Law and Cartoons: A Thematic Issue of the International Journal for the Semiotics of Law

Volume 28 (December 2015) of the International Journal for the Semiotics of Law has been published. The theme is Cartoons and Law. Here's a link to the publisher's website for this issue.

1. Law and Cartoons: La Sémiotique de Production et de Diffusion en Droit comme Stratégie de Communication

   Anne Wagner Pages 715-717

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2. 
   

   Intersemiotic Complementarity in Legal Cartoons: An Ideational Multimodal Analysis

   Terry D. Royce Pages 719-744

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3. 
   

   “The Call to do Justice”: Superheroes, Sovereigns and the State During Wartime

   Jason Bainbridge Pages 745-763

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4. 
   

   Natural Law and Vengeance: Jurisprudence on the Streets of Gotham

   Thomas Giddens Pages 765-785

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5. 
   

   We’re All Infected: Legal Personhood, Bare Life and The Walking Dead

   Mitchell Travis Pages 787-800

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6. 
   

   On the Cultural Meaning of The New Yorker ‘Lawyer Cartoon:’ An Experiment in Ethnography of Communication

   Alexander V. Kozin Pages 801-823

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7. 
   

   Code, Nintendo’s Super Mario and Digital Legality

   Ashley Pearson, Kieran Tranter Pages 825-842

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8. 
   

   The Jurisprudence of Ratatouille: The Rat in the Machine, or, the Equivocal Taste of Égaliberté

   Luis Gómez Romero Pages 843-866

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9. Book Review

   Roshan de Silva Wijeyeratne: Nation, Constitutionalism and Buddhism in Sri Lanka

   Fabio Rambelli Pages 867-869

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10. Book Review

    Guillermo Cabanellas: The Legal Environment of Translation

    Karen McAuliffe Pages 871-873

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11. Book Review

    Joanna Kopaczyk: The Legal Language of Scottish Burghs: Standardization and Lexical Bundles 1380-1560, 2013

    Hector MacQueen Pages 875-878

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12. Book Review

    Eros Roberto Grau: Pourquoi j’ai peur des juges. L’interprétation du droit et les principes juridiques

    Jérémy Mercier Pages 879-885

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13. Book Review

    Recension de Benisty (Samuel), La norme sociale de conduite saisie par le droit

    Antoine Basset Pages 887-890

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14. Announcement

    Recent Publications Issue 28-4

    Janny H. C. Leung Pages 891-892

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Legal Translation As Knowledge Transfer

Lena Foljanty, Max Planck Society for the Advancement of the Sciences & Max Planck Institute for European Legal History, has published Legal Transfers as Processes of Cultural Translation: On the Consequences of a Metaphor at Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft, Heft 2 / 2015. pp. 89-107. Here is the abstract.

During the last decade, cultural studies faced a so-called “translational turn”. The concept of translation was taken up and reinterpreted in a figurative sense. The concept of translation is no longer confined to the process of putting a text from one language into another, but describes also processes in which foreign knowledge, values or practices are adapted. The article deals with the question whether this expanded concept of translation proves to be fruitful in order to gain a better understanding of legal transfers. By discussing ideas of Walter Benjamin, Homi K. Bhabha and Dipesh Chakrabarty on translation it shows how the concept of translation opens our view for the complex positioning of the actors, which is characteristic for transfer processes and which enables reflecting the transformations that take place beyond the idea of a linear give-and-take.

Download the article from SSRN at the link.

Americanized Graffiti

Jeffrey Ian Ross, University of Baltimore School of Law, is publishing Graffiti Goes to the Movies: American Fictional Films Featuring Graffiti Artists/Writers and Themes in Contemporary Justice Review (July 2015). Here is the abstract.

Since the early 1980s, in addition to the increase in graffiti and street art in many urban contexts, a number of movies have been made that have either examined this phenomenon and the people who engage in this activity, or used graffiti and street art as a backdrop to tell a story. This article briefly reviews the scholarly literature that examines movies that portray criminals and criminal actions, and then analyzes seven American-produced fictional (drama) films using graffiti writers/artists as major characters and then draws generalizations about them. Although this is not a semiotic analysis of the films, to the extent possible, it delves into the settings, plots, characters, dialog, and how realistic the movies appear to be. In general, most of the films include unrealistic aspects and/or are of poor quality, and this contributes to misrepresentations of and stereotypes about graffiti writers/writing.

Criminalizaing Hate In a Democracy

R. A. Duff, University of Minnesota School of Law & University of Stirling Department of Philosophy, and S. E. Marshall, University of Stirling, are publishing Criminalizing Hate? in Hate, Politics, Law (T. Brudholm & B. Schepelern Johansen, eds.; Oxford University Press, --) (Forthcoming). Here is the abstract.

This paper explores the role that criminal law might play in combating ‘hatred’, in particular whether and why we might appropriately criminalize ‘hatred’. In s. 1 it sketches some salient features of a liberal, democratic republic (as the kind of polity in which we can aspire to live, and whose citizens can be expected to be committed to combating ‘hatred’). In ss. 2-3, we then explain why a certain kind of ‘hatred’ should concern members of such a polity, as a distinctive civic vice manifested in a distinctive kind of civic wrong. In ss. 4-5, we discuss the limited but significant role that criminal law can play, in principle, in responding to such hatred. Finally, in s. 6, we say a little about the difficulties involved in turning ‘in principle’ into ‘in practice’, particularly those concerning offence definitions.

Download the essay from SSRN at the link.

