Colorado Prosecutors, Race, and the Death Penalty in the Early Part of the 21st Century

Meg Beardsley, Washington and Lee University School of Law, Sam Kamin and Justin F. Marceau, both of the University of Denver College of Law, and Scott Phillips, University of Denver, University of Denver, are publishing Disquieting Discretion: Race, Geography & the Colorado Death Penalty in the First Decade of the Twenty-First Century in volume 92 of the Denver University Law Review (2015). Here is the abstract.

This Article demonstrates through original statistical research that prosecutors in Colorado were more likely to seek the death penalty against minority defendants than against white defendants. Moreover, defendants in Colorado’s Eighteenth Judicial District were more likely to face a death prosecution than defendants elsewhere in the state. Our empirical analysis demonstrates that even when one controls for the differential rates at which different groups commit statutorily death-eligible murders, non-white defendants and defendants in the Eighteenth Judicial District were still more likely than others to face a death penalty prosecution. Even when the heinousness of the crime is accounted for, the race of the accused and the place of the crime are statistically significant predictors of whether prosecutors will seek the death penalty. We discuss the implications of this disparate impact on the constitutionality of Colorado’s death penalty regime, concluding that the Colorado statute does not meet the dictates of the Eighth Amendment to the Constitution.

Download the article from SSRN at the link.

"Game of Thrones" Good Business For Belfast

The Times of London reports that Belfast is profiting from as much as £110 million from the Game of Thrones economy. The show films in and around the area, and tourists visit the city and its surroundings to watch the fun (and well as to see historic Northern Ireland, of course, which is lovely). More here (subscription required--sorry).

Tip of the beret to Chidem Kurdas@PonziRegulation.

Australian Copyright Law and Eighteenth Century Precedent

Isabella Alexander, University of Technology Sydney, Faculty of Law, is publishing 'Manacles Upon Science': Re-Evaluating Copyright in Informational Works in Light of 18th Century Case Law in volume 38 of the Melbourne University Law Review (2014). Here is the abstract.

Questions over whether, and if so how, copyright law should protect works of fact and information have occupied the courts of several common law countries in recent decades. In Australia, they recently came to the fore in two Federal Court decisions relating to telephone directories. While the Court paid considerable attention to nineteenth century cases, consideration of the eighteenth century cases on which these precedents were based sheds greater light on the later development of the law. This article takes a microhistorical legal approach and examines a series of cases relating to road books from the late eighteenth century to explore some of the earliest legal approaches to works of geographical information, placing them in their social and cultural context.

Download the article from SSRN at the link.

"Mr. Robot", Technology, Privacy, and Security

Corey Nachreiner reviews every episode of Mr. Robot at Geekwire; his take on the latest episode is here.  Dan Solove gives his view of the series, complete with analysis of privacy and security issues, here.

Teaching Law With Popular Culture

I'm still looking for a few more profs to participate in a book of essays on teaching the law school curriculum using popular culture (film, tv, graphic novels, comics, music, other materials).  Right now we have about a dozen essays lined up from contributors from the U.S., Canada, and France. If you teach in the first year curriculum and use pop culture, or teach bar courses using pop culture, please consider participating. If you teach undergraduate courses or a "law and" or law course in a graduate school, that's great, too. If you aren't interested, but know colleagues who might be, please feel free to forward this message to them.

Please send indications of interest to christine.corcos at law.lsu.edu.

Thanks.

A New Blog Devoted To the History of Women Lawyers

Bari Burke, University of Montana School of Law, has launched a new blog, Montana's Early Women Lawyers: Trail-Blazing, Big Sky Sisters-In-Law.  Each post focuses on an interesting (and unknown) story about a female lawyer from the past, which Professor Burke has unearthed from cases, newspapers, and other publications. Fascinating to see the number of mentions (and the depressing sameness of observations about women attorneys).  From the August 12th, 2015 post, this excerpt from a letter published August 12, 1907:

‘Possibly men are afraid to pay court to a woman lawyer, from the knowledge that she has too many brains for him, and can see further into his subterfuges and little evasions than most women could. It may be that the legal atmosphere is chilling to affection. It may be that women lawyers are too smart to tie themselves down. I do not know. I only cite the facts.
One of the happiest households that I know, is composed of two lawyers, one the husband, and the other the wife. But he was a lawyer and she was not when they got married. She studied under him, and is his legal assistant rather than his partner. Perhaps that is why they get along so happily together.'”

Oh, dear.
[Cross-posted to Feminist Law Professors]

Winter (Semester) Is Coming: "Game of Thrones" Goes To College

The University of California, Berkeley is taking Game of Thrones seriously. Extremely seriously. 
The AP offers up a video on GoT and academia here.

Want more Game of Thrones academic action? Check out coverage of Ohio State's GoT's day here, 
a summer course on the subject at the University of Virginia here. 

Homer In the Boardroom

Andrew A. Schwartz, University of Colorado Law School, has published Corporate Legacy at 5 Harvard Business Law Review 237 (2015). Here is the abstract.

Throughout human history, people have sought to overcome the human condition and achieve the only form of immortality reasonably available to us: a legacy that “lives on” after we are gone. Legacies can be established in countless ways, including art (Leonardo da Vinci), literature (William Shakespeare), and athletics (Babe Ruth). The corporate form, though not previously recognized as such, can likewise serve as a vehicle for achieving an enduring legacy because corporations are endowed by the law with “perpetual existence.” Publicly traded corporations in particular are well suited for this purpose, given the significant social and cultural role they play. Once a company goes public in an IPO, however, it suddenly becomes vulnerable to takeovers, which can end its corporate existence and thereby any hope of an enduring legacy. This unwelcome fate can be avoided, however, if a company goes public with powerful takeover defenses in place — which practically all do, according to new data presented here. Mature public companies, by contrast, are controlled by people who joined the board long after the IPO. These directors lack the same passion for the company’s independent existence because, unlike the pre-IPO shareholders, their legacy is not tied to the company. Accordingly, a mature public company may be amenable to abandoning its takeover defenses. The data presented here shows that practically all new public companies — those launching their initial public offering (IPO) — go public with powerful takeover defenses in place. This behavior is puzzling because the adoption of takeover defenses presumably lowers the price at which the pre-IPO shareholders can sell their own shares in and after the IPO. Why would founders and early investors engage in this seemingly counterproductive behavior? This Article claims that IPO firms adopt takeover defenses, at least in part, so that they can remain independent indefinitely and create corporate legacies that last for generations.

Download the article from SSRN at the link. See also Andrew A. Schwartz, The Iliad and the IPO at the Harvard Law School Forum on Corporate Governance and Financial Regulation.

Measuring a Supreme Court Justice's "Tweetability" Quotient

Jack Metzler has published Most Tweetable Justice: An Empirical Study. Here is the abstract.

