The Humanities--Why?

The American Conference of Academic Deans and Phi Beta Kappa are co-sponsoring a conference for which the theme is "Are the Humanities Now a Luxury?" The conference, scheduled for November 10-12 in Charleston, SC, has posted its request for proposals at the website here.

Atticus Finch as a Christian Lawyer

Lance McMillian, Atlanta's John Marshall Law School, has published Atticus Finch - Christian? in volume 77 of the Tennessee Law Review (2010). Here is the abstract.

This essay is the third-part of A Dialogue Commemorating the Fiftieth Anniversary of to Kill a Mockingbird's Publication between Professors Lance McMillian and Judy Cornett, featured in the Tennessee Law Review. In this piece, Professor McMillian answers three questions posed to him by Professor Cornett: (1) Is Atticus Finch really a Christian in any meaningful sense?, (2) Is Atticus Finch's Christian faith the “but for” impetus behind his actions?, and (3) Should Atticus Finch be judged a hero at all under today's standards?

Download the article from SSRN at the link.

A "Mad Scientist" For Real? And In a Movie?

The Scientist features Jim Fields' documentary about neurologist Robert White, who died last year. Mr. Fields notes that Dr. White might fall into the class of the "real" "mad scientist," someone whose thoughtful integration of research and imagination led him toward the boundaries of what we now consider commonplace. But he did some unusual things in the lab, too--things we still consider odd, and maybe off-limits, such as grafting one monkey's head onto another body.

Bioethicists Will Gaylin and Dan Callahan, who co-founded bioethics think tank, The Hastings Center, in 1969, remember talk of brain transplantation when organ transplant technology was developing. "It used to be kind of a joke," says Callahan. "If you transplant my brain into somebody else's head, who would that person be? Is a person the brain or the body?"

....

"Real mad scientists...are not lone wolves like in the movies," says Fields. "They're doing things that are sanctioned in their time and place, in society, that are only considered by later values to be wrong."

...

While Callahan doubts that White would have been allowed to do this research today, he notes that he likely received approval from a number of organizations in his day. But does that context of permission make his actions ethical? "I don't think you can go back and prejudge generations of people," says Gaylin, "but by the time he was doing his research, there were a significant number of people talking about medical ethics in an advanced form."

So which is it? Was White a researcher outside the boundaries of bioethics or a man doing right by the standards of his time?

Terrorism and Armed Conflict

Andrea Bianchi, Graduate Institute of International and Development Studies, has published Terrorism and Armed Conflict: Insights from a Law & Literature Perspective at 24 Leiden Journal of International Law 1 (2011). Here is the abstract.

This article examines some selected issues relating to terrorism and international humanitarian law (IHL): the characterization of the nature of armed conflicts in which armed groups, qualified as ‘terrorist,’ are involved; terrorism as a war crime; and the determination of the status and treatment (including detention) of terrorist suspects apprehended in the course of an armed conflict. The analysis emphasizes the importance of legal categories and legal qualifications of factual situations for the purpose of determining the applicable law as well as the crucial importance of taking societal practice into account when evaluating the state of the law in any given area. The main focus of the article, however, is on providing a few basic insights, drawn from the law & literature movement, on international humanitarian law and terrorism. Short of any epistemological ambition, literature is used as a remainder that the law is not a set of neutral rules, elaborated and applied independently of context and historical background; that the human condition remains central; and that legal regulation cannot be oblivious to it. Finally, mention is made of interpretive techniques, developed in the field of literary studies, that may help establish social consensus on the interpretation of IHL grey areas.

The full text is not available from SSRN.

New CBS Comedy Features Yes, More Lawyers

Not enough TV lawyers in your life? Then by all means check out the new CBS comedy Mad Love, which airs Mondays at 8:30 (7:30 Central time). It stars Jason Biggs as Ben and Tyler Lapine as Leo, two young attorneys in the Big City (that's NY), haplessly looking for love. The sitcom's the work of Matt Tarses. Other stars: Sarah Chalke (of "Scrubs") as Ben's new found love Kate and Judy Greer (a frequent guest star on such Chuck Lorre comedies as "Two and a Half Men" and "The Big Bang Theory") as Connie, Kate's roommate, who spectacularly does not get along with Leo. We suspect we know how that relationship will turn out. So far, the show has been amusing and well-acted, but predictable, and the law takes a back seat to the developing romance between Ben and Kate. Episodes already aired available here.

Call for Panelists AALS Section on Law and Humanities

Call for Panelists AALS Section on Law and Humanities


“Excavating and Integrating Law and Humanities in the Core Curriculum” 2012 AALS Annual Meeting January 4-8, 2012 Washington, D.C.

The AALS Section on Law and Humanities will hold a program during the AALS 2012 Annual Meeting in Washington, D.C. with panelists who will share methods of teaching law and humanities perspectives in “core courses” such as property, torts, contracts, corporations, federal income tax, civil procedure, contracts, or criminal law, and others not traditionally understood to include these perspectives.

Many agree that law and humanities perspectives are important vehicles for unpacking the substantive content of the core curriculum, as well as for building and honing key skills necessary for legal practice. Though many acknowledge that these perspectives are vitally important, there is less agreement as to how faculty can successfully implement these perspectives in their classrooms. This program will include a variety of panelists and will explore ways law and humanities perspectives can be used successfully to enrich law school teaching.

To be considered as a panelist, please submit a statement of interest by Friday, March 25, 2011, including a description (2-3 paragraphs is sufficient) of the course that you teach and the methods that you use to excavate and integrate law and humanities perspectives that you would discuss as part of the panel. Please also submit an updated curriculum vitae.

Panelists will be selected by April 11, 2011. Each selected panelist will be required to submit a 4-6 page draft in October 2011, describing their law and humanities teaching technique(s), for use by the moderator. The Section hopes to have these papers published as part of an online mini-symposium sponsored by the California Law Review.

All panelists will be responsible for paying their annual meeting registration fee and travel expenses. Full-time faculty members of AALS member and fee-paid law schools are eligible to submit papers. Foreign, visiting (and not full-time on a different faculty) and adjunct faculty members, graduate students, and fellows are not eligible to submit.

Any inquiries about the Call for Panelists should be submitted to Professor Melissa Murray, University of California, Berkeley, School of Law via electronic mail at mmurray@law.berkeley.edu.

Identifying Scientism

Susan Haack, University of Miami School of Law and Department of Philosophy, has published Six Signs of Scientism (Seis Signos De Cientismo) in Discusiones Filoficas, Ano 11 (No. 15) June 2010. Here is the abstract.

As the English word "scientism" is currently used, it is a trivial verbal truth that scientism-an inappropriately deferential attitude to science-should be avoided. But it is a substantial question when, and why, deference to the sciences in inappropriate or exaggerated. This paper tries to answer that question by articulating "six signs of scientism": the honorific use of "science," etc; using scientific trappings purely decoratively; preoccupation with demarcation; preoccupation with "scientific method"; looking to the sciences for answers beyond their scope; denying the legitimacy or worth of non-scientific (e.g. legal or literary) inquiry, or of writing poetry or making art.

