Creating Art Out of Crime

Katherine Biber, University of Technology, Sydney, Faculty of Law, is publishing In Crime's Archive: The Cultural Afterlife of Criminal Evidence in the British Journal of Criminology. Here is the abstract.

This article explores the cultural afterlife of criminal evidence. During the criminal trial, strict rules govern the collection, admission and interpretation of evidence at trial. However, after the conclusion of the trial, this material returns to a notional ‘archive’ and is sometimes used by artists, scholars, curators and others, but subject to no rules nor standards. This article examines a range of instances in which criminal evidence has been used post-trial, and proposes a jurisprudence of sensitivity for responding to the harm that is sometimes done when criminal evidence leads a cultural afterlife.

Download the article from SSRN at the link. 

Here Comes the (Funny) Judge

Mary B. Trevor, Hamline University School of Law, is publishing Ostriches, Trees, the 'Perfect Trial,' and Sci-Fi: A Social Science Analysis of the Impact of Humor in Judicial Opinions in volume 45 of the University of Toledo Law Review (2014). Here is the abstract.

In the legal profession, understanding — or at least, formal analysis — of humor and its impact is in its infancy. Lawyers and judges are not trained to use or understand humor, although all would acknowledge that humor, cringe worthy or otherwise, is by no means unknown in the practice of law. But for most intents and purposes, we pretend that humor is not part of legal culture. When humor is addressed in the law school or professional advocacy context, for example, it typically gets short shrift: don’t try to be funny. Resources on judicial opinion writing, in particular, generally advise that humor is inappropriate, and commentators on judicial humor have offered similar, mostly negative, assessments.

Despite this advice, humor, while not widespread, is an ever-present aspect of the body of judicial opinions, an aspect that periodically attracts attention. One of the best-known recent examples is Gonzalez-Servin v. Ford Motor Co., an opinion by Judge Richard Posner of the Seventh Circuit. Multiple counsel in the case had, in Judge Posner’s view, ignored “apparently dispositive precedent” when presenting arguments. Unsatisfied with a mere holding, however, Judge Posner not only verbally compared the tactic to an ostrich burying its head in the sand, but also inserted two photographs into the opinion: one of an ostrich burying its head in the sand, and immediately following, one of a man dressed in traditional “attorney” attire burying his head in the sand. Legal newsletters and blogs picked up on Judge Posner’s opinion, but they were not the only sources to do so. The general press (the Wall Street Journal and the Chicago Tribune) did as well. And such treatment was for an opinion addressing an issue that was not a matter of public interest-forum non conveniens.

Judge Posner does not stand alone in his use of humor. There are even some indications that judicial use of humor in opinions is increasing. And in our era of rapid and widespread electronic communication, public awareness of this humor also appears to be increasing. In light of the evidence of continued use of humor in the face of advice and commentary largely counseling against its use, a reassessment of judicial humor seems warranted.
An additional reason for reassessment at this time comes to us from recent developments in the field of social science, which offers sophisticated tools for the job. In the last few decades, social scientists have greatly expanded the study of humor’s role in our society. Their theories offer new tools to assess judicial humor, to bring together the perspectives of earlier commentators on judicial humor, and to offer more comprehensive guidelines for judicial humor than have previously been offered.

The intent of this article is not to suggest that humor is always, or even often, appropriate in judicial opinions. But social science tells us that, despite the bad name humor has justly acquired based on its use in certain opinions, it may be possible for humor to be used appropriately, and even helpfully, in certain instances.

Download the article from SSRN at the link. 

The Development of Western Law From 565 CE

M. Stuart Madden, Pace University School of Law, has published Paths of Western Law after Justinian at 22 Widener L.J. 757 (2013). Here is the abstract.

This article relates the story of three principal paths of law in Western Europe from the periods preceding the gradual dissolution of the Western Roman Empire following the death of Justinian I in 565 A.D. through and including the several centuries thereafter. The period witnessed an acceleration of the absorption of Roman law into the customary law of the various Germanic groups that occupied and ruled the former Roman territories, and the recitation of such law in the form of new law codes promulgated by three of the major Gothic groupings: the Lombards, the Burgundians, and the Salian Franks.
In the main, the Germanic rulers were attentive to the need for laws that would suit not only German customary law as had been followed for many centuries, but also the Roman law to which their Roman constituencies, now under Germanic rule, had adhered. Importantly, even such Roman law as would be applied was only a bowdlerized version of Justinian’s contributions, as the Digests and other interpretative parts of the comprehensive Corpus Juris Civilis were somehow lost, only to be recovered some centuries later. Thus, for the first several centuries of Germanic rule, the only remnant of written Roman law available was the blunt-edged summarization contained in the Code of Justinian.
Germanic law was revolutionized by its new application to the governance of stable agricultural communities. The Gothic codes also advanced continental law in many ways that today can be seen as building blocks of emerging western law. Perhaps most significantly, the three law codes studied here demonstrate a preference for resolution of disputes by means of composition (compensation), and included monetary incentives therefore. By such means, the Goths were largely successful in turning their culture away from violent retributive justice towards systems of *758 composition for injury. Further to this end were the adoptions of wergeld as an appropriate compensation for a homicide, and also the widespread use of codified tables of composition to be associated with particularized lesser wrongs. These changes in Germanic law gave an increased likelihood of even-handed administration of justice, and provided also a monetized incentive for the family of a victim to forego mayhem in resolving disputes. As to the incidence of violent justice, many ancient Germanic practices, such as blood feud or trial by boiling water, were tamed or eliminated in the development of new agricultural societies. The Gothic codes also adopted remarkably modern distinctions between intentional and accidental harm, as well as negligence standards that assigned uncannily familiar significance to concepts of duty and proximate cause.
In sum, the law codes of the Lombards, the Burgundians, and the Salian Franks provided a civilizing legal bridge between the fall of the Western Empire and the more westernized law codes that would follow in the later Middle Ages. 

Download the article from SSRN at the link. 

Public Constitutionalism In the Ante-Bellum Cemetery

Alfred L. Brophy, University of North Carolina, Chapel Hill, Law School, has published 'These Great and Beautiful Republics of the Dead': Public Constitutionalism and the Antebellum Cemetery as UNC Legal Studies Research Paper No. 2304305. Here is the abstract.

“Public Constitutionalism and the Antebellum Cemetery” joins the growing literature on public constitutionalism by focusing on the seventy addresses given at cemetery dedications from Supreme Court Justice Joseph Story’s address at Mount Auburn Cemetery in Cambridge, Massachusetts, in 1831, through the addresses of Edward Everett and Abraham Lincoln at Gettysburg in November 1863. The addresses were part of a vibrant public discussion of constitutional principles, which spanned such diverse occasions as July Fourth celebrations, arguments in great constitutional cases (like Daniel Webster’s Dartmouth College argument), dedication of public monuments (like Daniel Webster’s speech at the placement of the cornerstone of the Bunker Hill Monument in 1824), lyceum addresses, and college literary society lectures. For Americans, especially those of the Whig Party, the Constitution was a key component of culture and a key unifier of the nation.
Rural cemeteries provided support for such constitutional values. They brought beauty and order to the landscape; they served to mediate an impersonal, commercial world and brought uplift through the lessons of morality and patriotism that people learned when they visited the cemeteries. The cemetery supported constitutional values of Union, respect for property, and obedience to the rule of law. For visitors to the cemetery learned about the importance of each of those values at the cemetery. It was an instructor of values; its ordered lanes and graves also served as a sign of the health of the Christian republic. For the cemetery fulfilled duties owed the past. The cemetery inspired sentiments of love of family and country. People would leave the cemetery inspired to preserve the United States as a Christian republic. Finally, these abstract ideas were promoted through private charitable corporations. Those private organizations brought the community together to promote the republic.
The cemeteries were, thus, one important institution – along with the schools, churches, civic associations, and businesses – that helped create and preserve the Union. The cemetery dedication addresses, like other addresses designed to promulgate constitutional ideas, mixed appeals to economics, morality, religion, and political theory with legal and constitutional ideas. Rural cemeteries promoted Whig constitutional ideals about order, patriotism, and Union. Those values were at the center of the debate over the response to secession and they were put into practice by soldiers along Cemetery Ridge at Gettysburg in 1863. Lincoln’s address at Gettysburg, thus, reflects the appeals to sentiment and Constitution that were so frequently invoked in the thirty years before the War.
This article reveals an important and neglected role of oratory in disseminating constitutional ideas, as well as the significance of rural cemeteries to public constitutional thought. This hidden history reveals how those ideas mobilized support for Union and, thus, how public constitutional thought affects the actions of voters, jurists, and politicians. 

