Bandes on Video, Popular Culture, and Police Excessive Force: The Elusive Narrative of Over-Policing @BandesSusan

Susan A. Bandes, DePaul University College of Law, is publishing Video, Popular Culture, and Police Excessive Force: The Elusive Narrative of Over-Policing in volume 2018 of the University of Chicago Legal Forum. Here is the abstract.

Allegations of police brutality are generally credibility contests between the officer and the accuser, and thus their resolution hinges on pre-existing assumptions about what stories are credible. There is a dominant story about policing, reinforced by the courts, the media, and popular culture, and it powerfully shapes the way police conduct is viewed and evaluated. The story is generally told from the police perspective, not that of the suspect. It assumes the good faith of police, but often questions the motives or credibility of suspects. It views police officers as individual, autonomous agents and ignores structural forces and constraints. It views policing as an exercise in crime-fighting and peace-keeping, rather than a means of social control. The story is so deeply ingrained in both culture and law that it is hard to imagine what sorts of evidence could challenge or disrupt it. For this symposium on the tenth anniversary of the last episode of The Wire, I consider the question: did The Wire disrupt the conventional narrative about police brutality? And the larger question: what would it take to do so? I begin by examining the promise and limits of raw video footage as a counter-narrative. Video evidence has helped galvanize public outrage, but at the same time the failures of video evidence to persuade legal decision makers have been striking. It appears that the dominant narrative is so powerful it makes jurors disbelieve their own eyes. I then turn to The Wire, and to the question of media’s potential to bridge the vast divide between police-saturated neighborhoods and the broader public view of police-civilian interactions. Though I do not revise my previous assessment that The Wire was “the greatest television series ever made,” I argue that The Wire, for all its immersive attention to West Baltimore, did not really capture the experience of living in a police-occupied neighborhood in which one’s every innocuous move can lead to a confrontation—even a fatal confrontation—with police. The Wire was strong on the problem of under-policing, but it didn’t do justice to the problem of over-policing, or the experience of living with it. I conclude with thoughts about the role of data analytics, media, and storytelling in bridging these experiential divides.

Download the article from SSRN at the link.

Atticus Finch, Where Are You? @thanerosenbaum @ABAJournal

Are films featuring lawyer-heroes out? Thane Rosenbaum thinks so. In a new essay for the ABA Journal, he says in part,

When it comes to movie heroes, the quintessential moral archetype has been Atticus Finch from To Kill a Mockingbird. But he is not alone. Cinema has offered a virtual parade of eloquent charmers, jury-seducers of the first order. To name a few examples, there’s Paul Biegler (Anatomy of a Murder), Frank Galvin (The Verdict), Henry Drummond (Inherit the Wind), Sir Wilfrid Robarts (Witness for the Prosecution), Sandy Stern (Presumed Innocent) and Kathryn Murphy (The Accused)—among scores of other smooth courtroom specialists—all with a God complex and a clear conscience.
But judging from the films that have been released in this new millennium, the tropes that once dominated legal dramas have given way to an entirely new twist on the genre. Cinema has developed a newfound cynicism about the once-righteous trial attorney. Nowadays, perhaps consistent with our diminished faith in public institutions, the legal system and its practitioners, as depicted in movies, have been found wanting and guilty.

Read the entire essay here.

Kamali on Trial By Ordeal By Jury in Medieval England, Or Saints and Sinners in Literature and Law @LizPappKamali

Elizabeth Papp Kamali, Harvard Law School, is publishing Trial by Ordeal by Jury in Medieval England, or Saints and Sinners in Literature and Law in Emotion, Violence, Vengeance and Law in the Middle Ages: Essays in Honour of William Ian Miller (Kate Gilbert and Stephen D. Whites, eds., Leiden: Brill, 2018).

Using a miracle tale as a focal point, this paper illuminates the political and cultural context of York at the turn of the twelfth to thirteenth century in order to make sense of England’s rapid transition from trial by ordeal to trial by jury after 1215. More specifically, the paper highlights the possible impact of the period of papal interdict (c. 1208 – 1214), imposed by Pope Innocent III in response to King John’s intransigence over the appointment of a new archbishop of Canterbury, during this transitional period in criminal procedure. It argues that the interdict, with its suspension of liturgies, might have forced experimentation with alternative means of reaching verdicts in felony cases. The paper also suggests that juries might have been involved in the issuance of ordeal verdicts in the late ordeal period in England, in which case the shift from trial by ordeal to trial by jury may be less a moment of rupture than a transition from one form of trial using juries to another, albeit a trial form more starkly desacralized after 1215. It is the author’s hope that the paper will serve as a starting point for further research, not a decisive answer to the questions it raises, including whether England’s rapid adoption of final jury verdicts may owe something to the tussle between King John and a particularly imperial and imperious pope.

Download the essay from SSRN at the link. 

Bowman on British Impeachments (1376-1787) and the Present American Constitutional Crisis

Frank O. Bowman III, University of Missouri School of Law, has published British Impeachments (1376 – 1787) & the Present American Constitutional Crisis. Here is the abstract.

Impeachment is a British invention. It arose as one of a set of tools employed by Parliament in its long contest with the Crown over the reach of the monarch’s authority. British impeachment practice matters to Americans because the framers and ratifiers of the U.S. Constitution were the conscious heirs of Britain’s political evolution. The founders’ understanding of British history influenced their decision to include impeachment in the American constitution and their conception of how impeachment fit in a balanced system of ostensibly co-equal branches. It also produced two central features of American impeachment: the limitation of remedy to removal from office and the definition of impeachable conduct, particularly the famous phrase “high Crimes and Misdemeanors” adopted directly from British parliamentary language. Therefore, at a moment when impeachment talk is rampant, a reexamination of British impeachments is in order. This Article is the first comprehensive analysis of the entire arc of British impeachments from 1376 to 1787 since Raoul Berger’s classic 1974 study. It gives particular attention to issues raised by the current presidency. The Article traces the evolution of Parliament’s use of impeachment and of the categories of behavior customarily designated as impeachable. These embraced, but were never limited to, indictable crimes, and included: armed rebellion and other overt treasons; common crimes like murder and rape; corruption (particularly the abuse of office for self-enrichment); incompetence, neglect, or maladministration of office; and betrayal of the nation’s foreign policy interests. The last of these categories has not been emphasized in modern American scholarship, but assumes particular salience in the present moment. Finally, and crucially, the Article concludes that, although Parliament sometimes used impeachment for less dramatic ends, its one indispensable function was removal of officials whose behavior threatened the constitutional order by promoting royal/executive absolutism over representative institutions and the rule of law. Critics of the incumbent president may find this thread of British precedent both poignant and potentially useful.