Download the article from SSRN at the link. NB: The text is in Spanish.

Legal Interpretation

George H. Taylor, University of Pittsburgh School of Law, has published Legal Interpretation: The Window of the Text as Transparent, Opaque, or Translucent at 10 Nevada Law Review 700 (Summer 2010). Here is the abstract.

It is a common metaphor that the text is a window onto the world that it depicts. In legal interpretation, the metaphor has been developed in two ways – the legal text as transparent or opaque – and the Article proposes a third – the legal text as translucent. The claim that the legal text is transparent has been associated with more liberal methodological approaches. According to this view (often articulated by critics), the legal text does not markedly delimit meaning. Delimitation comes from the interpreters. By contrast, stress on the opacity of the legal text comes from those who give priority to the text rather than to any separable purpose lying behind the text. Frederick Schauer, for example, argues that rule-following requires treating a rule’s generalization as entrenched and hence opaque. The Article’s emphasis on the legal text as translucent builds on the hermeneutics of Paul Ricoeur and emphasizes the interrelation of text and context. To comprehend a legal text by reference to its context is to appreciate the light that the context brings to the text and renders the thickness and color of the text no longer opaque but translucent. The text is translucent to its context. The context is not outside the text but part of it. Attention to the text without regard for its external context may distort its meaning. The Article exemplifies this perspective by drawing on recent work by Laurence Tribe and Justice Breyer and applies it briefly to recent Supreme Court jurisprudence. The Article frames the attention to the legal text by referencing the debate over the text as transparent, opaque, or translucent in literary and philosophic interpretation.

Download the article from SSRN at the link.

Well, "L": The Green Bag Takes On the NYT

Ross E. Davies, George Mason University School of Law; The Green Bag, is publishing Gray Lady Bowdler: The Continuing Saga of the Crimson Spot in the Green Bag Almanac and Reader 2012. Here is the abstract.

This is a short, true story about the Green Bag versus the New York Times, two periodicals doing their best according to their respective lights to serve their respective readerships. The story is told for the most part through recent email correspondence between, on one side, a variety of Times editors and, on the other side, one Green Bag editor. Reasonable minds might differ about the relative merits of the positions taken and the practices followed by the two periodicals and their spokespeople, but no reasonable person could deny the entertainment value of some of their exchanges. Those exchanges are reproduced in chronological order, starting on the next page. But first, a small dose of background...

Download the article from SSRN at the link.

Mixed Juries In Ireland in the Nineteenth Jury

Niamh Howlin, Queen's University Belfast, has published Fenians, Foreigners and Jury Trials in Ireland, 1865-70 iin The Irish Jurist 2011. Here is the abstract.

This paper examines the circumstances which led to the empaneling of a Swiss watchmaker, a French professor and an Italian hatter, along with nine others, to try an American Fenian in Cork in 1865. This was the trial of Captain John McCafferty, a former Confederate soldier who later became an important figure in the Irish nationalist movement. His trial for treason-felony in 1865 is a fascinating example of the use of what was known as a jury de medietate linguae; a mixed jury consisting of half locals and half aliens. It is significant because it appears to be the only recorded use of a mixed jury in Ireland, although interestingly, it attracted very little comment, despite the unusual nature of the tribunal. After a brief history of the origins and development of this unique tribunal, this article will compare the historical use of mixed juries in common law countries. McCafferty’s trial will then be considered in the wider context of the Fenian organisation’s activities in the 1860s, and particularly in light of subsequent Fenian cases where mixed juries were sought.

 Download the article from SSRN at the link.

The Higher Moral Law and the Fugitive Slave Act

Steven Lubet, Northwestern University School of Law, has published The Oberlin Fugitive Slave Rescue: A Victory for the Higher Law in volume 13 of North & South (2011). Here is the abstract.

This article tells the story of the Oberlin fugitive slave rescue and the ensuing prosecutions in federal court. The trial of rescuer Charles Langston marked one of the first times that adherence to "higher law" was explicitly raised as a legal defense in an American courtroom. The article is adapted from my book – Fugitive Justice: Runaways, Rescuers, and Slavery on Trial – which tells this story (and several others) in much more detail.

In the fall of 1859, John Price was a fugitive slave living in the abolitionist community of Oberlin, Ohio. He was lured out of town and captured by Kentucky slavehunters, but he was able to raise an alarm. Hundreds of Oberliners – including many students and graduates from the eponymous college – came to his rescue. They chased the slavehunters to nearby Wellington, where they freed John Price by force.

The pro-slavery Buchanan administration could not ignore such a blatant violation of the Fugitive Slave Act, and soon obtained indictments against thirty-seven rescuers, including twelve black men. The ensuing trials would be one of the first times that adherence to the “Higher Law” was raised as an explicit legal defense in a United States court.

Charles Langston – a free black man and the son of a Virginia plantation owner – was brought to trial in Cleveland the following spring. Langston was a militant abolitionist and a leader of Ohio’s African-American community. Although convicted, he shocked the country when he defiantly addressed the court at sentencing. Langston announced that he would proudly continue to violate the Fugitive Slave Act, and he would assert the “God given right to freedom” in the face of any warrant or legal requisition.

Langston’s attorney stunningly also declared himself a “votary of the Higher Law,” thus setting the stage for a courtroom confrontation between morality and legality.

Download the article from SSRN at the link.

Secularism, Religious Thought, and Human Rights

Zachary R. Calo, Valparaiso University School of Law, has published Religion, Human Rights and Post-Secular Legal Theory. Here is the abstract.
 

This paper proposes that the fundamental challenge for religious legal theory is the question of the secular and, in particular, a certain mode of secular reason that has shaped the idea of law within modernity. The fundamental ambition of modern legal thought was to sever law from a connection to a sacred cosmic and intellectual order. The idea of human rights, at least in its regnant expression, embodies this project most fully in that it has increasingly been defined as a moral tradition that stands over and against religion. This paper, by contrast, argues that the destabilization of secular meaning creates the space, and indeed the necessity, for a pluralist theological turn within the idea of human rights.

Download the paper from SSRN at the link.

The Roman Foundations of the Law of Nations

Benedict Kingsbury, New York University School of Law, has published Introduction: The Roman Foundations of the Law of Nations in The Roman Foundations of the Law of Nations: Alberico Gentili and the Justice of Empire (B. Kingsbury & B. Straumann eds.; Oxford University Press, 2010). Here is the abstract.

Where did the writers of the sixteenth, seventeenth, and early eighteenth centuries seek the legal maxims and methods, the principles governing treaties or embassies or jurisdiction or property, and the broader ideas of justice in the inception, fighting, and conclusion of war, which they built into a law of nations of enduring importance? To a considerable extent, they looked to Roman law, Roman debates about the justifications of Rome’s wars and imperial expansion, and a rich tradition of ius naturae and ius gentium deriving from Greco-Roman and early Christian sources. This book brings together a set of fresh perspectives exploring the significance and implications of the use made of Roman legal concepts, and of Roman just war theory and imperial practice, by early modern European writers who shaped lasting approaches to natural law and the law of nations.