Jada Pinkett Smith Signs On For ABC Legal Drama, Playing a Prosecutor

Jada Pinkett Smith will star in Murder Town, a new drama for ABC that A&E Studios will produce. Pinkett Smith will play Wilmington, Delaware's first African-American district attorney, who faces lots of personal and professional problems in her new position. Barry Schindel is the showrunner. More here from the Hollywood Reporter, here from Deadline.

How Should Courts Evaluate Religious Sincerity?

Anna Su, University of Toronto Faculty of Law, has published Judging Religious Sincerity. Here is the abstract.

Religion in law is notoriously hard to define. And yet because religion is legally protected and enshrined in national constitutions and international law as part of the liberal commitment to freedom of religion, courts in various jurisdictions are left with the essential task of determining what religion is for the purpose of protecting it. One way courts have addressed the uneasy relationship between religion and secular law is to abstain from any involvement in the resolution of religious questions. Thus when confronted with accommodation claims from otherwise generally applicable laws or regulations on religious grounds, courts have largely focused instead on the sincerity of the believer as the primary factor of whether to grant the claim. In this paper, I look at three judicial settings: the U.S. Supreme Court, the Supreme Court of Canada and the European Court of Human Rights and consider their respective approaches to sincerity in accommodation claims. I argue that we must go beyond this uncritical embrace of the sincerity requirement, and consider the problems and costs associated with it.

Download the article from SSRN at the link.

Jack Weinstein and the Development of Tort Theory

James R. Hackney, Jr., Norheastern University School of Law, has published Judge Jack Weinstein and the Construction of Tort Law in America: An Intellectual History at 64 DePaul Law Review 495 (2014). Here is the abstract.

This Article explores the intersection between the judicial and scholarly work of Judge Jack Weinstein, particularly as related to mass tort litigation and the development of legal theory and tort law in America. The primary focus will be on Judge Weinstein’s handling of the Agent Orange litigation. Judge Weinstein’s tenure on the federal bench began in 1967. Some seven years earlier, Ronald Coase published his The Problem of Social Costs, a monumental moment in American legal theory and tort law policy. Three years later, Guido Calabresi published his path-breaking text, The Costs of Accidents. These two texts are representative of the law and neoclassical economics movement, which would indelibly shape tort law theory in America during Judge Weinstein’s years as a judge. Law and neoclassical economics is most often discussed as a methodology for analyzing tort law on the basis of efficiency. However, it also exemplifies a broader approach to law that goes beyond efficiency analysis and can be found in much of contemporary legal theory. This broader approach focuses its analysis on the social good as opposed to prioritizing individual rights. It is through the lens of these two features of twentieth-century legal theory (efficiency and the social good), particularly as they apply to tort law, that this Article will examine the Agent Orange litigation. The Agent Orange litigation is a landmark in American history. It involved hundreds of lawsuits, thousands of claimants (15,000 by one estimate), and seven corporate defendants. Aside from its scope, the issues surrounding Agent Orange are particularly worthy of attention because they exemplify the problems associated with resolving mass tort cases. An intriguing aspect of Judge Weinstein’s worldview, which is reflected in the disposition of the Agent Orange litigation, is that he champions efficiency and the social good while placing a premium on recognizing individual suffering as an existential reality. Of course, the Agent Orange litigation is also circumscribed by the specter of the Vietnam War, which makes it an even more compelling site of inquiry. The Agent Orange litigation and Judge Weinstein’s legendary handling of it provides us with a unique opportunity to consider tort law in the context of not only legal theory, but one of America’s most searing historical moments, the Vietnam War. Note: Reproduced with permission of DePaul Law Review.

Download the article from SSRN at the link.

Call for Papers, Rapoport Center for Human Rights, University of Texas School of Law

From Mihret Getabicha, JD Candidate, Class of 2017, University of Texas School of Law

The Rapoport Center Human Rights Working Paper Series (WPS) is happy to announce a call for papers for the 2015 - 2016 academic year.  The WPS seeks innovative papers of the highest quality by both researches and practitioners in the field of human rights.

Acceptance to the WPS series provides authors with an opportunity to receive feedback on works in progress and stimulate a lively, productive conversation around the subject matter of their paper.  This process is designed to prepare papers for publication in academic journals or other venues.

This year we are particularly interested in papers exploring the relationship between human rights and inequality, natural resources governance, and the future of labor. 

Please circulate this call for papers to interested researchers, students, or groups.  The submission guidelines may be found here, and feel free to contact us at rcwps@law.utexas.edu with any inquiries.  

Measuring Publications in Top Law Journals

Reza Dibadj, University of San Francisco School of Law, is publishing Fashions and Methodology in Rethinking Legal Scholarship: A Transatlantic Interchange (Forthcoming). Here is the abstract.

I attempt in this chapter to build on prior empirical work where I compared who and what was being published in top law reviews in three different jurisdictions: the United States, Britain, and France. Part I begins by discussing the key empirical findings of a research project that analyzed a sample of legal publications in the United States, Britain, and France. As discussed, the work proceeded in two phases: first, identifying what “top” journal and “elite” law school might be in each jurisdiction; second, analyzing each article according to author characteristics, legal method employed, and subject matter. Part II then draws implications from this preliminary work, attempting to relate the empirical results to the academic legal culture in each jurisdiction. Put simply, can one try to find meaning in these results? After having surveyed what is being published in “top” law journals across three different jurisdictions, as well as trying to explore links between these results and legal culture, Part III tries to draw some implications. At least two important points emerge. First, that as legal academics we need to pay more attention to quality and how to measure it. Yet existing quality metrics — journal rankings, peer review, bibliometric citations, and the like — are by themselves at best incomplete and at worst misleading. As such, I argue that quality cannot be understood without the threshold concept of methodology. Entering the dangerous territory of linking methodology with quality becomes all but inevitable if we hope to begin improving the state of legal research. Ironically, what is deeply missing in this literature is a focus on methodology. While it becomes extraordinarily difficult, if not impossible, to generalize across jurisdictions there remains a central question of what Americans may learn from Europeans when it comes to legal research and vice-versa? Methodology can begin to provide a framework to address this question.

