Sex, Theology, and Marriage in Protestant Thought

John Witte, Jr., Emory University School of Law, is publishing Sex and Marriage in the Protestant Tradition: 1500-1900 in the Oxford Handbook on Theology, Sexuality, and Gender (Adrian Thatcher, ed.; Oxford University Press, 2014). Here is the abstract.

This Article analyzes the mainline Lutheran, Calvinist, and Anglican models of sex, marriage, and family and their gradual liberalization by Enlightenment liberalism. The theological differences between these models can be traced to their grounding in Lutheran two kingdoms doctrines, Calvinist covenantal theology, Anglican commonwealth theory, and Enlightenment contractarian logic. Lutherans consigned primary marital jurisdiction to the territorial prince or urban council. Calvinists assigned interlocking marital roles to local consistories and city councils. Anglicans left marital jurisdiction to church courts, subject to state oversight and legislation. The early Enlightenment philosophers, many of them Protestants, pressed for a sharper separation of church and state in the governance of marriage, and for stronger protections of the rights and equality of women and children within and beyond the marital household. But they maintained traditional Protestant prohibitions extramarital sex and no-fault divorce in an effort to protect especially women and children from exploitation.

Download the essay from SSRN at the link. 

Looking at Law and Language Scholarship

Elizabeth Mertz, University of Wisconsin, Madison; American Bar Foundation; and Jothie Rajah, American Bar Foundation, have published Language-and-Law Scholarship: An Interdisciplinary Conversation and a Post-9/11 Example at 10 Annual Review of Law and Social Science 169 (2014). Here is the abstract.

Language-and-law research is now an established field for study, with decades of development behind it. And yet the field remains fragmented, with disparate streams of scholarship that, ironically, tend to speak in different languages: linguistic anthropology, discourse studies, semiotics, literary theory and rhetoric, translation studies, sociolinguistics, legal philosophy, and more. On one hand, this broad variety speaks to the robust character of language-and-law studies as a focus for relatively diverse scholarly endeavors. And for a number of reasons, it seems likely that the separate schools of thought in this area will generally continue to pursue their often distinct paths. On the other hand, as this article argues, a careful reading of work in the area reveals the potential for a productive conversation among some very different perspectives. Such a conversation offers the promise of creating exciting bridges among law, the social sciences, and the humanities. It also draws together interest in a variety of kinds of language: spoken, gestural, written, visual. This kind of bridge, we suggest, is one of the gifts of the truly interdisciplinary space opened up by sociolegal research — it permits us to combine quite diverse kinds of knowledge in our quest to more fully understand closely related legal phenomena. In this article, we also combine two different kinds of disciplinary voices, inviting the reader to assess what insights about law arise from these voices separately and, perhaps, together.

The full text is not available for download from SSRN.

 

Images of the Mexican In Law and Narrative

Deborah M. Weissman, University of North Carolina, School of Law, is publishing The Politics of Narrative: Law and the Representation of Mexican Criminality in the Fordham International Law Journal. Here is the abstract.

Popular narratives often develop in tandem with and within the law and legal discourse. They are both cause and consequence of public mood. This Article addresses the emergence of widely held perceptions of the “Mexican-as-criminal” and Mexico as crime-ridden violence society. It analyzes the narrative as it bears on public policy, national interest, and the formulation of law.
The Article examines the discursive framework of the Mexican-as-criminal at the transnational, national, and local level. It considers how the political use of such constructs act to shape immigration policies through the construction of law that is, in turn, constitutive of the narrative. It then explores alternative uses of the discourse often by well-meaning advocates who avail themselves of the perception of Mexico as a nation of drug violence as the rational for asylum claims. Finally, the Article appraises shifting paradigms: from Mexican-as-criminal (bad neighbor) to Mexican-as-economic (good neighbor) and considers whether this divergence promotes legal policies that serve to foster social inclusion.

The Article concludes by suggesting the need to re-examine the narratives in order to determine who benefits and who is harmed, and ultimately whether the narrative produces a usable framework to understand and resolve the political economic structures that produce violence in Mexico and improve the status of Mexicans in the United States.

Download the article from SSRN at the link. 

Parliamentary Habeas Proceedings in the Reign of James I

Donald E. Wilkes, Jr., University of Georgia Law School, has published Habeas Corpus Proceedings in the High Court of Parliament in the Reign of James I, 1603-1625 at 54 Am. J. Legal Hist. 200 (2014). Here is the abstract.

English parliamentary habeas corpus proceedings have been neglected by scholars. This Article ends that neglect. This Article focuses on the parliamentary habeas corpus proceedings that occurred in the reign of King James. The Article corrects several misunderstandings relating to the history of the writ of habeas corpus in England and to the history of the English Parliament (which in the seventeenth century commonly was referred to as the High Court of Parliament).

Part I of the Article provides answers to questions concerning the historical background and context of the parliamentary habeas corpus proceedings in the High Court of Parliament during James I's reign. What was the origin and significance of the term High Court of Parliament? What was the parliamentary privilege of freedom from arrest, the violation of which could lead to the granting of habeas corpus relief by the House of Lords or the House of Commons? What was the civil arrest system in effect in seventeenth century Englanda system which made it likely that from time to time the parliamentary privilege from arrest would be violated and the parliamentary habeas remedy thereupon invoked? What other remedies, apart from habeas corpus, were available to deal with infringements of the parliamentary arrest privilege? And what were the contours of the parliamentary habeas corpus remedy itself, which appears not to have been successfully invoked prior to the reign of James I?

Parts II and III conclusively demonstrate that in the reign of James I the High Court of Parliament at times functioned as the High Habeas Court of Parliament. Part II provides an in-depth account of the habeas corpus proceedings in the House of Lords in the reign of James I, while Part III does the same for the habeas corpus proceedings in the House of Commons during the reign.

The Article concludes with a detailed discussion of the three major changes this work mandates in our understanding of English legal history.

Download the article from SSRN at the link. 

Is Zombification Illegal?

Well, it depends. Of course, you knew I was going to say that. Here's more, courtesy of my good friend Lyonette Louis-Jacques. More law and zombie-ness here from the Law Library of Congress.

Hat tip to Susan Gualtier of the LSU Law Center Library for sending me the links.

For more about law and zombies and whatever, see

Michael L. Smith, Prosecuting the Undead: Federal Criminal Law in a World of Zombies, 61 UCLA L. Rev. Disc. 44 (2013).

and

John Schwartz, Estate Planning for Zombies, New York Times, July 7, 2012

Copyright Marches On Its Stomach?

Michela Giorcelli, Stanford University Department of Economics, and Petra Moser, Department of Economics & National Bureau of Economic Research, have published Copyright and Creativity – Evidence from Italian Operas. Here is the abstract.

This paper exploits variation in the adoption of copyright laws within Italy – as a result of Napoleon’s military campaign – to examine the effects of copyrights on creativity. To measure variation in the quantity and quality of creative output, we have collected detailed data on 2,598 operas that premiered across eight states within Italy between 1770 and 1900. These data indicate that the adoption of copyrights led to a significant increase in the number of new operas premiered per state and year. Moreover, we find that the number of high-quality operas also increased – measured both by their contemporary popularity and by the longevity of operas. By comparison, evidence for a significant effect of copyright extensions is substantially more limited. Data on composers’ places of birth indicate that the adoption of copyrights triggered a shift in patterns of composers’ migration, and helped attract a large number of new composers to states that offered copyrights.

Download the paper from SSRN at the link. 

The Early History of U.S. Federal Judicial Selection

Michael J. Gerhardt, University of North Carolina, Chapel Hill, School of Law, and Michael Ashley Stein, William & Mary Law School, are publishing The Politics of Early Justice, Lower Court Federal Judicial Selection 1789-1861 in the Iowa Law Review. Here is the abstract. 

