Brexit and Popular Culture

Popular culture references and comparisons are beginning to emerge in the wake of Brexit. Steve Peers @StevePeers invokes a Star Trek: The Original Series reference for a job for Nigel Farage, who has stepped down as the leader of the United Kingdom Independent Party.

Steve Peers ‏@StevePeers  6h6 hours ago

Any of the jobs done by any of those guys in red shirts #suggestajobforFarage

Oh, feel the burn (not Sanders, or Switzerland, which is not a member state of the EU).

David Allen Green @David Allen Green quotes both Arthur Conan Doyle and Samuel Becket in tweets about failure to invoke Article 50 of the TEU.

David Allen Green ‏@DavidAllenGreen [tweeted July 4] “The curious incident of the Article 50 notification.” - There was no notification. “That was the curious incident,” remarked Holmes. The line occurs in the short story, "Silver Blaze." Here's the excerpt.

Gregory: Is there any other point to which you would wish to draw my attention.
Holmes: To the curious incident of the dog in the night-time.
Gregory: The dog did nothing in the night-time.
Holmes: That was the curious incident.

Holmes notes that a watchdog that alerts on the presence of strangers did not do so when someone approached on this occasion. Thus, the dog knew the person who approached it, This observation has now become so obvious a deduction for pop culture detectives on tv and in film whenever a dog is in a scene that if either a professional or amateur sleuth doesn't mention the dog's behavior, viewers automatically know that the detective is an idiot (and that the screenwriter has never read the literature, or seen any mystery or detective movies or tv over the past 50 years). It would be interesting and novel to substitute a cat or a ferret for the dog in some of these scripts. Monkeys and parrots have been done, BTW (Columbo: Death Hits the Jackpot (1991)) and Perry Mason: The Case of the Perjured Parrot (1958)).

The Curious Incident of the Dog in the Night-Time has also become a Tony-winning Broadway Play.

David Allen Green ‏@DavidAllenGreen Jun 25 ESTRAGON: Well, shall we Leave? VLADIMIR: Yes, let's Leave. (They do not send the Article 50 Notification.)

(Parodying Waiting for Godot). Mr. Green has retweeted it numerous times. He is understandably quite fond of it; it's clever, but also, we've been Waiting For Brexit for a month. It's sort of like Waiting To Brexhale.

And this long hommage to Samuel Beckett, from a number of Tweeters:

1. Libby Purves ‏@lib_thinks  Jul 22

   Libby Purves Retweeted Tom Littler

   Love it. Samuel Brexit: Waiting For Article 50. Not Endgame Yet.

   Libby Purves added,

   
   

   Tom Littler @littler_tom
   

   Vladimir: Well? Shall we Brexit? Estragon: Yes, let's Brexit. They do not Brexit. (Or they do. Because we don't know WHAT IT MEANS.)

   7 retweets12 likes

   
   

   
   

   
   
2. Matthew Scott ‏@Barristerblog  Jul 22

   @lib_thinks @littler_tom Good but @DavidAllenGreen's been doing it for months.

   0 retweets3 likes

   
   

   
   

   
   
3. Tom Littler ‏@littler_tom  Jul 22

   @Barristerblog @lib_thinks @DavidAllenGreen Oh God(ot). No idea; apols. The Beckett Estate will shut it all down anyway.

   0 retweets3 likes

   
   

   
   

   
   
4. David Allen Green ‏@DavidAllenGreen  Jul 22

   David Allen Green Retweeted David Allen Green

   @littler_tom @Barristerblog @lib_thinks This was my effort

   David Allen Green added,

   
   

   David Allen Green @DavidAllenGreen
   

   ESTRAGON: Well, shall we Leave? VLADIMIR: Yes, let's Leave. (They do not send the Article 50 Notification.)

   0 retweets5 likes

   
   

   
   

   
   

 

Tom Littler‏@littler_tom

@DavidAllenGreen @Barristerblog @lib_thinks Bravo. The last line of Endgame actually is: 'You ... remain.' (Pause. Remains motionless.)

