Calll For Papers: International Conference on Law, Language, and Discourse

The First International Conference on Law, Language and Discourse


Multiculturalism, Diversity and Dynamicity

City University of Hong Kong with The Hong Kong Polytechnic University

Hong Kong, 20-21 August, 2011


The First International Conference on Law, Language and Discourse invites theoretical studies, applicational cases, and relevant work-in-progress papers on the key issues in Law, Language and Discourse. The theme of the conference “Multiculturalism, Diversity and Dynamicity” promotes research of, and welcomes participation from, researchers of different cultural and language backgrounds from different disciplines and across jurisdictions.



The LLD Conference invites papers on all aspects of law, language and discourse, including, but not limited to:



1. Legislative language

2. Courtroom language

3. Language in the proceeding of investigation (including police interrogation, cover investigation, conversation in prison, etc.)

4. Legal translation & court interpretation

5. Education and training on LLP (Language for Legal Purposes)

6. Language evidence as a system

7. Discourse analysis of legal texts

8. Legal terminology

9. Legal discourse and information retrieval

10. Language planning and Language rights



The conference will be held on 20-21 August 2011, just before the 16th World Congress of Applied Linguistics (AILA2011) (23-28 August 2011, Beijing) and the International Conference on Law, Translation and Culture (28-29 August 2011, Beijing).



Post-conference indexed (CPCI-SSH) proceedings will be published.



Confirmed invited speakers

Vijay Bhatia, City University of Hong Kong

Le Cheng, The Hong Kong Polytechnic University

Winnie Cheng, The Hong Kong Polytechnic University

Malcolm Coulthard, Aston University

Diana Eades, University of New England

Michael Halliday, University of Sydney

Craig Hoffman, Georgetown University

Kyo Kageura, The University of Tokyo

Gilbert Mo, Department of Justice of Hong Kong

Lijin Sha, China University of Political Science and Law

King Kui Sin, City University of Hong Kong

Benjamin T'sou, Hong Kong Institute of Education

Anne Wagner, Université du Littoral Côte d'Opale

Jonathan Webster, City University of Hong Kong

Weiping Wu, Chinese University of Hong Kong



Important dates

Abstract deadline: 15 June 2011 (500-800 words to LLDmall@cityu.edu.hk) [Download the abstract sample.]

Notification of acceptance: 30 June 2011



Registration

Method of payment is described here.

Before 15 July 2011: US$120.00

After 15 July 2011: US$200.00



Method of payment

Please send a bank draft via air mail payable to City University of Hong Kong to International Conference on Law, Language and Discourse C/O Department of Chinese, Translation and Linguistics, City University of Hong Kong, 83 Tat Chee Avenue, Hong Kong. Please also put your name on the back of the bank draft.



Link: http://ctl.cityu.edu.hk/Portal_root/2011/lddmall/ (to be updated)

Canadian Initiative in Law, Culture, and Humanities: Call For Papers

From Diana Young, an announcement:

The Canadian Initiative in Law Culture and the Humanities is inviting proposals for its biennial conference in October. The call for papers is attached, and can also be found on line here. Any inquiries should be directed to

CILCH@carleton.ca,

Canadian Initiative in Law, Culture, and Humanities
Carleton University
C473 Loeb Building
1125 Colonel By Drive
Ottawa, ON, K1S 5B6
Canada

Dis/Locating Law

Biennial Conference of the
Canadian Initiative in Law, Culture and Humanities

Ottawa, Canada


October 20-22, 2011


CALL FOR PAPERS

Dislocation is a phenomenon of space, place and time. To dislocate something is to upset, complicate, or displace it. It involves getting things out of place, out of order, and out of time, or to question if things are indeed in their ‘right’ place and time. Dislocating, then, can be disorienting; it can dislodge comfortable assumptions, and it can unsettle, perhaps even painfully, what has gone before. Dislocation invites different perspectives, produces new cartographies, disrupts teleologies. This conference will feature papers and presentations which unsettle the place of law in relation to political, ethical, social, cultural or symbolic orders.


The Canadian Initiative in Law, Culture and Humanities (CILCH) invites you to participate in its 2011 conference on the theme of dis/locating law. The conference is interdisciplinary, drawing together scholars whose research addresses the intersections among culture, the humanities and law, including but not limited to studies of law and literature, law and film/television, cultural practices of regulation, mediation and law, intersections of cultural theory and the legal, alternative visions of legally coded practices, and so on.


This year’s theme is intentionally broad in order to provide an open-ended focus for exploration. The conference is hosted with the goals of stimulating conversations among diverse scholars with shared interests, of continuing to foster the growing community of law, culture and humanities scholars in Canada, and of contributing to a global network of scholarship in these areas.

If you are interested in giving a paper, hosting a roundtable, or offering another form of presentation (either almost finished works or works in progress), please submit a proposal to CILCH @carleton.ca, as follows:

 

- title of proposed paper/presentation



- 200 word biography of presenter(s)



- contact information for presenter(s)



- an abstract outlining the paper/presentation of a maximum of 300 words



- detail on any technical requirements (data projector, sound system, etc.)







We very much look forward to receiving your proposal and to yet another productive and thought-provoking CILCH gathering.




The deadline for submission is June 15, 2011.

The Role of Labor Songs In Labor Movements

Raymond A. Franklin has published The Contemporary Roles of Labor Songs in the St. John's Legal Studies Research Paper series. Here is the abstract.

Music has played a critical role for workers throughout the history of the labor movement. Music gives an opportunity to rebel. It gives an opportunity to argue policy. It gives an opportunity to be heard. Songs written in protest, or in furtherance of a cause, give a sense of historical and political climate of a particular era. This article, “The Contemporary Roles of Labor Songs” draws attention to three especially important periods in the shaping of labor history, the 1930s, 1960s and 1980s, highlighting the representative impact a particular song - “Which Side Are You On?,” “Salt of the Earth,” and “There is Power in a Union" - had in each of these decades.

Download the paper from SSRN at the link.

Literary Influences On the Supreme Court Opinion

The New York Times' Adam Liptak reports that Bryan A. Garner, word maven, author of Garner's Modern American Usage and editor of Black's Law Dictionary, has interviewed the justices on their writing styles and gotten some pointers for lawyers anxious to influence them through Supreme Court briefs. You can read about Mr. Garner's interviews here and in the Scribes Journal of Legal Writing, volume 13.

Some New Books of Interest

Anderson, Mark Lynn, Twilight of the Idols: Hollywood and the Human Sciences in 1920s America (University of California Press, 2011). Discusses the impact of Hollywood on ideas of deviance.

Arthos, John, Speaking Hermeneutically: Understanding in the Conduct of a Life by (University of South Carolina Press, 2011). Discusses Heidegger, Gadamer, and Ricoeur.

California Women and Politics: From the Gold Rush to the Great Depression (Robert W. Cherny, Mary Ann Irwin, and Ann Marie Wilson eds.; University of Nebraska Press, 2011).

Datta, Venita, Heroes and Legends of Fin-de-Siecle France (Cambridge University Press, 2011). Discusses Cyrano de Bergerac, Joan of Arc, and Napoleon Bonaparte.

Ferguson, Kathy E., Emma Goldman: Political Thinking In the Streets (Rowman & Littlefield, 2011).

Dierkes-Thrun, Petra, Salome's Modernity: Oscar Wilde and the Aesthetics of Transgression (University of Michigan Press, 2011). Depictions of Oscar Wilde's Salome in other media.


Farrier, David, Postcolonial Asylum: Seeking Sanctuary Before the Law by David Farrier (Liverpool University Press, 2011). Combines law and popular culture to examine depictions of asylum seeking in the Commonwealth and Europe.


Forces of Compassion: Humanitarianism Between Ethics and Politics (Erica Bornstein and Peter Redfield, eds.; SAR Press, 2011). On the nonprofit Doctors Without Borders.

Greven, David, Representations of Femininity in American Genre Cinema: The Woman's Film, Film Noir, and Modern Horror (Palgrave Macmillan, 2011). Includes analyses of The Heiress and Carrie among other films.

The Intellectual and Cultural World of the Early Modern Inns of Court (Jayne Elizabeth Archer, Elizabeth Goldring, and Sarah Knight eds.; Manchester University Press, 2011).

Jones, David Houston, Samuel Beckett and Testimony (Palgrave Macmillan, 2011).

Kezar, Dennis, Guilty Creatures: Renaissance Poetry and the Ethics of Authorship (Oxford University Press, 2011). Examines works by Skelton, Spenser, and Shakespeare.

Monteyne, David, Fallout Shelter: Designing For Civil Defense in the Cold War (University of Minnesota Press, 2011).

Muzaka, Valbona, The Politics of Intellectual Property Rights and Access to Medicines (Palgrave Macmillan, 2011).

Noble, Louise, Medicinal Cannibalism in Early Modern English Literature and Culture (Palgrave Macmillan, 2011).

