The Law of the Wild

New Mexico State University President Barbara Couture posted this video encounter between her felines Petey and Ricky and a beautiful (but of course wild and anonymous) bobcat, who visited her back yard recently. I dub him or her Robin. Dr. Couture narrates the visit, but even without the voiceover, I understand the indoor kitties's bemusement at the outdoor kitty's lack of comprehension of the law of trespass. When are their humans going to do something?

[Via the Chronicle of Higher Education's Tweed].

Call For Papers: InterTexst Conference On Interdisciplinarity

From Kaja Marczewska

CFP: We are soliciting papers on any aspect of law and humanities/law and literature for the InterTexst conference on interdisciplinarity to be held at Durham University, Durham, UK on 23rd September 2011.


Please send 250-300 word abstracts proposing 20 minute papers by 30th June

2011 to kaja.marczewska@durham.ac.uk

More information about the conference can be found here:

http://intertexts.wordpress.com

Locke and the Bible

Ross J. Corbett, Northern Illinois University, has published Locke's Biblical Critique. Here is the abstract.

This paper seeks to clarify the relationship between Locke’s political and religious thought. To the extent that Locke’s political thought is an outgrowth of a particular strand of Christianity, its claims to universality would be significantly diminished. This would be the case, however, only if Locke were genuinely religious. Plausible accounts of his religiosity have been offered by Dunn, Waldron, et al, but such accounts become implausible given the presence of a biblical critique within the Two Treatises. The evidence for a critique of the Bible on moral grounds pointed to by Strauss, Pangle, et al is ambiguous, however, and so fails to refute the pious-Locke hypothesis. This paper argues that close attention to Locke’s analysis of the Hebrew text of Gen. 1:28 unambiguously points to a critique of the Bible on textual grounds. This serves to set the moral critique upon firmer foundations, to imply that the moral critique really is present in the text, and to reestablish the universalist claims of Locke’s political thought.

Download the paper from SSRN at the link.

Economic Thought and Justice

Matthias Lennig has published The Concept of Justice in the History of Economic Thought. Here is the abstract.

Economic thought has shifted its focus from an essentially normative approach, dealing with the question of justice, to an emphasis on efficiency and equilibria. This paper traces the changing perception of the issue of justice in the history of economic thought. Today, many heterodox economists maintain this long tradition of thinking about justice. In mainstream theory, i. e. neoclassical theory, however, justice is not regarded as being part of its research agenda. Consequently, economics is widely defined and perceived as the science of efficiency, and contemplation on the concept of justice is outsourced into neighbouring disciplines such as political science, law, sociology and philosophy in particular. Furthermore, it becomes apparent that ideas of justice are never creations ex nihilo, but develop from the entirety of traditional thought on that matter. Thought about justice is always context specific and ideas change due to new circumstances. It follows that contemplation on justice can never become superfluous and as the rich tradition of thought about justice in the history of economic thought shows, economists have much to contribute to this endeavour.

Download the paper from SSRN at the link.

"From Hell's Dark Heart, I Stab At Thee!"

The Supreme Court of Texas has stabbed fatally at a tort reform provision intended to insulate a company from liability from its predecessor's action, and in finding that provision unconstitutional, one of the Court's Justices finds inspiration in Star Trek, among other worthy authorities (including Thomas Hobbes). Justice Willett writes in part,

Today's case is not merely about whether chapter 149 singled out Barbara Robinson and unconstitutionally snuffed out her pending action against a lone corporation. Distilled down, it is also a case about how Texans govern themselves. Delimiting the outer edge of police-power constitutionality has bedeviled Texas courts for over a century. The broader issue of a citizen's relationship with the State has confounded for centuries longer.

 From 1651: "For in a way beset with those that contend on one side for too great Liberty, and on the other side for too much Authority, 'tis hard to passe between the points of both unwounded."

From 1851: "It is much easier to perceive and realize the existence and sources of [the police power] than to mark its boundaries, or prescribe limits to its exercise."

From 1907: The question whether a law can stand as a valid exercise of the police power "may be involved in mists as to what police power means, or where its boundaries may terminate. It has been said that police power is limited to enactments having reference to the comfort, safety, or the welfare of society, and usually it applies to the exigencies involving the public health, safety, or morals."

Gauzy definitions such as these -- and laments over such imprecision -- offer scant comfort in this enterprise. The issue is elemental, but not elementary. Fortunately, we are not entirely without guidance.


Appropriately weighty principles guide our course. First, we recognize that police power draws from the credo that "the needs of the many outweigh the needs of the few." Second, while this maxim rings utilitarian and Dickensian (not to mention Vulcan),(fn. 21) it is cabined by something contrarian and Texan: distrust of intrusive government and a belief that police power is justified only by urgency, not expediency.

NB: The text of Footnote 21 is

See STAR TREK II: THE WRATH OF KHAN (Paramount Pictures 1982). The film references several works of classic literature, none more prominently than A Tale of Two Cities. Spock gives Admiral Kirk an antique copy as a birthday present, and the film itself is bookended with the book's opening and closing passages. Most memorable, of course, is Spock's famous line from his moment of sacrifice: "Don't grieve, Admiral. It is logical. The needs of the many outweigh . . ." to which Kirk replies, "the needs of the few."

Other footnotes omitted.


The case is Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126 (2010), 161-163. It has already gotten attention from the SFWA Blog and Techdirt, back in October when the Court decided the case, and from Constitutional Law Prof Blog in April when the Court formally released the opinion. Says Techdirt, "And so, Spock is now a legal authority on the Texas Constitution. Very logical." Well, not exactly. But interesting.

The Role of Legislators

Dan Svantesson, Bond University School of Law, has published What is ‘Law’, If ‘The Law’ is Not Something that ‘Is’? A Modest Contribution to a Major Question. Here is the abstract.

Having proposed an alternative definition of what “law” (as a jurisprudential concept) is, this article seeks to demonstrate the impossibility of identifying “the law” (as in what law-makers announce, relative to a particular jurisdiction) as something that is in a particular way. Rather, the law is always a more or less abstract range of options.



Thus, law-makers, such as legislators and judges, do not express the law, but something less than the law – something limited by biases.



Drawing upon this conclusion, the article calls for a reassessment of how we view the role of law-makers. We need to remove the mystery that surrounds the law. Doing so will make clear that law-makers must be open about their unavoidable biases – we need greater transparency. The article concludes that this transparency can only be gained by requiring law-makers to declare their inescapable biases where they impact on their lawmaking.

Download the paper from SSRN at the link.

Deciphering Logic in Law

Maria Francisca Carneiro, Federal University of Paraná, has published Notes on a Way of Thinking in Paraconsistent Logic in Law. Here is the abstract.

This works deals with the evolution of a way of thinking in paraconsistent logic in Juridical Sciences, as a result of studying. It focuses on different types of paraconsistent logic that can be applied to Juridic questions, aiming especially at solving the contradictions frequently found in law.

Download the paper from SSRN at the link.

The Development of Constitutions

Kaarlo Heikki Tuori, University of Helsinki Faculty of Law, Centre of Excellence in Foundations of European Law and Polity, has published The Economic Constitution Among European Constitutions as Helsinki Legal Studies Research Paper No. 6. Here is the abstract.