Download the introduction from SSRN at the link.

Lincoln's Use of Biblical Imagery

Wilson Ray Huhn, University of Akron Law School, has published A Higher Law: Abraham Lincoln's Use of Biblical Imagery as University of Akron Legal Studies Research Paper No. 11-1. Here is the abstract.

This article describes Lincoln’s use of biblical imagery in seven of his works: the Peoria Address, the House Divided Speech, his Address at Chicago, his Speech at Lewistown, the Word Fitly Spoken fragment, the Gettysburg Address, and the Second Inaugural. Lincoln uses biblical imagery to express the depth of his own conviction, the stature of the founders of this country, the timeless and universal nature of the principles of the Declaration, and the magnitude of our moral obligation to defend those principles. Lincoln persuaded the American people to embrace the standard “all men are created equal” and to make it part of our fundamental law. This goal was formally accomplished as a matter of law in 1868 when the Equal Protection Clause was added to the Constitution as part of the Fourteenth Amendment, but it is approached in fact only through our constant application of this ideal to our society and in our daily lives. The principle of equality is a higher law, but it need not exceed our grasp. As Lincoln called upon us – “let it be as nearly reached as we can.”

Download the paper from SSRN at the link.

Law & Social Inquiry Call For Student Papers

From Law & Social Inquiry

2011 Law & Social Inquiry


Graduate Student Paper Competition



The editors of Law &  Social Inquiry are pleased to announce our annual competition for the best journal-length paper in the field of sociolegal studies written by a graduate or law student. Entries will be accepted starting January 1, 2011 and must be received by March 1, 2011. The author must be a graduate student or law student at the time the paper was written and when submitted.

LSI invites direct submissions from graduate and law students and nominations of student work from faculty. Faculty nominations should be accompanied by the paper in question, a short description of the nominated paper, and contact details for the student. The winning paper will be published in Law & Social Inquiry and the author(s) will receive a total cash prize of $500 (US). Submissions will be judged by the editors. The winning submission will be sent to selected scholars for advisory reviews to aid with revisions prior to publication.

Law & Social Inquiry publishes empirical and theoretical studies of sociolegal processes from a variety of disciplinary perspectives.

Please send your best work in Microsoft Word or as a PDF to: lsi-abf@abfn.org. Please indicate (1) your intention is to be considered for the prize competition; (2) confirm your graduate student status; and (3) that the paper is a sole submission to Law & Social Inquiry, meaning that you have not submitted it to other journals for potential publication. Submission is limited to one paper per student; articles may not be altered or resubmitted with corrections once it has been accepted by our office.

Submissions must include a title page with a complete mailing address, e-mail address, and phone number(s). The second page should include a 100-150 (maximum) word abstract. Beginning on the third page, all pages should be paginated. Text, footnotes, endnotes, and references should be double-spaced, in Times New Roman 12 font, with 1.5” margins on all sides with no headers or footers. Properly formatted, submissions must be no more than 60 manuscript pages.

For further information go to www.blackwellpublishing.com/LSI, or e-mail

lsi-abf@abfn.org, or call (312) 988-6517.

Defective Detection

NPR reports on what coroners' offices really do, and might fail to do. It's not like TV.

Hollywood and Ethnicity on Film

Tung Yin, Lewis & Clark Law School, has published Through a Screen Darkly: Hollywood as a Measure of Discrimination Against Arabs and Muslims, in volume 2 of the Duke Forum for Law and Social Change (2010), which was presented at a symposium at Duke Law School on "The New Face of Discrimination: Muslim in America." Here is the abstract.

In this essay, which was prepared for the Duke Forum for Law and Social Change’s “The New Face of Discrimination: Muslim in America,” I compare Hollywood’s depiction of Arabs and Muslims in terrorism thrillers before and after the 9/11 attacks. The goal of this comparison is to see whether the increased awareness of Arab and Muslim culture since 9/11 has changed the way that Hollywood depicts Arab and Muslim characters in such television shows and movies. I chose Hollywood as the focus because popular culture both reflects and shapes public attitudes. I reach three conclusions: (1) although 9/11 led to an increase in Arab characters, Arab-American actors have not benefited, perhaps an indication of the problematic depictions of such characters; (2) Hollywood has moved toward creating Arab-American counterterrorism agents, but these characters typically play minor roles that understate the key roles played by some (of the few) real-life Arab-American agents; and (3) the new “sleeper cell” characters – seemingly normal Arab-American characters who secretly plan and execute terrorism plots – who are a post-9/11 development, for the most part overstate the nature of the Arab-Americans who have been prosecuted for terrorism-related offenses in this country.

Download the article from SSRN at the link.

Jack Bauer Syndrome

Tung Yin, Lewis and Clark Law School, has published Jack Bauer Syndrome: Hollywood's Depiction of National Security Law, at 17 S. Cal. Interdisc. L.J. 279 (2008), also presented at the 2008 AALS Section on Law and Humanities panel. Here is the abstract.

In this Article, which was presented at the Law & Humanities Section Panel at the 2008 Annual AALS Conference, I examine the way that the Fox television series "24" portrays two issues relevant to national security law: the use of torture to extract information in order to stop an imminent terrorist attack, and the depiction of Arabs as villains (and non-villains) with the concomitant impact on racial profiling and other stereotyping of Arab-Americans and Arabs. I conclude that the depiction of torture is narratively stacked in favor of government agent Jack Bauer. I also conclude that "24" attempts to balance its portrayal so that not all villains are Arabs, and not all Arabs are villains. However, I point out points of improvement in this area.

Download the article from SSRN at the link.

Online Education Humanities Database

Nice mention of the Law and Humanities blog at the Online Education Humanities Database.

Hamlet's Hung Jury

After a notoriously long delay in the proceedings, Prince Hamlet's trial for the murder of Polonius finally got underway in Los Angeles, California (a change of venue from Elsinore was granted--tainted jury pool there). The defense pled insanity, the prosecution argued homicide, and the result after expert testimony and a lot of wrangling was 10 to 2 for conviction. The jurors included actors Helen Hunt and Tom Irwin. Arguing for the prosecution were Deputy District Attorney Danette Meyers and attorney Nathan J. Hochman, for the defense, Blair Berk and Richard J. Hersch. Associate Supreme Court Justice Anthony Kennedy presided over the proceedings, held at the University of Southern California School of Law. More here.

Where Is Cora Crippen?

Dr. Hawley Crippen's wife Cora disappeared sometime in February 1910. A few months later, he and his mistress, Ethel Le Neve, were arrested and stood trial for her murder. Miss Le Neve was acquitted, but Dr. Crippen was found guilty, in one of the most sensational trials Britain had seen. In November, still protesting his innocence of the crime, he was hanged.

For decades few have doubted Dr. Crippen's guilt. Now, forensic investigators from Michigan State University's School of Criminal Justice have determined that the remains discovered in Dr. Hawley Crippen's coal cellar, long presumed to be those of his missing wife Cora, are not hers. They aren't even female.