Almost every commentary on the history of the selection of federal judges presumes that there was some prior golden era in which national political leaders focused primarily on the merit of individual nominees and were not unduly swayed by partisan politics or ideology. Numerous constitutional scholars — and national leaders — have therefore roundly criticized the modern day judicial selection process, citing unprecedented delays and a low percentage of approval of federal court nominees as evidence that the system has broken down. They have argued that the ways in which senators, as well as presidents, have handled lower court nominations in the modern era have deviated from how the nation’s first chief executives and the first few Senates handled such nominations. Yet, there is one glaring omission in almost all commentaries on disputes over judicial selection over the past few decades — the absence of any substantiation of an earlier, so-called golden era, in which there actually was general deference within the Senate to presidents’ nominations to federal district and appellate judgeships. Even the classic work on federal judicial selection by the late Kermit Hall begins its analysis of federal judicial selection in 1825, disregarding nearly forty years of prior practices in the field and reinforcing the received but unsubstantiated assumptions about how judicial nominations to lower courts fared beforehand.
This Article is the first to make a serious comprehensive historiography of federal judicial selection from 1789-1861 in the United States. Following six years of archival and secondary source research, we identified each of the lower court nominations made by presidents from George Washington through James Buchanan and then tracked the Senate’s actions on each of their nominations through both archival and secondary sources. Further, we identified the criteria employed in the first seven decades of judicial nominations as well as the outcomes of, and grounds for, the Senate’s proceedings for all of these nominations. We believe that the results of this unprecedented study are significant because they provide a window into an era of early federal judicial selection that has been virtually ignored by both commentators and national political leaders. While we identified some antiquated practices, such as several of the earliest presidents’ judicial nominees actually declining judgeships after the Senate had confirmed their nominations, we found other patterns of practice that are similar to contemporary developments. Among the most significant of these latter patterns are the facts that: every antebellum president took political considerations into account in making nominations; all antebellum presidents, with the exception of William Henry Harrison, had most of their judicial nominations confirmed by the Senate; and three antebellum presidents — George Washington, Martin Van Buren, and James Polk — enjoyed 100% of their judicial nominations confirmed by the Senate. Yet, political parties, particularly in times of divided government, often split along party lines in judicial confirmation proceedings, and several judicial nominations in the antebellum period failed because of opposition based on the particular nominees’ ideologies or past political decisions. In short, there was no golden era of judicial nominations but rather different eras in which politics, in different ways, shaped federal judicial selection.

Download the article from SSRN at the link. 

The History of the Law of Suicide

Danuta Mendelson, Deakin University School of Law, and Ian Freckelton, University of Melbourne, have published The Interface of the Civil and Criminal Law of Suicide at Common Law (1194-1845) at 36 International Journal of Law and Psychiatry 343 (2013). Here is the abstract.

Nowadays, suicide is considered essentially a private act, although what constitutes suicide for epidemiological and even clinical purposes in not wholly resolved. Historically, however, at common law, the act of self-killing was a felony with significant religious and legal consequences that impacted upon the deceased person as well as upon his or her whole family. This article identifies the influence of Christian theology, legal theory, and social and medical developments upon attitudes to the felony of self-murder and its definition. It focuses upon what it identifies as the start of a liberalisation in more psychologically informed attitudes manifested in landmark court judgments involving exclusion clauses in insurance contracts in mid-nineteenth century England. The article illustrates that the law in respect of socially controversial matters neither necessarily develops in a linear progression, nor accurately reflects public sentiments. More specifically, it describes an ongoing definitional conundrum with suicide – whether it should be designated as committed by persons of significantly impaired mental state. It observes that in spite of reform to the criminal law of suicide, the civil law relating to suicide has continued to be characterized by ambivalence, ambiguity and significant vestiges of counter-therapeutic moralizing.

Download the text from SSRN at the link. 

A Seminar On Jorge Luis Borges and the Law

From Jose Calvo Gonzalez, news of an interesting event taking place on November 19, 2014 at the Universidade Federal da Paraiba (UFPB).

Jorge Luis Borges and the law: a stroll through the garden of forking paths Seminar, Center for legal sciences of the Universidade Federal da Paraíba (UFPB). João Pessoa (PB). Brazil, 

Nov. 19, 2014, 2 p.m  to 5 p.m. 

Program: Prof. Dr. José Calvo Gonzalez (Universidad de Málaga). " From a crossroads with Borges. On legal science and legal production "

Panelists: Prof. Dr. Marcilio Toscano Franca Filho and Prof. Dr. Eduardo Ramalho Rabenhorst

Coordination: Prof. Dr. Marcilio Toscano Franca Son

Realization: International Laboratory investigations in Transjuridicidade

(MINOTAUR) and postgraduate program

Jorge Luis Borges e o Direito: um passeio pelo jardim de caminhos que se bifurcam Seminário 

Centro de Ciências Jurídicas da Universidade Federal da Paraíba (UFPB). João Pessoa (PB). Brasil 

Horário: das 14 às 17h

Conferencista: Prof. Dr. José Calvo González (Universidad de Málaga). "Uma encruzilhada junto com Borges: sobre ciência jurídica e produção normativa"

Debatedores: Prof. Dr. Marcílio Toscano Franca Filho e Prof. Dr. Eduardo Ramalho Rabenhorst

Coordenação: Prof. Dr. Marcílio Toscano Franca Filho

Realização: Laboratório Internacional de Investigações em Transjuridicidade (LABIRINT) e Programa de Pós-Graduação

Link to the website here.

And Next Comes Verona: An International Conference On Fables of the Law

The Department of Foreign Languages and Literatures, the School of Law, and AIDEL (Associazione Italiana Diritto e Letteratura) are sponsoring an International Conference, Fables of the Law, November 12-14, in Verona. There are so many fascinating papers listed to be presented: I'll pick just three to mention here: Fable, Fiction, Truth? What Does Literature Know About Law? (Julia Chrystossalis), Witches and Kings: James I and His Jurisdiction Over Magic at the Root of the Modern "Demonology of Sovereignty," (Pier Giuseppe Monateri), and Earth Jurisprudence and the Myth of Gaia (Valentina Adami).

Call For Papers, Law's Pluralities, May 6-8, 2015

From Daniela Carpi, University of Verona, an announcement of a call for papers for the conference, Law's Pluralities, to be held May 6-8, 2015.

Here's more about the conference from the website.

In May 2015 the conference “Law’s Pluralities” will take place at Justus Liebig University Giessen/Germany. In a series of keynote presentations by experts and in panel sessions and discussions, as well as in an exhibition it will explore cultural constructions of law. We invite academic contributions in the conference languages English and German.
The conference and exhibition is organized at Justus Liebig University Giessen by the International Graduate Centre for the Study of Culture (GCSC) in cooperation with the  Department of English, the Rudolf-von-Jhering Institute, and in cooperation with the Neue Giessener Kunstverein. Contact: lawspluralities@gcsc.uni-giessen.de.

Brains Eating Themselves

The Chronicle of Higher Education has a good article today at its website on the links among zombie studies, navel gazing, and well, the inevitable. Link here.

