The Civil War In Photographs: At NOMA Beginning January 31st

A new photography exhibit opens at the New Orleans Museum of Art January 31 and runs through May 4: Photography and the American Civil War.

"Textual Poachers" and Fair Use

Rebecca Tushnet, Georgetown University Law Center, is publishing  'I'm a Lawyer, Not an Ethnographer, Jim': Textual Poachers and Fair Use, in the Journal of Fandom Studies. Here is the abstract.

This short article, written for a festschrift for Henry Jenkins, discusses the influence of his work on media fandom in legal scholarship and advocacy around fair use.

Download the essay from SSRN at the link. 

Law, Gender, Islamophobia, and YouTube

Suzanne Bouclin, University of Ottawa, Common Law Section, has published YouTube and Muslim Women's Legal Subjectivities in volume 3 of the Oñati Socio-Legal Series (2013). Here are the English and Spanish abstract.

   

English Abstract: This paper is located within the discursive and spatio-temporal landscape of post 9/11 Canada in which national identity and beliefs about belonging are embedded in pervasive Islamophobia. Its starting point is that social media are key sites for expression of discrimination and intolerance vis-à-vis people of the Muslim faith, and especially the constitution of Muslim face and head scarves as a metonym for Islamic terrorism and a quintessential symbol of uniquely fundamentalist manifestation of patriarchy. I ask, however, whether new modes of visibility might be captured when we examine representational sites of Muslim femininity through the lens of ‘new’ or ‘critical’ legal pluralism. I highlight how women have used Social Networking Sites (SNSs) to respond and reconfigure more entrenched discourses around Muslim femininity circulated elsewhere, such as in formal institutionalized state-based law, mainstream/Western feminist discourses, and in popular cultural productions. I have found that Muslim women deploy social media to constitute or express alternative subjectivities and to represent and evaluate their own understandings of feminism, normative femininity, religious practices, including the multiple meanings that attach to the donning of Islamic headscarves.

Spanish Abstract: Este documento se encuentra en el paisaje discursivo y espacio-temporal de la Canadá post 11-S, cuya identidad nacional y creencias sobre la pertenencia están integradas en la islamofobia dominante. Su punto de partida es que las redes sociales son sitios clave para la expresión de la discriminación y la intolerancia vis-à-vis de la fe musulmana, y en especial la constitución del rostro musulmán y del pañuelo en la cabeza como una metonimia de terrorismo islámico y el símbolo por excelencia de la única manifestación fundamentalista del patriarcado. Me pregunto, sin embargo, si las nuevas formas de visibilidad pueden ser capturadas cuando examinamos sitios de representación de la feminidad musulmana a través de la lente de un "nuevo" o "crítico" pluralismo jurídico. La autora destaca cómo las mujeres han utilizado sitios de redes sociales para responder y volver a configurar discursos más arraigados alrededor de la feminidad musulmana distribuidos en otros lugares, como la ley formal basada en el estado institucionalizado, discursos feministas dominantes/ occidentales, y las producciones culturales populares. La autora encuentra que las mujeres musulmanas utilizan los medios sociales para constituir o expresar subjetividades alternativas y para representar y evaluar su propia comprensión del feminismo, la feminidad normativa o las prácticas religiosas, incluyendo los múltiples significados que se adhieren a la colocación del velo islámico.

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

Call For Papers, Law Text Culture

From Marco Wan, Associate Professor of Law, University of Hong Kong, comes this Call For Papers:

Law Text Culture – Volume 18 (2014) CALL FOR PAPERS

Law Text Culture is an interdisciplinary peer reviewed journal published by the Legal Intersections Research Centre at the University of Wollongong, Australia. http://lha.uow.edu.au/law/LIRC/LTC/index.html

Volume 18 will address the theme:
“The Rule of Law and the Cultural Imaginary in (Post-)colonial East Asia”

GUEST EDITORS:  Marco Wan & Janny Leung Faculty of Law & School of English, University of Hong Kong

Email: mwan@hku.hk; hiuchi@hku.hk
Volume 18 of Law Text Culture explores how the rule of law is represented in a variety of discourses both within and outside the legal domain – including film, television, opera, court cases, and popular magazines – in East Asia. It re-orients the study of ‘Law and Humanities’ by shifting the focus from the Western World to East Asia, and presents a new approach to the study of East Asian legal culture by approaching the region through a post-colonial lens.
We are particularly interested in contributions on Singapore, Malaysia and Korea, though articles on other countries or jurisdictions in the region are welcome. The volume will include both critical essays and less conventional forms of legal reflection such as memoirs, photo- essays, poetry and artistic pieces.
The relationship between the rule of law and (post-)colonialism has been the subject of lively scholarly debate. This volume investigates how the rule of law has been articulated, refracted, conceptualized, or resisted by different discourses in colonial and post-colonial societies in East Asia. It also builds on recent, site-specific works on post-colonial studies that give cultural and geographical precision to the arguably more universalist tone of the first generation post-colonial theorists. The volume’s focus on (post-)colonialism will keep clearly in view continuities and underlying parallels between the East Asian region and places with a legacy of colonialism, such as India, Australia, and Canada. The term ‘cultural imaginary’ is broadly defined, and includes articulations or representations of the rule of law in a range of cultural products in human society, including, but not limited to, the law itself.
In you are interested in contributing to this special issue of Law Text Culture please submit an abstract of no more than 300 words to the guest editors by email by 28 February 2014. Authors will be informed of decisions on abstracts by the end of March. Selected authors will be invited to submit full papers by 31 May 2014, and will be informed of the outcome of the peer review process by August 2013. Volume 18 of Law Text Culture is scheduled for publication in December 2014.

Life Imitates Art

CNN suggests Scandal's Olivia Pope would have a game plan for clients in pop star Justin Bieber's current legal situation. More here.

Fashion and Law

If you missed it: check out Ruthann Robson's  (CUNY Law) Dressing Constitutionally (Cambridge University Press, 2013).

Here's the description from the publisher's website:

The intertwining of our clothes and our Constitution raise fundamental questions of hierarchy, sexuality, and democracy. From our hairstyles to our shoes, constitutional considerations both constrain and confirm our daily choices. In turn, our attire and appearance provide multilayered perspectives on the United States Constitution and its interpretations. Our garments often raise First Amendment issues of expression or religion, but they also prompt questions of equality on the basis of gender, race, and sexuality. At work, in court, in schools, in prisons, and on the streets, our clothes and grooming provoke constitutional controversies. Additionally, the production, trade, and consumption of apparel implicates constitutional concerns including colonial sumptuary laws, slavery, wage and hour laws, and current notions of free trade. The regulation of what we wear – or don't – is ubiquitous. From a noted constitutional scholar and commentator, this book examines the rights to expression and equality, as well as the restraints on government power, as they both limit and allow control of our most personal choices of attire and grooming.

