germany. Hosted by the Institute of English and American Studies, in collaboration with the University of Copenhagen, the Birkbeck School of Law at the University of London, York University, Toronto, The Jean Monnet Centre of Excellence and the European Legal Studies Institute at the University of Osnabrück, the summer school seeks to bring together graduate students from around the world to promote and examine the interdisciplinary study and research of law and culture.




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



The School will offer a total of four workshops for 20-25 international graduate students over a two-week period. The first workshop will be concerned with basic theories, concepts and perspectives within the emerging field of cultural legal studies, focusing specifically on the range and potential of interdisciplinary studies and approaches. The remaining three workshops will focus on key areas of critical inquiry that have been central to the dynamic development of the field and are of particular importance within an European context, for example:



--The relation between human rights and cultural rights



--Towards a Culture of Rights?: Law, Literature and the Cultural Presence of the Law



--Copyright, Authorship and the ‘Propertization’ of Culture



*Participant Eligibility*

Doctoral candidates in literature, the law, the arts, the humanities, and the related social sciences are invited to apply, as are advanced students pursuing a J.D. or its equivalent (such as the L.L.B). Young scholars or junior faculty members who have received a Ph.D. or corresponding degree in the last five years are also eligible. There are openings for approximately 25 students to participate in the summer school.



*Application Process*

Applicants should complete:



--> An application form, indicating preferred workshop that can be found at: http://www.blogs.uni-osnabrueck.de/lawandculture/admission/



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



--> An up-to-date curriculum vitae.



Students interested in taking part in the Summer School should submit their applications no later than April 30, 2011. Detailed information about the school, the workshops, international faculty, admission and fees can be found at:

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


*Questions*

Please direct all inquiries about the school to our coordinator's office at

lawandculture@uos.de

New Books of Interest

New books of interest:

Agamben, Giorgio, The Sacrament of Language: An Archaeology of the Oath (Trans. Adam Kotsko, Palo Alto: Stanford University Press, 2010).

Bhatia, Nandi, Performing Women/Performing Womanhood: Theatre, Politics, and Dissent in North India (Oxford: OUP, 2010).

Brown-Nagin, Tomiko Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement  (Oxford, Oxford University Press, 2010).

Bucholtz, Mary, White Kids: Language, Race, and Styles of Youth Identity (Cambridge: Cambridge University Press, 2010).

Chaplin, Jonathan, Herman Dooyeweerd: Christian Philosophy of State and Civil Society (Notre Dame: University of Notre Dame Press, 2010).

Chakrabarti, Pratik, Materials and Medicine: Trade, Conquest, and Therapeutics in the Eighteenth Century (Manchester: Manchester University Press, dist. Palgrave Macmillan, 2010).

Crockett, Clayton, Radical Political Theology: Religion and Politics After Liberalism (NY: Columbia University Press, 2010).

The Emperor and Rome: Space, Representation, and Ritual (Bjørn C. Ewald and Carlos F. Norena eds., Cambridge University Press, 2010).

Frost, Dennis J., Seeing Stars: Sports Celebrity, Identity, and Body Culture in Modern Japan (Cambridge, Harvard University Press, 2010).

Israel, Bill, A Nation Seized: How Karl Rove and the Political Right Stole Reality, Beginning With the News (Spokane: Marquette Books, 2010).

Kosnoski, Jason, John Dewey and the Habits of Ethical Life: The Aesthetics of Political Organizing in a Liquid World (Lexington: Lexington Books, 2010).

McCormick, John P., Machiavellian Democracy (Cambridge: Cambridge University Press, 2010).

Raiford, Leigh, Imprisoned in a Luminous Glare: Photography and the African American Freedom Struggle (Raleigh: University of North Carolina Press, 2010).

Ruck, Rob, Raceball: How the Major Leagues Colonized the Black and Latin Game (Boston: Beacon Press, 2010).

Schilt, Kristen, Just One of the Guys: Transgender Men and the Persistence of Gender Inequality (Chicago: University of Chicago Press, 2010).

Serres, Michel, Malfeasance: Appropriation Through Pollution? (Trans. Anne-Marie Feenberg-Dibon, Palo Alto: Stanford University Press, 2010).