Download the essay from SSRN at the link.

Communicating Through Dress

Karen Thornton, George Washington University Law School, is publishing Parsing the Visual Rhetoric of Office Dress Codes: A Two-Step Process to Increase Inclusivity and Professionalism in Legal-Workplace Fashion in volume 12 of Legal Communication & Rhetoric (2015). Here is the abstract.

Legal employers expect attorneys in their offices to use the ethos of personal appearance to project an image of competence to clients. This expectation is largely unspoken, however, and polling and anecdotal evidence alike show that in today’s workplace, employers are frustrated with the level of professionalism demonstrated by new employees. The goal of this article is to encourage open conversations about workplace fashion as it relates to an attorney’s professional identity. It is in both the employer’s and employee’s interests to clarify employer expectations and empower new members of the legal profession to adopt a personal sense of style that projects competence, leadership, and professionalism, without subtracting out the self. Professional style and ethos, not conformity, should be the goal of office dress codes. This article is written from the perspective of a legal writing professor and advocates an approach to building a positive office culture by training new lawyers to parse the message of unwritten dress codes and participate in drafting inclusive office policies that accommodate disparate cultural, racial, and gender experiences. By making the unconscious conscious through open communication about employer goals and employees’ professional identities, biases can be overcome and new attorneys prepared for a profession where choice of dress projects an instantaneous message about an individual’s business judgment.

Download the article from SSRN at the link.

Examining Value and Standards of Legal Writing in Blogging and Other Social Media

Jennifer Murphy Romig, Emory University School of Law, is publishing Legal Blogging and the Rhetorical Genre of Public Legal Writing in volume 12 of Legal Communication & Rhetoric (2015). Here is the abstract.

This article brings scholarly attention to the blog posts, tweets, updates and other writing on social media that many lawyers generate and many others would consider generating, if they had the time and skill to do so. In the broadest terms, this genre of writing is “public legal writing”: writing by lawyers not for any specific client but for dissemination to the public or through wide distribution channels, particularly the Internet. Legal blogging is a good entry point into public legal writing because legal blog posts often share some analytical features of longer articles alongside conversational conventions typical of writing on social media. Legal blogging is certainly not new, but this article brings new attention to it. The article begins by reviewing helpful (nonlegal) advice from two recent writing guidebooks, Christopher Johnson’s Microstyle: The Art of Writing Little and Roy Peter Clark’s How to Write Short: Word Craft for Fast Times. Primed by the ideas in these books, the article explores the genre of legal blogging through two case studies of legal blog posts in 2014. Finally, the article puts legal blogging into context by addressing its similarities to and differences from traditional legal writing. Legal blogging offers a respite from the formalities of traditional legal writing, but it also brings its own set of expectations and constraints that define the evolving boundaries of this genre.

Download the article from SSRN at the link.

Should We Prevent Deontological Wrongdoing?

Re'em Segev, Hebrew University of Jerusalem Faculty of Law, is publishing Should We Prevent Deontological Wrongdoing? in Philosophical Studies. Here is the abstract.

Is there a reason to prevent deontological wrongdoing – an action that is wrong due to the violation of a decisive deontological constraint (when there is no consequential reason against it)? This question is perplexing. On the one hand, the intuitive response seems to be positive, both when the question is considered in the abstract and when it is considered with regard to paradigmatic cases of deontological wrongdoing such as Bridge and Transplant. On the other hand, common theoretical accounts of deontological wrongdoing do not entail this answer, since not preventing wrongdoing does not necessarily amount to doing harm or intending harm, for example (and, in cases in which the consequences of deontological wrongdoing are good, entail the opposite answer that preventing deontological wrongdoing in wrong). The puzzle is reinforced due to the fact that the intuitive response to other cases seems to be different, namely that there is no reason in favor of preventing deontological wrongdoing. This question is thus interesting in itself. It might also shed light on additional questions such as the “paradox of deontology” and the appropriate response to wrongful actions more generally. Yet, despite its importance, this question is typically overlooked. The paper explores this question.

Download the article from SSRN at the link.

Evaluating the "Let and Let Live" Approach to Religious Opposition To LGBT Marriages

Carlos A. Ball, Rutgers, the State University of New Jersey, School of Law (Newark), is publishing Sexuality, Third-Party Harms, and the 'Live-and-Let-Live' Approach to Religious Exemptions in Law, Culture, and the Humanities (forthcoming). Here is the abstract.