Discusses how the government regulates what we wear and how we look - and how the Constitution influences this

Examines how the Constitution itself was shaped by fashion

She's Ba-a-a-c-k....

Christina Ricci resurrects lead character Lizzie Borden in Lifetime Movie Network's retelling of the famous unsolved murders of Andrew and his second wife in Lizzie Borden Took an Axe on January 25 at 8 p.m., 7 Central time. Clea DuVall plays Emma, Lizzie's older sister, who was away from the Borden home at the time of the murders. Will this tv movie erase memories of the Elizabeth Montgomery version made in 1975, when Christina Ricci was minus 5? Early looks at this entry in the Lizzie videography from Variety, the Los Angeles Times. 

A number of scholars have studied Lizzie's path through law and popular culture. Here's a short and highly selective bibliography.

Filetti, Jean S., From Lizzie Borden to Lorena Bobbitt: Violent Women and Gendered Justice, 35 Journal of Am. Stud. 431 (December 2001).

Langlois, Janet L., Andrew Borden's Little Girl: Fairy- Tale Fragments in Angela Carter's "The Fall River Axe Murders" and "Lizzie's Tiger," 12 Marvels & Tales 192 (1998).

Miller, Stephanie, "How Unbearably Heavy These Skirts Can Be": Popular Feminism in 1970s America and The Legend of Lizzie Borden, 21 Women: A Cultural Review 323 (2010).

Robertson, Cara W., Representing "Miss Lizzie": Cultural Conventions In the Trial of Lizzie Borden, 8 Yale J. L. & Human. 351 (1996).

Roggenkamp, Karen, A Front Seat to Lizzie Borden: Julian Ralph, Literary Journalism, and the Construction of Criminal Fact, in Narrating the News: New Journalism and Literary Genre in Late Nineteenth-Century American Newspapers and Fiction 54 (2005).

Schofield, Ann, Lizzie Borden Took an Axe: History, Feminism and American Culture, 34 Am. Stud. 91 (Spring 1993).

Professor Douglas Linder of the University of Missouri (KC) School of Law guides us through the trial, evidence and related materials here.

Sumptuary Laws From Magna Carta to the Constitution

Ruthann Robson, CUNY School of Law has published Beyond Sumptuary: Constitutionalism, Clothes, and Bodies in Anglo-American Law, 1215-1789, in volume 2 of the British Journal of American Legal Studies (Fall 2013). Here is the abstract.

Current scholarship is peppered with casual references to “sumptuary laws” whenever regulations of clothing or bodies are at issue. Too often, these references are incorrect, or at best incomplete. This Article is a careful consideration of the various regulations of attire and bodily markings from the Magna Carta in 1215 to the adoption of the United States Constitution in 1789. This Article situates bodily regulation within Anglo-American constitutionalism, including nascent constitutional Tudor-era struggles between the monarch and Parliament, the status of colonial laws, the American Revolution, pre-constitutional slavery, and the formation of the Constitution, including a proposed “Sumptuary Clause.”

Download the article from SSRN at the link. 

Looking at Postcolonial Law and Literature

Dustin A. Zacks has published A Bend in the Law & Literature: Greed, Anarchy and Dictatorship in the African Worlds of V.S. Naipaul and Ngugi Wa Thiong'o in volume 34 of the North Illinois University Law Review (2013). Here is the abstract.

This Article examines two giants of colonial and postcolonial fiction involving African states that heretofore have been largely ignored by the law and literature movement. Nobel Prize winner V.S. Naipaul and East Africa’s foremost novelist Ngugi Wa Thiongo’o are worth studying for their vivid descriptions of the challenges postcolonial societies face – challenges such as corruption and authoritarianism that are usually addressed, at least in legal scholarship, in the context of international or human rights law, rather than in the context of narrative fiction.

The Article also critiques traditional academic literary criticism for its disparate treatment of the two authors. Naipaul is attacked as being a snobbish Westerner, whose gloomy pronouncements about the state of the law and the prospect of reform in African states arise from his supposedly racialist opinions. Thiong’o, by contrast, has been heralded for giving an authentic, non-Western view of Kenya’s independence and post-independence struggles.

The Article should serve as a reappraisal of the previous criticism of Naipaul’s work in light of the precision of his dire descriptions of corrupt African officialdom, which compares favorably with Thiong’o’s supposedly more authentic voice.

Download the article from SSRN at the link. 

Law and Custom In Legal History

P. G. Monateri, Sciences Po, Ecole de Droit; Law School, University of Turin;  has published Law, Language and Custom. (Legge, Linguaggio e Costume.). Here is the abstract (in English and Italian).

English Abstract: The Author investigates the ambiguities of the term Law and Custom, to deepen the relationship they maintain with the language devoted to their presentification. Law always supersede the words that try to capture its meaning, and the opposition between Law and Custom is never the same in Legal History. Peculiarly today old theories are employed to establish a new concept of soft law as a powerful tool of global governance, but they rest on quicksands. These theories point at a 'suspension of disbelief' grounded more on aesthetic metaphors than on scientific premises.
Italian Abstract: L'autore investiga le ambiguità dei termini Legge e Costume, per approfondire la relazione che mantengono con il linguaggio incaricato di presentificarli. La Legge oltrepassa sempre le parole che cercano di catturarne il significato, e l'opposizione tra Legge e Costume non è mai costante nella storia del diritto. In particolare oggi le vecchie teorie sono impiegate per stabilire nuovi concetti come soft law in grado di fungere da potenti strumenti di governo del globale, ma le loro fondamenta giacciono sulle sabbie mobili. Queste teorie puntano invero ad una 'sospensione dell'incredulità' fondata pià su metafore estetiche che su premesse scientifiche.

The full text of the paper is not available from SSRN. 