Techno Politics in Presidential Campaigning: New Voices, New Technologies, and New Voters  (John Allen Hendricks and Lynda Lee Kaid eds.; Routledge, 2010).

Vaidhyanathan, Siva, The Googlization of Everything (And Why We Should Worry) (Berkeley, University of California Press, 2010).

Warren, Michelle R., Creole Medievalism: Colonial France and Joseph Bedier's Middle Ages (Minneapolis: University of Minnesota Press, 2010).

Weithman, Paul, Why Political Liberalism? On John Rawls's Political Turn (Oxford: OUP, 2010).

The Humanities--Why?

The American Conference of Academic Deans and Phi Beta Kappa are co-sponsoring a conference for which the theme is "Are the Humanities Now a Luxury?" The conference, scheduled for November 10-12 in Charleston, SC, has posted its request for proposals at the website here.

Atticus Finch as a Christian Lawyer

Lance McMillian, Atlanta's John Marshall Law School, has published Atticus Finch - Christian? in volume 77 of the Tennessee Law Review (2010). Here is the abstract.

This essay is the third-part of A Dialogue Commemorating the Fiftieth Anniversary of to Kill a Mockingbird's Publication between Professors Lance McMillian and Judy Cornett, featured in the Tennessee Law Review. In this piece, Professor McMillian answers three questions posed to him by Professor Cornett: (1) Is Atticus Finch really a Christian in any meaningful sense?, (2) Is Atticus Finch's Christian faith the “but for” impetus behind his actions?, and (3) Should Atticus Finch be judged a hero at all under today's standards?

Download the article from SSRN at the link.

A "Mad Scientist" For Real? And In a Movie?

The Scientist features Jim Fields' documentary about neurologist Robert White, who died last year. Mr. Fields notes that Dr. White might fall into the class of the "real" "mad scientist," someone whose thoughtful integration of research and imagination led him toward the boundaries of what we now consider commonplace. But he did some unusual things in the lab, too--things we still consider odd, and maybe off-limits, such as grafting one monkey's head onto another body.

Bioethicists Will Gaylin and Dan Callahan, who co-founded bioethics think tank, The Hastings Center, in 1969, remember talk of brain transplantation when organ transplant technology was developing. "It used to be kind of a joke," says Callahan. "If you transplant my brain into somebody else's head, who would that person be? Is a person the brain or the body?"

....

"Real mad scientists...are not lone wolves like in the movies," says Fields. "They're doing things that are sanctioned in their time and place, in society, that are only considered by later values to be wrong."

...

While Callahan doubts that White would have been allowed to do this research today, he notes that he likely received approval from a number of organizations in his day. But does that context of permission make his actions ethical? "I don't think you can go back and prejudge generations of people," says Gaylin, "but by the time he was doing his research, there were a significant number of people talking about medical ethics in an advanced form."

So which is it? Was White a researcher outside the boundaries of bioethics or a man doing right by the standards of his time?

Terrorism and Armed Conflict

Andrea Bianchi, Graduate Institute of International and Development Studies, has published Terrorism and Armed Conflict: Insights from a Law & Literature Perspective at 24 Leiden Journal of International Law 1 (2011). Here is the abstract.

This article examines some selected issues relating to terrorism and international humanitarian law (IHL): the characterization of the nature of armed conflicts in which armed groups, qualified as ‘terrorist,’ are involved; terrorism as a war crime; and the determination of the status and treatment (including detention) of terrorist suspects apprehended in the course of an armed conflict. The analysis emphasizes the importance of legal categories and legal qualifications of factual situations for the purpose of determining the applicable law as well as the crucial importance of taking societal practice into account when evaluating the state of the law in any given area. The main focus of the article, however, is on providing a few basic insights, drawn from the law & literature movement, on international humanitarian law and terrorism. Short of any epistemological ambition, literature is used as a remainder that the law is not a set of neutral rules, elaborated and applied independently of context and historical background; that the human condition remains central; and that legal regulation cannot be oblivious to it. Finally, mention is made of interpretive techniques, developed in the field of literary studies, that may help establish social consensus on the interpretation of IHL grey areas.