Polzonetti, Pierpaolo, Italian Opera in the Age of the American Revolution (Cambridge University Press, 2011).

Religion, Politics, and Globalization: Anthropological Approaches (Galina Lindquist and Don Handelman, eds.; Berghahn Books, 2011).

Taylor, Clarence, Reds at the Blackboard: Communism, Civil Rights, and the New York City Teachers Union (Columbia University Press, 2011).

Werbner, Richard, Holy Hustlers, Schism, and Prophecy: Apostolic Reformation in Botswana (University of California Press, 2011). On Eloyi. Includes a DVD.

American Bar Association Announces 2011 Gavel Award Winners

From an ABA press release:

The American Bar Association announced today its selections for the 54th presentation of the Silver Gavel Awards for Media and the Arts, which recognize outstanding work that fosters the American public’s understanding of law and the legal system. This is the ABA’s highest honor in recognition of this purpose.

The ABA will present six Silver Gavels and two honorable mentions from the nearly 200 entries received in all eligible categories, which include: books, magazines, newspapers, commentary, drama and literature, documentaries, television, radio and websites.

Selection criteria includes: how the entry addresses the Gavel Awards’ purpose and objectives; educational value of legal information or issues treated; impact on, or outreach to, the public; thoroughness and accuracy in presentation of issues; creativity and originality in approach to subject matter and effectiveness of presentation; and demonstrated technical skill in production of entry.


The awards presentation will be July 19 at the National Press Club in Washington, D.C. Dan Abrams, legal analyst for ABC News, will be the featured speaker.


The following is a complete list of winners with a short description of their work:



MAGAZINES

Silver Gavel

Profiting from Fallen Soldiers

Bloomberg Markets

New York

David Evans, Senior Writer


“Fallen Soldiers’ Families Denied Cash as Insurers Profit” http://www.bloomberg.com/news/2010-07-28/fallen-soldiers-families-denied-cash-payout-as-life-insurers-boost-profit.html

“Veterans Agency Made Secret Deal Over Benefits” http://www.bloomberg.com/news/2010-09-14/veterans-agency-arranged-secret-deal-with-prudential-over-soldier-benefits.html

“Taxpayer-Funded Profits” http://www.bloomberg.com/news/2010-09-30/taxpayer-funded-profits.html



Exposes how life insurance companies have profited from death benefits owed to families of service members and other government employees, examining causes and consequences.


NEWSPAPERS

Silver Gavel

Hounded: Debtors and the New Breed of Collectors

Star Tribune

Minneapolis

Chris Serres, Business Reporter

Glenn Howatt, CAR Reporter

www.startribune.com/hounded

A six-part series that explores recent changes in the debt collection industry, reveals how people with unpaid bills are being jailed, and examines consumer protection and regulation.

Honorable Mention

Detention Dilemma

ProPublica

New York, New York

Dafna Linzer, Senior Reporter

Chisun Lee, Reporter

Krista Kjellman Schmidt, Deputy Editor of News Applications

www.propublica.org/detention

A series of 14 articles about detention policies at Guantanamo under the Obama administration, which also considers the role of the federal courts and Congress.


RADIO

Silver Gavel

Bonding for Profit

National Public Radio

Washington, D.C.

Laura Sullivan, Correspondent

Steven Drummond, Editor

http://www.npr.org/series/122954677/behind-the-bail-bond-system

A three-part investigation into the bail bond process in the U.S. criminal justice system.



TELEVISION

Silver Gavel

The Lord is Not on Trial Here Today

Jay Rosenstein Productions

Champaign, Illinois

Jay Rosenstein, Producer, Writer, Director, Photographer

Jude Leak, Editor

Wendy Blackstone, Composer

David Ogden Stiers, Narrator

http://www.jayrosenstein.com/pages/lord.html


A one-hour PBS film that tells the compelling personal story that led to a landmark 1948 U.S. Supreme Court decision on the separation of church and state in public schools, McCollum v. Board of Education.



DOCUMENTARIES

Silver Gavel

A Call to Act: Ledbetter v. Goodyear

The Documentary Group

New York

Robe Imbriano, Producer, Writer, Director

http://www.thedocumentarygroup.com/featuredProject.php?pid=73

A 22-minute documentary that tells the contemporary story of Lilly Ledbetter, who took her fight for fair pay through the U.S. court system and the halls of Congress.

BOOKS

Silver Gavel

Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices

Twelve/Hachette Book Group

New York

Noah Feldman, Author

http://www.twelvebooks.com/books/scorpions.asp



Author Noah Feldman offers a group biography of Franklin Roosevelt’s four greatest Supreme Court Justices: Hugo Black, William O. Douglas, Felix Frankfurter and Robert Jackson.



Honorable Mention

The Death of American Virtue: Clinton vs. Starr

Pittsburgh

Crown Publishers

Ken Gormley, Author

http://www.amazon.com/Death-American-Virtue-Clinton-Starr/dp/0307409449



Presents a historical narrative and analysis of the events leading up to the impeachment trial of President Bill Clinton.



With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

Dirty Sexy Politics

Sometimes what turns up in the headlines can seem too good to be true if you're a tv scriptwriter. The New York Times' Ginia Bellafonte compares plots on the legal drama "The Good Wife" to real life here, and suggests what its writers might glean for future storylines from the unhappy circumstances unfolding around Arnold Schwartzenegger and Dominique Strauss-Kahn.

Call For Papers: Windsor Review of Legal and Social Issues

From the Windsor Review of Legal and Social Issues

Call For Papers


The Windsor Review of Legal and Social Issues

The Windsor Review of Legal and Social Issues is now accepting submissions for Volumes 31 and 32.

The Windsor Review of Legal and Social Issues invites you to submit original, scholarly work to be considered for its forthcoming issues. Currently, we are accepting papers submitted by academics, practitioners, articling students and current law students on any legal topic of your choice. Papers should not exceed 20,000 words including footnotes. Footnotes should conform to the Canadian Guide to Uniform Legal Citation (McGill Guide, 7th edition).

As an inter-disciplinary law journal, the WRLSI strives to use the study of law as a vehicle for social change. Our journal endeavours to be a resource for professionals, students and academics. Legal libraries both nationally and globally subscribe to the WRLSI. Our legal journal has also been made available through electronic databases such as Quicklaw/LexisNexis, Westlaw, and Hein Online.

VOLUME 31

Deadline for abstracts (optional) - June 15, 2011

Deadline for manuscripts - July 31, 2011

Expected date of publication - December 2011

VOLUME 32

Deadline for abstracts (optional) - October 15, 2011

Deadline for manuscripts - December 1, 2011

Expected date of publication - April 2012

FURTHER INFORMATION: Submissions received after these deadlines will be reviewed at the discretion of the Editorial Board. Questions can be directed to: wrlsi@uwindsor.ca

Sincerely,

Desiree D'Souza

Editor-in-Chief

Windsor Review of Legal and Social Issues

Faculty of Law, University of Windsor

wrlsieditor@uwindsor.ca

http://www.uwindsor.ca/wrlsi

Conference Announcement and Call For Papers: Loyola (Chicago) Law School Second Annual Constitutional Law Colloquium

From Loyola (Chicago) Law School

Conference Announcement and Call for Papers


The Loyola Second Annual Constitutional Law Colloquium at Loyola Chicago

October 21 & 22, 2011

Loyola University Chicago School of Law is organizing the SECOND ANNUAL CONSTITUTIONAL LAW COLLOQUIUM at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611. The event will begin on Friday morning, October 21 and end midday on Saturday, October 22, 2011.

CONFERENCE ORGANIZERS: Professor John E. Nowak, Raymond & Mary Simon Chair in Constitutional Law, Professor Juan Perea, Professor Alexander Tsesis, Professor Michael J. Zimmer.

The Law Center is located on Loyola's Water Tower campus, near Michigan Avenue's Magnificent Mile, Lake Michigan, Millenium Park, the Chicago Art Institute, and Chicago Symphony Center.

This is the second annual Loyola conference bringing together constitutional law scholars at all stages of their professional development to discuss current projects, doctrinal developments in constitutional law, and future goals. We hope to schedule presentations for all who submit. In this way, we will provide a forum for the vetting of ideas, invaluable opportunities for informed critiques, and networking opportunities. Presentations will be grouped by subject matter.

PAPER SUBMISSION PROCEDURE: This announcement invites abstract submissions of 150 to 200 words from Constitutional Law professors interested in contributing to the current debates concerning constitutional theory and Supreme Court rulings. The goal of the conference is to allow professors to develop new ideas with the help of supportive colleagues on a wide range of constitutional law topics.

The submission deadline for abstracts is June 15, 2011.

Topics, abstracts, papers, questions, and comments should be submitted to the Program Administrator Carrie Bird, at: cbird@luc.edu

Participants are expected to pay their own travel expenses. Loyola will provide facilities, support, and continental breakfasts on Friday and Saturday, lunch on Friday and Saturday, and a dinner on Friday night.