A Law and Humanities Conference at Australian National University

An announcement of a law and humanities conference at Australian National University:

Law and the Visual—Transitions & Transformations       
Humanities Research Centre, Australian National University:      7 - 8 July 2014
 The Humanities Research Centre at the Australian National University is one of the world’s oldest and best-known research centres in interdisciplinary humanities. As part of its 2014 Annual Theme, Now Showing: Cultures, Judgements, and Research on the Digital Screen, we are calling for papers on themes of visual representations of law in history and the contemporary world, focusing in particular on moments of transition and transformation. Over the long journey of modernity, technologies of law and technologies of the visual have been marked by their volatility and inventiveness. On the one hand, changing technologies of law – the emergence of the text, the development of legislation, the might of sovereignty, structures of colonialism, mechanisms of human rights, new modes of regulation, governance, and discipline – have continually transformed our understanding of and relationship to legality. On the other hand, changing technologies of visual representation – the development of perspective, the triumph of printing, photography, film, and video games to name a few – have equally transformed our understanding of and relationship to images. In what ways can each shed light on the other?
v  How have technologies of visual representation reflected, illuminated, and constituted ideologies of law and legality – particularly at moments of significant transition or transformation?
v  In what way do visual representations of law throughout the pre-modern, modern and contemporary periods illuminate and challenge our understanding of the changing relationship between law, aesthetics, and power?
v  In what ways do contemporary media allow new opportunities for a cross-cultural conversation around key legal issues and conflicts?
v  How does the aesthetics and technology of the digital screen transform the representation of legal concepts such as the rule of law, sovereignty, justice, or human rights?
 Only a limited number of papers can be accepted for this symposium. It provides a rare opportunity to join an outstanding cast of international scholars in legal history, legal theory, and legal aesthetics to discuss and present exciting new work on the intersection of law and the visual. Negotiations are currently underway with possible partners for the publication of selected papers. Confirmed participants include—
 
    Alison Young (University of Melbourne), criminologist; author of Judging the Image (2005), and Street Art, Public City (2014) 
    Peter Goodrich (Cardozo School of Law), legal historian; author of Oedipus Lex (1996), and Legal Emblems (2013)
 
    Richard Sherwin (New York Law School), director of the Visual Persuasion Project; author of Visualizing Law (2011)
 
      Desmond Manderson (Australian National University), founding director, Institute for the Public Life of Art and Ideas; author of Kangaroo Courts & the Rule of Law (2011)

Abstracts of no more than 250 words should be directed to the Convenor. Please include a 75 word bio note, institutional affiliation, and contact details, and put TRANSITIONS AND TRANSFORMATIONS in the subject line.  Closing date for submissions is 31 March.  On-line registration will be available from the end of April. 
Professor Desmond Manderson, Convenordesmond.manderson@anu.edu.auHumanities Research Centre, ANUhttp://hrc.anu.edu.au/2014HRCAnnualTheme 

Check out the conference website here.

Prosecuting Dorian Gray

Simon Stern, University of Toronto Faculty of Law, is publishing The Trial of Dorian Gray in Dorian Gray in the Twenty-First Century (Richard Kaye, ed.; Oxford University Press, forthcoming). Here is the abstract.

Wilde’s three trials in 1895 served, in effect, as an obscenity prosecution of The Picture of Dorian Gray (1890/91). Though the novel was not formally charged with obscenity, Dorian Gray’s first reviewers suggested that it was obscene, and the book remained unavailable in England for nearly two decades after Wilde’s trials. The novel's relation to Wilde's trials thus raises a number of questions about the use of fiction as legal evidence and about the ways in which a criminal prosecution might be taken to reveal the meaning of the defendant's writings. This essay discusses the late Victorian campaign against obscene literature and the victims of that campaign; the reviews of the original version of Dorian Gray (in Lippincott's Magazine, 1890); the oblique manner in which the innuendo about its obscenity functioned during Wilde's three trials (1895); Wilde's own ironic engagement, at several key points in the novel, with the conception of influence at work in the legal test governing the evaluation of obscenity (R. v. Hicklin, 1868); the relation of the painting itself, and of the notorious French novel that Dorian borrows from Lord Henry, to that conception of influence; and Wilde's reenactment of his ironic perspective at the narrative level.

Download the essay from SSRN at the link. 

A Comparative Law Conference In Aix-en-Provence

From Olivier Moreteau, Louisiana State University Law Center

 


CALL FOR PAPERS / APPEL À COMMUNICATIONSJURIS DIVERSITASANNUAL CONFERENCE / CONGRÈS ANNUEL 17 July (evening) to 19 July 2014 / 17 juillet (soir) au 19 juillet 2014Faculté de droit et de science politiqueAix-Marseille Université - Aix-en-Provence, France COMPARATIVE LAW AND …/ LE DROIT COMPARÉ ET … Inherently interdisciplinary, the conference’s primary focus will be comparative law’s links to a wide variety of other disciplines and themes (e.g., anthropology, economics, feminism, history, the humanities, legal education, legal philosophy, literature, politics …). Proposals may be theoretical analyses or case studies on the past or present, North or South, East or West … Le congrès sera interdisciplinaire et explorera les liens entre le droit comparé et toute branche, discipline ou thématique des sciences humaines et sociales (anthropologie, économie, féminisme, histoire, éducation juridique, philosophie, littérature, science politique etc.). Les propositions peuvent prendre la forme d’approches théoriques ou pratiques, portant sur le passé ou le présent, le Nord ou le Sud, l’Orient ou l’Occident… Proposals may be in either English or in French. Any proposal on comparative law will be considered. Panel proposals are strongly encouraged, as is the participation of doctoral students and scholars from outside of the discipline of law. Proposals of circa 250 words (or 1000 words for panel proposals) should be submitted to Olivier Moréteau at moreteau@lsu.edu by 28 February 2014. Please attach a short biography or resume.
 Toute proposition portant sur le droit comparé, en anglais ou en français, sera considérée. Les offres de table ronde sont bienvenues, de même que la participation de doctorants et d’universitaires non juristes. Les propositions de 250 mots environ (ou 1000 mots pour une proposition de table ronde) sont à envoyer à Olivier Moréteau (moreteau@lsu.edu) avant le 28 février 2014. Merci de joindre une biographie ou un bref CV.
 Registration fees are €200 (€125 for Juris Diversitas members paid up for 2014). Membership information and information on fee payment is available on the Juris Diversitas Blog (http://jurisdiversitas.blogspot.ie/).  Note that registration fees don’t cover travel, accommodation, or the conference dinner (€50).
 Les droits d’inscription sont de €200 (€125 pour les membres de Juris Diversitas à jour de leur cotisation pour 2014). Les informations pratiques sont disponibles sur http://jurisdiversitas.blogspot.ie/.  Les droits ne couvrent pas les frais de voyage et de logement, ni le banquet du congrès (€50).
  

A Free Event at the Center for Public Scholarship, The New School

The Center for Public Scholarship at The New School is pleased to announce a free public event:

Speaking for the Humanities

On Thursday, February 20, 2014, from 6 to 8 p.m. at 

The New School

Arnold Hall, 55 West 13th Street, 2nd floor, NYC

February 20, 2014

Reception follows

RSVP at goo.gl/4djG7C

The CPS invites readers of the Law and Humanities Blog to attend.