The full text is not available from SSRN.

New CBS Comedy Features Yes, More Lawyers

Not enough TV lawyers in your life? Then by all means check out the new CBS comedy Mad Love, which airs Mondays at 8:30 (7:30 Central time). It stars Jason Biggs as Ben and Tyler Lapine as Leo, two young attorneys in the Big City (that's NY), haplessly looking for love. The sitcom's the work of Matt Tarses. Other stars: Sarah Chalke (of "Scrubs") as Ben's new found love Kate and Judy Greer (a frequent guest star on such Chuck Lorre comedies as "Two and a Half Men" and "The Big Bang Theory") as Connie, Kate's roommate, who spectacularly does not get along with Leo. We suspect we know how that relationship will turn out. So far, the show has been amusing and well-acted, but predictable, and the law takes a back seat to the developing romance between Ben and Kate. Episodes already aired available here.

Call for Panelists AALS Section on Law and Humanities

Call for Panelists AALS Section on Law and Humanities


“Excavating and Integrating Law and Humanities in the Core Curriculum” 2012 AALS Annual Meeting January 4-8, 2012 Washington, D.C.

The AALS Section on Law and Humanities will hold a program during the AALS 2012 Annual Meeting in Washington, D.C. with panelists who will share methods of teaching law and humanities perspectives in “core courses” such as property, torts, contracts, corporations, federal income tax, civil procedure, contracts, or criminal law, and others not traditionally understood to include these perspectives.

Many agree that law and humanities perspectives are important vehicles for unpacking the substantive content of the core curriculum, as well as for building and honing key skills necessary for legal practice. Though many acknowledge that these perspectives are vitally important, there is less agreement as to how faculty can successfully implement these perspectives in their classrooms. This program will include a variety of panelists and will explore ways law and humanities perspectives can be used successfully to enrich law school teaching.

To be considered as a panelist, please submit a statement of interest by Friday, March 25, 2011, including a description (2-3 paragraphs is sufficient) of the course that you teach and the methods that you use to excavate and integrate law and humanities perspectives that you would discuss as part of the panel. Please also submit an updated curriculum vitae.

Panelists will be selected by April 11, 2011. Each selected panelist will be required to submit a 4-6 page draft in October 2011, describing their law and humanities teaching technique(s), for use by the moderator. The Section hopes to have these papers published as part of an online mini-symposium sponsored by the California Law Review.

All panelists will be responsible for paying their annual meeting registration fee and travel expenses. Full-time faculty members of AALS member and fee-paid law schools are eligible to submit papers. Foreign, visiting (and not full-time on a different faculty) and adjunct faculty members, graduate students, and fellows are not eligible to submit.

Any inquiries about the Call for Panelists should be submitted to Professor Melissa Murray, University of California, Berkeley, School of Law via electronic mail at mmurray@law.berkeley.edu.

Identifying Scientism

Susan Haack, University of Miami School of Law and Department of Philosophy, has published Six Signs of Scientism (Seis Signos De Cientismo) in Discusiones Filoficas, Ano 11 (No. 15) June 2010. Here is the abstract.

As the English word "scientism" is currently used, it is a trivial verbal truth that scientism-an inappropriately deferential attitude to science-should be avoided. But it is a substantial question when, and why, deference to the sciences in inappropriate or exaggerated. This paper tries to answer that question by articulating "six signs of scientism": the honorific use of "science," etc; using scientific trappings purely decoratively; preoccupation with demarcation; preoccupation with "scientific method"; looking to the sciences for answers beyond their scope; denying the legitimacy or worth of non-scientific (e.g. legal or literary) inquiry, or of writing poetry or making art.

Download the article from SSRN at the link. NB: The text is in Spanish.

Legal Interpretation

George H. Taylor, University of Pittsburgh School of Law, has published Legal Interpretation: The Window of the Text as Transparent, Opaque, or Translucent at 10 Nevada Law Review 700 (Summer 2010). Here is the abstract.

