Law, Politics, Poland, and "High Noon"

Michal Kuz, Louisiana State University Department of Political Science, has published 'High Noon' and Polish Republican Symbolism in Relation to American Political Culture. Here is the abstract.

This paper examines the fate of certain Polish republican symbols and notions with reference to the American political culture. It focuses especially on the image of Gary Cooper from High Noon that became a widely recognized symbol of the first Polish free elections after World War II. The histories of modern Polish and American republicanisms are, however, intertwined since the very beginning of both traditions of political thought. Unfortunately, because of unfavorable geopolitical circumstances and internal turmoil Poles lost their first state. Hamilton wrote that due to its 'anarchy and weakness' Polish-Lithuanian Commonwealth was: 'unfit for self-government and self-defense' (Federalists 2001, 94). This anarchy, embodied by the liberum-veto rule, was, nevertheless, a corrupted form of political individualism that made Polish political culture so similar to the American one. In line with that tradition when in 1989 for the first time since World War II time Polish citizens voted in elections over which Moscow had no substantive influence, the pro-democratic Solidarity block used a picture of Garry Cooper from the film 'High Noon' on its posters. The sheriff, who wore a 'Solidarity' badge was; holding not a gun, but a folded ballot. 'July the 6th, 'High Noon' - said the slogan. The message was clear. It said that it is time for every citizen to make an individual decision about what he thinks is right and do so disregarding the multitude of those, who may want to oppose such a decision. Referring to that specific film suggested that even against the many, the cause of the democratic opposition would prevail. Indeed this approach may be deemed the positive 'liberum veto.'

Download the paper from SSRN at the link. 

A "Reverse CSI Effect"?

Mark Godsey, University of Cincinnati College of Law, and Marie Alou have published She Blinded Me with Science: Wrongful Convictions and the 'Reverse CSI-Effect' in volume 17 of Texas Wesleyan Law Review (2011). Here is the abstract.

Prosecutors in the United States are often heard to complain these days of the "CSI-effect.'' Jurors today, the theory goes, have become spoiled as a result of the proliferation of these "high-tech" forensic shows, and now unrealistically expect conclusive scientific proof of guilt before they will convict. What I have come to notice, however, is a different kind a reverberation from the CSI-type shows that I believe often hurts defendants and benefits the prosecution. While not reported or discussed in the popular media as is the "CSI Effect," the other side of the coin, which I will call the "Reverse CSI Effect:' may be more damaging to the criminal justice system and the interests of justice than the opposite impact of which prosecutors complain. The "Reverse CSI Effect," as I call it, can be stated as follows: while jurors may have come to expect, as a result of CSI-type shows, high-tech forensic testimony in criminal cases, and may inappropriately acquit when such evidence is lacking, these same jurors, as a result of these same CSI-type shows, often place too much weight on forensic evidence in cases where forensic evidence IS in fact produced by the prosecution, resulting in convictions in cases where the defendant probably should have been acquitted.

Download the article from SSRN at the link.

The Reception of the Code Napoleon In the German States

T. T. Arvind, University of York, York Law School, and Lindsay James Stirton, University of Sheffield Law School, have published Explaining the Reception of the Code Napoleon in Germany: A Fuzzy-Set Qualitative Comparative Analysis, at 30 Legal Studies 1 (2010). Here is the abstract.

This paper examines the diverse responses of the German states to the Code Napoleon at the beginning of the nineteenth century. These states differed both in the extent to which they adopted the Code, and the extent to which they retained the Code after Napoleon’s influence waned. In order to identify the causes of adoption and retention of the Code, we use fuzzy-set qualitative comparative analysis (fsQCA). This method is now well established in comparative research in the social sciences but has been little used in comparative legal analysis. We find the following to be among the conditions relevant to the reception of the Code: territorial diversity, control by Napoleon, central state institutions, a feudal economy and society, liberal (enlightened absolutist) rule, nativism among the governing elites and popular anti-French sentiment. The paper also serves to demonstrate the potential of fsQCA as a method for comparative lawyers.

The full text is not available from SSRN. 

Husbands, Wives, and Early Federalist Thought

Angela Fernandez, University of Toronto Faculty of Law, has published Tapping Reeve, Nathan Dane, and James Kent: Three Fading Federalists on Marital Unity. Here is the abstract.

Tapping Reeve wrote in his treatise on the law of husband and wife, Baron and Femme (1816), that husband and wife were not one person in law. His rejection of Blackstone’s maxim is not as well-known as it should be. Yet, his position was not idiosyncratic, as it was also adopted by Nathan Dane in his important General Abridgment and Digest of American Law (1823). However, James Kent did not follow it in his Commentaries on American Law (1826-30). This paper explores whether Dane’s agreement with Reeve in rebelling against marital unity was based on their New England background (Reeve lived in Connecticut and Dane in Massachusetts), which Kent (from New York) simply did not share. Reeve, Dane, and Kent were all “Fading Federalists,” using their legal expertise and their position as law book writers and law teachers as a way to continue to exert influence lost to them in the political world. They turned to the creation of an American common law as a way to continue to have influence on what America would become. Like Reeve, Dane was involved in various moral campaigns, including the temperance movement, which was an early kind of women’s movement. He was also religious like Reeve and against slavery -- according to some, Dane was responsible for the anti-slavery clause in the North West Ordinance. Kent was not interested in these causes or interests and, indeed, considered those who were to be fanatics or zealots. This helps explain why, when he wrote about married women he was inclined to choose the traditional English approach, Coke and Blackstone, over the indigenous position that jurists in New England were cultivating that sought to emphasize the rights of married women.

 Download the paper from SSRN at the link.

Don Quixote and Law

From Jose Calvo González, University of Malaga, the announcement of a conference at the Centro de Ciências Jurídicas, Universidade Federal de Santa Catarina (Florianópolis. Brazil), organized by Dr. Luis Carlos Cancellier de Olivo, and as part of the  de Pos-Graduação en Direito. The conference, "Seminar on Law and Literature," will take place from November 28 to December 2, 2011.  As part of the Conference, Professor Calvo  González will give a talk, "Don Quixote and Law." He will also deliver the closing lecture, "Puppetry and Law:  Sancho´s Justice and judgements in the puppet opera " VIDA DO GRANDE D. Quixote de la Mancha e do gordo Sancho Pança, by António José da Silva.(1705-1739)."

Crime On Display

Laura Huey, University of Western Ontario, has published Crime behind the glass: Exploring the sublime in crime at the Vienna Kriminalmuseum at 15 Theoretical Criminology 381 (November 2011). Here is the abstract.

Scholars have noted an ever-increasing growth in the number of crime-themed leisure and tourism venues. Within this article I examine one such site: the Vienna Kriminalmuseum. An analysis of this site provides an opportunity to explore how the ‘sublime in crime’ is presented to the Museum’s visitors in ways that intentionally merge the macabre with the educational. This presentation says much, I suggest, not only about the Museum’s goals, but about its intended audience, an audience seeking to be exposed to elements of the darkest side of humanity, now sanitized for wider public consumption through the union of educational and entertainment strategies.

Hat tip to NuT.

 

More On the Intersection of Bob Dylan and the Law

Another lawyer inspired by Bob Dylan's work: Philadelphia's Tom Kline. More here.

Upcoming Events

A wonderful list of upcoming conferences, workshops, and other events in the legal history area from Rechtgeschiedenis Blog.

The Poetry of (the) Law

John C. Kleefeld, University of Saskatchewan, College of Law, has published From Brouhahas to Brehon Laws: Poetic Impulse in the Law, at 4 Law and Humanities 21 (2010). Here is the abstract.

Over the ages and across the lands, poetry and the law have coming led in courtroom and classroom, debuted together in judicial decisions and dissents, and emerged as one in systems as diverse as the Courts of Equity and the law of the brehons - the poet-judges of ancient Ireland. Lyrical language and the poetic impulse have thus helped to inform, persuade, and advance the law. 

Under the literary conceit of a time travel, the author considers the persistence of poetry in law, addressing the artistic expression of devotees and the commentary of critics. Manifestations of the poetic impulse include poetry as ornament to legal argument, judgments written in poetic form (hence the brouhahas), and the use in law of metre, metaphor, imagination, ambiguity, alliteration, and rhyme. The role of poetry in legal education, from Coke's Reports in Verse to law school haiku, is also traversed. Accompany the author on his journey through the legal ages and hear his case for a continued, albeit cautious, role for poetry-in-law.