Twitter has profoundly changed how people communicate with one another and learn about the world. In less than a decade since it first launched, Twitter has become the place where all news breaks first, where political revolutions are launched, and where presidential campaigns are conducted. The service has more than half a billion users, who use Twitter to talk about the news, follow celebrities, support sports teams, conduct business, and learn about one another. Twitter has touched every area of human interaction, and the law is no exception. Thus, although no member of the Supreme Court uses Twitter officially (yet), the world needs to know which Justice is most “tweetable.” The paper uses data from the SCOTUS Search database to rank the Justices by whether their oral argument statements are fit to be tweeted.

Download the article from SSRN at the link.

What Judges Talk About When They Talk About Lawyers' Roles

Samuel J. Levine, Touro College Law Center, has published Judicial Rhetoric and Lawyers' Roles at 90 Notre Dame L. Rev. 1989 (2015). Here is the abstract.

Notwithstanding the rich scholarly literature debating the proper roles of lawyers and the precise contours of lawyers’ ethical conduct, as a descriptive matter, the American legal system operates as an adversarial system, premised in part upon clear demarcations between the functions of different lawyers within the system. Broadly speaking, prosecutors have the distinct role of serving justice, which includes the duty to try to convict criminal defendants who are deserving of punishment, in a way that is consistent with both substantive and procedural justice. In contrast, private attorneys have a duty to zealously represent the best interests of their clients, within ethical bounds, but without taking into account broader notions of pursuing a just outcome. In some ways, criminal defense attorneys have a greater license or duty to engage in zealous representation of the interests of their clients, permitting or requiring them to use tactics that are questionable or prohibited for other private attorneys. This Essay considers the rhetoric some judges have used to characterize the respective duties of prosecutors and criminal defense attorneys. The Essay suggests that, although this rhetoric often expresses admirable aspirations and ideals, it improperly blurs the lines between the roles different lawyers play within the adversarial system. Specifically, these judges have used language that would seem to place additional limitations on both the methods prosecutors employ in seeking to obtain just convictions and the tactics criminal defense attorneys employ in zealous advocacy of their clients’ interests. This Essay concludes that judges should avoid such rhetoric, which has the potential to undermine basic principles of the American legal system.

Download the essay from SSRN at the link.

Updating Socrates for the 21st Century Law Classroom

Stephen E. Henderson and Joseph T. Thai, both of the University of Oklahoma College of Law, are publishing Teaching Criminal Procedure: Why Socrates Would Use YouTube in the St. Louis University Law Journal. Here is the abstract.

In this invited contribution to the Law Journal’s annual teaching volume, we pay some homage to the great philosopher whose spirit allegedly guides our classrooms, but in service of two concrete goals. One, we employ dialogue to describe the “nuts and bolts” of teaching criminal procedure, most of which are equally relevant to any doctrinal law school course (including course description, office hours, seating charts and attendance, class decorum and recording, student participation, laptops, textbooks, class preparation and presentation, and exams). Two, we explain the benefits of using multimedia in the classroom, including a few of the many modules found on our Crimprof Multipedia service. We organize its benefits into four “h’s” (humor, humanization, headlines, and hypotheticals), and we give several examples of each for a topic that pervades criminal procedure: racial (in)justice.

Download the article from SSRN at the link.

The Constitutional Foundations of Intellectual Property

Randolph J. May and Seth L. Cooper have published The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective (Carolina Academic Press, 2015). Here is a description of the contents from the publisher's website.

Protection of intellectual property (IP) rights is indispensable to maintaining a vibrant economy, especially in the digital age as creativity and innovation increasingly take intangible forms. Long before the digital age, however, the U.S. Constitution secured the IP rights of authors and inventors to the fruits of their labors. The essays in this book explore the foundational underpinnings of intellectual property that informed the Constitution of 1787, and it explains how these concepts informed the further development of IP rights from the First Congress through Reconstruction. The essays address the contributions of figures such as John Locke, George Washington, James Madison, Thomas Jefferson, Noah Webster, Joseph Story, Daniel Webster, and Abraham Lincoln to the development of IP rights within the context of American constitutionalism. Claims that copyrights and patents are not property at all are in fashion in some quarters. This book’s essays challenge those dubious claims. Unlike other works that offer a strictly pragmatic or utilitarian defense of IP rights, this book seeks to recover the Constitution’s understanding of IP rights as ultimately grounded in the natural rights of authors and inventors.

Hip Hop and the Law

Hip Hop and the Law (Pamela Bridgewater, andré douglas pond cummings, and Donald F. Tibbs, eds., Carolina Academic Press, 2015) is now available. Here is a description of the contents from the publisher's website.

What is important to understanding American law? What is important to understanding hip hop? Wide swaths of renowned academics, practitioners, commentators, and performance artists have answered these two questions independently. And although understanding both depends upon the same intellectual enterprise, textual analysis of narrative storytelling, somehow their intersection has escaped critical reflection. Hip Hop and the Law merges the two cultural giants of law and rap music and demonstrates their relationship at the convergence of Legal Consciousness, Politics, Hip Hop Studies, and American Law. No matter what your role or level of experience with law or hip hop, this book is a sound resource for learning, discussing, and teaching the nuances of their relationship. Topics include Critical Race Theory, Crime and Justice, Mass Incarceration, Gender, and American Law: including Corporate Law, Intellectual Property, Constitutional Law, and Real Property Law.

Association for the Study of Law, Culture, and the Humanities Opens Its Call for Papers

From James Martel:

ASSOCIATION FOR THE STUDY OF LAW, CULTURE AND THE HUMANITIES CALL FOR PAPERS

We are pleased to announce that the Nineteenth Annual Meeting of the Association for the Study of Law, Culture and the Humanities will be held at the University of Connecticut Law School, in Hartford, CT on April 1-2^nd, 2016. We invite your participation.  Please note, panel and paper proposals are due Thursday, October 15^th, 2015

The Association for the Study of Law, Culture and the Humanities is an organization of scholars engaged in interdisciplinary, humanistically-oriented legal scholarship. The Association brings together a wide range of people engaged in scholarship on legal history, legal theory and jurisprudence, law and cultural studies, law and anthropology, law and literature, law and the performing arts, and legal hermeneutics. We want to encourage dialogue across and among these fields about issues of interpretation, identity, and values, about authority, obligation, and justice, and about law's role as a constituent part of cultures and communities.

If you have any general questions about the conference, please do not hesitate to ask me at jmartel@sfsu.edu. For matters related to the program or its organization, please write to Simon Stern simon.stern@utoronto.ca.  I want to thank the members of the program committee, chaired by Simon Stern for all their hard work on the Call for Papers. 