For several years now, a group of prominent religious liberty scholars have been defending what they call a “live-and-let-live” approach to accommodating religious dissent in the era of marriage equality. The proposed approach calls on the state to avoid taking sides on contested moral issues when individuals of faith claim that their religious beliefs require them to refrain from facilitating marriages by same-sex couples. The objective, it is argued, is to adopt policies that allow both sides to live according to their values. This essay critiques the “live-and-let-live” solution to religious exemptions from LGBT equality measures by focusing on questions of harms. It argues that the proposed approach calls for a weighing of harms that is largely unprecedented in the history of American antidiscrimination law and problematic in its own right. The essay also explains that the approach is premised on questionable assumptions and predictions about the absence of any meaningful harm to LGBT individuals when business owners provide goods and services to the general public, but refuse to do so for same-sex couples on religious grounds.

The full text is not available from SSRN.

The Hughes Court Docket Books, 1929-1933

Barry Cushman, Notre Dame Law School, has published The Hughes Court Docket Books: The Early Terms, 1929-1933 at  40 J. Sup. Ct. Hist. 103 (2015). Here is the abstract.

For many years, the docket books kept by a number of the justices of the Hughes Court have been held by the Office of the Curator of the Supreme Court. Yet the existence of these docket books was not widely known, and access to them was highly restricted. Recently, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers the first-ever examination of the available docket book entries relevant to what scholars commonly regard as the major decisions rendered during the early years of the Hughes Court, from the 1929 through the 1933 Terms. The decisions examined concern the Commerce Clause, the dormant Commerce Clause, substantive due process, equal protection, fair trade, labor relations, intergovernmental tax immunities, criminal procedure, civil rights, and civil liberties. The information in the docket books sheds particularly fascinating new light on decisions such as Nebbia v. New York, Home Bldg. & Loan Assn. v. Blaisdell, New State Ice Co. v. Liebmann, Powell v. Alabama, Nixon v. Condon, and Burnet v. Coronado Oil & Gas Co. In particular, the docket books often reveal what the justices said to one another at their conference deliberations over major cases, and illuminate many previously unknown changes in justices’ votes between those conferences and the times the decisions were published. Analysis of the voting data contained in the docket books yields some surprising results, and offers a contribution to two bodies of political science scholarship on judicial behavior: the literature on vote fluidity and unanimity norms in the Supreme Court, and the literature on the so-called “freshman effect” that some scholars have found exhibited by the Court’s newest members.

Download the article from SSRN at the link.

European Union Member States and Blasphemy Laws

Mauro Gatti, University of Bologna, has published Blasphemy in European Law in On Blasphemy 49-64 (M. Diez Bosch and J. Sànchez Torrents, eds., Blanquerna, 2015). Here is the abstract.

European countries have been punishing blasphemy since time immemorial. Several members of the European Union maintain blasphemy laws in their books to this day and some States implement them. These laws are problematic even when they are not applied, since they curtail criticism of religious doctrines and encourage censorship and self-censorship. In the past, the European Court of Human Rights affirmed that blasphemy laws were compatible with human rights law, since there was not sufficient common ground in the legal and social orders of European States to conclude that the repression of blasphemy was unnecessary in a democratic society. This paper intends to demonstrate that such ‘common ground’ now exists, especially within the European Union. Several EU countries have scrapped blasphemy laws from their penal codes, or have ceased to implement them. What is more, the governments of all EU Member States have repeatedly declared that blasphemy laws are incompatible with universal human rights standards. The existence of such a ‘common ground’ between EU Members suggests that the European Court of Human Rights should revise its jurisprudence. It also indicates that EU States should abolish their blasphemy laws, if they have not done so already. In a Union based on freedom and human rights, the most appropriate way to combat a perceived offense from the exercise of freedom of expression is not censorship, but the use of freedom of expression itself.

Download the essay from SSRN at the link.

Poetry By A UB Law School Student

From the University of Baltimore Legal Non-Fiction Blog: Rhymes by a Truancy Court Program Law Clerk, Kayla Faria's TCP Slam.

Cultural Heritage and Human Rights In War

Ana Filipa Vrdoljak, University of Technology Sydney, Faculty of Law, is publishing Cultural Heritage, Human Rights and the Privatisation of War in Heritage, Culture and Rights: Challenging Legal Discourses (A. Durbach and L. Lixinski, Oxford: Hart Publishing, 2016). Here is the abstract.

This chapter focuses on the legal issues raised by the impact of the privatisation of war on cultural rights and cultural heritage during military engagements. It is divided into four parts. First, there is an examination of the current debate amongst heritage practitioners, particularly archaeologists and anthropologists, about their professional engagement with PMSCs in recent conflicts and belligerent occupation. Second, there is an overview of existing international humanitarian law and human rights provisions covering cultural rights and cultural heritage during armed conflict and occupation. Third, the response of professional bodies and associations of heritage practitioners through their codes of ethics and public pronouncements to these emerging challenges is detailed. Finally, there is a brief explanation of international initiatives to regulate the activities of PMSCs. It is clear that the rapidly changing face of war has not only revealed the limitations of existing international law; but the efforts of professional bodies and industry to ‘regulate’ these activities through codes of ethics and good practice guidelines cannot fully address the shortcomings.

Creeping Americanization: Canadian Constitutional Practice and the Influence From South of the Border

David Schneiderman, University of Toronto Faculty of Law, has published ‘Introduction’ to Red, White, and Kind of Blue? The Conservatives and the Americanization of Canadian Constitutional Culture in Red, White, and Kind of Blue? The Conservatives and the Americanization of Canadian Constitutional Culture (University of Toronto Press, 2015). Here is the abstract.