• RETWEETS6
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5:19 PM - 22 Jul 2016

6 retweets19 likes

Tweet text

Reply to @littler_tom @DavidAllenGreen @Barristerblog @lib_thinks 

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   David Allen Green ‏@DavidAllenGreen  Jul 22
   @littler_tom @Barristerblog @lib_thinks Ha ha, brilliant!
   0 retweets6 likes
   
   
   
   
   
   
   
   
   
   
   
   
   
   Gabriel Rozenberg ‏@rozgab  Jul 22
   @DavidAllenGreen @littler_tom @Barristerblog @lib_thinks & Clov stands, ‘dressed for the road’, to leave his master at last… but never moves
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   Andrew Hartle ‏@startle65  Jul 22
   @littler_tom @DavidAllenGreen @Barristerblog @lib_thinks Barrister humour may yet challenge Military Intelligence for the Oxymoron Cup
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   Jane Furniss ‏@MaryjaneFurniss  Jul 25
   @startle65 @littler_tom @DavidAllenGreen @Barristerblog @lib_thinks criminal justice a good entry, presently for Oxymoron Cup
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   Finally (at least for this post), I found this quotation in Act 1 in Beckett's Waiting for Godot that may be of interest.
   
   
   “Estragon: We've lost our rights?"
   "Vladimir: We got rid of them.”
   Samuel Beckett, Waiting for Godot, Act I.
   We are bound to have a lot more fun with all of this, and I haven't even gotten to all the cats, Brexit, and pop culture refs yet. But let's mind the gap, keep calm and carry on, and channel our inner Brit. There's lots of humo(u)r to be had in punning and in poking fun at the apparent lack of movement in any direction, let alone One Direction. In the refusal of anyone in any official position anywhere at any time in any place to take any responsibility for anything to do with Brexit at all. Because Brexiting up is hard to do.
   
   
   
   
   
   
   
   
   
   
   
   

Backwards and In High Heels

People have been tweeting that "backwards and high heels" line from President Obama's speech about Hillary Clinton last night with tremendous gusto, and no wonder: it's a great line. I've thought so for years. It sends so many signals. It conjures up competence, elegance, confidence, style, accomplishment, delicacy, poise, some understatement (always good--a smart woman never outshines the man what brung her).

Ginger and Fred danced together so well, and when we watch those old films and see them perform we are lost once more in a world in which two people manuever together, each with his or her own set of steps, but meshing them so brilliantly that the result is perfection. Whether the dance is entertainment or political (and in this particular election year I sometimes wonder if there's a difference), the partners engaged in such a perfect performance can be a joy to watch or the solution to a problem. The woman and the man appear to be equals, and in cases like this one, given the difficulty of the task, the woman could argue that she is his superior, given some disadvantages that she has. After all, she has to follow his lead (backwards), even though he does give her some direction, and she must follow his lead gracefully (in heels). He should handle her body skillfully but if he doesn''t, she cannot betray her discomfort.

But would she make such argument? Would it be "worth" her while--think about all the justifications we already hear for the pay gap, which is already difficult to overcome without a lawsuit.  Better perhaps to move into the position of the leader, if that's what it is. Besides, POTUS is one position for which the salary is the same for all incumbents.

The line fit President Obama's message so well; I suspect few people (perhaps none given the commentary I've seen) have wondered where he got it. Well, I believe it actually comes from cartoonist Bob Thaves, who drew the wonderful strip Frank & Ernest, and he wrote the line specifically in 1982 about Fred Astaire, with that comparison to Mr. Astaire's longtime partner Ginger Rogers.  The entire line reads:

Sure he was great, but don't forget Ginger Rogers did everything he did backwards...and in high heels!

Ms. Rogers herself has quoted the line on her website.  The meaning is obvious: Mr. Astaire was a wonderful dancer, but we tend to forget while we watch him that Ms. Rogers matches him step for step, and in that famous sequence in Shall We Dance? skate for skate.  Twirl, leap, chasse, jete, over and around. Backwards and in high heels (or on wheels). Equality on the dance floor. Equality finally, perhaps, in the political arena.