The paper starts from the (hypo)thesis, that European constitutionalism should be examined as a diversified process where each stage receives its particular colouring from a particular constitution (or constitutional dimension). Reflecting the temporal and functional primacy of economic integration, the first wave proceeded under the auspices of economic constitution; in the second phase, the emphasis shifted to juridical constitution; during the third wave, the focus was transferred to political constitution; and finally, in our contemporary age, since, say, the Treaty of Amsterdam the pacemaker role appears to have been taken over by security constitution. Such a temporal succession should not be interpreted in the sense of an emerging constitutional aspect replacing or supplanting the previous one; rather, the constitutional dimensions complement each other. Thus, the latent and manifest development of economic constitution has not stopped, and the economic constitution retained its functional primacy. Constructing a common (internal) market has been the motor of the whole integration process and, correspondingly, the non-economic constitutional dimensions have largely developed as a response to demands raised or consequences set off by the economic one. Here we can talk of relations of implication. Finally, relations between aspects of constitution can also be of a conflictual nature. Thus, the normative implications of economic constitution may clash with those of, say, political or social constitution. Before the European Court of Justice, such conflicts often assume the guise of contests between different types of rights: between, on the one hand, rights related to market freedoms and, on the other hand, civil and political or social rights.

Download the paper from SSRN at the link.

The Faculty Workshop As System and Symptom

Pierre Schlag, University of Colorado Law School, has published The Faculty Workshop as University of Colorado Law Legal Studies Research Paper No. 11-12. Here is the abstract.

This essay explores the ubiquitous law school institution, “The Faculty Workshop,” as an entrée into and manifestation of contemporary American legal thought. The Faculty Workshop is examined both as a regulator and expression of legal thought - at once governance system and symptom. We close by discussing “Stage 4.”

Download the paper from SSRN at the link.

Our Legislators' Education

The Chronicle of Higher Education reports on the state of higher education among state and federal legislators. It notes that "Depending on how 'most educated' is defined, it could be argued that Virginia tops the nation, on the basis of its high percentage of lawmakers with both bachelor's and advanced degrees. The state ranks second-highest in both categories, right behind California for legislators with four-year degrees and on the heels of New Jersey for advanced degrees, with 89 percent and 58 percent, respectively." A number of members in many state houses swear allegiance to one alma mater, which might matter in terms of funding. Members of Congress are more diverse--nearly all have college degrees, and many go out of state to get their degrees (many to private schools). More than half of our Senators are attorneys. More here. And here's a map with stats. Commentary and analysis here.

Evaluating Legal Dictionaries

Dennis Kim-Prieto, State University of New Jersey (Rutgers), School of Law (Newark), and Conrad Van Laer, University of Maastricht, have published The Possible Dream: Perfecting Bilingual Law Dictionaries by Distinguishing Better Examples from Bad. Here is the abstract.

As the practice of law crosses national (and linguistic) borders with increasing frequency, the need for tools that facilitate the transnational practice of law becomes more acute. Bilingual legal dictionaries (BLDs) are one critical such tool, as they offer access to legal systems as well as the languages of these systems. Unfortunately, librarians have offered scant criticism of BLDs, many of which are not particularly useful. This article summarizes critical problems with BLDs and offers an approach to resolving these problems by focusing upon the quality of the entries, or definitions, that BLDs provide.

Download the paper from SSRN at the link.

How New Legal Terms Are Formed

Isabel A. Walbaum Robinson, University of Rome III, has published The 'Word Factory': A Study of the Processes Engaged in the Formation of Legal Terms in volume 1 of Opinio Juris in Comparatione (2011). Here is the abstract.

This paper explores the language of the law from the point of view of the factors that contribute to the building of its specialized lexicon and the options language offers to create, institutionalize and incorporate new words into the technical legal inventory. Sources of word-formation responsible for specialized lexicon accretion in the corpus are of two kinds: language-based and discipline-based. The former involves structure (syntax), meaning (semantics), and uses (pragmatics) of language and the processes engaged in word formation, such as compounding, trans-categorization, fusion, clipping, the creation of binomials and multi-word lexical units (henceforth, MLUs). The latter involves the creation of words engendered from within the discipline itself, such as landmark cases and professional contributions.



As a language user, the legal professional is faced with two types of cognitive processing. On one hand, ‘decoding’ text meaning when carrying out language-related activities such as reading documents or listening to speech. On the other, ‘encoding’ language for the purpose of writing (e.g. briefs, opinions, articles) or interacting with a colleague, taking part in a debate or discussing a point of law. Awareness of both lexical and syntactic features of a language for specific purposes (henceforth, LSP), as well as its word-forming processes, provides the legal professional a vantage for interpreting, comparing and using the ‘tools of the trade’, legal terms. Word-formation is an important sector of linguistics that reflects back on the nature and characteristics of language itself. It gives an ‘added dimension’ to lawyers, in particular English as a Foreign Language (EFL) comparative lawyers, who fulfil professional obligations that call for the technical, rather than intuitive use of language.

Download the article from SSRN at the link.

Feminism, Liberalism, and Radicalism

Robin L. West, Georgetown University Law Center, has published The Difference in Women’s Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory at 15 Wisconsin Women's Law Journal 149 (2000). Here is the abstract.

Part One of this article provides a phenomenological and hedonic critique of the conception of the human – and thus the female – that underlies liberal legal feminism. Part Two presents a phenomenological critique of the conception of the human – and thus the female – which underlies radical feminist legal criticism. Again, I will argue that in both cases the theory does not pay enough attention to feminism: liberal feminist legal theory owes more to liberalism than to feminism and radical feminist legal theory owes more to radicalism than it does to feminism. Both models accept a depiction of human nature which is simply untrue of women. Thus, both accept, uncritically, a claimed correlation between objective condition and subjective reality, which, I will argue, is untrue to women. As a result, both groups fail to address the distinctive quality of women's subjective, hedonic lives, and the theories they have generated therefore have the potential to backfire – badly – against women's true interests. In the concluding section I will suggest an alternative normative model for feminist legal criticism which aims neither for choice nor equality, but directly for women's happiness, and a feminist legal theory which has as its critical focus the felt experience of women's subjective, hedonic lives. My substantive claim is that women's happiness or pleasure – as opposed to women's freedom or equality – should be the ideal toward which feminist legal criticism and reform should be pressed, and that women's misery, suffering and pain – as opposed to women's oppression or subordination – is the evil we should resist. I will argue that feminist legal theorists, in short, have paid too much attention to the ideals of equality and autonomy and not enough attention to the hedonistic ideals of happiness and pleasure, and that correlatively we have paid too much attention to the evils of subordination and oppression, and not enough attention to the hedonistic evils of suffering and pain. My methodological assumption is that the key to moral decision-making lies in our capacity to empathize with the pain of others, and thereby resist the source of it, and not in our capacity for abstraction, generalization, or reason. My strategic claim is directly entailed: the major obstacle to achieving the empathic understanding which is the key to significant moral commitment, including the commitment of the legal system to address the causes of women's suffering, is the striking difference between women's and men's internal lives, and more specifically, the different quality of our joys and sorrows. This obstacle can only be overcome through rich description of our internal hedonic lives.

Download the article from SSRN at the link.

James Madison's Legal Writing

Thomas Berg, Julie A. Oseid, and Joseph A. Orrino, all of the University of St. Thomas, St. Paul/Minneapolis School of Law, have published  The Power of Rigor: James Madison as a Persuasive Writer as University of St. Thomas Legal Studies Research Paper No. 11-16.

This article is the third in a planned series of articles about the writing qualities and habits of our most eloquent American Presidents. The focus of all the articles is on the lessons modern legal writers can learn from the Presidents. James Madison’s rigor, in both his approach to problems and in his resulting written work, was famous; it was this rigor that contributed to the persuasiveness of his writing. Even though he was not a lawyer, Madison had all the best writing habits that lawyers should emulate – attention to audience, careful preparation, and attention to consequences.