Download the paper from SSRN at the link. 

Fifth National Congress of Teaching In Law, Valencia, Spain, September 11-13, 2013

From Professor Jose Calvo Gonzalez, information on the Fifth National Congress of Teaching in Law, “Las transformaciones en la docencia y el aprendizaje del Derecho”, to be held in Valencia from 11 to 13 September 2013, co-organized by the Institute of Human Rights. Here is a link to the program and to the texts.

Law and Humanities Institute and Cardozo Law School Sponsor Conference On History of Blood Libel

Upcoming: a fall conference sponsored by the Law and Humanities Institute and the Program on Holocaust Human Rights Studies, Cardozo Law School. Here is the description of the program from the Cardozo website:

On Nov.14-15, the Program on Holocaust Human Rights Studies and the Law & Humanities Institute will sponsor a conference on the tragic history of the "Blood Libel", in which Jews have been accused across the millennia of killing Christian children to use their blood in the Passover ritual. Originating in England early in the second millennium, the libel spread eastward to Russia, and it is not unknown in the United States and Canada. One of the most infamous of these libels was the Mendel Beilis case in the waning days of Tsarist Russia, and it is the 100th anniversary of the near-miraculous acquittal of Beilis that occasionalizes this conference. The scholarly centerpiece of our discussions will be Hannah R. Johnson's influential recent book, BLOOD LIBEL, a complex history of the phenomenon, and Prof. Johnson of the U. of Pittsburgh will speak; the literary centerpiece will be Bernhard Malamud's fictional rendering of the Beilis case,THE FIXER, which will be discussed widely by various speakers. Panelists include the grandson of Beilis and attorney Jeremy Garber, who have a major bone to pick with the novel; Prof. Vivian Curran of the U. of Pittsburgh Law School; Prof. David Fraser of the U. of Nottingham (UK); Prof. Jeffrey Mehlman of Boston U.; Prof. Harriet Murav of the U. of Illinois; Prof. Sanford Levinson of U. Texas Law School; and Prof. Richard Weisberg of Cardozo.
For further details and to reserve for the symposium, contact Johanna Rubbert at johannac.rubbert@gmail.com

Colonialism, Cultural Assumptions, Property Rights, and Land Law Reform

Robert Home, Anglia Ruskin University, has published ‘Culturally Unsuited to Property Rights?’: Colonial Land Laws and African Societies at 40 Journal of Law and Society 403 (2013). Here is the abstract.

Hernando de Soto, advocate of central registers of land rights, raised the possibility of Africans being culturally unsuited to property rights. This article argues that sub‐Saharan Africa's high proportion of tribal/communal land (as distinguished from private and public/state land) results from a combination of geography, history, and population distribution. External colonial rule created a dual system of land tenure that restrained private property rights in the tribal/communal land areas. The research draws upon archival evidence from the colonial land tenure panel chaired by Lord Hailey (1945–50). The finding is not that Africans are inherently culturally unsuited to property ownership, but that colonialism reinforced pluralistic forms of property rights, which create particular challenges to land law reform. 

The full text is not available for download from SSRN.

Where Stories Come From

Andrew C. Isenberg on the creation of the Wyatt Earp myth. From the Daily Beast.

Telling Stories About Law and Inequality On "The Wire"

Robert C. Power, Widener University School of Law, has published 'The Wire' and Alternative Stories of Law and Inequality in volume 46 of the Indiana Law Review (2013). Here is the abstract.

This Article examines 'The Wire' for what it says about inequality in the United States today and what society can do to bring about greater equality. Part I identifies several themes explored over the five seasons of the series — the failure of law enforcement in the inner city, the harsh life and inadequate education of impoverished children in such areas, and Baltimore as an example of inefficient and corrupt city government. Part II reviews the Rodriguez case to consider the extent to which it defined the nature and scope of the Fourteenth Amendment’s Equal Protection Clause in terms of funding and providing public services. Part III returns to 'The Wire’s' three themes to describe in detail how the stories depicted in the series stand as examples of inequality that are particularly corrosive to society. Part IV returns to law, with seven sections identifying possible responses to the unequal society portrayed in the series. 

Download the article from SSRN at the link. 

The Ontological Structure of Law

Carlos L. Bernal Pulido, Universidad Externado de Colombia, has published En Búsqueda De La Estructura Ontológica Del Derecho (In Search of the Structural Ontology of Law) at 30 Revista Derecho del Estado 31 (2013). Here is the abstract.

La tarea central de la teoría del derecho es la de explicar la ontología del derecho o, como comúnmente se señala, su naturaleza. El objetivo de este ensayo es describir de manera general una metodología que permita llevar a cabo investigaciones acerca de la naturaleza del derecho. Se sostiene que investigaciones de este tipo deben empezar con una comprensión pre-reflexiva del derecho en tanto entidad basada en una práctica social. Asimismo, que dichas investigaciones deben tratar de reducir la explicación acerca de la naturaleza del derecho a un catálogo de condiciones necesarias y suficientes para la existencia del derecho, y que el éxito en esta empresa no depende solo del análisis conceptual, sino que precisa también de una construcción teórica que tenga por objeto el logro de un equilibrio reflexivo.

The central task of jurisprudence is explaining the ontology of law or, as it is commonly said, its nature. The aim of this paper is to outline a methodology for carrying out inquiries into the nature of law. I argue that enquiries of this kind ought to begin with a pre-reflective understanding of law as an entity grounded in a social practice, that they should attempt to provide reductive necessary and sufficient conditions for the existence of law, and that success in this enterprise depends on conceptual analysis although it also requires a theory construction aiming at achieving a reflective equilibrium. 

Download the article from SSRN at the link (text in Spanish).

A New Issue of Law and Humanities

Hart Publishing announces:

The contents of Law and Humanities Volume 7. Number 1. 2013. To access this issue online, read the abstracts and purchase individual papers please click here. To subscribe and for further information about Law and Humanities, please click here.  CONTENTS EditorialFree to view – please click here Articles‘The Cutting Edge of Cocking About’: Top Gear, Automobility and LawKieran Tranter and Damien Martin
Abstract: This paper argues that the British Broadcasting Corporation's (BBC) television series Top Gear (2002-) presents a significant opportunity to think about automobility, masculinity and law. As a show about cars and car culture it can be seen, and dismissed, as a gratuitous celebration of 'combustion masculinity.' However, its irony, humour and nostalgia combine to highlight that this way of being male lies in the past. Focusing on Top Gear series 13 (June-August 2009) it is argued that the essence of combustion masculinity lies not only in risk and competition but law. However, the show goes further. In its excessive performance of combustion masculinity it engages in gentle critique. In the post-industrial era where the motor vehicle's cultural status is declining Top Gear is itself a vehicle allowing combustion masculinity to be overtaken by less risky, less violent and more lawful ways of being male.
Click here to purchase paper Oaths, Credibility and the Legal Process in Early Modern England: Part TwoBarbara J ShapiroAbstract: This is the second part of an article, Part One of which appeared in the December 2012 issue of Law and Humanities. Part One broadened the scope of the study of the law of evidence by examining the whole range of fact-taking practices in early modern English society as a necessary background to understanding how oaths functioned in the legal evidentiary environment. It questioned the argument of George Fisher that contemporary belief in the divine power of the oath to compel truthful testimony pressed the legal system to avoid the credibility conflicts that would be generated by competing oaths. Shapiro examined how oath-taking by witnesses interacted with the oaths of grand jurors and petit jurors as well as with oath-taking outside the legal setting. The latter portion of Part One began an extensive analysis of credibility issues, suggesting that the frequent expression of credibility concerns at the time undermined the view that oath-takers were almost uniformly believed to be truth-tellers. Part Two aims to broaden the scope of the credibility issue, looking beyond the formal juridical context of the jury trial to the employment of credibility criteria in a wide variety of cultural arenas; thereby demonstrating that legal and non-legal discussions of credibility invariably overlapped and intertwined.
Click here to purchase paper Towards a Critique of Narrative ReasonFrançois Ost
Abstract: This paper aims to rehabilitate the role of narrative, against the dominant strategy of thinking, which disqualifies it. We have grown up with stories, which makes this plea easy: they are all around, nurturing us and arousing general sympathy amongst the doxa. But at the same time, the prevailing doctrine tends to discredit narrative, presenting it as private and frivolous in order to constrain its powers. I would like to demonstrate the constitutive nature of narrative both as the collective story, memory and history of peoples, and as the individual or 'personal novel' each one of us tells himself in order to create his own identity. I analyse the repression and disqualifications of narrative, before revealing the ways in which both theoretical and practical reason arise from within our narrative imagination. This conception of the human as homo fabulans (or story-telling animal) could lead us to outline a 'Critique of Narrative Reason'.
Click here to purchase paper Recovering the Lost Human Stories of Law: Finding Mrs BurnsDawn Watkins
Abstract: This paper adopts a narrative approach as a means to investigating a well-known English civil law case; Burns v Burns [1984] Ch 317. It seeks to demonstrate some of the consequences of the 'we' and 'they' distinction that characterises much legal practice and discourse. In particular, it is argued that the identity of 'Mrs Burns', as revealed in the reported 'facts of the case' and scrutinised in subsequent legal discourse, is merely our distorted creation. Nevertheless, we continue to refer to the reported judgment as the ultimate source of authority of these 'facts' and we persist in pretending to ourselves that Mrs Burns was intimately involved in the establishment of them. Drawing on Delgado's 'plea for narrative', Mrs Burns' own counterstory is presented here as a both as challenge to our usual ways of thinking and as a belated 'gesture of responsibility' towards her.
Click here to purchase paper Lost for Words: Embodying Law through Tanztheater
Miriam Aziz
Abstract: What is the link between dance and the law? In my opinion, dance is also a way of seeing, a way of experiencing life; it is a story-telling device and is as variable as the many reasons why we dance. Both law and dance are theories of language. My interest as a lawyer and as an artist in exploring the link stems from there. To what extent, if at all, does this link enable us to examine the many ways we perceive law as an art of story-telling? What does it have to offer, if anything, about revising ideas about what we mean when we lay claim to translating ideas about social justice into laws? In 2011, I established a performance art laboratory called Artist (s) at Large to explore ideas about law and rule based approaches to creativity as well as copyright and authorship. The lab was also conceived as a creative platform for law teaching, thereby adapting the case-method. On 20 October, I premiered a performance piece called "Lost for Words" at the DiMenna Center with Artist (s) at Large which explored ideas of witness, testimony, truth and reconciliation with and beyond text. This paper places this experience within the context of a research and teaching agenda that is both innovative and imaginative, and has consequences for legal theory, legal practice, scholarship and teaching.
Click here to purchase paper Book ReviewsJulen Etxabe, The Experience of Tragic Judgment
Ari Hirvonen
Click here to purchase paper Ruth Herz, The Art of Justice: The Judge’s Perspective
Leslie J Moran, Gary Watt, Linda Mulcahy and David Isaac
Click here to purchase paper If you have any questions please contact Hart Publishing, 16C Worcester Place, Oxford OX1 2JW, UK Tel: +44 (0) 1865 517530; Fax: +44 (0) 1865 510710; Email: jo@hartpub.co.uk

How Many Law Professors Does It Take To....

James A. Lynch and Hershy H. Friedman, both of the Department of Finance and Business Management, Brooklyn College, have published Using Lawyer Jokes to Teach Business Ethics: A Course Module. Here is the abstract.

Most of us will agree that the legal profession gets little respect in the United States. There are scores of websites dedicated to lawyer jokes and almost all the humor is negative. Indeed, the humor is not only negative but is often is filled with hate and anger towards attorneys. In many of the jokes, it is clear that the only good lawyer is one who is dead. For example, try this joke with any other profession and it does not work. “What do you call 5000 dead________ at the bottom of the ocean? A good start!” It only works with lawyers. Why are lawyers so hated? One doubts that there is any other profession that has resulted in so many vicious jokes. This paper discusses how lawyer jokes can be used to teach the importance of ethics. Scores of lawyer jokes are provided for educators who teach business law or ethics to use in the classroom. 

Download the paper from SSRN at the link.

Any other profession that is quite so hated? Well, maybe not, although I think used car salespeople, the insurance industry, and Congress are right up there. (And I would point out that some people make really nasty jokes about putting an end to cats, which they do not do about dogs, except perhaps particular breeds). What's your favorite lawyer joke? 

Rousseau's Republican Ritual

Eoin Daly, University College, Dublin, has published Ritual and Symbolic Power in Rousseau’s Constitutional Thought as UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 07/2013. Here is the abstract.

Rousseau places strong emphasis on public ceremony, festival and pageantry as integral aspects of statecraft. The obvious purpose of republican rituals is to promote the civic virtues which facilitate a politics of the common good. Therefore, it has been argued that Rousseau’s ritualistic constitutionalism has echoes in the mild ritualism of contemporary liberal states. I argue, however, that Rousseau envisages a much broader purpose for republican ritual: not merely to supplement, but to substitute the complex symbolic rituals of liberal society and thus to supplant the need for private sources of aesthetic and symbolic distinction. 

Download the full text from of the paper from SSRN at the link.

New Publications In Iberian and Hispanic Law and Literature

Newly published in the law and literature area:

Jose Calvo Gonzalez, Derecho y Literatura, ad Usum Scholaris Juventutis (con relato implícito), 34 (66) Seqüência: Estudos Jurídicos e Políticos, 15-45 (2013). 

Eddy Chávez Huanta, Don Dimas de la Tijereta: El tinterillo que litigó en el averno, 12 Criterio y Conducta (2013) at pp.313-334.

Amilcar Mendoza, Il postino o la ardiente paciencia de los rectos hombres de leyes, 12 Criterio y Conducta (2013) at pp. 351-361.

André Karam Trindade and Luis Rosenfield, Cervantes, Twain e Lobato: reflexões sobre direito, literatura e censura, Revista de Investigación e Innovación Educativa (June, 2013). Text available here.

More discussion at Professor Gonzalez's excellent blog, Iurisdictio-Lex Malacitana.
Thanks to Professor Calvo for the information about these valuable publications.

Individiual Rights In "Tristram Shandy"

Helge Dedek, McGill University Faculty of Law; Institute of Comparative Law, is publishing De Iure Hominis et Homunculi: Rights, Tristram Shandy, and the Legal Language of Isolation in Rechtsanalyse als Kulturforschung (Werner Gephart & Jan Christoph Suntrup eds.; Vittorio Klostermann, 2013) (forthcoming). Here is the abstract.