Based on the genealogical and molecular data presented here, only
one conclusion can be drawn: the remains obtained from the
Crippen’s cellar at 39 Hilldrop Crescent, London, in 1910 were not
those of Dr. Crippen’s wife. It is beyond the scope of this article to
speculate on whose they were (clearly they were human) or how
they came to be in the Crippen’s coal cellar. It must be noted that
the forensic tools available today are far advanced from those
available in 1910, so it is perhaps not surprising that new (and conflicting) results were obtained, as still  happens. Forensic
science in 1910 was in its infancy, and scientists at the time had to rely on the tools and techniques available to them. DNA testing of
remains, such as those found in the Crippen’s (sic) cellar, would today be virtually automatic, producing far more objective results for personal identification than interpretation of small physical abnormalities in
highly decayed flesh. Finally, in light of the data presented here, we can briefly look
at the outcome of Dr. Crippen’s investigation and trial. As noted earlier, Dr. Crippen proclaimed his innocence throughout, stating before his hanging that ‘‘I insist I am innocent…some day evidence
will be discovered to prove it…’’ The heinous crime for which Dr. Crippen was hanged, which intrigued much of the world in 1910, was illogical in many ways. If Dr. Crippen, described as very mild
mannered, had murdered his wife, why did he openly flaunt her absence by selling many of her possessions, and taking his mistress out socially where she sometimes wore his missing wife’s jewelry? Even more perplexing is the manner in which the body was discarded. If a murderer was successful in killing his victim unwitnessed, then dismembering and disposing of the head, arms, legs, and every bone, why go through the ordeal of carefully sectioning out the victim’s viscera (performed in a single piece with reported surgical skill), and burying these soft tissues, excluding anything that could identify sex, in one’s very own basement, along with a small amount of hair and a pajama top? It is these acts (and others) that have long led historical investigators to wonder whether Dr. Crippen actually did murder his wife and whether the cellar remains were hers.  The judge, Lord Richard Alverston, condemned Dr. Crippen to die by hanging. Before the jury’s deliberation, he stated regarding the remains: ‘‘Gentlemen, I think I may pass for the purpose of
your consideration from the question of whether it was a man or woman. Of course, if it was a man, again the defendant is entitled to walk out of that dock.’’ Sexing the remains was impossible at the time, as were other purely objective methods for their identification.  We are thus left with an instance of historical misidentification. Based on the genealogical and genetic investigations presented here, the remains found in Dr. Crippen’s coal cellar were not only not Cora Crippen’s, they were not even female.

Writers, including Patricia Highsmith ("The False Inspector Dew") have used the Crippen story as the basis for intriguing speculation and this new information will fuel the fire. Whose remains were buried in Dr. Crippen's cellar and why? And where is Cora?

Conference on Law, Science, and Technology

From Dr. Maksymilian Del Mar, Institut des sciences sociales, Université de Lausanne, Switzerland, news of an interesting conference to be held in August.

The Congress of the International Association for Legal and Social Philosophy (IVR), to be held August 15-20, 2011, in Frankfurt,  has the theme "Law, Science, and Technology." Dr. Del Mar and Dr. Randy Gordon are organizing one workshop on exemplary narratives and are particularly interested in interdiscplinary papers in the areas of law and literature and law and legal and literary theory. There will also be papers presented that discuss the role of exemplary narratives historically and in theological practices, particularly in Jewish legal theory.

Anyone interested can get in touch with Dr. Del Mar at Maksymilian.DelMar@unil.ch) and/or Dr.Gordon at rgordon@gardere.com.

Call For Papers

16TH ANNUAL UBC INTERDISCIPLINARY LEGAL STUDIES


GRADUATE STUDENT CONFERENCE - CREATIVE LAW

May 13-14, 2011, Vancouver

Registration Deadline: April 1, 2011


Submission Deadline: February 4, 2011

The Graduate Law Students' Society of UBC invites graduate students in all disciplines to participate in its 16th annual interdisciplinary academic conference, to be held in Vancouver, Canada, on May 13-14, 2011.

THEME:


The theme for the 2011 conference is Creative Law. The conference is intended to promote reflection on "creativity and the law" in all the possible senses of that phrase: law and its interaction with the arts, including literature and theatre; innovation within the law and innovative uses of the law; the development of new law; legal postmodernism; new and distinctive ways of interpreting law; the relationship between law and religion; the application, adoption or appropriation of law in or by other disciplines and in a thousand other ways. We encourage scholars to critique or apply the law in new and unexpected ways, and in doing so to consider the field of law as one that is bounded not by the strictures of formal law but only by the creativity of the scholar interpreting or applying that law. We also strongly encourage abstracts that approach law from a more traditional perspective, especially those that consider the ways in which traditional scholarship can respond to the creative impulses of law (and its practitioners), as well as the benefits and limitations of approaching law and legal theory from more traditional perspectives.

SUBMISSION GUIDELINES:



Proposals should include the title of the paper, a 250 word abstract, and the student's full institutional affiliation, e-mail address and phone number. Presenters should be current graduate students or have recently completed graduate studies (exceptional proposals from 3rd year LL.B./J.D./B.A. students may be accepted). Early submissions are strongly encouraged as participation is limited. In order to keep registration fees as low as possible, funds cannot be provided to assist with travel or other costs of participation. The general working language of the conference will be English.



Abstract Submission Deadline: February 4, 2011



Please email your abstract to:



Email: lawgradcon@gmail.com





REGISTRATION/CONFERENCE DETAILS:



Registration deadline and fees payable by: April 1, 2011



Conference Dates: Friday - Saturday, May 13 & 14, 2011



Conference Location: The University of British Columbia,

Vancouver, BC



The registration form can be found on the conference

website at:



http://www.law.ubc.ca/events/2011/may/registration.html



Conference organizers can also be contacted at:



Email: lawgradcon@gmail.com

Whodunit? BBC Plans To Answer the Edwin Drood Question This Year

The BBC will offer an answer to The Mystery of Edwin Drood in a new adaptation by Gwenyth Hughes. The new version will air on BBC4 later this year.

Legal Tomfoolery

Angela Fernandez, University of Toronto Faculty of Law, has published The Ancient and Honorable Court of Dover: Mock Trials, Fraternal Orders, and Solemn Foolery in Nineteenth-Century New York State. Here is the abstract.

This article is about a fraternal order operating in the first half of the Nineteenth Century in New York called “The Ancient and Honorable Court of Dover.” This group organized a mock trial, probably in 1834, to prosecute one of its members. A prosecutor was appointed and the President of the group gave a long speech. At issue was whether or not non-members could participate in the trial. After a description of these records and an account of their discovery, this article explains who the individuals involved in the trial were, Jacksonian politicians and lawyers with connections to the Custom House and the Tammany Society in New York City. It then describes what a “Court of Dover” was, asks about what the offence here was, and explores the connections between this group and the most famous “Ancient and Honorable” society, the Freemasons. It argues that the records of a group like this should be understood as a kind of “legal literature” that is best understood in relationship to the notion of “solemn foolery,” a phrase that has been used in connection to the legally-themed theatricals at the Inns of Court.