Download the paper from SSRN at the link.


Madison’s rigor, in both his approach to problems and in his resulting written work, was famous; it was this rigor that contributed to the persuasiveness of his writing. “The great little Madison” may have lacked physical presence and personal charisma, but he overcame those limitations to become one of the most influential public figures in American history by cultivating his particular strengths. He had an analytical mind that he developed to see and clearly express arguments, counterarguments, and distinctions. He had, despite poor health, an appetite for work that he used to out-prepare others. And he had a sensitivity to surrounding circumstances that he cultivated to address his audience’s concerns and to envision the practical consequences of various actions.



The article considers why rigor is an essential writing quality, reviews Madison’s life and writing habits, and analyzes three examples of Madison’s writings (The Memorial and Remonstrance, Federalist No. 10, and a letter from Madison to Thomas Jefferson).

Go Read About West, Young Person

Ross E. Davies, George Mason University School of Law, has published West’s Words, Ho! Law Books by the Million, Plus a Few at 14 The Green Bag 2d 301 (Spring 2011). Here is the abstract.

This essay introduces an interesting but nearly invisible artifact of American law: A promotional pamphlet titled Law Books by the Million: An account of the largest law-book house in the world, the home establishment of The National Reporter System and The American Digest System. It was produced by the West Publishing Company in 1901 and is reprinted in its entirety below at pages 311 to 339 of this issue of the Green Bag. Professor Robert Jarvis has quite rightly bemoaned the meager public information about John West, founder of the West Publishing Company and an important figure in American legal history. A similar, albeit less severe, paucity of information plagues the West Publishing Company itself (now owned by Thomson Reuters). There isn’t much out there about the company’s early years, and what little there is can be strangely difficult to get hold of. For example, the biggest single source of West history – William Marvin’s 1969 book, West Publishing Company: Origin, Growth, Leadership – is out of print, rare, and not available on the Internet. The same goes for The Publications of West Publishing Company and The Romance of Law Reporting: Serving the Bench and Bar, pamphlets published by West in 1901 and 1934 respectively. Law Books by the Million is nearly as hard to find, but at least it is in the library and in the public domain, and therefore susceptible to reproduction here. And it is worth the trouble and expense. Law Books by the Million provides a readable, richly illustrated narrative of the processes West used to create and disseminate its products in the early years (that is, the late 19th and early 20th centuries) of those simultaneously democratizing and costly, mutually reinforcing revolutions in American law: the expansion of the bar and the legal information explosion.

Download the essay from SSRN at the link.

Lying in "The Heart of Midlothian"

Julia Ann Simon-Kerr, University of Chicago Law School & Yale University Law School, has published Pious Perjury in Scott's The Heart of Midlothian, in Gender, Law and the British Novel (Alison LaCrois & Martha Nussbaum eds., Oxford University Press, 2011). Here is the abstract.

Lying in court was a practice routinely used in the eighteenth century justice system to mitigate the severity of its criminal laws. Dubbed “pious perjury” by Blackstone, witnesses and juries often violated their oaths in order to avoid imposition of the death penalty. The practice was so common that it formed a central piece of the argument for law reform during the period when Scott was writing The Heart of Midlothian. Reformers argued that the laws were being grossly under-enforced because so many juries were mitigating sentences or freeing defendants through pious perjury. True to this practice, the men surrounding Scott’s heroine, Jeanie Deans urge her to perjure herself to save her sister, who has been wrongly accused of infanticide. Her sister, Effie, will be acquitted if Jeanie swears that Effie told her of her pregnancy. Jeanie’s refusal to lie forms the dramatic core of the novel. By creating a heroine whose major strength is her truthfulness in a public realm, Scott intervenes both in the novelistic tradition of female heroism and in the contemporary discourse on law reform.

Download the abstract from SSRN at the link.

The Killers Among Us

Theodore Dalrymple writes for City Journal about Stephen Griffiths, the self-described "Crossbow Cannibal," whose dissertation at the University of Bradford focused on homicide studies, and who apparently did empirical research for it by killing and eating women. Mr. Griffiths was sentenced to life in prison after pleading guilty to three murders in 2010. More here from the Guardian.

Lord Byron In Court

Leslie Katz has published Lord Byron, Copyright and the Demons of the Law. Here is the abstract.

On six separate occasions between 1816 and 1823, legal proceedings were begun or, at least, contemplated for the purpose of stopping the sale of an unauthorized edition of a published work that had been written by Byron. The paper discusses those six occasions.

On a further five occasions between 1816 and 1824, legal proceedings were begun that involved Byron’s literary output (or claimed literary output) in some other way. The paper discusses those five occasions too.

The paper includes four satirical prints showing respectively Byron, John Cam Hobhouse, Lord Chancellor Eldon and William Benbow, which prints were created by leading printmakers of the day.

Download the paper from SSRN at the link.

The Development of Nineteenth Century Legal Thought

Simon Stern, University of Toronto Faculty of Law, has published The Analytical Turn in Nineteenth-Century Legal Thought. Here is the abstract.

This essay seeks to account for the introduction of the analytical method into Anglo-American legal thinking in the 19th century and to identify some of the doctrinal consequences of this mode of problem-solving. I focus on a particular sense of analysis – the disaggregation into components of seemingly unified entities, not previously seen as composites. On this view, a discussion of U.S. law as involving federal law and state law does not involve analysis, but a discussion of privacy as including decisional and spatial aspects would involve analysis. The term "analysis" long predates the nineteenth century, but had previously been used by lawyers to mean "investigation" or "classification" rather than disaggregation. Drawing on research by John Pickstone, I show that the technique, though not unheard of before the 19th century, was taken up in a wide array of scientific disciplines circa 1780-1840, particularly in chemistry. This helps to explain its diffusion into other intellectual spheres, including law.



The nineteenth-century analytical revolution had a profound effect on the Anglo-American legal system, its doctrines, and its approach to problem-solving, to such an extent that modern lawyers’ views about their professional competences, and their beliefs about what constitutes a persuasive legal argument, would be radically different without this feature. The analytical approach is evident in contemporary thinking about statutory drafting and interpretation, constitutional law, and administrative law, as well as the common law. Because it is beyond the scope of a single essay to delineate these effects fully, I focus here on the changes associated with the introduction of elements into nineteenth-century jurisprudence, in a pattern that reveals some of the most visible results of the analytical approach.



Part I discusses the rise of analysis in science and the law around the beginning of the nineteenth century. Part II shows how issue preclusion (in res judicata) was reconceived in the course of the nineteenth century, morphing from a doctrine focused on the relitigation of particular facts, to a doctrine concerned with legal issues, now understood as involving legal conclusions based on facts. Part III addresses the reconceptualization of criminal offenses as consisting of "elements," a development that led to new ways of thinking about burdens of proof and the role of mens rea in criminal liability. A concluding section reflects briefly on the implications of this approach to legal science. The argument shows that legal science may be profitably studied not only by looking at the statements of lawyers such as David Hoffman, Simon Greenleaf, and George Sharswood, who took pains to insist that they were being scientific, but also by looking to particular instances in which lawyers adopt scientific methods, even if they do not call attention to this practice, and even if they make no claims about legal science.

Download the essay from SSRN at the link.