It is a common metaphor that the text is a window onto the world that it depicts. In legal interpretation, the metaphor has been developed in two ways – the legal text as transparent or opaque – and the Article proposes a third – the legal text as translucent. The claim that the legal text is transparent has been associated with more liberal methodological approaches. According to this view (often articulated by critics), the legal text does not markedly delimit meaning. Delimitation comes from the interpreters. By contrast, stress on the opacity of the legal text comes from those who give priority to the text rather than to any separable purpose lying behind the text. Frederick Schauer, for example, argues that rule-following requires treating a rule’s generalization as entrenched and hence opaque. The Article’s emphasis on the legal text as translucent builds on the hermeneutics of Paul Ricoeur and emphasizes the interrelation of text and context. To comprehend a legal text by reference to its context is to appreciate the light that the context brings to the text and renders the thickness and color of the text no longer opaque but translucent. The text is translucent to its context. The context is not outside the text but part of it. Attention to the text without regard for its external context may distort its meaning. The Article exemplifies this perspective by drawing on recent work by Laurence Tribe and Justice Breyer and applies it briefly to recent Supreme Court jurisprudence. The Article frames the attention to the legal text by referencing the debate over the text as transparent, opaque, or translucent in literary and philosophic interpretation.

Download the article from SSRN at the link.

Well, "L": The Green Bag Takes On the NYT

Ross E. Davies, George Mason University School of Law; The Green Bag, is publishing Gray Lady Bowdler: The Continuing Saga of the Crimson Spot in the Green Bag Almanac and Reader 2012. Here is the abstract.

This is a short, true story about the Green Bag versus the New York Times, two periodicals doing their best according to their respective lights to serve their respective readerships. The story is told for the most part through recent email correspondence between, on one side, a variety of Times editors and, on the other side, one Green Bag editor. Reasonable minds might differ about the relative merits of the positions taken and the practices followed by the two periodicals and their spokespeople, but no reasonable person could deny the entertainment value of some of their exchanges. Those exchanges are reproduced in chronological order, starting on the next page. But first, a small dose of background...

Download the article from SSRN at the link.

Mixed Juries In Ireland in the Nineteenth Jury

Niamh Howlin, Queen's University Belfast, has published Fenians, Foreigners and Jury Trials in Ireland, 1865-70 iin The Irish Jurist 2011. Here is the abstract.

This paper examines the circumstances which led to the empaneling of a Swiss watchmaker, a French professor and an Italian hatter, along with nine others, to try an American Fenian in Cork in 1865. This was the trial of Captain John McCafferty, a former Confederate soldier who later became an important figure in the Irish nationalist movement. His trial for treason-felony in 1865 is a fascinating example of the use of what was known as a jury de medietate linguae; a mixed jury consisting of half locals and half aliens. It is significant because it appears to be the only recorded use of a mixed jury in Ireland, although interestingly, it attracted very little comment, despite the unusual nature of the tribunal. After a brief history of the origins and development of this unique tribunal, this article will compare the historical use of mixed juries in common law countries. McCafferty’s trial will then be considered in the wider context of the Fenian organisation’s activities in the 1860s, and particularly in light of subsequent Fenian cases where mixed juries were sought.

 Download the article from SSRN at the link.

The Higher Moral Law and the Fugitive Slave Act

Steven Lubet, Northwestern University School of Law, has published The Oberlin Fugitive Slave Rescue: A Victory for the Higher Law in volume 13 of North & South (2011). Here is the abstract.

This article tells the story of the Oberlin fugitive slave rescue and the ensuing prosecutions in federal court. The trial of rescuer Charles Langston marked one of the first times that adherence to "higher law" was explicitly raised as a legal defense in an American courtroom. The article is adapted from my book – Fugitive Justice: Runaways, Rescuers, and Slavery on Trial – which tells this story (and several others) in much more detail.

In the fall of 1859, John Price was a fugitive slave living in the abolitionist community of Oberlin, Ohio. He was lured out of town and captured by Kentucky slavehunters, but he was able to raise an alarm. Hundreds of Oberliners – including many students and graduates from the eponymous college – came to his rescue. They chased the slavehunters to nearby Wellington, where they freed John Price by force.

