Stramignoni on Images of Law

Igor Stramignoni, London School of Economics, Law Department, has published Images of Law. Here is the abstract.

In this essay, I offer some initial thoughts about what may be roughly called a visual history of law or, more precisely, a history of the visual in law. To put it simply, I am interested to turn to what may be generally called early modern “images of law” – broadly, constellations of artefacts to do with law – with the purpose of taking them seriously. What may those images suggest if taken on their own terms rather than as merely impassive historical evidence of the particular process of conceiving law intellectually or, alternatively, as codes for certain pre-existing messages to be subsequently decoded? In order to answer this question, I start from a particular and relatively little-known picture, moving on to a related literary tract, and then on again to a few of the more familiar early modern visual representations of justice. The point of this exercise is simply to highlight certain alternative ways of approaching artefacts to do with law that may add to those that may come more readily to mind – that is, as objects illustrating or demonstrating the long-standing process of modernisation and written rationalisation of law after the Middle Ages. On approaching those artefacts differently, we discover that they often resist our analyses or interpretations forcing us to engage with them in interesting ways.

Download the essay from SSRN at the link.

Mirow on Scots Traders and Spanish Law in East Florida

M. C. Mirow, Florida International University College of Law, is publishing Scots Traders and Spanish Law in East Florida in Colonial Adventures: The Making of Commercial Law and Practice (Serge Dauchy, Albrecht Cordes, Dave De Ruysscher and Heikki Pihlajamäki, eds., Leiden: Brill, Forthcoming). Here is the abstract.

This chapter describes commercial litigation in 1802 threatening Panton Leslie’s trading post at Picolata, East Florida, and the firm’s very existence in the province. It reveals the legal sophistication and institutional limits of local actors in a small northern outpost of the Spanish empire. The parties considered and argued about the proper interpretation of royal orders, governors’ edicts, official correspondence, and other documents that shaped the dispute. Concerning commercial legal culture, the issues debated in the pleadings centered on Panton Leslie’s compliance with its unique trade status as delineated in a series of royal orders and agreements. Despite their remoteness from imperial economic and commercial centers, the parties did not play fast and loose with the legal sources or arguments. The dispute reveals that the nature of commercial enterprise within empires was not simply one of economic benefit. Trading companies were woven into the political fabric of imperial administration. In this context, Sánchez argued that for Spain to coexists with native populations and eventually to have Indian populations join its polity, the foreign trading house of Panton Leslie had to be removed as an intermediary between them. This extensive legal battle also has some explanatory benefit on the shift of Panton Leslie away from trade to debt collection and property management in the early years of the nineteenth century. William Panton died in 1801 and Bowles’s attacks against Panton Leslie had significantly disrupted its ability to trade profitably. This suit must be added to these causes of the firm’s shift from Indian trade to debt collection and land management. The case surely absorbed time and resources. It also created an atmosphere of uncertainty under which the firm would have to operate. Every shipment and every transaction after the case would be subject to the greatest and most jealous scrutiny by at least a portion of Saint Augustine’s population. Panton Leslie’s success was a hollow victory.

Download the essay from SSRN at the link.

Bernstein on Legal Corpus Linguistics and the Half Empirical Analysis @Cornell_Law_Rev

Anya Bernstein, SUNY Buffalo Law School, is publishing Legal Corpus Linguistics and the Half Empirical Attitude in volume 106 of the Cornell Law Review (2021). Here is the abstract.

Legal writers have recently turned to corpus linguistics for help interpreting legal texts. Corpus linguistics—a methodology that analyzes large data sets of language use —promises to give empirical grounding to the claims about ordinary language that pervade legal interpretation. Yet, I argue, legal corpus linguistics departs from these empirical origins by ignoring the crucial contexts in which legal language is produced and interpreted. First, legal corpus linguistics ignores the legal context of legal language—conditions, like judicial precedent and statutory co-text, that give legal language authority. So it provides evidence about language use that obscures and misstates the actual issues legal interpreters face. Second, legal corpus linguistics ignores the institutional context of legal language—the way it is produced by certain speakers, taken up by certain audiences, and formulated in particular genres. When legal corpus work treats language as socially undifferentiated, its empirical findings rest on a fictional basis. The underlying problem, I show, is a mismatch of methodology and goal. Corpus linguistics in linguistics makes an empirical claim that its analysis illuminates truths about the language it studies. Legal corpus linguistics, in contrast, uses empirical methods to support a normative claim that its analysis ought to influence our interpretation of legal texts. Treating normative claims as though they were empirical findings constitutes what I call a half-empirical attitude in legal interpretation. At the same time, I suggest ways that legal corpus linguistics could be useful to the production and interpretation of legal texts, as well as to the development of legal theory—if it embraces a more fully empirical attitude. 