A New Blog and a New Book of Interest

John Denvir, Research Professor of Law at University of San Francisco Law School, has launched a new blog, Guile Is Good, in conjunction with his new book, Guile Is Good (available through Amazon in both paperback and Kindle versions). Here's an excerpt from the book's introduction:

I want to tell the story of how lawyer creativity and craft shape the world we live in. Since humor often reveals truths that more serious talk misses, let me start with a lawyer joke that encapsulates my thesis.
A university search committee is interviewing candidates for the presidency of the university. One candidate is a mathematician, another a sociologist, and the third a lawyer. At the end of each interview, one member of the committee throws in a final question: “Excuse me, but can you tell us how much is two plus two?”
The mathematician responds, “That is a really complex question, but for present purposes we can say that if you take an abstract two and add another abstract two, you get an abstract four.” The questioner thanks him for his answer.
The sociologist is asked the same question at the end of her interview. She replies that “this is an empirical question that requires very careful collection and analysis of data, but roughly the range is from three to five with a mean of about four.” The questioner thanks her for her answer.
As he is about to leave the interview room the lawyer is also asked, “How much is two and two?” The lawyer slowly turns around, approaches the committee, and inquires in a soft voice, “How much do you want it to be?”
The lawyer gets the job.
The punch line anticipates the thesis of this small book—the public respect and fear lawyers because they sense we use our creativity and craft (and craftiness) to shape the world. As lawyers, we should take great pride in the power our skills provide us and think carefully about how we choose to employ them.

Professor Denvir is also the author of Legal Reelism: Movies as Legal Texts (University of Illinois Press, 1996) and Freeing Speech: The Constitutional War Over National Security (New York University Press, 2012).

Full U.S. Breakfast

Ross E. Davies, George Mason University School of Law, and The Green Bag, has published Breakfast with the Justices: Networking in the Nineteenth Century at The Green Bag Almanac & Reader 109 (2014). Here is the abstract.

On Thursday, September 15, 1887, the Philadelphia bar hosted a lavish “Breakfast to the Justices of the Supreme Court of the United States” in that city’s American Academy of Music building. It was the first of a series of events — parades, ceremonies, speeches, and so on — celebrating the centennial of the Constitution of the United States. Some, like the “Breakfast to the Justices,” were by invitation only. Others were open to the public and attracted large crowds — the biggest were probably the “Civic and Industrial Procession” on September 15 and the “Memorial Day Ceremonies in Independence Square” on September 17. All those big events, both the private and the public, surely were exciting at the time and merit further study today. But the focus of this little essay is elsewhere — on a pair of small but instructive (and perhaps also amusing) aspects of the inner workings of the “Breakfast to the Justices.”

Download the text from SSRN at the link. 

Controversy Over Metropolitan Opera Presentation of "The Death of Klinghoffer"

The Metropolitan Opera has moved ahead with a presentation of John Adams' opera The Death of Klinghoffer despite many protests that the work glorifies anti-Semitism. Here's an account from the New York Times. The New Yorker first covered such objections back in June. Here's a link to the Met website for the piece. Here's a review from the New Yorker.

Leon Klinghoffer was murdered by Palestinian terrorists during a hijacking in 1985 aboard the cruise ship the Achille Lauro. The terrorists forced two crew members to throw his body overboard in the waters off Syria. The Syrians eventually recovered his body and returned it to the United States.

A DVD of The Death of Klinghoffer is available from Decca. Singers include Sanford Sylvan, Christopher Maltman, and Yvonne Howard. The composer conducts the London Symphony Orchestra.

The story has also been filmed as Voyage of Terror: The Achille Lauro Affair, starring Burt Lancaster and Eva Marie Saint (1990).

On the events during and after the hijacking see

Michael K. Bohn, The Achille Lauro Hijacking: Lessons in the Politics and Prejudice of Terrorism (Potomac Books, 2004).

Antonio Cassese, Terrorism, Politics, and Law: The Achille Lauro Affairs (Princeton University Press, 1989).

Literature and Comparative Law

Eric Heinze, Queen Mary University of London, School of Law, is publishing The Literary Model in Comparative Law in the American Journal of Comparative Law. Here is the abstract.

Legal theory, if it is to attain any level of generality, makes difficult, sometimes unacknowledged assumptions about geography and history. Comparative law enters as a corrective. It tempers unwarranted notions about such basic concepts as ‘norm’, ‘practice’, ‘power’, ‘process’, or ‘procedure’. This essay does not propose any systematic method for scrutinising such concepts. It instead examines possible insights offered by a comparative literary model, which can shed some light on the methods of comparative law. Brief examples from Shakespeare, Racine, and Corneille are introduced to identify obstacles of universality and relativism — or rather, of ‘comparative continuity’ and ‘comparative discontinuity’ — as they arise relative to the emergence of the nation state in late 16th and 17th century Western Europe.

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

Walter White, Negotiator

Jennifer W. Reynolds, University of Oregon School of Law, is publishing Breaking BATNAs: Negotiation Lessons from Walter White in the New Mexico Law Review. Here is the abstract. 

Walter White could teach us many things: how to read the periodic table; how to destroy a tub with hydrofluoric acid; how to build a battery; how to make poison out of castor beans; how to build a bomb under a wheelchair; how to use the remote control of the car to operate a machine gun; and how to coordinate multiple assassinations of prison informants within thirty seconds of one another. But these are niche skills at best. Is there anything useful we can learn from Walter White?

As it turns out, Walter White can also teach us how to negotiate — or, to put it more precisely, watching Walter White negotiate in Breaking Bad helps us think more clearly about what we are doing when we negotiate. For the student of negotiation, Breaking Bad is an absolute treasure trove, producing an incredibly complex and varied array of bargaining parties and negotiated transactions, week after week. What’s so fascinating about these transactions is that they draw on familiar, foundational negotiation concepts in the service of less familiar, usually illicit ends. Put another way, when we watch Walter White negotiate, we watch a mega-criminal anti-hero implement the same “value-neutral” strategies that we teach lawyers and businesspeople. Learning to negotiate from Walter White, therefore, allows us to engage in an analytical exercise that explores the conventional wisdom around negotiation in a fresh, modern context, while implicating more critical conversations around value neutrality and other normative concerns in negotiation theory and practice.
Breaking Bad ran for five seasons. In this article, I have chosen five negotiations, one from each season, each featuring Walter White. For these five negotiations, I provide close readings that show how the negotiations demonstrate and/or disrupt foundational negotiation concepts or skills. I then suggest some possible takeaways for negotiators and analysts. The article concludes with a brief thought about ethical implications in negotiation theory and practice.

Download the article from SSRN at the link. 

The Condemned Woman In Sir Walter Scott's Writings

Erin L. Sheley, George Washington University School of Law, has published Doubled Jeopardy: The Condemned Woman as Historical Relic at 24 Law and Literature 211 (2014). Here is the abstract. 

This article explores how Sir Walter Scott's fictional condemned women serve as relics through which a history of evolving British legal authority becomes present and legible. It argues that Scott's treatment of gender aestheticizes a particular concept of and reaction to the condemned woman in the context of the common law tradition generally. Using the backdrop of eighteenth century penal practice, it also shows how Scott establishes the female condemned body as an object necessarily fixed in time in order to contemplate legal change through a historically controlled process. The first part of the article considers the late eighteenth century movement to abolish the punishment of burning at the stake for women convicted of treason, and the extent to which competing understandings of chivalry reified an entire history of penal practice into the body of the burned woman. The second part argues that the interrelations between archaic practice and evolved norm which characterize the precedent-based common law system are dramatized in the fixed, idealized bodies of Constance de Beverly and Rebecca of York through which Scott acknowledges the implicit need for legal change over time, while simultaneously legitimizing adherence to a chivalric tradition.

Download the article from SSRN at the link. 

George IV's "Great Matter"

Erin L. Sheley, George Washington University School of Law, is publishing Adultery, Criminality, and the Myth of English Sovereignty in volume 11 of Law, Culture, and the Humanities. Here is the abstract.

This article argues that in Britain over the course of the eighteenth and nineteenth centuries, the understanding of adultery as a tort was complicated by an accompanying discourse of what I will call “quasi-criminality.” Specifically — while formally trivialized — adultery remained linked to a threat to British kingship. The tension between the weight of relevant monarchical history and the absence of contemporary criminal enforcement created a new cultural narrative about adultery which attempted, itself, to serve a penal function. Examining the development of this discourse alongside the relevant law illuminates the complex social process through which public and private wrongs become distinguished — or conflated.