The Hanseatic League As a Functional Overlapping Competing Jurisdiction

Alexander Fink, University of Leipzig, has published The Hanseatic League and the Concept of Functional Overlapping Competing Jurisdictions. Here is the abstract.

In light of the concept of functional overlapping competing jurisdictions (FOCJ) discussed by Frey and Eichenberger (1996, 1999, 2000) I analyze the Hanseatic League; the medieval association of northern European traders and cities that existed from the 12th to the 17th century. I show that the Hanseatic League came close to representing an example of a FOCJ. But in contrast to the FOCJ outlined by Frey and Eichenberger, I find that the polycentric Hanseatic League was not a political authority with the power to tax and regulate its members. The arrangements between the members of the Hanseatic League therefore had to be self-enforcing. Building on my investigation of the Hanseatic League, I further provide a general discussion of the costs and benefits of a central political authority in a system of functional overlapping competing units.

Download the paper from SSRN at the link.

NPR's Three Books: Suggestions For Good Reading Help Clarify Connections Between Law and Society

NPR has started a new series, Three Books, in which commentators share a personal story or discuss an issue of interest to them and then recommend three books that carry on the theme. In his essay, NPR's Tony D'Souza reflects on the divergent career paths he and a childhood acquaintance have taken and suggests examining these crime novels for a more nuanced understanding of the interaction of crime and society. More from the NPR series Three Books here, from Bruce Machart, who discusses a friend's encounter with the legal system after a family tragedy, and asks why we gobble up novels about murder, and here, from Lisa Tucker, who talks about Hallowe'en and fall.

Even more Three Books selections here.

Bram Stoker's Journal To Be Published

A "bloody good" (or a "bloody" good) story for Hallowe'en: the discovery of author Bram Stoker's journal on his descendant's Isle of Wight bookshelf. Noel Dobbs didn't know what he had until someone doing research contacted him to ask if he might have some information about Stoker's journal. Mr. Dobbs checked, and found the slim volume. Another relative, great-grand nephew Dacre Stoker, who resurrected a Bram Stoker novel called Dracula: The Un-Dead (due out next year) will also help publish the journal. The Lost Journal will also appear next year, the 100th anniversary of the death of Dracula's author.

Indigenous Peoples and the Protection of Intellectual Property: The Case of the Zia

Stephanie B. Turner, Yale Law School, is publishing The Case of the Zia: Moving Beyond Intellectual Property Laws To Protect Cultural Rights, in the Chicago-Kent Journal of Intellectual Property. Here is the abstract.

This Article focuses on an ongoing dispute in trademark law: the case of the Zia. Located near Albuquerque, New Mexico, this Native American pueblo has been using its sacred sun symbol in religious ceremonies since 1200 C.E. The symbol now appears on the New Mexico State flag, letterhead, and license plate, and on commercial products ranging from chemical fertilizers to portable toilets. The tribe claims that the State appropriated the symbol without permission in 1925, and that the continued use of the symbol by various parties dilutes its sacred meaning and disparages the tribe in violation of Section 2(a) of the Trademark Act. This Article tells the Zia story, focusing on the harms the tribe faces when others appropriate its symbol and the possible solutions. It concludes by suggesting that indigenous groups like the Zia should move beyond intellectual property laws in the fight to protect their cultural rights.

Download the article from SSRN at the link.

Law, Narrative, and Health Care

Kenneth D. Chestek, Indiana University School of Law (Indianapolis) has published Competing Stories: A Case Study of the Role of Narrative Reasoning in Judicial Decisions. Here is the abstract.

Within minutes after President Obama signed into law the Patient Protection and Affordable Care Act (derisively referred to by some as the “Obamacare” law), the lawsuits started flying. Literally dozens of suits were filed all across the country. Some were frivolous, but many others raised serious issues of federalism and the reach of Congress’ power under the Commerce Clause.

Of the initial spate of lawsuits, ultimately five were decided by various trial courts on the merits of the Commerce Clause issue. Three judges found the law constitutional, and two others found it unconstitutional. But since the issue is almost purely a question of law (it is the same Commerce Clause and the same body of Supreme Court precedent interpreting it in all five cases), the question arises: why did these cases come out differently?

The mainstream media has seized upon a political explanation: the three judges who found the law constitutional were appointed by Democratic Presidents, while the two judges who found the law unconstitutional were appointed by Republican Presidents. This article challenges that assumption, and suggests a more nuanced explanation: each of the plaintiffs in these cases had different stories to tell. The article explores narrative reasoning (defined as norm-based thinking instead of pure rule-based reasoning) as a possible explanation for the divergent results in these cases.

Download the paper from SSRN at the link.

Legal Theory and Judge-Made Law In England

Michael Lobban has published Legal Theory and Judge-Made Law in England, 1850-1920 as Queen Mary School of Law Legal Studies Research Paper No. 91/2011. Here is the abstract.

Many nineteenth century jurists agreed that John Austin’s separation of the spheres of law and morality lay the foundations for a scientific analysis of law. However, they remained uneasy with his definition of law as the command of a sovereign, preferring to speak of rules enforced by the state. The jurists who succeeded Austin strove to analyze law in terms of rules enforced by the state, and used Austin’s tools to put order to the mass of common law materials. However, when it came to discussing how judges should develop the law, they continued to defend the interpretive approach distinctive of the common law tradition. Rather than identifying rules, this entailed applying principles found in older case law to new situations and thereby adapting the law to the changing needs of the community. Consequently, jurists who found Austin’s strict separation of law and morality a useful tool for analysis continued to feel that the interpretative work done by the judges needed to take into account the moral needs of the community, and numerous jurists argued explicitly for a connection between law and morality.

In the debates over codification of the 1860s, many judges and jurists who admired the analytical method which allowed them to make sense of a mass of legal materials resisted the aspiration to put all common law into rules. They explicitly defended the common law as a system of principles. In their view, the problems caused by the proliferation of case law resulted from judges looking to find a rule from every reported case, rather than looking to principles. They therefore argued that efforts should be made to digest the principles of the common law, which would allow the law to continue to develop flexibly by reasoning at case level. In response, a number of analytical jurists argued that if the common law could be seen to generate series of authoritative propositions, they could be codified into rules. For them, a digest was a mere preparatory to a code, where judges would apply and not make law. They specifically linked the analytical project, premised on the separation of law and morality, with the codification project. However, by the 1870s, jurists like J.F. Stephen began to separate the codification project from the analytical one. Instead of needing to find an ideal analytical model, Stephen argued, different areas of law could be codified for convenience. By the end of the century, those who argued for codification no longer felt that it would curtail the role of the judge in developing the law in an interpretive way. 

The article ends by briefly looking at three jurists who accepted Austin’s analytical models, while rejecting (in various degrees) his arguments on the separation of law and morals. William Markby, John Salmond and W. Jethro Brown all argued that legal and moral norms were related, if distinct, and that judges were to look to moral sources, including the moral needs of the community, on developing the law.

Looking Back at "Buck v. Bell"

Edward Larson, Pepperdine University School of Law, has published Putting Buck v. Bell in Scientific and Historical Context in volume 39 of the Pepperdine Law Review (2011). Here is the abstract.

In this article written for a law-review symposium in response to a presentation on the infamous 1927 U.S. Supreme Court opinion in Buck v. Bell, Edward J. Larson argues that, at the time that the case was decided, eugenics was on the incline, not the decline. In the 1920s, the American scientific and medical community broadly backed eugenic remedies for various forms of mental illness and retardation. Legislatures, lawyers, and jurists took their cue from this scientific and medical consensus. Absent any question that the statute at issue in Buck v. Bell was validly passed by the Virginia legislature or that due process was provided for the persons subject to its reach, the law should have withstood constitutional challenge. The tragedy of Buck v. Bell, Larson argues, was that Carrie Buck never received the due process guaranteed under Virginia’s eugenic sterilization statute and that neither her lawyers nor the courts protected her from a flagrant violation of her basic constitutional and statutory rights. Under the fact that should have been brought out at trial, Carrie Buck would not have been sterilized. More fundamentally, had due process been provided in this and other instances, while eugenics would still have been a scientific and medical mistake, it would not be a legal one.

Download the article from SSRN at the link.

Shakespeare and War Crimes Trials

Will Fitzgibbon, Australian National University College of Law, has published Visions of Justice: Shakespeare and Duch’s Proposed ‘Return to Humanity’. Here is the abstract.