Summer Reading: The Academic Novel

Ms. Mentor (the alter ego of Emily Toth, Professor of English at Louisiana State University), gives sage advice on academic novels for summer reading here in a Chronicle of Higher Education column, and offers the chance to vote early and often on the best title listed. If you want more suggestions on higher reading, check here. Here's another list, compiled by Bill Brewer. Search Google with the phrase "academic novel" and you'll discover that making lists of academic novels is a pasttime all by itself. For more about the academic novel, and in case you want to understand the MEANING of it all, check out  The Academic Novel: New and Classic Essays (Merritt Moseley, ed., 2007), Mark Bosco and Kimberly Conner, Academic Novels as Satire  (2007), Ian Carter's Ancient Cultures of Conceit: British University Fiction in the Post-War Years (Routledge, Chapman & Hall, 1990), Elaine Showalter's Faculty Towers: The Academic Novel and Its Discontents (2005), and Kenneth Womack's Academic Satire: The Campus Novel in Context in A Companion to the British and Irish Novel 1945-2000 (Blackwell Publishing, 2005).

Some of my favorites (I have a bias toward academic mysteries):

Malcolm Bradbury, Eating People Is Wrong (1959).
Amanda Cross, An Imperfect Spy (1995).
Colin Dexter, Death Is Now My Neighbor (1996).  Oxford is the setting for a lot of films and books.
Michael G. Levin, The Socratic Method (1987).
Guillermo Martinez, The Oxford Murders (2005).
Dorothy L. Sayers, Gaudy Night (1935).
Pamela Thomas-Graham, A Darker Shade of Crimson (1998).

Legal Interpretation In the New Century

Yishai Blank, Tel Aviv University Buchmann Faculty of Law, has published The Reenchantment of Law at 96 Cornell Law Review 633 (2011). Here is the abstract.

The religious revival observed throughout the world since the 1980s is making its mark on legal theory, threatening to shift the jurisprudential battleground from debates over law’s indeterminacy and power to conflicts over law’s grounds, meaning, unity, coherence, and metaphysical underpinnings. Following the immense impact of the legal-realist movement on American jurisprudence, the major jurisprudential conflicts in the United States throughout the twentieth century revolved around the themes of the indeterminacy and power inherent in adjudication (and the resulting delegitimization of it), pitting theories that emphasized these critical themes against schools of thought that tried to reconstruct and reconstitute the determinacy and legitimacy of adjudication. Over the past couple of decades, however, a new jurisprudential dividing line has emerged without attracting much notice or attention. This new divide, which I draw in this Essay, is between thinkers who adhere to a disenchanted, instrumentalist, and secularized view of the law and theoreticians who try to reenchant it by reintroducing a degree of magic, sacredness, and mystery into the law; by reconnecting it to a transcendental or even divine sphere; by finding unity and coherence in the entirety of the legal field; and by bringing metaphysics “back” into the study of law.



Thus a new stage in the evolution of modern legal theory is emerging in which formal legal rationality is no longer the high point of legal disenchantment (as Max Weber saw it) but a model for law’s reenchantment as against the almost universally accepted disenchanting legal theories. And although the question of legal interpretation - and the possibility of objective and legitimate adjudication - is still motivating some of these theories, the reenchanting theories aim to shift the jurisprudential debates from questions of the consequences of legal principles and rules to fundamental questions concerning the grounds of law. This ground shifting might invoke new jurisprudential conflicts between secularism and religiosity, between pragmatism and metaphysics, and between critical and magical thinking. In order to evaluate and demonstrate my claim I analyze four exemplary (though not exhaustive) modes of legal reenchantment that have emerged over the last thirty years: the reenchantment of legal formalism, the reenchantment of virtue, the reenchantment of law as art, and the reenchantment of legal authorities.

Download the article from SSRN at the link.

Civilian Uprisings and Foreign Invasions

Emily Crawford, University of Sydney Faculty of Law, has published Levée En Masse – A Nineteenth Century Concept in a Twenty-First Century World, as Sydney Law School Research Paper No. 11/31. Here is the abstract.

Levée en masse – the spontaneous uprising of the civilian population against an invading force – has long been a part of the modern law of armed conflict with regards to determining who may legitimately participate in armed conflict. The concept originated during the French Revolution, and was internationalized with its inclusion in the rules of armed conflict adopted by the Union Army during the American Civil War. Levée en masse continued to be included in the major international law of armed conflict documents from that time on, including The Hague Regulations of 1907 and the Geneva Conventions of 1949. However, since that time, there have been few, if any, instances of levée en masse. This article examines the historical and legal development of the concept of levée en masse, charting its evolution from a general and sustained call to arms to the civilian population to the more strict 19th and 20th century legal categorization of civilians attempting to fend off an invading force. This article also examines the few instances of levee en masse in State practice, and, in doing so, assesses whether the concept retains any utility in 21st century armed conflict.

Download the paper from SSRN at the link.

Popular Crimes

Bryan Burroughs offers up a review of Bill James' Popular Crime: Reflections On the Celebration of Violence (Simon and Schuster) in the June 5th New York Times Book Review. Mr. James is better known as a sports writer (Solid Fool's Gold: Detours On the Way To Conventional Wisdom (Acta Publications, 2011)), but has always like true crime books, and notes that he doesn't think there are any books about them. So he has written one. In particular he is interested in why we are interested in true crime, and in reading and writing about it.

Crime stories are very often the basis on which new laws are proposed and old ones modified. We have Megan's Law and Sarah's Law and Jeremy's Law and Amber Alerts. This has been true for many years. In the 18th century several new laws sprung from the story of Elizabeth Canning. In the 1930s we had the Lindbergh Laws and the Little Lindbergh Laws. A great deal of our law and of our criminal procedure has always been shaped and re-shaped by these very famous crimes that the best people refuse to discuss.


Of course there is a national discussion about those types of issues—among the lawyers. When the rest of us try to comment, we are reminded firmly that we are not lawyers and therefore don't know what we're talking about. No one writes about these issues. Name a book by a non-lawyer, published in the last ten years for the general public, which attempts to discuss these issues in a serious way. On truTV, whenever a guest tries to comment on some irrational wrinkle of judicial procedure, some self-important lawyer immediately steps forward to "explain" why the system has to work this way, why the system of justice would collapse if a juror were allowed to read a news report about the case or a cop was allowed to mention his prior run-ins with the defendant.

It is not my intention to bash lawyers. It is my belief that the lay public—non-lawyers—should participate actively in the discussion of crime and justice. It is my notion that popular crime stories could be and should be a passageway that the lay public uses to enter into that discussion.

I said that no one writes about these issues, which is not literally true. I am sure that in some corner of the academic world there hides an intellectual who knows vastly more about these issues than I do and has written 208 published articles about them, which none of us have ever heard of, probably because he writes like a troll, or, not to be sexist, she writes like a troll or trollette. I am not here to bash intellectuals, either; I'm just a sarcastic bastard by nature.

This book is about three things. First, it is about famous crimes, and in particular about famous crimes which have happened in the United States since about 1880. Second, it is about crime, in a general way, about the kinds of issues I have tried to introduce here.

And third, it is about crime books. I am not a lawyer or an academic, nor even a cop or a court groupie. My understanding of these issues is based on what I have read, which includes a thousand or more crime books. There is, to the best of my knowledge, no book about crime books.

Hmmm. Mr. James is probably correct that crimes spur legislation. But how does one write like a troll? Read the rest of Chapter 1 here, courtesy of the publisher.

Bounty Hunters

Brian K. Pinaire, Lehigh University, Department of Political Science, has published Who Let (the) Dog Out? Here is the abstract.