There are numerous reasonably priced hotels within walking distance of the Loyola School of Law and Chicago's Magnificent Mile.

Adoption of English Law In Maryland

Garrett Power, University of Maryland School of Law, has published Adoption of English Law in Maryland as University of Maryland Legal Studies Research Paper No. 2011-24. Here is the abstract.

 

It served as an axiom of Maryland’s constitutional history that settlers carried with them the "rights of Englishmen" when they crossed the Atlantic. In 1642 the Assembly of Maryland Freemen declared Maryland’s provincial judges were to follows the law of England. Maryland’s 1776 Declaration of Independence left a legal lacuna - what were to be the laws and public institutions of this newly created sovereign entity? This paper considers the manner in which the sovereign state of Maryland filled the void.

Download the paper from SSRN at the link.

John Stuart Mill, Oliver Wendell Holmes, and the Defense of Free Speech

Irene M. Ten Cate, Columbia Law School, has published Speech, Truth, and Freedom: An Examination of John Stuart Mill's and Justice Oliver Wendell Holmes's Free Speech Defenses in volume 22 of the Yale Journal of Law and the Humanities (2010). Here is the abstract.

This Article is the first in-depth comparison of two classic defenses of free speech that have profoundly influenced First Amendment law: John Stuart Mill's On Liberty and Justice Holmes's dissenting opinion in Abrams v. United States. Both defenses argue that dissenting speech plays a critical role in a collective truth-seeking endeavor, and they are often grouped together as advocating for a marketplace of ideas, a metaphor that has become a fixture in American constitutional law.

However, this Article finds that, on closer examination, the two theories are grounded in fundamentally different views of the quest for truth and the role of speech in this undertaking. Mill envisions a process in which clashes between contrary opinions lead to progress in uncovering universal, unchangeable truths. Individuals who express unpopular views are indispensable, as their challenges to prevailing opinions keep the search for truth, and the meaning of already discovered truths, alive. The mentions of truth in the Abrams dissent, consistent with elaborations on the subject in Holmes's scholarly writings and correspondence, are best read as referring to choices made by majorities or dominant forces in response to internal and external challenges to the status quo. Holmes's commitment to free speech appears to be based primarily on its role in safeguarding a process by which decision-making factions can be formed This Article argues that a key to understanding the differences between the two defenses lies in the ideas about freedom that are at the heart of Mill and Holmes's world views. Mill believes that individuals are free in the sense that they have the ability to choose their beliefs, even if they frequently opt for the easier alternative of uncritically following the mainstream. At the same time, he believes that a society can create conditions that are conducive to individual flourishing. Mill's free speech defense is based not only on the argument that individuals are more likely to pick true beliefs if presented with several alternatives, but also on the notion that a society that prizes dissent promotes the development of character traits in its citizens that will in turn allow that society to prosper. Holmes, on the other hand, views individuals as constrained by firmly rooted preferences shaped by accidental circumstances, but regards society as constantly evolving and adjusting and, to a large extent, free to determine its future course. His defense is staked on a constitutional commitment to safeguarding the conditions for collective self-determination in an uncertain and perpetually changing world.

Download the article from SSRN at the link.

"Nothing To Hide"

Daniel J. Solove, George Washington University Law School, has published the first chapter of Nothing to Hide: The False Tradeoff between Privacy and Security (Yale University Press, 2011). Here is the abstract.

"If you've got nothing to hide," many people say, "you shouldn't worry about government surveillance." Others argue that we must sacrifice privacy for security. But as Daniel J. Solove argues in this book, these arguments and many others are flawed. They are based on mistaken views about what it means to protect privacy and the costs and benefits of doing so.

In addition to attacking the "Nothing-to Hide Argument," Solove exposes the fallacies of pro-security arguments that have often been used to justify government surveillance and data mining. These arguments - such as the "Luddite Argument,"the "War-Powers Argument," the "All-or-Nothing Argument," the "Suspicionless-Searches Argument," the "Deference Argument," and the "Pendulum Argument" - have skewed law and policy to favor security at the expense of privacy.

The debate between privacy and security has been framed incorrectly as a zero-sum game in which we are forced to choose between one value and the other. But protecting privacy isn't fatal to security measures; it merely involves adequate oversight and regulation.

The primary focus of the book is on common pro-security arguments, but Solove also discusses concrete issues of law and technology, such as the Fourth Amendment Third Party Doctrine, the First Amendment, electronic surveillance statutes, the USA-Patriot Act, the NSA surveillance program, and government data mining.

Download the text from SSRN at the link.

Morality and the Practice of Law

Kieran McEvoy, Queen's University Belfast School of Law, has published What Did the Lawyers Do During the ‘War’? Neutrality, Conflict and the Culture of Quietism at 74 Modern Law Review 350 (2011). Here is the abstract.

Using Northern Ireland as a case study, this paper explores how lawyers responded to the challenges of entrenched discrimination, sustained political violence and an emerging peace process. Drawing upon the literature of the sociology of lawyering, it examines whether lawyers can or should be more than ‘paid technicians’ in such circumstances. It focuses in particular upon a number of ‘critical junctures’ in the legal history of the jurisdiction and uncouples key elements of the local legal culture which contributed to an ethos of quietism. The paper argues that the version of legal professionalism that emerged in Northern Ireland was contingent and socially constructed and, with notable exceptions, obfuscated a collective failure of moral courage. It concludes that facing the truth concerning past silence is fundamental to a properly embedded rule of law and a more grounded notion of what it means to be a lawyer in a conflict.

The full text is not available from SSRN.

Still Writing After All These Years

Mark Bauerlein reflects on Stanley Fish's career and achievements in a column in the Chronicle of Higher Education. Link here.

The Miranda Warning In Popular Culture

Ronald L. Steiner, Chapman University School of Law, Rebecca Bauer, and Rohit Talwar have published The Rise and Fall of the Miranda Warnings in Popular Culture in volume 59 of the Cleveland State Law Review (2011). Here is the abstract.

The U.S. Supreme Court’s June 2000 decision in Dickerson v. United States was probably the first criminal procedure decision celebrated with an editorial in Broadcasting & Cable magazine. Noting that Chief Justice William Rehnquist opinion relied on the warnings’ well-established place in popular culture, the editorial acknowledged that, "[n]ext to the pledge of allegiance, the Miranda rights may be the most familiar common litany of the baby-boomer generation, thanks to TV." Professors Richard Leo and George Thomas have similarly observed "suspects are likely to have heard Miranda so many times on television that the Miranda warnings may have a familiar, numbing ring," and that "it is because of these shows and the mass media more generally - not the police, the legal system, or Supreme Court doctrine - that Miranda has become so much a part of our national culture." Critical to the Dickerson Court’s reaffirmation of Miranda was the fact of the public’s overwhelming awareness of Miranda and the fact that "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture." Clearly, television dramas, and particularly police procedurals, get the credit for informing the public about the Miranda warnings. But, whether praising or skeptical toward portrayals of Miranda and its embedding in popular culture and the public consciousness, most study and commentary presumes that the consumers of serial police dramas on American television have had repeated exposure to the Miranda warnings. Dickerson was decided in part on the same premise.

However, it may be that most people writing about the ubiquitous nature of Miranda in popular culture are describing a popular culture they remember rather than popular culture as it now exists. Judges and scholars may remember Miranda warnings used as prominent script elements in the television of their youth - the generation that came of age in the era of "Dragnet" and "Adam-12" heard Miranda warnings more times than they could count. But, as Broadcast & Cable noted, "[w]e’ve not heard a TV Miranda read in a while." Following up on that observation, a look at several iconic cop shows from the years since Miranda demonstrates a sharply diminished role for Miranda in popular culture. What happens to the Dickerson rationale if there isn’t the repeated popular culture representations of Miranda that created a public familiar with and expecting of a caution that they have the right to remain silent? Can Miranda survive in law once its television role has been left on the cutting room floor?

Download the article from SSRN at the link.

Are Judges Political Actors?

William P. Marshall, University of North Carolina, Chapel Hill, School of Law, has published Judicial Takings, Judicial Speech, and Doctrinal Acceptance of the Model of the Judge as Political Actor in volume 6 of the Duke Journal of Constitutional Law & Public Policy (2011). Here is the abstract.

The criticism that a judge has injected her policy preferences into her judicial decision making is just that - a criticism. But for years, academics from a variety of disciplines have set forth a rich literature asserting that judges’ policy preferences, rather than adhesion to neutral legal principles, determine legal results in close cases. Much of this writing, referred to here as Judicial Political Realism, has been based upon empirical studies which show that a judge’s ideology (usually determined by referencing the political party of the judge’s appointing president) significantly explains patterns of judicial votes.