 Download the article from SSRN at the link.

New From Routledge: Law, Lawyers, and Justice Through Australian Lenses @kscrawling @routledgebooks

New from Routledge:

Law, Lawyers, and Justice Through Australian Lenses ( Kim D. Weinert, Karen Crawley, and Kieran Tranter, eds., Routledge, 2020).  Here, from the publisher's website, is a description of the book's contents.

This book engages with the place of law and legality within Australia’s distinctive contribution to global televisual culture. Australian popular culture has created a lasting legacy – for good or bad – of representations of law, lawyers and justice ‘down under’. Within films and television of striking landscapes, peopled with heroes, antiheroes, survivors and jokers, there is a fixation on law, conflicts between legal orders, brutal violence and survival. Deeply compromised by the ongoing violence against the lives and laws of First Nation Australians, Australian film and television has sharply illuminated what it means to live with a ‘rule of law’ that rules with a legacy, and a reality, of deep injustice. This book is the first to bring together scholars to reflect on, and critically engage with, the representations and global implications of law, lawyers and justice captured through the lenses of Australian film, television and social media. Exploring how distinctively Australian lenses capture uniquely Australian images and narratives, the book nevertheless engages these in order to provide broader insights into the contemporary translations and transmogrifications of law and justice.

More about the book, including a table of contents, here. 

Murray on The Art of Yoko Ono and the Law of Rape @murrayyxta @LoyolaLawSchool

Yxta Maya Murray, Loyola (Los Angeles) Law School, is publishing Cut Piece: The Art of Yoko Ono and the Law of Rape in the United States in the Law & Literature Journal. Here is the abstract.

In 1964, Yoko Ono performed Cut Piece in New York’s Carnegie Hall. This performance art involved Ono sitting on a bare wood stage wearing dark stockings, a dress, and a cardigan. She sat still while largely white male and female members of the audience approached her and one by one cut off a piece of her clothing with a pair of scissors. In the years since Cut Piece was performed, it has attained a nearly mythic quality among feminist art historians; while Ono herself has not always embraced Cut Piece's illumination of sexual and racial violence, many art critics have recognized its capacity to express important aspects of sexual and racial violation that go unrecognized in legal and civil discourse. In this paper, I limn Cut Piece's relevance to a gendered and raced problem that law often confronts when a woman has experienced a sexual violation, but did not resist, did not complain during or afterwards, appears to have "invited it," and otherwise does not conform to the stereotype of what Susan Estrich has described as a "real rape" victim. I study Cut Piece in relationship to mainstream legal responses to sexual violation that occurs in this context, as well as feminist and intersectional and anti-essentialist approaches. I also examine the important relationship that exists between law, art, and feminist legal theory. In the end, I conclude that Cut Piece is resonant with intersectional, anti-essentialist, and radical feminist approaches to sexual violations that exhibit Cut Piece's complex dynamics: While the law does not now recognize these violations as illegal, these theories and Cut Piece together offer a new pathway toward understanding the connections between race and sexual violation.

Download the article from SSRN at the link.

Cutler on A Hebrew Republic in the Gilded Age? Henry George's Single Tax and the Hebrew Bible

Joshua Cutler, University of Houston College of Business, has published A Hebrew Republic in the Gilded Age? Henry George’s Single Tax and the Hebrew Bible. Here is the abstract.

