April 17, 2017

Sempill on the Ruler's Sword and the Citizen's Shield: The Rule of Law and the Constitution of Power @MelbLawSchool

Julian A. Sempill, Melbourne Law School, has published Ruler's Sword, Citizen's Shield: The Rule of Law & the Constitution of Power at 31 Journal of Law & Politics 333 (2016). Here is the abstract.
Having provided in Article XXX for the separation of legislative, executive, and judicial powers, the Massachusetts Constitution of 1780 adds that the measure was chosen “to the end it may be a government of laws and not of men.” In choosing that formulation, the Constitution’s authors were announcing that their community’s separation of powers was an attempt to effect a relationship between law and state power that would make powerful institutions safer than they would otherwise be. The powers to make, execute, and interpret law were to be separated not merely in order to make of law an efficient instrument of behavior guidance. However, according to the “formal” or “thin” vision, efficient behavior guidance is the basic idea underpinning the Rule of Law. Insofar as the formal vision promises to sharpen the knife of state power, but says nothing about a countervailing shield, it offers no reassurance to citizens who are called upon to give up their own powers to those who would wield the knife. Yet, today, formal accounts of the Rule of Law enjoy widespread support, particularly among legal scholars. In this article, I take sides in the long-running contest between the formal vision of the Rule of Law and its limited government rival, whose leading exponents include James Harrington, John Locke, Algernon Sidney, and the Founding Fathers. However, although I seek to join the conflict, I have sympathy for the view that it has reached an impasse or at least has begun to offer diminishing returns. I hope to point both sides in the direction of a possible way forward. It seems to me that the most promising route is via a better understanding of the nature of the major Rule of Law visions, as well as of the rivalry between them. My chief aim, then, is to propose a method of inquiry which allows us to gain helpful insights into the historical, moral, and political significance of: (i) the limited government tradition’s Rule of Law project; (ii) the formal vision of the Rule of Law; and (iii) the contest between the traditional and formal visions. The method, and the insights it yields, should serve to re-orientate and re-energize our inquiries and debates concerning the Rule of Law. The Rule of Law rivalry is best understood as a clash of visions regarding the proper relationship between law, state power, and interests, expectations, and rights. In order to know where we should stand on the battlefield, we must understand what each side truly represents and what is fundamentally at stake in the conflict.
Download the article from SSRN at the link.

April 16, 2017

Brockman-Hawe on Bismarck's Proposal for an International Criminal Court to Assign Responsibility for the Franco-Prussian War

Ben Brockman-Hawe is publishing Punishing Warmongers for Their 'Mad and Criminal Projects' - Bismarck's Proposal for an International Criminal Court to Assign Responsibility for the Franco-Prussian War in volume 52 of the Tulsa Law Review (2016). Here is the abstract.
The idea of punishing aggressive war is routinely presented as having been first conceived of in the wake of the First World War. This conventional narrative is incorrect; the intellectual seed for the project had begun to take root long before, in the reactions to the interstate conflicts of the nineteenth century. This article explores one of the most significant moments from aggression’s unappreciated ‘pre-history’; Chancellor Bismarck’s pursuit of a trial before an international criminal court of the Franco-Prussian War’s (1870-1) French ‘intellectual originators and instigators.’ Although the proposal ultimately failed to attract the political and public support necessary for its implementation, it prompted in its own time an unprecedented discussion on the viability of international criminal responsibility for aggression and international criminal courts. The proposal later took on new life as both a precedent and an anti-precedent as these ideas resurfaced periodically after 1870. The goal of this paper is to restore Bismarck’s proposal to its rightful place in the story of the crime’s development. At stake is more than historic fidelity; contemporary expectations of what international criminal law can accomplish, what circumstances should or could accompany international criminal law’s invocation, and what the parameters of the crime of aggression should be are shaped by such histories. As the 2010 Kampala Amendments to the Rome Statute are now a single accession away from accumulating the requisite number of ratifications to come into effect, raising the prospect that the International Criminal Court will imminently be tasked with adjudicating the first aggression case in over seventy years, the need for reflection on these issues has taken on unusual salience.
Download the article from SSRN at the link.