Situated between two different constitutional traditions, those of the United Kingdom and the United States, Canada has maintained a distinctive third way: federal, parliamentary, and flexible. Yet in recent years it seems that Canadian constitutional culture has been moving increasingly in an American direction. Through the prorogation crises of 2008 and 2009, its senate reform proposals, and the appointment process for Supreme Court judges, Stephen Harper’s Conservative government has repeatedly shown a tendency to push Canada further into the US constitutional orbit. Red, White, and Kind of Blue is a comparative legal analysis of this creeping Americanization, as well as a probing examination of the costs and benefits that come with it. Comparing British, Canadian, and American constitutional traditions, David Schneiderman offers a critical perspective on the Americanization of Canadian constitutional practice and a timely warning about its unexamined consequences.

Download the Introduction from SSRN at the link.

Federal Judges Read Poetry at Poets House

The University Bookman reports on an October 20, 2015 event which the Federal Bar Council set up at Poets House in which four U. S. federal judges read poetry. The participants were District Judges Colleen McMahon and District Court Judge William F. Kuntz, and Circuit Court Judges Gerald E. Lynch and Dennis Jacobs.

Lawyer/poet Eugene Schlanger provides an extensive review of the event here.

Tip of the beret to Allen Mendenhall@allenmendenhall

The Sovereignty of Property Rights

Larissa M. Katz, University of Toronto Faculty of Law, is publishing Property's Sovereignty in Theoretical Inquiries in Law. Here is the abstract.

This paper shows how property rights might be fundamental to the very nature of our legal order while admitting that the modern realities of taxation, regulation, and expropriation are not attacks on property rights as such. By distinguishing between a principle of sovereignty, which I argue constitutes the core authority of owners, and a principle of accession, which I argue regulates the distribution of benefits and burdens attached to the position, we can see how this is so. Attacks on property rights as such would be, rather, acts by the state that deny the basic sovereign authority of owners, by subordinating owners to the private choices of others.

Download the article from SSRN at the link.

Reparations For Slavery and Jim Crow

David Lyons, Boston University, is publishing Reparations for Slavery and Jim Crow, Its Assumptions and Implications in the Oxford Handbook of Philosophy and Race (2016-17). Here is the abstract.

This paper develops the case for reparations to African Americans today, based on wrongdoing that began with slavery, that was not repaired by Reconstruction, that was continued in new forms under Jim Crow, and that left a deeply-entrenched legacy of disadvantage despite civil rights reforms of the twentieth century. It reviews relevant aspects of U.S. history and policies since 1607 and lays out the moral considerations that call for a system of reparations far beyond anything yet contemplated by American society. It argues that cash payments, while needed, would not suffice, because slavery and Jim Crow were not just a collection of wrongs, such as unpaid labor and poor housing, but all-encompassing systems that prevented African Americans from developing their interests, their intellects, and their lives as they were morally entitled to do. The subordination of African Americans was rationalized by a profoundly insulting ideology of white supremacy that has greatly affected American culture and contaminated the attitudes of whites and blacks. A morally adequate program of reparations would enable the survivors of those systems to rebuild their lives, free of oppressive racism, as far as that is possible. The paper finally notes some wider implications of the reparations argument.

Download the essay from SSRN at the link.

Rethinking Privacy Using Feminism--and Spinoza

Janice Richardson, Monash University Faculty of Law, is publishing Spinoza, Feminism and Privacy: Exploring an Immanent Ethics of Privacy in volume 22 of Feminist Legal Studies (2014). Here is the abstract.

In this article I explore the usefulness of Spinoza’s ethics for feminism by considering ways in which it allows feminists to rethink privacy. I draw upon some of Spinoza’s central ideas to address the following question: when should information be classed as private and when should it be communicated? This is a question that is considered by the common law courts. Attempts to find a moral underpinning for such a tortious action against invasions of privacy have tended to draw upon Kant’s categorical imperative. In contrast, I want to consider how Spinoza provides an immanent ethics that reconfigures how privacy is understood.

Download the article from SSRN at the link.

Negotiating Cultural Rights: An International Conference at the University of Copenhagen, November 13-14, 2015

 News from Daniela Carpi, Professor at the University of Verona:

The University of Copenhagen is organizing and will host an international conference on cultural rights based on the reports by Farida Shaheed, current UN Special Rapporteur in the field of cultural rights. The conference, entitled Negotiating Cultural Rights, will take place November 13-14, 2015. Ms. Shaheed will attend the conference.

During the event, international experts will comment on her reports which deal with intellectual property rights, cultural heritage, and artistic freedom among other issues. Shaheed’s successor as Special Rapporteur, Karima Bennoune, will also be present.

See the program for Negotiating Cultural Rights at pf.ku.fk 

More about the conference program is available here.

Registration: The price for attending the conference is 750 kr. (meals, coffee and the conference dinner are included).

Registration and payment is handled by Conference Manager (conferencemanager.dk)

Deadline for registration is 1 November, 2015 (or as long as tickets are available).

Daniela Carpi

Professore Ordinario di Letteratura Inglese  Dipartimento di Lingue e Letterature Straniere  Università di Verona  Lungadige Porta Vittoria n.41

37129 Verona, Italy

Fax: 0039 (0)45 8028729

Tel: 0039 (0)45 8028410

Brief Writing and the Use of Language In U.S. Supreme Court Opinions

Adam Feldman, University of Southern California,  Department of Political Science, has published Blurred Lines: Merits Briefs as Templates for Supreme Court Opinions. Here is the abstract.

Supreme Court opinion language is predominately derivative. It comes from a variety of sources including briefs, past opinions, and lower court transcripts. This derivative language use, especially without attribution, has been described in ways ranging from common practice to plagiarism. This paper focuses on opinions using high levels of generally unattributed language derived from merits briefs.

