Scalia On Strings

Gilbert Kaplan interviews Justice Antonin Scalia for New York's WQXR. Read and listen to "The Violin Dreams of Supreme Court Justice Antonin Scalia" here.

The Law and Politics Movement After 1968

Martine Kaluszynski, University of Grenoble, Institute of Political Studies Grenoble, has published The Changing Face of Law after the Events of 1968… or When Law Meets Politics: Introduction to the Mouvement Critique du Droit, at 2 Oñati Socio-Legal Series (2012).

The aim of this paper is to analyse the origins, the development and the long-term impact of the Critical Legal Movement (Mouvement Critique du Droit). Created some thirty years ago, this Movement resulted from the collective mobilisation of legal experts and political scientists across French cities (e.g., Lyon, Montpellier, Saint-Etienne, Toulouse and Paris). Referring mainly to Marxist theories, the Critical Legal Movement argued that law is deeply embedded in its social and its political context, and should thus be analysed through an interdisciplinary approach. Building on this critical perspective, the Movement developed a scientific project and teaching methods, which both differed from and opposed the way in which law was traditionally taught and studied in French Law Faculties. The Movement itself no longer exists, but it nevertheless had far-reaching consequences on the study of law. Indeed, the Critical Legal Movement was an opportunity to successfully explore alternative teaching methods and to create high quality research institutions.

Este artículo pretende analizar los orígenes, el desarrollo y el impacto a largo plazo del Movimiento Crítico del Derecho (Mouvement Critique du Droit). Creado hace unos treinta años, este movimiento surgió de la movilización colectiva de juristas y politólogos de diferentes ciudades francesas (como Lyon, Montpellier, Saint-Etienne, Toulouse y París). Haciendo referencia principalmente a teorías marxistas, el Movimiento Crítico del Derecho argumentaba que el derecho está profundamente arraigado en su contexto social y político, y por lo tanto se debe analizar desde un enfoque interdisciplinario. Partiendo de esta perspectiva crítica, el movimiento desarrolló un proyecto científico y métodos educativos, que diferían y se oponían al sistema de enseñanza y estudio del derecho en las facultades de derecho francesas. El movimiento en sí mismo ya no existe, pero sin embargo, tuvo consecuencias de gran alcance en el estudio del derecho. En efecto, el Movimiento Crítico del Derecho supuso la oportunidad de explorar con éxito métodos alternativos de enseñanza y favoreció la creación de instituciones de investigación de alta calidad.

Download the article from SSRN at the link. 

Death Upon the Wicked Stage

The New York Times' Charles Isherwood reviews "A Gentleman's Guide To Love and Murder," now playing at the Hartford Stage.

Chasing Mystery

Several extremely interesting articles from the Guardian: Lawrence Scott discusses "Murder on the Dance Floor," (images of death in/while dancing), Mark Lawson takes us on a literary tour of crime fiction, and Alex Godfrey talks to Zachary Quinto about horror on television. Do we seek out artistic images and themes of crime, horror, and death because they seem so far removed from our lives, or because they do not? Yet death is with us always and ever, and crime more and more. Is that part of the horror? 

H. L. A. Hart and Human Nature

Péter Cserne, University of Hull, has published Between 'Metaphysics of the Stone Age' and the 'Brave New World': H.L.A. Hart on the Law's Assumptions About Human Nature, in Jurisprudence and Political Philosophy in the 21st Century: Reassessing Legacies 71 (Miodrag Jovanović and Bojan Spaić eds., Frankfurt: Peter Lang 2012).

This paper analyses H.L.A. Hart’s views on the epistemic character of the law’s assumptions about human nature. Hart suggests that the assumptions behind legal doctrines typically combine common sense factual beliefs, moral intuitions, and philosophical theories of earlier ages with sound moral principles, and empirical knowledge. An important task of legal theory is to provide a ‘rational and critical foundation’ for these doctrines. This does not only imply conceptual clarification in light of an epistemic ideal of objectivity but also involves legal theorists in ‘enlightenment’ about empirical facts, ‘demystification’ of metaphysical obscurities, and substantive normative, including moral reasoning. Hart also argued, in a way that is somewhat surprisingly similar to Fuller's, that embedded in legal doctrines of causation and responsibility are assumptions about human agency and personhood that are potentially in conflict with naturalistic theories about human behaviour.

The full text is not available from SSRN.  

A New Book On Justice and Injustice

New from Routledge



The Concept of Injustice
By Eric Heinze
Published October 24th 2012 by Routledge--218 pages

The Concept of Injustice challenges traditional Western justice theory. Thinkers from Plato and Aristotle through to Kant, Hegel, Marx and Rawls have subordinated the idea of injustice to the idea of justice. Misled by the word’s etymology, political theorists have assumed injustice to be the sheer, logical opposite of justice. Heinze summons ancient and early modern texts, philosophical and literary, with special attention to Shakespeare, to argue that injustice is not primarily the negation, failure or absence of justice. It is the constant product of regimes and norms of justice. Justice is not always the cure for injustice, and is often its cause.

Judicial Pragmatism: The Early(er) Years

Robert F. Blomquist, Valparaiso University Law School, has published Early American Judicial Pragmatism, 1793-1949 as Valparaiso University Legal Studies Reseach Paper No. 12-13. Here is the abstract.

After the writings of Charles S. Peirce and William James became popular among intellectuals in the early twentieth century, American judges started to use pragmatic parlance to decide cases. Starting with a trilogy of opinions by Supreme Court of Florida Justice Thomas M. Shackelford, a variety of prominent jurists deployed pragmatic analysis in their opinions. These judges included Benjamin Cardozo, Learned Hand, Robert Jackson, and Jerome Frank. American judicial theorists can learn a lot from this early use of pragmatism language in judicial opinions written before 1950.

Download the paper from SSRN at the link. 

Examining "The Princess and the Pea"

Linda Ross Meyer, Quinnipiac University School of Law, has published Suffering and Judging in The Princess and the Pea, at 30 Quinnipiac Law Review 489 (2012).

This brief essay explores Hans Christian Andersen's story "The Princess and the Pea" for how it illuminates issues of suffering, compassion, victimization, political leadership, and mercy.

Download the article from SSRN at the link. 