Download the article from SSRN at the link. 

Testamentary Manumission In New Jersey in the Early Republic

Stuart Gold, Rutgers, the State University of New Jersey, has published The 'Gift' of Liberty: Testamentary Manumission in New Jersey - 1791-1805 in volume 15 of Rutgers Race and the Law Review (2014). Here is the abstract.

This paper explores the process of manumission by will in Early Republic New Jersey between 1791 and 1805. The paper reviews the legal mechanisms available for manumission in New Jersey during this period, and places New Jersey's manumission process in context with its sister states of New York and Pennsylvania. The primary focus of the paper is a detailed analysis of the various schemes of manumission employed by testators, as well as geographical and gender differences in detecting patterns for manumission.

Download the article from SSRN at the link.

Stories and Rules

Stephen Paskey, State University of New York, Buffalo, Law School, has published Law Is Made of Stories: Erasing the False Dichotomy between Stories and Legal Rules in volume 11 of Legal Communication & Rhetoric (2014). Here is the abstract.

When lawyers think of legal analysis, they think chiefly of logic and reason. Stories are secondary. As Michael Smith explains, our legal system “is not founded on narrative reasoning” but on “a commitment to the rule of law.” The article suggests that this dichotomy between “rule-based reasoning” and “narrative reasoning” is false, and that narrative and stories are central to legal reasoning, including rule-based reasoning. In doing so, the article uses literary narrative theory to show that every governing legal rule has the structure of a “stock story”: the elements of the rule correspond to elements of a story. It follows that lawyers do not rely on stories simply because they are persuasive. They do so because a story is literally embedded in the structure of governing rules, and those rules can be satisfied only by telling a story. Thus, many analytical moves we label “rule-based reasoning” can be understood as a type of narrative reasoning, in which a client’s story is compared to and contrasted with the stock story embedded in the rule.

Download the article from SSRN at the link. 

At Cardozo: An Important Discussion on the Holocaust, Genocide, and Human Rights, October 30, 2014

From the Cardozo School of Law:

"On the Implications for Contemporary Law and Legal Scholarship on Vichy and Third Reich Judicial Discourse"

Thursday, October 30, 2014, 6 - 8pm
Benjamin N. Cardozo School of Law
55 Fifth Avenue, Room 102

New York, NY 10003

Please RSVP to cardozophhr@gmail.com

On October 30th, the Holocaust, Genocide and Human Rights (HGHR) Program at Benjamin N. Cardozo School of Law presents a discussion "On the Implications for Contemporary Law and Legal Scholarship of Vichy and Third Reich Judicial Discourse." The event will begin at 6 pm at 55 Fifth Avenue, Room 102. There will be a reception in the lobby following the event.

The discussion will involve close readings of what passed for legal discourse in Vichy France and Nazi Germany, appraising its significance for today's legal scholarship, judges, and interpretive theory. Among specific developments to be discussed are a German court's recent description of circumcision in Jewish ritual as causing "severe physical injury," the relationship of law and morals generally, and the implications of Vichy's legal and academic discourse for the incipient renewal of anti-semitism in France.

The speakers are Prof. Otto Pfersmann, Prof. of Law, Paris-1, Pantheon, Sorbonne, and Prof. Richard Weisberg, Floersheimer Prof. of Constitutional Law and Founding Director, Cardozo Holocaust, Genocide and Human Rights Program. 

Please RSVP to cardozophhr@gmail.com

The Association of American Law Schools Annual Meeting, 2015

From AALS:

Humanities, History and Social Science Programs at the AALS Annual Meeting, January 2-5, 2015 Washington, D.C. The AALS Annual Meeting in Washington, D.C. will include sessions on intersection of law with the humanities, history and social sciences. Renowned legal scholars will lead discussions on the latest scholarship in these areas.   The 2015 AALS Annual Meeting will be held in Washington, D.C, from Friday, January 2 through Monday, January 5, 2015. Here is a sampling of programs being presented:  Law and the Heroic After the Monuments Men:  Nazi-Era Art, Modern Legal Problems Legislating Belonging Socio-Economics: Doing Good Research That Does Good Extreme Empirical Methods Qualitative and Mixed Methods Research Workshop The Role of History in the Federal Courts Canon How (Not to) Provide Statutory Accommodations for Religion The Role Morality of the Legal Scholar Transgender Equality: Prisons, Workplace, and Academic Institutions The Future of Marriage Working But Poor: Understanding and Confronting the Working Poor Phenomenon Dead Upon Birth: The Inter-Generational Cycle of Thwarted Lives in America's Poorest Neighborhoods The meeting will also feature screenings of films chosen for their cinematic and legal value. This year's selections are Judgment at Nuremberg (1961), Hot Coffee (2011) and Anita (2013). Professor Anita Hill (Brandeis University Heller School for Social Policy and Management) will participate in a discussion of Anita and there will be commentary and discussion of all three films. This year's Annual Meeting will feature a space for quiet contemplation.  The AALS Section on Balance in Legal Education plans on scheduling designated times for mindful movement. There will also be materials available on incorporating mindfulness into the classroom and other professional settings. For more information on these new programs or to register for the Annual Meeting, please click here.

Call For Papers: Law & Humanities Junior Scholars Workshop, June 8-9, 2015

CALL FOR PAPERS - Law & Humanities Junior Scholar Workshop


Columbia Law School, the University of Southern California Center for Law, History & Culture, UCLA School of Law, and Georgetown University Law School invite submissions for the eleventh meeting of the Law & Humanities Junior Scholar Workshop to be held at Columbia Law School Law in New York City on June 8 & 9, 2015.

PAPER COMPETITION:

The paper competition is open to untenured professors, advanced graduate students, and post-doctoral scholars in law and the humanities; in addition to drawing from numerous humanistic fields, we welcome critical, qualitative work in the social sciences. Based on anonymous evaluation by an interdisciplinary selection committee, between five and ten papers will be chosen for presentation at the June Workshop. At the Workshop, two senior scholars will comment on each paper. Commentators and other Workshop participants will be asked to focus specifically on the strengths and weaknesses of the selected scholarly projects, with respect to subject and methodology. The selected papers will then serve as the basis for a larger conversation among all the participants about the evolving standards by which we judge excellence and creativity in interdisciplinary scholarship, as well as about the nature of interdisciplinarity itself.

Papers should be works-in-progress between 10,000 and 15,000 words in length (including footnotes/endnotes), and must include an abstract of no more than 200 words. A dissertation chapter may be submitted, but we strongly suggest that it be edited so that it stands alone as a piece of work with its own integrity. A paper that has been submitted for publication is eligible so long as it will not be in galley proofs or in print at the time of the Workshop. The selected papers will appear in a special issue of the Legal Scholarship Network; there is no other publication commitment. The Workshop will pay the travel and hotel expenses of authors whose papers are selected for presentation.
Submissions (in Word, no pdf files) will be accepted until January 5, 2015, and should be sent by e-mail to:
 Center for the Study of Law and
Culture, culture@law.columbia.edu
.

Please be sure to include your name, institutional affiliation (if any), telephone and e-mail contact information.

For more information contact Cindy Gao, 212.854.0167
or culture@law.columbia.edu, and to see past winners go
to: http://www.law.columbia.edu/center_program/law_culture/lh_workshop.

Katherine Franke

Sarah Barringer Gordon 

Ariela Gross

Naomi Mezey


Hilary Schor


Norman Spaulding
 
Clyde Spillenger
Nomi Stolzenberg


Conveners 

Melville Fuller and the Record of History

Ross E. Davies, George Mason University School of Law; The Green Bag, has published Fixing Fuller's Record: The Green Bag and the U.S. Reports, at 17 Green Bag 2d 451 (Summer 2014). Here is the abstract.