Popular Culture Presidential Candidates: #We're With Them

Yesterday was an historic day for the United States. One of the U.S.'s two major political parties nominated a woman as its Presidential candidate, Hillary Clinton, a former First Lady, U.S. Senator, and Secretary of State. Admittedly, other parties have nominated women as standard-bearers, beginning with the wonderful (and wonderfully scandalous) Victoria Woodhull in 1872 (Equal Rights Party). Her Veep pick was the legendary Frederick Douglass, writer, lecturer, abolitionist, and rights advocate, who brought balance to the ticket.

Belva Ann Lockwood ran on the similarly named National Equal Rights Party (1884); she had a female V.P. pick in Marietta Stow. She also ran in 1888. The comedian Gracie Allen ran on the Surprise Party ticket in 1940. Not a surprise--she wasn't really serious about campaigning and she didn't win. Shades of Pat Paulsen.


Other, more serious nominees on third party tickets have included Mary Kennery on the American Party ticket (1952), Charlene Mitchell on the Communist Party ticket (1968), and Margaret Wright on the People's Party ticket (1976), with the noted physician Benjamin Spock ("keep out of the draft") as her running mate. In 1992 we had a bumper crop: four parties nominated women: Leonora Fulani (New Alliance Party), Helen Halyard (Socialist Equality Party), Isabell Masters (Looking Back Party--my personal favorite for "Best Political Party Name"), and Gloria La Riva (Workers World Party).  Roseanne Barr was the standard bearer of the Peace and Freedom Party in 2012, receiving more than 67,000 votes; Jill Stein ran for the Green Party, as she is doing this year, and Peta Lindsay represented the Party for Socialism and Liberation.

It's true that major U.S. political parties have nominated women for the Vice Presidential slot:  the Dems called on Geraldine Ferraro to join Walter Mondale's Presidential ticket in 1984, and interestingly and perhaps more memorably, the Republicans nominated Sarah Palin as John McCain's running mate in 2008.

Let's turn to pop culture politics, where female politicians, and other non-pols, have actually made their mark in the Oval Office. Here are some of them?

The most recent and obvious Madam President is the main character in CBS' drama Madam Secretary: Elizabeth Faulkner (Tea Leoni), whose career shadows a number of real life female Secretaries of State, including Hillary Clinton's. As Cabinet member #1. the Secretary of State ranks behind the Vice President, Speaker of the House of Representatives, and President pro tem (pro tempore) of the Senate in the order of succession to the Presidency. Of persons in these offices, the voters elect only the Vice President, which is somewhat problematic in terms of democracy. During what began as the second Nixon Administration (1973-1977), we had a situation in which neither the sitting President (Mr. Ford) nor the sitting Vice President (Mr. Rockefeller) were actually elected to those offices. Mr. Ford was elected neither Vice President, nor President. Similarly, in The Show Must Go On, the first episode of the season season of Madam Secretary, Faulkner takes over as acting President after Air Force One's telecommunications go out with the President aboard, the Vice President is abroad and incapacitated with a really bad case of some weird illness, the Speaker (I think it's the Speaker), believes Ronald Reagan is the President (and so demonstrates that he's not compos mentis and the President Pro Tem is not qualified for some other reason. So, Liz, yer up. Faulkner is as intense a President as she was a Secretary of State, even though the show has its moments of levity.  Solving the nation's problems is a woman's business. Madam Secretary is a drama, after all.

Another current female Oval Office denizen is Selina Meyer (HBO's Veep), who started out, sensibly enough from the name of the series, as Vice President and ascended to the office of President at the end of the third season when the incumbent resigned.  As played by Julia Louis-Dreyfus, Meyer is calculating, somewhat mean-spirited, ambitious, and more than a little crazed. She's Frank Underwood without quite so much murderous intent.