On Any Wednesday

Bloomberg Law has launched a new video series, Stealth Lawyers, which features attorneys who have found new and different ways to use their law degrees away from the courtroom and the conference table. Ed Adams is in charge of the series, which features such entrepreneurs as lawyer turned baker Warren Brown of CakeLove and attorney/crossword puzzle creator Will Shortz, and historical figures such as Vladimir Lenin and Francis Scott Key. New videos make their appearance on Wednesdays.

Pop culture lawyers who wander off in other directions (but still make use of their law degrees) include Fairly Legal's Kate Reed (she's no longer an attorney, but a mediator still attached to her late father's law practice), and Linda O. Johnston's Kendra Ballantyne (formerly an associate at a white shoe L.A. firm, now a pet sitter, even though she's been rehabilitated and could go back to practice). These mysteries are published by Berkley Press.

Images and Law

Jessica M. Silbey, Suffolk University Law School, has published Images in/of Law, at 57 New York Law School Law Review 171 (2012/13). Here is the abstract.

The proliferation of images in and of law lends itself to surprisingly complex problems of epistemology and power. Understanding through images is innate; most of us easily understand images without thinking. But arriving at mutually agreeable understandings of images is also difficult. Translating images into shared words leads to multiple problems inherent in translation and that pose problems for justice. Despite our saturated imagistic culture, we have not established methods to pursue that translation process with confidence. This article explains how images are intuitively understood and yet collectively inscrutable, posing unique problems for resolving legal conflicts that demand common and shared language. It canvasses the law and film scholarship, provides examples of film evidence that renders judgment problematic, and predicts future legal terrain in which visual images will feature prominently. It concludes by calling for a theory of aesthetics in order to analyze and interpret the visual images that will take center stage in so many contemporary legal debates.

Download the article from SSRN at the link. 

Hans Kelsen and Modern Law

Christoph Kletzer, King's College London School of Law, has published Primitive Law. Here is the abstract.

This paper discusses the nature and functioning of modern law along Kelsenian lines, starting from a very instructive example of Ancient Germanic Law regulating the legal effects of murder.

Download the paper from SSRN at the link. 

The Influence of Native American Legal Scholarship On the Courts

Matthew L. M. Fletcher, Michigan State University College of Law, has published American Indian Legal Scholarship and the Courts as MSU Legal Studies Research Paper No. 10-25. Here is the abstract.

Is legal scholarship influential on the courts? More particularly, is American Indian legal scholarship influential on the courts? In the 1960s, 1970s, and 1980s, tribal interests enjoyed historic success in the courts. While they didn’t win every case, tribal interests prevailed far more than they ever had prior to these few decades. Since the advent of the Rehnquist and Roberts Courts, however, those successes have once again become few and far between.
American Indian legal scholarship, which rose from virtual nonexistence in the 1950s to significance in the late 1960s and 1970s, appears to have been very influential on the courts during the period of success. Every decade since the 1960s has seen a dramatic increase in the number of law review articles on the subject of American Indian law. Courts cited to an incredible percentage of the Indian law articles published in the 1960s, 1970s, and early 1980s, but that citation pattern has leveled off since the 1980s. The lower courts continue to cite American Indian legal scholarship, but in a more limited manner. In the Supreme Court, Indian law scholarship has all but disappeared.
This short paper, prepared for the Henderson Center’s Fall 2012 Symposium, “Heeding Frickey’s Call: Doing Justice in Indian Country,” presents the data on the citation patterns of American Indian legal scholarship and reviews Professor Frickey’s call as a means of introducing the conference.

Download the paper from SSRN at the link. 

Ritual Eating and Drinking and Chinese Law

Mary Szto, Hamline University School of Law, has published Contract in My Soup: Chinese Contract Formation and Ritual Eating and Drunkenness. Here is the abstract.

Scholars and practitioners alike recognize that contract formation in today’s China requires more than an understanding of black letter law, but knowledge of cultural practices. There is much literature about the legal non-enforceability of contracts, and instead the critical importance of guanxi (relationships), mianzi (face), and interpersonal harmony. However, there is little mention about eating and drinking rituals. These rituals often are the heart of building trust and negotiating terms in China. They may not only be the formation of the contract but the foundation for performance and enforcement as well. However, often these rituals involve drunkenness, which sometimes has turned fatal for contracting parties. Binge drinking is reaching epidemic proportions in China and employers, including law firms, openly recruit persons who can drink heavily. “Ganbei” is a popular toast which means to empty one’s cup. This article explores what I call ganbei contracts, the phenomenon of eating and drinking rituals in contract formation. I first discuss current Chinese contract black letter law, then contemporary ritual eating and drinking, the ancient roots of ritual practice, and then guidelines for proper contemporary practice consonant with a rule of virtue and law. Since time immemorial, ritual eating and drinking have legal meaning in China.

Download the paper from SSRN at the link. 

And the Winner Is!

The Hollywood Reporter offers up a list of some of the best (US) election movies, but check out the comments! Many readers think there are serious omissions from the list. What are your election movie favorites?

Hip Hop Norms

Jan M. Smits, Maastrict University Faculty of Law, Maastricht European Private Law Institute, University of Helsinki, Center of Excellence in Foundations of European Law and Polity, Andrei Ernst, Steven Iseger, and Nida Riaz, have published If You Shoot My Dog, I Ma Kill Yo’ Cat: An Enquiry into the Principles of Hip-Hop Law. Here is the abstract.

This article investigates how the law is perceived in hip-hop music. Lawyers solve concrete legal problems on basis of certain presuppositions about morality, legality and justice that are not always shared by non-lawyers. This is why a thriving part of academic scholarship deals with what we can learn about laymen’s perceptions of law from studying novels (law and literature) or other types of popular culture. This article offers an inventory and analysis of how the law is perceived in a representative sample of hip-hop lyrics from 5 US artists (Eminem, 50 Cent, Dr. Dre, Ludacris and Jay-Z) and 6 UK artists (Ms Dynamite, Dizzee Rascal, Plan B, Tinie Tempah, Professor Green and N-Dubz). After a methodological part, the article identifies four principles of hip-hop law. First, criminal justice is based on the age-old adage of an eye for an eye, reflecting the desire to retaliate proportionately. Second, self-justice and self-government reign supreme in a hip-hop version of the law: instead of waiting for a presumably inaccurate community response, it is allowed to take the law into one’s own hands. Third, there is an overriding obligation to respect others within the hip-hop community: any form of ‘dissing’ will be severely punished. Finally, the law is seen as an instrument to be used to one’s advantage where possible, and to be ignored if not useful. All four principles can be related to a view of the law as a way to survive in the urban jungle.