In Laurence Sterne’s 1759 comic novel, Tristram Shandy, we encounter a startling invocation of protected individual rights, the individual in this case being the hapless proto-human Homunculus destined to become the titular character. Decades before the revolutionary declarations of rights, Sterne, Thomas Jefferson’s favourite author in matters of moral philosophy, blatantly ridicules the idea of the self-evidence of rights. Sterne’s satirical “rights-talk” captures two important facets: the atomistic, alienating aspect of perceiving human relations through the lens of rights, as famously criticized by Marx and so many others ever since; and the way in which drawing on genuinely legal concepts has contributed to the development of this often criticized language of isolation. In this paper, I trace, in particular, the ideas of Natural law scholars like Grotius and Pufendorf (who is explicitly referred to by Sterne) who conceptualized rights as non-relational, as domains, modelled on the Roman law concepts of dominium, ownership, and patria, the power of a pater familias over his household, both concepts that are characterized by domination over objects or human beings. Yet a theory of rights that insists on the integrity of exclusive spheres of power cannot easily accommodate non-transgressive intersubjective action – most importantly, contract. Nonetheless, the rhetoric of the protected sphere of the subjective right never left the language of law. 

Download the essay from SSRN at the link. 

A New Book On Law and Literature

Very interesting new book edited by Daniela Carpi and Jeanne Gaakeer, published by DeGruyter, entitled Liminal Discourses: Subliminal Tensions in Law and Literature (Law and Literature; 6). Lots of fascinating essays included, from Cristina Costantini's Representing Law: Narrative Practices, Poetic Devices, Visual Signs and the Aesthetics of the Common Law Mind to Melanie Williams' Liminal Tensions in Public to Private Conceptions of Justice: Nussbaum, Woolf and the Struggle for Identity, to Jeanne Clegg's Moll Flanders, Ordinary's Accounts and Old Bailey Proceedings. Laura Apostoli's Altered Bodies, Fragmented Selves: Reconstructing the Subject in Fay Weldon's The Cloning of Joanna May looks really interesting--well, all the chapters will keep me busy. Here's the rundown.

Daniela Carpi, Introduction 1: The Sublime of Law
Jeanne Gaakeer, Introduction 2: On the Threshold and Beyond: An Introductory Observation
Cristina Costantini, Representing Law: Narrative Practices, Poetic Devices, Visual Signs and the Aesthetics of the Common Law Mind
Maria Aristodemou, Bare Law Between Two Lives; Jose Saramago and Cornelia Vismann on Naming, Filing and Cancelling
Melanie Williams, Liminal Tensions in Public to Private Conceptions of Justice: Nussbaum, Woolf and the Struggle for Identity
Julian Jimenez Heffernan, "Under the Force of the Law": Communal Imagination and the Constitutional Sublime in Walter Scott's The Bride of Lammermoor"
Jeanne Clegg, Moll Flanders, Ordinary's Accounts and Old Bailey Proceedings
Sidia Fiorato, Ariel and Caliban as Law-conscious Servants Longing for Legal Personhood
Laura Apostoli, Altered Bodies, Fragmented Selves: Reconstructing the Subject in Fay Weldon's The Cloning of Joanna May
Jeanne Gaakeer, The Business of Law and Literature: To Compose an Order, To Imagine Man
Daniela Carpi, Renaissance Into Postmodernism: Anticipations of Legal Unrest

Historical Argument and Constitutional Interpretation

Jack M. Balkin, Yale University Law School, is publishing The New Originalism and the Uses of Historyin the Fordham Law Review (forthcoming). Here is the abstract.

Central to the New Originalism is the distinction between constitutional interpretation and constitutional construction. Interpretation tries to figure out the Constitution's original communicative content, while construction builds out doctrines, institutions and practices over time. Most of the work of constitutional lawyers and judges is constitutional construction. The distinction between interpretation and construction has important consequences for constitutional theory. In particular, it has important consequences for longstanding debates about how lawyers use history and should use history. First, construction, not interpretation, is the central case of constitutional argument, and most historical argument occurs in the construction zone. Second, although people often associate historical argument with originalist argument, the actual practices of lawyers and judges demonstrate that non-adoption history is as important as adoption history to constitutional construction. Third, there is no single modality of “historical argument.” Instead, history is relevant to many different kinds of constitutional argument. One important task of this article is to rethink the familiar model of modalities of argument offered by Philip Bobbitt and Richard Fallon; and to offer a different version that better reflects the multiple ways that lawyers and judges actually use history in constitutional argument. Fourth, according to the New Originalism, arguments about adoption history can offer mandatory answers only with respect to questions of interpretation; they cannot do so for questions of constitutional construction. That is, New Originalists accept an originalist model of authority only with respect to questions of interpretation, not construction. Yet New Originalists, like most lawyers, often make appeals to adoption history in constitutional construction. This raises the obvious question why American judges and lawyers should use or accept arguments from adoption history in constitutional construction and only sometimes find them persuasive. The originalist model of authority by itself cannot answer this question. Fifth, we can solve this puzzle by paying careful attention to how lawyers and judges actually use adoption history. In constitutional construction, “originalist” argument is not a single form of argument. It involves many different kinds of argument, and it often appeals to ethos, tradition or "culture heroes" -- honored authorities who are treated as objects of respect, wisdom and emulation. In fact, in constitutional construction, arguments from adoption history are often hybrid; they appeal to multiple modalities of argument simultaneously. Most arguments about the founding period usually also make implicit appeals to one of three modes of argument: national ethos, political tradition, or honored authority. This hybrid nature gives arguments from adoption history their distinctive character in constitutional construction. Despite the dominance of original public meaning originalism in originalist theory, lawyers actually use adoption history quite differently than academic theory prescribes. Sixth, precisely because originalist arguments (in constitutional construction) generally appeal to ethos and tradition, they will normally not be persuasive unless the audience can plausibly accept the values of the adopters as their own or can re-characterize them so that they can plausibly accept them as their own. When these values appear too alien or irrelevant, lawyers generally avoid making originalist arguments. Thus, lawyers do not feel an obligation to consult adoption history in every case; and when they do, they do not accept the results of adoption history as binding on them if there are other considerations. Seventh, in constitutional construction, adoption history is a valuable resource available to originalists and non-originalists alike. Indeed, once they understand how originalist-style arguments actually operate in the construction zone, non-originalists and living constitutionalists should have no qualms about appealing to adoption history and making originalist arguments. Using such arguments does not undermine living constitutionalist theories of construction in the least. Refusing to employ adoption history serves no important theoretical principle and has no significant rhetorical advantages; indeed, all it does is limit lawyers’ ability to persuade their fellow citizens through calling on shared traditions and invoking powerful symbols of cultural memory.

Download the article from SSRN at the link.

The Very Model of a Modern Law Professor?

Carlo A. Pedrioli, Barry University School of Law, has published Professor Kingsfield in Conflict: Rhetorical Constructions of the U.S. Law Professor Persona(e) at 38 Ohio N. U. L. Rev. 701 (2012). Here is the abstract.

At least since the 1960s, a “‘two cultures’ phenomenon” has become quite apparent within the legal field in the United States. On one hand, some lawyers, usually those within the university, have been more academically oriented, and, on the other hand, other lawyers, usually those in legal practice or sitting on the bench, have been more pragmatically oriented. Problems arise when these two groups begin to talk differently from each other. In a way, the field of law has developed into at least two different legal professions, and, not surprisingly, scholars and practitioners have experienced tension because of this situation. The problem comes to a head when, through rhetoric, lawyers envision their ideal role(s) for the law professor. Calling upon rhetorical theory, this article traces the contours of the conflict over the construction of the role(s), or persona(e), of the U.S. law professor from 1960 to the present. The article draws an initial line at 1960 because, by the 1960s, law schools in the United States had matured to the point at which they clearly were thinking of themselves as graduate programs within the university system. After a discussion of persona theory and persona analysis, this article addresses the two major personae that have emerged in the conflict, the law professor as scholar and the law professor as practitioner. As appropriate, each subsection of the article that considers a persona also addresses the type of rhetoric that lawyers have employed in developing their preferred persona. In this study, the term lawyers refers to both practicing lawyers and academic lawyers. A concluding section synthesizes some of the communication problems that have emerged in this ongoing conflict, usually due to a heavy reliance on traditional Aristotelian rhetoric, or persuasion, as a rhetorical strategy. Although descriptive in nature, the current article sets the stage for a subsequent article, normative in nature, that will open the door to an alternative approach to this ongoing conflict.