Not surprisingly, the Judicial Political Realist literature generally has not been warmly received by the practicing bar, judges, and (most) legal academics because most lawyers, judges, and legal academics like to believe that legal rules, legal doctrine and legal reasoning matter even in close cases. Against this background, however, it is interesting to note two recent United States Supreme Court cases in which the Court, or at least some of its Justices, has implicitly appeared to allow the notion that judges are political actors to infiltrate constitutional doctrine. In the first, Republican Party of Minnesota v. White, a Court majority ruled that a state could not prohibit candidates for judicial office from announcing their views on issues that might come before them. For First Amendment purposes, judicial candidates were to be treated no differently than legislative candidates; the voters were entitled to know the candidates’ views on the issues and they would be expected to support or oppose a candidate on that basis. As such, the implicit suggestion in White mirrors the judges-as-political-actors critique-- judges, like legislators, bring political agendas to their service.

In the second, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, four Justices, in an opinion authored by Justice Scalia, again appeared to strongly embrace the Judicial Political Realist claim. In Stop the Beach, the four Justices argued that the Court should recognize a doctrine of ‘judicial takings,’ meaning that a change in property rights resulting from a judicial opinion should entitle the aggrieved property owner to the same sort of compensation that a property owner would receive if the change to her rights occurred as a result of legislative enactment. To these Justices, there was no constitutional difference between judicial and legislative action for purposes of the Takings Clause. As such, even more graphically than White, the judicial takings theory advanced in Stop the Beach sets forth the vision of judges as political actors. Judicial decisions are not to be treated as interpretations of law but as exercises of raw political power akin to legislative enactment.

The Court in neither White nor Stop the Beach, of course, stopped to discuss the vision of judges as political actors inherent in their opinions. This paper does so. After first canvassing the specifics of both the White and Stop the Beach opinions, it analyzes what both cases say about the nature of judging and judicial institutions.

Download the article from SSRN at the link.

Things Are Looking Up: The US Supreme Court's Use of Dictionaries

Jeffrey L. Kirchmeier, CUNY School of Law, and Samuel Thumma, Perkins Coie, have published Scaling the Lexicon Fortress: The United States Supreme Court’s Use of Dictionaries in the Twenty-First Century, in volume 94 of the Marquette Law Review (2010). Here is the abstract.

This Article examines the Court’s use of dictionaries in the first decade of the twenty-first century, building on previous research by Professor Kirchmeier and Judge Thumma regarding the Supreme Court’s history of using dictionaries: Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court’s Use of Dictionaries, 47 BUFF. L. REV. 227 (1999); Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Remains a Fortress: An Update, 5 GREEN BAG 51 (2001).

During Supreme Court Terms 2000-2001 through 2009-2010, the Justices have referenced dictionary definitions to define nearly 300 words or phrases. Yet the Court has never expressly explained the proper role and use of the dictionary in American jurisprudence. The Article studies the frequency and the approach the Justices have taken to citing dictionaries in the new century, and it considers the Court’s lack of a reasoned process for selecting or using dictionaries.

Part I examines the frequency of dictionary use in the new century as compared to past use, comparing the different Justices with respect to their dictionary usage and the dictionaries most frequently cited by the Court. Part II addresses the stages of dictionary use, from the initial decision to use a dictionary to define a word to the selection of the dictionary and the choice of definitions. Part III examines some recent cases that illustrate the approaches taken in using dictionaries to define terms from various sources, including the United States Constitution, statutes, and prior cases. The Article includes three comprehensive appendices that compile information from the twenty-first century cases listing: (1) the terms defined by the Court with references to the cases; (2) the Justices who have used a dictionary in opinions (along with their frequency of use and which dictionaries are used); and (3) the dictionaries used by the Court. These appendices, when combined with the authors’ previous articles examining the Supreme Court’s dictionary use through the twentieth century, provide a comprehensive compilation of the use of dictionaries since the Court began.

The Article concludes that, in the twenty-first century, the Court continues to use dictionaries at a high rate with little guidance for parties, lawyers or others regarding when to turn to dictionaries, which dictionaries to use, and how to use dictionaries. Although the authors are able to deduce several principles from the Court’s history, to date, the United States Supreme Court has issued no definitive decision squarely addressing the proper use of the dictionary. The ongoing usage of dictionaries by the United States Supreme Court and other courts continues to demonstrate the need for such guidance.

Download the article from SSRN at the link.

LCCHP Announces Student Writing Competition For 2011

The Lawyers' Committee for Cultural Heritage Preservation (LCCHP) announces its 2011Student Writing Competition in Cultural Heritage Law. The deadline is June 10th.

LCCHP is pleased to announce its fifth annual Student Writing Competition in Cultural Heritage Law. The deadline for this year's submissions is 10 June 2011. The first place winner will receive a prize of $1000, while the second place winner will receive $500. The winning papers may also be offered publication.


Competition Details

The submitted paper must be the sole work product of a student author who is currently enrolled in or who has recently graduated from an accredited law school.

The paper must be sponsored by a faculty member at the student's law school.


It must also follow law review style and formatting.


Suitable papers may address any aspect of cultural heritage law, including art, cultural property, historic preservation, indigenous peoples, and intangible heritage (but not intellectual property, except as it relates to cultural heritage).

Only papers written after June 2010 — and not previously published — are admissible.

Only one paper may be submitted per student.

Papers must be electronically submitted directly by the student or by a faculty sponsor on the student's behalf.

The judges will focus on the student's ability to critically analyze a current issue and present a solution OR to conduct legal historical research using original sources.



Two prizes will be awarded: a first place prize of $1000 and a second place prize of $500.

The winning papers may also be offered publication in the Journal of Cultural Heritage Law.



The deadline for the 2011 Competition is 10 June 2011.



To learn more, and see past winners, visit the official website.

New Law and Crime Related Shows For Fall

The networks are beginning to hint at their fall line-ups (more news should come next week). As one should expect, lawyers and law-related dramas figure mightily in new shows for the coming season. According to the Hollywood Reporter:

Fox is offering such fare as the spinoff "The Finder," (derived from the hit "Bones") from 20th Century Fox TV, and J. J. Abrams' mysterious crime drama "Alcatraz."  We won't be seeing a fourth season of "Lie To Me," based on the the work of psychologist Paul Ekman--it's cancelled. Law & Order: Los Angeles (nicknamed LOLA) is probably not returning on NBC, but stay tuned for a return of "Harry's Law," the Kathy Bates vehicle, and an adaptation of John Grisham's novel "The Firm." ABC is likely to bring back "Body of Proof," with Dana Delany as a surgeon who moves into a second career as a medical examiner), and a new "Charlie's Angels," a 21st version of the venerable Aaron Spelling series (1976-1981).

CBS will be topheavy with crime and criminals, with "The Mentalist," "Criminal Minds," twins "NCIS," and "NCIS: Los Angeles," and comedy "Mike and Molly" (well, Mike is a police officer!) all returning. "The Good Wife," a legal drama featuring the wonderful Julianna Margulies as an associate with a complicated home life and a cheating husband (Chris Noth) and Christine Baranski as a managing partner, will also probably return. Among new shows on CBS we are likely to see "The 2-2," (a new name: it was formerly titled "Rookies,") and another J. J. Abrams show, "Person of Interest," about a billionaire who helps fight crime (where do all these mysterious billionaires come from? Is he the same one who hires Charlie's Angels?) A show we may not see returning is "The Defenders" with Jim Belushi and Jerry O'Connell. Too bad; I have grown to like that show--the stars, including a much underused Jurnee Smollett, have good chemistry, and the writing is snappy. A better call might have been to move it to another night and let it find its audience.

Trying Too Hard To Understand the Constitution?

John F. Muller, Yale Law School, has published The Common Law Culture and the Enlightenment Ideal. Here is the abstract.

In this Article, I argue that some truths about our constitutional system are best left misunderstood. I make this argument by defending a self-deception at the core of our collective self-understanding. We often speak as if our constitutional system rests on an uncompromising inquiry into constitutional meaning. I contest the descriptive accuracy of this conventional wisdom yet defend the normative value of its perpetuation. The notion that we uncompromisingly pursue true constitutional meaning, I argue, derives from a deep constitutional commitment to Enlightenment thought. This notion, however, ignores a comparably deep constitutional commitment to the common law tradition, which privileges some considerations ahead of true constitutional meaning. Although we pay fealty to Enlightenment, we follow a contradictory path informed by both the Enlightenment ideal and the common law culture. This contradictory state of affairs and the misunderstanding upon which it rests, I argue, perpetuate a redemptive vision of our constitutional system vital to its preservation.

Download the paper from SSRN at the link.

Nordic Law and Social Justice

Pia Letto-Vanamo, University of Helsinki, Faculty of Law, has published Law and (Social) Justice - Nordic Perspectives as Helsinki Legal Studies Research Paper No. 5. Here is the abstract.