Download the paper from SSRN at the link.

Ghyslaine is shocked, shocked! at the title of this piece.

Muslims As the "Other" In Popular Culture

Peter Beaumont wonders whether the television series "Homeland" oversteps the bounds in its efforts to present entertaining television. In particular, he is concerned about the image of Muslims on the show.He writes in part:

I admit I have no idea how the story arcs in Homeland will develop and what surprises are in store. What I do know is how both Arabs and Islamists have been portrayed thus far as violent fanatics, some of whom are powerful and influential infiltrators. As someone who has spent much time in the Middle East, I find the depictions not only crude and childish but offensive. There is more to it than the portrayal of individuals. For Homeland presents an odd and unbelievable image of relationships between countries and identities in the region, where Palestinians, Iraqis, Saudis all share an agenda regardless of background, culture and history. Should any of this matter in a fictional series? The answer is yes.

 ...

The reality is that what Homeland portrays is a peculiar view of the Islamic world, one rooted, perhaps, in its genesis as an Israeli drama, where the view of the surrounding neighbourhood is more paranoid and defensive. It matters for this reason. Popular culture both informs and echoes our prejudices. How we portray the "other" – those whom we fear or are suspicious of – reinforces cultures of conflict. In some respects it has always been thus. The author and journalist Robert Winder detailed in his book Bloody Foreigners how Charles Dickens, in creating the character of Fagin for Oliver Twist, refashioned a real social problem. The boys' "rookeries" were run by Italian gangmasters in Clerkenwell's Little Italy, but in keeping with contemporary suspicion and hostility to Jews Dickens made Fagin Jewish – something he later regretted. Indeed, popular literature, plays, films and television have often been crude in their representation of perceived enemies – Jews, Germans, communists, Irish "terrorists" and now Muslims, amplifying concerns that may be based in some reality like the phenomenon of al-Qaida terrorism to represent it as some vague, universal truth.

More here from Mr. Beaumont's article in the Guardian.

The Art of Justice: A New Book Demonstrates a Judge's Skill at Picturing Justice

New from Hart Publishing, a book on The Art of Justice

NOW PUBLISHED

The Art of Justice

The Judge's Perspective

Ruth Herz

This book presents a unique and intriguing collection of drawings of courtroom scenes. Entering the courtroom wearing his robe, Judge Pierre Cavellat literally had a secret up his sleeve. Hidden in it were pens and pencils, which he used to sketch the scenes he observed from his bench. Throughout a 40-year judicial career in one of France's more important regional appellate courts, Cavellat produced hundreds of illuminating drawings and paintings depicting the court proceedings but also the main actors: the prosecutors, defence counsel, his fellow judges, the defendants, witnesses, policemen, the general public, as well as the courtroom itself and its architecture. The resulting vivid and uncensored impressions give an unprecedented insight into how a judge perceives his profession and the institution of justice as a whole. Given the scarcity of written autobiographies by judges, and their reluctance to lay bare their inner feelings and thinking, the images reveal, in a candid and immediate fashion, the deeply hidden emotions, ambiguities and fantasies of a judge going about his work. The author, a judge herself, interprets the images through the lens of her own judicial experience, exploring how judges think and act and how their thinking is constructed through their education, professional training, gender and class. In doing so she exposes how personal background, history and experience play an additional, sometimes conflicting, role in 'judgecraft'. While relevant to both practitioners and students of law this book should also appeal to the wider public.

SAMPLE PAGES

To read a few pages from The Art of Justice please click on the link below:

http://www.hartpub.co.uk/pdf/samples/9781849461276sample.pdf

Ruth Herz is a former judge at the Court of Cologne. She has been a visiting fellow of the Centre for Criminology at Oxford University and is currently a visiting professor at Birkbeck College, University of London.

September 2012     128pp     Hbk     9781849461276    

RSP: £35 / €45 / US$54.95 / CDN$70

Order Online:

UK, EU, and ROW orders: http://www.hartpub.co.uk/books/details.asp?isbn=9781849461276

USA orders: http://www.hartpublishingusa.com/books/details.asp?isbn=9781849461276

If you have any enquiries please contact Hart Publishing Ltd, 16C Worcester Place, Oxford, OX1 2JW, UK Telephone Number: 01865 517530; Fax Number: 01865 510710; Website: www.hartpub.co.uk; E-mail: mail@hartpub.co.uk

Dick Wolf Returns To Prime Time TV

The New York Times discusses Dick Wolf's new series "Chicago Fire." Here's a link.

Maori Heritage and IP Law

Susan Corbett, Victoria University of Wellington, has published Māori Cultural Heritage and Copyright Law: A Balancing Exercise at 6 New Zealand Intellectual Property Journal 916 (2012). Here is the abstract.

The digitisation of both traditional Māori cultural heritage and also more recent items of Māori provenance held in the collections of New Zealand museums, was the subject of a recent research project funded by the New Zealand Law Foundation. This article considers the practices of museums in regard to the digitisation of collection items of Māori provenance and analyses them in the context of the relevant legal and policy environment in New Zealand; in essence an environment that is comprised of, respectively, the Copyright Act 1994, the principles of the Treaty of Waitangi Te Tiriti o Waitangi, and the theory of cultural property law.

Download the article from SSRN at the link. 

Insane Delusions In "The Double"

Amy Ronner, St. Thomas University School of Law, has published Does Golyadkin Really Have a Double? Dostoevsky Debunks the Mental Capacity and Insane Delusion Doctrines at 40 Capital University Law Review 195 (2012). Here is the abstract.