Leiter on Justifying Academic Freedom : Revisiting Mill and Marcuse @BrianLeiter

Brian Leiter, University of Chicago Law School, has published Justifying Academic Freedom: Mill and Marcuse Revisited. Here is the abstract.
I argue that the core of genuinely academic freedom ought to be freedom in research and teaching, subject to disciplinary standards of expertise. I discuss the law in the United States, Germany, and England, and express doubts about the American view that distinctively academic freedom ought to encompass "extramural" speech on matters of public importance (speakers should be protected from employment repercussions for such speech, but not because of their freedom qua academics). I treat freedom of academic expression as a subset of general freedom of expression, focusing on the Millian argument that freedom of expression maximizes discovery of the truth, one regularly invoked by defenders of academic freedom. Marcuse argued against Mill (in 1965) that "indiscriminate" toleration of expression would not maximize discovery of the truth. I show that Marcuse agreed with Mill that free expression is only truth- and utility-maximizing if certain background conditions obtain: thus Mill argues that the British colony in India would be better off with "benevolent despotism" than Millian liberty of expression, given that its inhabitants purportedly lacked the maturity and education requisite for expression to be utility-maximizing. Marcuse agrees with Mill that the background conditions are essential, but has an empirical disagreement with him about what those are and when they obtain: Mill finds them wanting in colonial India, Marcuse finds them wanting in capitalist America. Perhaps surprisingly, Marcuse believes that "indiscriminate" toleration of expression should be the norm governing academic discussions, despite his doubts about the utility-maximizing value of free expression in capitalist America. Why think that? Here is a reason: where disciplinary standards of expertise govern debate, the discovery of truth really is more likely, but only under conditions of "indiscriminate" freedom of argument, i.e., academic freedom. This freedom is not truly "indiscriminate": its boundaries are set by disciplinary competence, which raises an additional question I try to address. In sum, the libertarians (Mill and Popper) and the Marxists (Marcuse) can agree that academic freedom is justified, at least when universities are genuine sites of scientific expertise and open debate.
Download the article from SSRN at the link.

April 11, 2017

VanderVelde on Henry Wilson, Cobbler of the Frayed Constitution, Strategist of the Thirteenth Amendment @IowaLawSchool

Lea S. VanderVelde, University of Iowa College of Law, has published Henry Wilson: Cobbler of the Frayed Constitution, Strategist of the Thirteenth Amendment at 15 Georgetown Journal of Law & Public Policy 173 (2017). Here is the abstract.
This article explores the extraordinary but rarely recognized contribution of Senator Henry Wilson in accomplishing the passage of the Thirteenth Amendment, motivated as he was by free labor ideology. Wilson played a key role in directing the strategic moves made by Congress to prepare the ground for passage of the Thirteenth Amendment and for its implementation. Born into poverty, Wilson worked his way up as a cobbler, developing along the way a strong commitment to the work ethic and the Republican ‘free labor’ ideology. Free labor ideology informed his opposition to slavery and advocacy on behalf of oppressed workers. Understanding Wilson’s free labor ideology has important implications for understanding the Thirteenth Amendment as a broader and more profound enactment designed to eliminate caste, class, and racial distinctions beyond simply banning chattel slavery. A deeper understanding of Wilson’s thoughts and deeds is valuable to our contemporary debates regarding the amendment and its continuing role in our republic.
Download the article from SSRN at the link.

Call For Panels: Comparative Law, Faith, and Religion: The Role of Faith in Law, October 26-28, 2017, Annual Meeting of the American Society of Comparative Law

From the mailbox:



Announcement and Call for Panels

Annual Meeting of the American Society of Comparative Law
Comparative Law, Faith and Religion:
The Role of Faith in Law

October 26-28, 2017
American University Washington College of Law
Washington D.C.

The American Society of Comparative Law and American University College of Law invite all interested scholars to consider submitting a panel proposal for the upcoming Annual Meeting of the American Society of Comparative Law that will be held between Thursday, October 26, and Saturday, October 28, 2017, at American University Washington College of Law, Washington D.C.  entitled Comparative law, Faith and Religion:  The Role of Faith in Law.

This conference was in large part inspired by the work of the late Patrick Glenn on legal traditions.  Professor Glenn bravely undertook to “compare the world” with his emphasis on legal “traditions” and by extending the scope of comparative law beyond what most comparative scholars are comfortable with.  Glenn looked beyond the civil and common law legal traditions to the Chthonic, the near eastern Jewish and Islamic legal traditions, and to the Confucian and Hindu traditions that challenge our basic assumptions about the rule of law.

The conference organizers have distinguished between faith and religion. The term “faith” is defined as having “complete trust and confidence”, while the term religion is traditionally used to include the doctrine and institutions.  Of course, it is possible to have faith in God or a religion but it is also possible to have faith in a secular text such as the U.S. Constitution or a civil code, and this faith may be of such fervor that it could be called a secular religion.