In the following, questions related to the relationship between law and justice will be discussed. The starting point lies mainly in legal history, but also topics relevant for current legal argumentation will be handled. The focus will be on what we call Nordic Law. It will be argued that there is something we can call justice and that positive law can - or should - be measured by it. With a historical introduction and some examples taken from Nordic legal literature, the author suggests that there are different "techniques" for bringing idea(s) of justice within modern legal systems. These techniques are historically determined, and there are local variations even within the "Nordic legal family" in their use. And there are differences between legal orders based on their openness to corrections for justice. Thus, when the meaning and future possibilities of the social justice concept in various legal systems is compared, the "technical" dimension - that of functions and means of various legal actors, especially their role and style in legal argumentation - cannot be neglected. In the following, techniques of legal scholarship will be discussed in particular.

Download the paper from SSRN at the link.




 

The Law School Experience

Adrien K. Wing, University of Iowa College of Law, has published One L Redux at 78 University of Missouri-Kansas City Law Review 1119 (2010). Here is the abstract.

This article is the personal story of Adrien Wing’s first year at law school and her struggle with prejudice as she tried to shatter the glass ceiling at Stanford Law School. She wrote this article 30 years after graduation while she was at her alma mater preparing for a reunion. It concludes with a commentary on improving legal teaching methods and imparting wisdom to her students.



"When they asked what I thought now about the 1L year, about law school in general, I said, ‘Despite the pain and agony, I would do it all again. I have learned that the law can have soul. The law can have heart. And I hope that in my teaching, I have shown generations of students that this must be so.'"

Download the article from SSRN at the link.

The Origins of Law

Jacques DeVille, University of the Western Cape, has published On Law’s Origin: Derrida Reading Freud, Kafka and Lévi-Strauss in volume 7 of the Utrecht Law Review (April 2011). Here is the abstract.

This article's main focus is 'Before the Law', a text by Derrida on Kafka's Before the Law, in which Derrida also comments on Freud's Totem and Taboo. Freud, in this text, enquires into the origins of religion, morality, social institutions and law. He contends that this origin is to be found in a crime, the killing of the primal father by a band of brothers, followed by the institution of totemism and the incest prohibition. Freud's psychoanalytical account of the origins of the totem and the prohibition of incest has been challenged from various quarters. The article enquires whether Freud's Totem and Taboo and its theory of the primal horde in relation to the origins of law should be dismissed in light of these challenges, or whether some insight can still be gained from it. The second option is affirmed, with Derrida's 'Before the Law' pointing to the importance of reading Freud in a way analogous to Kafka's Before the Law, and more specifically to the need for a reconsideration of the originary nature of the Oedipus complex, so as to arrive eventually at a kind of 'pre-origin' of law.

Download the article from SSRN at the link.

What Happened After Midnight?

Jed Glickstein, Yale Law School, has published After Midnight: The Circuit Judges and the Repeal of the Judiciary Act of 1801. Here is the abstract.

A student of law or American history almost always encounters the midnight judges as a mere footnote to Marbury v. Madison. Yet despite an outpouring of work on the conflict between the Republicans and the federal judiciary in the wake of the Election of 1800, insufficient attention has been paid to the judges’ role in the crisis they served to precipitate. This Article aims to correct that oversight.



Drawing on a wide variety of documentary evidence, including a cache of archival letters between the judges that has escaped notice to date, it sketches a comprehensive picture of the judges’ efforts in defense of their offices. It also adds important new details and contextualizes others, and corrects a persistent misconception in the existing literature. And, by taking a broader perspective than the standard Supreme Court-centered account of the repeal of the Judiciary Act of 1801, it highlights the ways in which practical, political, and constitutional factors shaped and constrained the (non)resolution of the episode’s core issue: the constitutionality of abolishing the office of a sitting judge. This new evidences argues for a revised understanding that puts the midnight judges, if not on the marquee, at least in a supporting role in working out the meaning of the repeal.

Download the paper from SSRN at the link.

The Ancient Greeks' Ideas of Injustice and Guilt

Carlos Arturo Gómez Pavajeau, Universidad Externado de Colombia, has published Injusto Y Culpabilidad En Los Grandes Filósofos Griegos (Unfair and Guilt in the Great Greek Philosophers), number 91 in Derecho Penal y Criminologia (2010). Here is the abstract.

The period after the obscurantism of the Middle Ages was called, quite rightly, as the Renaissance. This expression refers, no doubt thinking of the great Greek philosophers, however, with regard to criminal law, very little has worked his connections with such thinking, it seems that there only influenced the illustration, with proposals from scratch and no reference to the past. With this contribution I want to prove that this is not entirely true, since, mutatis mutandi keeping some differences, the most important achievements of modern criminal law were explicitly or implicitly contained in the thinking of the great Greek philosophers.

Note that the full text is in Spanish.

The Persistence of Culture: The Case of Anti-Semitism in German Communities From the Medieval Period to the 1930s

Nico Voigtländer, University of California, Los Angeles, School of Management, & National Bureau of Economic Research, and Hans-Joachim Voth, Universitat Pompeu Fabra, Faculty of Economic and Business Sciences, and Centre for Economic Policy Research (CEPR) have published Persecution Perpetuated: The Medieval Origins of Anti-Semitic Violence in Nazi Germany. Here is the abstract.

How persistent are cultural traits? This paper uses data on anti-Semitism in Germany and finds continuity at the local level over more than half a millennium. When the Black Death hit Europe in 1348-50, killing between one third and one half of the population, its cause was unknown. Many contemporaries blamed the Jews. Cities all over Germany witnessed mass killings of their Jewish population. At the same time, numerous Jewish communities were spared these horrors. We use plague pogroms as an indicator for medieval anti-Semitism. Pogroms during the Black Death are a strong and robust predictor of violence against Jews in the 1920s, and of votes for the Nazi Party. In addition, cities that saw medieval anti-Semitic violence also had higher deportation rates for Jews after 1933, were more likely to see synagogues damaged or destroyed in the Night of Broken Glass in 1938, and their inhabitants wrote more anti-Jewish letters to the editor of the Nazi newspaper Der Stürmer.

Download the paper from SSRN at the link.

Dan Solove's New Book Makes Its Debut

Daniel Solove's new book Nothing To Hide: The False Tradeoff Between Privacy and Security (Yale University Press, 2011) is now available. Here's a description.

"If you've got nothing to hide," many people say, "you shouldn't worry about government surveillance." Others argue that we must sacrifice privacy for security. But as Daniel J. Solove argues in this important book, these arguments and many others are flawed. They are based on mistaken views about what it means to protect privacy and the costs and benefits of doing so. The debate between privacy and security has been framed incorrectly as a zero-sum game in which we are forced to choose between one value and the other. Why can't we have both?
In this concise and accessible book, Solove exposes the fallacies of many pro-security arguments that have skewed law and policy to favor security at the expense of privacy. Protecting privacy isn't fatal to security measures; it merely involves adequate oversight and regulation. Solove traces the history of the privacy-security debate from the Revolution to the present day. He explains how the law protects privacy and examines concerns with new technologies. He then points out the failings of our current system and offers specific remedies. Nothing to Hide makes a powerful and compelling case for reaching a better balance between privacy and security and reveals why doing so is essential to protect our freedom and democracy.

Although the publication date reads May 31, I've already received my copy.

Holmes' Dissents

Allen Mendenhall, Auburn University, Temple University, West Virginia University, & Furman University, has published Holmes and Dissent (forthcoming in the Journal Jurisprudence). Here is the abstract.

Holmes saw the dissent as a mechanism to advance and preserve arguments and as a pageant for wordplay. Dissents, for Holmes, occupied an interstitial space between law and non-law. The thought and theory of pragmatism allowed him to recreate the dissent as a stage for performative text, a place where signs and syntax could mimic the environment of the particular time and place and in so doing become, or strive to become, law. Dissents were, for Holmes, sites of aesthetic adaptation. The language of his dissents was acrobatic. It acted and reacted and called attention to itself. The more provocative and aesthetic the language, the more likely it was for future judges and commentators to return to that dissent to reconsider Holmes’s argument – the more likely, that is, that non-law might become law. In this sense, language for Holmes was not just a vehicle for law but also law itself. This article argues that Holmes’s dissents both reflect and revise pragmatist philosophy and also that the outgrowth of the dissent has to do with American pragmatism. Focusing on Lochner v. New York (1905), Abrams v. United States (1919), and Bartels v. Iowa (1923), this article shows how Holmes’s dissents represent an aesthetic adaptation of pragmatism that allows his writing to become memorable not just for the ideas it articulates, but also for the way it articulates ideas.

The full text is not available from SSRN.

British Women On the Bench

Michael Blackwell, London School of Economics & Political Science, has published Old Boys' Networks, Family Connections and the English Legal Profession. Here is the abstract.

A decade and a half on from Lord Taylor’s promise that “there will be more [female judges]… and they will not all be the sisters of the Lord Chancellor!”, this paper assesses the changes to the composition of the higher judiciary over this period, in terms of gender and educational, professional and socio-economic background. Descriptive statistics are presented on how these characteristics have changed over the period, for members of the High Court, Court of Appeal and House of Lords. These show only slight improvement in the representation of women and little change to the proportion educated other than at Oxbridge and public schools. Obituaries and other sources are used to illustrate the high socio-economic class, often with legal connections, into which many judges were born.