Download the article from SSRN at the link.  

Law and Order and Rhetoric

Allen Rostron, University of Missouri, Kansas City, School of Law, has published The Law and Order Theme in Political and Popular Culture in volume 37 of the Oklahoma City University Law Review (2012). Here is the abstract.

"Law and Order" became a political rallying cry in the 1960s, as conservative candidates like Barry Goldwater, George Wallace, and Richard Nixon criticized courts for putting the constitutional rights of criminals ahead of the need for effective police work and public safety. As the nation’s president after his victory in the 1968 presidential race, Nixon continued to emphasize the law and order theme. Meanwhile, a series of Westerns and cop movies, such as John Wayne’s "True Grit" and Clint Eastwood’s "Dirty Harry," began to echo Nixon’s claims about criminals, courts, and law. Concerns about crime and the impotency of the legal system soon produced a set of remarkably popular movies about vigilante justice, including "Walking Tall" and "Death Wish". Even when law and order faded as a national political issue, Hollywood continued to dwell on the idea that courts are too lax, turning the idea that criminals routinely escape justice because of legal technicalities into one of television’s and movies’ most familiar clichés. Crime rates have been plummeting for two decades now, and a series of re-makes of significant films from the Nixon era suggests that law and order’s grip on popular entertainment and the public imagination may finally be breaking. 

Download the article from SSRN at the link. 

Call For Papers: MAPOC Conference 2014

From Reginald L. Robinson, Howard University Law School, news of the following:

19^th Annual Mid-Atlantic People of Color

Legal Scholarship Conference 2014

Hosted by the University of Baltimore School of Law

Baltimore, MD

Dates:  January 23-25, 2014

–      Conference Theme & Call for Papers –

President Lyndon B. Johnson’s Great Society and Beyond:

The Historical and Contemporary Implications of Progressive Action and Human Fulfillment

Honoring and Critiquing the 50^th Anniversary of Johnson’s Vision

In May 1964, President Lyndon Baines Johnson unveiled his revolutionary plans for the Great Society.  As he explained it, Americans “have the opportunity to move not only toward the rich society and the powerful society, but upward to the Great Society. . . .  The Great Society rests on abundance and liberty for all. It demands an end to poverty and racial injustice.” ( The Impact of the Great Society Upon the Lives of Families and Young Children, ITCA Medicaid Resource and Technical Assistance Paper (Aug. 2005), available at http://www.ideainfanttoddler.org/pdf/AppA.pdf (last visited:  July 28, 2013)).

According to Doris Kearns Goodwin, who wrote Lyndon Johnson and the American Dream, Johnson’s Great Society would be based on “progressive action” and the “possibilities for human fulfillment.”  This action and fulfillment meant that regaining control of our society required us to end policies that threatened and degraded humanity.

Johnson’s Great Society reforms, included the Voting Rights Act of 1965, Medicare, Medicaid, Equal Opportunity Act, Elementary and Secondary Education Act, Social Security expansion, the Earned Income Tax Credit, the Higher Education Act, Head Start, the Civil Rights Act of 1964, the Housing and Urban Development Act of 1965, and the Open Housing Act of 1968.  These laws extended and expanded the Bill of Rights and continued and expanded the programs initiated in Roosevelt’s New Deal of the 1930s and Truman’s Fair Deal in the late 1940s and early 1050s.  As a result of LBJ’s programs, America’s official poverty rate declined throughout the 1960s, reaching a low of 11.2 percent in 1974, down from 19 percent in 1964, and most recently settling at 15.1 percent in 2010.  According to Dylan Matthews, who wrote Poverty in the 50 Years Since ‘The Other America,’ in Five Charts, Johnson’s Great Society programs, which included the War on Poverty, “made a real and lasting difference.”  Moreover, according to Demos, an estimated 40 million Americans avoided official poverty due to such programs as food stamps and Medicaid.

Unfortunately, what is also true is that the Vietnam War, which Johnson escalated and only at the end of his administration moved to end, crippled his domestic economic policies and undermined his goals for true racial equality.   Despite the War on Poverty and dramatic changes in Civil Rights, racially concentrated poverty remains with us.  Since the Johnson years, America has weathered the recessions of the 1980s and early 1990s, the late ‘90s dot com bubble, our current recession, the national security encroachment on civil liberties, the rise and fall of the Occupy Movement, the waning of the Arab Spring, and two middle east wars since 9-11. 

It is clear that Johnson’s Great Society programs have saved millions of Americans from the depth of official poverty.  It also true that Johnson’s vision, to which he was truly committed, staggered and failed when the civil rights movement dovetailed with political marginalization, economic inequality, pervasive racial discrimination, and imperialist policies.  The Moynihan Report, the Watts Riots and urban unrests, and the emotional and financial suck of Vietnam prevented Johnson from deeply redressing America’s lingering poverty.

At MAPOC 2014, we intend to explore the furthest implications of President Johnson’s domestic and foreign policies, especially the impact of these policies on progressive action and human fulfillment, as we collectively explore and analyze the contemporary implications of Johnson’s Great Society.  From these implications, the conference planning committee is seeking papers and panel proposals on the following substantive but not exhaustive subjects:

-- A Hand Up:  The Meaningful Tension Between Formal Equality and Substantive Outcomes under the Civil Rights Act of 1964

-- Beyond Legislative Bogs and Dangerous Political Animals:  President Obama’s Legislative Agenda and the Limits of Second-Term Progressivism

--  Endangered Citizens?: Rights and Remedies after State v. Zimmerman

-- Equality, Choice, and Happiness:  the Rise and Fall of DOMA

-- Guns or Butter:  Social Welfare Programs, Modern Problems of Central Banks, Debt Slavery, and Foreign Policies

-- Medicare, Healthcare, and Welfare:  the Poor, the Elderly, and the Needy

-- Moynihan and the Contemporary (In)Stability of the Black Family

-- Racial (Dis)Harmony Then and Today

-- Voting Rights:  Shelby County v. Holder and the Promise of One Citizen, One Vote

MAPOC 2014 Planning Committee

Reginald Leamon Robinson, Howard University, Chair

Odeana Neal, University of Baltimore, Site Chair

Kristin Johnson, Seton Hall University, WIP Chair

dré pond cummings, Indiana Tech University

Paul Finkelman, Albany Law School

Paper submissions must include a working title, bios, abstract, and contact information.

Panel proposals must also include the foregoing information for each of the panel’s participants, and the organizer’s contact information, all of which must be submitted together only by the organizer.

Submit Papers and Panel Proposals by September 30, 2013 to: Reginald Leamon Robinson, Conference Chair and Founder, MAPOC 2014 at light_warrior@verizon.net.

Walk Like a Man, Talk Like a Man, and Then What?

John M. Kang, St. Thomas University School of Law, has published Does Manly Courage Exist? in volume 13 of the Nevada Law Journal (2013). Here is the abstract. 

If you are a man, you probably have been subjected to it throughout your life, I would imagine. I am referring to the societal summons for you to fulfill the obligations of your gender: “step up like a man,” “act like a man,” and a precursor when you were very young, “big boys don’t cry.” Me, I am especially taken with the injunction these days to “man up.” More economical than its predecessors, the call to “man up” pithily encapsulates the idea of manliness.

For to be a man requires that you do something. Perhaps your dear mother adores you as the apple of her eye, but, trust me, no one else — including (or is it especially?) your wife — takes her cue from Billy Joel’s schmaltzy serenade and loves you just the way you are. (And who are you kidding? Not even your mom really feels that way.)
No. You, my poor bloke, are instead told to comply with the expectations of your community — "man up." What does manning up entail, though? While its meaning, like that of many aphorisms, is imprecise, the injunction to "man up" when distilled to its essence is meant to prompt a man to comport himself with valor.
But what is valor? And, by extension, what is manliness? Prepared for a Nevada Law Journal symposium, this brief essay, in the process of exploring both questions in the domains of law and culture, fails unabashedly to provide tangible answers for either but gleefully unpacks several more. 