Completed in the first half of 2010, this thesis received a First Class and was supervised by Professor Margaret Thornton. This article provides an analysis of the story and the trial of the Khmer Rouge official, Kaing Geuk Eav, alias Duch, in the Extraordinary Chambers in the Courts of Cambodia (ECCC) through a Shakespearean lens – particularly drawing upon three plays; The Winter’s Tale, Coriolanus, and Richard III. Duch’s Defence Counsel Mr Francois Roux contended that the real question of Duch’s trial was whether ‘the hearings would allow one who has exited from humanity to return to humanity’. Using Shakespearean exempla, the essay examines the persuasiveness of Duch and his Defence team in its effort to have Duch ‘return to humanity’. This article first details Duch’s life and crimes. In what follows, this article analyses through a Shakespearean lens strengths and weaknesses of the Defence’s appeal for Duch’s ‘return to humanity’ in light of his alleged recognition of guilty and expression of remorse.

Download the thesis from SSRN at the link. 

William Shakespeare: Genius or Stand-In

Do filmgoers care about a movie's historical accuracy? Does an audience take the plot of a docudrama "based on historical events" literally? The Guardian has asked its readers just this question in the case of the new film Anonymous, which takes the position that someone other than William Shakespeare wrote Shakespeare.

Candidates and alternative theories abound. Did Francis Bacon actually write the plays and poems? Christopher Marlowe? The Earl of Essex? Sir Walter Raleigh? The Earl of Derby? Steven Dutch surveys some of the candidates and theories here; James Shapiro in his recent book Contested Will discusses the issue at length.  Schools and institutions have sponsored symposia on the subject. Frontline presented a program on the authorship of the plays. Even Justice Stevens offers an opinion.  His pick is the Earl of Oxford.

If you can't decide, you can take a fallback position on the question of who wrote Shakespeare's works. William Shakespeare.

Bibliography:

James Shapiro, Contested Will: Who Wrote Shakespeare (Simon and Shuster, 2010).

Symposium: Who Wrote Shakespeare: An Evidentiary Puzzle  72 Tenn. L. Rev 1 (Fall 2004).

VARA and Moral Rights

Nathan M. Davis has published As Good As New: Conserving Artwork and the Destruction of Moral Rights  in volume 29 of the Cardozo Arts & Entertainment Law Journal (2011). Here is the abstract.

American legal protections afforded to artists with respect to their own works are so narrowly focused, and the statutory language so loosely defined, that it is not clear whether certain measures to conserve artworks may have the counterintuitive, adverse effects of depriving artists of the protections contemplated in the Visual Artists Rights Act of 1990 (VARA). This Note explores problem areas in the nexus of conserving works of art and VARA jurisprudence, arguing that the statute’s narrow scope confers inconsistent and unpredictable protections over artworks such that the ever-evolving best practices of arts professionals — those who work to conserve artworks or otherwise play a stewardship role for artists’ creations — may indiscriminately jeopardize artists’ rights in their works.
Part I presents an overview of VARA from a practical perspective, contrasting the expansive scope of visual artistic media over the last one hundred years with the restrictive designations of moral rights protections, demonstrating a philosophical gap between the statute and the artworks it was designed to protect. Part II addresses the statute’s case law, which casts a divide between VARA’s application and the practical scenarios that arts professionals encounter in preserving artworks, examining two cases: Flack v. Friends of Queen Catherine and Board of Managers of SoHo International Arts Condominium v. City of New York (Board IV). Lastly, Part III suggests an amendment to VARA in order to effectuate its purpose when applied to common conservation practices and puts forward a set of guidelines for arts professionals to reduce the likelihood that conserving an artwork could jeopardize artist rights in it or otherwise run afoul of VARA’s protections.

Download the article from SSRN at the link.

The Writer and the Law

John James Berry, Barry University School of Law, has published The Law, The Writer and The Work: How an Author's Interaction with the Legal System Impacts His Writing. Here is the abstract.

By tracing the lives led by four famous authors and exploring the societies which produced them, this article will show how law affects literature in ways that many readers may not notice. Rather than explore what was expressed by the author, this work will examine the affect the background of the author has on the tone of the works of literature which they produce, the affect the law and their culture's legal system had on their background, and how the characteristics of the cultures and authors reflect the characteristics of the governing legal system. Ultimately, this piece shows that, rather than a society's legal system reflecting its' underlying culture, the power of the law has the ability to shape the culture which it is supposed to serve.

Download the paper from SSRN at the link.

Amazing Guys In "Suits"

Math professor and guest blogger Ed Aboufadel explains the math behind an amazing client save on the show "Suits."

Part 2 here.

Copyright In Shakespeare's Works

Jeffrey M. Gaba, Southern Methodist School of Law, has published Copyrighting Shakespeare: Jacob Tonson, Eighteenth Century English Copyright, and the Birth of Shakespeare Scholarship. Here is the abstract.

In 1709, Jacob Tonson, the premier publisher of his age, purchased the “copyright” to Shakespeare. Tonson and his family over the next fifty years went on to publish some of the most significant editions of the collected works of Shakespeare, edited by the likes of Nicholas Rowe, Alexander Pope and Samuel Johnson. In many ways, the Tonsons were responsible for the growth of Shakespeare’s popularity and the critical study of his work. 

This article discusses the significance of copyright to the Tonsons’ publication decisions. It suggests that the Tonson copyright did not significantly “encourage” their contributions to Shakespeare scholarship. First, Jacob Tonson could not have relied on statutory copyright for protection of his seminal 1709 Rowe edition. Tonson, quite simply, did hold the copyrights at that point, and the Statute of Anne had not yet been introduced, let alone passed, by Parliament. Second, the Tonsons’ publication of later editions would not, as some have asserted, have perpetuated any common law or statutory copyright claim Tonson might have to the works of Shakespeare. Third, although the textual notes and comments contributed by his editors may have been copyrighted, most of the significant editorial contributions to Shakespeare scholarship would not themselves have been subject to copyright protection. Selection of plays in the legitimate Shakespeare canon, for example, and selection of the appropriate text from earlier quarto and Folio editions would not have been subject to copyright protection. Fourth, the expansion of public access to cheaper, more widely available editions of the Shakespeare plays arose in spite of, rather than because of, copyright protections. It was a challenge by a book “pirate” that caused the Tonsons, not to seek legal protection through their claimed copyright, but to flood the market with their own cheap editions of the plays. 

Finally, the article suggests a reason why the Tonsons, whose name appears as plaintiff in many of the early copyright cases, never sought to litigate their claim to a copyright in Shakespeare. Simply put, litigating a claim to copyright in Shakespeare would have been a poor “test case” to secure what the Bookseller’s sought at that time – a perpetual common law copyright based on the natural rights of authors. 

This article suggests that copyright issues, although certainly important, were ancillary to the Tonsons’ publication decisions. Market forces, the protections from competition afforded by a Bookseller cartel, and a respect for Shakespeare’s works, more than copyright protections, appeared to drive the Tonsons’ actions and therefore the growth of Shakespeare scholarship.

Download the paper from SSRN at the link. 

Fielding a Story: Tracking Down an Anecdote About David Dudley Field

Ross E. Davies, George Mason School of Law, has published The Judiciary Funded: The Generosity of David Dudley Field at 14 The Green Bag 2d 433 (Summer 2011). Here is the abstract.

In mid-1894, shortly after the death of David Dudley Field (one of the most powerful and famous, and least-loved, American lawyers of the 19th century), lawyer-journalist Irving Browne published an implausibly laudatory anecdote about Field, based on a letter in which Field claimed to have engaged in a longstanding act of secret philanthropy that was wholly out of character. An experienced observer of public affairs in 1894, or in 2011, surely could be forgiven for doubting the veracity of such a self-serving, out-of-character story, told only posthumously by a friendly journalist, and with no evidence to back it up. The Gilded Age was, after all, a time when politicians and power-mongers like Field could rely on select reporters and editors to serve as virtual publicists – mixing innuendo with truths, half-truths, and non-truths (often supplied by unidentified sources) in news stories that boosted their favorites. Neither Browne nor anyone else seems to have made any effort to verify Field’s story, even though there were seemingly easy ways to do so. It is perhaps for those reasons that Browne’s parable of the secretly saintly David Dudley Field, revealed only post-mortem in all the glory of his selfless kindness and generosity, was largely ignored at the time and has been ever since. But the story is true, or true at least as to Field’s initial generosity. And there is evidence to back it up.