On the occasion of the publication of Humanities and Public Life by Fordham University Press, a panel of scholars discuss how to defend and even talk about the humanities without succumbing to the instrumentalist language of their detractors (measuring outcomes and deliverables) or retreating into the ivory tower by simply asserting that the humanities don't need justification.

Panelists:

Judith Butler, Wun Tsun Tam Mellon Visiting Professor of the Humanities, Columbia University; Maxine Elliot Professor in the Department of Comparative Literature, University of California, Berkeley

Richard Sennett, Centennial Professor of Sociology, London School of Economics; University Professor of the Humanities, New York University

Patricia J. Williams, James L. Dohr Professor of Law, Columbia Law School


Moderator: 

Peter Brooks, Andrew W. Mellon Foundation Scholar, Professor, University Center for Human Values, Department of Comparative Literature, Princeton University

Human Rights From Conrad to Coppola

P. G. Monateri, Sciences Po, Ecole de Droit; Law School, University of Torino (Italy); University of Turin, Faculty of Law, has published In the Shadow of an Absent Law. Human Rights and the Meaning from Conrad to Coppola, Via Eliot and Brooks in 19 The Cardozo Electronic Law Bulletin (2013 Edition), The Fall Issue. Here is the abstract.

A Presentation Held at the Annual Meeting of Italian Association of Law and Literature (AIDEL) analyzing the way Coppola produces meaning through deferral giving the Human Rights content to the faceless horrors of Conrad's Kurtz, via essential quotations from Eliot. In this way the Author also purport a theory of the meaning of the Waste Land through the close reading of its Epigraphe after Pound's interventions.

Download the essay from SSRN at the link.

Sherlockery Mockery

London's Mayor Boris Johnson says the fake news story that pops up at the end of the most recent episode (Season 3, episode 1) of the BBC hit series Sherlock doesn't bother him, even though it makes reference to the "current" Mayor of London's plan to situate an airport in the middle of the Thames. Mr. Johnson takes the position that the BBC has the right to criticize politicians and that the show's writers might be making reference to one of his predecessors in office. The BBC noted that Sherlock, is after all, just a tv show. Oh, and calling that fictional mayor "incoherent" with "hair-brained" (sic) schemes? Nothing to do with Mayor Johnson at all.



Cross-posted from Media Law Prof Blog

A Blog On Law and Film

Check out this interesting blog (in French)--Le Blog Droit et Cinema.

ASLCH Annual Meeting Opens Registration

From James Martel, President of ASLCH: (message edited)

Register for the conference at
 https://www.regonline.com/17thannualmeetingLCH
NOTE: If you haven't registered at all you can register now in one step instead of two. Note that our program is  being created from existing applications so if you are new, please send me directly anything you propose to do (be a chair, discussant or even a late add on panelist) directly. My email is jmartel@sfsu.edu. I'll update the program accordingly.
I have appended the call for papers and information about hotels below. Welcome and see you all in Charlottesville!
James
 James Martel
President, ASLCH
Here, once again is the Call for papers:

The Politics of Law and the Humanities: Crisis, Austerity, Instrumentalism
How will law and the humanities scholarship fare against the pressure of the science and technology paradigm that has now permeated the institutional frameworks of academia? Will it mime the general humanities and, as suggested by the defeatist pomp of many national "crisis reports", merely retreat to its traditional position as the well-mannered guardian of liberal values? Will law and the humanities scholarship be subsumed under the science paradigm's instrumental ethos by either taking on aims and objectives sanctioned by government policies or by domesticating its own political potential to address those very same policies? Or can we imagine more salutary alternatives to defeatism and instrumental subsumption?
The terrain is well known. The ongoing economic crisis has engendered a worldwide decline in funding for research in the humanities showing sharp decreases between 2009 and 2012 with funds almost cut in half each year. The global trend is also detectable at national levels, with growing gaps between public investment into STEM subjects and the humanities. But the changes do not merely concern the fiscal prioritization of diminishing resources. The social sciences, including law, are under constant political pressure as lawmakers question the value of curiosity-driven basic research. This pressure is then mirrored at the institutional level of individual law schools emphasizing their vocational remits at the expense of research and scholarship. And this research and scholarship is itself increasingly cast in reformist, practical, and "policy relevant" terms, and directed to issues of perceived topical and regulatory concern.
The implied allegation is simple enough: basic research in the humanities and social sciences is, if not obsolete, then at least a luxury we can't afford in these times; because it cannot satisfy the more immediate needs of market-driven societies in the current economic climate, it is politically irrelevant.
But can we imagine new ways to claim - or, perhaps, to reclaim - our political relevance? Are we relevant in other, perhaps more radical ways? And if we are, how? Is there a politics that is specific to law and the humanities? Or can we articulate the limits to the conversation about "relevance" in a way accessible to minds focused on instrumentality? How might we respond to our critics, or do we ignore them?
Participants are encouraged to reflect on this broad, but not exclusive, conference theme.
In addition to sessions that connect to the theme, examples of other types of sessions we expect to organize include: History, Memory and Law; Reading Race; Law and Literature; Human Rights and Cultural Pluralism; Speech, Silence, and the Language of Law; Judgment, Justice, and Law; Beyond Identity; The Idea of Practice in Legal Thought; Metaphor and Meaning; Representing Legality in Film and Mass Media; Anarchy, Liberty and Law; What is Excellence in Interpretation?; Ethics, Religion, and Law; Moral Obligation and Legal Life; The Post-Colonial in Literary and Legal Study; Processes and Possibilities in Interdisciplinary Law Teaching.
We urge those interested in attending to consider submitting complete panels, and we hope to encourage a variety of formats-roundtables, sessions at which everyone reads the papers in advance, sessions in which commentators respond to a single paper. We invite proposals for session in which the focus is on pedagogy or methodology, for author-meets-readers sessions organized around important books in the field, or for sessions in which participants focus on performance (theatrical, filmic, musical, poetic).
 I'm also reposting information about hotels: 

Hotel information:

We have reserved rooms in three Charlottesville hotels.  The main conference hotel, where we have reserved 80 rooms, is Hyatt Place, a brand-new hotel.  It is a short drive from the Law School, and they have a shuttle service.  The rate we negotiated is $139/night plus tax.  To reserve, call +1 434 426 4428 and state that you are a part of the ASLCH. You must reserve a room in Hyatt Place by Sunday, February 9.
For those of you who would rather be walking distance from the law school, we have reserved 30 rooms at the Inn at Darden, a hotel owned and operated by UVA's Darden School of Business, about a 5-minute walk from the law school.  To reserve a room there, call +1 434 243 5000 or, if in the US, 1-434-243-5000 and state that you are a part of ASLCH.  The rate for the room is $135/night plus tax. You will need to reserve a room by Saturday, February 1.
In case both of these hotels fill, we have also reserved 30 rooms at the Courtyard Marriott University.  It is a short drive from the Law School, and if enough participants are staying there, we may be able to run a bus to the conference.  To reserve a room online, please go to www.marriott.com/chodt<http://www.marriott.com/chodt> and use the booking code ASLASLA or ASLASLB. You can also call +1 434 977 1700 and state that you are a part of ASLCH. The room rate is $169/night plus tax. You will need to reserve a room by Sunday, February 9.