Download the article from SSRN at the link. 

A Conference On Reproductive Rights at Boalt Hall

The Center on Reproductive Rights and Justice (Boalt Hall) will sponsor a symposium on October 4, 2013: Speech, Symbols, and Substantial Obstacles: The Doing and "Undue"ing of Abortion Law Since Casey. More here.

Water Law In U.S. History

Michael C. Blumm, Lewis & Clark Law School, has published Anti-Monopoly and the Radical Lockean Origins of Western Water Law. Here is the abstract.

This review of David Schorr's book, The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier, maintains that the book is a therapeutic corrective to the standard history of the origins of western water law as celebration of economic efficiency and wealth maximization. Schorr's account convincingly contends that the roots of prior appropriation water law -- the "Colorado Doctrine" -- lie in distributional justice concerns, not in the supposed efficiency advantages of private property over common property. The goals of the founders of the Colorado doctrine, according to Schorr, were to advance Radical Lockean principles such as widespread distibution of water to current settlers and avoiding monopolization of the resource by large landowners and corporate speculators. The book explains how western water law doctrines like the abolition of riparian rights, beneficial use as the basis and measure of water rights, the sufficiency principle, the no-injury rule limiting the transferability of rights, and public ownership of water all served these Radical Lockean goals. Schorr generally downplays the significance of temporal priority, thought by many to be the hallmark of western water law, and he explains the early Colorado courts surprising and consistent favoring of small-scale farmers over large-scale corporations like ditch companies.

Schorr also attempts to draw lessons from his careful and detailed history of the rise of prior appropriation law for contemporary concerns like allocating the burdens of climate-change pollution control. Although he overlooks a few matters -- like the motive underlying the rejection of riparian rights as an anti-federal government doctrine and the failure of the founders of the Colorado doctrine to grant limited terms instead of perpetual rights in water -- and his assumption that public property will inevitably be distributed to the wealthy and the well-organized might be questioned -- this book is law and history at its finest and should be read by all serious natural resources and property law teachers and scholars. 

Download the paper from SSRN at the link. 

Narrating the Israeli-Palestinian Conflict

Renana Keydar, Stanford University School of Humanities Sciences, has published 'I Was in a War, and in a War Things Like that Happen': On Judgments and Ethical Investigations in Israeli Law and Literature, at 18 Jewish Social Studies: History, Culture Society (n.s.) 212 (2012). Here is the abstract.

Focusing on two key events in the Israeli-Palestinian conflict — the Deir Yassin affair (1948) and the Kefar Kassem massacre (1956) — the article explores how Israeli narratives of different genres engage with conflict-related atrocities. Juxtaposing the literary reimagination of the Deir Yassin affair in Nurith Gertz’s ‘Al da‘at ‘atsmo (Unrepentant, 2008) and the seminal court ruling in the Kefar Kassem massacre trial (1958), this article examines the ethical considerations and effects of the different formal strategies employed in each of the texts. I argue that the encounter with conflict-related atrocities leads to a break in the generic form of both the literary and the legal texts and a resort to extra-generic rhetoric. This formal disruption engages the reader and, possibly, her community in an ethical inquiry that emphasizes the process of investigation rather than final judgments.

Download the article from SSRN at the link. 

A New Work on Law and Semiotics From Springer

Newly published:

Law, Culture, and Visual Studies (Anne Wagner and Richard K. Sherwin, eds.; Springer, 2013). Link here.

This work contains many interesting chapters including those by Peter Goodrich, Devising Law: On the Philosophy of Legal Emblems, Cristina Costantini and Lucia Morra, Representing Sovreignty in Renaissance England: Pictorial Metaphors and the Visibility of Law, Jessica Silbey and Meghan Hayes Slack, The Semiotics of Film in US Supreme Court Cases, Janet Ainsworth, What's Wrong With Pink Pearls and Cornrow Braids? Employee Dress Codes and the Semiotic Performance of Race and Gender in the Workplace, and Ronald R. Butters, Semiotic Interpretation in Trademark Law: The Empirical Study of Commercial Meanings in American English of { ▄▀▄▀▄▀▄▀▄▀▄▀▄▀▄} (Checkered Pattern). All the chapters look fascinating. 

The Importance of William Blackstone's Commentaries

Simon Stern, University of Toronto Faculty of Law, is publishing William Blackstone, Commentaries on the Laws of England, Vol. 4 (1769), in Foundational Texts in Modern Criminal Law (Markus Dubber, ed.; Oxford University Press, forthcoming). Here is the abstract.

This book chapter discusses the fourth volume of Blackstone's Commentaries (1769), asking what contribution this volume makes to English criminal law. Issues addressed include the general structure of Blackstone's discussion, the relation between Blackstone's treatment and those of his precursors (especially Sir Matthew Hale and William Hawkins), the historical and literary range of Blackstone's references, the nature of his legal reform agenda, and his conception of the book's audience.

Download the essay from SSRN at the link. 

The Book As Sign

Paul D. Callister, University of Missouri, Kansas City School of Law, has published The Book as Authoritative Sign in Seventeenth-Century England: A Review Through the Lens of Holistic Media Theory in Law, Culture, and Visual Studies (Anne Wagner & Richard K. Sherwin eds.; Springer, 2014 (forthcoming)). Here is the abstract.

Seventeenth-century England is primarily a textual era for legal authority, but the book also has the capacity to act as sign, and in a few notable instances it does so, providing authority to check both royal prerogative and parliamentary power during the Interregnum. Although its precise meaning is debated, royal prerogative includes the right of the monarch to act as a higher court than common law courts, and may encompass the right to legislate. It was the central issue in the seventeenth-century power struggle between English courts, parliament and the monarchy.
The image of the book has always appeared amongst icons signifying sovereign authority. However, in seventeenth-century England, the printed law book came to represent a check on government power, especially absolute monarchy and royal prerogative over the interpretation and application of law. To be properly studied within semiotics, signs must be understood holistically, using tools from a variety of disciplines. Holistic media theory, when expanded to include the concepts of “cognitive authority” and “connotative meaning,” illuminates the book’s evolving signification and function leading up to and including the seventeenth century.
This chapter first sets forth foundational concepts with an explanation of holistic media theory, cognitive authority, and their connections to legal semiotics. It then contrasts the book with another sign of authority — the royal orb — which signifies dominion and prerogative, and finally illustrates specific instances of the emerging association of books, particularly Lord Coke’s Institutes and Reports, and the King James Bible, with authority and “conscientious objection”.

Download the essay from SSRN at the link. 

If Your Legal System Were a [], What Kind of a [] Would It Be?

While Mark S. Weiner was in Euope last year, he asked a number of legal professionals to compare their legal systems to music, animals, sport. Here's the result. Very interesting....
Is the U.S. legal system a cat? Herding cats is impossible, as we know. You can start out all right, but those cats, they soon get off track (your track, not theirs). So, maybe not a cat. A goldfish in a bowl, swimming around in circles? Maybe not--the legal system does aim for resolutions. A swallow, headed for Capistrano, or a salmon, going upstream? If the U.S. legal system were a sport, would it be baseball, or football? Maybe chess? I like the idea of chess...

Call for Papers: Law and Humanities Institute Conference, Spring 2014

Revealing the Links Between Law and Magic

A Conference Sponsored by the Law and Humanities Law Institute and

Thomas Jefferson School of Law

June 5-6, 2014

Thomas Jefferson School of Law

1155 Island Avenue, San Diego CA 92101

Call For Papers

On June 5 and 6, 2014, the Law and Humanities Institute, New York, New York (USA) and Thomas Jefferson School of Law, San Diego, CA (USA) will sponsor a Conference on Law and Magic.