Melville Fuller, Chief Justice of the United States from 1888 to 1910, had a notably "self-effacing nature." Perhaps that is why he did not always push hard to correct errors about himself that appeared in published reports. In retrospect, this seems admirably modest in some contexts and disturbingly irresponsible in others. This article deals first with an example Fuller’s admirable modesty, which it overcomes for the benefit of modern readers. Second, this article examines an instance of Fuller’s converse irresponsibility, and suggests that the Supreme Court can and should officially correct Fuller’s error.

Download the article from SSRN at the link.

David Greenglass, Prosecution Witness In Rosenberg Trial, Dies

The New York Times has published an obituary of David Greenglass, the brother of Ethel Rosenberg. Mr. Greenglass provided crucial testimony during the trial of Julius and Ethel Rosenberg that ended in their convictions for conspiracy and espionage. They were executed in 1953. Fifty years later, Mr. Greenglass, who served nearly ten years in prison for his role in the conspiracy, admitted to reporter Sam Roberts that he lied on the witness stand.

Mr. Roberts published a book about Mr. Greenglass and the trial, The Brother: The Untold Story of Atomic Spy David Greenglass and How He Sent His Sister, Ethel Rosenberg, to the Electric Chair  (2001). Other books on the topic include Michael and Robert Meeropol, We Are Your Sons: The Legacy of Ethel and Julius Rosenberg (1975),

The Rosenbergs figure in E. L. Doctorow's novel The Book of Daniel (1971), a fictionalized version of the trial which is based on the Rosenberg trial (filmed as Daniel (1983)), which stars Timothy Hutton, and in Robert Coover's The Public Burning (1977). Ethel Rosenberg appears as a character in Tony Kushner's play Angels in America: Millennium Approaches (1993) (revised 2014).

More about the trial here at Professor Douglas Linder's Famous Trial website.

Sing Out, Lucia!

Michela Giorcilli, Stanford University, Department of Economics, and Petra Moser, Stanford University Department of Economics, National Bureau of Economic Research (NBER), have published Copyright and Creativity: Evidence from Italian Opera. Here is the abstract.

This paper exploits variation in the adoption of copyright laws within Italy – as a result of Napoleon’s military campaign – to examine the effects of copyrights on creativity. To measure variation in the quantity and quality of creative output, we have collected detailed data on 2,598 operas that premiered across eight states within Italy between 1770 and 1900. These data indicate that the adoption of copyrights led to a significant increase in the number of new operas premiered per state and year. Moreover, we find that the number of high-quality operas also increased – measured both by their contemporary popularity and by the longevity of operas. By comparison, evidence for a significant effect of copyright extensions is substantially more limited. Data on composers’ places of birth indicate that the adoption of copyrights triggered a shift in patterns of composers’ migration, and helped attract a large number of new composers to states that offered copyrights.

Download the paper from SSRN at the link. 

Shakespeare As a Political, Legal, and Religious Thinker

Robert J. Delahunty, University of St. Thomas School of Law, is publishing The Conscience of a King: Law, Religion, and War in Shakespeare's King Henry V in the Journal of Catholic Legal Studies (2014). Here is the abstract. 

Shakespeare must be considered seriously, not only as a dramatist, but as a major thinker on law, religion and government. His play King Henry V is a sustained and powerful meditation on the interrelationships of all three. In dramatizing Henry's invasion and conquest of France, Shakespeare raises the question of the ends of the polity and the nature of right rulership.

Understanding Shakespeare’s intentions depends on our view of the play's central, charismatic but elusive character, King Henry. Many audiences and critics have fallen under Henry’s spell, conceiving of him as a ‘mirror for Christian kings,’ exemplary for both piety and valor. And it seems that Shakespeare was aware of the depictions of an idealized Christian ruler found in an extensive body of literature, including the influential writings of Erasmus. Other viewers and critics, however, have seen Shakespeare's Henry as a Machiavellian Prince, who instrumentalizes religion, manipulates law, and practices cruelty and deception when the necessities of war and statecraft require them. Both visions of Henry are incomplete: Henry is too Christian to be a Machiavellian but too Machiavellian to be a model Christian king.
A third approach to understanding Shakespeare's Henry is to view him through the prism of Augustine's City of God. But although that approach yields some insights, it too is finally unpersuasive. Augustine simply does not treat of a monarch like Henry: a Christian, not a pagan, but not Christian as a ruler.
Shakespeare's Henry is enigmatic: neither an Erasmian model, nor a Machiavellian one, nor an Augustinian one, fits him well. Shakespeare seems to see more deeply into the nature of rulership than any of his three great predecessors. Like Erasmus but unlike Machiavelli, he fully realizes the horror and uselessness of war, and appreciates the damage that war inflicts even on a victorious State. Like Erasmus but unlike Augustine, he doubts that war is ordinarily just, and he believes that the ruler who sends soldiers into battle is responsible for the damnation of those who die in the sins they commit while fighting. But unlike Erasmus and like Machiavelli, Shakespeare seems to think that the decision for war does not depend solely on the personal qualities of the ruler, but is dictated by the existence of the State. The question Shakespeare does not resolve, however, is whether Machiavelli is right in thinking that after Christianity, a return to the pagan conception of princely virtue is necessary and possible.

Download the article from SSRN at the link. 

Multilingualism and Statutory Interpretation

Lawrence M. Solan, Brooklyn Law School, has published Multilingualism and Morality in Statutory Interpretation, at Language & Law/Linguagem e Direito, Vol. 1, Issue 1 (2014). Here is the abstract. 

This article discusses some of the costs and benefits of multilingual legislation, focusing largely on Canada and the European Union. Courts interpreting these laws must take into account the different language versions, since each version is equally authoritative. Fidelity to the legislature’s will comes with very high stakes in this context, because multilingual legislative systems are most typically a means for recognizing the autonomy of minority groups, which, in exchange, cede some of that autonomy to a higher legal order. Thus, there is a special moral duty to ensure that the laws are construed faithfully at the same time that language barriers make it appear, at least on the surface, that it is more difficult to do so. Moreover, the risk of judges substituting their own values for those of the legislature when there is no single, definitive legal text, appears to become magnified in multilingual settings, creating the risk of decision making that would not stand up to moral scrutiny even in monolingual systems.

This article argues that despite the apparent difficulties inherent in multilingual legislation, it actually reduces uncertainty in meaning by creating additional data points for statutory interpreters to consider. Multilingualism does, however, lead to certain additional problems of ambiguity. These, for the most part, however, are generally resolved fairly easily. It is further argued that the European approach to interpretation, which I call Augustinian Interpretation, is likely to lead to results more faithful to the legislature’s intent than is the standard Canadian approach, called the Shared Meaning Rule. Arguments from the case law, from linguistics and from the philosophy of language are adduced to support these conclusions.

Download the article from SSRN at the link. 

Narrative In the Law School Curriculum

Susan Ayres, Texas A&;M University School of Law, has published Using Dramatic Narratives to Teach Domestic Violence. Here is the abstract.

The 2003 call of the ABA for teachers to incorporate domestic violence into the law school curricula remains gravely important today. Domestic violence intersects many areas — from family law, to torts, to criminal law. Along with sexual assault, it is one of the most difficult subjects to teach. Students, like the general public, find it hard to comprehend why a person batters, or why a victim stays with the batterer. While students may learn about domestic violence from case law and scholarly excerpts, the best lessons may be learned through narratives, which provide a window into the reasons for battering and the multi-faceted reasons a victim stays with a batterer. In this article, I describe a teaching approach that incorporates narratives by the award-winning, multi-racial writer, Ai (1947-2010). This valuable approach offers a picture of domestic violence that is more compelling than that of casebooks or statistics, and provides students — as future lawyers — with the ability to respond to clients experiencing domestic violence with greater empathy and understanding.