The pro-slavery Buchanan administration could not ignore such a blatant violation of the Fugitive Slave Act, and soon obtained indictments against thirty-seven rescuers, including twelve black men. The ensuing trials would be one of the first times that adherence to the “Higher Law” was raised as an explicit legal defense in a United States court.

Charles Langston – a free black man and the son of a Virginia plantation owner – was brought to trial in Cleveland the following spring. Langston was a militant abolitionist and a leader of Ohio’s African-American community. Although convicted, he shocked the country when he defiantly addressed the court at sentencing. Langston announced that he would proudly continue to violate the Fugitive Slave Act, and he would assert the “God given right to freedom” in the face of any warrant or legal requisition.

Langston’s attorney stunningly also declared himself a “votary of the Higher Law,” thus setting the stage for a courtroom confrontation between morality and legality.

Download the article from SSRN at the link.

Secularism, Religious Thought, and Human Rights

Zachary R. Calo, Valparaiso University School of Law, has published Religion, Human Rights and Post-Secular Legal Theory. Here is the abstract.
 

This paper proposes that the fundamental challenge for religious legal theory is the question of the secular and, in particular, a certain mode of secular reason that has shaped the idea of law within modernity. The fundamental ambition of modern legal thought was to sever law from a connection to a sacred cosmic and intellectual order. The idea of human rights, at least in its regnant expression, embodies this project most fully in that it has increasingly been defined as a moral tradition that stands over and against religion. This paper, by contrast, argues that the destabilization of secular meaning creates the space, and indeed the necessity, for a pluralist theological turn within the idea of human rights.

Download the paper from SSRN at the link.

The Roman Foundations of the Law of Nations

Benedict Kingsbury, New York University School of Law, has published Introduction: The Roman Foundations of the Law of Nations in The Roman Foundations of the Law of Nations: Alberico Gentili and the Justice of Empire (B. Kingsbury & B. Straumann eds.; Oxford University Press, 2010). Here is the abstract.

Where did the writers of the sixteenth, seventeenth, and early eighteenth centuries seek the legal maxims and methods, the principles governing treaties or embassies or jurisdiction or property, and the broader ideas of justice in the inception, fighting, and conclusion of war, which they built into a law of nations of enduring importance? To a considerable extent, they looked to Roman law, Roman debates about the justifications of Rome’s wars and imperial expansion, and a rich tradition of ius naturae and ius gentium deriving from Greco-Roman and early Christian sources. This book brings together a set of fresh perspectives exploring the significance and implications of the use made of Roman legal concepts, and of Roman just war theory and imperial practice, by early modern European writers who shaped lasting approaches to natural law and the law of nations.

Download the introduction from SSRN at the link.

Lincoln's Use of Biblical Imagery

Wilson Ray Huhn, University of Akron Law School, has published A Higher Law: Abraham Lincoln's Use of Biblical Imagery as University of Akron Legal Studies Research Paper No. 11-1. Here is the abstract.

This article describes Lincoln’s use of biblical imagery in seven of his works: the Peoria Address, the House Divided Speech, his Address at Chicago, his Speech at Lewistown, the Word Fitly Spoken fragment, the Gettysburg Address, and the Second Inaugural. Lincoln uses biblical imagery to express the depth of his own conviction, the stature of the founders of this country, the timeless and universal nature of the principles of the Declaration, and the magnitude of our moral obligation to defend those principles. Lincoln persuaded the American people to embrace the standard “all men are created equal” and to make it part of our fundamental law. This goal was formally accomplished as a matter of law in 1868 when the Equal Protection Clause was added to the Constitution as part of the Fourteenth Amendment, but it is approached in fact only through our constant application of this ideal to our society and in our daily lives. The principle of equality is a higher law, but it need not exceed our grasp. As Lincoln called upon us – “let it be as nearly reached as we can.”

Download the paper from SSRN at the link.

Law & Social Inquiry Call For Student Papers

From Law & Social Inquiry

2011 Law & Social Inquiry


Graduate Student Paper Competition



The editors of Law &  Social Inquiry are pleased to announce our annual competition for the best journal-length paper in the field of sociolegal studies written by a graduate or law student. Entries will be accepted starting January 1, 2011 and must be received by March 1, 2011. The author must be a graduate student or law student at the time the paper was written and when submitted.