Patricia Wettig is President Caroline Reynolds on Prison Break, which ran from 2005 to 2009 on Fox, and gives us an unnerving portrayal of a corrupt female Chief Executive who can run with the guys.

In Commander in Chief (2005-2006), Geena Davis plays Mackenzie Allen, the first woman to become President after the Chief Executive dies in office. Incidentally, Polly Bergen (Kisses for My President--see below) plays Mackenzie's mother. Note the androgynous name given to the Presidential character here.

The late Patty Duke played a female President in the short-lived Hail to the Chief (ABC, 1985); even in the rather progressive 1980s, the show was ahead of its time. Small wonder that Polly Bergen as a female President in Kisses for My President (1964) came off as rather less than fully emancipated against easy going Fred MacMurray as First Dude. MacMurray often played these kinds of roles in the later part of his career (think My Three Sons) but one can imagine a 1960s audience rejecting the notion that even he would accept being a house husband to the Most Powerful Woman in the World. All is eventually right with the world again when Polly regains her senses and her rightful place as the little woman when he does his husbandly duty, she becomes pregnant, and resigns her political office.

In an episode of Inside Amy Schumer, the comedian is elected President (aired May 12, 2016). Note that Ms. Schumer is a cousin of Senator Chuck Schumer (D-NY).


Most recently, the Showtime drama Homeland is casting Elizabeth Marvel as President-elect Elizabeth Keane, this news just in from The Hollywood Reporter. 

For female presidents of other nations, check out

Madame President (2004) (a Canadian becomes president of a foreign country).



Selected bibliography:

A Complete, Kind of Depressing History of Fictional Female Presidents

Serena Elavia, Television Loves Female Presidents, As Long As They're Republican, The Atlantic, March 4, 2015

From Veep to 24: Pop Culture's Female Politicians Ranked

Women and the White House: Gender, Popular Culture, and Presidental Politics (Justin S. Wright and Lily J. Goren, eds.; University Press of Kentucky,  2012).

At some point, I'll write a post about male pop culture Presidential candidates. Stay tuned.

Michaels on Law and Recognition: Toward a Relational Concept of Law

Ralf Michaels, Duke University School of Law, is publishing Law and Recognition — Towards a Relational Concept of Law in Pursuit of Pluralist Jurisprudence (Nicole Roughan and Andrew Halpin eds., Cambridge University Press, forthcoming). Here is the abstract.

Law is plural. In all but the simplest situations multiple laws overlap — national laws, subnational laws, supranational laws, non-national laws. Our jurisprudential accounts of law have mostly not taken this in. When we speak of law, we use the singular. The plurality of laws is, at best an afterthought. This is a mistake. Plurality is built into the very reality of law. This chapter cannot yet provide this concept; it can serve only to develop one element. That element is recognition. Recognition is amply discussed in the context of Hart’s rule of recognition, but this overlooks that recognition matters elsewhere, too. My suggestion is that we should accept not one but two rules of recognition in the concept of law. One, well-known, is the rule of internal recognition as developed by H.L.A. Hart — the idea that a developed legal system requires its recognition as law by its officials. The other, much ignored but equally important, is the rule of external recognition — the idea that law is law insofar as it is recognized externally by other legal systems. The rule of internal recognition is an example of a secondary rule. The rule of external recognition is of a different type. It is a tertiary rule. Hart suggested that a legal system is not complete unless it has, in addition to primary, also secondary rules. My suggestion is that, under conditions of legal pluralism, a legal system is not complete without such tertiary rules.

Download the essay from SSRN at the link.

Babie on Australian Religious, Legislative, and Judicial Protections for Religious Freedoms

Paul T. Babie, University of Adelaide, School of Law, is publishing Australia in the Encyclopedia of Law and Religion (2016). Here is the abstract.

This chapter, part of the Brill Encyclopedia of Law and Religion, outlines the principle [sic] features of the constitutional, legislative and judicial protection of religious freedom in Australia.

Download the essay from SSRN at the link.