Download the article from SSRN at the link.

Bohrer on The "Jolly Roger"

Ziv Bohrer, Bar-Ilan University Faculty of Law, is publishing The ‘Jolly Roger’ (Pirate Flag) in International Law's Objects (Jessie Hohmann and Daniel Joyce, eds., 2019) (forthcoming). Here is the abstract.

Presently, a black flag with a skull-and-crossbones (the ‘Jolly Roger’) is merely a cultural icon for piracy. This chapter excavates the flag’s deep roots in international law. Part I uncovers that the flag used to be a laws-of-war signal for the intention to take no prisoners (‘deny quarter’). It was used not only by pirates. Intriguingly, the flag’s history aids in exposing misconceptions regarding criminal justice. Domestic criminal law is considered the traditional form of criminal justice, whereas international criminal law is considered a novel, post-WWII, creation. Piracy is deemed the only long-standing international crime, because for centuries universal jurisdiction has extended over it. However, historically, universal jurisdiction was applied not only to piracy, but also to felonies (crimes classified today as domestic) and war crimes. Part II discusses that actual history of criminal justice and shows that it and the Jolly Roger’s legal history were forgotten for similar reasons.

Download the essay from SSRN at the link.

Boatright on The History, Meaning, and Use of the Words Justice and Judge @StMarysLJ

Newly published:

Jason Boatright, Texas Fifth Circuit Court of Appeals, The History, Meaning and Use of the Words Justice and Judge, 49 St. Mary's Law Journal 727 (2018).

The Jackie Chiles Law Society: A Law Student Organization Devoted to Law and Popular Culture @sjquinney

At the University of Utah's S. J. Quinney's College of Law, students can join  many interesting organizations, including the Jackie Chiles Law Society, devoted to "The Jackie Chiles Law Society is dedicated to the examination of how popular culture interacts with the law. The Society meets regularly to discuss how broadcast & print media and the internet affect the American legal system. Recent guest presenters include Patrick Markey, the film producer of A River Runs Through It and The Quick and the Dead, and Sam Lloyd, the actor who plays the attorney “Ted” on the television show Scrubs. The Society also maintains a collection of popular books and movies related to lawyers and the law in the SJQ law library for student use."

The Society is named for the attorney character played by Phil Morris on Seinfeld. Jackie was well-known for his over-the-top statements. 

Judges, Judging [,] and Humour: A New Publication from Palgrave @Palgrave_

New from Palgrave Macmillan: Judges, Judging and Humour (Jessica Milner Davis and Sharyn Roach Anleu, eds., 2018). Here is the description of the book's contents from the publisher's website.

This book examines social aspects of humour relating to the judiciary, judicial behaviour, and judicial work across different cultures and eras, identifying how traditionally recorded wit and humorous portrayals of judges reflect social attitudes to the judiciary over time. It contributes to cultural studies and social science/socio-legal studies of both humour and the role of emotions in the judiciary and in judging. It explores the surprisingly varied intersections between humour and the judiciary in several legal systems: judges as the target of humour; legal decisions regulating humour; the use of humour to manage aspects of judicial work and courtroom procedure; and judicial/legal figures and customs featuring in comic and satiric entertainment through the ages. Delving into the multi-layered connections between the seriousness of the work of the judiciary on the one hand, and the lightness of humour on the other hand, this fascinating collection will be of particular interest to scholars of the legal system, the criminal justice system, humour studies, and cultural studies.

 

Allison on The Westminster Parliament's Formal Sovereignty in Britain and Europe from a Historical Perspective @cambridgelaw

John W. F. Allison, Cambridge University Faculty of Law, has published The Westminster Parliament's Formal Sovereignty in Britain and Europe from a Historical Perspective as University of Cambridge Faculty of Law Research Paper No. 47/2018. Here is the abstract.

In the historical backdrop to domestic British debates about Brexit has been tension between two contrasting and competing conceptions of the Westminster Parliament’s sovereignty. In issue has been whether or how parliamentary sovereignty has been subject to constraint, to limitations of form or substance, in strict legal theory or in practical politics. The tension was the product of a doctrinal dichotomy that Albert Venn Dicey introduced in the late-nineteenth century. He introduced it in attempting to juridicalise or juridify the constitution in his foundational and multi-edition textbook ‘The Law of the Constitution’. The dichotomy was, on the one hand, of a formal legal conception of Parliament’s sovereignty as limitless in theory and, on the other hand, of a substantive political conception of its sovereignty as limited in actuality. The tension between these legal and political conceptions has been manifest since then in various formal exercises of Parliament’s sovereignty that have impaired its substance. They include parliamentary enactments that conferred self-government in the process of decolonisation, that granted the executive powers to amend parliamentary legislation through “Henry VIII clauses”, and that delegated various governing powers in devolution. The tension has also been manifest in the enactment of the European Communities Act 1972, by which the Westminster Parliament made domestic legal provision for the UK’s original inclusion in the European Communities. The tension was exacerbated by the unqualified assertion of the unconditional supremacy of Community law by the ECJ, both before and after the 1972 enactment. Through judicial minimalism or false economy - failure to acknowledge, explain and address pressing issues at stake - in the response of the highest British court to the ECJ’s assertion of supremacy, problems in the Westminster Parliament’s legal and political sovereignty were left unresolved and vulnerable to serious objection. They contributed to making the UK’s continued membership of the EU precarious and unstable. The doctrinal and constitutional options and implications for the UK are challenging, as are various searching questions for the EU.

Download the article from SSRN at the link.