In Dostoevsky's "The Double," one of the great, but lesser known Russian novels, protagonist Golyadkin suddenly meets his identical twin, who ostensibly wreaks havoc on his life.
While "The Double" appears to have nothing to do with the law of wills and trusts and has not been redacted into any law school case book, I now suggest what might irritate some staunch traditionalists -- namely that Dostoyevsky should claim an entire chapter on the mental capacity doctrine. It is this article's narrow thesis that "The Double" debunks, or, at least sheds doubt, on some basic mental capacity and insane delusion concepts. On a broader level, this article, diveded into four parts, explores Dostoevsky's proposition that in many cases, we (as lawyers or mere mortals) are incapable of determining unsound mind and insane delusions.
Part II focuses on wills and trusts because it boasts of having a sacrosanct policy in favor of testamentary freedom. Despite that policy's stronghold, courts have in some cases limited or eradicated a decedent's ability to direct the disposition of property upon death. One instance is where contestants argue lack of mental capacity or use a doctrine called "insane delusion" or "monomania" to invalidate estate plans that either omit them entirely or slight them as beneficiaries. Although in wills' law, sound mind and insane delusion are legal constructs, this article, borrowing from the psychiatric definitions of "bizarre" and "non-bizarre" delusions, cordons them to Dostoevsky's message in "The Double."
Part III, shifting from law to literature, summarizes the story in "The Double" and the raging debate over not just the novel's meaning, but also Golyadkin's mental condition. This part suggests that the controversy surrounding this novel belies the fact that in "The Double" we cannot ascertain what is real and what is hallucination. This part, linking Dostoevsky's thesis to the current mental capacity doctrines, suggests that Golyadkin, like many testators, would baffle our courts if his psyche were under the will-contest microscope. In fact, the uncertainty in "The Double" resembles the disquieting dubiousness of such contests, particularly in litigation in which individuals are alleged to have "non-bizarre" delusions. This part goes further than just complaining, however, but, taking a stab at a solution, proposes the sort of doctrinal revamping, which would heed Dostoevsky's wise admonition.

Part IV concludes by revisiting the one (or two Golyadkins) who disclose(s) the most deleterious effect of our current capacity law and demonstrates why it is so crucial to make change.

Download the article from SSRN at the link.

Criminal Writers

From the Guardian: a podcast discussing Agatha Christie's views on her own work, the work of two new crime writers, Attica Locke and Tanya Byrne, and J. K. Rowling's new novel for adults. 

Fellowship Program Accepting Applications

From Princeton University:

Princeton University’s Program in Law and Public Affairs (LAPA) invites outstanding faculty members, independent scholars, lawyers, and judges to apply for appointments as resident Fellows for the academic year 2013-2014. We anticipate naming up to six fellows who are engaged in substantial research on topics broadly related to law and public affairs or law and normative inquiry, including one LAPA/Humanities Fellow for an early career scholar working at the intersection of law and humanistic inquiry. Successful candidates will devote an academic year in residence at Princeton to research, discussion, and scholarly collaboration. 

Applicants must have a doctorate, J.D. or an equivalent professional postgraduate degree. 

Further information and the electronic application can be found at http://lapa.princeton.edu.

APPLICATION DEADLINE IS 5:00 PM (EST) MONDAY, NOVEMBER 5, 2012.

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

Bite Me

From the Chronicle of Higher Education, an examination of the fascination with vampire lit. For more about the subject see the selected bibliography below.

Benefiel, Candace,  Blood Relations: The Gothic Perversion of the Nuclear Family in Anne Rice's 

Interview with the Vampire, 38 Journal of Popular Culture 261 (November 2004).

The Blood Is the Life: Vampires in Literature (Leonard G. Heldreth and Mary Pharr eds.; Bowling Green State University Press, 1999).

Hollinger, Veronica, The Vampire and the Alien: Variations on the Outsider, Science Fiction Studies 145 (1989).

Senf, Carol A., The Vampire in 19th Century English Literature (Bowling Green State University Press, 1988).

Upcoming Conference on Law and Literature, October 3-5, Brazil

Announcement of an upcoming conference:

I COLÓQUIO INTERNACIONAL DE DIREITO E LITERATURA

Programação

DIA 3 DE OUTUBRO DE 2012 (QUARTA-FEIRA)

18h30min – Credenciamento

19h15min – Solenidade de Abertura

19h30min – Conferência de Abertura: “O direito curvo”

José Calvo González – Doutor em Direito (Málaga/Espanha). Professor Catedrático de Teoria e Filosofia do Direito da Universidade de Málaga. Magistrado do Tribunal Superior de Justicia de Andalucía.

20h30min – Conversa Cruzada: “Kafka e o Direito”

André Karam Trindade – Doutor em Direito  (Roma/Itália). Professor da Escola de Direito da IMED, CESUCA e UNIFRA. Produtor Executivo do Programa “Direito & Literatura” (TV JUSTIÇA).

Vera Karam de Chueiri – Doutora em Filosofia (New York/EUA). Mestre em Direito (UFSC). Professora do PPGDireito da UFPR. Vice-diretora da Faculdade de Direito da UFPR

Ivânia Campigotto Aquino – Pós-doutorada em Letras (UFRGS). Professora das Faculdades de Letras e de Direito da UPF.

DIA 4 DE OUTUBRO DE 2012 (QUINTA-FEIRA)

9h30min  –  Painel: “A literasofia de Luis Alberto Warat”

Mauro Gaglietti – Doutor em História (PUCRS). Mestre em Ciência Política (UFRGS). Professor do PPGDireito da URI. Professor da Escola de Direito da IMED.

Albano Marcos Bastos Pepe – Doutor em Direito (UFPR). Mestre em Filosofia (UFSM). Professor do PPGDireito da URI.

Fernando Tonet – Mestrando em Direito (URI). Professor da Escola de Direito da IMED. Advogado (RS).

14 às 17h – Apresentação de Trabalhos: “O direito na literatura”

19h30min – Conferência: “Seis paradigmáticas narrativas do direito”

Lenio Luiz Streck – Pós-doutorado em Direito (Lisboa/Portugal). Professor Titular do PPGDireito da UNISINOS e da UNESA. Apresentador do Programa “Direito & Literatura” (TV JUSTIÇA). Procurador de Justiça (RS).

20h30min – Conversa Cruzada: “Shakespeare e o Direito”

Fausto Santos de Morais – Doutorando em Direito (UNISINOS). Professor da Escola de Direito da IMED. Advogado (RS).

Cristiano Paixão – Pós-doutorado em História (Pisa/Itália). Professor do PPGDireito da UnB. Conselheiro da Comissão de Anistia. Procurador Regional do Trabalho (DF).

Dino del Pino – Doutor em Teoria Literária (UFRGS). Mestre em Literatura Brasileira (UFRGS). Professor Universitário. Escritor.