Download the text from SSRN at the link. 

Originalism Grounded

Harold Anthony Lloyd, Wake Forest University School of Law, has published Plane Meaning and Thought: Real-World Semantics and Fictions of Originalism. Here is the abstract.

This article explores how meaning and thought work in the real-world of human experience. In doing so, it explores five basic planes or levels of such meaning and thought: references, issues, rules, applications of rules, and conclusions. It also explores framing, metaphor, and narrative in constructing such planes or levels of meaning and thought as well as some basic resulting forms of thought. Additionally, it examines original meaning as a cautionary negative example of how real-world meaning and thought do not and cannot work. Given the flexibility of framing involved in the multiple levels of real-world meaning and thought, originalism cannot sustain its claims of greater objectivity when compared to other interpretive approaches.

Download the paper from SSRN at the link. 

Engaging With the Work of James Boyd White

Announcement of a new publication from the imprint Maize Books, a division of University of Michigan Press:

Living in a Law Transformed: Encounters with the Works of James Boyd White

Edited by Julen Etxabe and Gary Watt.

From the Editors' Introduction:

Julen Etxabe and Gary Watt

In March 2013, the Association for the Study of Law, Culture and the Humanities (ASLCH) convened its annual conference in London. It was the first time that the conference had been held outside the United States, and, with a happy correspondence, it fell in an important anniversary year for a U.S. scholar who has profoundly influenced legal thought and practice far beyond his home horizons. 2013 marks the fortieth anniversary of the publication of James Boyd White’s The Legal Imagination, of which we will shortly say more. 2013 is also, incidentally, the seventy-fifth anniversary of the “publication” of the man himself. The present collection of essays draws together a group of scholars who have gathered in gratitude to the works, wisdom, and personal warmth of Professor James Boyd White. Contributors come from many countries—from The United States, Canada, the Netherlands, Belgium, the United Kingdom, the Basque Country, and New Zealand.

We are delighted that the first contribution to the collection is from Jeanne Gaakeer, who at the 2013 conference joined the roll of distinguished winners of the ASLCH’s annual James Boyd White Award. Many of the contributors to this volume had the pleasure of meeting at the London conference, and for some of us, including one of the editors of this collection, that was the first occasion of their meeting face-to-face with the man himself after several years of correspondence. For other contributors it was a welcome chance to meet again the tutor, colleague, and friend whom they know simply as Jim. Indeed, a very good thing about Jim White is that, thanks to his lack of pretension and the clarity of his communication, students and scholars can know him “simply.” Having said that, it is only through serious attention that we come to appreciate the deep challenges that lie beneath the simple things he has to say about living in the law. It is with that effort of attention, and not only to celebrate amity and anniversaries, that we present this publication of twelve essays.

The main title of our book, Living in a Law Transformed, is intended to remove the artificial barrier that we all too often erect between our life and our work. If we see work in purely metric terms of so-called human resources, as being those hours that we do not devote to love and leisure and all the rest of life, what damage do we do to true human resources? The answer is that we make a wasteland of the world of work, and thereby deaden a huge portion of our lives. Even more dangerous than that, we deaden the lives of the students, clients, and colleagues who meet us in the law. What a difference would it make for those of us who work as jurists, if we were to acknowledge that we (and our clients, colleagues, and students) are bound to live in law? What a difference might it make if we were to bring our life to work and bring our work to life? James Boyd White challenges us to ask such questions as these.

One of the threads that weaves its way through this collection is that an integration of life and law has transformed the contributors’ experience as scholars, students, and teachers, as well as our vision of law. This collection of essays therefore constitutes an invitation to encounter White’s work—and the contributors’ collective experience of their own encounters—as an experience of living in a law transformed. For just as Odysseus had to learn to recognize Ithaca at his return, White invites us to look at the law anew and to learn to recognize it as something like our own true home.

James Boyd White’s The Legal Imagination is widely regarded as the founding document of the modern “law and literature” movement. It is therefore appropriate that this collection should start and move from there. The movement takes us through narrative critique, with special attention to critical readings of law as literature. From there, the collection moves to consider the potential for meaningful experience that is to be found in the spaces and silences that exist within and around text and speech. The next group of chapters engages with extratextual sources; the authors travel with White toward an appreciation of paintings, places, movies, and even a simple stone in a stream. This leads us, finally, to the place of practice, not only in the classroom, the court, or the lawyer’s office, but wherever we live and work. Thus the journey of the book leads to hope of real transformation.

More here. 

The text is free online.

Saul Goodman's Ads

A commercial for Saul Goodman's law firm. The spinoff from Breaking Bad, Better Call Saul, premieres next February.

More serious fun from the creators of the show here.

The Constitutional Era in the Western Hemisphere

Matthew C. Mirow, Florida International University College of Law, has published The Age of Constitutions in the Americas at 32 Law & History Review 229 (2014). Here is the abstract. 

This essay discusses essential elements of the Age of Constitutions in the Americas. These elements are the United States Constitution and state constitutions, English constitutional practices, the French Revolution and the republic constitutions, the Cortes of Cadiz and the Spanish Constitution of 1812, and Haitian independence and the constitutions of the early republic.
Note: This is an Author’s Original version of a full article that appears in Law and History Review published by Cambridge University Press.

Download the text from SSRN at the link. 

A New Book From Marianne Constable

Marianne Constable, University of California, Berkeley, has published Our Word Is Our Bond: How Legal Speech Acts (Stanford University Press, 2014). Here's a description of the contents from the publisher's website.

Words can be misspoken, misheard, misunderstood, or misappropriated; they can be inappropriate, inaccurate, dangerous, or wrong. When speech goes wrong, law often steps in as itself a speech act or series of speech acts. Our Word Is Our Bond offers a nuanced approach to language and its interaction and relations with modern law. Marianne Constable argues that, as language, modern law makes claims and hears claims of justice and injustice, which can admittedly go wrong. Constable proposes an alternative to understanding law as a system of rules, or as fundamentally a policy-making and problem-solving tool. Constable introduces and develops insights from Austin, Cavell, Reinach, Nietzsche, Derrida and Heidegger to show how claims of law are performative and passionate utterances or social acts that appeal implicitly to justice.
Our Word Is Our Bond explains that neither law nor justice are what lawyers and judges say, nor what officials and scholars claim they are. However inadequate our law and language may be to the world, Constable argues that we know our world and name our ways of living and being in it through law and language. Justice today, however impossible to define and difficult to determine, depends on relations we have with one another through language and on the ways in which legal speech—the claims and responses that we make to one another in the name of the law—acts.

Proceedings of a Conference on Law and Popular Culture Available

If you missed it: proceedings from a conference on Law and Popular Culture held at Tilburg University are available from Cambridge Scholars Publishing. Here's a description of the contents from the publisher's website.

Commentators have noted the extraordinary impact of popular culture on legal practice, courtroom proceedings, police departments, and government as a whole, and it is no exaggeration to say that most people derive their basic understanding of law from cultural products. Movies, television programs, fiction, children’s literature, online games, and the mass media typically influence attitudes and impressions regarding law and legal institutions more than law and legal institutions themselves. Law and Popular Culture: International Perspectives enhances the appreciation of the interaction between popular culture and law by underscoring this interaction’s multinational and international features. Two dozen authors from nine countries invite readers to consider the role of law-related popular culture in a broad range of nations, socio-political contexts, and educational environments. Even more importantly, selected contributors explore the global transmission and reception of law-related cultural products and, in particular, the influence of assorted works and media across national borders and cultural boundaries. The circulation and consumption of law-related popular culture are increasing as channels of mass media become more complex and as globalization runs its uncertain course. Law and Popular Culture: International Perspectives adds to the critical understanding of the worldwide interaction of popular culture and law and encourages reflection on the wider implications of this mutual influence across both time and geography.