If you have any questions you can email the hotel managers directly at these addresses:
Hyatt Place: Sheleigha Early (sheleigha.early@hyatt.com<mailto:sheleigha.early@hyatt.com>)
Inn at Darden: Bridget Merker (reservations@darden.virginia.edu<mailto:reservations@darden.virginia.edu>)
Courtyard Marriot: Alex Jobin (Alex.Jobin@crestlinehotels.com<mailto:Alex.Jobin@crestlinehotels.com>)

Criminology and Reform in the Early 20th Century

Michele Pifferi, University of Ferrara, Faculty of Law, has published Global Criminology and National Tradition. The Impact of Reform Movements on Criminal Systems at the Beginning of the 20th Century in Entanglements in Legal History: Conceptual Approaches (Thomas Duve, ed.; Max Planck INstitute for European Legal History Open Access Publications, 2013).

This article focuses on the international movement towards individualization of punishment between the 1870s and the 1930s as a model to study how legal theories developed in a global scientific dialogue have been differently shaped according to national traditions. Even if interpreted in different ways, the common idea shared by prison reformers, exponents of the new criminological science and a large part of public opinion in Europe, United States and Latin America necessitated a radical change from repression to prevention. The main focus shifted from crime as an abstract entity to criminals as natural, social human beings immersed in a complex network of environmental, social, economic conditions which affected their behavior. Nonetheless, the ‘criminological wave’ between the 1880s and the 1930s was not a uniform international parenthesis, but reflected in its variety the differences between American and European legal cultures and their notion of the principle of legality.

Download the essay from SSRN at the link.

A Reception Study on International Law in the US

Vincent Chetail, Graduate Institute of International and Development Studies (HEI), has published Vattel and the American Dream: An Inquiry into the Reception of the Law of Nations in the United States  in The Roots of International Law: Liber Amicorum Peter Haggenmacher 251 (V. Chetail & P.-M. Dupuy eds.; Martinus Nijhoff, 2013). Here is the abstract.

No other book on international law has been more widely read and cited than The Law of Nations by Vattel. The present article identifies and analyses the various reasons that explain Vattel’s authority in the United States. It first retraces his influence on the Founding Fathers, on the subsequent diplomatic and judicial practice, and on the legal doctrine in the United States. The article then examines his conception of national sovereignty as the most decisive reason explaining Vattel’s influence in the United States and the overall impact of his work.

Download the essay from SSRN at the link. 

Bobblehead Law

News about the Supreme Court bobblehead premiums one might score for subscribing to The Green Bag (nice marketing touch, that) seems to be going viral. Alison Vingiano posted this piece to Buzzfeed on December 30, 2013, and CBS ran this story on January 6, 2014. More about the bobbleheads here at the Green Bag website.

So, what's the law on bobbleheads (watch the spelling)? Bobbleheads have actually figured in several cases, including copyright and insurance (Ohio Disc. Merch. Inc. v Westfield Ins., 2006-Ohio-4999, decided Sept. 26, 2006), in which an insurer refused to pay under a policy, alleging that the insured had used infringing (copyrighted) images of bobbleheads in its advertisements, and the action arose out of a breach of contract that was not covered under the policy. The same company, Ohio Discount Merchandise, settled a dispute in with former California Governor Arnold Schwarzenegger in 2004 over production of a Schwarzenegger bobblehead doll that pictured him with a gun. The deal agreed upon allowed the company to produce a Schwarzenegger doll without the gun; the company agreed to donate a percentage of its sales from the dolls to one of the Governor's preferred charities.  

Salieri and the Legal Writer

Charles E. MacLean, Indiana Tech Law School, has published Helping Legal Writers Embrace Their Inner Salieri: Re-Vision is Just 'Seeing Again' in volume 70 of Clarity (November 2013). Here is the abstract.

The sublime perfection of Mozart’s compositions arose from his ability to present complex material clearly, cleanly, and without pretense or excess. Mozart’s compositions are accessible to all listeners. They do not require the listener to have had special training or experience. They do not presuppose that the listener has been exposed to some musical jargon or genre. The music “speaks” to everyone. And that is the goal for all legal writers – to speak to all legal readers. The writing must be accessible and clear regardless of each reader’s background or expertise. The writing must be pure essence without pretense. It must not force the reader to struggle to comprehend. It must not furrow the reader’s brow. That can all be condensed into one concept: Great legal writers make economic use of plain language. Now, reflect on that concept, and the legal writer will find that the concept applies to every type of legal writer. Although each sub-group of legal writers has its own needs and wants and its own level of expertise or experience, legal writing that is presented economically in plain language will ensure that clients are served and informed; judges are more likely to be persuaded; and partners and supervising attorneys are educated and advised.

All of this only requires that the legal writer re-vision, to see again with each reader’s eyes. But no matter the type of reader, plain language will better achieve the goal that the writer seeks. Plain legal language informs and advises without risk of inadvertent confusion. It persuades without furrowing the reader’s brow. Remember, we are Salieris, not Mozarts who can “simply [write] down music already finished in his head!” We must spend the time to re-vision and rewrite in plain legal language.

Download the article from SSRN at the link. 

Recovering the "Tragic Dimension" In the Legal Order

Pedro Caro de Sousa, University of Oxford, has published Law as Tragedy. Here is the abstract.

Natural law and tragedy have been long intertwined, but the tragic dimension has been lost in the way contemporary legal orders tend to equate natural law with human rights. The "institutionalisation" of these rights as part of political and administrative culture, the adoption of procedural paradigms such as those of "the priority of rights over the good", and the idea that to each legal question there is a single right answer have led to a judicialisation of the political sphere and to the development of a technocratic culture that leaves no room for the articulation or realisation of competing conceptions of good. The present paper seeks to bring to the forefront the tragedy inherent in human rights’ adjudication – i.e., the fact that when deciding between two different values or goods expressed in human rights, an adjudicator may have to fully sacrifice one of them, or both of them partially.
In particular, this paper is concerned with the implications of incommensurability for rights adjudication, which tends to be overlooked in much of contemporary constitutional theorising. To understand these implications, an overview of the development of the present rights’ culture and the history of the intellectual underpinnings of the "right-answer" postulate will be pursued. This paper will then proceed to identify the limitations of this position and intellectual tradition. Lastly, an attempt will be made to understand, and even justify, rights’ adjudication in contemporary pluralistic legal orders.