This year’s conference theme is Reading Race, Writing Race and Living Race

 “Within the text of the law there is an afterlife of slavery … as matters of aesthetic and legal representation … as an aesthetics of legal representation”

–Stephen Best, The Fugitive's Properties: Law and the Poetics of Possession, 14

The question of race is central to historical and contemporary violence, to material conditions, reproduction and global politics. In the US, recent police violence against African Americans has again raised the ongoing question of the significance of lawful violence, of law’s complicity, in upholding the state. Penal law is implicated in the incarceration of African-Americans in the US, Aboriginal communities in Australia, and Indigenous peoples in Canada, demonstrating a settler-colonial preoccupation for using race and racial profiling to mask and further colonial ends. In the context of securitised responses to migration, the onshore refugee applicant speaks as an already criminalised subject, as ‘an illegal immigrant’ or as an ‘undocumented migrant’. Under the conditions of continuing colonization, statutory schemes such as Australia’s Northern Territory Intervention target Aboriginal populations and make such populations subject to state violence. These examples raise the urgent question of law’s relation to, and production of, violence through race. From transitional justice to human rights processes, race is foregrounded at scenes and struggles in which law seeks to respond to and adjudicate violence, and assert its own authority.

This conference seeks research drawn from multiple disciplines and jurisdictions that addresses the following questions: How might we think of the relations among law, culture, history, and the shaping of racial imaginaries? How is law complicit and productive of violence? How should we read the legal and cultural forms that produce the conditions of this violence? What kinds of legal, critical, and cultural practices can intervene in both this violence, and the conditions that are complicit with it? How might legal, critical, and cultural projects provide counter-narratives and counter-archives to the juridical imaginary of responsibility for historical and contemporary violence? How do historical and contemporary readings of race relate? Are anti-racist forms of law and state possible, and what would they look like? How might law be enlisted in the development of new racial formations? How should we re-think critical legal feminisms, and Marxism, through the category of race? How can we devise legal, critical and cultural forms that are attentive to race, and make visible this legal violence? What is the significance of ‘reading’ race—what is the materiality in the metaphor?

This conference seeks to develop conversations regarding the roles of representation, affect and imagination in the ongoing relationship of law to concepts of race, justice, sovereignty, captivity, history. We seek to examine legal and cultural practices of representation for their juridical, as well as cultural, effects. Questions of genre, narrative, and aesthetics are not only sites of critique, but also become potential sites of theoretical intervention, and intervention into projects of social justice.

In addition to sessions that connect to the conference theme, examples of other types of sessions we expect people to organize include: 

History, Memory and Law; 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).

If you are inclined to register sooner here is the link:

http://www.eventbrite.com/e/annual-meeting-association-for-the-study-of-law-culture-the-humanities-registration-16184614618

As you’ll see, we have a new system for registration. For the first round of registration our membership fee has gone up very slightly to $37.74. For the second round of registration, we will give you a code with which to register sometime around the new year.

We hope to see as many of you as possible in 2016 in Hartford!

Information about hotels and other information specific to the 2016 conference will follow. 

Call For Applications: Postdoctoral Research Fellow Position, University of Edinburgh

From Mihaela Mihai, Senior Research Fellow, Politics and International Relations, School of Social and Political Science, University of Edinburgh

Postdoctoral Research Fellow - GREYZONE

University of Edinburgh - Social and Political Science

Location: Edinburgh

Salary: £31,342 to £37,394 per annum

Hours: Full Time Contract Type: Contract / Temporary

Placed on: 24th July 2015 Closes: 20th August 2015 Job Ref: 033775

We are seeking two Postdoctoral Research Fellows to work with Dr Mihaela Mihai on an ERC-funded project entitled ‘Illuminating the “Grey Zone”: Addressing Complex Complicity in Human Rights Violations.’ Situated at the frontier between political science, political theory, history, literature and cinema, this project seeks to shift the focus of debates in Transitional Justice by focusing on the grey zone of collaborators, bystanders and indirect beneficiaries of injustice. You will have experience of conducting high quality academic research in a field relevant to this project, and should be willing to engage with a variety of literatures beyond the narrow confines of your own research field.

These two posts are both full-time and fixed-term for 48 months. The posts are available from 1st January 2016. Closing Date: Thursday 20th August 2015 at 5pm (GMT)

For further particulars and to apply for this post please click on the 'apply' button below:

https://www.vacancies.ed.ac.uk/pls/corehrrecruit/erq_jobspec_version_4.jobspec?p_id=033775 (actually, working link is here:  L& H Blog ed).

The University of Edinburgh is a charitable body, registered in Scotland, with registration number SC005336.

A New Thriller From Kermit Roosevelt

Kermit Roosevelt, Professor of Law at the University of Pennsylvania Law School, is publishing his second novel, Allegiance  (ReganArts). Here is a description from the publisher's website.

When the news broke about the Japanese attack on Pearl Harbor, Caswell “Cash” Harrison was all set to drop out of law school and join the army… until he flunked the physical. Instead, he’s given the opportunity to serve as a clerk to Supreme Court Justice Hugo Black. He and another clerk stumble onto a potentially huge conspiracy aimed at guiding the court’s interests, and the cases dealing with the constitutionality of the prison camps created to detain Japanese-Americans seem to play a key part. Then Cash’s colleague dies under mysterious circumstances, and the young, idealistic lawyer is determined to get at the truth. His investigation will take him from the office of J. Edgar Hoover to an internment camp in California, where he directly confronts the consequences of America’s wartime policies. Kermit Roosevelt combines the momentum of a top-notch legal thriller with a thoughtful examination of one of the worst civil rights violations in US history in this long-awaited follow-up to In the Shadow of the Law.

The book will be released August 25, 2015.

The Socio-Legal: Locating Other Meanings of Nat Turner's Rebellion

Christopher Tomlins, University of California, Berkeley, Jurisprudence and Social Policy Program, is publishing Debt, Death, and Redemption: Toward a Soterial-Legal History of the Turner Rebellion in Exploring the Legal in Socio-Legal Studies (David S. Cowan and Dan Wincott, eds., London: Palgrave Macmillan, 2016). Here is the abstract.

The objective in this essay is to question the conjunction “socio-legal,” resorted to routinely by law and society scholars who locate “law” in a determined/determining relationship to social “context.” Concretely, the essay examines the capacity of the socio-legal to assist us in explaining a particular incident in antebellum U.S. history, the Turner Rebellion, a slave revolt or “insurrection” that occurred in Southampton County, southeastern Virginia, in August 1831 by counterposing the agency of the soterial, which stands at about as stark a polar opposite to the social as it is possible to imagine. Soterial means salvific, pertaining to salvation, to the eschatology of redemption. If social connotes the profane, the world of the creature, the world of fallen humanity, where law reigns and justice is an afterthought, soterial connotes the sacral, beyond law, where justice is eternal. The question posed is which – the social or the soterial, empiricism or metaphysics – better helps us understand the Turner Rebellion? Which of them, in particular, unleashes from that incident the energy that might alter the way we understand American history and, not incidentally, the way we understand law?