Contemporary Aesthetics: Special Volume--New Deadline For Articles October 31, 2018

Contemporary Aesthetics
Special Volume on “Aesthetics and Terrorism”
NEW deadline: October 31, 2018
Contact: emmareto@enl.uoa.gr.

Terrorism is unfortunately ubiquitous in the contemporary world. In the post-9/11 era, so-called “political violence” in the form of state or anti-state activity has placed itself at the very center of international politics and policies. But, of course, terrorist violence is not a recent phenomenon; rather, it has always preoccupied the minds of authorities, shattered the every-day routines of citizens, victimized thousands of people, but at the same time intrigued or even fascinated humanity with its unpredictability and suddenness. Through this lens, it is not paradoxical to admit that terrorism looms large in the artistic, literary, and philosophical imagination, and also in aesthetic debates. Although it may at first sound oxymoronic to articulate the concepts of terrorism and aesthetics in a single breath, not only is extreme political violence against (usually) non-combatants relevant to aesthetic matters and preoccupations, but it turns out that there may even be a structural link between the two. Aesthetics, here, does not necessarily hinge upon the question of beauty or artistic representation, but is more broadly defined as aesthetic experience understood as sense perception. In such a context, aesthetic sensibility has a lot to say about how terrorism is represented, employed, disseminated, reproduced, or even opposed.

Contemporary Aesthetics invites original, innovative, full-length articles that explore the connection between aesthetics and terrorism or terror across cultures, ages, genres, or discourses. CA welcome submissions on topics related (but not limited) to the following:

Aesthetic Theories, Political Violence, and the Philosophy of Terror

The Aesthetics of Suicide Attacks/Terrorism and the Body

The Politics of Aesthetics (or Aesthetics of Politics) in Terror(ism)

Radicalization as an Aesthetic Posture

Post-9/11 Political Discourse and Aesthetics

Ethics, Aesthetics, Narrativity in the Media Communication of Terror

Terrorist Discourse and the Sensorial Aspects of Terrorist Communication

Terrorism through the Perspective of Art (in its widest sense)

Morality, Ethics and Aesthetics in the Artistic Representation of Terror

Terrorism as Theatre/Performance

Society and the Cultural Imaginary of Terrorism

Counter-Terrorism, Law and Aesthetics

Urban Defense, Architecture and (Counter)Terrorism

Terrorism, Aesthetics and Ecological Consciousness

Postcolonial Aesthetics, Imagination and Terror

Religious (or not) Terrorism and the Aesthetics of Pain/Suffering

Aesthetics, Terror, Culture, and the 21st Century

Length: maximum 7,000 words, including abstract and notes. Only electronic submissions are acceptable. Deadline for submitting the full article and a short CV is October 31, 2018.

The article should be attached (as a word document) to your e-mail and sent to the guest editor,

Dr. Emmanouil Aretoulakis, emmareto@enl.uoa.gr.

For submission guidelines, see:
contempaesthetics.org
Guidelines for Article Submission
Please review the following topics in preparing your article for submission. If you have any questions or if you need assistance, please feel free to contact CA.

Call For Papers: Surveillance, Social Media, and Identity--Closes August 30, 2018

Call for Papers

Surveillance, Social Media, & Identity 

24th - 25th October 2018 

De Montfort University, Clephan Building, Bonners Lane, Leicester

SUBMIT: 250-word abstract to mdcevent@dmu.ac.uk by 30th August 2018 with name/title/affiliation 

SEND FULL PAPERS: 6,000-8,000 words to mdcevent@dmu.ac.uk by 8th October 2018 (peer reviewed material will be considered for IJMD, see below)

REGISTER: Conference is free, with lunch provided, but register at Eventbrite link - 

https://www.eventbrite.co.uk/e/surveillance-social-media-identity-tickets-48037364049

(See below for suggested content, and confirmed panel keynotes and speakers from the Media Discourse Centre)

+++ MEDIA DISCOURSE CENTRE +++

http://www.dmu.ac.uk/research/research-faculties-and-institutes/technology/media-discourse/media-discourse-centre.aspx

Journal Launch: IJMD, 2019, International Journal of Media Discourse

Queries re. Journal, write to: mdcjournal@dmu.ac.uk

Surveillance, Social Media, & Identity

Attitudes to the growth and use of Social Media have evolved, from broadly positive conceptions of their role as instruments/sites of democratic exchange, to less favourable assessments that identify their part in the reproduction of an inequitable and fractious social order. In recent years, greater emphasis has been placed on the Faustian bargain that the ‘consumer-citizen’ (Needham, 2003; Clarke and Newman, 2007) has been forced to strike with the ‘platform capitalists’ (Srnicek, 2016) who control access to this domain of sociability, and more attention has been devoted to the role of the state in monitoring online behaviour (Trottier, 2015). This observation should not suggest that ‘new’ media forms are solely responsible for the destruction of privacy, the repression of dissent, or the enlargement of individual egos, because technological developments throughout history can be subjected to the same kind of critical analysis. 

One of the key questions is, therefore, the particular role of social media in both facilitating and regulating expressions of human agency, as people attempt to build networks of like-minded individuals, establish forms of intimacy, and intervene in political controversies. The promotion of the ‘self’ as a cultured, capable, autonomous and yet connected being, requires the careful maintenance of online profiles and the constant revision of ‘status’. In addition, those driven by the goal of professional attainment try to draw attention to their ‘marketable’ skills and abilities. Yet, if the price of entry to this new sphere of influence is self-exposure, then these selves are composed of elements that are, in part, specifically chosen in anticipation of the scrutiny that they will receive (not only from the ‘weak ties’ established between fair-weather Facebook friends, but from intelligence agencies and corporate power).

This conference examines the ways in which mediated identity is constructed and monitored, which can encompass the circulation of communal identity, the reproduction of gendered personas, and the role of state and corporate formations in the segmentation of individuals through their political allegiance and ‘lifestyle’ choices. It also engages with recent revelations that describe the attempted manipulation of opinion and electoral preferences, and the rise of forms of surveillance designed to pre-empt the supposed ‘radicalisation’ of disaffected groups. 