This paper identifies a case type where opinions rely heavily on briefs and compares the language in the briefs and opinions in this set of cases. It also identifies the justices associated with this high language of language borrowing and finds that Justice Blackmun was especially disposed to this practice. While not presumptively staking a normative claim about the relationship between merits briefs and opinions in these cases, this paper is designed to catalyze the discussion regarding expectations, if any, for judicial citations and for the use of original language in Supreme Court opinions.

Download the article from SSRN at the link.

Judge Dredd Strips, Unavailable Since 1978, Will Be Included In New Volume Next Year

From the Guardian, news that some Judge Dredd strips featuring critiques of McDonald's and other consumer culture staples will once again be available. The strips, part of an extended storyline called "The Cursed Earth," was unavailable for decades because of UK copyright law. UK law changed in 2014.

Rebellion Publishing, owners of 2000AD, will put the long-unavailable strips in the hands of eager readers next year in a volume called Judge Dredd: The Cursed Earth Uncensored.
More here from Comics Alliance.  

Law, Architecture, and the EU Preliminary Ruling Procedure

Marc de Werd, Professor of European law (Maastricht University) and judge in the Amsterdam Court of Appeal in the Netherlands, uses an architectural analogy to dissect the EU preliminary ruling procedure. Link here to the essay, published at 22 Maastricht Journal of European and Comparative Law 1 (2015), which is a must-read.

The Role of the Academic

Jeanne L. Schroeder and David Gray Carlson, both of Cardozo School of Law, have published Improve Yourself; Not the World as Cardozo Legal Studies Research Paper No. 464. Here is the abstract.

This essay questions the predominant assumption within legal academia that the goal of scholarship should be to give policy advice. We do not make the obvious point that it is questionable whether legislatures care about what law professors think. Rather, we claim that policy suggestions fall within what Jacques Lacan called the “discourse of the university”. The terminology reflects not a normative judgment that professors should speak it, but an empirical observation that they all too often do speak it. The discourse of the university is expertise. It is not a true critical discourse, but a discourse of power because it is an attempt to make others act in a preferred way. It serves, often inadvertently, as an adjunct to the more obvious exercise of power called the “discourse of the master”, which is roughly equivalent to Hart’s concept of law. The master’s voice, like positive law, is to be obeyed not because it is moral, but merely because it is recognized as authoritative. By seeking to justify legal rules, the discourse of the university provides the missing rationalization for the master, thereby strengthening its reign. That is, the master tells you what to do; the university tries to convince you why you should do it. The two power discourses are to be contrasted to two critical discourses of the analyst and the hysteric. If the power discourses are those of the governor, the critical discourses are those of the governed: the subjects subjected to law. The analyst’s discourse is that of interpretation and counseling. The hysteric’s is the discourse of challenge. We argue that not only should they be the predominant discourses of practice, but also of theoretical and doctrinal scholarship.

Download the article from SSRN at the link.

The Process and Concept of Translation as a Transfer of Knowledge

Lena Foljanty, Max Planck Society for the Advancement of the Sciences; Max Planck Institute for European Legal History, has published Legal Transfers as Processes of Cultural Translation: On the Consequences of a Metaphor in Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft, Heft 2 / 2015, S. 89-107 (Der Beitrag ist hier auf Deutsch erschienen: Rechtstransfer als kulturelle Übersetzung. Zur Tragweite einer Metapher). Here is the abstract.

During the last decade, cultural studies faced a so-called “translational turn”. The concept of translation was taken up and reinterpreted in a figurative sense. The concept of translation is no longer confined to the process of putting a text from one language into another, but describes also processes in which foreign knowledge, values or practices are adapted. The article deals with the question whether this expanded concept of translation proves to be fruitful in order to gain a better understanding of legal transfers. By discussing ideas of Walter Benjamin, Homi K. Bhabha and Dipesh Chakrabarty on translation it shows how the concept of translation opens our view for the complex positioning of the actors, which is characteristic for transfer processes and which enables reflecting the transformations that take place beyond the idea of a linear give-and-take.

Download the article from SSRN at the link.

Defining Crimes Against Humanity

Margaret M. DeGuzman, Temple University School of Law, has published The Elusive Essence of Crimes Against Humanity in For the Sake of Present and Future Generations: Essays on International Law, Crime and Justice in Honour of Roger S. Clark (William A. Schabas et al., eds., Brill/Nijhoff, 2015). Here is the abstract.

As efforts to adopt an international convention on crimes against humanity gain momentum it becomes increasingly important for the international community to clarify the conceptual underpinnings of this category of international crimes. This book chapter seeks to contribute to that process by elucidating a tension between the two goals animating the definition: the goals of identifying crimes that ‘shock the conscience of humanity’ and of distinguishing crimes against humanity from ‘ordinary’ crimes subject to national adjudication.

Download the essay from SSRN at the link.

The Role of Emotion In English Law and Legal Theory

For those of us who think the English are dour or lack affect,, and that English lawyers are more of the same, a new book offers to change our views. Newly published by Bucknell University Press is Impassioned Jurisprudence: Law, Literature, and Emotion, 1760-1848, edited by Nancy E. Johnson. Here is a description of the contents from the publisher's website.