Examples of diverse topics that such a conference could address are:  (1) historical or modern day attitudes that result in having faith in a legal tradition or developing religious attitudes towards secular texts such as the U.S. constitution; (2) a comparison of secular faith with religious faith in a legal system, perhaps looking at the history and development of western democracies; (3) the role of Christianity in development of common and/or civil law traditions; (4) comparative approaches to legal ethics and the influence of religion on development and implementation of ethical rules for lawyers and judges; (5) Islamic visions of dispute settlement and the role of Islamic law in modern day commercial arbitration; (6) the role of Catholicism in development of family law in Latin America; (7) Laws of the nation’s secular authority as faithless law;  (8) the continuing influence of Hindu “law”; (9) whether there is such a thing as Buddhist law?; (10) the influence of the Talmud on modern western legal systems or (11) the challenge of teaching about religion in a law school setting; etc.  Interdisciplinary work is encouraged.

The Annual Meeting of the ASCL will have two time slots for concurrent panels on Friday, October 27, 2017. One of these time slots will include panels organized around a common theme, while the other time slot will include panels arranged by region that may include more than one theme on comparative law, faith, and religion. We will consider all panel proposals but for the regional panels we especially encourage submissions focused on Africa, Asia, the Caribbean, Latin America, the Middle East, and any other region or subregion that includes developing countries.

The Annual Meeting Committee of the American Society of Comparative Law will select the panels that will be held at the meeting in consultation with American University Washington College of Law. Panel proposals should include up to four speakers, a panel title, and a one-to-two-paragraph description of the ideas that the panel will explore. Panel proposals should be submitted via e-mail to Tra Pham at tpham@wcl.american.edu of American University Washington College of Law no later than June 1, 2017, and copied to Máximo Langer from the American Society of Comparative law at langer@law.ucla.edu.

Any questions about the panel proposals should be addressed to Máximo Langer and copied to Fernanda Nicola (fnicola@wcl.american.edu) and Padideh Alai (palai@wcl.american.edu)



April 10, 2017

Conference on Lalangue and the Intersections of Politics, Law, and Desire: Birkbeck, University of London, April 25-26, 2017



From the mailbox:


Registration is currently open for:

'Lalangue and the Intersections of Politics, Law and Desire' - [Birkbeck, University of London, 25th-26th April 2017].

Our first keynote speaker is the linguist, philosopher and essayist Jean-Claude Milner (Professor Emeritus of Linguistics at the Université de Paris-VII). Milner is a former president of the Collège International de Philosophie [1998-2001], a specialist in the fields of linguistics, psychoanalysis, European culture & the Jewish question. A former student of Althusser, Lacan and Roland Barthes, Milner will speak on Psychoanalysis and his new book 'Relire la Révolution.' 

Our second is the philosopher Guillaume Sibertin-Blanc (University of Toulouse II - le Mirail). His research interests include contemporary French philosophy, critical anthropology, Marxist and post-Marxist philosophy, psychopathology and psychoanalysis. He will be speaking on the mot d'ordre through Fanon, Lenin and Benveniste and will discuss his latest book 'State & Politics: Deleuze and Guattari on Marx.'


Register here:



April 7, 2017

Tiago Ferreira on Modern Day Slavery: A Reading of Orwell's Animal Farm

Pedro Tiago Ferreira, University of Lisbon, Faculty of Arts and School of Law, is publishing Modern Day Slavery: A Reading of Orwell's Animal Farm in series Iii, No. 11, of the Revista Anglo Saxonia (2016). Here is the abstract.
This article intends to call attention to the fact that slavery is not solely a legal institution. The rules that make up the institution of slavery are also social, moral and religious. This means that the revocation of the legal rules which are a component of the institution of slavery is not enough to abolish the institution as a whole. In order to understand the weight that the non-legal rules have on modern slavery—i.e. slavery which is not condoned by the law—George Orwell’s Animal Farm is discussed, as this tale of apparent liberation turns out to be one of de facto, or modern day, slavery. Before turning to Animal Farm, I discuss slavery as an institution, and whether or not it still remains a legal possibility in the United States.
Download the article from SSRN at the link.

Woodring on Liberty To Misread: Sanctuary and Possibility in The Comedy of Errors

Benjamin Woodring, Ph.D. Harvard, J.D. Yale, has published Liberty to Misread: Sanctuary and Possibility in The Comedy of Errors at 28 Yale Journal of Law & the Humanities 319 (2016). Here is the abstract.
Today’s hotly contested debates about “sanctuary cities” would feel very familiar to someone living in Shakespeare’s London. In this piece, which is part of a larger forthcoming book project titled Shakespeare’s Sanctuary Cities, I argue that Shakespeare is fascinated by the dramatic possibilities inherent in an asylum space situated on the fault line of a jurisdictional battle. A refuge site sits between life and death. At the same time, Elizabethan sanctuary was a contradictory swirl of concepts: something both holy and debauched, something at the same time archaic and unpredictably present. Shakespeare’s use of a sanctuary in The Comedy of Errors is not a simple endorsement of Christian mercy. It is rather a deeper reflection on genre and possibility: comedy is predicated on some escape valve from accumulating conflicts and obligations, while tragedy is ultimately insulated from such releases. Shakespeare creates an asylum episode in this play different from anything in Plautus or Gower, his main sources. The abbey, which jealously defends its sanctuary rights, is a space allowing for recognition and reintegration after long sequences of confusion and chaos. But it is also, I argue, a site for further potential misreadings. The sanctuary in Shakespeare’s play does not provide perfect resolutions. The sanctuary’s Abbess arguably bungles the play’s moral. But in the end, this imperfection is not only vastly preferable to tragedy’s irreversible misunderstandings, it is also a sign of Shakespeare’s nuanced unpacking of a generative social and spatial concept.
Download the article from SSRN at the link.