Download the article from SSRN at the link.

A Bibliography of Derrick Bell's Works

As promised, a bibliography of Derrick Bell's books and articles, prepared by Kevin Baggett, Circulation Librarian at the LSU Law Center Library. Posted with permission.

Derrick A. Bell Bibliography

Books

1. Faces at the Bottom of the Well: The Permanence of Racism. New York, NY: Basic Books, 1992

2. Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform. Oxford; New York: Oxford University Press, 2004.

3. And We Are Not Saved: The Elusive Quest for Racial Justice. New York: Basic Books, 1987.

4. Confronting Authority: Reflections of an Ardent Protester. Boston: Beacon Press, 1994.

5. Shades of Brown: New Perspectives on School Desegregation. New York: Teachers College Press, Columbia University, 1980.

6. The Age of Segregation: Race Relations in the South, 1890-1945: Essays (Co-author Robert J. Haws). Jackson: University Press of Mississippi, 1978.

7. Ethical Ambition: Living a Life of Meaning and Worth. New York: Bloomsbury: Distributed by Holtzbrinck Publishers, 2002.

8. Gospel Choirs: Psalms of Survival for an Alien Land Called Home. New York. NY: Basic Books, 1996.

9. Afrolantica Legacies. Chicago: Third World Press, 1998.

10. Race, Racism, and American Law. Boston, Little, Brown, 1973.

11. The Derrick Bell Reader (Co-authors Richard Delgado, Jean Stefancic). New York: New York University Press, 2005.

12. Civil Rights – Leading Cases. Boston: Little, Brown, 1980.

13. And We Are Not Saved: The Elusive Quest for Racial Justice. New York, Basic Books, 1989.

14. Constitutional Conflicts: Cincinnati: Anderson Pub. Co., 1997.

15. Faces at the Bottom of the Well: The Permanence of Racism. New York, NY: Basic Books, 1992.

16. Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform. Oxford; New York: Oxford University Press, 2004.

17. And we are Not Saved: The Elusive Quest for Racial Justice. New York, Basic Books, 1987.

18. Confronting Authority: Reflections of an Ardent Protester. Boston: Beacon Press, 1994.

19. Shades of Brown: New Perspectives on School Desegregation. New York: Teachers College Press, Columbia University, 1980.

20. The Age of Segregation: Race Relations in the South, 1890-1945: Essays (Co-author Robert J. Haws). Jackson: University Press of Mississippi, 1978.

21. Ethical Ambition: Living a Life of Meaning and Worth. New York: Bloomsbury: Distributed by Holtzbrinck Publishers, 2002.

22. Gospel Choirs: Psalms of Survival for an Alien Land Called Home. New York. NY: Basic Books, 1996.

23. Afrolantica Legacies. Chicago: Third World Press, 1998.

24. Race, Racism, and American Law. Boston, Little, Brown, 1973.

25. Civil Rights – Leading Cases. Boston: Little, Brown, 1980.

26. Constitutional Conflicts: Cincinnati: Anderson Pub. Co., 1997.

27. When Race Becomes Real: Black and White Writers Confront Their Personal Histories (Co-Author Bernestine Singley). Chicago, Ill.: Lawrence Hill; Lancaster: Gazelle, 2004.

28. Civil Rights in 2004: Where Will We Be? College Park, Md.: Center for Philosophy and Public Policy, 1985.

29. The African American Law School Survival Guide: Information, Advice, and Strategies to Prepare You for the Challenges of the Law School Experience (Co-author Evangeline M. Mitchell). Houston, Tex.: Hope’s Promise Pub., 2006.

30. Ask Your Mama; 12 Moods for Jazz (Co authors Langston Hughes, Arnold Rampersad, and others). New York: Alfred A. Knopf, Art Farm West, 2009, 1961.

31. In Defense of Minority Admissions Programs: A Response to Professor Graglia (co-author Lino A. Graglia). Philadelphia, 1970.

Articles

Bell, Derrick A., Jr.. 2007. "A Prophesy for Effective Schooling in an Uncaring World." Boston College Third World Law Journal 27, no. 1: 1-12.

Bell, Derrick A.. 2004. "The Unintended Lessons in Brown v. Board of Education." New York Law School Law Review 49, no. 4: 1053-67.

Bell, Derrick A.. 2000. "Wanted: a white leader able to free whites of racism.." U.C. Davis Law Review 33, no. 3: 527-44.


Bell, Derrick A.. 2000. "Brown v. Board of Education {74 S. Ct. 686 (1954)}: forty-five years after the fact." Ohio Northern University Law Review 26, no. 2: 171-81.

Bell, Derrick A.. 1999. "“Here come de judge”: the role of faith in progressive decision-making." The Hastings Law Journal 51, no. 1: 1-16.

Bell, Derrick A.. 1999. "A colony at risk." Touro Law Review 15, no. 2: 347-9.

Bell, Derrick A.. 1999. "The power of narrative." Legal Studies Forum 23, no. 3: 315-48.

Bell, Derrick A.. 1999. "Getting beyond a property right in race." Washington University Journal of Law and Policy 1: 27-36.

Bell, Derrick A.. 1998. "Constitutional conflicts: the perils and rewards of pioneering in the law school classroom." Seattle University Law Review 21, no. 4: 1039-51.

Bell, Derrick A.. 1997. "California's Proposition 209: a temporary diversion on the road to racial disaster." Loyola of Los Angeles Law Review 30: 1447-64.

Bell, Derrick A.. 1997. "A gift of unrequited justice." Howard Law Journal 40, no. 2: 305-13.

Bell, Derrick A.. 1996. "Racial libel as American ritual." Washburn Law Journal 36: 1-17.

Bell, Derrick A.. 1996. "A pre-memorial message on law school teaching." New York University Review of Law and Social Change 23, no. 2: 205-15.

Bell, Derrick A.. 1995. "Black history and America's future." Valparaiso University Law Review 29: 1179-91.

Bell, Derrick A.. 1995. "1995 commencement address—Howard University School of Law." Howard Law Journal 38: 463-71.

Bell, Derrick A.. 1995. "The triumph in challenge." Maryland Law Review 54: 1691-9.

Bell, Derrick A.. 1995. "Who's afraid of critical race theory?." University of Illinois Law Review 1995: 893-910.

Bell, Derrick A. and Linda Singer. 1993. "Making a record." Connecticut Law Review 26: 265-84.

Bell, Derrick A.. 1993. "Diversity and academic freedom." Journal of Legal Education 43: 371-9.

Bell, Derrick A. and Erin Edmonds. 1993. "Students as teachers, teachers as learners." Michigan Law Review 91: 2025-52.

Bell, Derrick A.. 1993. "The racism is permanent thesis: courageous revelation or unconscious denial of racial genocide." Capital University Law Review 22: 571-87.

Bell, Derrick A.. 1993. "An epistolary exploration for a Thurgood Marshall biography." Southern University Law Review 20: 83-105.

Bell, Derrick A.. 1993. "Political reality testing: 1993." Fordham Law Review 61: 1033-43.

Bell, Derrick A.. 1993. "Learning the three “I's” of America's slave heritage." Chicago-Kent Law Review 68: 1037-49.

Bell, Derrick A.. 1993. "The permanence of racism." Southwestern University Law Review 22: 1103-13.

Bell, Derrick A.. 1992. "The Racial Preference Licensing Act. A fable about the politics of hate." American Bar Association Journal 78: 50-5.

Bell, Derrick A.. 1992. "Racial realism." Connecticut Law Review 24: 363-79.

Bell, Derrick A.. 1992. "Reconstruction's racial realities." Rutgers Law Journal 23: 261-70

Bell, Derrick A.. 1991. "Racism is here to stay: now what?." Howard Law Journal 35: 79-93.

Bell, Derrick A.. 1991. "Foreword: the final Civil Rights Act." California Law Review 79: 597-611.

Bell, Derrick A., Tracy Higgins and Sung-Hee Suh. 1990. "Racial reflections: dialogues in the direction of liberation." UCLA Law Review 37: 1037-100.

Bell, Derrick A.. 1990. "After we're gone: prudent speculations on America in a post-racial epoch." Saint Louis University Law Journal 34: 393-405.

Bell, Derrick A.. 1989. "Racism: a prophecy for the year 2000." Rutgers Law Review 42: 93-108.