To show that this is not solely, at least in respect of educational background, a result of the pool from which such judges are recruited, this paper contrasts these statistics with those of QCs appointed since 1965. It also uses event history analysis to see how these diversity characteristics have affected propensity to be appointed to the High Court and subsequently promoted during this period.



Finally, to assess the potential for future increases in judicial diversity, this paper contrasts the gender and educational background of the solicitors and barristers profession and the speed of change thereto in recent years – showing both a greater diversity and rate of change with solicitors. The significantly lower rate of solicitor applicants appointed in selection exercises to the High Court is noted. The paper concludes by suggesting a reappraisal of the appointment criteria to increase the representation of solicitors and so facilitate improved judicial diversity.

Download the paper from SSRN at the link.

The History and Theory of Food and Drug Law

Kara W. Swanson, Northeastern University School of Law, has published Food and Drug Law as Intellectual Property Law: Historical Reflections at 2011 Wisconsin Law Review 329. Here is the abstract.

This Article returns to the late nineteenth and early twentieth centuries to consider food and drug law as intellectual property law. Today, Americans are engaged in two separate debates about food and drugs. One centers on the safety of these consumables, and the effectiveness of the Food and Drug Administration. The other is spurred by serious questions of equity involving the ownership and pricing of patented pharmaceuticals and crops, and centers on patent law and the Patent and Trademark Office. These debates were once part of a single broad conversation about food and drugs. This Article uses an historical perspective to understand the separation of these debates and to consider the opportunities that arise from considering food and drug law as intellectual property law. It argues both that early food and drug law was influenced by intellectual property concerns and that the separation of intellectual property policy from federal food and drug regulation was neither inevitable nor inconsequential. Drawing on the history of science, technology, and medicine, this Article reexamines the early pure-food-and-drug movement as, in part, an anti-intellectual-property movement. It uncovers the opposition to trade secrets that supported an alliance between medical opponents to proprietary medicines and agricultural opponents to artificial foods that successfully supported early federal food and drug regulation, and the simultaneous failure of a medical campaign against drug patents. By considering the historical shift in the pharmaceutical market from trade secrets to patents in relation to the recent trend toward patents in agribusiness, this Article considers the lessons from history for a reunification of food and drug policy with intellectual property policy.

Download the article from SSRN at the link.

The Greek and Roman Laws of Obligations

Helge Dedek, McGill University Faculty of Law, and Martin Schermaier have published Obligation (Greek and Roman), in the Encyclopedia of Ancient History (Roger Bagnall, Kai Brodersen, Craige Champion, Andrew Erskine, and Sabine Huebner eds., Oxford: Wiley & Blackwell, 2011). Here is the abstract.

Justinian’s Institutes defined the concept of obligation as follows: Obligatio est iuris vinculum quo necessitate adstringimur alicuius solvendae rei secundum nostrae civitatis iura (Iustinian Institutiones 3.13.pr): The obligatio is a "legal tie" (iuris vinculum) that binds us to render a performance to another person according to our laws. This definition timelessly expresses the nature of an obligation: a debtor owes a duty to the creditor. The content of such a duty, and exactly how it may or must be performed, are infinitely variable and determined by the event that gives rise to the obligation, not by the concept of obligation itself. When we examine the idea of an obligation, it is possible to distinguish between the debtor’s duty and the debtor’s potential liability. The concept of "duty" expresses that someone (the debtor) owes something to another (the creditor). The concept of "liability" adds that the debtor can be held responsible if he breaches such a legal duty: the creditor can seek the assistance of the courts if he does not receive what was owed to him.

Download the text from SSRN at the link.

Constitutional Discourse and Systems Theory

Pablo Holmes, Flensburg University, has published The Rhetoric of ‘Legal Fragmentation’ and its Discontents: Evolutionary Dilemmas in the Constitutional Semantics of Global Law in volume 7 of the Utrecht Law Review (April 2011). Here is the abstract.

This paper engages in the current debate on legal fragmentation and social inclusion from the perspective of systems theory. Its particular focus is directed at the changing patterns of social inclusion/exclusion under the condition of the emerging constitutional discourses of world law. While fragmented global law would still be able to safeguard functional differentiation, the neutralization of exclusionary dynamics is successively failing. This failure is attributed to the decline of politics in world society. A fragmented global law operates to a lesser degree in concert with national politics in order to guarantee the modern imperative towards full inclusion.

Download the article from SSRN at the link.

IP Stories

Jessica M. Silbey, Suffolk University Law School, has published Comparative Tales of Origins and Access: Intellectual Property and the Rhetoric of Social Change at 61 Case Western Reserve Law Review 195 (2010). Here is the abstract.

This Article argues that the open-source and anti-expansionist rhetoric of current intellectual-property debates is a revolution of surface rhetoric but not of deep structure. What this Article terms “the Access Movements” are, by now, well-known communities devoted to providing more access to intellectual-property-protected goods, communities such as the Open Source Initiative and Access to Knowledge. This Article engages Movement actors in their critique of the balance struck by recent law (statutes and cases) and asks whether new laws that further restrict access to intellectual property “promote the progress of science and the useful arts.” Relying on cases, statutes and recent policy debates, this Article contrasts the language of traditional intellectual-property law (origins and exclusivity) with the new language of the Access Movements (anti-origins and access). The Article compares the language of the Access Movements to that of sociopolitical movements of the past, and it draws lessons for successful and unsuccessful uses of rhetoric to enact social change. The Article concludes by showing how the language of the Access Movements retains certain core elements of the intellectual-property regime to which it is reacting and investigates whether this is an effective strategy (whether or not a conscious one) to stimulate change.

Download the article from SSRN at the link.

Narrative and Rhetoric In Legal Persuasion

Linda L. Berger, Mercer University School of Law, has published The Lady, or the Tiger? A Field Guide to Metaphor and Narrative at 50 Washburn Law Journal 275 (2011). Here is the abstract.

Metaphor and narrative reassure us that things hang together, providing a sense of coherence to the patterns and paths we employ for perception and expression. In this field guide, I hope to illustrate - with images and stories when possible - how better understanding of metaphor and narrative can guide those engaged in legal rhetoric and persuasion.



The article briefly summarizes cognitive theory relating to metaphor and narrative, provides snapshots of their use in the field, in real-life legal persuasion, and suggests ways to adapt metaphor and narrative to a specific example of legal persuasion. In the field guide section, the article uncovers a few of the metaphorical frames and narrative paths that exist in practice. In the guided exploration, to illustrate the process of excavating and re-shaping persuasive arguments, the article explores the storytelling and framing of the briefs (including the brief of the NAACP Legal Defense Fund) and the majority (Justice Douglas') and dissenting (Justice Harlan's) opinions in Boykin v. Alabama, the U.S. Supreme Court decision requiring an affirmative showing that a guilty plea was entered knowingly and voluntarily.

Download the article from SSRN at the link.

Faith, Beliefs, the "New Atheists" and Law

Iain T. Benson, University of the Free State, Faculty of Law, South Africa, and Miller, Thomson, has published Unexamined Faiths and the Public Place of Religion: Emerging Insights from the Law, at Acta Theologica 2011 Suppl: 14: 1-19.  Here is the abstract.
 

The article examines certain key terms, such as “beliefs” and “faith” and how these are understood in relation to the public sphere. It examines some writings of recent popularist authors such as Richard Dawkins and Christopher Hitchens and is critical of the authors’ claims that they do not have faith or beliefs. Drawing on legal decisions in Canada and South Africa the article suggests that this sort of terminological looseness has legal and political implications when it comes to whether or not beliefs of all sorts (religious and non-religious) are treated fairly in the public sphere.

Download the article from SSRN at the link.

The Civil War and American Literature

Randall Fuller explains the effect of the Civil War on American lit in From Battlefields Rising: How the Civil War Transformed American Literature (Oxford University Press, 2010). According to a recent Boston Globe review, the author

reminds us that the 1860s featured as talented a cohort of American writers as any decade could ask for — authors now known and loved by only their last names: Whitman, Emerson, Hawthorne, Dickinson, and Melville. Fuller carefully details how these writers experienced the war in their daily routines, their family lives, and their interlocking friendships.




What this group portrait reveals is that, while the Civil War may not have led to any lasting works of literature, it had a profound impact on the most important writers of its era. The war changed what they believed and how they wrote. After the shots at Fort Sumter, the North came quickly and patriotically together — “flush’d in the face,” in Whitman’s words, “and all its veins fiercely pulsing and pounding.” But Fuller suggests that Whitman and his literary cohort soon became uncomfortable with this kind of certainty, even though they had played a large part in putting that certainty into place. America’s first generation of great writers began experimenting with new literary forms, and began questioning their most dogmatic assumptions about the morality and effects of war.