More here from the website. The book is a little pricey (about 55 pounds) but the contributors are leaders in the field and include folks such as David Papke of Marquette University, Michael Asimow of UCLA, Jeanne Gaakeer of Eramus University, Jennifer Schulz of the University of Manitoba, Peter Robson of the University of Strathclyde, Richard H. Weisberg of Cardozo Law School, and John Denvir of the University of San Francisco. 

Re-Examining Blackstone's "Commentaries"

Jessie Allen, University of Pittsburgh School of Law, has published Law and Artifice in Blackstone's Commentaries in volume 4, issue 3, Chapter One, of Journal of Law: A Periodical Laboratory of Legal Scholarship (Summer 2014). Here is the abstract.

William Blackstone is often identified as a natural law thinker for whom property rights were preeminent, but reading the Commentaries complicates that description. I propose that Blackstone’s concept of law is more concerned with human invention and artifice than with human nature. At the start of his treatise, Blackstone identifies security, liberty and property as “absolute” rights that form the foundation of English law. But while security and liberty are “inherent by nature in every individual” and “strictly natural,” Blackstone is only willing to say that “private property is probably founded in nature.” Moreover, Blackstone is clear that there is nothing natural about the right of inheritance, “a wise and effectual, but clearly a political, establishment.” Indeed, he critiques the assumption that a legal right as central and longstanding as inheritance must be somehow “natural,” observing that “we often mistake for nature what we find established by long and inveterate custom.” At the same time, Blackstone celebrates the many features of common law that have simply been made up. Blackstone’s unflinching formal, fictional, “as if” approach invests property law with a certain materiality. The only way to actualize a make-believe vision is to act it out, to embody it in formal doctrines and practices. In comparison, the modern realist approach to law as an instrument for policy is quite abstract. This leaves realist critics of Blackstonian formalism in the ironic position of arguing for a more transparent approach to law that winds up obscuring the constructive and constructed quality of the legal system that comes through loud and clear in the Commentaries. By openly celebrating legal fictions, Blackstone reveals the truth that law is a great fabrication, not some necessary reflection of the way things are, or should be.

Download the article from SSRN at the link. 

Graduate Student Workshop at ASLCH, March 5, 2015

From James R. Martel, San Francisco State University, on behalf of ASLCH:

All graduate students who are considering coming to the ASLCH conference, March 6-7th 2014, at Georgetown School of Law are invited to apply for the graduate student workshop that will occur one day earlier on March 5th (see http://law2.syr.edu/academics/centers/lch/graduate_student_workshop.html for application details)
 The workshop will consist of panels on the logistics of graduate student life, working on your dissertation, finding academic jobs and getting published as well as sessions where grad students will meet in small groups with mentors to talk about their own work and any challenges that they are facing.
 Applicants whose proposals are accepted may be funded for the extra night's accommodation by ASLCH and, if funds permit, it may also be able to contribute to airfare costs to and from Washington.
 For inquiries and to apply please write to George Pavlich at <gpavlich@ualberta.ca>
  

Brazilian Law and Literature

Greta Olson, Justus-Liebig-University Giessen, has published Towards a Comparative and Localized Study of Brazilian Law and Literature in Direito e Literatura na Virada do Milênio/Law and Literature at the Turn of the Millennium 15-38 (Sonja Arnold and Michael Korfmann eds., Porto Alegre: Editora Dublinense, 2014).  Here is the abstract.

I am grateful to the editors of this volume for allowing me to contribute in the atypical form of a comment on the subject of the volume rather than with a scholarly essay. Composing an essay that might have made manifest in print what the title of my talk at the conference Literatura e Direito na virada do milênio/Law and Literature at the Turn of the Millennium had promised turned out to be an impossibility. In entitling my talk “Law and Literature in the United States, the United Kingdom, Germany (and Brazil): Comparing Legal Systems, Literatures, and Cultural Preoccupations,” I discovered that I had promised too much. As an expatriate US American living in Germany and teaching British and American studies, I could not match the knowing I have of German, British, and American legal systems, literatures,and social issues with enough information about Brazil in a short time and without facility in Brazilian Portuguese. Thus the following has the character of a programmatic sketch rather than an analytic description.

Download the essay from SSRN at the link. 

The Representation of Canadian Law In Art and Architecture

David DesBaillets, University of Quebec, Montreal (UQAM), Faculty of Law; University of Ottawa, Faculty of Law, has published Representations of Canadian Justice: The Iconography and Symbolism of the Supreme Court of Canada. Here is the abstract.

The goal of this paper would be to bridge the world of artistic and architectural representations of the law, primarily in the form of the constitutional court house, and the legal cultures and values that inspire their design. I will proceed by undertaking a comprehensive research of the Supreme Court of Canada, including its history, esthetics, architectural and design innovations, personal input of the architects, social and historical contexts, as well as some of the legal and constitutional concepts that they embody. The assumption of my hypothesis being constitutional court houses, with their often impressive artistic details and inscribed legal maxims, seem to possess a quasi-spiritual significance, being an extension of what has become in many societies, especially developed liberal democracies with strong rule-of-law traditions, the secular approximation of a religious institution and, thus, transform the courts into a kind of temple of law. However, the challenge of creating a courthouse, especially the Supreme Court, that reflects the legal traditions and social norms (the former often being in conflict with the latter) as well as the ever evolving aspirations of a dynamic and highly diverse, pluralistic society such as Canada’s is ,in many respects, an impossible one, and it remains an open question whether the image that the court conveys to the visitor, be they layperson or legal official, is ,as Gournay & Vanlaethem state in their essay found in The Supreme Court of Canada and Its Justices 1875-2000: A Commemorative Book , the most “eloquent three dimensional representation of the role the Supreme Court has assumed in the life of the nation.”

The full text is not available from SSRN. 

Law and Ritual in China

Mary Szto, Hamline University School of Law, has published Chinese Ritual and the Practice of Law in volume 30 of the Touro Law Review (2014). Here is the abstract.

While there is much literature about the contemporary practice of law in China, almost no articles discuss the rituals involved. This article describes five common Chinese rituals in the contemporary practice of law: drinking tea, banqueting, drinking alcohol, napping, and karaoke. These rituals are traced to their ancient origins in ancestor worship, traditional Chinese medicine, and Confucian, Daoist, and Buddhist thought. Then they are explicated for their contemporary meaning. Properly observed, these rituals promote just governance, harmony, balance, and physical and spiritual wholeness. They should be celebrated and practiced without excess.

Download the article from SSRN at the link. 

Lawyers, Love, and Money

Eli Wald, University of Denver College of Law, and Russell G. Pearce, Fordham University School of Law, have published What's Love Got to Do with Lawyers? Thoughts on Relationality, Love, and Lawyers’ Work in volume 17 of Legal Ethics (2014). Here is the abstract. 

In a new and provocative book, Rob Vischer has challenged the neutral partisan conception of the lawyer and the legal profession’s reductive presumption that all clients wish to pursue atomistic self-interest irrespective of the consequences to others. Vischer’s use of the teachings of Martin Luther King, Jr. and of Christian theology as a foundation for an alternative, and richly relational, account of law practice is both inspiring and effective.
To debunk the presumption that clients seek narrow self-interest, which the book argues is a powerful component of the neutral partisan conception, Vischer compellingly asserts that clients are relational beings often interested in pursuing objectives that take into account the impact of their conduct on other parties and the community. The book’s main contribution is its development of a practical relational account of law practice pursuant to which lawyers can both represent clients loyally and follow a relational ethic. Based on Dr. King’s teachings regarding human dignity, agape, personalism, justice and Christian realism, Vischer puts forward a vision of law practice that calls upon lawyers to treat clients and themselves as subjects in a partnership and to offer counseling to clients that does not shy away from engaging the hard moral dimensions of the clients’ conduct.
The book’s relational framework could gain even greater traction if it offered reasons for practicing relationally not embedded in Christian theology. For example, Vischer’s anthroreligious belief that we are all created as relational human beings leads him to indicate that if institutional, competitive and ideological barriers to relational practice were removed, lawyers and clients would inevitably act more relationally. The cultural dominance of atomistic individualism, however, suggests that even with barriers removed, lawyers and clients will need some additional persuasion before adopting relational perspectives. Similarly, the book’s grounding of relationality in agapic love neglects the potential application of more open-textured concepts, such as mutual benefit, that might conceivably appeal more broadly to lawyers who do not share Vischer’s theological convictions.