Henry George sparked a vast popular movement following the publication of his classic work Progress and Poverty. Seeking to explain why poverty always seemed to increase along with progress, George proposed that, as societies advanced, land owners were able to capture an increasing share of wealth. To remedy this, George proposed a “Single Tax” on the unimproved value of land, which would prevent land speculation and hoarding and make land available for all who desired to work it. While George was ostensibly an economist, he is best understood as an ethical-religious figure, and his most devoted followers were a diverse array of religious leaders and reformers. However, the actual religious substance of George’s ideas has been largely unexplored. I propose that George’s program was inspired by Jewish ideas and institutions originating from the Hebrew Bible. In Hebraic thought, by virtue of creating the earth, God is the only rightful owner of land. This principle was embodied in the Hebrew Bible’s land laws that ordained an equal distribution of land along with institutions to maintain this distribution over time. Centuries before George, I discuss how medieval Jewish rabbis had already derived a taxing power from the Hebraic land laws. These biblical land laws would also come to have a strong influence on European political thought through an intellectual tradition known as the “Hebrew Republic.” I attempt to understand Henry George’s thought as an unwitting revival of this tradition, with his Single Tax as an innovative adaption of the Hebraic institutions. The Hebraic understanding of land ownership continues to offer potential inspiration for alternative systems of taxation and economic regulation.

Download the article from SSRN at the link.

CFP: The Director's Series 2020/21 Law and Humanities In a Pandemic

CALL FOR PAPERS - The Director's Series 2020/21 Law and Humanities in a Pandemic

27th April 2020

The COVID-19 pandemic already has had a vast array of legal implications which have dramatically altered daily life. While liberal, universal rights such as liberty and privacy are being radically curtailed in the name of public health, legal responses impact upon populations in radically unequal ways. These dimensions include - but certainly are not limited to - race, gender, disability, vulnerability and social class. Legal interventions are consistently justified on the basis of science, which is assumed to be unequivocal and beyond debate. At the same time, resistance to legal action is also apparent, as rumours and conspiracy theories - like the virus itself - multiply around the globe. At the same time as public policy measures are introduced, systems of legal regulation and compliance (which were often themselves justified on the basis of public protection) are modified or suspended in the name of necessity, with no indication as to when or how they will be restored. Moreover, the relationship between law and discretion has been reshaped, and this in turn has impacted upon individuals and communities.

The aim of this series is to seek to ‘make sense’ of the wide ranging relationship between law and the pandemic through the insights of the humanities, broadly understood as the set of cultural influences which are shaping the use of law and the responses to it. Sarah Churchwell argues that ‘as this pandemic is so brutally reminding us, nothing in our society occurs in a vacuum. Everything occurs in a historical, political, economic, and cultural context, and the humanities is in the business of understanding context’. As Churchwell observes, ‘the pandemic has stripped away all our usual contexts, and in so doing it has made much more visible, and much more urgent, what it is that we do when we need to be human’.

Law is a vitally important component of that context and it warrants close attention. It forms an integral part of the challenge of ‘being human’ and, in turn, law can be illuminated through a turn to the humanities, whether it be history, political theory, literary analysis, philosophy, gender studies, film theory or cultural studies (and that list is far from exhaustive). In an effort at understanding the context of the pandemic, scholars at all career stages and across disciplinary boundaries are invited to contribute to a series of ‘work in progress’ seminars at the Institute of Advanced Legal Studies during the 2020-21 academic year. Given the uncertain and changed times for knowledge production (like all other forms of production), the format for the presentations will be flexible - remote, ‘live’, or some combination - depending upon the circumstances that we face. Innovative and experimental forms of presentation can be accommodated. Scholars from all parts of the world are welcome to contribute. Those located in the Global South are particularly encouraged, especially given the way in which the pandemic has (once again) privileged knowledge, expertise and experience from the Global North. 

The Institute of Advanced Legal Studies is itself part of the School of Advanced Study, which unites nine internationally renowned institutes in the humanities at the centre of the University of London. Together it forms the UK's national centre for the support of researchers and the promotion of research in the humanities.

A special issue proposal is planned for the publication of the output of the series. Preliminary interest has been expressed by the Editor of the Institute’s online, open access journal, Amicus Curiae. The Institute also has the capacity to publish the special issue as a hard copy volume with the University of London Press. 

Anyone interested in contributing is invited to contact the Director of the Institute, Professor Carl Stychin, by email: carl.stychin@sas.ac.uk.  A title and abstract for proposed contributions should be submitted to the Director by 30th June 2020. The seminars will be scheduled throughout the 2020-21 academic year.

Reference

Sarah Churchwell, ‘Being Human Under Lockdown’, https://beinghumanfestival.org/being-human-under-lockdown/

Download the Call For Papers (PDF)

ICYMI: Shniderman on Ripped From the Headlines: Juror Perceptions in the Law & Order Era @adam_shniderman

ICYMI: Adam B. Shniderman, University of Michigan Law School, has published Ripped from the Headlines: Juror Perceptions in the Law & Order Era at 38 Law & Psychology Review 97 (2014). Here is the abstract.