Download the paper from SSRN at the link.

Jack Bauer and "24": Torture In American Culture

Kate Kovarovic, American University Washington College of Law, has published Our ‘Jack Bauer’ Culture: Eliminating the Ticking Time Bomb Exception to Torture in volume 22 of the Florida Journal of International Law (2010). Here is the abstract.

After eight successful seasons on the air, Americans have come to trust Jack Bauer of 24 to get the job done. Regardless of the circumstances, Jack always succeeds where most men cannot; Jack can always find a way to break a terrorist suspect and obtain the exact information he needs to save the world. Because of this unrealistic portrayal of the successes of torture, Americans have also come to expect that Jack Bauer is not the exception, but the norm. The War on Terror has introduced a new legal theory to the American consciousness: that of the ticking time bomb exception. Despite the country’s pledge to uphold the principles of the ICCPR and the Convention against Torture, more and more Americans are rallying around the ticking time bomb exception, which permits government officials to torture a suspect who might possess critical information regarding an imminent security threat. This paper seeks to convey that the ticking time bomb exception is strictly prohibited under national and international law, and to place the ticking time bomb exception in a more realistic context for the American public.

Download the article from SSRN at the link.

New Television Dramas

This January sees the premiere of two new legal series. "Harry's Law", which stars Linda Bates, premieres January 17 on NBC at 10, 9 Central Time. Harry is a patent lawyer, fired from her firm who begins again as a criminal law attorney. "Fairly Legal" stars Sarah Shahi and premieres on the USA Network on January 20 at 10, 9 Central Time. Kate Reed is an attorney working at her family firm who decides to become a mediator.

The Critique of Law In "A Passage To India"

Allen Mendenhall, Auburn University, West Virginia University, Temple University, and Furman University, has published The Oft-Ignored Mr. Turton: The Role of District Collector in a Passage to India as volume 2, no. 44 of Libertarian Papers (2010). Here is the abstract.

E.M. Forster’s A Passage to India presents Brahman Hindu jurisprudence as an alternative to British rule of law, a utilitarian jurisprudence that hinges on mercantilism, central planning, and imperialism. Building on John Hasnas’s critiques of rule of law and Murray Rothbard’s critiques of Benthamite utilitarianism, this essay argues that Forster’s depictions of Brahman Hindu in the novel endorse polycentric legal systems. Mr. Turton is the local district collector whose job is to pander to both British and Indian interests; positioned as such, Turton is a site for critique and comparison. Forster uses Turton to show that Brahman Hindu jurisprudence is fair and more effective than British bureaucratic administration. Forster’s depictions of Brahman Hindu are not verisimilar, and Brahman Hindu does not recommend a particular jurisprudence. But Forster appropriates Brahman Hindu for aesthetic and political purposes and in so doing advocates a jurisprudence that does not reduce all experience to mathematical calculation. Forster writes against the Benthamite utilitarianism adopted by most colonial administrators in India. A tough figure to pin down politically, Forster celebrates the individual and personal relations: things that British rule of law seeks to suppress.

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

The Right of Publicity In Australia and Singapore

David Tan, National University of Singapore, has published The Fame Monster Reloaded: The Contemporary Celebrity, Cultural Studies and Passing Off at the Singapore Journal of Legal Studies 151 (July 2010). Here is the abstract.

The common law jurisdictions of Australia and Singapore often adopt a conservative approach to recognising newproperty rights, particularly with respect to the human persona, but courts frequently take their cue from developments in the United Kingdom. This article revisits the landmark cases in these jurisdictions which, in declaring that a property right in the goodwill of a celebrity may be protected against unlicensed commercial appropriation, use language evocative of the right of publicity. It examines howthe courts have expanded the passing off action to prevent the unauthorised commercial use of the images of well-known personalities. Finally, by adopting a cultural studies analysis that investigates the semiotic nature of the celebrity sign and its influence on contemporary consumption, this article offers a different perspective to the debate on the protection of image rights.

The full text is not available from SSRN.

The Legal Interpretation of Art

Uladzislau Belavusau, European University Institute (Florence, Italy) and University of California, Berkeley, has published Art, Pornography and Foucauldian Reconstruction of Comparative Law at 17 Maastricht Journal of European and Comparative Law 252 (2010). Here is the abstract.

The article inquires into a delicate and often prudish legal problem of erotic art in the paradigmatic dynamics of national law on obscenity and an ever-growing body of international law of cultural heritage. Pornography is a popular legal construction in distinguishing ‘high art’ from cultural practices, allegedly deprived of artistic value. Yet since when do we know what is the obscene or the pornographic and why do we outlaw certain narratives and visualizations from the realm of freedom of expression? This question remains ultimately vague in national law (predominantly embraced under the heading of boni mores, or ‘public morality’) and even more scattered in contemporary international law. The latter seems to silence somewhat uncomfortable and outdated developments on pornography of the early 20th century. Consequently, this piece is an attempt to trace the genesis and evolution of the legal interpretation of art in the dichotomy of freedom of expression and pornography.

The full text is not available from SSRN.

Semiotics, Law, and Copyright

H. Brian Holland, Texas Wesleyan School of Law, is publishing Social Semiotics in the Fair Use Analysis in a forthcoming issue of the Harvard Journal of Law and Technology. Here is the abstract.

This article presents an argument for an expansion of fair use, based not on theories of authorship or rights of autonomy but rather on a theory of the audience linked to social practice. The article asks, in essence, whether audiences determine the meaning, purpose, function, or social benefit of an allegedly infringing work, often regardless of what the work’s creator did or intended. If so, does this matter for the purpose of a fair use analysis based on a claim of transformativeness?






Section I of the article sets the doctrinal groundwork for an exploration of social semiotic theory in the fair use inquiry by exploring a few of the more relevant points of controversy in that analysis, including: commerciality, transformativeness, and cognizable market harm. Section II of the article focuses on transformativeness, a concept at the heart of the first factor inquiry into the purpose and character of a defendant’s use of the copyrighted work. After exploring the prevailing conception of transformativeness, I propose an alternative – grounded in social semiotic theory – in which social value is manifest in the process of meaning-making that occurs as individuals and interpretive communities engage the work. It is in this process of semiosis that copyright’s commitment to the enrichment of society can be best evaluated as a distinct question apart from the creation of new authorial rights. Finally, the pending case of Shepard Fairey v. The Associated Press is used to illustrate how social semiotic theories are applied. Section III of the article looks at how social semiotic theory might be relevant in an analysis of the remaining fair use factors: the nature of the copyrighted work; the amount and substantiality used; and the effect on actual and potential markets. The article concludes that social semiotics is most helpful in terms of the second factor, the nature of the copyrighted work, with only limited application to the remaining factors.

Download the article from SSRN at the link.