Banović on Identity Politics and Legal Recognition

Damir Banović, University of Sarajevo, has published Identity Politics and Legal Recognition. Here is the abstract.

The article gives an overview of the different definitions of identity, sources of identification and approaches to the issue of identity, with a special focus on culture as a source of identification. The article also presents the issue of identity as it appears in essentialist, constructivist and dialogical theories. Using the concept of identity politics and various political, legal and philosophical approaches, the article gives an array of possible ways to treat the need for social and legal recognition of different identities, as well as ways in which law recognises individual and collective identities within a heterogeneous social community.

Download the article from SSRN at the link.

The Association for the Study of Law, Culture, and the Humanities Annual Conference Website Is Now Available

The new website for the Association of Law, Culture, and the Humanities is up. Visit it here.

The 2017 meeting will be held at Stanford School of Law, March 31-April 1, 2017.

Burazin on Legal Systems as Artifacts

Luka Burazin, University of Zagreb, Faculty of Law, has published Practical Concepts of Law as Artifact Kind in volume 3/4 of Pravni vjesnik (2015). Here is the abstract.

It is often said that, in contrast to natural kinds, artifacts are mind-dependent, meaning that they somehow depend on either human beliefs or activities. In addition, some specifically claim that this mind-dependency of artifacts means that they are concept-dependent, i.e., that they are constituted by the concepts and intentions of humans (artifact authors or creators) and that the latter, in turn, determine what features are relevant for an artifact to be a member of a certain artifact kind. #e paper therefore inquires into what these constitutive concepts are and what role they play. It also tries to explain the relationship between these concepts and the ‘theoretical’ ones. Since the paper’s main thesis is that law as such is an artifact or, more precisely, that legal systems are artifacts, it considers the said issue specifically in relation to the jurisprudential views on the ontological character of law.

Download the article from SSRN at the link.

Hatzis on the Illiberal Democracy of Ancient Athens

Aristides N. Hatzis, University of Athens, Department of Philosophy & History of Science; Faculty of Law; Athens University of Economics and Business, Department of Economics, is publishing The Illiberal Democracy of Ancient Athens. Here is the abstract.

Ancient Athenians introduced democracy, majoritarianism and popular sovereignty. They also introduced populism and rent-seeking. Moreover, Athenians didn’t invent the rule of law. The power of demos was almost unlimited, there were no constitutional guarantees, checks and balances. The laws were subjected to the whims of the majority of citizens or judges. Most importantly, individual rights were not recognized in Athens. The concept of liberty in Ancient Athens was very different from the concept of liberty that prevailed after the Great Revolutions of the late 18th and the early 19th century which led to the contemporary liberal democracies. We will discuss these issues with reference to famous historical episodes and trials. However, we will also see that the liberal ideas of individuality, toleration and the rule of law, appeared in a not-so-embryonic way, in three important works of the period (a tragedy, a comedy and a history book). These ideas were remarkably original but at the same time marginal. They didn’t exert any significant influence on the Athenian democratic institutions. This is the text of a Keynote Lecture at the international conference: “Ancient Greece and the Modern World: The Influence of Greek Thought on Philosophy, Science and Technology” (Ancient Olympia, August 2016).

Download the Lecture from SSRN at the link.

Crouch on Promiscuity, Polygyny, and the Power of Revenge: The Past and Future of Burmese Buddhist Law in Myanmar

Melissa Crouch, University of New South Wales, Faculty of Law, is publishing Promiscuity, Polygyny and the Power of Revenge: The Past and Future of Burmese Buddhist Law in Myanmar, in volume 3 of the Asian Journal of Law and Society (2016). Here is the abstract.