Papers may include, but need not be confined, to the following:

Workplace surveillance and forms of resistance

Corporate surveillance of the consumer-citizen

Self-promotion in the digital ‘marketplace’

Histories of surveillance

Counter-surveillance and political consciousness

Protest events and policing

‘Securitisation’ and public insecurity

The contested identity of the ‘refugee’

Feminist identities and politics 

Collective identities and ‘cultural’ resistance

Online rumour and state intervention

Confirmed speakers from the Media Discourse Centre (panel keynotes in italics):

Electronic Music Collectives (Zoe Armour)

‘Breaking’ Cambridge Analytica (Alice Gibbs)

Surveillance and political identity (Ben Harbisher)

Greece & Cyprus: Political Agency, Identity and Gender (Nayia Kamenou)

Online Feminist Identities (Claire Sedgwick)

Iraq: Gender and Online Identity (Ahmed Bahiya)

UK: Child sexual abuse, surveillance, control (Jason Lee)

Identity Process Theory (Rusi Jaspal)

Brazil: Collective identity and resistance (Fernanda Amaral)

China: Misinformation and mistrust: rumours on Chinese social media (Yu Sui)

Italy: Autonomy, Surveillance and Power (Marco Checci)

Sociopolitical digital heritage in Israel-Palestine (Gil Pasternak)

Spain: Leftism, Nationalism and Identity (Stuart Price)

Identity, Class and Intergenerational Change (Gurvinder Aujla-Sidhu)

UK R10 Studio: Surveillance, Re-appropriated Post War Technologies and Evotronics (Paul Mazzitelli)

JOURNAL INFORMATION - IJMD to launch in 2019:

Journal Launch: IJMD, 2019, International Journal of Media Discourse

Brief overview: The IJMD is devoted to the peer-reviewed, open-access publication of critically-informed research, focussed on the role of discourse in the material/symbolic constitution of the contemporary social order. This goal does not mean that a specific methodological or political position is preferred, nor should it suggest that the Journal is restricted to the analysis of political, as opposed to cultural events. Media Discourse is understood, therefore, as a broad category of ‘value-laden’ practices, animated and circulated by institutions, platforms, workers, ‘publics’ and other formations, rather than as a distinct mode of communication that subjects other social forces to its own agenda.

IJMD also maintains (as the title suggests!) a decidedly International focus, inviting contributions from academics who consider themselves part, not only of a ‘global’ academy, but of a wider political and social constituency. This trans-national group is composed of citizens, journalists, academics, activists, and any others whose primary concern is the pursuit of social justice. A serious engagement with the challenges of the current period must take into account the various manifestations of sociopolitical activity, based on an understanding of class, gender, ethnicity, and other forms of subaltern identity. In other words, IJMD encourages the submission of research that interrogates the iniquities and myths perpetuated by the cheerleaders of patriarchal capitalism, as well as the resistive practices of those subjected to its power.

In sum, IJMD provides an interdisciplinary forum for the generation of new insights into the contested production of public meaning. The Editors are particularly interested in the intersection between empirical and theoretical work, in which an author is able to suggest advances within (or beyond) a particular field, tradition or mode of enquiry, by offering evidence from interviews, participant observation, social media surveys, data analysis, or other forms of enquiry. This does not, however, preclude the submission of material (such as an extended essay) that tries to advance academic thought by engaging with contemporary developments in theory.

(Editors: Ruth Sanz Sabido, CCCU; Ben Harbisher, DMU; Stuart Price, DMU)

Orbach and Huang on Con Men and Their Enablers

Barak Orbach, University of Arizona, and Lindsey Huang, Perkins Coie, LLP, are publishing Con Men and Their Enablers: The Anatomy of Confidence Games in Social Research: An International Quarterly (forthcoming). Here is the abstract.

President Trump’s philosophy for life, business, and politics prescribes the use of “leverage,” “truthful hyperbole,” and “play[ing] to people’s fantasies” to advance zero-sum deals. Many people believe that this philosophy made Trump a successful businessman and the greatest dealmaker in history. Many others believe that, by following this philosophy, Mr. Trump has proven that, with the aid of fixers and other enablers, a con man might escape the rule of law for decades, successfully use confidence schemes in a presidential campaign, and continue using confidence schemes in the Oval Office. We examine why people often disagree about what profit-seeking actions constitute unethical confidence games and about how the legal system should address cons. Con schemes have characteristics of both trade and fraud. Like trade, cons are voluntary exchanges, and, like fraud, cons are voluntary exchanges induced by misleading representations. Fundamentally, cons further voluntary exchanges that are not mutually beneficial. They benefit con men at the expense of their victims. We study the anatomy of confidence games and legal strategies that may reduce the social costs of cons. We argue that the present understanding of cons, as reflected through our legal system, political debates, and the literature, is impaired and that the prevalence of cons warrants greater attention of lawmakers, courts, and scholars.

Download the article from SSRN at the link.

Chacon and Jensen on Direct Democracy, Constitutional Reform, and Political Inequality in Post-Colonial America

Mario Chacon and Jeff I. Jensen, both of New York University Abu Dhabi, have published Direct Democracy, Constitutional Reform, and Political Inequality in Post-Colonial America. Here is the abstract.

The ratification of constitutional changes via referendum is an important mechanism for constraining the influence of elites, particularly when representative institutions are biased. While this constitutional mechanism is commonly employed, its use is far from universal. We investigate the determinants of mandatory constitutional referendums by examining the divergence between Northern and Southern U.S. states in the early 19th century. We first explore why states in both regions adopted constitutional conventions as the mechanism for making revisions to fundamental law, but why only Northern states adopted the additional requirement of ratifying via referendum. We argue that due to distortions in state-level representation, Southern elites adopted a norm of discretionary referendums as a mechanism for protecting slave interests. We support our argument with both qualitative and quantitative evidence, including an analysis of votes from various Southern conventions in 1861 on whether to condition secession from the Union on receiving popular ratification.

Download the article from SSRN at the link.

Frye on the Ballard of Harry James Tomkins @brianlfrye

Brian L. Frye, University of Kentucky College of Law, is publishing The Ballad of Harry James Tompkins in the Akron Law Review. Here is the abstract.