In this volume of essays, scholars of the interdisciplinary field of law and literature write about the role of emotion in English law and legal theory in the late eighteenth and early nineteenth centuries. The law's claims to reason provided a growing citizenry that was beginning to establish its rights with an assurance of fairness and equity. Yet, an investigation of the rational discourse of the law reveals at its core the processes of emotion, and a study of literature that engages with the law exposes the potency of emotion in the practice and understanding of the law. Examining both legal and literary texts, the authors in this collection consider the emotion that infuses the law and find that feeling, sentiment and passion are integral to juridical thought as well as to specific legislation.

Includes an introduction by Nancy E. Johnson, Simon Stern, Blackstone's Legal Actors: The Passions of a Rational Jurist, Nancy E. Johnson, Narrative Sentiment in Adam Smith's Lectures on Jurisprudence, J. T. Scanlan, Love and the Law in Boswell's Development as a Writer in the Late 1760s, Melissa J. Ganz, Freedom and Fetters: Nuptial Law in Burney's The Wanderer, Erin Sheley, Doubled Jeopardy: The Condemned Woman as Historical Relic, Peter de Bolla, The Madness of Sovereignty: George III and the Known Unknown of Torture, Ian Ward, The Great Dramatist: Macaulay and the English Constitution. Also includes a Timeline of Selected Legal Publications, Legislation, and Events, and a Bibliography.



 
 

Figuring Out the "And" In Clauses of the Constitution

Samuel L. Bray, UCLA School of Law, is publishing 'Necessary AND Proper' and 'Cruel AND Unusual': Hendiadys in the Constitution, in volume 102 of the Virginia Law Review (2016). Here is the abstract.

Constitutional doctrine is often shaped by the details of the text. Under the Necessary and Proper Clause, the Supreme Court first considers whether a law is “necessary” and then whether it is “proper.” Some justices have urged the same approach for the Cruel and Unusual Punishments Clause: first ask if the punishment is “cruel,” then if it is “unusual.” That each clause has two requirements seems obvious, and it is has been the assumption underlying vast amounts of scholarship. That assumption is incorrect. This Article argues that “necessary and proper” and “cruel and unusual” are best read as instances of hendiadys. Hendiadys is a figure of speech in which two terms, separated by a conjunction, have a single complex meaning. It is found in many languages, including English: e.g., “rise and shine,” “nice and fat,” “cakes and ale.” When “cruel and unusual” is read as a hendiadys, the clause does not prohibit punishments that merely happen to be both cruel and unusual. Rather, it prohibits punishments that are unusually cruel, i.e., innovative in their cruelty. If “necessary and proper” is read as a hendiadys, then the terms are not separate requirements for congressional action. The word “necessary” requires a close relationship between a statute and the constitutional power it is carrying into execution, and “proper” instructs us not to interpret “necessary” in its strictest sense. To read each of these constitutional phrases as a hendiadys, though seemingly novel, actually aligns closely with the early interpretations, including the interpretation of the Necessary and Proper Clause in McCulloch v. Maryland. The readings offered here solve a number of puzzles, and they better capture the subtlety of these clauses.

Download the article from SSRN at the link.

Influence of the French Bar on the Development of the Russian Legal Profession

Elizaveta Blagodeteleva, National Research University Higher School of Economics (Moscow), has published The French Bar and the Emerging Legal Profession in Russia as Higher School of Economics Research Paper No. WP BRP 110/HUM/2015. Here is the abstract.

The complex and seemingly inconsistent use of the social vocabulary has been on the research agenda of those who study the Russian Empire for quite some time. Historians have long believed that the indiscriminate use of such terms as "estate" ("soslovie") and "corporation" reflected Russian backwardness and eventually impeded further social and economic development, especially when it came to professional groups. The paper examines this assumption by focusing on the terminology deployed for the designation of Russian lawyers, in comparison to their French counterparts. Therefore, it dwells at length on the references to the French Bar in the bureaucratic discussion and in current press at the time of drafting the basic principles of the future Bar organization in Russia between 1857 and 1864. The comparison of the two sets of references provided plenty of evidence that the French notion of the estate (l'ordre des avocats) had a dramatic impact on the interpretation of Russian soslovie of legal practitioners. The French model seemed to spur social imagination and eventually helped Russian political and intellectual elites envisage a new type of social organization encompassing free, well-educated and politically engaged men.

Download the paper from SSRN at the link.

New Books On Witchcraft

Stacy Schiff's new book The Witches: Salem, 1692 is now out, and she discusses Salem and the topic of witchcraft with Huffington Post host Paul Brandeis Rauschenbuch here.


Other recently published books on witchcraft and the Salem trials:


Emerson W. Baker, A Storm of Witchcraft: The Salem Trials and the American Experience (Oxford University Press, 2014).


Benjamin C. Ray, Satan and Salem: The Witch-Hunt Crisis of 1692 (University of Virginia Press, 2015).

Using Popular Culture to Demonstrate the Rules of Evidence

 

Martin A. Schwartz, Touro College Jacob D. Fuchsberg Law Center, has published Trial Evidence Brought to Life: Illustrations from Famous Trials, Film and Fiction (2015 Edition)(Practising Law Institute, 2015). Here is the abstract.

This book is a guide to the law of evidence that utilizes evidentiary examples from popular culture to provide a strong understanding of the Federal Rules of Evidence, and its interpretive case law. It also provides an understanding of how popular culture sources inform jurors’ preconceptions about the trial process. Illustrations from famous cases, movies, novels, cartoons, and other media highlight the presumptions jurors bring to the courtroom. Issues covered include: relevance; unfair prejudice; the rule against hearsay and its exceptions; recent developments in the Confrontation Clause; expert testimony; differences between expert witness and lay witness testimony; impeachment methods; procedures for juror questioning of witnesses; admissibility of videotape evidence; and requirements for introducing electronic evidence.