Shakespeare's Place in the Law School Curriculum

Allen Mendenhall, Auburn University, West Virginia University, Temple University, and Furman University, has published Shakespeare's Place in Law-and-Literature in volume 3 of the Journal of Liberty and Society (2011). Here is the abstract.

Nearly every Anglo-American law school offers a course called Law-and-Literature. Nearly all of these courses assign one or more readings from Shakespeare’s oeuvre. Why study Shakespeare in law school? That is the question at the heart of these courses. Some law professors answer the question in terms of cultivating moral sensitivity, fine-tuning close-reading skills, or practicing interpretive strategies on literary rather than legal texts. Most of these professors insist on an illuminating nexus between two supposedly autonomous disciplines. The history of how Shakespeare became part of the legal canon is more complicated than these often defensive, syllabus-justifying declarations allow. This article examines the history of Shakespeare studies vis-à-vis legal education. It begins with early law-and-literature scholarship, which focused on Shakespeare’s history or biography – speculating as it did about whether Shakespeare was a lawyer or perchance received legal training – and concludes with recent law-and-literature scholarship treating Shakespeare as a source of insight for law students and lawyers alike. I submit that early law-and-literature scholarship on Shakespeare anticipated New Historicist theory and that more recent law-and-literature work, with its turn to presentism, is in lockstep with Shakespeare studies. In law-and-literature classrooms, Shakespeare is more fashionable like a hobby than scholarly like a profession; but law-and-literature scholarship on Shakespeare amounts to high-caliber work based on interdisciplinary research as well as deep engagement with legal and literary texts.



I wrap up this essay with a note about the direction of the university in general and of the law-and-literature movement in particular. I admit that my closing argument, as it were, is tendentious. It raises issues usually raised by confrontational academics and suggests remedies for what William M. Chace has called “the decline of the English Department” or what Harold Bloom has called “Groupthink” in “our obsolete academic institutions, whose long suicide since 1967 continues”. If Chace and Bloom are right about a decline in academic standards – evidence shows that they are at least right about a decline in numbers of English majors – then the fate of literary studies seems grim. Nevertheless, Chace and Bloom overlook the migration of literature professors into American law schools, a phenomenon yet to receive critical attention. Another aspect of this phenomenon is the migration of students from the humanities to professional schools. I personally have known many students who wished to go on to graduate school in the humanities but quite understandably viewed that route as impractical and went to law school instead. A positive result of this trend is that a substantial body of law students is open to the idea of law-and-literature and finds luminaries like George Anastaplo or Stanley Fish more interesting than other law professors. My final comments address the strange exodus of literary scholars into professional schools, which pay more money and arguably provide vaster audiences and readership, more generous funding opportunities, and reduced teaching loads. Perhaps more than other literary disciplines, save for cultural studies, Shakespeare studies has moved into the realm of interdisciplinarity, albeit without large contributions from scholars outside of literature departments. The law-and-literature field would have perished without the expertise of literature professors; likewise, Shakespeare studies, if it continues down the path of politics and cultural criticism, will perish without the expertise of economists, political scientists, and legal scholars, whose mostly non-Marxist perspectives, when pooled with the perspectives of literature professors, might fill out a space for interesting scholarship and redeem the interdisciplinary label. Information-sharing is especially crucial for literature scholars who, in order to examine the history of Shakespeare in American culture, have turned to practices and methods traditionally reserved for other disciplines.

The full text is not available from SSRN.

Home Sweet Home

I Bennett Capers, Hofstra University School of Law, has published Home Is Where the Crime Is in volume 109 (2011) of the Michigan Law Review. Here is the abstract.

There is a new vision of home that is beginning to gain ascendance, at least from the point of view of legal actors and doctrine in the criminal justice system. Under this vision, home is not always, or even usually, “sweet.” Under this new vision, the home is not a safe haven, inviolate and inviolable except for, perhaps, a burglar. Under this new vision, the home is a place of violence. And not violence perpetrated by intruders, but by co-habitants. The home, notionally a site of security, a place “safe” from outside intervention, now functions as a place that enables abuse, assault, and rape. It is the exemplary place of coercion. The home, in this re-vision, has metastasized into the scene of the crime. In short, home has become “where the crime is.”



What are we to make of this shift in how the law perceives the home, and how we perceive the home? What are the collateral consequences of this shift? These are the questions Jeannie Suk takes up in her provocative At Home in the Law. This Review assesses Suk’s claims critically, turns to some of the collateral effects of this shift that Suk elides, and switches lens to reveal a larger, more troubling picture.

Download the article from SSRN at the link.

Copying Across Cultures

Madhavi Sunder, University of California, Davis, School of Law, has published Bollywood/Hollywood at 12 Theoretical Inquiries in Law 179 (2011). Here is the abstract.

Free flow of culture is not always fair flow of culture. A recent spate of copyright suits by Hollywood against Bollywood accuses the latter of ruthlessly copying movie themes and scenes from America. But claims of cultural appropriation go far back, and travel in multiple directions. The revered American director, Steven Spielberg, has been accused of copying the idea for E.T. the Extra-Terrestrial from legendary Indian filmmaker Satyajit Ray’s 1962 script, The Alien. Disney’s The Lion King bears striking similarities to Osamu Tezuka’s Japanese anime series, Kimba the White Lion. Neither Ray nor Tezuka’s studio sued the American filmmakers and this Article is by no means an attempt to revive any particular legal case. Rather, this Article considers copyright’s role in promoting free cultural exchange, albeit on fair terms in a global marketplace of ideas marked by sharp differentials in power, wealth, and knowledge.

Download the article from SSRN at the link.

A Meditation on Comic Books, Their History, and Copyright Law

Keith Aoki, University of California, Davis, School of Law, has published Pictures within Pictures, in volume 36 of the Ohio Northern University Law Review (2010). Here is the abstract.

This is a meditation on the creative process, copyright law, and comic book history.

Download the article from SSRN at the link.

New Titles From Hart Publishing; Twenty Percent Discount For Readers Of This Blog!

Two new titles of interest from Hart Publishing:

Steve Greenfield, Guy Osborn, and Peter Robson, Film and the Law: The Cinema of Justice
Pub Date: Oct 2010; 9781841137254; Pbk; 392pp; £30 / €39 / US$30 / CDN$30

http://www.hartpub.co.uk/books/details.asp?ISBN=9781841137254

Paul Raffield, Shakespeare's Imaginary Constitution: Late Elizabethan Politics and the Theatre of Law

Pub Date: Oct 2010; 9781841139210; Hbk; 256pp; £50 / €65 / US$70 / CDN$70

http://www.hartpub.co.uk/books/details.asp?ISBN=9781841139210

Readers of the Law and Humanities Blog qualify for this DISCOUNT OFFER

Hart Publishing is delighted to offer these titles at 20% discount. To receive the discount please quote reference ‘LHBLOG’ when placing your order. If you are ordering online then please quote the reference in the special instructions field. The discount will not show up on your order confirmation but will be applied when your order is processed. All enquires should be directed to Hart Publishing Tel: 01865 517530; E-mail: mail@hartpub.co.uk; Website: http://www.hartpub.co.uk/

Law and the Multiverse Scores With New York Times

The blog Law and the Multiverse is featured in the New York Times.