This Essay provides the first-ever scholarly investigation of the origins of "bounty hunting" as the practice exists in the United States. With an historical focus on British policies instituted around the turn into the eighteenth century, I argue that the scheme of regularized rewards for the arrest and prosecution of alleged criminal offenders constitutes the "roots" of American bounty hunting. This early system, whose practitioners were referred to as "thief-takers," formalized and legitimized the notion of incentivized pursuit of "fugitives" and - while eventually phased out in Britain - provides the historical and conceptual parallel for the for-profit, private sector-level apprehension of individuals wanted by the law in the United States today. These early policies are, in short, what let the "Dog" out in the Anglo-American tradition.

The full text is not available from SSRN.

Latina Lawyers Before the Supreme Court: An Updated Abstract

Maria G. Mendoza has updated the abstract of her paper, The Thirteen Known Latina Litigants Before the Supreme Court of the United States, on SSRN. Here is the updated abstract.

From 1935 to 2010, only thirteen known Latinas have argued before the Supreme Court of the United States. The first known Latina to argue before the United States, Miriam Naveira Merly, then serving as the Solicitor General to Puerto Rico, argued before the High Court in 1975. A year later, Vilma Martinez, the first known Mexican American woman to appear before the Supreme Court, argued East Texas Motor Freight Sys., v. Rodriguez, marking the last time the 1970s was known to entertain an appearance by a Latina advocate. Over the course of the 1980s, six Latinas are known to have litigated before the Court, and sadly, the 1990s only brought one known appearance by a Latina before the High Court. From 2000 to 2010, four known Latinas have argued before the Supreme Court.



Before the Supreme Court, these Latinas took on everything from the battles of the downtrodden and the impoverished – including the legal woes of the Latino community – and they took on the causes of the government. After defying odds and breaking down barriers, these Latinas went on to become the “firsts” to hold particular positions such as judgeships, Ambassador to Argentina, law school professor, and appellate attorney. They are perhaps the most underrepresented demographic to appear before the Court, which is unfortunate, because Latinas are now part of the nation’s largest, youngest, and fastest growing minority in the United States. Historically, advocates from all walks of life have powerfully shaped our nation’s laws to reflect the values, priorities and character of the American people, and the Supreme Court bar and greater legal profession must act aggressively to ensure that “we the people” continue to contribute to the development of the law.



These Latinas who powerfully shaped our laws deserve to go down in history along with the other “firsts” and champions of the Supreme Court, but unfortunately, never before has there been an attempt to learn who was the “first” Latina to argue before the Supreme Court or learn about the history of Latina litigants before the High Court. By interviewing these Latina litigants about their formative experiences, entry into the legal profession, and the pathway these remarkable Latinas took to present their argument before the High Court, this article tries to understand why so few Latinas have argued before the Supreme Court. Part one of this article addresses the lack of research on Latinas before the Court, and why caring about the history of Latina litigants before the Supreme Court matters. Part two of this article looks both at the salient barriers and opportunities that made it possible for these Latinas to argue before the Court, and part three of this article focuses on the life and career of these Latina litigants. Part four of this article describes how the dearth of appearances by Latina advocates is highly influenced by the rise of a small group of elite lawyers who focus on Supreme Court cases, the Court’s shrinking docket, and the bleak state of Latinas in the legal profession.

The full text of the paper is not available on SSRN.

John M. Finnis On Legal Philosophy

John Finnis, University of Oxford Faculty of Law, and Notre Dame Law School, has published Philosophy of Law: Introduction, in John M. Finnis, 4 Philosophy of Law: Collected Essays (Oxford University Press, 2011). Here is the abstract.

This Introduction to my 'Philosophy of Law: Collected Essays Volume IV' (Oxford University Press 2011), published in the United Kingdom in early April, and in the United States in early May 2011, introduces the volume’s 22 published and unpublished essays, and follows the volume’s division into four Parts: Foundations of Law’s Authority; Theories and Theorists of Law; Legal Reasoning; and the Two Senses of “Legal System.”



The first half of the Introduction is, in effect, a brief new essay on the foundations of the positivity of positive law, revisiting issues taken up in chapter I of Natural Law and Natural Rights and issues involved in the so-called sources thesis and in the labeling of theories as “positivist.” Later parts of the Introduction indicate some patterns emergent in the volume’s many essays on particular theorists and theories; review the bearing of the “one-right answer” thesis on legal reasoning and some prime examples of judicial misreasoning; and the relation of the idea of “legal system” to issues around the emergence of independent states in the British Empire, and around Britain’s absorption into and subjection to the European Union.



The Introduction, like the volume, intersects with the Introductions to, and contents of, each of the other volumes in the five-volume set, which is published just before the second edition of Natural Law and Natural Rights, reformatted to accompany the set and incorporating a 65-page Postscript. The Collected Essays are I Reason in Action, II Intention and Identity, III Human Rights and Common Good, IV Philosophy of Law, V Religion and Public Reasons. Each volume includes the index for the set, and the author’s bibliography.

Download the text from SSRN at the link.

Roman Legal History Resources

From Ernest Metzger, the Douglas Professor of Civil Law, University of Glasgow School of Law, comes a note that the website Roman Law Resources may be of interest to readers of Law and Humanities Blog. Among the journals listed under "Journals" on the opening page is one that Professor Metzger edits, Roman Legal Tradition, which he tells us is a open access publication.

The History of the Trade Fixtures Doctrine, 1350-1803

Mark Lane Roark, University of La Verne College of Law & University of Missouri School of Law, has published Disease War and Waste: A Consideration of External Factors on the Trade Fixtures Doctrine between 1350-1803. Here is the abstract.

Between 1350 and 1803, eleven cases were decided that shaped the trade fixtures doctrine for jurisprudence in the English Commonwealth and its admirers. Prior to 1350, rights to things attached to real property were settled solely considering its attachment to the realty. However, between 1350 and 1803 dramatic shifts in the doctrine occurred. Interestingly, each of those shifts were paralleled by significant social seismic events. Instead, this essay considers not a particular moment in time, but rather a subset of doctrinal decisions that occur across a variety of moments. In short, this essay argues that the dates of the decisions deciding early trade fixture cases point to courts ruling out strict attachment as an all-encompassing fixtures definition, in favor of a more pliable and flexible doctrinal rule that could account for social unevenness between landlords and tenants. This essay attempts to contextualize in a very small subset of cases the slow turn away from attachment. This essay, considers the development of the trade fixtures doctrine in three movements: the early trade fixtures cases; the formative trade fixtures cases; and the refining trade fixtures cases.

Download the paper from SSRN at the link.

Conciling the Jurisprudential Meanings of Human Dignity

Neomi Rao, George Mason University School of Law, has published Three Concepts of Dignity in Constitutional Law, at 86 Notre Dame Law Review 183 (2011). Here is the abstract.

The U.S. Supreme Court and constitutional courts around the world regularly use the term human dignity when deciding cases about freedom of speech, reproductive rights, racial equality, gay marriage, and bioethics. Judges and scholars treat dignity as an important legal value, but they usually do not explain what it means and often imply that it has one obvious core meaning. A close review of constitutional decisions, however, demonstrates that courts do not have a singular conception of dignity, but rather different conceptions based on how they balance individual rights with the demands of social policy and community values. Using the insights of political theory and philosophy, this Article identifies three concepts of dignity used by constitutional courts and demonstrates how these concepts are fundamentally different in ways that matter for constitutional law. In contentious cases, the concepts of dignity will often conflict. If constitutional courts continue to rely on human dignity, judges must choose between different understandings of dignity. This Article provides the groundwork for making these choices and defending a concept of dignity consistent with American constitutional traditions.