Bell, Derrick A.. 1989. "Xerces and the affirmative action mystique." The George Washington Law Review 57: 1595-613.

Bell, Derrick A.. 1989. "The final report: Harvard's affirmative action allegory." Michigan Law Review 87: 2382-410.


Bell, Derrick A.. 1988. "White superiority in America: its legal legacy, its economic costs." Villanova Law Review 33: 767-79.

Bell, Derrick A.. 1988. "The republican revival and racial politics." The Yale Law Journal 97: 1609-21.

Bell, Derrick A.. 1988. "The constitution at 200: reflections on the past—implications for the future." New York Law School Journal of Human Rights 5: 331-44.

Bell, Derrick A.. 1986. "The dilemma of the responsible law reform lawyer in the post-free enterprise era." Law & Inequality 4: 231-43.

Bell, Derrick A.. 1986. "Strangers in academic paradise: law teachers of color in still white schools." University of San Francisco Law Review 20: 385-95.

Bell, Derrick A.. 1986. "Application of the “tipping point” principle to law faculty hiring policies." Nova Law Journal 10: 319-27.

Bell, Derrick A.. 1985. "The Supreme Court, 1984 term—foreword: the civil rights chronicles." Harvard Law Review 99: 4-83.

Bell, Derrick A.. 1984. "An American fairy tale: the income-related neutralization of race law precedent." Suffolk University Law Review 18: 331-45.


Bell, Derrick A.. 1984. "A tragedy of timing." Harvard Civil Rights-Civil Liberties Law Review 19: 277-9.

Bell, Derrick A.. 1984. "A holiday for Dr. King: the significance of symbols in the black freedom struggle." U.C. Davis Law Review 17: 433-44.

Bell, Derrick A., Alan Freeman, Monroe Fordham and Sidney Willhelm. 1984. "A hurdle too high: class-based roadblocks to racial remediation: a panel." Buffalo Law Review 33: 1-34.

Bell, Derrick A.. 1983. "A school desegregation post-mortem." Texas Law Review 62: 175-90.

Bell, Derrick A.. 1981. "Private clubs and public judges: a nonsubstantive debate about symbols." Texas Law Review 59: 733-54.

Freeman, Alan, Derrick A. Bell and Henry McGee. 1981. "Race, class, and the contradictions of affirmative action." The Black Law Journal 7: 270-89.

Bell, Derrick A.. 1981. "Law school exams and minority-group students." The Black Law Journal 7: 304-13.

The History of the Full Faith and Credit Clause

Charles M. Yablon, Cardozo School of Law, has published Madison's Full Faith and Credit Clause: A Historical Analysis at 33 Cardozo Law Review 125 (2011). Here is the abstract.

The Defense of Marriage Act (DOMA) has created a new wave of interest in the Full Faith and Credit Clause and its apparent contradictions. Important recent scholarship has shown that American lawyers in the eighteenth century often viewed the term “full faith and credit” as referring to an evidentiary rule. This interpretation ameliorates, but does not actually resolve, the apparent conflict between the first sentence of the Clause, which seems to create a mandatory rule of sister state deference, and the second sentence of the Clause, which seems to give Congress plenary power to abrogate that rule. Rather than seek a chimerical general understanding of the Clause, this Article focuses on James Madison to provide a new and strikingly different historical account of the creation of the Full Faith and Credit Clause. It shows how the Full Faith and Credit Clause was part of a broader plan by Madison and others to curb the ability of states to take acts that were harmful to one another and to the nation, particularly those which, by interfering with vested contract and property rights, jeopardized the country’s economic well-being. Madison purposely sought a Clause that would embody a vague but dynamic deference obligation that could be increased by Congress over time.


Madison’s actions and writings regarding the Full Faith and Credit Clause strongly suggest that he would have considered congressional actions to weaken or abrogate existing deference obligations not just unwise and unjust, but unconstitutional. Unlike powers which appropriately belonged to the federal legislature irrespective of how they were exercised, Madison’s justification for the powers granted under the second sentence of the Clause was based on how Madison expected those powers to be used, namely, to “provide for the harmony and proper intercourse among the states.” What emerges from this analysis is a picture of the Full Faith and Credit Clause that has significant similarities to the “one way ratchet” interpretation which has been used to argue that the DOMA is unconstitutional, but one in which the presumed constraints on congressional action are the product of national interest, political virtue, and natural law as well as the language of the Full Faith and Credit Clause.

Download the article from SSRN at the link.

Are We In Kansas? Free Love and the Right of Privacy In State v. Walker

Charles J. Reid, Jr., University of St. Thomas School of Law (Minnesota) has published The Devil Comes to Kansas: A Story of Free Love and the Law as University of St. Thomas Legal Studies Research Paper No. 11-26.

State v. Walker (1887) is an important but hitherto neglected landmark case in the development of the right of privacy. The case involved the "autonomistic" or "free-love" marriage of Edwin C. Walker and Lillian Harman, daughter of Moses Harman, the radical newspaperman.

Edwin and Lillian, who rejected state control over marriage, proclaimed themselves married in the fall of 1887, although they declared that their union was neither permanent or exclusive. Prosecuted for illegal cohabitation because of their refusal to obtain a marriage license, they and their defenders developed a vocabulary that would profoundly influence the future path of American law.

Their supporters in the radical press began to speak of the right of women to control their own bodies, woman's right to reproductive autonomy, and a right of sexual privacy. Indeed, it was in the midst of this controversy that the expression "freedom of choice" was used, probably for the first time, in its modern meaning by Lillian Harman writing from prison.

The Kansas Supreme Court, which ruled on the appeal of their convictions, was, in contrast, a deeply conservative and Christian group of men who were publicly known for their religious fidelity and who brought their religious feelings to bear in the case.

Thanks to the survival of both a substantial body of newspapers and the personal papers of the three justices who ruled on the appeal, it is possible to reconstruct a vivid account of this first skirmish in the American culture wars.

Download the paper from SSRN at the link.

Faulkner On Voting Rights

Joel Heller has published Faulkner’s Voting Rights Act: The Sound and Fury of Section Five. Here is the abstract.

In its most recent examination of the Voting Rights Act, the Supreme Court told a story about the South. Although the Court ultimately did not rule on the continued constitutionality of § 5, the VRA provision that singles out certain jurisdictions with a history of racially discriminatory voting practices for additional regulation, its opinion expressed significant doubt that the measure was still justified. In this tale of progress and redemption, the Court concluded that “things have changed in the South.”
One body of commentary that was not considered in this story was the region’s literature. Yet many of these works, in particular the novels of William Faulkner, address some of the same thematic and sociological concerns that animate § 5. Specifically, Faulkner’s novels explore the power of memory in the South and the ongoing influence of the past on present actions and attitudes. In his depiction of the burden of memory, Faulkner suggests a distinct role for § 5 that policymakers and commentators should consider in the debate over its continued necessity. Rather than punishing the sons for the sins of the fathers, the provision can be seen as targeting the independent concern of a past-haunted society and the uncertain results which the unchecked power of memory can produce in the present.
This Article explores how Faulkner’s novels can contribute to a better understanding of the role § 5 serves in the modern South and thus inform the debate over whether the law remains constitutional. In doing so, it also considers the role literature can play in legal analysis beyond the uses typically identified by the law and literature movement.

Download the paper from SSRN at the link. 

Enter, Pursued By Student Loans

William A. Chamberlain, assistant dean, Law Career Strategy and Advancement, Northwestern University School of Law, discusses how acting skills can rev up that job search for young attorneys.

Life upon the wicked stage  

Ain't ever what a girl supposes/

Stage door Johnnies aren't raging

Over you with gems and roses/

When you let a feller hold your hand 

(Which means an extra beer or sandwich)

Eve'rybody whispers:  'Ain't her life a whirl?'/

Though you're warned against a roue'  

Ruining your reputation/

I have  played around the  one-night  trade 

Around a great big nation/

Wild old  men who give jewels and sables 

Only live in Aesop's Fables/

Life upon the wicked stage

Ain't nothing for a girl.

"Life Upon the Wicked Stage", Showboat

Jerome Kern/Oscar Hammerstein II (1927)

Nineteenth-Century Contract Law

Anat Rosenberg, Radzyner School of Law, Interdisciplinary Center Herzliya, has published Classical Contract Law, Past and Present. Here is the abstract.