DIA 5 DE OUTUBRO DE 2012 (SEXTA-FEIRA)

9h30min – Painel: “O romance em cadeia e o modo de produção das decisões judiciais”

Jáder Marques – Doutorando em Direito (UNISINOS). Professor Universitário. Advogado (RS).

Maurício Ramires – Doutorando em Direito (Lisboa/Portugal). Professor da Escola Superior da Magistratura (AJURIS). Juiz de Direito (RS).

Francisco Borges Motta – Doutorando em Direito (UNISINOS). Professor Universitário. Promotor de Justiça (RS).

14 às 17h – Apresentação de Trabalhos – “O direito como literatura”

19h30min – Conversa Cruzada: “Camus e o Direito”

Ângela Espindola – Doutora em Direito  (UNISINOS). Professor da Escola de Direito da IMED e da Faculdade de Direito da UFSM. Advogada (RS).

Jacinto Nelson de Miranda Coutinho – Doutor em Direito (Roma/Itália).  Professor Titular do PPGDirieto da UFPR.  Procurador do Estado. Advogado (PR).

Henriete Karam – Doutora em Letras (UFRGS). Professora Colaboradora do PPGLetras da UFRGS. Professora do Curso de Letras da UCS. Psicanalista.

20h30min – Conferência de Encerramento: “Por uma teoria narrativista do direito”

José Calvo González – Doutor em Direito (Málaga/Espanha). Professor Catedrático de Teoria e Filosofia do Direito da Universidade de Málaga. Magistrado do Tribunal Superior de Justicia de Andalucía.

More information here.

Improvisation and Form in Law and Music

Desmond Manderson, ANU College of Law, ANU College of Arts & Social Sciences, McGill University Faculty of Law, has published Fission to Fusion: From Improvisation and Formalism in Law and Music, as 6 Critical Studies in Improvisation 1 (2010). Here is the abstract.

This paper asks the question, what happened to improvisation in the classical music tradition? why did it so dramatically decline in legitimacy and practice around the classical era. This apper (sic) draws connections between musical, legal, and political history in order to demonstrate the cultural change in the eighteenth century transformed people's understandings of texts, authority, legitimacy, and genius, in ways that changed the relationship of interpretation to textual authenticity with lasting effects in both music and legal professions. This paper thus continues the work on legal and musical history begun by this author in Statuta v Acts, Et Lex Perpetua, and Songs Without Music.

Download the article from SSRN at the link. 

Langston Hughes, Black Fiction and the Court

Robert L. Tsai, American University College of Law, has published 'Simple' Takes on the Supreme Court as American University WCL Research Paper No. 2012-15. Here is the abstract.

This essay excavates how black fiction has served as a medium for working out popular understandings of America’s Constitution and laws. Starting in the 1940s, Langston Hughes’s fictional character, Jesse K. Semple, began appearing in the prominent black newspaper, the Chicago Defender. Eventually, the stories became syndicated, published in the New York Post, and later compiled in a series of books. As circulation increased, the stories enabled non-blacks to participate vicariously in an ongoing intracommunity debate over issues dear to African Americans. The character affectionately known as “Simple” was undereducated, unsophisticated, and plain spoken — certainly to a fault according to prevailing standards of civility, race relations, and professional attainment. But these very traits, along with a gritty experience under Jim Crow, made him not only a sympathetic figure but also an armchair legal theorist. In a series of barroom conversations, Simple ably critiqued the ongoing project of liberal legal experimentation. In fact, Simple had something to say on many matters of constitutional law during the turbulent decades of the 1940s, 50s, and 60s: the Supreme Court’s pronouncements, anti-lynching efforts, the injustice and absurdity of segregation, the pace of integration, and the effectiveness of landmark civil rights laws. Fiction became a two-way legal medium, allowing ordinary citizens to understand the idealism and goals of institutions that acted to enforce the U.S. Constitution, while giving them a way to puncture the lofty, hegemonic, and cramped official visions of law. Through arguments, stories, and dream sequences, Simple proposed a conception of equality rooted in authenticity, charity, and opportunity, to counteract the vision of selective, formal equality emerging from the Court. And he recommended a transitional form of poetic justice as a means of effectuating the ethical and material transformation necessary to guarantee equal protection of the law.

Download the paper from SSRN at the link.

 

Tolkein and Law

Jonathan A. Watson has published Tolkien and Law. Here is the abstract.

The relationship between themes found in Aquinas's "Summa Theologica" and Tolkien's "Lord of the Rings" are discussed.

Download the paper from SSRN at the link. 

A New Crime Drama From the BBC

From the Guardian, news that the BBC plans yet another crime drama, this time one inspired by Jack the Ripper. Ripper Street (for BBC One) takes place just after Jack the Ripper disappears from history and focuses on the detectives and public who try to recover from the effects of his crimes. More here in a press release issued by the BBC.

Shakespeare, Milton, Theology, and Inheritance

New in the Ashgate catalog: Joseph S. Jenkins, Inheritance Law and Political Theology in Shakespeare and Milton: Election and Grace as Constitutional in Early Modern Literature and Beyond (forthcoming February 2013).

From the catalog:

Reading God's will and a man's Last Will as ideas that reinforce one another, this study shows the relevance of England's early modern crisis, regarding faith in the will of God, to current debates by legal academics on the theory of property and its succession. The increasing power of the dead under law in the US, the UK, and beyond—a concern of recent volumes in law and social sciences—is here addressed through a distinctive approach based on law and humanities. Vividly treating literary and biblical battles of will, the book suggests approaches to legal constitution informed by these dramas and by English legal history.

This study investigates correlations between the will of God in Judeo-Christian traditions and the Last Wills of humans, especially dominant males, in cultures where these traditions have developed. It is interdisciplinary, in the sense that it engages with the limits of several fields: it is informed by humanities critical theory, especially Benjaminian historical materialism and Lacanian psychoanalysis, but refrains from detailed theoretical considerations. Dramatic narratives from the Bible, Shakespeare, and Milton are read as suggesting real possibilities for alternative inheritance (i.e., constitutional) regimes. As Jenkins shows, these texts propose ways to alleviate violence, violence both personal and political, through attention to inheritance law.

Holmesian Constructions

Brad Snyder, University of Wisconsin Law School, has published The House that Built Holmes at 30 Law & History Review 661 (2012). Here is the abstract.