On July 27, 1934, Harry James Tompkins lost his arm, supposedly when an unsecured refrigerator car door on a train operated by the Erie Railroad Company hit him in the head. Tompkins won in a $30,000 judgment in federal court, but in Erie v. Tompkins (1938), the United States Supreme Court famously reversed, holding that federal courts sitting in diversity must apply state substantive law, not federal "general common law." While many scholars have studied Erie v. Tompkins, few have studied the facts of the case, and none have questioned Tompkins's account. This article argues that Tompkins and his witnesses were not telling the truth.

Download the article from SSRN at the link.

New From Hart Publishing: Sedley on Law and the Whirligig of Time @hartpublishing

New from Hart Publishing: Stephen Sedley, Law and the Whirligig of Time (Hart Publishing, 2018).

For over 30 years, first as a QC, then as a judge, and latterly as a visiting professor of law at Oxford, Stephen Sedley has written and lectured about aspects of the law that do not always get the attention they deserve. His first anthology of essays, Ashes and Sparks, was praised in the New York Times by Ian McEwan for its 'exquisite, finely balanced prose, the prickly humour, the knack of artful quotation and an astonishing historical grasp'. 'You could have no interest in the law,' McEwan wrote, 'and read his book for pure intellectual delight.' The present volume contains more recent articles by Stephen Sedley on the law, many of them from the London Review of Books, and lectures given to a variety of audiences. The first part is concerned with law as part of history - Feste's 'whirligig of time'; the second part with law and rights. The third part is a group of biographical and critical pieces on a number of figures from the legal and musical worlds. The final part is more personal, going back to the author's days at the bar, and then forward to some parting reflections.

 

New From Hart Publishing: Monateri, Dominus Mundi: Political Sublime and the World Order @hartpublishing

New from Hart Publishing: Pier Giuseppe Monateri, Dominus Mundi: Political Sublime and the World Order (Hart Publishing (2018).

This monograph makes a seminal contribution to existing literature on the importance of Roman law in the development of political thought in Europe. In particular it examines the expression 'dominus mundi', following it through the texts of the medieval jurists – the Glossators and Post-Glossators – up to the political thought of Hobbes. Understanding the concept of dominus mundi sheds light on how medieval jurists understood ownership of individual things; it is more complex than it might seem; and this book investigates these complexities. The book also offers important new insights into Thomas Hobbes, especially with regard to the end of dominus mundi and the replacement by Leviathan. Finally, the book has important relevance for contemporary political theory. With fading of political diversity Monateri argues “that the actual setting of globalisation represents the reappearance of the Ghost of the Dominus Mundi, a political refoulé – repressed – a reappearance of its sublime nature, and a struggle to restore its universal legitimacy, and take its place.” In making this argument, the book adds an important original vision to current debates in legal and political philosophy.

New From Hart Publishing: Blackstone and His Critics @hartpublishing

New from Hart Publishing: Blackstone and His Critics (Anthony Page and Wilfrid Prest, eds., 2018).

William Blackstone's Commentaries on the Laws of England (1765-69) is perhaps the most elegant and influential legal text in the history of the common law. By one estimate, Blackstone has been cited well over 10,000 times in American judicial opinions alone. Prominent in recent reassessment of Blackstone and his works, Wilfrid Prest also convened the Adelaide symposia which have now generated two collections of essays: Blackstone and his Commentaries: Biography, Law, History (2009), and Re-Interpreting Blackstone's Commentaries: A Seminal Text in National and International Contexts (2014). This third collection focuses on Blackstone's critics and detractors. Leading scholars examine the initial reception of the Commentaries in the context of debates over law, religion and politics in eighteenth-century Britain and Ireland. Having shown Blackstone's volumes to be a contested work of the Enlightenment, the remaining chapters assess critical responses to Blackstone on family law, the status of women and legal education in Britain and America. While Blackstone and his Commentaries have been widely lauded and memorialised in marble, this volume highlights the extent to which they have also attracted censure, controversy and disparagement.

 

CFP: Melbourne Doctoral Forum on Legal Theory

The 11th Melbourne Doctoral Forum on Legal Theory has issued its CFP. This year the theme is Facts, Law, and Critique. The Forum will take place December 4 and 5, 2018 at Melbourne Law School. Here's a link to click for more information. Abstracts are due by September 5, 2018.

ABA Journal's 25 Greatest Legal Movies @ABAJournal

From the ABA Journal: The 25 Greatest Legal Movies: Expanding the Boundaries. This story follows on 2008's The 25 Greatest Legal Movies (disclosure: I was one of the judges for that story). 

The Oxford Handbook of Legal History (edited by Markus Dubber and Christopher Tomlins): New From @OxUniPress @MarkusDubber @ArsScripta

New from Oxford University Press: The Oxford Handbook of Legal History (Markus D. Dubber and Christopher Tomlins, 2018) (Oxford Handbooks in Law). Here from the publisher's website is the description of the book's contents.

Some of the most exciting and innovative legal scholarship has been driven by historical curiosity. Legal history today comes in a fascinating array of shapes and sizes, from microhistory to global intellectual history. Legal history has expanded beyond traditional parochial boundaries to become increasingly international and comparative in scope and orientation. Drawing on scholarship from around the world, and representing a variety of methodological approaches, areas of expertise, and research agendas, this timely compendium takes stock of legal history and methodology and reflects on the various modes of the historical analysis of law, past, present, and future. Part I explores the relationship between legal history and other disciplinary perspectives including economic, philosophical, comparative, literary, and rhetorical analysis of law. Part II considers various approaches to legal history, including legal history as doctrinal, intellectual, or social history. Part III focuses on the interrelation between legal history and jurisprudence by investigating the role and conception of historical inquiry in various models, schools, and movements of legal thought. Part IV traces the place and pursuit of historical analysis in various legal systems and traditions across time, cultures, and space. Finally, Part V narrows the Handbook>'s focus to explore several examples of legal history in action, including its use in various legal doctrinal contexts.

 

Batlan on the Gendered Origins of the Practice of Immigration Law, 1907-1940 @ChicagoKentLaw

Felice Batlan, Chicago-Kent College of Law, has published Deja Vu and the Gendered Origins of the Practice of Immigration Law, 1907-1940. Here is the abstract.