More here.

Illusion and Critique At the Beginning of the Twenty-First Century

Igor Stramignoni, London School of Economics, Law Department, has published Illusion and Betrayal: The City, the Poets, or an Ethics of Truths? in volume 7 of the Utrecht Law Review (2011). Here is the abstract.

A nagging feeling of great expectations turned sour is in the air, at least at this end of the globe. The illusion appears to have been twofold. Those liberals who after the Cold War had imagined finally to see the Western city win over competing forms of self-regulation, self-reproduction, and homeostasis can no longer fail to see how, by the time the twenty-first century has commenced, democracy and the rule of law, the West's own blueprint for living together, have lost some of their lustre, when they have not been bluntly rejected. Those amongst the poets who, by contrast, had argued all along that another world was possible or, alternatively, that democracy and the rule of law could at most be promised or tendered rather than fully achieved or imposed, sometimes today worry whether in the process they may not have become somewhat problematically fixated with what in the age of mass culture and information technology might be a potentially self-defeating aesthetics of the Other. Alain Badiou's Platonism of the multiple and, specifically, his ethics of truths invite us to consider whether the widespread sense of disappointment and closure which follow from such an unsatisfactory situation should not be grasped as a figure of nihilism, specifically as a figure of 'betrayal', and whether, on the other hand, what is required may not be discernment, courage, and caution and to remain alert to the possible occurrence of new signal events. Thus to a poetics of illusion and of consequent disappointment Badiou prefers an ethics of truths which starts from the obvious existence of certain generic truths and yet is never closed-off to the invention of new ones. As presented, Badiou's ethical proposal is far from being fully developed and it is bound to be contentious. And yet it does contribute to a unique and powerful critique of current events as they ceaselessly appear on the horizon of a more interconnected world, specifically a critique which purports to offer a more affirmative, and even optimistic, message than many competing analyses of democracy and the rule of law.

Download the article from SSRN at the link.

The Development of National Identities

Hannibal Travis, Florida International University College of Law, has published On the Existence of National Identity Before ‘Imagined Communities’: The Example of the Assyrians of Mesopotamia, Anatolia, and Persia. Here is the abstract.

Studies on nationalism and the emergence of modern ethnic identities rarely examine sources dating from the period 0 CE (A.D.) and 1453 CE, or the period between the fall of the Neo-Assyrian Empire in the mid-first millennium CE and the Age of Discovery in the mid-second millennium CE. Testing generally accepted theories of national and ethnic distinctiveness against these sources reveals that a similar case exists for the existence of an Assyrian identity and/or nation as for a Greek, Kurdish, Jewish, or Persian identity or nation. Assyrian populations, religions, and political formations survived in present-day Iraq, Iran, and Turkey from 0 CE well into the 1800s CE.



Commentators on modern nationalism in relation to Assyrian identity have assumed, with little evidence, that the non-Arab, non-Jewish peoples of the East lacked the agency or the intellect to maintain a consistent identity, and that these peoples relied in their ignorance and indolence concerning their own identities on the theories of Western missionaries and colonial officials. After a long tradition of historical and cultural work assumed nations and peoples as subjects of analysis without critically examining the linguistic, cultural, or religious foundation of these groups of individuals or families, a new generation of scholars emerged who questioned this approach by positing that nations and peoples emerged in conjunction with modern capitalistic cultural forms and secular nationalistic liberalism. This theory, however, has the risk of degenerating into a vulgar instrumentalism, which assumes that identity entrepreneurs can manufacture ethnic, racial, or religious identity for their own purposes and little objective foundation. Thus, more recent studies point out the flaws in grounding national and ethnic distinctions in modern nationalism by compiling evidence that nations and peoples perceived themselves and were perceived by other collectivities as such long before the rise of European humanism or the Enlightenment.



This study attempts to show that the longevity and diversity of national and ethnic distinctions undermines a one-size-fits-all explanation such distinctions in the manner of Benedict Anderson’s “Imagined Communities.” The evidence from the Assyrian case suggests that the undifferentiated hordes of Asia did not coalesce and order themselves in modern times and under Western influence into nations created and sustained by advanced technology. This “Imagines Communities” narrative suffers from hindsight bias and an exaggerated Eurocentrism. It also insults and infantilizes the peoples and nations of premodern eras and non-Western regions by assuming they lacked the intelligence with which modern Europeans constructed national cultures, laws, literatures, schools, and economies. Historians have long since disproved such ideas.



By examining translations of and academic commentary on Aramaic, Greek, Roman, and Persian literature and inscriptions, among other sources, this Essay demonstrates that the British Empire invented neither the modern Assyrians as a people, nor the territory of modern Assyria that was considered for statehood by the League of Nations after World War I. Rather, the identification of present-day northern Iraq, northwestern Persia, and southeastern Turkey as “Assyria” draws support from the Middle Assyrian and Neo-Assyrian usage of the second and third millennia BCE, and the Greek, Roman, Persian, and Aramaic usage in the first millennium CE. Finally, the contribution of ancient Assyria to the cultures, languages, and religions of the non-Muslim populations of contemporary Iran, Iraq, and Turkey, especially Assyrian Christians, Mandaeans, and Yezidis, may no longer be doubted. This contribution is present in these peoples' daily vocabularies, place-names, and indigenous beliefs.

Download the paper from SSRN at the link.

Staging Science

Stephen Hilgartner, Cornell University Department of Science and Technology Studies, has published Staging High-Visibility Science: Media Orientation in Genome Research in The Sciences' Media Connection--Public Communication and Its Repercussions: Sociology of the Sciences Yearbook 152 (S. Roedder, M. Franzen and P. Weingart eds.; Springer 2011). Here is the abstract.

The medialization concept was developed using differentiation theory and has been applied analytically at the level of systems. This paper develops a complementary perspective for considering medialization that focuses on media orientation as it is expressed in interaction. How do individual scientists or science-intensive organizations manifest an orientation to the media? In what ways, and how intensely, does the media fit into their activities? To address these questions, the paper develops a framework that conceptualizes media orientation as a specific form of what Erving Goffman calls “theatrical self-consciousness.” The tools of dramaturgical analysis are brought to the staging of science, providing a vocabulary for exploring science-media coupling not as connections between abstract systems but as strategic interaction. The focus on theatrical self-consciousness casts a spotlight on questions about precisely what actors seek to make visible to whom and when. An ethnographic study of genome research during the Human Genome Project provides data. The paper examines interactions surrounding a specific episode: the announcement that a private firm, Celera Genomics, intended to sequence the human genome before the public project could. The analysis provides a look at the specific and varied ways in which members of a particular research community related to the media. The conclusion distinguishes among four facets of media orientation (the actor as performer, as audience, as commentator, and as builder of media relations infrastructure). Finally, it notes some possible methodological implications.

The full text is not available from SSRN.

A Review of David Gurnham's "Memory, Imagination, Justice"

Julia J. A. Shaw, De Montfort University, has published A Review of Memory, Imagination, Justice: Intersections of Law and Literature by David Gurnham. Here is the abstract.

Memory, Imagination, Justice: Intersections of Law and Literature is a highly-recommended read. It has several merits in that it not only offers a useful wide-ranging reference point for academic and practising lawyers, philosophers and sociologists, it also provides a provocative and engaging addition to the existing body of literary jurisprudence.

Download the review from SSRN at the link.

Evaluating International Tribunals

Richard Ashby Wilson has published Humanity’s Histories: Evaluating the Historical Accounts of International Tribunals and Truth Commissions. Here is the abstract.

Since the trials of high-ranking Nazi war criminals in Nuremberg during 1945-1946, commentators have been asking whether courts are the best place to write a history of war crimes and crimes against humanity. This debate gained momentum during the 1961 Eichmann trial in Israel and the Holocaust trials in France in the 1970s and 1980s, and took on new relevance during the wave of democratizations in Africa, Latin America and Eastern Europe in the 1980s and 1990s. During the 1990s, the United Nations and major donor governments adopted official policies stating that the task of writing a new official history was central to facilitating both co-existence and accountability after authoritarianism and violent conflict, and they promoted new institutions such as truth and reconciliation commissions to fulfill this undertaking. Now it is time to critically evaluate this range of institutions and ask: have international tribunals or commissions of inquiry actually provided significant insights into the origins and causes of political violence? How might states or international institutions document human rights violations in a way that is comprehensive and engages in a meaningful reckoning with the past?

Download the paper from SSRN at the link.

Pacificism In Popular Culture

Hannibal Travis, Florida International University College of Law, has published Postmodern Censorship of Pacifist Content on Television and the Internet, in volume 25 of the Notre Dame Journal of Law, Ethics, and Public Policy (2011). Here is the abstract.

This Essay, a contribution to a symposium on censorship and the media, explores the legal history of the censorship of antiwar speech. It devotes particular attention to postmodern techniques for chilling the production of pacifist content, or reducing the total output of it. Pacifist speech is defined broadly, as speech advocating peaceful alternatives to war or militarism, articulating doctrines or principles which urge forswearing war or violence in international disputes, or expressing reasons to oppose specific military episodes or entire wars.