Myanmar is the only Buddhism-majority country in the world that has developed and maintained a system of family law for Buddhists enforced by the courts. This article considers the construction of Burmese Buddhist law by lawyers, judges and legislators, and the changes made through legislative intervention in 2015. It begins by addressing the creation and contestation of Burmese Buddhist law to demonstrate that it has largely been defined by men and by its perceived opposites, Hinduism and Islam. Three aspects of Burmese Buddhist Law that affect women are then examined more closely. First, Burmese Buddhist law carries no penalties for men who commit adultery, although women may risk divorce and the loss of her property. Second, a man can take more than one wife under Burmese Buddhist Law, a woman cannot. Third, restrictions on Buddhist women who marry non-Buddhist men operate to ensure the primacy of Burmese Buddhist Law over the potential application of Islamic law. This article deconstructs the popular claim that women are better off under Burmese Buddhist law than under Hindu law or Islamic law by showing how Burmese Buddhist law has been preoccupied with regulating the position of women. The 2015 laws build on this history of Burmese Buddhist law, creating new problems but also potentially acting as a new source of revenge.

Download the article from SSRN at the link.

Savannah Law School: @SavannahLawSch CFP for a Colloquium on American Legal Fictions

I am plagiarizing heavily from the Savannah Law Review's announcement of its September 2016 colloquium examining the influence of fictions on the law (because it's a PDF and I hate converting PDFs into Word for use on this blog).

Here's the skinny. Professor Garrett Epps (University of Baltimore School of Law) will present the keynote. The Law Review is accepting abstract (no more than 500 words) until August 22, 2016. Interdisciplinary submissions are apparently encouraged. I'm tempted to send in something, because I actually published a piece called Legal Fictions some years ago.

Here's more on the colloquium.

Ricca on the Intercultural Use of Human Rights and Legal Chorology

Mario Ricca, University of Parma, has published The Intercultural Use of Human Rights and Legal Chorology. Here is the abstract.

The essay deals with the contested universality of human rights from an intercultural point of view. Such a perspective conflates with the possible use of human rights discourse as a (horizontal) interface to translate different cultural subjectivities. Using this hermeneutical approach, spatial and semiotic proximities inherent to “multiculturality” are capable of showing and triggering renewed geographical and semiotic configurations. “Legal chorology” is the theoretical toolkit proposed here as a means of analyzing the emersion of new categorical and practical spaces of subjectivity.

Download the essay from SSRN at the link.

Morss on Gender and Culture in International Legal Theory.

John R. Morss, Deakin University Law School, has published ‘Call Me Ahab’: On Gender and Culture in International Legal Theory. Here is the abstract.

This paper investigates the project of public international law from two directions. First from the direction of the gendered character of international law; second from the direction of international law as cultural analysis. If gendered discourse plays a role within international law it is likely to operate in a ubiquitous and a structural manner, not in ways that are entirely captured by considerations of equity and representation. The search for national identities or personalities is a quest as perverse as that of Ahab. Whether from the ’inside’ – the identity politics of the nationalist – or from the ‘outside’ – the armchair analyses of the scholar of history, of culture, or of international law – this search is in some way not yet articulated, the opposite of what we should be doing.

The full text is not available from SSRN.

Norris on Constitutional Economics: Lochner, Labor, and the Battle for Liberty

Luke Norris, Columbia University Law School, is publishing Constitutional Economics: Lochner, Labor, and the Battle for Liberty in the Yale Journal of Law & the Humanities. Here is the abstract.

This Article argues that the conventional narrative about the decline of Lochnerism and the rise of mid-century substantive due process jurisprudence is incomplete. That narrative focuses initially on how the premises underlying Lochner’s conception of economic freedom were rejected. The Article instead focuses on how the labor movement articulated an alternative conception of freedom that was adopted by Congress, the Executive, and the Supreme Court. While Lochnerism was premised on a negative view of freedom, the labor movement articulated a positive view of freedom and analogized it to republican freedom of association in the political sphere. By reframing the terms of the Lochner-labor debate, the Article shows how strands of labor’s conception of associational freedom in one nominally private sphere — the workplace — are transported into modern substantive due process jurisprudence in the post-Griswold era as the doctrine protects association in another — the intimate sphere. The Article traces similarities between the rise of labor’s freedom and the rise of sexual and intimate freedoms and explores the ways in which they have transformed American constitutional law.