Donald Trump’s administration has provoked crisis after crisis regarding the United States’ immigration policy, laws, and their enforcement. This has drastically affected millions of immigrants in the U.S. and those hoping to immigrate. Stemming from this, immigration lawyers and immigrant advocacy organizations are challenging such policies and providing an extraordinary amount of direct pro bono legal services to immigrants in need. Yet the history of the practice of immigration law has been largely understudied. This article seeks to address this history by closely examining Chicago’s Immigrants’ Protective League between 1910 and 1940. The League provided free counsel to tens of thousands of poor immigrants facing a multitude of immigration-related legal issues during a time when Congress passed increasingly strict immigration laws often spawned by xenophobia and racism. The League, always headed by women social workers, created a robust model of immigration advocacy. Overtime, it combined the everyday legal representation of immigrants, the production of social science research and scholarship about immigration and immigrants, the lobbying of immigration officials and the federal government for better and less restrictive immigration laws, and the provision of a variety of social services to immigrants. It also did so during an era when only a handful of women were professionally trained lawyers. A close and thick reading of the League’s archival documents, manifests how the events of Trump’s immigration policies have a long and painful history. U.S. immigration law and its enforcement have consistently been cruel, inhumane, arbitrary, and capricious. Told from the ground up and focusing upon the day-to-day problems that immigrants brought to the League, one dramatically sees how immigration laws and practices were (and still are) like quicksand – changing and unstable— thwarting the legitimate expectations of migrants, at times, leaving people in a legal limbo, and at other times, destroying lives. The League, in response, participated in creating what would become the practice of immigration law. In doing so, it continually engaged in legal improvisation as it quickly responded to changing laws, rules, policies, and the needs of those trying to immigrate.

The full text is not available for download from SSRN.

Weisberg on Cardozo's "Law and Literature": A Guide To His Judicial Writing Style

Richard Weisberg, Cardozo School of Law, has published Cardozo's 'Law and Literature': A Guide to His Judicial Writing Style at 34 Touro Law Rev. 349 (2018). Here is the abstract.

Weisberg traces Judge Cardozo's advice about legal writing to the famous 1925 essay LAW AND LITERATURE and applies it to the judicial opinions and other published works of Cardozo and various other judges.

Download the essay from SSRN at the link.

Law, Not Poetry @BarbaraRich_law @Medium

Barbara Rich explains how she became a lawyer, not a poet. Here, for Medium.

CFP: Law, Literature, and Psychoanalysis, 1890-1950, University of Sheffield, April 11-13, 2019 @sheffielduni @thomgiddens

Call For Papers: ‘Literature, Law and Psychoanalysis, 1890-1950’, University of Sheffield, 11-13 April, 2019.

Keynotes:

Ravit Reichman (Brown University)

Lizzie Seal (University of Sussex)

Victoria Stewart (University of Leicester)

Call For Papers:

The twentieth-century was a period of worldwide literary experiment, of scientific developments and of worldwide conflict. These changes demanded a rethinking not merely of psychological subjectivity, but also of what it meant to be subject to the law and to punishment. This two-day conference aims to explore relationships between literature, law and psychoanalysis during the period 1890-1950, allowing productive mixing of canonical and popular literature and also encouraging interdisciplinary conversations between different fields of study. 


The period examined by the conference included: developments in Freudian psychoanalysis and its branching in other directions; the founding of criminology; continuing campaigns and reforms around the death penalty; landmark modernist publications; the ‘Golden Age’ of detective fiction; and multiple sensational trials (Wilde, Crippen, Casement, Leopold and Loeb, to name but a few). Freud’s followers, like Theodor Reik and Hans Sachs, would publish work on criminal law and the death penalty; psychoanalysts were sought after as expert witnesses; novelists like Elizabeth Bowen would serve on a Royal Commission investigating capital punishment; while Gladys Mitchell invented the character of Beatrice Adela Lestrange Bradley as a literary detective-psychoanalyst.

We therefore hope to consider areas including literature’s connection with historical debates around crime and punishment; literature and authors on trial and/or on the ‘psychiatrist's couch’; and literature’s effect on debates about human rights. The event is linked to and partly supported by an AHRC project on literature, psychoanalysis and the death penalty, but the aim of this conference is much wider. Interdisciplinary approaches, especially from fields such as psychoanalysis, philosophy, law or the visual arts, are particularly encouraged. We also welcome papers on international legal systems and texts. All responses are welcome and the scope of our interdisciplinary interests is flexible, with room in the planned programme for strands of work that might be more or less literary. 

Possible topics might include: 

• psychoanalysis in the real or literary courtroom;
• literary form and the insanity defence;
• canonical authors as readers of crime fiction and vice versa;
• censorship cases;
• the influence of famous legal cases on literary productions or on psychoanalytic theory;
• influences of criminology and criminal psychology on literature;
• representations of new execution methods (for example, the gas chamber and the electric chair);
• portrayals of restorative versus retributive justice;
• literary responses to the Universal Declaration of Human Rights;
• relationships between modernism and Critical Legal Studies (CLS). 

Please send 250 word paper proposals or 300 word proposals for fully formed panels to Katherine Ebury litlawpsy2019@gmail.com by 28th November 2018.

New From Routledge: Law and Justice in Japanese Popular Culture @routledgebooks @thomgiddens

New from Routledge: Law and Justice in Japanese Popular Culture: From Crime Fighting Robots to Duelling Pocket Monsters (Ashley Pearson, Thomas Giddens, and Kieran Tranter, eds., 2018). Here's a description of the book's contents.

In a world of globalised media, Japanese popular culture has become a significant fountainhead for images, narrative, artefacts, and identity. From Pikachu, to instantly identifiable manga memes, to the darkness of adult anime, and the hyper-consumerism of product tie- ins, Japan has bequeathed to a globalised world a rich variety of ways to imagine, communicate, and interrogate tradition and change, the self, and the technological future. Within these foci, questions of law have often not been far from the surface: the crime and justice of Astro Boy; the property and contract of Pokémon; the ecological justice of Nausicaä; Shinto’s focus on order and balance; and the anxieties of origins in J- horror. This volume brings together a range of global scholars to reflect on and critically engage with the place of law and justice in Japan’s popular cultural legacy. It explores not only the global impact of this legacy, but what the images, games, narratives, and artefacts that comprise it reveal about law, humanity, justice, and authority in the twenty-first century. 