Law and magic interact in many ways. Not only can the law influence the practice of magic, such as in the areas of freedom of speech and religion and intellectual property; but also magic can influence the law, such as in trial tactics and evidence. In addition, magic illuminates the crossroads of other law and humanities fields, such as the emerging area of law and neuroscience, rhetoric, and law and popular culture. Papers discussing or developing these or any aspect of the relationship between law and magic are welcome, especially those that further an understanding of the theory, underpinnings, and/or philosophy of the field. 

Materials and presentations will be in English. The organizers of the conference are Christine Corcos, Louisiana State University Law Center (christine.corcos@law.lsu.edu) and Julie Cromer Young, Thomas Jefferson School of Law (jcromer@tjsl.edu).

We invite you to submit an abstract of a 20-minute paper that you would like to deliver at the conference. Abstracts should be between 250 and 500 words and sent to Christine Corcos at the email address above accompanied by the author’s brief biographical statement. Please put “Law and Magic Conference June 2014” in the email subject line and submit the abstract and biographical statement no later than November 1, 2013.  We will send notifications regarding acceptance of presentations by February 1, 2014.

If you would like us to consider your paper for publication,  please indicate that in the body of your email.  Conference papers accepted for publication will appear in the Spring 2015 issue of the Thomas Jefferson Law Review.

Please address questions to Christine Corcos at the email address above.

Call For Papers

From Anne Wagner, Editor in Chief, International Journal for the Semiotics of Law:

INVITATION TO SUBMIT INDEPENDENT PAPERS FOR THE INTERNATIONAL JOURNAL FOR THE SEMIOTICS OF LAW
INTERNATIONAL JOURNAL FOR THE SEMIOTICS OF LAW is:
- The interdisciplinary nature of the journal between law and semiotics.
- The ONLY journal in the world which focuses on the discipline of legal semiotics.
- The interdisciplinary nature of the journal between language and law, jurilinguistics.
- The interdisciplinary nature of the journal between Legal Philosophy and Philosophy of Language
- The International Journal for the Semiotics of Law is an independent entity and the leading international journal in legal semiotics The Journal was first published in 1987.
The International Journal for the Semiotics of Law welcomes submissions, in English or in French, which include semiotic analyses of the law.
Submissions to The International Journal for the Semiotics of Law should ideally critique, apply or otherwise engage with semiotics or related theory and models of analyses, or with rhetoric, history of political and legal discourses, philosophy of language, pragmatics, sociolinguistics, deconstruction and all types of semiotics analyses including visual semiotics. Submissions which reflect on legal philosophy or legal theory in general, hermeneutics, the relation between psychoanalysis and language, the relation between law and literature, as well as the relation between law and aesthetics, will also be considered.

[Full Disclosure: Your blog editor is on the Editorial Board of the IJSL]. 

Criminal, Teacher, Businessman

From the July 28th New York Times, A. O. Scott on the true nature  of "Breaking Bad"'s Walter White, and the intersection of his career path with recent events.

And the Winners Are...

The ABA Journal, August issue has the annual pop culture feature: this year is devoted to "the 25 Greatest Law Novels." The panel chose, in order, the following novels as numbers 1 through 25:

Harper Lee, To Kill a Mockingbird
Fyodor Dostoevsky, Crime and Punishment
Charles Dickens, Bleak House
Franz Kafka, The Trial
Victor Hugo, Les Miserables
Herman Melville, Billy Budd
Scott Turow, Presumed Innocent
Nathaniel Hawthorne, The Scarlet Letter
Tom Wolfe, Bonfire of the Vanities
Theodore Dreiser, An American Tragedy
John Jay Osborn, The Paper Chase
Herman Melville, Bartleby, the Scrivener
Richard Wright, Native Son
Albert Camus, The Stranger
Charles Dickens, A Tale of Two Cities
John Grisham, A Time To Kill
Herman Wouk, The Caine Mutiny
Zora Neale Hurston, Their Eyes Were Watching God
Leon Uris, QB VII
John Grisham, The Firm
Alexandre Dumas, The Count of Monte Cristo
Margaret Atwood, The Handmaid's Tale
Robert Traver, Anatomy of a Murder
Ayn Rand, The Fountainhead
Walter Van Tilburg Clark, The Oxbow Incident
Jane Gardam, Old Filth


The August issue isn't available online yet, but should be posted soon here.

This list does seem to be heavily U.S.-centric. Which legal novels would be on your "Best 25" list? Some or all of the above? What novels by non-U.S. authors would you choose?

Update: Check out the list here online.

Separation of Powers in Eastern European Democracies

Cristina E. Parau, University of Oxford, Department of Politics and International Relations, and J. Wittmeier Bains are publishing Constitutional Designs: Lessons We Can Learn from the Early American Republic in the Romanian Journal of Comparative Law. Here is the abstract.

This article addresses the vexed question of who should have the “last word” in saying what a democratic constitution means in controversies between the Judiciary and the other Branches of government. The aim is to contribute to debates in post-Communist Central and Eastern Europe (CEE), which to date have been dominated by the paradigm of a Constitutional Court (CC) with monopoly power to expound the constitution. This institutional configuration sits uneasily with the separation of powers and checks and balances – shibboleths which are nonetheless poorly understood in CEE. It is believed that the American Founders, who invented these practical mechanisms in their modern and now universally accepted forms, may offer particularly fruitful insights which constitutional designers everywhere could learn from.

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

Prisoner Games

F. E. Guerra-Pujol, Barry University School of Law & Pontifical Catholic University of Puerto Rico, has published The Parable of the Prisoners. Here is the abstract.

Of the 78 possible strategic games in two-person game theory, one has acquired the most attention, and the most notoriety, from scholars and laymen alike. The so-called “Prisoner’s Dilemma,” or what we prefer to call the “Parable of the Prisoners,” is not only the most famous formal model of conflict and cooperation in the mathematical theory of games; it has also has generated extensive commentary in a wide variety of social sciences and other fields, including psychology, biology, politics, economics, law, and philosophy. In this paper, we shall revisit the origins of this popular parable and review a small but representative sample of this diverse literature, identifying common themes and ideas. We shall also present an opposing parable to show that the dilemma in the Prisoner’s Dilemma is unavoidable and inescapable in the one-shot version of the game, and we shall explain why this parable is more than just a story; it is an exemplar or mathematical “paradigm.”
In summary, this paper is organized as follows: following this brief introduction, Part 2 reconstructs the origins of the Parable of the Prisoners. Part 3 then reviews various versions of the parable and the uses to which this parable has been put. By way of contrast, Part 4 presents a diametrically different model of behavior — the Altruist’s Dilemma — based on a suggestion by Schelling (1968), and Part 5 explains why the original Prisoner’s Dilemma is not just an instructive parable but also a scientific “paradigm.” Part 6 concludes.

Download the paper from SSRN at the link. 

Moses Medelssohn as Theorist of Contract

Helge Dedek, McGill University Faculty of Law, Institute of Comparative Law, has published Duties of Love and Self-Perfection: Moses Mendelssohn's Theory of Contract at 32 Oxford Journal of Legal Studies 713 (2012). Here is the abstract.

In his Doctrine of Right, Immanuel Kant calls Moses Mendelssohn, the towering figure of the German and the Jewish Enlightenment, a ‘Rechtsforscher’ – a legal scholar. Yet not only Kant, but numerous scholars of natural law in the eighteenth and nineteenth centuries, refer to and reflect on the juridical aspects of Mendelssohn’s work, in particular his thoughts on the law of contract. In this paper, I hope to shed some light on this hitherto rather unexplored facet of Mendelssohn’s oeuvre. Mendelssohn develops his theory of contract from the starting point of the officium amoris: the unenforceable ‘duty of love’ to exercise beneficence. Mendelssohn’s theory knows nothing yet of the modern contrast between altruism, distributive justice, and ‘freedom of contract'. By exploring Mendelssohn’s theory, we will, thus, be able to catch a glimpse of the birth pangs of the modern Western discourse on the ‘freedom of contract', which formed the backdrop, as well as the jumping-off point, of the development of a ‘liberal’ will theory of contract. Since this ‘liberal’ model is still the paradigm of how contract is mostly perceived today, Mendelssohn’s theory also exemplifies the possibility of an alternative to our own conceptualizations of contract that inescapably shape the way we think.