Film and Media Studies scholars have long claimed that television is a primary source of information about the criminal justice system for most Americans. These scholars have also found that television can significantly impact viewer’s perceptions of the world. In the last decade, Jerry Bruckheimer’s CSI: Crime Scene Investigation has been the subject of significant scrutiny. Many have claimed that CSI’s highly dramatized, romanticized, and generally unrealistic portrayal of forensic science and the investigative process has significantly altered juror expectations and poses a challenge for lawyers trying criminal cases. The concept has been discussed in nearly 400 news articles and more than 100 academic journal articles. With all of this attention paid to CSI, the impact of Law & Order on jurors’ perceptions of the criminal justice system has been largely overlooked.
In this Article, I analyze the dominant narrative in the Law & Order franchise, demonstrating that the show is rooted in Packer’s Crime Control Model. This Article discusses the various techniques the Law & Order franchise employs to construct that narrative and shape our views, through the use of basic psychological principles, detailed character backstories, casting choices of various characters, and dialogue and specific plot events. This Article considers the potential impact of this narrative on peoples’/jurors’ perceptions of various aspects of criminal investigations and the justice system, including interrogation techniques, eyewitness identification and lineup procedures, and the presumption of innocence. Finally, this Article makes suggestions for future research.

Download the article from SSRN at the link. 

Call For Papers: International Journal of Legal Discourse, Special Issue: Semiotic Perspectives on Environment, Forestry, Fishery, Hunting, and Law

INTERNATIONAL JOURNAL OF LEGAL DISCOURSE SPECIAL ISSUE – SEMIOTIC PERSPECTIVES ON ENVIRONMENT, FORESTRY, FISHERY, HUNTING AND LAW

Guest Editors: Dariusz GWIAZDOWICZ, Aleksandra MATULEWSKA & Anne WAGNER

Environmental issues have bothered people for the last several decades. In some countries, legislation devoted to the protection of endangered species dates back to 15th and 16th century. The modern world is highly urbanized and people get more and more distanced from nature. At the same time, they are more and more aware of the need to protect the natural resources of the Earth. That however, is not always done in accordance with the suggestions of scientists but lobbying groups either pursuing their own goals or simply their vision of the world. The recent case of Greta Thunberg’s popularity is one of the examples of such actions. The child got more attention of politicians and media than any scientist well versed in the field. Celebrities create their image using environmental issues as a popularity stimulator, just to mention one of the first ones who was Bridgit Bardot. The animal rights’ movements take various forms. In some countries farmed animals were released to the wild which affects the environment negatively as invasive species start exerting pressure on local species, depriving them of habitats. The Animal Liberation Front considers such acts legal, whereas they frequently constitute a breach of property law. In the urbanized world we observe that inhabitants of cities lack the knowledge about the tasks of sustainable environment protection and its role in sustainable management of natural resources (frequently leading to stereotyping, cyberbullying); they have specific social expectations which do not take into account the laws of nature but rely on fake news or over-idealized concept of environment; eco-hypocrisy. Another factor affecting our perception of environment is the ubiquitous antropomorphisation of animals as a result of which the wild world is deprived of its real features and becomes humanized (there are even movements propagating giving animals civic rights). In general, contemporary people lack inquisitiveness, are exposed to ubiquitous fake news and media infostrategy striving for scandalous news (Gwiazdowicz 2017, Gwiazdowicz and Matulewska 2020). As a result, two types of ecology have emerged recently: one which is based on scientific foundations and research results and the other one which is the media affected and based on stereotypical, idealized vision of the world. As it turns out, legislators change labels to gain support of eco-hypocrites but the problem of the conflict existing between human expectations and needs and environment remains and must be solved. In the Netherlands the government under the pressure of ecologists banned bird hunting. Though not many people realize that the problem of agricultural damage inflicted by the birds is solved through different means that is to say baby geese are killed by putting them into specially designed gas chambers. The meat of geese is no longer fit for human or animal consumption and must be liquidated. The question may be posed about the semiotic aspect of such actions. In the urbanized world there is and there will be a constant fight between humans who want highways, nice homes with fenced gardens, nice-looking vegetables and fruit, comfortable, healthy lifestyles and environment. Vegetarianism and similar lifestyles are becoming more and more popular as environment- and especially animal-friendly though little attention is placed on the effect of production of plants rich in protein and other valuable nutrients on environment (contamination of groundwaters with pesticides, herbicides, deforestations, deprivation of animals of their habitats). All activities and lifestyles affect the environment but we rarely find reliable sources of information providing a deeper insight into both pros and cons. 