LSI invites direct submissions from graduate and law students and nominations of student work from faculty. Faculty nominations should be accompanied by the paper in question, a short description of the nominated paper, and contact details for the student. The winning paper will be published in Law & Social Inquiry and the author(s) will receive a total cash prize of $500 (US). Submissions will be judged by the editors. The winning submission will be sent to selected scholars for advisory reviews to aid with revisions prior to publication.

Law & Social Inquiry publishes empirical and theoretical studies of sociolegal processes from a variety of disciplinary perspectives.

Please send your best work in Microsoft Word or as a PDF to: lsi-abf@abfn.org. Please indicate (1) your intention is to be considered for the prize competition; (2) confirm your graduate student status; and (3) that the paper is a sole submission to Law & Social Inquiry, meaning that you have not submitted it to other journals for potential publication. Submission is limited to one paper per student; articles may not be altered or resubmitted with corrections once it has been accepted by our office.

Submissions must include a title page with a complete mailing address, e-mail address, and phone number(s). The second page should include a 100-150 (maximum) word abstract. Beginning on the third page, all pages should be paginated. Text, footnotes, endnotes, and references should be double-spaced, in Times New Roman 12 font, with 1.5” margins on all sides with no headers or footers. Properly formatted, submissions must be no more than 60 manuscript pages.

For further information go to www.blackwellpublishing.com/LSI, or e-mail

lsi-abf@abfn.org, or call (312) 988-6517.

Defective Detection

NPR reports on what coroners' offices really do, and might fail to do. It's not like TV.

Hollywood and Ethnicity on Film

Tung Yin, Lewis & Clark Law School, has published Through a Screen Darkly: Hollywood as a Measure of Discrimination Against Arabs and Muslims, in volume 2 of the Duke Forum for Law and Social Change (2010), which was presented at a symposium at Duke Law School on "The New Face of Discrimination: Muslim in America." Here is the abstract.

In this essay, which was prepared for the Duke Forum for Law and Social Change’s “The New Face of Discrimination: Muslim in America,” I compare Hollywood’s depiction of Arabs and Muslims in terrorism thrillers before and after the 9/11 attacks. The goal of this comparison is to see whether the increased awareness of Arab and Muslim culture since 9/11 has changed the way that Hollywood depicts Arab and Muslim characters in such television shows and movies. I chose Hollywood as the focus because popular culture both reflects and shapes public attitudes. I reach three conclusions: (1) although 9/11 led to an increase in Arab characters, Arab-American actors have not benefited, perhaps an indication of the problematic depictions of such characters; (2) Hollywood has moved toward creating Arab-American counterterrorism agents, but these characters typically play minor roles that understate the key roles played by some (of the few) real-life Arab-American agents; and (3) the new “sleeper cell” characters – seemingly normal Arab-American characters who secretly plan and execute terrorism plots – who are a post-9/11 development, for the most part overstate the nature of the Arab-Americans who have been prosecuted for terrorism-related offenses in this country.

Download the article from SSRN at the link.

Jack Bauer Syndrome

Tung Yin, Lewis and Clark Law School, has published Jack Bauer Syndrome: Hollywood's Depiction of National Security Law, at 17 S. Cal. Interdisc. L.J. 279 (2008), also presented at the 2008 AALS Section on Law and Humanities panel. Here is the abstract.

In this Article, which was presented at the Law & Humanities Section Panel at the 2008 Annual AALS Conference, I examine the way that the Fox television series "24" portrays two issues relevant to national security law: the use of torture to extract information in order to stop an imminent terrorist attack, and the depiction of Arabs as villains (and non-villains) with the concomitant impact on racial profiling and other stereotyping of Arab-Americans and Arabs. I conclude that the depiction of torture is narratively stacked in favor of government agent Jack Bauer. I also conclude that "24" attempts to balance its portrayal so that not all villains are Arabs, and not all Arabs are villains. However, I point out points of improvement in this area.

Download the article from SSRN at the link.

Online Education Humanities Database

Nice mention of the Law and Humanities blog at the Online Education Humanities Database.