Download the article from SSRN at the link. 

Legal Argumentation

Eveline T. Feteris, University of Amsterdam, and Harm Kloosterhuis, Erasmus School of Law, have published Law and Argumentation Theory: Theoretical Approaches to

Legal Justification. Here is the abstract.

In the past thirty years study law and argumentation has become an important interdisciplinary discipline. It draws its data, assumptions and methods from legal theory, legal philosophy, logic, argumentation theory, rhetoric, linguistics, literary theory, philosophy, sociology, and artificial intelligence. Scholars from various traditions have attempted to explain structural features of legal decision-making and justification from different points of view.

One of the main incentives for the growing interest in legal argumentation has to do with changing views on judicial tasks. In modern legal systems a judge not only applies legal rules but also resolves interpretation problems and justifies his doing so in a reasoned decision. Although it is a part of the Rule of Law that legal decisions must be justified, explicit legal norms for this justification can hardly be found. One of the important problems in the study of legal argumentation is the question which standards of soundness the argumentation should meet. Is it enough that the judge mentions the facts of the case and the legal rules, or does he also have to explain why the legal rules are applicable to the concrete case? How can the interpretation of a legal rule be acceptably justified? What, in the context of legal justification, is the relation between legal rules, legal principles and general moral norms and values?
A second important problem is the question how to reconstruct real life argumentation in legal decisions in order to evaluate the justification. For instance when a judge resolves an interpretation problem in deciding a case, he can choose different types of interpretative arguments to justify his decision. Ideally, these arguments are recognizable in the justification of the legal decision. But in practice these arguments are not always presented explicit, clear and well ordered. The critical reader who wants to evaluate the argumentation must therefore solve a number of reconstruction problems in order to evaluate the argumentation.
Legal argumentation-theory has a descriptive and a normative dimension. It is descriptive in the sense that it gives a reconstruction that starts from arguments expressed in legal discourse and it is normative because the reconstruction is related to a model of acceptable justification. Given these two dimensions, five research components can be distinguished. The philosophical component attends to the normative foundation of a theory of legal argumentation. A central question is which criteria of rationality should be used in evaluating legal argumentation. In the theoretical component, models for legal argumentation are developed, in which the structure of legal argument and norms and rules for argument-acceptability are formulated. The reconstruction component shows how to reconstruct real life argumentation within the framework of a theoretical model. This reconstruction forms a basis for the evaluation of arguments. The empirical component investigates the construction and evaluation of arguments in actual legal practice. It establishes in which respects legal practice fits in or conflicts with theoretical models and examines how possible discrepancies might be explained. Finally the practical component considers how various results forwarded by the philosophical, theoretical, reconstruction, and the empirical components might be used in legal practice. Practical applications are methods for improving skills in analyzing, evaluating and writing legal argumentation.
This chapter describes how researchers deal with these questions depending on their different points of view. Ideas about standards of soundness for legal argumentation and methods for reconstruction, developed by influential authors in the field, will be examined. In the sections 2, 3 and 4 we will discuss the three dominant traditions in legal argumentation-theory: the logical, the rhetorical and the dialogical approach. In section 5 we conclude with some questions for the agenda.

Download the full text of the paper from SSRN at the link. 

History of Some Principles of the German Criminal Law

Markus D. Dubber, University of Toronto, Faculty of Law, has published Ultima Ratio as Caveat Dominus: Legal Principles, Police Maxims, and the Critical Analysis of Law. Here is the abstract.

A comparative and historical analysis of the so-called ultima ratio principle reveals that, despite its Latinate veneer, it is neither ancient nor universal, but a recent addition to the German criminal law canon. Upon further inquiry, ultima ratio also turns out to be ill-defined, undermotivated, and toothless, a fundamental legal principle and distinctive feature of criminal law honored in its ubiquitous breach. In the end, the iron legal principle of ultima ratio may appear more like the flexible police maxim of caveat dominus. Its frequent invocation suggests the need to reconceive legal science as a critical analysis of law in general, and of law's supposed principles in particular. 

Download the full text of the paper from SSRN at the link. 

Regulating Sex Workers In Reconstruction New Orleans

Simon Stern of the University of Toronto notes that Elizabeth Parish Smith has published "In a Bar Room Called the 'Fifteen Amendment'": Reconstruction and the Women of New Orleans's Demimonde," 112 South Atlantic Quarterly 473 (2013). 

Here is the abstract.

This essay examines the experiences of three women—one Creole, one black, one white—in New Orleans’s Reconstruction-era demimonde. Enacted just months after the end of the Civil War and surviving in various forms for fifty-two years, a regulatory system governed the sex trade in this, the largest and most cosmopolitan city of the former Confederacy. Postwar regulation made no racial distinctions among women in the trade, and prostitutes’ lives were thus often remarkably similar. Women worked and resided in the same parts of town, even on the same notorious block; faced similarly explosive, dangerous bursts of violence; and exploited the physical intimacy of their work to steal from clients.

In large measure due to their similar legal treatment under regulation, many prostitutes shared W. E. B. Du Bois’s common “economic condition and destiny” across racial lines. Nevertheless, Du Bois uses prostitution in Black Reconstruction as a rhetorical device representing capitalism’s moral corruption, not as a practice affecting real women’s lives. Reading the experiences of three New Orleans prostitutes against the larger racial and economic politics of the period allows us to see how some of the most radical and far-reaching changes of Reconstruction occurred among women living at the law’s edges.

Life Is Plastic, It's Fantastic

Rebecca Tushnet, Georgetown University Law Center, has published Make Me Walk, Make Me Talk, Do Whatever You Please: Barbie and Exceptions, in Intellectual Property at the Edge (Rochelle Dreyfuss & Jane Ginsburg eds., 2013). Here is the abstract.

Barbie represents an aspiration to an ideal and also a never-ending mutability. Barbie is the perfect woman, and she is also grotesque, plasticized hyperreality, presenting a femininity exaggerated to the point of caricature. Barbie’s marketplace success, combined with (and likely related to) her overlapping and contradictory meanings, also allow her to embody some key exceptions to copyright and trademark law. Though Mattel’s lawsuits were not responsible for the initial recognition of those exceptions, they illuminate key principles and contrasts in American law. Mattel attempted to use both copyright and trademark to control the meaning of Barbie, reflecting a trend towards such overlapping claims. In order to ensure that their combined scope is no greater than the sum of their parts, both trademark and copyright defenses ought to be considered together. The Barbie cases highlight the problem that overlaps between the two regimes can challenge the very idea of IP boundaries, unless robust defenses exist against overclaiming. 

Download the full text of the essay from SSRN at the link. 

Law and Society Association: Early Information About the 2014 Annual Meeting

From the Law and Society Association:

We are excited to announce early information about the Law and Society Association 2014 Annual Meeting in Minneapolis, May 29 – June 1.  We have many changes and new features this year, including:
 ·       Earlier deadlines
·       New submission software
·       New “Salon” sessions
·       New process for Author Meets Reader sessions
·       CRN session protocols
 2014 is also the 50^th Anniversary of the Law and Society Association!  Many special events are planned, and we believe this will be an exceptional conference.
 All current and future information about the Annual Meeting will be located at http://www.lawandsociety.org/minneapolis2014/Minneapolis2014.html, so bookmark and visit often!  We will update the information as it becomes available.
 Now is the time to start thinking about your paper or session submission so you will be ready by the new deadline. Details about all the new features will appear in the Call for Papers in August.