Download the article from SSRN at the link.

Pre-Empting Crimes and Civil Rights In Fact and Fiction

Mark Niles, Seattle University School of Law, has published Preempting Justice: 'Precrime' in Fiction and in Fact, in volume 9 of the Seattle Journal for Social Justice (2010). Here is the abstract.

Immediately after the September 11 attacks, the United States government took a significant turn in the focus of its domestic law enforcement and international security policy from investigating crimes and pursuing criminals to preventing potential criminal acts. This focus on preventing future acts raises serious practical, legal and moral questions: What mechanism will government officials use to make these predictions of future threats and what will ensure the reliability of these predictions? What punishment or sanction, if any, is appropriate when it is determined that someone would have committed a harmful act but is apprehended (or otherwise derailed) before they have the chance to do so?



Dean Niles' lecture addresses these and other questions with an analysis of Philip K. Dick's 1956 science fiction short story "The Minority Report," and Steven Spielberg's 2002 film "Minority Report," in which a near future law enforcement agency relies on predictions to incarcerate potential criminals before they are able to commit their crimes. The analysis of these stories, of the assumptions involved in both, and of some very different structures and conclusions in the two texts suggests something about the authors and the different times when they were produced. It will cast light on the current societal response to ongoing pre-emptive incarcerations in Guantanamo Bay and elsewhere and provide a basis for discussion of the proper role, if any, that "pre-emptive justice" can play in this or any society.

Download the article from SSRN at the link.

Plain Speaking Outside the Courtroom

Jason Cohen, Rutgers School of Law (Camden), has published Attorneys at the Podium: A Plain Language Approach to Using the Rhetorical Situation in Public Speaking Outside the Courtroom, at 8 Legal Communication &Rhetoric 73 (2011). Here is the abstract.

The general public typically has the unrealistic expectation that all lawyers are effective and persuasive public speakers who, when called upon, have the innate ability to say “just the right thing.” In fact, not all of us have that innate ability. And even though we may have some level of legal genius swirling around in our minds, that genius is sometimes poorly communicated in speeches that ultimately don’t meet audience expectations or needs. Certainly, law school has taught us how to think and write like lawyers, but the ability to effectively communicate orally isn’t as frequently emphasized. This lack of emphasis on effective public speaking is unfortunate because lawyers are frequently forced to engage in some public speaking outside the courtroom, including speaking to lay groups about various matters of legal controversy; making appearances before legislatures, city councils and municipal boards; presenting at bar association luncheons; making client pitches; or participating in media interviews on behalf of clients. All of these occasions require the attorney-speaker to organize content, consider the audience, and deliver the most effective message possible.



Understanding the rhetorical situation - a theoretical concept with huge practical implications - before crafting the response helps the speaker meet these crucial components to effective speaking. Rather than focus merely on the mechanics of speech delivery or the flourishes of theatrical speaking, the speaker should first identify the rhetorical situation, which will force the speaker to concentrate on specific content for the speech.



The good news for those attorneys who want to become more successful public speakers is that if they understand the rhetorical situation, they will be better able to meet audience expectations. This is true because their analysis of the situation gives the attorney-speaker the tools to understand the environmental context of the speech (what is happening in the world outside the speech) and the audiences affected by this context. Together, these understandings ultimately permit the speaker to craft a speech that can aid, persuade, or satisfy those affected.



This short article first introduces the theoretical definition of the rhetorical situation. Translating the theory into plain language, it then offers a checklist for the attorney in preparing for any speaking scenario. These steps embody the rhetorical-situation analysis. Finally, the article illustrates the recommended approach by guiding the reader through an analysis of the rhetorical situation surrounding President Reagan’s Challenger speech.

Download the article from SSRN at the link.

President Proposes Richard Weisberg For Administrative Post

President Barack Obama is naming Richard H. Weisberg to the Commission for the Preservation of America’s Heritage Abroad. Professor Weisberg is the founding and current President of the Law and Humanities Institute. Below is an abbreviated biography, taken from a White House press release.

Richard H. Weisberg is the Floersheimer Professor of Constitutional Law at the Benjamin N. Cardozo School of Law, Yeshiva University.  He began his teaching and scholarly career as Assistant Professor of French and Comparative Literature at the University of Chicago, and then went on to practice and teach law. In 2009, he was awarded the Legion of Honor by the French government for his work, together with US State Department and French governmental officials, in providing restitution from France to victims of the wartime Vichy regime. A recipient of Guggenheim, ACLS, and Rockefeller Foundation fellowships, he is the author of four books including Vichy Law and the Holocaust in France; Poethics; and The Failure of the Word.  He is the founding and current president of the Law & Humanities Institute and founding and general editor of the periodical, Law and Literature.  He received his J.D. from Columbia Law School, where he was an editor of the Law Review, and his Ph.D from Cornell University.

Visualizing Law

Congratulations to Professor Richard K. Sherwin, whose newest publication, Visualizing Law in the Age of the Digital Baroque: Arabesques and Entanglements (Routledge), forms part of the basis of what promises to be a spectacular international conference, Visualizing Law In the Digital Age, at Cardozo Law School, October 19, 2011, and is co-sponsored by Cardozo and New York Law School. In addition to Professor Sherwin, other speakers include Professor Amy Adler (NYU Law School), Professor Christian Biet (Universite de Paris X), Professor Christian Delange (Universite de Paris VII), Professor James Elkins (School of Art Institute, University of Chicago), Professor Peter Goodrich (Cardozo Law School), Professor Desmond Manderson (McGill University), Professor W. J. T. Mitchell (University of Chicago), Professor Francis "Jay" Mootz (University of Nevada Las Vegas Law School), Professor Renata Salecl (London School of Economics, Visiting Professor, Cardozo Law School), Professor Austin Sarat (Amherst College), and Professor Alison  Young (University of Melbourne). More here and and here (a guest post from Professor Sherwin at the Hannah Arendt blog). NB: the webaddress given in the Routledge ad (www.nyls.edu/visualizinglaw either is not correct or does not seem to be working right now and I could not find another address for the symposium).

Legal Narrative and Statuary

Sally Greene, Center for the Study of the American South, has published Judge Thomas Ruffin and the Shadows of Southern History, in volume 17 of Southern Cultures (Fall 2011). Here is the abstract.

The statue of North Carolina Supreme Court Judge Thomas Ruffin that stands in a shadowy alcove at the entrance of a state court building in Raleigh was erected in 1915, toward the conclusion of a period of memorialization in the American South that was intended to reinforce in the public’s imagination a coherent story of American history that began with the Founding Fathers, continued through Robert E. Lee and the narrative of the “Lost Cause,” and worked to evoke “old family heritage, Anglo-Saxon supremacy, and military and political heroism.” Although Ruffin’s authorship of State v. Mann (1829), a case well known in its time (and now) for the stridency of the rhetoric with which Ruffin upholds the “power of the master,” is nowhere mentioned in the documentation surrounding the creation and dedication of the statue, that connection would have been inescapable to a white audience, which would have been largely sympathetic. But an emancipationist counternarrative, which was never really silenced, survives as a reminder of the strength and resilience of generations of Americans committed to equal justice under the Constitution. A recognition of this counternarrative has the potential to change the way we view Ruffin’s statue: the statement of the fixed and irrefutable power of law that it was no doubt intended to make unfolds into a conversation about the uses of law by the powerful. Such a shift of perspective, in turn, invites us into a broader reconsideration of our ways of navigating the contested terrain of public commemorative art.