Download the paper from SSRN at the link. 

A New TV Thriller About Law, Hi-Tech, and National Security

From The Hollywood Reporter, a review of CBS's new series, Intelligence, which premieres January 7 at 9 p.m. (8 Central time), after NCIS. According to the website,

INTELLIGENCE is a dramatic thriller starring Josh Holloway as a high-tech intelligence operative enhanced with a super-computer microchip in his brain. With this implant, Gabriel is the first human ever to be connected directly into the global information grid and have complete access to Internet, WiFi, telephone and satellite data. He can hack into any data center and access key intel in the fight to protect the United States from its enemies. Leading the elite government cyber-security agency created to support him is Director Lillian Strand, a straightforward and efficient boss who oversees the unit's missions. Strand assigns Riley Neal, a Secret Service agent, to protect Gabriel from outside threats, as well as from his appetite for reckless, unpredictable behavior and disregard for protocol. Also on the team is Chris Jameson, a resourceful federal investigator. The brains behind the design of the chip is Dr. Shenendoah Cassidy, whose son, Nelson, is jealous of Gabriel's prominent place in his father's life. As the first supercomputer with a beating heart, Gabriel is the most valuable piece of technology the country has ever created and is the U.S.'s secret weapon. 

The New York Times' Mike Hale discusses the series here. 

Law In "A Christmas Carol"

Barry Sullivan, Loyola University Chicago School of Law, has published A Book that Shaped Your World: Charles Dickens, A Christmas Carol, in volume 50 of the Alberta Law Review (2013). Here is the abstract.

"To celebrate the Alberta Law Review's fiftieth volume, the book review editors invited friends and alumni to put aside for a moment their required reading, and reflect briefly on the books that have shaped their approaches to life and the law." Professor Sullivan chose to reflect upon the perennially popular A Christmas Carol, to thoughtful and poetic effect.

Download the essay from SSRN at the link. 

A Law and Literature Conference and CFP On Personhood

Welcome back to a new year at the Law and Humanities Blog! To start us off, here is an announcement, with CFP, sent to us by Yasco Horsman, one of the organizers, of an interesting law and literature conference taking place in May at the University of Leiden.

Legal Bodies: Corpus / Persona / Communitas

CFP

15-16-17 May 2014

LUCAS (the Leiden University Centre for the Arts in Society) will host a three-day conference Legal Bodies: Corpus / Persona / Communitas on the various ways in which literary texts and art works have represented, interrogated or challenged juridical notions of ‘personhood’.  The guiding assumption behind this conference is that ‘personhood’ is not a (biologically) given, stable property of human beings that precedes their interaction with the law but rather that the notion of ‘personhood’ is assigned to selected  ‘bodies’ by discursive regimes, such as law, medicine, politics, religion, and education.  The focus of this conference is on how literature, art and culture might form domains in which the implications and scope of legal, political or medical conceptualizations of personhood can be articulated and thought through, and in which alternative understandings of personhood can be proposed.

The symposium broaches the question of personhood on three different levels: of the body, the individual and the community. Questions to be addressed could include: From which discourses did notions of bodily integrity historically emerge? Which social, political and medical developments are currently challenging (violating?) these notions? How do artistic, cultural and socio-political phenomena (such as bio-art, body horror, the right-to-die movement, biopolitics?? etc.) invite us to rethink our notion of the human body?

             What literary and rhetorical figures made it possible to think of legal personhood in antiquity, the middle ages and the modern era? What is the legal status of ‘not-quite persons,’ such as children, illegal immigrants, the mentally disabled, the unborn and the undead? What could ‘animal personhood’ entail?

            How do collective bodies acquire personhood? How did art and literature represent legal entities such as the medieval city, the seventeenth-century trade company or the nineteenth-century corporation? Or what is the legally defined status of sects, networks, conspiracies, and resistance movements?

The conference is organized in cooperation with NICA (the Netherlands Institute for Cultural Analysis) and is made possible by LUCAS, the Leiden University Fund and NICA.

A 400-word proposal for a 20-minute paper can be sent to Frans-Willem Korsten, Nanne Timmer and Yasco Horsman (LUCAS, Leiden) at legalbodies@hum.leidenuniv.nl.

Deadline: 14 February 2014

See: 

http://hum.leiden.edu/lucas/news-events/legal-bodies-corpus-persona-communitas.html

For more information on LUCAS and NICA, see

http://www.hum.leiden.edu/lucas/

http://www.nica-institute.com/

Or contact: f.w.a.korsten@hum.leidenuniv.nl; Y.horsman@hum.leidenuniv.nl; n.timmer@hum.leidenuniv.nl

Extratextual Sources and Constitutional Originalism

Lawrence B. Solum, Georgetown University Law Center, has published Originalism and the Unwritten Constitution at 2013 University of Illinois Law Review 1935. Here is the abstract.

In his book, America’s Unwritten Constitution, Akhil Reed Amar contends that to properly engage the written Constitution, scholars and laymen alike must look to extratextual sources: among them America’s founding documents, institutional practices, and ethos, all of which constitute Amar’s “unwritten Constitution.” In this Article, I argue that contemporary originalist constitutional theory is consistent with reliance on extraconstitutional sources in certain circumstances. I establish a framework for revaluating the use of extratextual sources. That framework categorizes extratextual sources and explains their relevance to constitutional interpretation (the meaning of the text) and constitutional construction (elaboration of constitutional doctrine and decision of constitutional cases). I conclude by applying the framework to a question posed by Akhil Amar: Can vice presidents preside over their own trial upon impeachment? A negative answer to this question is consistent with an originalist constitutional theory that carefully cabins the use of extratextual sources in constitutional interpretation and construction.

Download the article from SSRN at the link. 

Remembering the Emancipation Proclamation

Martha S. Jones, University of Michigan Law School, has published History and Commemoration: The Emancipation Proclamation at 150 at 3 Journal of the Civil War Era 452 (2013).