Categorizing the Informant

Michael Rich, Elon University School of Law, has published A Snitch, Not a Hero: Philosophical Lessons of Loyalty and Disloyalty in the World of Criminal Informants, as Elon University Law Legal Studies Research Paper No. 2010-11. Here is the abstract.

Without informants, policing as we know it would grind to a halt. In the arenas of drug enforcement and the battle against organized crime, the majority of prosecutions hinge on confidential informants, and informants are increasingly central in white collar crime prosecutions and anti-terrorism investigations. Yet society, to put it bluntly, hates informants. The epithets used to describe them – “snitch,” “rat,” “weasel” – suggest the reason: the informant, by assisting the police, is guilty of betrayal. But identifying the reason for society’s disdain raises more questions than it answers. For instance, are all informants disloyal, or are only some? Are there governing principles that explain which informants are deemed to be disloyal? To whom are informants disloyal? What import does informant disloyalty have beyond the social stigma that informants bear? And these questions matter because betrayal, in the words of George Fletcher, is “one of the basic sins of our civilization.” Yet, they have largely escaped the attention of legal scholars.



This Article remedies this oversight first by discussing the role of informants through the lens of the observations that philosophers have made about loyalty and disloyalty. The discussion reveals that loyalty and disloyalty are social constructs of normative expectations arising out of special relationships between individuals and other individuals or groups. And when an individual breaches these normative expectations, she commits disloyalty or betrayal. The Article applies these observations about loyalty and disloyalty to three informant situations. The first is the “typical” case of an accomplice-informant who assists police in apprehending and prosecuting her partners in crime. The second is that of communities with particularized norms against cooperating with the police, as exemplified by the “Stop Snitching” movement that has made significant headway in high-crime communities. The third situation is that of informants in “mainstream” society. The loyalty analysis of these three situations reveals interesting insights into why police have trouble obtaining civilian cooperation in high-crime communities and the limits of civilian identification with police objective in mainstream society. Finally, the Article considers these insights in light of existing scholarship about the relationship between civilian perceptions of police and willingness to cooperate. This consideration leads to a handful of policy proposals to enhance civilian cooperation with law enforcement and ultimately to the recognition that some level of reticence to cooperate with police, particularly in marginalized communities, is both inevitable and desirable.

Download the paper from SSRN at the link.

Representing Justice: A New Book on the Theme

New book on Representing Justice by Judith Resnick and Dennis Curtis, published by Yale University Press. Pricey but beautiful. Review here from the New York Times. Website here.

Court Citation of Foreign Legal Opinions

Martin Gelter, Fordham University School of Law and the European Corporate Governance Institute, has published Language, Legal Origins, and Culture before the Courts: Cross‐Citations between Supreme Courts in Europe as Fordham Law Legal Studies Research Paper No. 1719183. Here is the abstract.

Should courts consider cases from other jurisdictions? The use of foreign law precedent has sparked considerable debate in the United States, and this question is also controversially discussed in Europe. In this paper and within the larger research project from which it has developed, we study the dialogue between different European supreme courts quantitatively. Using legal databases in Austria, Belgium, England and Wales, France, Germany, Ireland, Italy, the Netherlands, Spain, and Switzerland, we have hand-collected a dataset of transnational citations between the highest courts of these countries, in total searching 636,172 decisions decided between 2000 and 2007. In the present paper we show that citation of foreign law by supreme courts is not an isolated phenomenon in Europe, but happens on a regular basis. We found 1,426 instances in which these courts have cited the supreme courts of the other nine countries. The majority (1,077) of these citations have been made for purely comparative reasons. We also undertook regression analysis in order to understand the differences between the cross-citations. Whether such citations take place and in what quantity depends on the particular legal culture and its relationship to others. Austria and Ireland, which stand in an asymmetric relationship with Germany and England respectively, seem to be particularly receptive to foreign influence on their legal systems. But even controlling for these outliers, we have been able to identify that the population of the cited country and a low level of corruption, native languages and language skills, legal origins and families, and cultural and political factors all matter for which courts are likely to be cited. More specifically, knowledge of the language of the cited court appears to be a more important factor driving cross-citations than legal traditions, culture or politics. Thus, to facilitate a transnational market of legal ideas, it can be suggested that courts should strive to make their decisions available in languages that possible readers understand.

Download the paper from SSRN at the link.

Law and the Superwhatever

Check out the new blog Law and the Multiverse, all about supervillains, superheroes and law. Shades of Harvey Birdman, Attorney at Law.

Quiz For the Day

Bored? Tired of grading? Take this Fictional Lawyers Quiz.

New Books Of Interest

Joe B. Fulton, The Reconstruction of Mark Twain: How a Confederate Bushwacker Became the Lincoln of Our Literature (Louisiana State University Press, 2010).

Gregory J. Hampton, Changing Bodies in the Fiction of Octavia Butler: Slaves, Aliens, Vampires (Lexington Books, 2010).

Tyrone Kirchengast, The Criminal Trial in Law and Discourse (Palgrave Macmillan, 2010).

Richard Terry, The Plagiarism Allegation in English Literature From Butler to Sterne (Palgrave Macmillan, 2010).

Taking "Harry Potter" Seriously

A book by Shira Wolosky on the meaning of Harry Potter. From the Chronicle of Higher Education.

Empathy In "To Kill a Mockingbird"

Katie Rose Guest Pryal, University of North Carolina, Chapel Hill, has published Walking in Another’s Skin: Failure of Empathy in to Kill a Mockingbird , in Harper Lee's To Kill a Mockingbird: New Essays, Chapter 12 (Michael J. Meyer ed., The Scarecrow Press, UK, 2010). Here is the abstract.

Empathy - how it is discussed and deployed by both the characters in TKAM and by the author, Lee - is a useful lens to view the depictions of racial injustice in the novel, because empathy is the moral fulcrum on which the narrative turns. In this essay, I argue that To Kill a Mockingbird fails to aptly demonstrate the practice of cross-racial empathy. As a consequence, readers cannot empathize with the (largely silent) black characters of the novel. In order to examine the concept of empathy, I have developed a critical framework derived from rhetorician Kenneth Burke's theory of identification and then used this framework to examine some ways in which empathy manifests itself in our legal system, manifestations that help reveal the failings of TKAM.

Download the essay from SSRN at the link.

Brundage On the Image of Lawyers In Medieval Literature

I ran across this piece today; it dates from 2002, so some of you may be familiar with it already. I think it's extremely interesting. It's by James A. Brundage, the distinguished medievalist and cultural historian. In this piece he addresses medieval attitudes toward lawyers, tracing influences back to the Romans. He says in part,

I propose to examine in this paper the faults that medieval writers found with the lawyers they encountered during the high Middle Ages (by which I mean the two centuries between about 1150 and 1350) and to venture some suggestions about the reasons for them.