Davies on The Fan-Judges: Clues To a Jurisculture of Sherlockian Fandom @georgemasonlaw

Ross E. Davies, George Mason School of Law, is publishing The Fan-Judges: Clues to a Jurisculture of Sherlockian Fandom in volume 23 of Transformative Works and Cultures (2017). Here is the abstract.
American judges sometimes encourage other participants in the legal system to behave like Sherlock Holmes. They are relying on a shared culture that both appreciates a literary figure and recognizes a human capacity to emulate an imaginary creature (here, Sherlock) outside the context in which it was created. Consciously or not, the judges are tapping into classic fandom, but do they think of it that way, and should they?
Download the article from SSRN at the link.

Pop Culture, Academia, and Tenure Track Free-For-Alls

In a recent article, Slate's Rebecca Schuman suggests that "all of Hollywood's depictions" of college tenure processes are incorrect.  While all of the depictions might not be wrong, Ms. Schuman does point to some egregious examples, and one is one of my favorites, an off-the-rails episode of CBS's The Big Bang Theory (TBBT). In it, Sheldon, Raj, and Leonard all compete for a tenure track position at Cal Tech after a member of the tenured faculty suddenly passes away. The implication is that tenure at U.S. educational institutions is a gladitatorial free-for-all in which smoozing and sex appeal (represented by the guys' significant others) have as much to do with ultimate success on the intellectual battlefield as degrees and other academicc criteria. Other weirdness that comes out in the episode: the H.R. head, Janine, is on the committee that makes the decision.

No. Just no. Watch my lips (figuratively speaking). No.

The episode might be funny (although I didn't laugh much, and I actually like this show for several reasons), but as Ms. Schuman points out, it misleads viewers about how tenure actually works and how academic institutions actually seek out candidates for tenure track positions.

It also reinforces the notions that people with no experience or exposure to educational institutions have about how universities work, which is not a Good Thing At All. Too many taxpayers already think that public universities "waste" money on professor salaries, for example. One of my students said in class the other day that universities spend too money on frivolous things like dorm luxuries. In the next breath he also talked about students as consumers. I pointed out that colleges now have to compete in these areas to attract students like him. Students don't consider quality of faculty or libraries. They look for things like microwaves in dorm rooms and whether the pools are heated and how many of them there are. I remarked that if students are consumers (an analogy I don't favor), then colleges have to compete for them and offer them products they want.  Those products are shiny. They're not ultimately very useful for brain development, although they're pleasant for the after class environment. He did acknowledge that I had a point.

This TBBT episode gets a number of things wrong, as I note, but probably does so for satiric purposes. What does it get wrong, and why? First, none of the characters, Sheldon, Leonard, and Raj, seem to have been hired initially into a tenure track line. Thus, none is eligible for the position. In order to be eligible initially, you would need to apply for the position at the start, go through the interview process, and receive an offer (which would go through the faculty, chair, dean, provost, president, and board of trustees). It's a long process, and might be slightly different depending on the institution, but most institutions follow this pattern. These searches generally get many applicants, weed through them to a pool of qualified candidates whom they interview, perhaps by phone or in person off-campus, and then bring some to campus to interview for a day or two, and then discuss the finalists. Then someone gets and offer, negotiates with the chair, and then accepts (or declines). If the finalist declines, the department might move on to the second choice, if it wants to, if it still has the money in the budget, if the second choice is still available. There's none of the wackiness, including the mass schmoozing that you see at the cocktail party, in the episode.The candidates wouldn't meet. Generally if you are candidate for such a position, you would not know who else is a candidate for that position.  If Raj, Leonard, or Sheldon wanted to be considered, they would have had to apply when the position was finally posted, and the posting would have need to be open for a specific amount of time. Given Cal Tech's prestige, the posting would certainly have been nationally posted, and perhaps even internationally advertised, and probably for several months at least. Raj, Leonard, and Sheldon would have been in competition with scientists from around the world, not just with one another.