Justice Oliver Wendell Holmes Jr. became the first modern judge to attain iconic status. G. Edward White, the preeminent Holmes scholar of his generation, has argued that Holmes's canonization began with the "dramatic upsurge in the amount of commentary" in the late 1920s by reformers who appreciated his "modernist epistemology" and that Holmes and Brandeis achieved "the status of professional and cultural icons in the decade of the 1930s." This Article argues that Holmes's canonization began a decade earlier because of his association with a group of young progressives at the House of the Truth. During the 1910s, Felix Frankfurter, Walter Lippmann, and other progressives turned a Dupont Circle rowhouse into a salon, invited Washington establishment figures to frequent dinner and cocktail parties, and adopted Holmes as the House's hero. They canonized Holmes to attack the Court's anti-labor decisions. Holmes participated in his own canonization to further his ambitions of elite recognition. At age seventy, he was frustrated on the Court and considered retirement. He wrote for what Laurence Baum has described as a discrete judicial audience at the House of Truth. Holmes's canonization matters because it exemplifies canonization as political instrumentalism. The House wanted constitutional change; Holmes wanted recognition.

Download the article from SSRN at the link. 

Marcel Ayme and "Magical Legalism"

Jeffrey Miller, University of Western Ontario Faculty of Law, has published The Magical Legalism of Marcel Aymé: Charming Rogues and the Suspension of Physical, Natural, and Positive Law at 53 Les Cahiers de Droit 649 (2012). Here is the abstract.

Some of Marcel Aymé’s most delightful work concerns charming rogues, protagonists who lack the heroism of moral outlaws such as Robin Hood or the golem of Jewish literature but act outside the rule of law in a way that is psychologically if not always morally coherent. On other “law and literature” occasions, Aymé employs what is sometimes called fantasy, but has the sardonic bite of magical realism – what this analysis considers “magical legalism,” where individuals circumvent physical, natural, and positive law in attempts to achieve pure self-expression or egocentric notions of justice.

Download the essay from SSRN at the link. 

George Takei In a Musical About Loyalty, Rights, and Family

George Takei (Star Trek: TOS) stars in a new musical, Allegiance, at the Old Globe Theatre in San Diego. The musical  "is an epic story of family, love and patriotism set during the Japanese American internment of World War II. Sixty years after the attack on Pearl Harbor, a chance meeting forces WWII veteran Sam Kimura ... to remember his family's relocation from their California farm to the Heart Mountain internment camp. As they struggle to adjust to their new home, Young Sam ... and his sister Kei ... find themselves torn between loyalty to their family and allegiance to their country. With its moving score, ALLEGIANCE takes audiences on a journey into our nation's history through the eyes of one American family."  The work also stars Telly Leung and Lea Salonga. More about the production here.

Credit: Old Globe Theatre

Above: George Takei stars in the new musical "Allegiance" at the Old Globe Theatre.

Tat That

Aaron Perzanowski, Wayne State University Law School; Notre Dame Law School, has published Intellectual Property Norms in the Tattoo Industry. Here is the abstract.

This article reports the results of the first qualitative study of the norms surrounding creative production, ownership, and copying in the multi-billion dollar U.S. tattoo industry. Despite the availability of copyright protection, the tattoo industry has largely ignored formal law in resolving disputes over copying and use of original works. Instead, it relies on a complex set of social norms enforced through informal mechanisms. Those norms are a product of both cultural and economic factors that offer broader lessons for intellectual property law and policy.

Download the paper from SSRN at the link. 

Feminism Here and There

Yxta Maya Murray, Loyola Law School, Los Angeles, has published 'Creating New Categories': Anglo-American Radical Feminism's Constitutionalism in the Streets, at 9 Hastings Race & Poverty Law Journal 454 (2012). Here is the abstract.

In 1968 and 1970, U.S. and British radical feminists organized provocative protests at the Miss America and Miss World beauty pageants. While the American New York Radical Women expressed their outrage at women’s objectification by picketing, engaging in street theater antics, and organizing a brief if peaceable outburst, British feminists raised a panic in London by throwing flour bombs and rotten produce at audience members and celebrity MC’s, scattering plastic mice, spraying ink-filled squirt guns, and even snubbing out a cigarette on a policeman.
Why were the U.S. radical feminists so much more decorous than their British sisters? In this article, I analyze how each of these radical feminist camps employed the strategies of outrage, law-breaking, and violence, noting that U.S. beauty pageant protesters were outrageous, but avoided the scandalous scofflawing and aggression of the London rebels. Investigating the historical and contemporary political worlds in which these two revolutionary groups worked, I show that U.S. and British attitudes toward law-breaking and violence were shaped by their native, early 20th century histories of feminism, as well as the American and European tumults and tragedies that characterized the age.
Drawing on the work of Reva Siegel, Jack M. Balkin, and Lynda G. Dodd, I will then consider how the U.S. and British protesters influenced their countries’ respective constitutional cultures and future feminist legal theories. Each camp’s approach to outrage, law-breaking, and violence in street protest would later be felt in successes and failures on the constitutional front, and also resound in a law-faithful U.S. feminism that differs significantly from its skeptical, anti-authoritarian British complement.

Download the article from SSRN at the link. 

Graphically Stated

More on cartoon and comic law today, this time via Findlaw. Bob Kohn of RoyaltyShare was allowed to file an amicus brief in the Justice Department's antitrust ebooks pricing case against Apple and other defendants. But the judge told Mr. Kohn to keep his brief short (no pun intended)--to five pages, in fact. So Mr. Kohn went with an extremely graphic style, He reduced his argument to cartoons. The case settled a day after he filed his brief. Oh, well. Perhaps not an approach that would work for every argument, but, in this case, points for style. Graphic style. 

Science Fiction as a Spur to Law

Kieran Mark Tranter, Griffith University Law School, has published The Speculative Jurisdiction: The Science Fictionality of Law and Technology, at 20 Griffith Law Review 818 (2011). Here is the abstract.

This article argues that scholarship on law and technology is a thoroughly speculative activity. The textual signifiers of this speculative orientation are the multiple incursion of science fiction that locate and justify lawyers writing about technology. Through a detailed examination of three law and technology literatures – on early space technology, IVF, and virtual-worlds – it will be shown that science fiction is the storehouse of images and imaginings that substantiate the legal projection of technological futures. When law confronts technology science fiction is its speculative jurisdiction. The suggestion is that through a more through-going engagement with science fiction as the speculative jurisdiction, law could more adequately engage with the complexities and contingencies of technological change.