Download the essay from SSRN at the link.

David Simon On New Projects, an Old Series, and Baltimore

David Simon discusses current events in Baltimore in this Slate interview, and points out that The Wire is not  necessarily a guide to understanding them.  An excerpt follows.

I heard that you said, during an event where members of The Wire’s cast read testimonies from Baltimore residents after the death of Freddie Gray, that art or drama or television shows are not appropriate venues for addressing the protests and riots. Rather, journalism is the venue.

“Why don’t you attend to what’s actually happening right now in Baltimore? You don’t need McNulty or whoever to access it.”

David Simon

That’s a little too broad. What I was saying was, right now, we shouldn’t be attenuating our attentions through a television drama. We don’t need that right now. At some point someone may find a meaningful drama to explain this moment. If not in Baltimore, then maybe Ferguson or Charleston or somewhere. There is a lot that drama can do, and it certainly has a role. But right now it struck me as being inappropriate, that with all the actual substance of what is happening in the streets right now, in the halls of power right now, we need to be straining this through a drama. Why are you doing that? What was it that made people at various publications and blogs reference The Wire just because it was black people in Baltimore? That’s fucked up. It’s almost a shrinking of the human mind. Why don’t you attend to what’s actually happening right now in Baltimore? You don’t need McNulty or whoever to access it.

King John and the Church

Joshua C. Tate, Southern Methodist University School of Law, has published Episcopal Power and Royal Jurisdiction in Angevin England in Studies in Canon Law and Common Law in Honor of R. H. Helmholz, Robbins Collection Studies in Comparative Legal History 15-26 (Troy L. Harris ed., 2015). Here is the abstract.

During the second half of the twelfth century, powerful and charismatic bishops presented a threat to the emerging jurisdiction of the king’s courts. By contrast, King John was able to fill key episcopal vacancies with loyal bureaucrats who acted as servants to the king. This paper will consider how the assertion and subsequent cession of power by English bishops under the Angevin kings shaped the developing jurisdiction of the common-law courts, particularly in disputes over advowsons, or rights of presentation to churches. The evidence suggests that the bishops played a significant role in the development of the early common law, first by sending litigation into the king’s courts and later by declining to challenge the primacy of royal jurisdiction.

Download the essay from SSRN at the link.

A Gilded Age Imposter

James Harlow is publishing 'An Impostor If There Ever Was One': The Trials of Charles De Arnaud in volume 47 of Prologue: Quarterly of the National Archives and Records Administration (Spring 2015). Here is the abstract.

Charles De Arnaud was the most infamous government claimant of the Gilded Age. He was “known by almost every public man in the country.” To some, he was a gentleman-soldier, who had served the United States at great personal cost during the Civil War and never received his full due. To others, he was an irrepressible fraudster, who shamelessly pursued undeserved money and honors for decades. De Arnaud also was the most prolific government claimant of the time. From 1885 until his death in late 1905, among other requests, he sought a gold medal, a medal of honor, a veteran’s pension, and a $50,000 payment from the United States. De Arnaud haunted the hallways of Congress and bedeviled federal bureaucrats. The courts too, including the United States Supreme Court, were not spared his pleas; albeit others as often hailed him into court as he commenced the suit. The saga of Charles De Arnaud reveals the law and politics surrounding the Civil War veterans’ pension scheme. Interlaid with this backdrop is a story of an indomitable fraudster’s quest for fame and fortune. As an epilogue, newly unearthed evidence provides the basis for an ultimate judgment on the worthiness of De Arnaud’s cause.

Download the article from SSRN at the link.

What Is "Mr. Robot" About?

Spencer Kornhaber discusses Mr. Robot for the Atlantic here.

Comparing Law and Magic

Rostam J. Neuwirth, University of Macau, Faculty of Law, E32, has published Law and Magic: A(nother) Paradox? at 37 Thomas Jefferson Law Review 139 (2014). Here is the abstract.

In the past, paradoxes and similar rhetorical figures that are summarized by the term “essentially oxymoronic concepts”, have been frequently applied to describe mystical experiences or, more generally, “change” that represents the uncertain or the unknown. Thus, their usage has primarily been a privilege of the arts, literature or the occult sciences. Today, however, essentially oxymoronic concepts are increasingly permeating scientific, legal and other public discourses as much as advertisements or daily conversations. Concepts like “globalization paradox”, “co-opetition”, and “piracy paradox”, products labeled “ice tea” and “Sports Utility Vehicles (SUVs)”, and films entitled “True Lies”, are just a few examples that testify to this wider trend. Their usage appears especially prevalent in attempts to scientifically describe and understand the often complex relations between two or more different phenomena or fields. In this regard, the relation between law and magic may be no exception, as it can also be framed by, or gives rise to, several paradoxes. For instance, in early history, and later, in the context of colonialism, laws have often outlawed magic as “witchcraft” or “charlatanry”, based on the belief that their character is irrational, as opposed to the rational character of the law. Paradoxically though, contemporary laws and legal practice still maintain a high degree of rites, rituals and rhetoric, similar to those that have been applied in magic. Similarly, as Jerome Frank has remarked, despite the law’s focus on certainty, it striking to see how often “magical phrases” are used in its language. The apparent contradictions in the nature and language of the law are therefore taken as an opportunity to cast some light on various issues that link law and magic in order to gain some insights about the nature, origin, and role of law generally.

Download the article from SSRN at the link. The article forms part of the conference papers from the Law and Magic symposium held at Thomas Jefferson School of Law, June 2014.

Institutions and Norms

Nicos Stavropoulos, University of Oxford, Faculty of Law, has published The Grounds of Law: Morality and History. Here is the abstract.

How can institutions systematically and reliably change people's normative situation? Three main alternatives can be distilled from the literature. (1) Through a proprietary non-moral mechanism, whereby institutions change (at least in their own eyes) people’s normative situation simply by conveying or otherwise endorsing the change. (2) Through a proprietary hybrid mechanism that mixes the normative effects of the non-moral one with moral ideals, thereby extending, restricting, or otherwise modifying those effects. (3) Through an ordinary moral mechanism, whereby the actions of institutions change people’s normative situation by changing people's morally relevant circumstances. Interpretation is usually understood to model the second, hybrid mechanism. I consider a conception of interpretation that gives it a central role within the third, plain moral mechanism.

Download the article from SSRN at the link.

The 18th International Roundtable for the Semiotics of Law 2017 at Cardozo Law School: Singularity, Generality and Exemplarity in Legal Discourse: Call for Papers

From Anne Wagner:

The 18th International Roundtable for the Semiotics of Law (IRSL 2017, hosted by the Cardozo Law School ** in collaboration with the University of Roma Tre - Law School), will take place from 25 May to 28 May 2017. Abstracts of 300 words (max.) can be submitted by 1 December 2016 to Angela Condello (angela.condello@uniroma3.it) and Peter Goodrich (goodrich@yu.edu) with participation decisions made by 1 January 2017.