To sum up, all those problems affect legislation regulating environment, forestry, fishery and hunting. The issue opens a new sphere of semiotic analysis of communication in legal settings and adopted solutions. This Special Issue hopes to construe presentations of environment, forestry, fishery and hunting to orientate our vision of legal solutions and their environmental consequences. The aim of this Special issue is to offer broader perspectives for understanding the roles of scientists, lobbyists and legislators in the debate of preserving the nature for future generations from both theoretical and practical angles. Therefore, the papers devoted to the following topics and presenting both advantages and disadvantages are welcome:

1. Animal rights and legislation

2. Animal owners’ rights

3. Environment and law

4. Forestry and law

5. Law and exploitation of nature

6. Consequences of releasing wild animals and plants into the wild and consequential legislation on invasive species

7. Ecology and law

8. Hunting and law

9. Fishery and law

10. Social expectations in the field of environment versus law

11. Poaching

12. Legal and illegal environment protection

13. Cyberbullying of foresters, hunters, fishermen

14. Repealed laws and their replacements

The Special Issue can comprise only 14 papers of no more than 30 pages.

Send your proposal to the three of us: dariusz.gwiazdowicz@up.poznan.pl, aleksandra.matulewska@gmail.com, valwagnerfr@yahoo.com 

Deadline for abstract: 10 February 2021

Decision for inclusion: 30 March 2021

Deadline for full paper: 15 January 2022 (instructions will be sent after decision to include papers in the special issue)

Stern on Legal Fictions and Legal Fabrication @ArsScripta

Simon Stern, University of Toronto Faculty of Law, has published Legal Fictions and Legal Fabrication at Fictional Discourse and the Law 191 (Hans Lind, ed., Routledge, 2020).

This chapter examines two of the most influential theories of legal fictions, suggesting that neither one explains the distinctive features that doctrines such as corporate personhood, coverture, and civil death have in common. The chapter first examines Henry Sumner Maine’s theory; although his account is often quoted, it has received comparatively little scholarly attention. Sumner offers a genealogical account: on his view a doctrine’s fictional status depends crucially on the doctrine’s source — and yet scholars who draw on his theory rarely pay any heed to this criterion. For Fuller, the fictional status of a doctrine depends on its falsity, and this requirement, too, accords poorly with the category of legal fictions, when we consider the examples that usually account for scholarly interest in the subject. I suggest that a better way of understanding legal fictions is to see them as achieving, in legal thought, what metafiction achieves in the literary realm. I close by developing some implications of this analogy.

Download the essay from SSRN at the link.

Johnson and Koenig on Aristotle and the Ethics of Narrative @LoriDelaneyJ

Lori D. Johnson, UNLV School of Law, and Melissa Love Koenig, Marquette Law School, have published Walk the Line: Aristotle &  The Ethics of Narrative as an UNLV Boyd School of Law Legal Studies Research Paper and a Marquette Law School Legal Studies Paper. Here is the abstract.

Lawyers are storytellers who face tremendous pressure to persuade judges and juries of the rightness of their stories. Zealous advocacy has long been a touchstone in lawyering, but lawyers need to balance zealousness with candor to the tribunal. As narrative and storytelling have evolved in scholarship and practice as powerful tools for persuasion, lawyers can find themselves walking a delicate ethical line. The applicable Model Rules of Professional Conduct do not provide a sufficient framework for ensuring sufficient candor in the use of narrative, particularly when considering the cultural and psychological power inherent in stories. Thus, lawyers can find themselves sliding on a slippery slope into ethically actionable misrepresentation. These are not new problems, and the classics have something to teach modern lawyers using narrative to persuade. Aristotle addressed the same types of concerns in his Nicomachean Ethics and On Rhetoric. Aristotle discussed the importance of keeping one’s conduct within the “mean”—to maintain a balanced approach to one’s life and practice. He also stressed the value of using good habits to develop a person’s character. Aristotle’s wisdom can guide a lawyer who seeks to be a candid, ethical, and still zealous advocate. Thus, this Article posits that incorporating Aristotle’s concepts of virtue ethics into the Preamble of the Model Rules will provide guidance to lawyers seeking to use legal storytelling in an ethical, balanced way. Providing lawyers with intrinsic motivation to behave ethically provides a more workable framework than adding additional proscriptive requirements to the Model Rules, particularly for lawyers walking the line between truth and falsity when retelling client facts through storytelling.