A fundamental assumption of democratic governance is that the public keeps informed of important news and points of view by exposure in the press, whether print or electronic. Yet the public is often denied complete information by governments and private media conglomerates acting in close concert. While legal scholars frequently condemn direct censorship by the federal government, they too often neglect the extent to which private parties may be mobilized by the government to foment false beliefs and propagate misleading portraits of vital public policy issues.



This Essay explores postmodern censorship of pacifist expression. Postmodern censorship is distinguishable from its pre-modern or modern counterparts by its immaterial, seemingly nonviolent ways of watching and influencing apparently private activity, in contrast to a modern way of censoring speech by using violence as an ostentatious tyrant would. While still sculpting citizens’ beliefs and behaviors, postmodern power applies itself to private technologies and the enjoyment of what seems to be leisure time or tools such as television or radio. Postmodern regulation directs itself at privatized implementation of governmental objectives, including the lies and crimes of governments. It simulates real events in spectacles of illusion and artifice. In the postmodern era, everything is increasingly artificial, real events are excluded from the public spectacle, and the meaning of words and concepts is lost.

Download the article from SSRN at the link.

Adam Smith's Views on International Law and International Relations

Nicolas Hachez, Leuven Centre for Global Governance Studies, has published Views on International Law and International Relations in Adam Smith's Lectures on Jurisprudence. Here is the abstract.

This article aims to analyze and interpret the views on international relations and international law expressed in Adam Smith's little studied Lectures on Jurisprudence, in connection with the works of Grotius, Hobbes and Pufendorf. In order to do so, the article first tries to unravel Smith's account of the formation of society and government in domestic orders, understood as a complex intertwinement of human and economic factors. The article then goes on to analyze Smith's stated reasons why the seemingly universal human and economic processes leading to the formation of domestic societies and governments are failing when they are to apply in the international order. Finally, this article explores Smith's views on the idiosyncratic rules governing international relations, i.e. the Law of Nations. The conclusion of the article then attempts to formulate insights for a more harmonious international society based on Smith's premises.

Download the paper from SSRN at the link.

Schauer On Mill's "On Liberty"

Frederick Schauer, University of Virginia School of Law, is publishing On the Relationship between Chapters One and Two of John Stuart Mill’s on Liberty in the Capital University Law Review. Here is the abstract.

An important question in free speech theory and in Millian scholarship is the relationship between Chapters One and Two of Mill’s On Liberty. This essay, prepared on the occasion of and as a comment on Vincent Blasi’s Sullivan Lecture at the Capital University Law School, argues that Chapter Two, dealing with the “Liberty of Thought and Discussion,” is best understood as an exception to the general libertarian themes of Chapter One Iand, indeed, the balance of the book), rather than as an instantiation of them. Only by undervaluing Mill’s views about the potential harms of speech, by making Mill less of a utilitarian than he claimed to be, and by slighting the social epistemic claims in Chapter Two can that Chapter be made compatible with Mill’s presentation of the Harm Principle in Chapter One and the rest of the book. But if we take Mill’s epistemic claims seriously (which is decidedly not the same as believing that they are empirically sound), then Chapter One can be understood as largely about actions that do not cause harms to agents other than the actor, and Chapter Two can be seen as an argument for why some other-regarding and harm-producing speech acts may, in the aggregate, produce sufficient social epistemic benefits as to be deserving of a special immunity from state control. It is true, as Blasi argues, that a concern for the character-building nature of both autonomy and confrontation with harmful speech may render Chapters One and Two compatible with each other, but that compatibility requires relegating Mill’s famous epistemic arguments to a secondary role, and requires seeing Mill in less utilitarian and more individualistic terms than he himself professed.

Download the article from SSRN at the link.

Representations of Law in "Deadwood" and "Serenity"

Naomi Mezey, Georgetown University Law Center, has published Law's Visual Afterlife: Violence, Popular Culture, and Translation Theory in Imagining Legality: Where Law Meets Popular Culture 65 (Tuscaloosa, AL: University of Alabama Press, 2011). Here is the abstract.

In Walter Benjamin’s essay, "The Task of the Translator," Benjamin argues that translations enable a work’s afterlife. Afterlife is not what happens after death but what allows a work (or event or idea) to go on living and to evolve over time and place and iteration. In its afterlife, the original is transformed and renewed. In this piece I explore film’s visual translation of law and the role film plays in law’s afterlife. Film translates law not by translating from one language to another, but by translating between media and discourses. The cultural-critical lens of translation highlights the discursive similarities and dissonances between law and film; it allows us to see the legal in the aesthetic and the aesthetic in the legal; and it gives us new purchase on thinking about the ways that word, image, power and justice operate in and through different media. I take up the western HBO series Deadwood and the science fiction film Serenity to explore the representations of law, state and violence at the borderlands of time, place and authority in order to illustrate the layers of legal translation that film can occasion.



My argument focuses on how a few specific scenes translate the dilemmas of state authority, violence and law into the visual, and explores how the visual translations allow a different retelling of legal concerns. I also re-read the film genres in which these specific legal preoccupations most often circulate as legal genres. Both the western and science fiction, as genres, offer two parallel narratives about a foundational problem in law - the relationship of the state to violence. The narratives of the western tend to be progressive yet nostalgic; they are stories about the coming of civilization and the largely successful efforts of the state to reign in excessive private violence by exercising a monopoly on violence. But they are nostalgic for the kind of men - moral individualists - who were the precursors to the state but whose existence is incompatible with state power. The narratives of science fiction are more often dystopic and its stories about law and violence come in two versions. In one version, science fiction portrays the state as perfecting its monopoly on violence to the point of abuse. The state itself becomes the perpetrator of excessive violence. Another version of the science fiction genre narrates the future breakdown of the state, the dissolution of its monopoly on force and the return to private violence. This second version is a marriage of the two genres - the futuristic western. These two film genres in particular often translate the legal anxiety over the state’s unstable relationship to violence in such a way as to give visual life to its instability, an instability that is both suppressed in and central to legal discourse.

Download the essay from SSRN at the link.

The Reason For Reasoning

Does Homo jurisconsultus represent an evolutionary milestone? Check out Mark D. White's semi-tongue in cheek post at Psychology Today, discussing a new paper by Hugo Mercier and Dan Sperber (via The Literary Table). Drs. Mercier and Sperber investigate why humans have developed reasoning ability. What is it for? And here I thought it was just to make the decision among the Kindle, the Nook, and the Kobo that much easier. 

Blackstone's Idea of Rights

Helge Dedek, McGill University Faculty of Law, has published Of Rights Superstructural, Inchoate and Triangular: Some Remarks on the Role of Rights in Blackstone’s Commentaries in The Rights of Private Law (A Robertson and D. Nolan, eds. Hart Publishing,  2011). Here is the abstract.

Peter Birks has famously described the way in which rights operate in Blackstone’s legal cosmos as “superstructural.” In order to fully understand what this assessment entails, we will have to take a closer look at how the elements of Blackstone’s conceptual mechanism – right/wrong, rights, wrongs, and remedies – interact and complement each other. This “juridical” analysis, however, will inevitably take us back to the more foundational aspects of Blackstone’s vision of private law. In a formalist jurisprudence, Ernest J. Weinrib has explained, conceptual constructions and philosophical foundations are closely and intrinsically linked in the sense that the former are the expression of the latter – an insight particularly helpful, I believe, in Blackstone’s case, where the explicit verbalization of philosophical underpinnings remains fragmentary and basic theoretical assumptions have to be gleaned from doctrinal construction and categorization. As we shall see, the rights-remedies division in Blackstone’s organizational scheme is the expression of a “dualist” conception of the rights-remedies relationship: Blackstone’s perception of private law is not a Weinribian vision of a coherent, transactional unit, defined by the correlativity of right and duty. The “rights” that come into existence when a “wrong” is committed are of such nature that they can only be perceived as a triangular relationship that necessarily involves plaintiff, defendant and the state.

Download the essay from SSRN at the link.

Joan of Arc As Political Actor

Winnifred Fallers Sullivan, Suny University at Buffalo Law School, has published Joan’s Two Bodies: A Study in Political Anthropology as Buffalo Legal Studies Research Paper No. 2011-017. Here is the abstract. The article is forthcoming in Social Research.

From all of the evidence, Joan of Arc was a conventionally pious Catholic and a patriotic Frenchman. Yet she was tried as a heretic and executed as a traitor. She unnerved both her friends and her enemies in the church and the state with her zeal. And she continues to fascinate. Almost six centuries after she was burned at the stake, her body still has life. This essay uses Kantorowicz’s reading of the historical development of the legal fiction of the king’s two bodies to re-focus our attention on what Joan of Arc accomplished as a political actor.

Download the article from SSRN at the link.