Download the article from SSRN at the link. 

Defining Truth

Giorgio Resta, Università degli Studi di Bari, Law Faculty, and Vincenzo Zeno-Zencovich, Roma Tre University, Department of Law, have published Judicial 'Truth' and Historical 'Truth': The Case of the Ardeatine Caves Massacre at 31 Law & History Review 843 (2013).

This paper looks at the relationship between “judicial truth” and “historical truth” from a legal realist perspective. It starts from analysis of a specific case, which is used to highlight the problems arising from the “judicialization” of contemporary history. The case is taken from the Italian post-war experience and consists of a complicated set of controversies which all ensued from the same chain of events: the partisan attack on via Rasella and the Nazi massacre of the Ardeatine Caves (Rome, March 23, 1944). The judgments rendered in these cases are particularly interesting, not only because they extend over a long period of time and span the entire legal system (involving criminal and civil trials), but also because they delineate various judicial “truths” which interact with the interpretation of the same events given by historians. The paper shows how these judicial “truths” were created, how much they varied, and what is their relationship with the projects of identity-building politics. Finally, starting from the analysis of defamation cases against historians, the authors argue that courts should exercise self-restraint in reviewing the results of historical researches and should not be considered as a forum of last resort for the resolution of academic controversies.

Download the article from SSRN at the link. 

The Act of Killing

Richard K. Sherwin, New York Law School, has published Law in the Flesh: Tracing Legitimation's Origin to 'The Act of Killing', in No Foundations: An Interdisciplinary Journal of Law and Justice (June 2014). Here is the abstract.

The founding moment of political and legal investiture haunts the baroque and neo-baroque mind, from Shakespeare’s 'Hamlet' to Joshua Oppenheimer’s highly unsettling film, 'The Act of Killing' (2012). In the former, Hamlet finds the resources to act in the face of injustice; in so doing he precipitates a transformative political event that renews the rightful basis for state legitimacy. In 'The Act of Killing', by contrast, restless stasis remains unaltered from beginning to end. It is a state of affairs well suited to contemporary neo-baroque conditions – a time of distracted paralysis, when the availability of the cultural and psychological resources needed to go beyond terror and its purgatorial aftermath remains uncertain.
The exploration of post-secular possibilities requires new experiential sources, new interpretive and critical methods, and new interdisciplinary alliances. Phenomenology, psycho-theology, political theology, and visual jurisprudence are just some of the emerging categories (or perhaps re-emergent fields) that present themselves to us for further consideration.

Download the article from SSRN at the link. 

Columbia and the Charles Beard Thesis

Ajay K. Mehrotra, Indiana University Maurer School of Law, has published Charles A. Beard & The Columbia School of Political Economy: Revisiting the Intellectual Roots of the Beardian Thesis at 29 Constitutional Commentary 475 (2014). Here is the abstract.

A century after it was first published, Charles A. Beard’s An Economic Interpretation of the Constitution remains a significant and controversial part of constitutional scholarship and history. Just as Beard sought to historicize the Founders as they drafted and adopted the Constitution, this article attempts to historicize Beard as he researched and wrote his classic text on the Constitution. Because Beard was both a graduate student and professor at Columbia University before and while he researched and wrote his book, this article explores the particular influence that Columbia University’s institutional and intellectual climate may have had on Beard and the writing of An Economic Interpretation of the Constitution.

This article contends that Charles Beard was the product of a unique Columbia tradition of inductive, proto-institutionalist research in political economy – a tradition that at its core sought to meld serious political and historical scholarship with progressive social activism. Yet, in many ways, Columbia’s influence on Beard was more reinforcing than it was revolutionary. Columbia, in other words, facilitated an evolution rather than a dramatic transformation in Beard’s thinking. His time at Columbia provided him with new scholarly perspectives and research methods, but ultimately these new views heightened his innate tension between scholarly objectivity and political advocacy, between his belief in social scientific research and his desires for social democratic reform. In short, Beard’s time at Columbia, as both a student and junior scholar, refined his personal predilections and his early upbringing and education, rather than radically converting him into a new thinker and writer.

This article was part of a special symposium on the 100th Anniversary of Charles Beard’s An Economic Interpretation of the Constitution, hosted by the University of Virginia’s Miller Center and law school.

Download the article from SSRN at the link. 

Judge Humorous, Are You Pulling My Leg?

Mary B. Trevor, Hamline University School of Law, has published From Ostriches To Sci-Fi: A Social Science Analysis of the Impact of Humor in Judicial Opinions at 45 University of Toledo Law Review 291 (2014). Here is the abstract from SSRN.

In the legal profession, understanding — or at least, formal analysis — of humor and its impact is in its infancy. Lawyers and judges are not trained to use or understand humor, although all would acknowledge that humor, cringe worthy or otherwise, is by no means unknown in the practice of law. But for most intents and purposes, we pretend that humor is not part of legal culture. When humor is addressed in the law school or professional advocacy context, for example, it typically gets short shrift: don’t try to be funny. Resources on judicial opinion writing, in particular, generally advise that humor is inappropriate, and commentators on judicial humor have offered similar, mostly negative, assessments.
Despite this advice, humor, while not widespread, is an ever-present aspect of the body of judicial opinions, an aspect that periodically attracts attention. One of the best-known recent examples is Gonzalez-Servin v. Ford Motor Co., an opinion by Judge Richard Posner of the Seventh Circuit. Multiple counsel in the case had, in Judge Posner’s view, ignored “apparently dispositive precedent” when presenting arguments. Unsatisfied with a mere holding, however, Judge Posner not only verbally compared the tactic to an ostrich burying its head in the sand, but also inserted two photographs into the opinion: one of an ostrich burying its head in the sand, and immediately following, one of a man dressed in traditional “attorney” attire burying his head in the sand. Legal newsletters and blogs picked up on Judge Posner’s opinion, but they were not the only sources to do so. The general press (the Wall Street Journal and the Chicago Tribune) did as well. And such treatment was for an opinion addressing an issue that was not a matter of public interest-forum non conveniens.
Judge Posner does not stand alone in his use of humor. There are even some indications that judicial use of humor in opinions is increasing. And in our era of rapid and widespread electronic communication, public awareness of this humor also appears to be increasing. In light of the evidence of continued use of humor in the face of advice and commentary largely counseling against its use, a reassessment of judicial humor seems warranted.
An additional reason for reassessment at this time comes to us from recent developments in the field of social science, which offers sophisticated tools for the job. In the last few decades, social scientists have greatly expanded the study of humor’s role in our society. Their theories offer new tools to assess judicial humor, to bring together the perspectives of earlier commentators on judicial humor, and to offer more comprehensive guidelines for judicial humor than have previously been offered.
The intent of this article is not to suggest that humor is always, or even often, appropriate in judicial opinions. But social science tells us that, despite the bad name humor has justly acquired based on its use in certain opinions, it may be possible for humor to be used appropriately, and even helpfully, in certain instances.

Download the text from SSRN at the link.