Why does TBBT present such a situation? It probably wants to show these characters in conflict. It wants to show some infighting in an academic setting. Maybe the show wants to suggest some (supposed) inanity at academic institutions. There certainly can be some. But not this kind.

Second, Janine, the HR head, and her staff certainly could have helped with the writing and the posting of the job description (which as I note would have taken months). She and the staff would done triage on all the applications once they received them. But she would not have served on the search committee. That committee would have been up of faculty members from the hiring department, and perhaps a faculty member or two from another department. Perhaps a staff member with knowledge of the research area might have been invited to search on the committee. But Janine would have had no place in the interviewing interactions. She would have had a role to play in informing on-campus candidates of job benefits. Again, why does the episode show her involvement? Because it wants to heighten the conflict--she's been involved with these characters before. But again, the notion that in real life such a staff member would weigh in formally on such a hire by being on the search committee--no.

Finally, the department apparently decides not to make a hire from among the three candidates. At an institution like Cal Tech, which loses a prestigious prof, is this outcome likely? I'd suggest the answer is no. But that's the outcome the episode ends with, again probably heighten the conflict. A real department, assuming that it has the money to hire, would try its best to make a hire, because it has invested months, and perhaps a year, in seeking a replacement for the late, lamented, prof and it wouldn't want to lose the line (although there are things it could do to save it).

TBBT actually has a real life physics prof around to the physics that appears on the dry erase boards on the show. The writers could have asked him about the tenure procedure. Of course, maybe they did, and just didn't follow his guidance in this area. In any case, the result is a disappointing episode, and one that TBBT didn't really need to make. There are many ways to depict conflict among the physicists and engineers on this show. This one wasn't necessary.

We also see a certain amount of bickering among Sheldon, Leonard, and Raj (to a lesser degree) over offices. In one episode, Sheldon and Barry Kripke fight over possession of an office vacated by a recently retired prof. Neither Sheldon nor Barry is a tenure track prof. Why would they be entitled to such a prestigious office, and why would the department chair indulge them in such a way, even if they are relatively famous scientists, bring in big grants, and run big labs? The tenured profs in his department are, one presumes, even bigger names and bring in even larger grants and run even bigger labs than do Sheldon and Barry. The kind of posturing and bickering that Sheldon and Barry carry on is childish. If they are unhappy about their circumstances, and truly that brilliant, they could seek out opportunities elsewhere (M.I.T, Princeton, Berkeley?)  Again, TBBT is showing up the kind of conflict it may presume goes in academia, probably just for the entertainment value. Yes, there is conflict in academia. But the real thing is actually, I'd suggest much more interesting than this kind of thing, which seems silly and suggests that grown men with brilliant minds are ultimately toddlers. I'm frankly happy to see that in season 10 Sheldon is finally developing some personal and behavioral skills.

These kinds of things aren't the only ones that pop culture gets wrong about academia. Some of them are some basic that I wonder why they're incorrect. What purpose does it serve to misrepresent them. In a lot of shows, and some films, college classes end with the ringing of a bell to show that class is over, usually right when the prof is saying something important, so that she has to give the next assignment and wrap up quickly (right when a student is asking a question). I'm going to be very clear about this next point. Classes at universities DO NOT END WITH BELLS RINGING. That happens in elementary and secondary education. You would think that writers, many of whom have actually been to college, know perfectly well that college classes don't have bells. One could signal in the script that class is over by having the instructor say, "I see that we're out of time today. For next time, please read..." as if there's no syllabus (although again, there are syllabi in college classes, and again you'd the writers would know this).  Those bells really need to go.

If pop culture wants to dramatize some of the interesting academic issues today, there are a lot that would make riveting tv and film. Stories about sexual harassment (think about David Mamet's Oleanna), or firing a prof for the use of  profanity in the classroom (and the prof responding that profanity is part of the learning experience), actual conflict between scientists for credit, or plagiarism, or falsifying data, or the dramatization of a sexual attack on campus by a star athlete--these would make great tv or film experiences and opportunities for thoughtful discussion about the educational environment and the responsibilities of higher education to its students, staff, and faculty, as well as the public.  If some writer would like assistance with developing some of these ideas, email or tweet me. Happy to help.




April 6, 2017

Better Call Saul (Season Three)

Call For Papers: AALS Section of Law and Humanities Panel on AI/Robots, Law, and the Humanities

Call for papers for an AALS Section of Law and the Humanities panel at the 2018 Annual Meeting, San Diego, January 3-January 6, 2018,  on the theme of the image of robots and AI in the humanities, communication, film, tv, art, commercials, philosophy, and related disciplines. Should robots and AI have rights? If so what rights? 