This paper synthesizes and refocuses a wide range of histories of nineteenth-century contract law. It shows how despite significant controversies among historians, a widely shared consensus has it that nineteenth-century contract law embodied an elaborate version of individualism; that the alternatives to its individualism were status and collectivism - but they functioned as external critiques until well into the twentieth century if not ever since, and so left contract's conceptual link with individualism intact; and that the individualism grounded in contract law was in keeping with the individualism of its age. 

The consensus effectively entrenches a questionable historical artifact: the idea of a single meaning of contract at the decisive era for modern contract law's development. This idea's persistence bears implications for present thought as it negotiates visions of contract, and as it explores law's constitutive effects on social consciousness.

Latin in the Law

Teodor Sambrian has published Interpreting Law from the Roman Concept Interpretation to Modern Interpreting, Through the Adages of Juridical Latin in volume 5 of the Romanian Review of Private Law (2011). Here is the abstract.

The work is divided into six sections. In the preliminaries, we precise the sense of certain terms and we enumerate the most frequently used Latin adages that Romanian authors do mention while interpreting law. In the second and third sections, we do discuss the main causes which brought as necessary the development of interpreting law as an institution. The interpreting forms employed in Roman law are evoked. We do approach the methods used for interpreting law (in the fourth section) and we propose the substitution of the designation as "grammatical interpreting" by the designation: "linguistical interpreting", understood as an aggregate of procedures used for analysis – in etymology, semantics and grammar – in order to elucidate the sense of a normative or juridical act. The fifth section, the most extended one, is dedicated to the Roman principles and rules applied in order to interpret law, and to the way through which they were transferred, through juridical Latin, into Romanian law. This process involves as well legislation by itself and the great juridical tomes of doctrine. In the sixth section, where conclusions are drawn, we do launch the proposal of elaborating a dictionary of juridical Latin, which ought to be more panoramic than the dictionaries of this kind published in Romania until now, and which should contain, inter alia, all the Latin words, phrases, adages and quoted passages which should be relevant, as they are actually used by Romanian works in private and public law.

The full text is not available from SSRN.

Trials In the News

Commenting on the popularity of high profile trials, including those of Casey Anthony, Amanda Knox, and Conrad Murray, CNN offers a list of its top five courtroom dramas.

The Future of Law Librarianship

Robert C. Berring, University of California, Berkeley, School of Law, has published The End of Scholarly Bibliography: Reconceptualizing Law Librarianship. Here is the abstract.

The dawning of the age of digital information shifts the paradigm of the traditional scholar librarian. As three dimensional representations of information wither away, [t]he scholarly legal bibliographer, a fixture in legal academia is devolving into an antiquarian. This brings into question the future of academic law librarianship and how it can be saved.

Download the paper from SSRN at the link.

A Giant Passes From the Scene

Derrick Bell, the first tenured African-American professor at Harvard Law School, died Wedneday at the age of 80. According to this article, published today in the New York Times, Professor Bell suffered from carcenoid cancer. Professor Bell also taught at New York University Law School and was Dean of the University of Oregon Law School. Early on, Professor Bell espoused the use of narrative and allegory to explain the workings of law and he became one of the founders of the critical race studies movement. His contributions are many, and he will be missed.


More here from The Root, here from National Visionary Leadership Project.

I will post a bibliography of Professor Bell's works sometime in the next few days.

Musical Rhetoric in Legal Language

Ian Gallacher, Syracuse University College of Law, has published The Count's Dilemma, or, Harmony and Dissonance in Legal Language in Legal Communication & Rhetoric, no. 9 (2012). Here is the abstract.

Lawyers have had a long, but ambivalent, relationship with metaphor. Viewed by some as a mere literary device, a trick of language that "adds little of substance to an argument," metaphor is seen by others as an essential component of legal language, a rhetorical device inseparable from thought. On one thing, though, all can agree: lawyers only have words to express their thoughts, so they have an obligation to use words, whether used metaphorically or not, as exactly as possible. 

This article offers a critique of the way lawyers meet this obligation when they use metaphors based in musical language. In particular, the article examines the ways in which the musical term "harmony" is used as a metaphor to explain the nature of the relationship between disparate elements of the law and concludes that the metaphor fails to convey its intended meaning. In order to reach this conclusion, the article explores the meaning of "harmony" in music and then shows how the musical and assumed legal usages diverge, making "harmony" an inexact metaphor for lawyers to use. Although recognizing that "harmony" will likely continue to be used, the article proposes "tonality" as a better, more precise, alternative musical term for lawyers to use.

Download the article from SSRN at the link.

The Impeachment of Samuel Chase

Adam A. Perlin has published The Impeachment of Samuel Chase: Redefining Judicial Independence at 62 Rutgers Law Review 725 (2010). Here is the abstract.

This article hopes to make the following contributions to the existing academic scholarship:

First, some legal scholars have ignored how the impeachment contributed to the modern apolitical judiciary or have construed its contribution too narrowly. This article provides a fuller explanation of the impeachment’s contributions to our modern understanding of judicial independence and what properly constitutes an impeachable offense. 

Second, the article touches upon the contribution the debates over Chase’s impeachment made to more peripheral subjects, such as the debates over jury nullification and judicial review. 

Third, this article fills a void in the academic literature, as there are almost no articles fully addressing the “story” of Chase’s impeachment and even fewer which analyze the importance of the debates in the House of Representatives and the examination of the trial witnesses. 

Given the increasing attention devoted to judicial activism and persistent calls for the impeachment of federal judges, the lessons of the Chase impeachment are perhaps more relevant today than ever before. By addressing the issues mentioned above, this article endeavors to draw greater attention to a major event in American legal history and to give a turning point in the history of impeachment and the judicial branch the attention it deserves.

The Lindbergh Law and the Press

Barry Cushman, University of Virginia School of Law, has published Headline Kidnappings and the Origins of the Lindbergh Law, in volume 55 of the St. Louis Law Journal. Here is the abstract.

The federal kidnapping statute of 1932 -- which prohibits the transportation of a kidnapped person across state lines -- is commonly known as the Lindbergh Law due to its enactment in the immediate wake of the abduction of Charles and Anne Lindbergh’s child in March of that year. Indeed, but for the commission of that crime the statute probably would not have been enacted. But the Lindbergh affair alone cannot explain the form that the congressional reaction took. For the Lindbergh baby was found murdered fewer than four miles from his home, and there was no evidence that he had been transported across a state line. Had the Lindbergh Law been in effect when young Charles Lindbergh was kidnapped, it would not have applied to the offense. In fact, the bill that ultimately became the Lindbergh law was not introduced in the wake of that sensational crime, nor was it introduced by members of the New Jersey delegation that represented the Lindbergh family and the state in which the crime had been committed. Instead it had been introduced three months before the Lindbergh abduction by Senator Roscoe Conkling Patterson of Missouri and Representative John Joseph Cochrane of St. Louis. 

The congressional hearing on the bill, which took place a week before the Lindbergh kidnapping, was dominated by testimony of officials from St. Louis. Owing to its strategic location on the state border with Illinois, that city had become a center of profitable activity for the organized criminals running the midwestern "snatch racket." This essay, prepared as a comment on Professor Lawrence Friedman’s Childress Lecture on "headline trials" at St. Louis University School of Law, explores the high-profile abductions of the early 1930s that spurred St. Louis leaders to seek federal legislation to address the scourge. These included kidnappings of scions of the Anheuser-Busch and International Shoe fortunes; but the story that dominated headlines and riveted the attention of the community for much of the decade involved the 1931 interstate abduction of the city’s leading otolaryngologist by a group of mobsters and ex-convicts led by a prominent St. Louis socialite named Nellie Muench. Nellie, whose underworld nickname was "Goldie" due to her exceptional interest in lucre, was married to a local physician, was the daughter of a well-known Baptist minister, and was the sister of a judge on the Missouri Supreme Court. The saga of Nellie and her partners in crime involved a parade of colorful figures participating in multiple criminal trials; the drive-by machine-gunning of a key witness; a near-fatal attack on the chief prosecutor; a faked pregnancy and two illegal adoptions (one of which resulted in an infant’s death) in order to curry favor with her criminal jury; an unsuccessful attempt to retain custody of the surviving child in a hearing before Special Commissioner Rush Limbaugh, Sr.; and ultimately a mail fraud conviction for seeking to extort $250,000 from the bachelor with whom she had initiated an affair and had told that he was the father of her child.

Download the article from SSRN at the link. 