Marking the 150th anniversary of the Emancipation Proclamation encourages debate about the past. January 1, 1863, does not stand out as a singular event, the commemoration of which silences the past. Instead, these articles capture some of the rich albeit messy past that was the Civil War and emancipation. Recovering that process, one that included congress members, generals, soldiers, sailors, and enslaved people, resituates the Emancipation Proclamation as history rather than myth. We learn how the proclamation was related to Congress’s emancipatory legislation and how its implementation relied on the resistance of formerly enslaved insurgents. The analysis of new sources, including visual culture, means that historical interpretation will continue to evolve. Transnational approaches suggest how the proclamation’s influence was far-reaching in the realms of law and state-building. And while the season of commemoration may draw to a close, historians history and commemoration will have many opportunities to collaborate on exhibitions and films, the sorts of spaces in which confrontations between history and fiction may find a productive tension. Commemoration need not rest on silence.

The full text is not available from SSRN. 

Baseball and Legal Reasoning

John Tehranian, Southwestern Law School, has published It'll Break Your Heart Every Time: Flood v. Kuhn, (Baseball) Romanticism and the Fallibility of Courts. Here is the abstract.

The recent blockbuster 42 romanticizes the role of major league baseball in the civil rights movement. But Jackie Robinson’s shattering of the color line in 1947 represented only the first step in the game’s evolution. With considerably less fanfare, Curt Flood took the next step. Flood’s ill-fated challenge to the infamous reserve clause landed him before the United States Supreme Court in 1972. It’ll Break Your Heart Every Time casts new light on Flood’s underappreciated legal struggle by presenting a meta-meditation on his lawsuit, the fallibility of judges and the power of the National Pastime’s grand mythology.
When the Supreme Court’s infamous decision in Flood v. Kuhn, 407 U.S. 258 (1972), is cited for any one proposition, it is not for its key holding — the reaffirmation of baseball’s antitrust exemption. Rather, it has become exhibit A for the risks of slavish adherence to stare decisis. In the four decades since its pronouncement, the holding has never been completely overruled — either by the Supreme Court or Congress. And while the decision itself has received widespread condemnation elsewhere, legal, economic and policy analysts have generally failed to appreciate a critical first-order question about the case: how it happened and whether, in other circumstances, it could happen again. This Essay address these issues by examining the profound role of the National Pastime’s mythology and its spell-binding romanticism in the making of bad law. In the process, the Essay also raises broader jurisprudential questions about the nature of legal reasoning and the powerful lure of epistemological narratives, particularly in the struggle for civil rights.

Download the paper from SSRN at the link. 

Child Abuse and Legal Intervention In Early Nineteenth Century Quebec

Ian C. Pilarczyk, Boston University School of Law, has published 'To Shudder at the Bare Recital of Those Acts': Child Abuse, Family, and Montreal Courts in the Early Nineteenth Century in IX Essays in the History of Canadian Law 370 (G. Blaine Baker and Donald Fyson eds., Toronto, University of Toronto Press for the Osgoode Society for Canadian Legal History, 2013).

This paper uses archival and other primary sources to reanimate the judicial response to child abuse by family members in Montreal for the period 1825-1850. In a period before the operation of child protection agencies, the records reveal a tentative but growing engagement with issues related to child abuse and a limited judicial response to impose limitations on parental authority. Parents and guardians were prosecuted and imprisoned for a range of offences, including assault, aggravated assault, ill-usage, and attempted murder. While incest was not a cognizable offence during this period, the judicial archives also reveal some evidence of the existence of incest as a social phenomenon, as well as some prosecutions (generally brought under the charge of ravishment or, more unusually, abduction). This paper contributes to our understanding of Quebec socio-legal history for an understudied time period, and adds dimension to our understanding of the manner in which the legal system grappled with compelling social phenomena before widespread legislative or public action on these issues.

Download the essay from SSRN at the link. 

Deconstructing "Benito Cereno"

From the Chronicle of Higher Education: Greg Grandin on the historical background of Melville's Benito Cereno. Dr. Grandin is the author of the forthcoming The Empire of Necessity: Slavery, Freedom, and Deception (Metropolitan Books/Henry Holt, 2014). Here is a description of the book from the publisher's website.

One morning in 1805, off a remote island in the South Pacific, Captain Amasa Delano, a New England seal hunter, climbed aboard a distressed Spanish ship carrying scores of West Africans he thought were slaves. They weren’t. Having earlier seized control of the vessel and slaughtered most of the crew, they were staging an elaborate ruse, acting as if they were humble servants. When Delano, an idealistic, anti-slavery republican, finally realized the deception, he responded with explosive violence.
Drawing on research on four continents, The Empire of Necessity explores the multiple forces that culminated in this extraordinary event—an event that already inspired Herman Melville’s masterpiece Benito Cereno. Now historian Greg Grandin, with the gripping storytelling that was praised in Fordlandia, uses the dramatic happenings of that day to map a new transnational history of slavery in the Americas, capturing the clash of peoples, economies, and faiths that was the New World in the early 1800s. 

Legal Series, Based On an Aussie Hit, Will Make Its Appearance On Fox Network

Fox is adapting the popular Australian legal drama (actually more of a dramedy), Rake, which stars Richard Roxburgh as Sydney-based Cleaver Greene, for the US market. The US version stars Greg Kinnear ("You've Got Mail," "The Kennedys," (TV miniseries), and something called "Murder of a Cat," which doesn't tempt me to see it, based on the title), as Keegan Deane, a criminal defense attorney who always seems to get into trouble.

More here, including video clips, at the webpage for the show, which premieres Thursday, January 23, at 9 p.m., 8 Central time. 

The Legal History Enterprise at LaTrobe University

Christopher L. Tomlins, University of California, Irvine, Law School, has published Law ‘And’, Law ‘In’, Law ‘As’: The Definition, Rejection and Recuperation of the Socio-Legal Enterprise at 29 Law In Context 137 (2013).

The critical moment in socio-legal studies that flowered in the United States and elsewhere between the mid-1970s and the early 1990s coincided with the maturation of the Legal Studies Department at Melbourne’s La Trobe University. During its two-decade span (1972-1994) La Trobe Legal Studies developed multidisciplinary critical and theoretical perspectives on law – as substance, as professional practice, as field of academic inquiry – to an extent and depth unrivalled in Australia or, with just a few exceptions, internationally. This essay charts the particular trajectory followed by one of those perspectives, legal history, both at La Trobe and in the wider world. Simultaneously, it offers a short history of the Department itself: of its growth during the 1970s and 1980s; of its transformation into a law school during the 1990s; and of the struggles to maintain a place for the social in the legal that occurred during that transformation.

Download the article from SSRN at the link.

Judicial Outputs

Ross E. Davies, George Mason University School of Law and The Green Bag has published Feeding the Right Stuff: Would You Clerk for Learned Hand? at 3 Journal of Law 187 (2013).