Download the article from SSRN at the link.

Supernatural Law

Batton Lash's new book featuring Supernatural Law, The Monsters Meet at Court Street, is out: it features attorneys Alanna Lash and Jeff Byrd. More here.

Forty-Six Years of a Wagon Train To the Stars

Google's home page for today, September 7, 2012, features an adorable tribute to Star Trek: The Original Series (ST:TOS), which debuted on September 7, 1969. Click on the figures--sound effects!

Star Trek, and its spin-off shows have had a profound impact on popular culture. Dean Martha Minow made mention of an episode of Star Trek: The Next Generation (ST: TNG)--the famous episode Measure of a Man--in her address to the graduating class of 2011. According to this New York Times article, both President Obama and Governor Mitt Romney (and both also perhaps not incidentally HLS  grads) are ST fans. The late Rev. Martin Luther King famously urged actress Nichelle Nicholas not to leave the show after her first year because of her iconic presence as Lt. Uhura. And legal scholars have found time to write about the law-related themes on the various ST shows. Now, that's legal and societal impact.

Selected bibliography

Daniel Bernardi, Star Trek in the 1960s: Liberal-Humanism and the Production of Race, 24 Science Fiction Studies 209 (1997).

Paul Joseph and Sharon Carton, The Law of the Federation: Images of Law, Lawyers, and the Legal System in Star Trek, the Next Generation, 24 University of Toledo Law Review 43 (1992-1993).

Michael P. Scharf and Lawrence D. Roberts,  The Interstellar Relations of the Federation: International Law and Star Trek - The Next Generation, 25 University of Toledo Law Review 577 (1994).

Star Trek Visions of Law and Justice (Robert H. Chaires and Bradley Chilton, eds., University of North Texas Press, 2004).

More about the show's impact on pop culture here (from the Christian Science Monitor), a check on the ST:TOS cast here (from ABC News).

A New Book From Jose Calvo Gonzalez

José Calvo González, Professor of Philosophy of Law, University of Malaga, sends word of a new publication, and provides the Table of Contents.

José CALVO GONZÁLEZ
Occasio iuris. Estuche de miniaturas y extravagantes Prefacio de Luis Cancellier de Olivo Fundaçao Boiteux, Florianópolis (Brasil), 2012, 232 pp.
ISBN: 978-85-7840-075-0.
 Sumário
Prefacio
Luis Cancellier de Olivo
 Presentación
 Miniaturas
La vida a pie de muro
Esos maravillosos ‘Frikis’
Morir en paz
¿Ruidos? No sólo “il dito in bocca”
Sobre las vísperas de un Idus de Marzo
Las aceitunas de la ira
La Justicia por televisión
Spam, el cartero incesante
La paloma acuchillada
Justicia de proximidad
Europa y los Derechos
Revolución judicial neocon
Derecho cultural de la Comunicación
Jueces de Paz Escolares
Teoría pop del Preámbulo
Ironías de la libertad de expresión
Tráfico y expansión punitiva
¿Alta velocidad civil del desamor?
La Justicia, entre los juncos
Que aunque neglo, gente somo
 Extravagantes
Fiscalía instructora y Derechos fundamentales Caso “bebe Wyatt” Exigencias ético-jurídicas decisivas Harmonías jurídicas. Algunas notas (musicales) sobre Derecho y Justicia Ley 13/2005, sobre modificación del Código Civil en materia de derecho a contraer matrimonio: Reforma matrimonial, Adopción y Sociedad Genocidio y Jurisdicción universal: más olvidos renunciables De la palabra ley y las palabras de la ley Justicia de la Memoria. Sobre una Ley por la Recuperación de la Memoria Histórica Armonización jurídica europea: Derecho de familia. Matrimonio Certeza jurídica e Ignorancia del Derecho Ley de la Memoria, segundo “punto fnal”
Biblia, Corán y jueces
El principio “ley de la ventaja” y la regla de indignidad sucesoria El Código civil de Andrés Bello y los cayucos La naturaleza corporal como mítica del lenguaje (o cómo hacer palabras con
cosas)
Internet comicial (Sobre acuerdos e instrucciones de la Junta Electoral Central española) Ravel, Haydn y la pirámide normativa de Kelsen Swift y observancia de la ley antitabaco Mass media y arqueología jurídica (Una fábula de regreso al futuro) Democracia omisiva y derecho de sufragio activo. (Sobre el voto de los detenidos en dependencias policiales) De la ilusión del día de Reyes, el Derecho y la Justicia
 Fuente:
http://www.livrariafunjab.com.br/livraria/index.php?page=shop.product_details&category_id=6&flypage=flypage.tpl&product_id=232&option=com_virtuemart&Itemid=26&vmcchk=1&Itemid=26

A New Book About Legal History, Race, and Identity Before the Civil War

From the University of Pennsylvania Press:

In the Shadow of the Gallows (http://www.upenn.edu/pennpress/book/14973.html) reveals how a sense of racialized culpability shaped Americans' understandings of personhood prior to the Civil War. Author Jeanine DeLombard, Associate Professor of English the University of Toronto, draws from legal, literary, and popular texts to address fundamental questions about race, responsibility, and American civic belonging.

To receive a 20% discount on orders from www.pennpress.org, enter P4R3 in the promo code field.

Presumed Innocent, A Reader Favorite

The August 22nd Diane Rehm show features a segment about Scott Turow's novel Presumed Innocent. Panelists Leslie Maitland, Barry Coburn, and Alafair Burke discuss the book and the film based on it.

A short bibliography about Presumed Innocent and its themes below.

Christine A. Corcos, Presuming Innocence: Alan J. Pakula and Scott Turow Take On the Great American Legal Fiction, 22 Okla. City U. L. Rev. 129 (1997).

Christine A. Corcos, Prosecutors, Prejudices, and Justice: Observations on Presuming Innocence in Popular Culture, 34 U. Toledo L. Rev. 793 (2002/2003).

David R. Papke, The American Courtroom Trial: Pop Culture, Courthouse Realities, and the Dream World of Justice, 40 S. Tex. L. Rev. 919 (1999).

Scott Turow &  Kay Bonetti, An Interview with Scott Turow, 13 The Missouri Rev. 101 (1990).