 

e twenty-first century.

Domingo on Contardo Ferrini: A Contemplative Legal Historian

Rafael Domingo, Emory University School of Law; University of Navarra School of Law, is publishing Contardo Ferrini (1859–1902): A Contemplative Legal Historian in Great Christian Jurists in Italian History (Orazio Condorelli and Rafael Domingo eds., Cambridge University Press, 2020) (forthcoming).

A scholar of great originality and deep spirituality, Contardo Ferrini belonged to an outstanding generation of Italian legal historians of Antiquity, who brought to prominence the studies of Roman law just after the establishment of the Kingdom of Italy (1861). Moved by a patriotic feeling and scientific enthusiasm, they tried to wrest intellectual supremacy from Germany. In addition to Ferrini, the most influential representatives of this select group included Vittorio Scialoja, Carlo Fadda, Silvio Perozzi, Salvatore Riccobono, and Pietro Bonfante. Although Scialoja, not Ferrini, was the leader of the group, Ferrini was a very prominent member of it, the most distinguished expert in Roman Byzantine law and criminal law, and probably the one who more properly embodied the notion of Christian jurist. Ferrini lived in a time of strong tensions between church and state due to the Roman question. He was a forerunner of the theology of the universal call to holiness, deeply developed decades later by the Second Vatican Council (1962–1965), and he contributed to linking Christian love, especially for the poor, with the flourishing of human science.

Download the essay from SSRN at the link.

Johns on Critical International Legal Theory @FleurEJ

Fleur Johns, University of New South Wales, Faculty of Law, is publishing Critical International Legal Theory in International Legal Theory: Foundations and Frontiers (Jeffrey L. Dunoff and Mark A. Pollack, eds., Cambridge University Press, 2019, Forthcoming)). Here is the abstract.

This chapter presents an account of three phases of writing and practice in critical international legal theory, after first identifying some braided historico-political fuel lines for these cycles of work. These phases correspond to successive periods of revisionism: a pre-1989 reckoning (dating from the mid-late 1970s) with the non-materialization of the promises of socialist revolution and the disappointments of the cosmopolitan, decolonization, and development projects; a 1989 to 1999 reckoning with the apparent triumph of liberalism/neo-liberalism and the Washington Consensus; and a current phase, dating from approximately the turn of the millennium, of reckoning with the post-Washington Consensus, the renewed spread of authoritarian nationalism/nativism, and the prevalence of casualization and automation. In each of these, critical international legal theory has been marked by certain persistent commitments and proclivities which this chapter will briefly examine, before speculating about some possible galvanizing themes of international legal work in this vein in the future.

Download the essay from SSRN at the link.

Toh on Authenticity, Ontology, and Natural History: Some Reflections on Musical and Legal Interpretation

Kevin Toh, University College London, is publishing Authenticity, Ontology, and Natural History: Some Reflections on Musical and Legal Interpretation in Law Under a Democratic Constitution: Essays in Honour of Jeffrey Goldsworthy (Lisa Crawford, Patrick Emerton, & Dale Smith, eds., Oxford: Hart Publishing)(forthcoming). Here is the abstract.

This paper is an attempt to exploit a set of analogies between music and law. Both the originalist movement in law and the so-called period instrument movement in classical music gathered momentum in earnest in the late 1970’s and the early 1980’s. And both were reactions to earlier traditions of interpretation, in law and music respectively, the traditions that the partisans of the new movements deemed insufficiently faithful to the objects of interpretation. “Authenticity” is a term that musicians and critics often use to talk about the ideal of fidelity in musical performance. Importantly, what kinds of performances count as authentic depends on what properties are constitutive of musical works. The legal analogue of this relation, I believe, should help us to think carefully about originalism, which involves a particular way of conceiving the ideal of authenticity or fidelity in legal interpretation.

Download the essay from SSRN at the link.

Henckels on Dishonoring the Australian Flag

Caroline Henckels, Monash University Faculty of Law, is publishing Dishonouring the Australian Flag in volume 44 of the Monash University Law Review (2018). Here is the abstract.

Dishonouring a nation’s flag, usually by way of burning, is a form of protest with provocative symbolism. The selective policing of flag use in Australia reveals much about the culture of flag veneration inculcated in Australian society during since the Howard era. Flag burners have been arrested and prosecuted for the offences of disorderly and offensive behaviour, but those who have employed the flag in support of nationalistic or anti-immigration causes have not attracted such opprobrium. Yet, successive attempts to criminalise flag burning have never resulted in the enactment of flag protection legislation – in part on account of a desire on the part of conservative politicians not to martyrise flag-burners, but also due to the vulnerability of such legislation to legal challenge for incompatibility with the implied freedom of political communication protected by the Constitution. High Court authority suggests that it would be difficult for such legislation to survive Constitutional scrutiny unless the relevant provisions were narrowly tailored to welfare concerns such as public safety or public order, and that an objective of preventing offence cannot be a legitimate reason to suppress political communication.

Download the article from SSRN at the link.

Manderson on From Aestheticizing Politics To Politicizing Art @ANU_Law

Desmond Manderson, ANU College of Law; ANU College of Arts and Social Science; McGill University Faculty of Law, is publishing Here and Now: From Aestheticizing Politics to Politicizing Art in Sensing the Nation's Law: Historical Inquiries into the Aesthetics of Democratic Legitimacy (Mark Antaki, Stefan Huygenbaert, Angela Condello and Sarah Marusek, eds., Springer, 2018) (forthcoming). Here is the abstract.

The nation is not a national construction. It is mediated through representations and particularly through representations with a sensory component. Images therefore are primary means through which a collection identity is established. They serve to constitute myths of belonging; to distinguish friend from enemy, as Schmitt put it. They tell stories; they create models and examples that frame our social existence. But they also generate the icons and symbols whose repetition and familiarity - flags, monuments, even colour combinations - etch habits of feeling and mental associations deep into our psyche.