Being a feeder judge (that is, a judge whose clerks routinely go on to clerk for a Justice of the U.S. Supreme Court) must be difficult. Hard at the start of the process and, alas, sometimes even harder at the end. While a number of forthright scholars and judges have described the challenges at the start, information about difficult endings is in shorter supply. But not nonexistent.

Download the article from SSRN at the link. 

From the Law and Society Association: Support Available For Junior Scholars

From the Law and Society Association:

Attention Junior Scholars - would you like a chance to present your ideas for the Law and Society Association at the 2014 annual meeting and receive generous travel support?

We invite junior scholars around the world with new and innovative ideas to submit them to the LSA Project on the 2nd  Half Century at the 50th Anniversary Meeting in Minneapolis MN May 29-June 1 2014. Winning authors will appear on a special 50th Anniversary Roundtable. They will also receive travel support, free registration, and a year’s free membership to the Law and Society Association.

The competition is organized by the LSA Project on the 2nd Half Century, which was created on the eve of LSA’s 50th Anniversary to stimulate discussion about the future role of the Association.

We invite junior scholars (grad students, post docs, and assistant professors) to submit short essays on the following theme:

What is the future of socio-legal studies, what new possibilities exist, and what innovations should the Law and Society Association consider as it enters the 2nd Half Century?Essays must be in English. They cannot exceed 2000 words. They could consider use of new technologies, new ways to build scholarly networks, new training initiatives, and other innovations. Successful essays may include assessment of present LSA activities as well as proposals for innovation.

For more information and to submit, visit www.lawandsociety.org/minneapolis2014/2ndhalfsubmit.html

Law and Literature and Criminal Law

Simon Stern, University of Toronto Faculty of Law, is publishing Law & Literature (As an Approach to Criminal Law in The Oxford Handbook of Criminal Law (Markus Dubber & Tatjana Hoemle, eds., Oxford University Press, 2014). Here is the abstract.

This book chapter discusses the use of literary material as a means of studying criminal law. The chapter provides an overview on various methods of combining legal and literary materials (law in literature, literature in law, law as literature, legal aesthetics) and offers two case studies (Susan Glaspell's "A Jury of Her Peers" and Robert Louis Stevenson's The Strange Case of Dr. Jekyll and Mr. Hyde) to show how literature can open up questions both about substantive criminal law doctrines and also about the grounds on which those doctrines are applied. Along the way, the discussion shows how various scholars of criminal law, such as Nicola Lacey and Anne Coughlin, have raised questions that have also provoked the interest of literary scholars such as Dorrit Cohn and Blakey Vermeule.

The chapter also serves as a bibliography for scholars seeking further resources that examine criminal law through the lens of literature. These resources include bibliographies of primary texts (such as crime-based fiction, "dying confessions" circulated at executions, and movies), secondary texts (discussing law and criminal behavior in relation to fiction, drama, and poetry), and web-based resources (such as the Old Bailey Sessions Papers Online). In that spirit, the chapter also discusses some research that is often overlooked in discussions of criminal law and literature – such as Todd Herzog’s research on Weimar-era true-crime narratives that were created from actual case files; Jonathan Eburne’s research on crime in the work of the French surrealists; Lorna Hutson’s research on civic plots of detection in renaissance drama and their relation to the development of evidence law; and Lisa Rodensky’s work on narrative modes in Victorian fiction and their relation to the treatment of mens rea in contemporaneous legal thought.

The chapter closes with some brief reflections on the potential for current work in cognitive literary studies to change the way we think about literature's relation to law, and, in particular, the way we impose narrative templates on the events we experience.

Download the essay from SSRN at the link.

Storytelling For Lawyers, a new publication from Philip Meyer, Vermont Law School.

From the Oxford University Press website:

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Storytelling for Lawyers

Philip Meyer

• Good storytelling is a necessity for trial lawyers, and this book explains how to do it
• Author is a law professor who also holds a masters degree in creative writing from the University of Iowa Writers Workshop
• Breaks narratives down into their fundamental parts to show how they work
• Will be of interest to any lawyer struggling to craft a compelling story

Religious Symbols and Constitutional Meaning

Frederick Mark Gedicks, Brigham Young University Law School, and Pasquale Annicchino, European University Institute, Robert Schuman Centre for Advanced Studies (RSCAS), have published Cross, Crucifix, Culture: An Approach to the Constitutional Meaning of Religious Symbols. Here is the abstract.

In the United States and Europe the constitutionality of government displays of confessional symbols depends on whether the symbols also have nonconfessional secular meaning or whether, at least, the confessional meaning is somehow absent. Yet both the United States Supreme Court (USSCt) and the European Court of Human Rights (ECtHR) lack a workable approach to determining whether secular meaning is present or confessional meaning absent.
The problem is that the government can nearly always articulate a possible secular meaning for the confessional symbols that it uses, or argue that the confessional meaning is passive and ineffective. What matters, however, is not the possibility that secular meaning is present or confessional meaning absent, but whether whether this presence or absence is historically and culturally authentic. Courts largely ignore this, routinely appealing to history and culture to justify government use of confessional symbols without undertaking a serious investigation of either history or culture.
Drawing on the work of C.S. Peirce, we propose that courts ask three successive questions in religious symbol cases: (1) Is the ordinary meaning of the symbol confessional or otherwise religious? (2) Does the immediate context in which the symbol is displayed suggest a possible historical, cultural, or other secular meaning? (3) Is this alternate secular meaning authentically present and genuinely recognized in the history and culture of the place where the symbol is displayed?
We illustrate this approach with Salazar v. Buono, in which the USSCt upheld government display of a Christian cross, and Lautsi & Others v. Italy, in which the ECtHR deferred to Italian court decisions upholding government display of a Catholic crucifix. While the USSCt in Buono and the Italian courts in Lautsi imagine conceivable nonconfessional meanings for the confessional symbol at issue, neither meaning can be found in American or Italian history or culture. In Lautsi, thjerefore, the ECtHR ends up deferring to a nonexistent Italian “tradition.”
Judical denial of obvious confessional meaning and invention of substitute secular meanings for confessional symbols betrays a cultural schizophrenia: Majoritarian religions rail against the secularization of culture and its subversion of belief, yet they insist that their confessional symbols remain at home in this culture. But confessional symbols no longer fit in mainstream culture as confessional — hence their redefinition as secular, even and especially by the majoritarian religions that use them. Ironically, judicial secularization of these symbols to validate their use by government is likely to accelerate and entrench the very secularization that such religions deplore.

Download the paper from SSRN at the link. Via Legal Theory Blog.