Please send expressions of interest, your affiliation, and a short description (100-250 words) of the proposed paper by May 15, 2017 to

Christine Corcos (christine.corcos@law.lsu.edu)


Thank you.


DesBaillets on Magna Carta in Canada at 800: Happy Birthday or Identity Crisis? @DDesBaillets

David DesBaillets, University of Quebec at Montreal (UQAM), Faculty of Law, has published Magna Carta in Canada at 800: Happy Birthday or Identity Crisis? Here is the abstract.
When Canada celebrated the 800th anniversary of the Magna Carta in 2015, it did so in grand fashion. This event was marked by a nationwide tour, essay writing contests and countless speeches made by politicians, jurists and academics on its central place in the legal foundation of Canadian human rights, Constitutionalism, judiciary and representative democracy. As has been said enthusiastically by any number of Canadian legal historians “the Magna Carta…informs the legal system in English Canada, and the Canadian Charter of Rights and Freedoms.” However, a more critical lens is needed in order to better understand this document and the way in which it has shaped and continues to influence law, proceduralism and constitutionalism in Canada’s modern legal institutions. Starting from the premise that the ways in which justice is represented is often a reflection of the values that legal institutions aspire to represent, this paper demonstrates the power of Magna Carta as a legal symbol to legitimize and create a rights based discourse that portrays our current human rights paradigm as originating in an ancient historical and mystical common law past. In the first half, it looks at the semiotic, historical, anthropological and metaphorical uses of Magna Carta as well as in present day legal institutions and provides an overview of its specific relevance to the modern human rights narrative in Canada’s judiciary. The second half of this paper will re-examine these symbols with a critical lens in order to demonstrate the reality of Magna Carta as a human rights instrument without formal legal status. The significance of a foreign statute which has no direct bearing on Canadian human rights will be scrutinized in its, human rights law, criminal law, indigenous law and administrative law contexts. The primary sources of legal doctrine, jurisprudence, and constitutional interpretations involving Magna Carta as well, secondary sources of critical analysis will be used in attempt to demonstrate that the influence of Magna Carta, both historically and in contemporary discourses on human rights, can be seen as both positive and negative. Finally the paper will describe the paradox of the Magna Carta as both a source of proceduralism, on the one hand, and substantive rights and civil liberties, on the other, in the contentious Canadian debate between these two interrelated conceptions of human rights law as it relates to contemporary anti-terror legislation.
Download the article from SSRN at the link.

April 5, 2017

Finkelman on Frederick Douglass's Constitution

Paul Finkelman, University of Pittsburgh, School of Law, Albany Law School, Government Law Center, has published Frederick Douglas's [sic] Constitution: From Garrisonian Abolitionist to Lincoln Republican at 81 Missouri Law Review 1 (2016). Here is the abstract.
This Article explores how the great black abolitionist Frederick Douglass was both a constitutional actor and a constitutional theorist. Unlike most constitutional actors, Douglass was not a judge, lawyer, professor, or an elected official. Nevertheless, throughout much of his life, Douglass shaped the Constitution through his actions. He was also shaped by the Constitution as he went from being a fugitive slave – and thus an “object” of the Constitution – to being a free citizen and an appointed officeholder. He became a constitutional theorist who brought his theories into action through his speeches, writings, and activities as an abolitionist, as an antislavery activist, and then as a spokesman for African Americans during the Civil War. This Article provides insights into antebellum constitutional thought and the background to the Fourteenth Amendment. This Article also explores our understanding of the Constitution and its relationship to slavery through the lens of Frederick Douglass. First, the Article looks at how the Constitution impacted Douglass and how Douglass was himself a “constitutional actor,” even though he held no public office and was not even considered a U.S. citizen under the holding in Dred Scott v. Sandford. For example, Douglass was a constitutional actor when he escaped from slavery – and thus came under the Fugitive Slave Act of 1793 and Article IV, Section 2, Clause 3 of the Constitution; when he married in New York but was still a fugitive from Maryland; when he applied for, and received, a copyright for his first autobiography, even though he was a fugitive slave at the time; and when he left the United States for Great Britain without a passport. This Article also explores Douglass’s constitutional theories and understandings and how he used the Constitution to oppose slavery. I argue, in part, that his understanding of the Constitution and his approach to constitutional interpretation changed as his life circumstances changed. Thus, when he returned from England, he was a free man because British friends had purchased his liberty. This led him to a new understanding of how to approach the Constitution and how to fight slavery under the Constitution. While essentially a work of legal history, this Article also offers ways of understanding constitutional theory and the elements of being a constitutional actor. The Article also raises issues of interstate comity and the recognition in one state of a status created in another. While not explicitly stated – because this is a work of legal history – this Article obviously has implications for modern issues surrounding marriage equality, child-custody based on interstate recognitions of status changes, the interstate recognition of gender transitions, and the legal rights of non-citizens within the United States.
Download the article from SSRN at the link.