Download the article from SSRN at the link.

Harwick and Root on The Feudal Origins of the Western Legal Tradition @C_Harwick @hiltonroot

Cameron Harwick, SUNY College, Brockport, and Hilton L. Root, George Mason University, School of Policy, Government, and International Affairs; George Mason University, Schar School of Policy and Government, have published The Feudal Origins of the Western Legal Tradition at 70 Jahrbuch für die Ordnung von Wirtschaft und Gesellschaft (Ordo) 3 (2020). Here is the abstract.

This paper draws a distinction between ‘communitarian’ and ‘rationalist’ legal orders on the basis of the implied political strategy. We argue that the West’s solution to the paradox of governance – that a government strong enough to protect rights cannot itself be restrained from violating those rights – originates in certain aspects of the feudal contract, a confluence of aspects of communitarian Germanic law, which enshrined a contractual notion of political authority, and rationalistic Roman law, which supported large-scale political organization. We trace the tradition of strong but limited government to the conflict between factions with an interest in these legal traditions – nobles and the crown, respectively – and draw limited conclusions for legal development in non-Western context

Download the essay from SSRN at the link.

Lopez on The Law of Gravity @Rachel_E_Lopez

Rachel Lopez, Drexel University School of Law, Yale University Law School, is publishing The Law of Gravity in the Columbia Journal of Transnational Law. Here is the abstract.

Gravity is frequently referenced in treaties, judicial decisions of international and regional bodies, human rights reports, and the resolutions and proclamations of various bodies of the United Nations. These documents refer to certain violations of international law as being “gross,” “serious,” and “grave.” These terms are frequently used interchangeably but seldom defined, and it is often unclear what makes a violation particularly grave. Is it the extreme harm to the victim, the type of violation involved, who committed the violation, or rather the intention of the wrongdoer? Despite the lack of clarity around the concept, classifying a violation as grave has significant legal consequences under international law. Gravity can determine whether an international court has jurisdiction to prosecute a crime or when a treaty monitoring body can take up an issue. States are prohibited from selling arms to other States if they commit grave violations of human rights or humanitarian law. Gravity has also been used to justify military intervention or punishing a State more harshly for its wrongful acts. This Article brings more grounding to gravity by examining the concept in all of its forms and offers the first scholarly treatment of gravity across public international law as a whole. As legal history demonstrates, gravity is a, if not the, principal unifying force across international criminal law, human rights law, and humanitarian law. Despite the absence of a formal definition of grave violations, a close examination of gravity’s jurisprudence reveals a common set of factors that international courts and other entities typically weigh when determining that a violation is grave. Closer adherence to these factors will result in more uniform and cohesive accountability for those violations that are of most concern to humankind.

Download the article from SSRN at the link.

Zareifard, Hosseini, and Zarei on The Investigation of the Grammatical Metaphors of Iranian Legal Texts

Raha Zareifard, Jahrom University, Zahra Hosseini, and Tayyebe Zarei, Jahrom University, Department of Linguistics, are publishing The Investigation of the Grammatical Metaphors of Iranian Legal Texts in volume 2020 of the International Journal of Linguistics, Literature and Translation. Here is the abstract.

Nowadays, scientific analysis of language has a special place in the sciences, since the scientific methods give a better understanding of the texts. The emergence of forensic linguistics in recent years in Iran and the presentation of various approaches in this field has greatly accepted. This article analyzes a number of advisory theories of Iranian Justice Department based on the systemic functional grammar. One of the concepts in the systemic functional grammar is grammatical metaphor. Grammatical metaphor is one of the hallmarks of the language of science, and according to Holliday (2004) grammatical metaphor is of great importance in the development of scientific discourse and the advancement of reasoning in texts. Holliday has introduced and distinguished three types of grammatical metaphor, i.e. ideational, interpersonal and textual. The purpose of this research is to study the application of these types of metaphors in legal texts, to gain a better understanding of them. For this purpose, we examine the use of ideational, interpersonal and textual metaphors by examining about 20 advisory theories of Iranian Legal Department of Justice randomly. The results of this study suggest that legal texts have their own unique style and that the reason for applying such metaphors is to make these texts distinctive. Therefore, a better and more accurate understanding of these texts can be achieved with a closer look at the analytical tools presented.