Download the article from SSRN at the link.

Meyer @pmeyer6104 on "Hamilton" and Legal Narrative

Philip Meyer on "Hamilton" and the power of narrative, here, for the ABA Journal.

Dougherty on the Misapplication of "Mastermind": A Mutant Species of Work for Hire and the Mystery of Disappearing Copyrights

F. Jay Dougherty, Loyola Law School (Los Angeles), is publishing The Misapplication of 'Mastermind': A Mutant Species of Work for Hire and the Mystery of Disappearing Copyrights in volume 39 of the Columbia Journal of Law & the Arts (2016). Here is the abstract.

Recent decisions in both the Ninth (Garcia v. Google) and Second (Casa Duse 16) Circuit have applied concepts of "mastermind" authorship or "dominant author" to claims of copyright in individual contributions of actors and directors to a motion picture. This article, which is a transcript of a presentation at Columbia Law School, describes the roots of the "mastermind" concept in copyright and argues for its mis-application in this context.

The full text of the article is not available from SSRN.

Cross-posted to the Media Law Prof Blog.

Branco on Courthouses as Spaces of Recognition, Functionality, and Access to Law and Justice: A Portuguese Reflection

Patricia Branco, Universidade de Coimbra, Centre for Social Studies (CES), is publishing Courthouses as Spaces of Recognition, Functionality and Access to Law and Justice: A Portuguese Reflection in volume 6 of Oñati Socio-Legal Series (2016). Here is the abstract.

One of the most overlooked topics at the level of reflection regarding law and the legal system, has been the courthouse architecture. Architecture organizes and structures space, making it intelligible, understandable, and capable of being interpreted as possible, being that the exterior and interior, as well as materials and objects present therein can facilitate or inhibit our activities through how they mean and represent certain messages. Hence it becomes necessary to make an analysis of the spaces of justice - and here I have in mind the Courthouse as a privileged public space of justice – taking into consideration the circumstances of time, place of jurisdiction, the historical, political, regulatory, and socio-cultural contexts, as well as legal tradition. Thus, and by analyzing the trends (international and national) of development of construction and / or adaptation (types of buildings and internal organization, focusing on different infrastructures and accessibility) and respective use, including, here, the representations and spatial practices of the real actors (professionals and users), I propose to consider the importance of regarding courthouses as spaces of justice, through the lenses given by the functions of recognition, functionality and access to law and justice.

Download the article from SSRN at the link.

Kang on Oliver Wendell Holmes and the Obsessions of Manliness

John M. Kang, St. Thomas University School of Law, is publishing Prove Yourselves: Oliver Wendell Holmes and the Obsessions of Manliness in volume 118 of the West Virginia Law Review (2016). Here is the abstract.

In order for constitutional democracy to endure, Americans must be tough, must be manly — and indeed heroic; or so Oliver Wendell Holmes argued, the famous justice who, in his mid-twenties, was also a thrice wounded veteran of the Civil War. Holmes is often wrongly portrayed as a social Darwinist or as a political progressive sympathetic to workers or even as a prototypical liberal softy of sorts. Notwithstanding his own words, there were few bases for these accounts. Holmes’s most important opinions dealing with First Amendment were impelled by an idiosyncratic idea of manliness, and in particular, a view of manliness that was derived from his account of martial heroism. He argued that only a manly people who embraced his own brand of heroism could endure the frightening consequences that would be ushered by the political freedom protected by the First Amendment. Only such a heroic people, that is, could tolerate conditions where communists, anarchists, and other subversives threatened to destroy the United States.

Download the article from SSRN at the link.

Bakht and Collins on Freedom of Religion and the Preservation of Aboriginal Sacred Sites in Canada

Natasha Bakht and Lynda Margaret Collins, both of the University of Ottawa, Common Law Section, have published The Earth is Our Mother: Freedom of Religion and the Preservation of Aboriginal Sacred Sites in Canada as Ottawa Faculty of Law Working Paper No. 2016-24. Here is the abstract.