Advice About "Consent," a New Play by Nina Raine

From the Guardian: a review of a production of Nina Raine's Consent, a play about a rape surviver and the personal and professional lives of the barristers involved in the case. More here. 

Says reviewer Michael Billington in part, "Consent is a play that stimulates debate rather than stifles it. ...This is a very good play that reminds us that drama, like the law, depends on antithetical narratives in which we become judge and jury."

More here from the Independent, the Evening Standard. 

April 4, 2017

Call For Papers: Special Issue, Comparative Literature and Culture: Suffering, Endurance, Understanding

From Douglas Berman, Ohio State College of Law:


Call for Papers: Special Issue: CLCWeb:Comparative Literature and Culture, “Suffering, Endurance, Understanding: New Discourses in Philosophy and Literature, CLC Web: Comparative Literature and Culture, volume 19, no. 15 (December 2017).

Editors: Frank Stevenson, Douglas Berman, and Emily Chow.

Deadline for Submissions, June 15, 2017

In recent years, Elaine Scarry, Martha Nussbaum, Gayatri Spivak, Richard Rorty, Judith Butler, Jacques Derrida, Emmanuel Levinas, and others have taught us that the manifold discourses of suffering – the different discussions and investigations of pain, violence, and trauma -- are not equivalent with, or reducible to, a closed set of existential or empirical facts, but must be continually re-contextualized and rethought within specific cultural and historical contexts; they lead to different forms of justification, reconciliation, compromise. Literally and metaphorically, suffering embodies us, along with those others with whom we share our world.
For this thematic issue, papers are invited that explore the topic of suffering within a literary and philosophical matrix. Topics of a comparative nature – i.e. literatures of non-Anglophone languages – are encouraged, as are essays that explore alternative media, such as film or music. Articles that rely on aspects of the analytic philosophical tradition are also welcome. The following list of topics is intended as a reference and is not meant to be inclusive:
 -         Suffering and Gender;
-         Literary Depictions of Suffering
-         Post-Colonization and Suffering;
-         Suffering and the Animal
-         Philosophical Approaches to Suffering (e.g. hermeneutics, deconstruction, analytic philosophy)
-         Narrative approaches to Suffering (vis-à-vis ethics)
-         Suffering and Materiality
-         The Language of Suffering
-         Holocaust Survivor Literature
-         Suffering and Literary Theory
-         Suffering and Existentialism
-         Suffering and Technology
-         Suffering and Legal Theory
 Please submit papers of 6000-7000 words by June 15, 2017 to Douglas Berman at douglasb41@gmail.com and Frank Stevenson at frankstevenson17@gmail.com. Papers should include an abstract and a works cited list. For the style of the journal, please consult http://docs.lib.purdue.edu/cgi/viewcontent.cgi?article=1007&context=clcweblibrary. Articles published in the journal are double-blind peer reviewed and indexed in the International Bibliography of the Modern Language Association of America, the Thomson Reuters ISI Arts and Humanities Citation Index (A&HCI), Scopus, etc…
 


Call For Papers: 19th International Roundtable for the Semiotics of Law (IRSL, 2018, 23rd-25th May, 2018)

From the mailbox:

 
The 19th International Roundtable for the Semiotics of Law (IRSL 2018)23rd – 25th May, 2018 Hosted by Örebro University / Sweden   This roundtable aims at exploring, analysing, debating the very close semiotic connections between real and fictitious societies, and exploring the mimicking between human and non-human people in order to express the social order in which individual liberties, rights and duties are major concerns. This roundtable will focus on how to narrate real or fictitious national crimes, war crimes, crimes against humanity, manslaughter, etc. We will not only focus on legal analyses and literature but also on how artists, political cartoonists and/or official court artists sketch court settings, crimes, and alleged offenders.  We invite contributors to reflect on how these ideas have been examined over the years. Papers which examine the way artists, storytellers, writers, novelists, singers, movie producers have provoked public discourse to confront Law and Arts in Crime Settings are particularly welcome. A special attention will be paid on how storytellers narrate a crime to a very young public and raise its awareness. The 19th International Roundtable for the Semiotics of Law invites further discussion into these and related questions and welcomes a plurality of approaches, including those of legal studies, philosophy, social science, linguistics, history, cultural studies, and the humanities. Abstracts of 300 words (max.) can be submitted by December 1, 2017 to Laura Ervo (Organizer) (laura.ervo@oru.se) and Anne Wagner (valwagnerfr@yahoo.com) with participation decisions made by January 15, 2018.  Selected papers will be invited for publication in a special issue of International Journal for the Semiotics of Law. (Springer: http://www.springer.com/lawjournal11196) or edited volume.  http://www.springer.com/law/journal/11196/PSE?detailsPage=societies
 