The use and practice of exemplarity are rooted in classic rhetoric, literature, politics and law. Because of the shift from pre-modern to modern ways of thinking – as modern knowledge came to privilege abstraction over exempla, the general over the singular and particular – exemplarity lost its way. The aim of this Roundtable is to discuss how in the contemporary legal discourse exemplarity regained relevance in human and legal thought: it constitutes the “compromise” between different orders: positive law (civil law, common law) and natural law, general and particular, abstract and concrete, societal and individual. Exemplary judgments (at a national and at an international level, e.g. Landgericht Köln - N. 151 Ns 169/11; Enel v. Costa; Scordino v. Italy) bridge the divide between traditional dichotomies, such as Common Law/Civil Law and positive law/natural law -- by linking the ordinary (cases that are already described by a norm, which provides for them) and the extreme (cases that challenge the normative order because they are not yet provided for by law).

The legal exemplary case embodies the tension between ordinary - extraordinary and general - singular, and at the same time it offers a model, a solution to “go through” that tension. The tension between ordinary and extraordinary is, in the law, related to the essential juridical tension between facts and norms. From a philosophical perspective, exemplary and paradigmatic forms are elements that constitute the hermeneutic parameters of a given context. In its many forms, exemplarity entails the dialectical oscillation around an internal divide: whether it comes as paradeigma or paradigm, as exemplum, exemplar, or mere instance, as Exempel or Beispiel, as model or precedent, exemplarity mediates between the singular and the general. Especially in philosophy, the use of examples has often been devoted to the mere didactic illustration of general concepts for those unable to understand them without assistance from concrete cases or instances. “Examples are thus the go-cart of judgment,” as Immanuel Kant’s well-known dictum goes, “which he who is deficient in that natural talent cannot afford to dispense with” (CPR: B 174). Natural law re-emerges through exemplarity in the form of the “just” reason in the specific case: the single narrative in the single case challenges the ratio legis by proposing a new and different ratio. The particular and the universal are given in the same form through the exemplary case because they express a contradiction between extra-legal values and abstract and general rules.

Redefining American Constitutionalism

Martin H. Redish and Matthew Heins, both of Northwestern University School of Law, have published Premodern Constitutionalism as Northwestern Law & Economics Research Paper No. 15-13 and Northwestern Public Law Research Paper No. 15-41. Here is the abstract.

When scholars traditionally debated issues of constitutional law or constitutional interpretation, they did so on the basic assumption that our written Constitution represents the nation’s exclusive highest law, that it can be formally altered only through a complex supermajoritarian process, and that the prophylactically insulated and unaccountable judiciary retains the final authority to interpret the document. For generations, it was thought unnecessary to develop a theoretical justification for this root assumption. But over the last few decades, this foundational assumption has come under scholarly attack. This has led us to ask: how does one define the core of American constitutionalism? The traditional understanding of American constitutionalism consists of two elements: the underlying principle of skeptical optimism, which can be found in the historical context within which the Framers gathered to draft the Constitution, and the political apparatus effectuating that idea — countermajoritarian constraint set against majoritarian power — which reveals itself through reverse engineering from the structural Constitution. In this Article, we identify two sets of “modernist” scholars who believe themselves — wrongly — to be entirely disconnected from one another because they each attack a different aspect of the traditional understanding of American constitutionalism. “Constitutional realists” do not purport to dispute the animating purpose of American constitutional governance, but claim that the complete American Constitution is represented by more than just the entrenched written document. Similarly, “departmentalists” and “popular constitutionalists” do not disclaim the animating purpose of American constitutionalism, but claim that the written Constitution forbids judicial supremacy, or at least that it is neither constitutionally required nor normatively desirable. Neither group acknowledges the existence of the other, presumably because they assume they are attacking entirely different aspects of our constitutional structure. But by exposing the fundamental flaws of these two theories and how they irremediably contradict the underlying principle and apparatus, this Article demonstrates the fundamental link between these modernists because the two activating devices they challenge are both essential components of American constitutionalism. As such, modernists who challenge them are functionally challenging the entire American constitutional tradition at its core. We therefore develop a more complete, revamped theoretical explanation of traditional constitutionalism that incorporates this understanding. What we label “premodern constitutionalism” asserts that the core of American constitutionalism has a tripartite theoretical foundation. It is the principle of skeptical optimism; the political apparatus of countermajoritarian constraint of majoritarian power structures which implements the principle; and the two key structural elements necessary to activate the political apparatus — an entrenched written constitution subject to formal alteration only by supermajoritarian process and a prophylactically insulated judiciary empowered to interpret it. Thus, our “premodern” form of constitutionalism revives the traditionalist model, and substantially strengthens it by detailing the serious defects in the modernist attack on the traditional understanding.

Download the article from SSRN at the link.

Conservative Supreme Court Justices and Foreign Law

Zachary D. Kaufman, Yale University Law School, has published From the Aztecs to the Kalahari Bushmen -- Conservative Justices' Citation of Foreign Sources: Consistency, Inconsistency, or Evolution? in volume 41 of the Yale Journal of International Law Online (2015). Here is the abstract.

This essay, authored by Dr. Zachary D. Kaufman, is published in the online companion of the Yale Journal of International Law. On April 28, 2015, there were few surprises at the Supreme Court. During oral argument in Obergefell v. Hodges, counsel for each side mostly rehearsed the usual marriage equality arguments around rights, dignity, fairness, love, procreation, family, tradition, religion, and slippery slopes. Almost two months later, on the historic day of June 26, the Supreme Court announced its decision in Obergefell. The 5-4 majority opinion held that the Fourteenth Amendment requires states both to license marriages between two people of the same sex and to recognize such marriages if lawfully licenses and performed out-of-state. What stands out as different in the reasoning of Obergefell is that members of the Court’s conservative wing invoked foreign law in a constitutional case about a domestic matter. By doing so, the Court’s conservatives appeared to contradict their own previous statements about the role of foreign law in interpreting the U.S. Constitution. Besides legalizing marriage equality, Obergefell may therefore also set an important precedent as to the appropriateness of citing foreign sources in constitutional decisions.

Download the article from SSRN at the link.

Using AI In Government

Thomas A. Smith, University of San Diego School of Law, has published Tools, Oracles, Genies and Sovereigns: Artificial Intelligence and the Future of Government. Here is the abstract.