Download the essay from SSRN at the link. 

CFP: Constitutional Legacies of Empire, Workshop: May 23-24, 2019

The University of Glasgow School of Law has published a Call For Papers for a Workshop on Constitutional of Legacies of Empire. The workshop will take place May 23-24, 2019 at the School of Law. Here's a link to the website.

Drink Up! Frye on a Legal History of the Bacardi Cocktail @brianlfrye

Brian L. Frye, University of Kentucky College of Law, has published 'It's Your Right…!': A Legal History of the Bacardi Cocktail. Here is the abstract.

In 1936, the Bacardi Company filed a trademark infringement action in New York state court against two New York bars for serving Bacardi cocktails made without Bacardi rum, and the court granted an injunction. For years afterward, the Bacardi Company used the ruling in its advertisement, proclaiming, "It's your right!" to expect Bacardi rum in your Bacardi cocktail. This article provides a legal history of the Bacardi cocktail and the Bacardi Company's trademark infringement action. An appendix provides a list of historical recipes for the Daiquiri and Bacardi cocktails.

Download the article at the link.

Adams on Japanese Canadians and the Canadian Constitution @ericadams99

Eric M. Adams, University of Alberta Faculty of Law, is publishing Constitutional Stories: Japanese Canadians and the Constitution of Canada  in volume 35 of Australiasian Canadian Studies. Here is the abstract.

Constitutions, and the law and culture they generate, constitute in the broad, diverse, and conflicting stories we tell about places, peoples, and nation states. Significant constitutional anniversaries have always marked an occasion for creating and challenging constitutional stories. The 150th anniversary of Confederation offers an opportunity to reflect on the stories that Canadian constitutional history has to contribute to the country’s broader constitutional narrative and self-understanding. In particular, I explore how significant moments in the constitutional history of Japanese Canadians reveal the relationship between constitutional failure and meaningful moments of constitutional resistance and change. In doing so, we see the capacity of constitutional history, often abandoned by scholars for the more immediate imperatives of contemporary constitutional concerns, as integral to a full understanding of Canadian constitutional law, culture, and politics.

Download the article from SSRN at the link.

Bamzai on Taft, Frankfurter, and the First Presidential For-Cause Removal @adityabamzai

Aditya Bamzai, University of Virginia School of Law, has published Taft, Frankfurter, and the First Presidential For-Cause Removal at 52 University of Richmond law Review 691 (2018).

In the fall of 1912—while one of the most consequential presidential campaigns in United States history raged around them—William Howard Taft, Felix Frankfurter, and a handful of officials within the federal government initiated a process to remove two members of the Board of General Appraisers for inefficiency, neglect of duty, and malfeasance in office. The process culminated in President Taft’s for-cause dismissal of the two members, Thaddeus Sharretts and Roy Chamberlain, on the very last day that he served as President, after he received a report recommending their firing from a “committee of inquiry” that included Frankfurter. Taft’s firing of Sharretts and Chamberlain was the first presidential for-cause removal. To this day, it remains the only time in the history of the nation that the President has expressly removed for cause an executive branch “officer of the United States” whose tenure is protected by statute after providing notice to the officer, holding a hearing, and finding that the statutory predicates for removal have been met. Taft’s action involved decisions by two individuals—Taft himself and Frankfurter—who would go on to become Justices of the United States Supreme Court and to author two of the most consequential opinions on the President's authority to remove subordinates, Myers v. United States and Wiener v. United States. It involved the construction and application of statutory language—“inefficiency, neglect of duty, or malfeasance in office”—that Congress still uses to mark some kind of “independence” from presidential control on behalf of an administrative agency. Echoes of the issues that Taft and Frankfurter confronted in 1913 may be heard in Myers and Wiener, in Justice Sutherland’s opinion for the Court in Humphrey’s Executor v. United States, and in recent controversies over the scope of the President’s power to remove subordinate officers within the executive branch. Despite all of the foregoing, the episode has escaped scholarly attention and been the subject of no relevant legal discussion. No account of President Taft’s removal of the two Board members appears in the various treatments of the President’s removal power, or in the large literatures devoted to Taft and Frankfurter, two towering figures in American legal history. Indeed, it is widely, but mistakenly, assumed that no President has ever removed an officer for cause and that (in the words of the dissenting opinion in Free Enterprise Fund v. Public Co. Accounting Oversight Board) “it appears that no President has ever actually sought to exercise [the removal] power by testing the scope of a ‘for cause’ provision.” As a corrective, this article tells the story of Taft’s for-cause removal of the two general appraisers on his last day in office, following a process started in the midst of his 1912 reelection battle with future President Woodrow Wilson and former President Theodore Roosevelt. It then explores the episode’s implications for present-day understandings of the development of the American administrative state and the doctrine of the separation of powers.

Download the article from SSRN at the link.

Allison on Minimizing Magna Carta and Modernizing Exposition of the Rule of Law in the English Historical Constitution @ElgarPublishing @Elgar_Law

John W. F. Allison, University of Cambridge Faculty of Law, has published Minimising Magna Carta and Modernising Exposition of the Rule of Law in the English Historical Constitution as University of Cambridge Faculty of Law Research Paper No. 48/2018. It is forthcoming in Handbook on the Rule of Law (Christopher May and Adam Winchester, Elgar, 2018). Here is the abstract.

Dicey’s view of the English constitution as historical was traditional, but he promoted, and imported to that constitution, a history that was comparative, critical and modernist. His promotion of history as comparison affected his treatment of Magna Carta and his view of its importance to the rule of law. Provisions of Magna Carta provisions are compared and contrasted with Dicey’s exposition of the rule of law to explain his disdain for Magna Carta’s importance, to show the extent to which his exposition of the rule of law marked its modernisation in the English historical constitution, and to illustrate Diceyan history as comparison. The historical comparison serves as an illustration with which to consider the value of history as comparison - for Dicey in his treatment of Magna Carta and for normative interpretivists in drawing upon his rule of law.

Download the chapter from SSRN at the link.