April 3, 2017

Bateman on the Supreme Court of the Roman Empire: Constantine's Bishops

C. G. Bateman, University of British Columbia Faculty of Law, has published Supreme Court of the Roman Empire: Constantine's Bishops. Here is the abstract.
Constantine, the Roman Emperor from 315-337, was a law-giver and put the Christian Church in a place of primacy in the organization of the state which it only lost as recently as the seventeenth century: as such, he is very important to legal and social history in the Western experience. This thesis looks at one aspect of the degree to which the Emperor Constantine’s adoption of the Christian religion’s political structure affected the social cohesion of the state. I suggest that the adoption was the single most important confluence of state powers in Late Antiquity, and I demonstrate how Constantine did this using the instrumentality of legislation regarding religious tolerance and the vaulting of Bishops in to the position of appeal court judges throughout the Roman Empire. I suggest what Constantine was trying to achieve was an imputation of his own consciousness into the legal life of the Empire by making Christian bishops the final court of appeal for anyone who felt they would get a more fair hearing in front of a bishop than they would under a Roman provincial magistrate: and, very importantly, we know from the legislative record that Constantine was very concerned to root out corruption in the practice of court officials across his empire. He was able to accomplish this in large part, I suggest, by opening up new courts of appeal across his empire which all Roman peoples, Christian or not, could get a more just hearing at. In this way, I will demonstrate how Constantine, having the Bishops already beholden to him by his adoption of their religion, thought he could count on these prelates to employ his consciousness to the various matters that came before the court. In other words, his close relationship to the bishops, established at Nicaea, was used to consolidate his control over the Roman legal system by making the courts of bishops a kind of Supreme Court of the Roman Empire. By alleging this I then agree with Burckhardt, that Constantine did use the Church to his own political ends.
Download the article from SSRN at the link.

Maggs on The Articles of Confederation as a Source for Determining the Original Meaning of the Constitution

Gregory E. Maggs, George Washington University Law School, has published A Concise Guide to the Articles of Confederation as a Source for Determining the Original Meaning of the Constitution at 85 Geo. Wash. L. Rev. 397 (2017). Here is the abstract.
Judges and scholars often refer to the Articles of Confederation when making claims about the original meaning of the United States Constitution. To help readers understand and evaluate such claims, this piece describes the formation and content of the Articles of Confederation and explains four ways in which the Articles may provide evidence of the original meaning of the Constitution. The two appendices to this piece contain an annotated copy of the Articles of Confederation and a table linking provisions of the Constitution to their antecedents in the Articles.
Download the article from SSRN at the link.

Mirow on Juan Solórzano Pereira as a Christian Jurist

M. C. Mirow, Florida International University College of Law, is publishing Juan Solórzano Pereira in Great Christian Jurists in Spanish History (Rafael Domingo and Javier Martinez-Torron, eds.; Cambridge: Cambridge University Press, 2017). Here is the abstract.

This biography of the seventeenth-century jurist Juan Solórzano Pereira analyzes his major writings with particular focus on his justifications of Spanish activity in the Americas. The study addresses his views of papal authority, indigenous peoples, and Spanish rule through his use of Roman Catholic sources and doctrine.

Download the essay from SSRN at the link.

April 1, 2017

The Wire Goes To Law School

The announcement that the University of Pittsburgh's law school is offering a course based on the hit TV show The Wire  is just the latest in a series of examples of the importance of this show and others to college curricula. The earliest examples that I've been able to find of pedagogical use of The Wire, in particular, are those at Middlebury, Harvard, Duke, and others, (documented in an article by Drake Bennett for Slate) at least as early as 2010, but perhaps earlier. John Swansburg updated that article a week later, giving other examples dating to 2008. So it's not clear to me whose course was first.

Nevertheless, the interest in using The Wire to probe important societal questions seems fairly established in undergraduate curricula as early as 2008. PBS did a short update last year. Finally, a law school has joined the debate. As we see, the University of Pittsburgh Law School now is offering such a course, though I suspect that criminal law profs, and perhaps profs in other areas, such as evidence and criminal procedure, have been using episodes from the show in classes for some time.

More on Wire-related courses in the selective bibliography below.

Teaching The Wire (Drexel)

Teaching The Wire (Middlebury College)

The Wire Is on the Syllabus in a St. Olaf Class

Mental Floss offers this article on college courses based on television shows.  Note UC Berkeley's course using Judge Judy.