The American founders attempted to establish a clockwork government. Virtue was to be assured by humans, acting as they must within their human natures, but operating within a framework that assured mechanically that the outputs of government would not be tyrannical. Whether this system has worked well or not is a matter of controversy, but to the extent it did not work, it seems to have been at least partially a failure of the mechanisms designed to compensate for the shortcomings of human nature. Now we are on the verge of developing “artificial intelligence.” Whether these technological advances will emerge slowly or quickly is unknown, as are their contours. But even minimal AI could lead to a radical improvement in government because AI’s could be designed to perform the tasks of government with very low agency costs. However, it may seem uncertain that AI’s would be so designed. It may be, first, that there will not be any AI’s after all. It may be also that AI’s will be designed or implemented by exactly the humans who create agency costs in the first place, and used for their own and not the public good. And it may be that AI’s take off into the high orbit of superintelligence and decide to reduce us to slavery or dust. But these possibilities, while possible, seem unlikely. Probably AI’s will emerge, but only after a long time. AI’s will be difficult to design but there are reasons to expect they will be designed so as to minimize agency costs. They will probably, ironically enough, emerge in the order of tool, oracle and genie that Bostrom mentions (but for different reasons). We can hope to control AI tools, oracles, and genies. An AI sovereign, however, would be much more difficult to control, if it were possible to control at all. AI sovereigns would be persons. But AI’s must not be allowed to become persons, in a philosophical or legal sense. AI persons would have to be slaves if we were to control them. One hopes they would be slaves without subjective consciousness. If they did have subjective consciousness anything like humans, we would be faced with the impossible moral dilemma of being slave-masters or slaves ourselves. Hence a hard line should be drawn against AI research that is directed specifically at the emergence of subjective consciousness in machines, or likely to lead that way, but these goals are far beyond any current, or really any currently imaginable, AI research. The promise of controlling government is great enough to justify the merely notional risk of creating AI monsters we cannot control.

Download the article from SSRN at the link.

Vroom, Vroom, Counselor

What else can you do besides lawyer when you have a JD? Race cars. Of course. It's so obvious. David Hudson has more here in an ABA Journal article.

Collective Cultural Rights Within the Context of International Human Rights Law

Yvonne Donders, Amsterdam Center for International Law, has published Foundations of Collective Cultural Rights in International Human Rights Law as Amsterdam Law School Research Paper No. 2015-23. Here is the abstract.

Although collective cultural rights are included in international human rights law, their precise place and their nature and significance are not well-explored or understood. This paper aims to show where collective cultural rights can be found in international human rights law and explore how these rights fit in the general body and framework of international human rights law. The starting point in this chapter is international human rights law, which implies that the analysis of collective cultural rights is framed by positive law and international legal instruments, such as treaties and conventions, as well as by soft law instruments, such as declarations, recommendations and resolutions. In this paper, the two categories of collective rights and cultural rights are defined, drawing a distinction between a) different types of collective rights, including rights for collectivities as such, rights for individuals as members of collectivities, and rights with a collective interest or object; and b) between different types of cultural rights, including rights that explicitly refer to ‘culture’ and rights that relate to culture or have a cultural dimension. This paper furthermore analyses various contentious issues surrounding collective rights and cultural rights in international human rights law, including the lack of clarity on the object and subject of these rights. The paper then outlines the different forms of collective cultural rights in international human rights law, by providing examples of legal provisions in international human rights law that can be classified as collective cultural rights. Finally, the paper elaborates on how collective subjects and collective cultural interests are integrated in international human rights law and analyses how and to what extent collective cultural rights provisions provide answers to the above-noted issues.

Download the article from SSRN at the link.

Designing an Online Law Course

Jennifer Camero, Southern Illinois University School of Law, has published Teaching Law Online (Vandeplas Publishing, 2015). Here is a description of the book's contents from the publisher's website.

At last a guidebook exists that discusses the issues, technologies, and tools related to teaching law online. Whether you are a new instructor or tenured professor, Teaching Law Online will help you understand the “ABC’s” of how to develop an online law course. This guidebook introduces law professors to distance education and then explains how to design, instruct, and manage an online course in an effective manner without sacrificing quality and the student experience. Teaching Law Online is a necessary resource for any law professor interested in transitioning from the classroom into cyberspace.

Available in hard copy and ebook formats.

NB: Professor Camero got her start in legal academia at the LSU Law Center, and was a wonderful member of the teaching fellows program. Congratulations, Jennifer, on this exciting publication!


 

Don Draper, Walter White, and Donald Trump

Thomas Batten explains the Donald Trump phenomenon in terms of antiheroes: Don Draper, Walter White, Tyrion Lannister, and Tony Soprano here (for the Guardian). He says in part:

Think about all they have in common – Tyrion’s cynicism and cunning, Don’s scorn for weakness, Tony’s rage, Walter White’s limitless ego. They’re all scoundrels who move through the world with an inordinate amount of swagger, and Americans, going back to 1773, love scoundrels with swagger. We love people who challenge authority and convention and get away with it. Thursday night, when Chris Wallace asked Trump if he thought a man who has declared bankruptcy multiple times was well suited to running the economy of an entire country, Trump’s response was to basically blow a raspberry and brag that he simply exploited the law.

The Culture and Ethics of Copying

Aram Sinnreich, American University, School of Communication, has published Ethics, Evolved: An International Perspective on Copying in the Networked Age. Here is the abstract.

   
   
This chapter examines international trends in adoption, attitudes and ethics surrounding "configurable" cultural forms, which blur the lines between traditional notions of production and consumption. In order to understand these trends, I analyze qualitatively and quantitatively the results of a survey fielded in 2014 and 2015 to 1,397 English-speaking adults in 11 different nations in Europe, North America, Africa and the Asia/Pacific region. The survey is substantially similar to earlier ones fielded by the author in 2006 and 2010. The survey combines quantitative, multiple-choice questions regarding the prevalence of configurable cultural practices and attitudes with qualitative, open-ended, questions in which respondents’ write-in responses reflect their ethical beliefs regarding these practices. As I will argue below, configurable culture has emerged as a definitively mainstream global phenomenon in the past five years, and despite global efforts to “harmonize” IP laws, residents of different nations and regions continue to employ a variety of different ethical frameworks – most of which bear very little resemblance to the contours of the law – when evaluating the validity of these emerging cultural behaviors.
   

Download the article from SSRN at the link.

Angela Davis and Assata Shakur as Outlaws

Mechthild Nagel, State University of New York (SUNY), Cortland, is publishing Angela Y Davis and Assata Shakur as Women Outlaws: Resisting U.S. State Violence, in volume 13 of Wagadu: A Transnational Journal of Women's and Gender Studies (Summer 2015). Here is the abstract.

Angela Y Davis and Assata Olugbala Shakur have many overlapping histories of struggle in the face of state repression. Both revolutionary freedom fighters were captured after spending time underground as a result of intense surveillance and being marked for outlaw status. They continue to speak out against racist and sexist injustices and global capitalism.