Structures of Contemporary Jurisprudence

Stefan Sciaraffa, McMaster University, is publishing Constructed and Wild Conceptual Necessities in Contemporary Jurisprudence in volume 6 of Jurisprudence. Here is the abstract.

I argue here that much of contemporary analytic jurisprudence can be readily construed as a series of interesting and important debates that revolve around two different kinds of concepts. One line of debate is about the necessary and sufficient conditions that ought to be affixed to the constructed concept of a legal system in order to illuminate the social institutions within the observational purview of legal theorists. A second line addresses, at it were, a wild concept—namely, the concept that animates the law-recognizing behaviour of legal officials. As I shall explain below, there is little factual disagreement among the parties to the first line of debate; rather, this debate is largely a dispute about the appropriate desiderata for constructing a concept that best illuminates the relevant set of social institutions. By contrast, the debates that pertain to the wild concept can be readily characterized as empirical disputes about the structure and content of the concept that animates the behaviour of legal officials.

Download the article from SSRN at the link.

Measure For Measure and the Nature of Justice

Mark Lawson discusses the enduring importance of Shakespeare's Measure for Measure here for the Guardian. He notes,

Not all observers, it’s true, see the play as universal. At the matinee I attended of the Globe production, a large school party was visibly and audibly bemused by the tenacity of Isabella’s defence of her virginity, which includes rebuking her brother, when he wonders if she couldn’t just do this one thing to save his life, with the startling argument: “Is’t not a kind of incest to take life / From thine own sister’s shame?”

But the character’s willingness to be martyr for chastity – and Angelo’s moral crackdown, backed by capital punishment – would seem less quaint to the Tea Party wing of the Republicans, at the Vatican, or in countries and cultures subject to Islamic sharia law. And so the conflict in the Vienna of the play between sexual licentiousness and censoriousness has an obvious contemporary topicality, while the play’s broader exploration of the nature of justice is perennially relevant: at the Globe, the production is part of a season under the umbrella theme of “Justice & Mercy.”

Machiavelli and Modern Constitutionalism

Mortimer Newlin Stead Seller, University of Baltimore School of Law, has published Niccolò Machiavelli: Father of Modern Constitutionalism as University of Baltimore School of Law Legal Studies Research Paper No. 2015-32. Here is the abstract.

Niccolò Machiavelli is the father of modern constitutionalism. Constitutionalism began anew in the modern world with the study of the ancient republics and it was Machiavelli who inaugurated this revived science of law and politics. Five hundred years after the composition of Il Principe and the Discorsi we are still working out the implications of applying reason to the structures of law and government in pursuit of justice and the common good. Modern constitutionalism and ancient republicanism share three central beliefs: first, that government should serve justice and the common good. Second, that government should do so through known and stable laws. Third, that these will best be secured through the checks and balances of a well-designed constitution. Machiavelli took the theories and experiences of republican Rome and applied them to his own era. This application of reason to constitutional design transformed the politics of emergent modernity and reconfigured government throughout the world.

Download the article from SSRN at the link.

Call For Papers, Inequality and Human Rights Conference, University of Texas Center For Human Rights and Justice

From Julia Dehm, University of Texas School of Law:

Call for Papers

The Bernard and Audre Rapoport Center for Human Rights and Justice at The University of Texas at Austin School of Law invites submissions for an interdisciplinary conference on the theme “Inequality and Human Rights,” to be held April 7-8, 2016.

Since the current global financial crisis began in 2008, income and wealth inequality both within and between countries has come under attack from multiple perspectives. While there is much methodological debate about how best to measure economic inequality globally, many of the figures are alarming. According to a recent report by Credit Suisse, half the world’s wealth is now owned by just 1% of the population, while the least well-off 50% own just 1% of global wealth.

Poverty, wealth and economic inequality are neither natural nor innate. Processes of impoverishment and uneven accumulation are produced, stabilized and sometimes challenged through legal and institutional arrangements, market competition, and social struggles. To date, human rights approaches to social and economic rights have primarily focused on poverty alleviation and the guarantee of basic rights. While not insignificant, these approaches have rarely attended to issues of extreme wealth or the social distribution of wealth.

We invite papers from any discipline that consider whether international human rights law, movements, and discourses have, could or should engage with the problem of economic inequality nationally or internationally. Are human rights frameworks equipped to address economic inequality? Might their promotion foreclose other, more effective, vocabularies and strategies aimed at economic justice? How might human rights frameworks need to change to contribute to a more egalitarian world?

We particularly encourage papers that consider these questions through contextualized examination of key sites of struggles over the distribution of income, benefits, access, decision-making power, and risk exposure. Such sites might include policies and practices around taxation, money and finance, debt (both sovereign and personal), development, natural resources and the environment, education, intellectual property, borders and migration, labor, housing, land ownership, and military intervention. Although our focus is on economic inequality, we also encourage papers that attend to the ways in which it interacts with other forms of inequality, such as those based on gender, race, nationality and physical and mental ability.

Please send an abstract of under 600 words to Julia Dehm (jdehm@law.utexas.edu) by December 1, 2015. A limited number of travel grants are available to support travel costs for selected participants who are unable to receive financial support from their home institutions. If you wish to apply for a travel grant, please complete an application form (available at https://goo.gl/Jk33Ai)