For centuries, the Canadian state engaged in systematic religious persecution of Aboriginal peoples through legal prohibitions, coercive residential schooling and the dispossession and destruction of sacred sites. Though the Canadian government has abandoned the criminalization of Aboriginal religious practices, and is beginning to come to grips with the devastating legacy of residential schools, it continues to permit the destruction and desecration of Aboriginal sacred sites. Sacred sites play a crucial role in most Aboriginal cosmologies and communities; they are as necessary to Aboriginal religions as human-made places of worship are to other religious traditions. The ongoing case of Ktunaxa Nation v BC represents the first opportunity for the Supreme Court of Canada to consider whether the destruction of an Aboriginal sacred site constitutes a violation of freedom of religion under section 2(a) of the Charter. Building on the ground-breaking work of John Borrows and others, we will argue that Aboriginal spiritual traditions have a home in this provision and merit a level of protection equal to that enjoyed by other faith groups in Canada. In general, section 2(a) will be infringed by non-trivial state (or state-sponsored) interference with an Aboriginal sacred site. Moreover, the approval of commercial or industrial development on an Aboriginal sacred site without consent and compensation will generally be unjustifiable under section 1.

Download the article from SSRN at the link.

Daniel Solove @DanielSolove As a Character In a Play About Privacy

Is this a first? A real life law prof is a character in a theatrical production. We've had Supreme Court Justices in opera (Ruth Bader Ginsburg and Antonin Scalia in Derrick Wang's Scalia/Ginsburg). And we've see real law profs depicted in films and tv movies: Alan Dershowitz in Reversal of Fortune and various OJ docudramas (and Gerald Uelman of Santa Clara School of Law as well).

But now George Washington Law Faculty member Daniel Solove is a character in Privacy, curently in a run at the Public Theater through August 14th. The work, written by James Graham, and starring Daniel Radcliffe, is an update of Mr. Graham's 2014 play and featuring topical references, focusing on the issues of privacy in a world increasingly concerned about the line between public and personal personas. Other real life characters in the play include Sherry Turkle, well known social science and media tech prof at MIT.  The reviewer makes comparisons with the world of magic performance, which is interesting as well. He notes that a desire to honor the star's request for secrecy about the play's twists and turns keeps him from revealing much about its specifics, although let's face it: there's a difference between secrecy and privacy. But let's go with the desire to limit exposure, if only to keep the fun going. Shades of Agatha Christie's Witness for the Prosecution and The Mousetrap.

More here from the GW Law website,  here from the New York Times.

Leitzel on the Parthenon (Elgin) Marbles

James A. Leitzel, University of Chicago, has published The Parthenon Marbles in the British Museum. Here is the abstract.

In the early part of the 19th century sculptures from the Parthenon in Athens were removed from the Acropolis under the direction of the Earl of Elgin, then the British ambassador to the Ottoman Empire, which at the time included Greece. The sculptures were brought to Britain, finding their way to the British Museum in London in 1816, where they are viewed by millions of museum visitors annually. A debate long has simmered as to whether these Parthenon Marbles, which date from the 5th century BCE, should be returned to Athens or remain in the United Kingdom. Elements of the debate include questions about: the legitimacy of the initial relocation of the statuary; the quasi-legal impact of more than 200 years of British stewardship; the risk-mitigating role for dispersal of art; and, the influence on other art and museums of any precedent that might be established by return of the Parthenon Marbles. This paper surveys the arguments on both sides of the debate. A Law-and-Economics lens is employed to examine the “property dispute” surrounding the Marbles. Coase-like reasoning is applied to the question of the “highest-valued” location of the Marbles, supplemented with behavioral economics concepts involving cultural identity and endowment effects. The paper concludes by offering some contours for a potentially Pareto-improving agreement that would result in the reunification of the Parthenon Marbles in Greece.

Download the article from SSRN at the link.