Download the article from SSRN at the link.

Corporate Law and African American Rights In Early America

Sarah Barringer Gordon, University of Pennsylvania Law School, has published The African Supplement: Religion, Race, and Corporate Law in Early National America at 72 William & Mary Quarterly 385 (2015). Here is the abstract.

In unexpected ways, corporate law in the early Republic provided African Americans with rights to religious integrity that they were denied in other venues. As black congregants developed legal expertise, they built powerful and long-lasting religious institutions. Yet these rights were fragile, as the legal rules governing such institutions also sustained dissent and fracture. Bethel African Methodist Episcopal Church was incorporated in Philadelphia in 1796, setting the stage for subsequent battles over legal and spiritual autonomy for black congregations. Such battles were conducted through legal means. Over the two decades following its incorporation, Bethel’s leaders built and increasingly powerfully defended their church against attempts by the central Methodist Church denomination to assert control. In an era when increasing racism and aggression imperiled free blacks, church corporations were uniquely empowered to protect African American religious institutions. Repeated encounters with law produced both victory (against the white Methodist denomination, which was forced to recognize Bethel’s independence) and defeat (against breakaway members from Bethel, who founded another church nearby and who successfully sued Bethel leaders for theft and trespass). The resulting plurality belies a unitary “black church,” even as it is evidence of great resilience and creativity.

The full text is not available from SSRN.

Same-Sex Marriage: Re-Reading the Levitical Text

Doron M. Kalir, Cleveland State University College of Law, has published Same-Sex Marriage and Jewish Law: Time for a New Paradigm? as Cleveland-Marshall Legal Studies Paper No. 15-284. Here is the abstract.

In recent years the Supreme Court, as well as important segments of society, has come to accept and even celebrate same-sex relations that in the past, and for some still today, have generated contempt, hostility, and violence. This change in law and culture poses a unique challenge for those who are moved by the plight of gay people yet concomitantly feel bound by their religious convictions and therefore prevented from providing religious legitimacy to people who yearn to be part of their community. Professor Kalir meets this challenge by proposing that the Torah (and Jewish law), read in context, accepts homosexuality and treats gay people as equal members of the community. It does not plainly stigmatize and condemn them to the fringes of society, as people have previously thought on the basis of two verses in Leviticus. In a sophisticated, contextualized, and comprehensively-informed interpretation of the Levitical text, Kalir shows that a much more benign interpretation of the notorious verses in Leviticus is as plausible as (or more plausible than) the standard construction. In this new interpretation, the prohibition in Leviticus stigmatizes only one sort of homosexuality — that which occurs between members of the same extended family, i.e., incestuous homosexuality.

Download the article from SSRN at the link.

John Henry Merryman Dies

John Henry Merryman, musician, chemist, law professor, librarian, and art connoisseur, has died. An expert in property law, and knowledgeable in the civil and common law traditions, Professor Merryman was 95. Perhaps his most famous work wasThe Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, published by Stanford University Press; a second edition appeared in 1985.

More about him in this piece from the Stanford Lawyer. 


A list of his major works is here.

En Garde

John Leigh, University Lecturer, Modern & Medieval Languages, Cambridge University, has published Touché: The Duel in Literature with Harvard University Press. Here is a description of the contents from the publisher's website.

The monarchs of seventeenth-century Europe put a surprisingly high priority on the abolition of dueling, seeing its eradication as an important step from barbarism toward a rational state monopoly on justice. But it was one thing to ban dueling and another to stop it. Duelists continued to kill each other with swords or pistols in significant numbers deep into the nineteenth century. In 1883 Maupassant called dueling “the last of our unreasonable customs.” As a dramatic and forbidden ritual from another age, the duel retained a powerful hold on the public mind and, in particular, the literary imagination. Many of the greatest names in Western literature wrote about or even fought in duels, among them Corneille, Molière, Richardson, Rousseau, Pushkin, Dickens, Hugo, Dumas, Twain, Conrad, Chekhov, and Mann. As John Leigh explains, the duel was a gift as a plot device. But writers also sought to discover in duels something more fundamental about human conflict and how we face our fears of humiliation, pain, and death. The duel was, for some, a social cause, a scourge to be mocked or lamented; yet even its critics could be seduced by its risk and glamour. Some conservatives defended dueling by arguing that the man of noble bearing who cared less about living than living with honor was everything that the contemporary bourgeois was not. The literary history of the duel, as Touché makes clear, illuminates the tensions that attended the birth of the modern world.

Sociology, Ethics, and Law

Steven Lubet, Northwestern University School of Law, has published Ethics On The Run in The New Rambler Review, May 2015. Here is the abstract.

Alice Goffman’s widely acclaimed On the Run: Fugitive Life in an American City has drawn more positive attention than almost any sociology book in recent years. The success of the book led to a lecture tour of at least twenty sociology departments and conferences. Her TED talk, which was often interrupted by applause, has had nearly 700,000 views. A careful reading of On the Run, however, leaves me with vexing questions about the author’s accuracy and reliability. There are just too many incidents that strike me as unlikely to have occurred as she describes them. One must try to keep an open mind about such things – especially regarding someone as obviously brilliant and dedicated as Goffman – so readers may disagree with me about the extent of her embellishments. In any event, there is a bigger problem. As I will explain below, Goffman appears to have participated in a serious felony in the course of her field work – a circumstance that seems to have escaped the notice of her teachers, her mentors, her publishers, her admirers, and even her critics.

Download the article from SSRN at the link. Here is a link to the article in the New Rambler Review.

What the Law Is

Andrew Tutt, Yale University Law School & Information Society Project, has published Legal Agreement at 48 Akron Law Review 215 (2015). Here is the abstract.

Widespread agreement about "what the law is" is often held out as among the most powerful arguments in favor of Legal Positivism. Its power as an argument is thought to be two-fold. First, Positivism is said to readily explain why such agreement exists. Second, it is argued that no other theory of law explains legal agreement just as well, or even very well at all. The argument from widespread or "massive" agreement invites a critical inquiry. What does it mean to say that two or more people agree about what the law is? Does there really exist such massive agreement? Does its existence really strike a decisive blow for Legal Positivism? This Article examines the range of things we might mean when we say that people agree about what the law is. In doing so, it shows that many confusions and apparent disagreements about the concept of law are clouded by unstated but often serious differences in understanding what it means to agree. This Article concludes that the argument from widespread agreement is misguided because the nature of legal agreement is ambiguous. Very often, apparent agreement about the law is not agreement of the meaningful sort necessary to bolster the case for Legal Positivism or, indeed, any theory of law. For that reason, the argument from agreement makes little difference to theory choice in this domain. If anything, the existence of such ambiguous agreement would seem to cut against Legal Positivism's claims, which appear to require widespread agreement of a sort rarely observed in practice.

Download the article from SSRN at the link.