Download the article from SSRN at the link.

Dembroff, Kohler-Hausmann, and Sugarman on What Taylor Swift and Beyonce Teach Us About Sex and Causes @taylorswift13 @Beyonce

Robin Dembroff, Issa Kohler-Hausmann, and Elise Sugarman, all of Yale University, are publishing What Taylor Swift and Beyonce Teach Us About Sex and Causes in the University of Pennsylvania Law Review. Here is the abstract.

In the consolidated cases Altitude Express v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC, the Supreme Court will decide whether or not Title VII prohibits discrimination on the basis of sexual orientation or gender identity. Although the parties disagree as to the appropriate formulation of a but-for test to determine whether or not there was a discriminatory outcome, all parties do agree to the use of such a test, which asks “whether the evidence shows ‘treatment of a person in a manner which but for that person’s sex would be different.’” City of Los Angeles, Dep’t. of Water and Power v. Manhart, 435 U.S. 702, 711 (1978). However, but-for tests confuse more than they clarify the inquiry; a discriminatory outcome cannot be explained by appeal to just a discrete characteristic of a particular person. Individuals are not discriminated against because of these characteristics per se. Rather, they are discriminated against because of the social meanings and expectations that attach to these characteristics. Beyoncé and Taylor Swift illustrate the difference between individual-level causation and social explanation in two separate songs, “If I Were a Boy” and “The Man.” The explanation for why the counterfactual ‘male’ Beyoncé and Swift are evaluated differently than their current ‘female’ versions does not lie in individual-level features considered apart from the social world, but in social-level roles and expectations associated with those features. For this reason, a social explanation test—one that asks whether the social meanings of sex characteristics, rather than the characteristics per se, explain the outcome in question—is more suitable for determining whether or not Title VII has been violated.

Download the article from SSRN at the link.

Call for Papers: Law, Technology and Humans Volume 2, Issue 2 @CrimeJusticeQUT

Law, Technology and Humans (ISSN 2652-4074) is an innovative open access, double blind reviewed journal that encourages research and scholarship on the human and humanity of law and technology. Sponsored by the Faculty of Law, Queensland University of Technology, Australia, Law, Technology and Humans is advised by a leading International Editorial Board. More about the journal, submission and accessing published articles is available at https://lthj.qut.edu.au/

Papers for consideration in volume 2(2) are invited. Volume 2(2) will be published in November 2020. Preference will be given to research and scholarship that:

· Challenges and critically examines the promises and perils of emergent technologies;

· Engages with the futures (and pasts) of law, technology and humans;

· Involves critical, philosophical or theoretically informed work on law and technology;

Uses humanities, social science or other approaches to study law and technology;

· Examines law and technology from non-Western locations and perspectives; or

· Locates law and technology in wider concerns about the Anthropocene, pandemics, climate change or relations with non-humans.

Interested contributors may discuss their research and scholarship with the General Editor, Professor Kieran Tranter: lawtechhum@qut.edu.au

Deadline for submissions for Volume 2, Issue 2: Monday 15 June 2020.  Submissions: https://lthj.qut.edu.au/about/submissions

Call For Papers: Special Issue--Law and the Janus-Faced Morality of Political Correctness @AnneWag26082949

CALL FOR A SPECIAL ISSUE 

Title of the Special Issue: Law and the Janus-faced Morality of Political Correctness

Concerning the possibility of juridically relevant responses, is the culture of the so-called political correctness a significant challenge? Although the affirmative answer seems obvious, the relevance to be taken in account is not, however, as linear as an approach in terms of public policies and their legisla- tive prescriptions apparently justifies. The problem at stake has not only to do with the (more or less extensively grasped) opportunity to sustain a new branch of Politics of Law, the distinctive feature of which would be an explicit progressive sensitivity and responsiveness to the pluralism of margin- alised identities and their narrative intersections (involving gender, race, sexual orientation, practical-cultural and geo- political provenience, health, mental and physical disability, as well as the relation to the colonial past and the status of victim). The problem concerns also the difficulties which this plurality (whilst favoring the fragmentation of perspectives, meanings and semantic values) effectively creates, when we consider Law’s claim for an integrating context — and with this, the vocation for comparability related to the status or dig- nity of sui juris. Last but not least, the problem concerns also some institutionalizing procedures and social effects which the culture of political correctness has indisputably imposed: the hypertrophy of duties and their concentration in apparently trivial strongholds (justifying unresolved tensions be- tween universal and parochial claims), the legitimation of a limitless responsibility (with public devastating pre-juridical judgements, destroying lives and careers), the unconditional celebration of differences as a (paradoxically) ethical homo- genizing reference (if not as an effective intolerance factor, generating new and subtle forms of censorship).