Hamlet's Hung Jury

After a notoriously long delay in the proceedings, Prince Hamlet's trial for the murder of Polonius finally got underway in Los Angeles, California (a change of venue from Elsinore was granted--tainted jury pool there). The defense pled insanity, the prosecution argued homicide, and the result after expert testimony and a lot of wrangling was 10 to 2 for conviction. The jurors included actors Helen Hunt and Tom Irwin. Arguing for the prosecution were Deputy District Attorney Danette Meyers and attorney Nathan J. Hochman, for the defense, Blair Berk and Richard J. Hersch. Associate Supreme Court Justice Anthony Kennedy presided over the proceedings, held at the University of Southern California School of Law. More here.

Where Is Cora Crippen?

Dr. Hawley Crippen's wife Cora disappeared sometime in February 1910. A few months later, he and his mistress, Ethel Le Neve, were arrested and stood trial for her murder. Miss Le Neve was acquitted, but Dr. Crippen was found guilty, in one of the most sensational trials Britain had seen. In November, still protesting his innocence of the crime, he was hanged.

For decades few have doubted Dr. Crippen's guilt. Now, forensic investigators from Michigan State University's School of Criminal Justice have determined that the remains discovered in Dr. Hawley Crippen's coal cellar, long presumed to be those of his missing wife Cora, are not hers. They aren't even female.

Based on the genealogical and molecular data presented here, only
one conclusion can be drawn: the remains obtained from the
Crippen’s cellar at 39 Hilldrop Crescent, London, in 1910 were not
those of Dr. Crippen’s wife. It is beyond the scope of this article to
speculate on whose they were (clearly they were human) or how
they came to be in the Crippen’s coal cellar. It must be noted that
the forensic tools available today are far advanced from those
available in 1910, so it is perhaps not surprising that new (and conflicting) results were obtained, as still  happens. Forensic
science in 1910 was in its infancy, and scientists at the time had to rely on the tools and techniques available to them. DNA testing of
remains, such as those found in the Crippen’s (sic) cellar, would today be virtually automatic, producing far more objective results for personal identification than interpretation of small physical abnormalities in
highly decayed flesh. Finally, in light of the data presented here, we can briefly look
at the outcome of Dr. Crippen’s investigation and trial. As noted earlier, Dr. Crippen proclaimed his innocence throughout, stating before his hanging that ‘‘I insist I am innocent…some day evidence
will be discovered to prove it…’’ The heinous crime for which Dr. Crippen was hanged, which intrigued much of the world in 1910, was illogical in many ways. If Dr. Crippen, described as very mild
mannered, had murdered his wife, why did he openly flaunt her absence by selling many of her possessions, and taking his mistress out socially where she sometimes wore his missing wife’s jewelry? Even more perplexing is the manner in which the body was discarded. If a murderer was successful in killing his victim unwitnessed, then dismembering and disposing of the head, arms, legs, and every bone, why go through the ordeal of carefully sectioning out the victim’s viscera (performed in a single piece with reported surgical skill), and burying these soft tissues, excluding anything that could identify sex, in one’s very own basement, along with a small amount of hair and a pajama top? It is these acts (and others) that have long led historical investigators to wonder whether Dr. Crippen actually did murder his wife and whether the cellar remains were hers.  The judge, Lord Richard Alverston, condemned Dr. Crippen to die by hanging. Before the jury’s deliberation, he stated regarding the remains: ‘‘Gentlemen, I think I may pass for the purpose of
your consideration from the question of whether it was a man or woman. Of course, if it was a man, again the defendant is entitled to walk out of that dock.’’ Sexing the remains was impossible at the time, as were other purely objective methods for their identification.  We are thus left with an instance of historical misidentification. Based on the genealogical and genetic investigations presented here, the remains found in Dr. Crippen’s coal cellar were not only not Cora Crippen’s, they were not even female.

Writers, including Patricia Highsmith ("The False Inspector Dew") have used the Crippen story as the basis for intriguing speculation and this new information will fuel the fire. Whose remains were buried in Dr. Crippen's cellar and why? And where is Cora?