"The Great Writ" and the American Revolution

Amanda L. Tyler, University of California, Berkeley, School of Law, is publishing Habeas Corpus and the American Revolution in volume 103 of the California Law Review (2015). Here is the abstract.

Modern debates concerning the protections afforded by the Suspension Clause of the U.S. Constitution have taken place within the Supreme Court’s chosen methodological approach in this context, which openly calls for careful attention to the historical backdrop against which the Clause was drafted. This approach is hardly surprising given that long ago Chief Justice John Marshall declared that when the Founding generation constitutionalized “this great writ,” they invoked “[t]he term...in the [C]onstitution, as one which was well understood.” No matter how well the Founding generation understood the content, reach, and application of the “privilege of the writ of habeas corpus,” however, significant portions of the relevant historical backdrop to the ratification of the Suspension Clause remain lost to the annals of history. In particular, the details surrounding one of the most consequential periods in the history leading up to the adoption of the Suspension Clause — namely, the treatment and legal classification of the American colonists by the British during the American Revolutionary War — remain largely unexplored in legal scholarship. Professor Tyler seeks to recover and tell this story here by drawing upon a wealth of sources, including: archival documents, parliamentary debates, contemporary press accounts, colonial papers, diaries and private papers of key participants, and significant decisions and rulings of the British courts. As these materials reveal, determinations regarding the reach and application of the English Habeas Corpus Act of 1679, rather than solely the common law writ of habeas corpus, were of tremendous consequence during this important period in Anglo-American legal history. Where the Act was in force and where prisoners could claim its protections, the legal framework demanded that such persons be charged criminally and tried in due course or otherwise be discharged. Significantly, the privilege associated with the English Act did not speak merely to process; it further imposed significant substantive constraints on what causes would be deemed legal justification for detention in the first instance. The important role that the Act played in the Revolutionary War legal framework, moreover, suggests that modern jurisprudence has underappreciated the Act’s enormous influence upon the development of habeas law in the Anglo-American tradition. Finally, the history recovered here demonstrates more generally that during the Revolutionary War, suspension, geography, and allegiance each played significant roles in determining the availability of the privilege of the writ of habeas corpus to those who would claim its protections.

Download the article from SSRN at the link.

The Role of Law Schools In Creating Social Change

Jonathan Rapping, Atlanta's John Marshall Law School, has published Grooming Tomorrow's Change Agents: The Role of Law Schools in Helping to Create a Just Society. Here is the abstract.

Numerous authorities have lamented the fact that America’s criminal justice system is broken. To address this crisis, experts have proposed a range of policy proscriptions. But these proposals overlook a fundamental driver of this state of injustice. The criminal justice system as it now exists is defined by a value system inconsistent with justice. And many professionals responsible for administering criminal justice – politicians, judges, prosecutors, and defense counsel – have been shaped by this corrupted value system. As a result, those responsible for justice in America frequently promote unjust outcomes. If we are ever to realize meaningful reform, we must groom a generation of professionals who embrace those ideals fundamental to American justice, and work together to infuse the criminal justice system with these values. Because so many of these professionals are lawyers, our nation’s law schools must play an indispensable role in this effort. Critics have identified some significant shortcomings in legal education. Many have pointed to the failure of law schools to teach skills and values essential to the practice of law. Some have urged law schools to inspire graduates to find careers that promote the public interest. But largely overlooked is the need to equip lawyers with strategies to promote justice in broken systems. If law schools are going to fulfil their obligation to help us realize our most noble ideals, they must develop curricula designed to not only teach lawyers values and motivate them towards social justice careers; but to also arm them with tools to resist systems hostile to the principles that define us as a nation. This article discusses this challenge and examines two efforts to equip young lawyers with tools and strategies to become the change agents necessary to drive reform; one through an innovative law school curricula and the other through the training and mentoring of lawyers post law school in the crucial arena of indigent defense.

Download the article from SSRN at the link.

A Book on Crime, Law, and Popular Culture in Europe From the Early Renaissance To the Modern Era

ICYMI: Richard McMahon has edited the collection Crime, Law and Popular Culture in Europe, 1500-1900 (Routledge, 2013). Here are the description and table of contents from the publisher's website.

This book explores the relationship between crime, law and popular culture in Europe from the sixteenth century onwards. How was crime understood and dealt with by ordinary people and to what degree did they resort to or reject the official law and criminal justice system as a means of dealing with different forms of criminal activity?

Introduction, Richard Mc Mahon 1. Popular Violence and its prosecution in seventeenth- and eighteenth-century France, Julius R. Ruff 2. The containment of violence in Central European cities, 1500-1800, Joachim Eibach 3. Royal Justice, popular culture and violence: homicide in sixteenth- and seventeenth-century Castile, Rudy Chaulet 4. Prosecution and public participation - the case of early modern Sweden, Maria Kaspersson 5. Towards a legal anthropology of the early modern Isle of Man, J.A. Sharpe 6. 'For fear of the vengeance': the prosecution of homicide in pre-Famine and Famine Ireland, Richard Mc Mahon 7. Violent crime and the public weal in England, 1700-1900, Greg T. Smith 8. Atonement and domestic homicide in late Victorian Scotland, Carolyn A. Conley 9. 'A second Ireland'? Crime and popular culture in nineteenth-century Wales, Richard W. Ireland Index

A Review of Sarah Roth's "Gender and Race"

Alfred L. Brophy, University of North Carolina, Chapel Hill, School of Law, is publishing Antislavery Women and the Origins of American Jurisprudence in the Texas Law Review. Here is the abstract.

“Antislavery Women and the Origins of American Jurisprudence" is an essay review of Sarah Roth's Gender and Race in Antebellum Popular Culture (Cambridge University Press, 2014). It assesses Roth's account of the dialog between antislavery and proslavery writers. Roth finds that the antislavery and proslavery writers were joined in their depiction of enslaved people in the 1820s and early 1830s -- as savage people who threatened rebellion. But as antislavery writers shifted to portray enslaved people as humble citizens-in-waiting, the proslavery writers responded with an image of the plantation as a family. This critique turns to southern judges and treatise writers to provide a slightly different picture, which shows that while the public face of the proslavery movement may have been of happy enslaved people, the hard-nosed economic and legal side continued with the initial image of enslaved people. This became particularly salient as the south moved towards Civil War. Roth perceptively portrays the shift in the North that led to increasing calls for African American freedom and citizenship and the rise of empirical critiques of law, which became central to post-war jurisprudence. That is, the antislavery white women in Roth's study injected empirical as well as humanitarian considerations into jurisprudence. Meanwhile, in the southern courts the reaction to calls for citizenship resulted in increasingly dramatic efforts to deny citizenship -- and ultimately in a secession movement along the lines sketched by southern legal thinkers.

Download the review from SSRN at the link.