Music, Murders, and Misdemeanors

Robyn Hagan Cain muses on the intersection of music and law for Findlaw here. Among her examples: Eric Clapton's "I Shot the Sheriff" and Michael Jackson's "Billie Jean."

Law and Justice On the Small Screen

Peter Robson, University of Strathcylde, Glasgow, School of Law, and Jessica Silbey, Suffolk University Law School, have published Law and Justice on the Small Screen (Introduction) (Hart Publishing, 2012).

Law and Justice on the Small Screen is a wide-ranging collection of essays about law in and on television. In light of the book's innovative taxonomy of the field and its international reach, it makes a novel contribution to the scholarly literature about law and popular culture. Television shows from the US, Canada, France, the UK, Germany, and Spain are discussed. The essays are organized into three sections: (1) methodological questions regarding the analysis of law and popular culture on television, (2) a focus on genre studies within television programming (including a subsection on reality television), and (3) content analysis of individual television shows with attention to big-picture jurisprudential questions of law's efficacy and the promise of justice. The book's content is organized to make it appropriate for undergraduate and graduate classes in the following areas: media studies, law and culture, socio-legal studies, comparative law, jurisprudence, the law of lawyering, alternative dispute resolution, and criminal law.

Download the essay from SSRN at the link. 

Harry Harrison (1925-2012)

Harry Harrison, the science fiction novelist, has died. He was the author of numerous classics, including "Make Room! Make Room!" which was transformed for the screen as Solyent Green, and those works which featured the con man, the Stainless Steel Rat. More in this obituary from the New York Times.

It Is a Fact Universally Acknowledged That Everybody Wants Jane's Vote

The Atlanticwire brings word of a new debate--the fight over Jane Austen's relevance to conservatives. Should they be claiming her as a politico-philosophical progenitor--like Ayn Rand? More here.

A Special Issue on "Law's Justice" From the Italian Society for Law and Literature

From M. Paola Mittica, Coordinator of the Italian Society for Law and Literature, news of a special issue of No Foundations. This issue, Law's Justice, includes contributions from James Boyd White, Jeanne Gaakeer, François Ost, Marianne Constable, Rebecca Johnson, M. Paola Mittica, Gary Watt, and Ari Hirvone. Download the full issue here.

A Global Perspective On Women's Legal History

Women's Legal History: A Global Perspective - Symposium Introduction: Making History will be available in volume 87 of the Chicago-Kent Law Review (2012). Here is the abstract.

This essay introduces the Chicago-Kent Symposium on Women's Legal History: A Global Perspective. It seeks to situate the field of women's legal history and to explore what it means to begin writing a transnational women's history which transcends and at times disrupts the nation state. In doing so, it sets forth some of the fundamental premises of women's legal history and points to new ways of writing such histories.

Download the essay from SSRN at the link. 

A Look at "Buck v. Bell"

Victoria F. Nourse, Georgetown University Law Center, has published Buck v. Bell: A Constitutional Tragedy from a Lost World at 39 Pepperdine Law Review 101 (2011). Here is the abstract.

Some constitutional tragedies are well known: Plessy v. Ferguson and Korematsu v. United States are taught to every first-year law student. Buck v. Bell is not. Decided in 1927 by the Taft Court, the case is known for its shocking remedy -- sterilization -- and Justice Holmes's dramatic rhetoric: "Three generations of imbeciles are enough." A mere five paragraphs long, Buck v. Bell could represent the highest ratio of injustice per word ever signed on to by eight Supreme Court Justices, progressive and conservative alike.

Buck v. Bell is not a tragedy as some others might define tragedy: it is not a well-known opinion, nor did it yield wide popular criticism; it sits as a quiet evil, a tragedy of indifference to the Constitution and its most basic principles. To include Buck as a tragic opinion is to recognize what Hannah Arendt once dubbed the "banality of evil." Even if grounded in eugenic assumptions widely held at the time, Buck v. Bell was an utterly lawless decision. Holmes treated Carrie Buck's constitutional claims with contempt. The opinion cites no constitutional text or principle emanating from the text. The only "law" in the opinion must be unearthed from a lost constitutional history embedded in a factual exegesis full of disdain for the Constitution and humanity itself. Few human tragedies can be greater "than the denial of an opportunity to strive or even to hope, by a limit imposed from without, but falsely identified as lying within." A lawless legitimation of such a principle -- one of natural aristocracy -- flies in the face of the very constitutional principles on which our nation was founded.

Download the article from SSRN at the link. 

Desmond Manderson on Law and Literature

Desmond Manderson, ANU College of Law; ANU College of Arts & Social Sciences; McGill University Faculty of Law, has published Modernism and the Critique of Law and Literature at 35 Australian Feminist Law Journal 105 (2011). Here is the abstract.

‘Law and literature’ suffers from two besetting weaknesses: first, a concentration on substance and plot and, second, a salvific belief in the capacity of literature to cure law or perfect its justice. The first fails to question the Platonic ideal that the purpose of art is mimetic. The second fails to question the romantic ideal that the purpose of art is to heal the world’s wounds. Too often in opening a dialogue with law we fail to capture the real experience or worth of literature - a worth irreducible to either the morality it ‘stands for’, or to the coherence or harmony it promises. Indeed, the aesthetic ideals of modernism, which so dramatically altered the landscape of literature, philosophy and politics around the turn of the (twentieth) century, reject just these claims. Modernism - to be more sharply distinguished from ‘modernity’ than it often is - produced instead a heightened attentiveness to questions of style, form, and language, and to questions of diversity and subjectivity in voice and perspective. Modernism cast off the aesthetic ideologies of mimesis and romanticism and opened up claims of truth, progress, and perfection to the destabilizing subtlety of irony. This essay’s focus on modernist irony, with particular attention to the work of Mikhail Bakhtin, suggests a very different orientation and defense of ‘law and literature’.

Download the article from SSRN at the link. 

A Nineteenth Century Crime Drama From BBC America

BBC America launches its first scripted show, Copper, on August 19th. The show, set in New York's Five Points in 1863,features a police officer named Kevin Corcoran (Tom Weston-Jones). The series, created by Barry Levinson and Tom Fontana, is on every Sunday at 10 p.m., 9 Central time.

More here from Richard Morgan (Wall Street Journal online).