Download the article from SSRN at the link.

Hay Festival Coverage

From the Daily Telegraph's Hay 2011 Festival coverage: a short article on famous (or infamous) literary feuds. Which ones catch your fancy? Mary McCarthy vs. Lillian Hellman, and the celebrated accusation that "'every every word she (Hellman) writes is a lie, including ‘and’ and ‘the' "? More Hay Festival coverage here (video/audio).

Redefining "Indian-ness"

Gregory Ablasky, University of Pennsylvania, has published Making Indians 'White': The Judicial Abolition of Native Slavery in Revolutionary Virginia and its Racial Legacy at 159 University of Pennsylvania Law Review 1457 (2011). Here is the abstract.

This article traces the history of a series of “freedom suits” brought by Virginia slaves between 1772 and 1806, in which the Supreme Court of Appeals of Virginia judicially abolished nearly two centuries of American Indian slavery in the colony by ruling that slaves who could prove maternal descent from Native Americans were prima facie free. Delving first into the legal history of Indian slavery in colonial America, it then examines the doctrinal shift that led the courts to redefine natives as unfit subjects for enslavement, and argues that its roots lie in a racialization of slavery that separated Africans from Natives. The final section explores the national legacy of these rulings, tracing the spread of these legal principles throughout the antebellum United States and discussing how the racial ideology that divided Native Americans and African-Americans continues to pose legal hurdles in contemporary Indian law cases involving tribal recognition and the Cherokee freedmen.

Download the article from SSRN at the link.

The King James Bible and the Founding of the Republic

Bernard M. Levinson, University of Minnesota, and Joshua A. Berman have published The King James Bible at 400: Scripture, Statecraft, and the American Founding in the History Channel Magazine, November 2010, at page 1. Here is the abstract.

This short article addressed to a broader readership investigates the impact of the King James Bible upon the American founding. In order to show that impact, the article's first half portrays the political context for the formation of the King James, charts the influence of the Bible upon early modern political thought, and then sketches the impact of the KJV upon the rhetoric and political thought of the Founders. The essay is accompanied by a timeline.

Download the article from SSRN at the link.

Francisco de Vitoria and Alberico Gentili On the Global Legal Community

Andreas Wagner, Goethe University Frankfurt, Cluster of Excellence "The Formation of Normative Orders," has published Francisco De Vitoria and Alberico Gentili on the Legal Character of the Global Commonwealth, in the Oxford Journal of Legal Studies (2011). Here is the abstract.

In discussing the works of 16th-century theorists Francisco de Vitoria and Alberico Gentili, this article examines how two different conceptions of a global legal community affect the legal character of the international order and the obligatory force of international law. For Vitoria the legal bindingness of ius gentium necessarily presupposes an integrated character of the global commonwealth that leads him to as it were ascribe legal personality to the global community as a whole. But then its legal status and its consequences have to be clarified. For Gentili on the other hand, sovereign states in their plurality are the pinnacle of the legal order(s). His model of a globally valid ius gentium then oscillates between being analogous to private law, depending on individual acceptance by states and being natural law, appearing in a certain sense as a form rather of morality than of law.

The full text is not available for download from SSRN.

Interpreting Constitutions

Joel I. Colon-Rios, Victoria University of Wellington, has published Law, Language, and the New Latin American Constitutions, in the New Zealand Journal of Public and International Law (2011) and the Victoria University of Wellington Law Review (2011). Here is the abstract.

Latin America has many languages and many constitutions. This article provides a general overview of the ways in which some constitutions of states of Latin America relate to the multi-lingual context in which they operate. After providing a brief account of Latin American constitutional history in Part I, the essay will thus consider the relationship between language and constitutions in three different contexts: the creation of new constitutions, constitutional protection of language rights, and the process of making a constitution accessible to speakers of a language different from the one in which it was originally written.

Download the full text from SSRN at the link.

The History of Hysteria, In Photographs

NPR's Jessica Loudis takes a look at Asti Hustvedt's Medical Muses: Hysteria in Nineteenth Century Paris, a new book examining the women confined to the notorious Salpetriere Hospital in Paris, the treatment of their condition, which was dubbed "hysteria," and the effects and stories about that threatment then and now. Says Ms. Loudis in part,

Nowhere was hysteria's uneasy relationship to science more apparent than in photographs. Andre Breton once called hysteria the "greatest poetic discovery of the late 19th century," a notion that lingers below the surface of clinical observation. Like Muybridge's images of horses in motion, Charcot used photography as a mode of forensics and a means to parse illness. For the neurologist, a lifelong doodler, "art became a method to immobilize the tumultuous fits of his patients and order the savage thrashing into a sequence of static images." It's no coincidence that "Augustine," Charcot's most documented hysteric, arrived at the hospital in 1875, the same year that its first darkroom was installed. But more than a century later, these photos — many of which have the macabre look of a still from a Bela Lugosi film — are in no way native to the realm of medicine. Instead, Hustvedt uses them to highlight the historically foggy divide between science and art.

More here. The book is published by Norton.

Anniversary of the Scopes Indictment

May 25, 1925, a grand jury indicted John T. Scopes for violating a Tennessee law (passed only two months before) against the teaching of evolution (the Butler Act; repealed in 1967).  Clarence Darrow undertook Mr. Scopes' defense, while the prosecution enlisted William Jennings Bryan to direct its case. While the jury hearing the case ultimately convicted Scopes, Tennessee's Supreme Court overturned the conviction on the grounds that the judge, rather than the jury, had imposed the penalty.



John T. Scopes

Jerome Lawrence and Robert E. Lee dramatized the trial, somewhat disguising the principals as Henry Drummond (Darrow), Matthew Harrison Brady (Bryan), Bertram T. Cates (Scopes), and E. K. Hornbeck (H. L. Mencken, the famed journalist who covered the trial). The playwrights noted that while their work took the Scopes trial as its departure point it was also an indictment of the McCarthyism that swept the country in the early and mid-1950s. The play made its debut on Broadway in 1955 and was first filmed in 1960.  It has been made for television three times, in 1965, 1988, and 1999, and is a staple for repertory companies and local theater groups.

Links:

Copy of the original New York Times story discussing Scopes indictment here
Mencken's article discussing likelihood of Scopes' conviction
Professor Doug Linder's excellent Famous Trials website with more information on the trial here

Bobbleheads and Bling: The Message of Tex-Mex Rapper Pedro Herrera

From the New York Times, a feature on Pedro Herrera, "Chingo Bling," who takes inspiration from Mexican foods and culture, and weaves his political concerns into the popular hip-hop that has made him a standard bearer for the Latin American experience. Among his recordings: They Can't Deport Us All (Asylum Records); Chave del Ache: The Kid from da H, El Mero Chingon, Duro en la Pintura, Chicken Flippa, Tamale Season, and Air Chingo: The Mixtape (all Oarfin Records). A link to Chingo Bling's blog here.

The Constitution of Cadiz

Matthew C. Mirow, Florida International University College of Law, has published Codification and the Constitution of Cádiz in Estudios Jurídicos en Homenaje al Profesor Alejandro Guzmán Brito (Patrício-Ignacio Carajal and Massimo Miglietta, eds.; Edizioni dell’Orso, 2012).