Before I do that, however, I shall lay the foundation for my remarks by saying something about the treatment of the legal profession in classical Roman literature. This seems appropriate for two reasons: first, medieval lawyers drew much of their law from Roman sources. In the process they modeled many...of their ideas about the ways in which lawyers ought to behave upon the prescriptions for professional conduct that they found in those sources. Second, medieval writers adopted many...of the criticisms of the legal profession that they found in classical Latin literary sources, to which they added new ones of their own.

James A. Brundage, Vultures, Whores, and Hypocrites: Images of Lawyers in Medieval Literature, 1 Roman Legal Tradition 56 (2002).  Highly recommended.

The Scottish Enlightment's Influence on the Drafting of Article III

James E. Pfander and Daniel D. Birk, both of Northwestern University School of Law, are publishing Article III and the Scottish Enlightenment, forthcoming in the Harvard Law Review. Here is the abstract.

Historically-minded scholars and jurists invariably turn to English law and precedents in attempting to recapture the legal world of the framers. Blackstone’s famous Commentaries on the Laws of England offer a convenient reference for moderns looking backwards. Yet the generation that framed the Constitution often relied on other sources, including Scottish law and legal institutions. Indeed, the Scottish judicial system provided an important, but overlooked, model for the framing of Article III. Unlike the English system of overlapping original jurisdiction, the Scottish judiciary featured a hierarchical, appellate-style judiciary, with one supreme court sitting at the top and an array of inferior courts of original jurisdiction down below. What’s more, the Scottish judiciary operated within a constitutional framework - the so-called Acts of Union that combined England and Scotland into Great Britain in 1707 - that protected the role of the supreme court from legislative re-modeling.



This Article explores the influence of the Scottish judiciary on the language and structure of Article III. Scotland provided a model for a single “supream” court and multiple inferior courts, and it defined inferior courts as subordinate to, and subject to the supervisory oversight of, the sole supreme court. Moreover, the Acts of Union entrenched this hierarchical judicial system by limiting Parliament to “regulations” for the better administration of justice. Practice under this precursor to Article III’s Exceptions and Regulations Clause establishes that a supreme court’s supervisory authority over inferior courts would survive restrictions on its as-of-right appellate jurisdiction. The Scottish model thus provides important historical support for the scholarly claim that unity, supremacy, and inferiority in Article III operate as textual and structural limits on Congress’s jurisdiction-stripping authority.

Download the article from SSRN at the link.

Law and Culture In Israel

Zvi H. Triger, The College of Management Academic Studies (COMAS) School of Law, has published Law's Culture: Reflections on Menachem Mautner's Books on Law and Culture (Hebrew), at 32 Tel Aviv University Law Review 481 (2010). Here is the abstract.

This is a review essay on law and culture in Israel, which takes Menachem Mautner's two recently published books as its departure point for broad analysis of the tensions that characterize Israeli discourse on these issues.

Download the essay from SSRN at the link.

Defamation and Humor

Laura E. Little, Temple University School of Law, is publishing Just a Joke: Defamatory Humor and Incongruity's Promise, in volume 21 of the Southern California Interdisciplinary Law Journal (2011).  Here is the abstract.

Humor often arises as a defense in defamation actions, with defendants claiming that their challenged communication was "just a joke." Given the long established tie between defamation and First Amendment doctrines, United States courts evaluate the defense in light of free speech protections as well as reputational interests incorporated in the elements of the defamation tort. In grappling with humor, courts usually invoke First Amendment doctrine’s familiar distinction between fact and opinion. If a putative joke is sorted down the "opinion" chute, then the humorist faces no civil liability. If, on the other hand, the putative joke suggests false facts unfavorable to the plaintiff, the defendant may face liability. Useful as an analytical starting point, this fact/opinion dichotomy does not adequately integrate all the values and concerns that come into play where humor and defamation law collide.



Humor is complex, capable of both great good and enormous mischief. The challenge whether to provide legal protection for humorous communications implicates the same value clashes between freedom of expression and protection of reputational interests that appear in other defamation contexts. Yet humor’s potential for individual and collective benefit (as well as its capacity to cut deep wounds) suggests that courts should tailor analysis specifically to humor’s unique qualities. Happily, assistance comes from centuries of interdisciplinary scholarship dedicated to understanding humor. In particular, humor scholarship’s core concept - incongruity (the juxtaposition of two or more unlikely ideas) - helps to calibrate an optimal balance of First Amendment concerns and the values of human dignity, property, and honor in defamatory humor cases.



Assistance for United States courts also comes from an unlikely source - Australia. Australian cultural emphasis on humor and plain speaking as well as its lack of a formal First Amendment enables Australian case law to provide meaningful guidance both affirmatively and negatively, as a foil for identifying what analysis is not well suited to United States common law and constitutional traditions.

Download the article from SSRN at the link.

Call For Papers

From McGill University's IPLAI

International Conference on Arts, Ideas, and the Baroque


Hosted by the Institute for the Public Life of Arts and Ideas, McGill University

in collaboration with the Montréal Baroque Festival

24-26 June 2011



2011 Theme: Deadly Sins



CALL FOR PAPERS

This conference seeks to examine the ‘baroque’ in the early modern world as well as its echoes and resonances across time. Defined differently by different academic traditions, the notion of the baroque remains a point of reference as well as contention, and a signifier of cultural legacy as well as innovation – as in the notion of the ‘neo-baroque’. We propose to investigate the rich artefacts, representations, and influence of the era—particularly around the theme of Deadly Sins (also the theme of the 2011 Montréal Baroque Festival to be held in conjunction with this conference). We invite papers which address interdisciplinary scholarship and make new connections between research fields. Proposals from scholars working in all disciplines might address, but are not limited to, the following fields:





Musicology and Music Performance

Law and Legal History

Social and Cultural History

Literature

Architecture and Design

Theatre and Performance

Art History

Religious Studies

History of Science and Medicine

Philosophy





Proposals for complete panels as well as for individual papers in English or French are welcome. Researchers are invited to submit abstracts of no more than 250 words, and brief (2 page) cvs to: baroque@mcgill.ca. Deadline for submissions: 5 February 2011.

IPLAI is a new undertaking by McGill University’s Faculties of Arts, Education, Law, Management and Religious Studies and the Schools of Architecture and Music. Its goals are to foster collaborative, interdisciplinary scholarship and teaching in the humanities, to reinvigorate the place of humanities scholarship in public discourse, and to examine the life of ideas across time.

The Montreal Baroque Festival is a unique festival celebrating the creativity, expressiveness and inspiration of music-making in the seventeenth and eighteenth centuries. The chapels, crypts, chateaux, cafes, cellars, attics, gardens and streets of Old Montreal are brought to life with operas, oratorios, recitals, improvisations and jam sessions performed by an international roster of brilliant musicians.



Conference Registration Fee: $60 (faculty); $25 (students)

Online registration will open March 2011

http://www.mcgill.ca/iplai/
http://www.montrealbaroque.com