This Year's List of Ig-Nobel Prize Winners

Coverage here from the Chronicle of Higher Education. More here at the Improbable Research website. Nobel Prize winners hand out the Ig-Nobel prizes. Some are winners in both categories, like physicist Andre Geim (Nobel Prize winner in 2010, Ig-Nobel Prize winner in 2000). I wonder which one he treasures more.

Philosopher Kings and Melville's Captain Vere

Rob Atkinson Jr., Florida State University College of Law, has published Averting the Captain Vere 'Veer': Billy Budd as Melville's Republican Response to Plato, as FSU College of Law Public Law Research Paper No. 539. Here is the abstract.

This article shows how Melville’s Billy Budd, rightly one of law and literature’s most widely studied canonical texts, answers Plato’s challenge in Book X of the Republic: Show how “poets” create better citizens, especially better rulers, or banish them from the commonwealth of reasoned law. Captain Vere is a flawed but instructive version of the Republic’s philosopher-king, even as his story is precisely the sort of “poetry” that Plato should willing allow, by his own republican principles, into the ideal polity. Not surprisingly, the novella shows how law’s agents must be wise, even as their law must be philosophical, if they are to do justice. Paradoxically, the novella also shows how “poetry” can save law’s agents, particularly the more Platonic, from Captain Vere’s “veer,” a dangerous turn  from fully legal justice to false and fatal severity. 

Captain Vere has a “tragic flaw” all too common among leaders otherwise completely conscientious and competent: When faced with a range of courses - all legal, moral, and practicable - Vere invariably charts the most personally painful. Part of his “no pain, no gain” course steers him into fastidious studies that exclude both “mere” fiction and “pure” theory, ironically banishing Plato himself along with his “poets.” But Vere’s own story, with its narrator’s frequent theoretical interruptions and occasional allusions to Plato, demonstrates that the reading of just such stories may deliver leaders like him from over-harsh treatment of themselves and their most vulnerable charges. The novella, then, not only reveals Captain Vere’s “veer”; it also shows a way to avert that ever dangerous, often fatal tack. If the studious captain had been prepared to study stories like his own, his readings might have made him a vastly better guardian of his symbolic flock, particularly of Billy Budd, his most innocent sheep; had “Starry” Vere been more a philosopher-king and less a surrogate father-god, he need never have made his excruciating mistake, sacrificing his most beloved foster son to save their microcosmic world.

Download the paper from SSRN at the link.

Free Speech and the Fight Against Terrorism

Owen Fiss, Yale University Law School, has published The World We Live In, at 83 Temple Law Review 295-308 (Winter 2011).

This Essay focuses on a threat to our constitutional order — the curtailment of freedom of speech in the name of fighting terrorism. Specifically, my subject is the Supreme Court’s decision last June in Holder v. Humanitarian Law Project, which upheld the authority of Congress to criminalize political advocacy on behalf of foreign terrorist organizations. Like warrantless wiretapping, the risk of a criminal prosecution for political advocacy — for example, an utterance by an American citizen in an American forum that a foreign terrorist organization has a just cause — poses a threat to our democracy, but the danger is greater. The risk of warrantless wiretapping inhibits speech; the risk of a criminal prosecution stops it altogether.

Download the article from SSRN at the link.

The Nature of Law

Frederick Schauer, University of Virginia School of Law, has published  On Open Texture of Law as Virginia Public Law and Legal Theory Research Paper No. 2011-35. Here is the abstract.
   

This paper, prepared for the University of Frankfurt Symposium on Defeasibility in Epistemology, Ethics, law and Logic, addresses the claim of H.L.A. Hart and others that law is open-textured. It is in the nature of law, they say, that it necessarily possesses an open texture going beyond the open texture of the language in which legal rules are written. But when we examine the question of open texture in light of Hart’s claim that the open texture of law entails the necessary defeasibility of legal rules, we discover that Hart and his followers are mistaken. Both the alleged open texture of law qua law (as opposed to the open texture occasioned by the open texture of the language used by law) and the defeasibility of legal rules are contingent features of certain legal rules in certain legal regimes, but neither are necessary components of the nature of law or the nature of rules.

 Download the paper from SSRN at the link.

Law and Narrative

Lea B. Vaughn, University of Washington School of Law, is publishing Feeling at Home: Law, Cognitive Science, and Narrative in the McGeorge Law Review. Here is the abstract.

What is the “how and why” of law’s affinity for narrative? In order to explain why the use of stories is such an effective teaching and presentation strategy in the law, this paper will consider theories and accounts from cognitive as well as evolutionary psychology, neuroscience, and, briefly, cultural anthropology. This account seeks to address “how” narrative helps us learn and use the law as well as “why” we are so compelled to use stories in teaching and in practice. 

Brain science, simplified here, suggests that the first task is to “grab” someone’s attention. Emotionally charged events are more likely to capture our attention and to be remembered. Because of their emotional content, stories and narrative (which will be used interchangeably here) seize the attention of listeners and readers, students and jurors. In turn, this emotional fixation focuses attention on context and meaning. Studies suggest that this context is the platform that allows later and successive integration of details. Thus, stories “work” because they focus attention and provide a context for learning the “details,” i.e., the law. Moreover, the same principles that apply to the success of using stories in the classroom also bear fruit in practice. Our culture, and perhaps our genetic make-up, compel us to use stories as a way to both comprehend and transmit the law.

Download the article from SSRN at the link.

Lord Cornbury's Strange Practice

Wolfgang Nebodity, University of Vienna, has published Lord Cornbury and the Arcana Practice. Here is the abstract.

In 1702 Queen Anne, the second daughter born to James II and his first wife, Anne Hyde, appointed her cousin, Lord Cornbury, governor of the Province of New York. He turned out as one of colonial New York's unique and controversial figures. This was mainly due to the fact that he kept the “arcana imperii” of his queen. He claimed that “he represented a woman and ought in all respects to represent her as faithfully as he could.” Thus he acquired the rituals and rhetoric of queenship. His power depended on the role of the female monarch, both as a symbol of harmony and dynastic stability and as a potential focus for political factionalism, disunity and discontent.

Download the paper from SSRN at the link. 

Call For Papers

From Tucker Culbertson, Syracuse University College of Law

Call for Papers for a Special Issue of the Journal of Homosexuality (http://www.tandf.co.uk/journals/WJHM ): “Trans Sexualities”

The Journal of Homosexuality ( http://www.tandf.co.uk/journals/wjhm ) invites the submission of extended abstracts for a special issue expected to publish in Fall 2012.

In this volume, we seek to not only conceptually disentangle gender and sexual identities, but to reveal the myriad ways in which their intersections can be both illuminating and perplexing. To date, in academic scholarship on LGBTQ sexualities, “transgender” too often remains present in acronym only, with very real consequences for inclusion and exclusion both in terms of transgender and transsexual personhood as well as to moving studies of gender and sexual identities, and sexual practices (including sexual labor) forward. In this special issue, we seek proposals for papers that focus critically on sexual identities and practices among transgender and transsexual individuals and their partners to begin to fill the existing lacuna in scholarship and theorizing around transgender and transsexual sexualities. To this end, we seek papers that address (but are not limited to) the following issues and topics:

Trans identities complicating binary notions of “gay,” “lesbian,” and “bisexual” sexualities (e.g., the experiences of gay trans men and lesbian trans women, making meaning of the term and concept of “hetero/homo/bi/sexuality” in the context of trans identity, how trans sexualities contribute to the “queering” of sexualities in general)

“Doing” masculinity, femininity, and androgyny as a trans person in the context of sexual identity and how sexual identities of trans people and their partners are often (mis)“read” and (mis)understood

Fluidity (or not) of sexual identities and/or practices in the lives of those who are trans and/or their sexual partners

·        

The role of language in shaping sexual identities and/or practices among trans people and/or their sexual partners

·        

Trans persons’ engagement with sex work and sexualized labor ·

International representations, understandings, and depictions of trans sexualities

Fetishization and commodification of trans sexualities—including the phenomenon, impacts, and effects of trans (in/hyper)visibility in the media (e.g., trans sexual voyeurism)

Intersections between trans bodies and trans sexualities ·

Trans sex, sexualities, and partnerships (and the challenges of conducting ethical scholarship around these issues considering the history of exploitive representations of transgender and transsexual lives) ·

Inclusion and exclusion of trans people within sexual rights movements and potentials for coalition building across social movements focusing on sexualities

Sexual safety and wellbeing of trans persons (and consideration of safer sex practices, sexual marginalization, sexual harassment, sexual assault, access to healthcare)

“Counting” trans people (to ensure that trans people count)—demographic studies of trans sexualities

Reviews of institutions, services, and programs that provide services and programs that include (or don’t) focus on trans sexualities

Methods for studying trans sexual identities, sexual practices, and sexual partnerships (and, further, identity and standpoint of the “researcher” and “researched”—how identity matters, considerations of cissexual and cisgender privilege)

We currently seek 1,200-1,500 word extended abstracts for proposed papers that provide a title, brief summary of your central arguments and evidence used to support these arguments, methods to investigate the topic under study (if applicable), and how your proposed paper contributes to, challenges, and/or extends existing scholarship on trans sexualities. Please be clear about the current status of the proposed paper in terms of whether it is at an incipient or advanced stage and provide a brief statement on how you intend to complete the final paper by March 2012. We seek proposals for both theoretical and empirical papers.