This study seeks to explore the private law side of the Constitution of Cádiz, in particular its use and reference to the legal revolution of codification that was well underway by 1812. By engaging questions of codification and private law, this study explores the relationship between private law and public law at a transformative moment in both areas. In public law, unwritten, ancient constitutions were just beginning to be replaced by written constitutions attempting to limit government and to define individual rights. In private law, centuries of the ius commune tradition were being reorganized and shaped into codes. Thus, an examination of the idea and place of codification in the Constitution of Cádiz should reveal clues about these important changes.

First, this study discusses the placement of Article 258, the constitutional article referring to codes, within the text of the Constitution itself. It then addresses other aspects of the Constitution that point towards codification as a logical outgrowth of the political and legal transformations contemplated by the Constitution. The third topic addressed here is the way Article 258 came into the Constitution through the reports of the debates in the Cortes and what these statements reveal about the perception of codes at the Cortes. This study ends with some concluding comments about the place of the Constitution of Cádiz in the history of Latin American codification.

Download the text from SSRN at the link.

The Meaning of "Precedent"

Frederick Schauer, University of Virginia School of Law, is publishing Precedent in the Routledge Companion to the Philosophy of Law (Andrei Marmor ed., 2011?). Here is the abstract.

This article on precedent, prepared as an entry for the forthcoming Routledge Companion to the Philosophy of Law (Andrei Marmor, ed.), examines the main philosophical and jurisprudential issues involved with the concept of precedent and its role in legal reasoning and legal decision-making. Among the themes covered are the fundamental idea of a past decision being a reason just because of its existence, the distinction between precedential and analogical reasoning, the issues involved in determining which past decisions are precedents for which current ones, the relation between precedent and rules, and the normative and institutional design questions of when a system of precedential constraint is desirable and when it is not.

Download the text from SSRN at the link.

The State of Nature: Whence Politics?

William A. Edmundson, Georgia State University College of Law, has published Politics in a State of Nature. Here is the abstract.

Aristotle thought we are, by nature, political animals. Political philosophy in the tradition of Hobbes and Locke sees political society not as natural but as an artifice. For this tradition, political society emerged from a pre-political state of nature by the exercise of innate normative powers. Those powers, together with the rest of our native normative endowment, both make possible the construction of the state, and place sharp limits on the state’s just powers and prerogatives.

Thus described, a state-of-nature theory has three components. One is an account of the native normative endowment, or “NNE.” Two is an account of how the state is constructed using the tools included in the NNE. Three is an account of the state’s resulting normative endowment, which includes a (purported) moral power to impose duties of obedience.

State-of-nature theories disagree about the NNE. For Hobbes, it consists of a moral permission to do whatever seems to one to be necessary to survival, and a moral power to covenant. Locke specified a more constraining NNE, which also included a “natural executive right” to punish wrongdoing. Rawls excluded personal desert from the “original position,” his refurbishing of the state of nature. In each case, the NNE is not treated as though it were a matter of empirical investigation and discovery, but rather were one of reflective adjustment to the other two components of the theory.

The work of social psychologist Stanley Milgram and his students suggests a quite different NNE, one far more constrained than what state-of-nature theories have allowed. Norms that constrain moral reproof are of particular interest here. Contrary to Locke, people do not behave in experimental settings as one would predict if they possessed a “natural executive right” to punish wrongdoing. Moral reproof is subject to standing norms. These norms limit the range of eligible reprovers.

This paper draws on this work to support two claims. One, is that the native normative endowment is (as Aristotle held) already political. The other is that political authority should be re-conceived as a matter of standing - that is, as the state’s unique possession of a moral permission to enforce moral norms, rather than as a moral power to impose freestanding duties of obedience.

Download the paper from SSRN at the link.

The Legacy and Mystery of Primo Levi

Carlin Romano writes about Primo Levi's legacy here for the Chronicle of Higher Education. More on the meaning of Mr. Levi's art and the difficulty of writing about his work here in a 2002 Chronicle article by Julia M. Klein.

Egalitarianism In History and Contemporary Thought

Joel I. Colon-Rios, Victoria University of Wellington, and Martin Hevia, Universidad Torcuato Di Tella School of Law, have published From Redistribution to Recognition in El derecho a la egualidad: a portes para un constitucionalismo iqualitario (Roberto Gargarella y Marcela Alegre eds.; Lexis/Nexis, forthcoming).

This paper examines the 'second wave' of egalitarianism, which moved away from the traditional focus on economic injustices and redistribution claims, to an emphasis in cultural injustices and the politics of recognition. The first part of the paper introduces the 'first wave' of egalitarian thought, through a brief examination of the work of John Rawls and of the scholarship on luck egalitarianism. The second part, resting on the work of Charles Taylor, explores the historical roots of the politics of recognition. The third part focuses in the debate between Iris Marion Young and Nancy Fraser, which exemplifies the promises and limits of the second wave of egalitarian thought.

Download the abstract from SSRN at the link. NB: Text is in Spanish.

Law's Nature

Frederick Schauer, University of Virginia School of Law, has published On the Nature of the Nature of Law. Here is the abstract.

What is it for something to have a nature? And what is it for law to have a nature? Analysis of the concept of law has often been taken to be a search for the essential features of law, but it is not clear that the nature of a phenomenon or artifact is better explained by its essential features than by its common ones. And it is not clear that necessary truths have more explanatory value than typical truths. Especially – but not necessarily – if we recognize the possibility that law is a cluster concept, the value of explaining the widespread but not strictly necessary features of law in explaining law itself becomes more apparent. The jurisprudential project of differentiating law from other social phenomena is an important one, but the distinction may be a fuzzy one and not susceptible either to sharp demarcation or to specification of essential features of law that will assist in differentiation. But if we inquire into what typically or usually or almost always characterizes law rather than what necessarily characterizes it, we may make genuine progress in distinguishing law from the social phenomena to which it is adjacent but with which it is not congruent. This paper, prepared for the McMaster University Conference in May, 2011, on “The Nature of Law: Contemporary Perspectives,” explores these issues.

Download the paper from SSRN at the link.

What's Satire Got To Do With It?

Lauren Feldman, American University, Anthony Leiserowitz, Yale University, and Edward W. Maibach, George Mason University Center for Climate Change Commication, have published The Impact of the Daily Show and the Colbert Report on Public Attentiveness to Science and the Environment. Here is the abstract.

Prior research on the political effects of late-night comedy programs has demonstrated that by piggy-backing political content on entertainment fare, such programs provide a, "gateway," to increased audience attention to news and public affairs, particularly among less politically engaged audiences. Given the heightened coverage of science and environmental topics on Comedy Central’s satirical news programs, "The Daily Show," and, "The Colbert Report," this paper considers whether a similar process could be at work relative to public attention to science and the environment. An analysis of nationally representative survey data finds that audience exposure to, "The Daily Show," and, "The Colbert Report," goes hand-in-hand with attention paid to science and environmental issues, specifically global warming. Moreover, the relationship between satirical news use and attentiveness is most pronounced among those with the least amount of formal education, who might otherwise lack the resources and motivation to pay attention to scientific and environmental issues. In this way, satirical news is an attention equalizer, reducing traditional gaps in attentiveness between those with low and high levels of education.

Download the paper from SSRN at the link.

Bob Dylan In Legal Opinions

Alex B. Long, University of Tennessee College of Law, has published The Freewheelin' Judiciary: A Bob Dylan Anthology. Here is the abstract.

This paper, presented as part of a symposium on Bob Dylan and the Law at the Fordham University School of Law, explores the ways in which judges have used the lyrics of Bob Dylan in their opinions.

Download the paper from SSRN at the link. NB: Bob Dylan's 70th birthday is May 24th.