International work and work by trans scholars is particularly encouraged.

All abstracts and papers will undergo blinded peer review by a Special Editorial Board of interdisciplinary trans and non-trans scholars conversant with ethical scholarship on trans issues. To facilitate blind review, please prepare a cover page with your name, contact information, and proposal title, but do not include your name or other identifying information on subsequent pages—do include your proposal title at the top of each page. Send inquiries and extended abstracts to the Guest Editor of this Special Issue, Carla A. Pfeffer, at cpfeffer@purdue.edu by November 1, 2011. Final manuscripts should be approximately 7,500 words (about 25 pages) and will be due in March 2012.

 

Guest Editor: Carla A. Pfeffer (Sociology), Department of Social Sciences, Purdue University - North Central

Special Editorial Board:

Walter O. Bockting (Psychology) Department of Family Medicine and Community Health, University of Minnesota Medical School

Nicola R. Brown (Psychology) Centre for Addiction and Mental Health, Toronto, Canada

Aaron H. Devor (Sociology) Department of Sociology, University of Victoria, Canada

Marcia Ochoa (Cultural and Social Anthropology) Feminist Studies, University of California - Santa Cruz

Tam Sanger (Sociology and Gender Studies) Childhood and Youth Research Institute, Anglia Ruskin University, United Kingdom

Julia Serano (Biology) Molecular and Cell Biology, University of California - Berkeley

Susan Stryker (United States History) Department of Gender and Women’s Studies, Arizona State University

Salvador Vidal-Ortiz (Sociology) Department of Sociology, American University

It's Always Something: Love and Litigation At the Opera House

Sarah Lynnda Swan, Columbia University Law School, has published A New Tortious Interference with Contractual Relations: Gender and Erotic Triangles in Lumley v. Gye, in volume 35 of the Harvard Journal of Law and Gender (2012). Here is the abstract.

The tort of interference with contractual relations has many puzzling features that conflict with fundamental principles of contract and tort law. This Article considers how gender influenced the structure of the tort and gave rise to many of these anomalies. Lumley v. Gye, the English case that first established interference with contractual relations, arose from a specifically gendered dispute: two men fighting over a woman. This type of male—male—female configuration creates an erotic triangle, a common archetype in Western culture. The causes of action that served as the legal precedents for interference with contractual relations – enticement, seduction, and criminal conversation – are previous instances where the law regulated gendered triangular conflicts. Enticement prohibited a rival male from taking another man’s servant, seduction prohibited a rival male from taking another man’s daughter, and criminal conversation prohibited a rival male from taking another man’s wife. 

In Lumley v. Gye, the court expanded these precedents and created a cause of action that allowed Lumley to bring an action against his male rival for essentially “taking” his contracted female employee. The gendered basis for the tort explains its most problematic aspects, including why it imposes obligations on non-contractual parties, ignores the role of the breaching promisor in causing the wrong, and treats her as the property of the original promisee. In order to remedy these problematic features, the tort should be restructured as one of mixed joint liability. Further, damages should be limited to those available in contract.

Download the article from SSRN at the link. 

A New Law and Culture (and Other) Blog

Pierre Schlag and Sarah Krakoff of the University of Colorado School of Law have started the blog brazenandtenured--law politics nature and culture. Among the posts: The Monty Python Example No. 1 and Kandinsky or Hart? Aesthetics No. 1.  This blog, as Hercule Poirot would say about other matters, gives me furiously to think.

Bob Dylan, Jurisprude

Michael L. Perlin, New York Law School, has published Tangled Up in Law: The Jurisprudence of Bob Dylan. Here is the abstract.

As a careful examination of Bob Dylan’s lyrics reveals a writer - a scholar - with a well-developed jurisprudence, ranging over a broad array of topics that relate to civil and criminal law, public and private law. His lyrics reflect the work of a thinker who takes “the law” seriously in multiple iterations - the role of lawyers, the role of judges, the disparities between the ways the law treats the rich and the poor, the inequality of the criminal and civil justice systems, the corruption of government, the police, and the judiciary, and more. In this paper, I seek to create a topography of Dylan-as-jurisprudential scholar, and will seek to do this by looking at selected Dylan songs in these discrete areas of law (and law-and-society):
• Civil rights
• Inequality of the criminal justice system
• Institutions
• Governmental/judicial corruption
• Equality and emancipation (political and economic) 
• Poverty, the environment, and Inequality of the civil justice system, and
• The role of lawyers and the legal process.

Download the paper from SSRN at the link.

The Institute for the Public Life of Arts and Ideas Hosts a Conference On the Art and Politics of Irony

The Art and Politics of Irony  |  L’art et la politique de l’ironie

12-14 April 2012 ~ Montréal, QC

An interdisciplinary conference hosted by the Institute for the Public Life of Arts and Ideas, McGill University, in collaboration with Improvisation, Community and Social Practice (SSHRC-MCRI) and the Département d’études anglaises, Université de Montréal

Call for papers (http://www.mcgill.ca/iplai/conferences/)

“The ironist does not have the new within his power . . . he destroys the given actuality by the given actuality itself.” Søren Kierkegaard

Irony makes the world new by putting the world that exists in question. Its strength lies in its destabilizing power—it is the politics of art, the art of politics, and the language of dissent. By enabling critical representations of the world as it is known, but from within and against the familiarity of our own expectations, irony gives art and discourse special kinds of access to the public sphere, especially by mining beneath the given, the actual, and the known.

In politics, philosophy, art and literature, across post-modernism, post-colonialism, and globalization, the question of irony is of expanding relevance to a range of fields of cultural formation and inquiry. Yet it remains insufficiently noticed, understood, or theorized; ironically powerful and silent at once.  What is the meaning of irony? What does it accomplish and exactly how and with what effects?  Is irony impoverished or indispensable, disenchanted or enchanting, world-breaking or world-making?

Conference organizers invite proposals for papers addressing the public and public-making function of irony across time and through a range of contexts and media. Disciplines may include but are not limited to:

Architecture and Design

Art History

Classics

Film

Fine Arts

Gender and Sexuality

History

Law

Literature

Media and Communications

Musicology and Music Performance

Philosophy

Politics

Theatre and Performance

Proposals for complete panels as well as for individual papers in English or French are welcome. Researchers are invited to submit paper abstracts of 250 words and brief (2 page) cvs to: irony@mcgill.ca. Deadline for submissions: 30 September 2011

Princeton University, Program in Law and Public Affairs/Fellowships and Positions Available

From Susan Sage Heinzelman, University of Texas, Austin:

Princeton University’s Program in Law and Public Affairs (LAPA) invites
outstanding faculty, independent scholars, lawyers, and judges to apply
for appointments as resident Fellows for the academic year 2012-2013. We
anticipate naming up to five Fellows who are engaged in substantial
research on topics broadly related to law and public affairs or law and
normative inquiry, including one Microsoft/LAPA Fellow specializing in
intellectual property or the legal regulation of the economy. Successful
candidates will devote an academic year in residence at Princeton to
research, discussion, and scholarly collaboration. Applicants must have
a doctorate, JD or an equivalent professional postgraduate degree.
Further information can be found at

*http://lapa.princeton.edu/fellowships.php*.

**

*APPLICATION DEADLINE IS 5:00 PM (EST) MONDAY, NOVEMBER 7, 2011.*

Princeton University is an equal opportunity employer and complies with
applicable EEO and affirmative action regulations.