We can say that the discussion of this cluster of themes, in their juridical (dogmatic and meta-dogmatic) systematic implications, is still fundamentally to be done. Favoring a context open to multiple perspectives, without excluding (ra- ther expecting!) the intertwining of juridical and non-juridical approaches, the volume which we now propose - as a first number of the journal Undecidabilities and Law -- aims to be part of this indispensable reflexive path.

This first issue will be coordinated by José Manuel Aroso Linhares, Full Professor at the Faculty of Law of the University of Coimbra and Coordinator at the University of Coimbra Institute for Legal Research.

The articles on the proposed theme, to be published in the first issue, in 2020/2021, must be submitted until September 15th, to ulcj@ij.uc.pt.

Madison on The Republic of Letters and the Origins of Scientific Knowledge Commons @profmadison @pittlawfaculty

Michael J. Madison, University of Pittsburgh School of Law, is publishing The Republic of Letters and the Origins of Scientific Knowledge Commons in Governing Privacy as Commons (M. Sanfilippo, K.J. Strandburg, and B. M. Frischmann, eds., Cambridge University Press, 2020). Here is the abstract.

The knowledge commons framework, deployed here in a review of the early network of scientific communication known as the Republic of Letters, combines a historical sensibility regarding the character of scientific research and communications with a modern approach to analyzing institutions for knowledge governance. Distinctions and intersections between public purposes and privacy interests are highlighted. Lessons from revisiting the Republic of Letters as knowledge commons may be useful in advancing contemporary discussions of Open Science.

Download the essay from SSRN at the link.

Fletcher on Textualism's Gaze @MSULaw

Matthew L. M. Fletcher, Michigan State University College of Law, is publishing Textualism's Gaze in the Michigan Journal of Race and Law. Here is the abstract.

In recent years, perhaps because of the influence of Justice Scalia, the Supreme Court appears to place greater emphasis on texts than ever before. “We’re all textualists now,” Justice Kagan declared in 2015. But it is one thing to say a court will prioritize the text. It is another thing to choose which text is to be prioritized. Follow the textualism of constitutional interpretation and one sees judges prioritize the public understanding of the privileged white men in power at the time of the framing of the constitutional text. Follow the textualism of federal statutory interpretation and one sees judges prioritize the text exclusively, and if the judges engage with the legislative history of the statute they will engage with the public understanding of the legislators who enacted the law, again, largely privileged white men. The victory of textualism is not necessarily in the outcomes, but in significantly narrowing the scope of evidence available to interpret the text, in some cases to almost nothing but the bare words of the statute. Women, persons of color, and other marginalized persons and entities are almost never relevant to the textualist’s gaze. The narrow focus of the textualist’s gaze also warps how Indian law matters are decided. The judiciary rarely considers how the governments and people most affected by the text — Indian tribes and individual Indians — understand the meaning of the text. The judiciary, whether it intends to or not, considers Indians and tribes as extraneous to the interpretive process.

Download the article from SSRN at the link.

Avi-Yonah on Studying Tax History (Book Review of Studies in the History of Tax Law, vol. 9)) @UMichLaw

Reuven S. Avi-Yonah, University of Michigan Law School, has published Why Study Tax History? Here is the abstract.

This book review addresses the question why studying tax history is helpful to tax policy makers and practitioners.

Download the book review from SSRN at the link.

Asimow on American Vigilantism: Popular Justice and Popular Culture

Michael Asimow, Santa Clara Law School, is publishing American Vigilantism — Popular Justice and Popular Culture in Vigilante Justice in Society and Popular Culture: A Global Perspective. Here is the abstract.

This essay on American vigilantism is a chapter in the forthcoming book Vigilante Justice in Society and Popular Culture: A Global Perspective (Peter Robson & Ferdinando Spina, eds). It summarizes the rich history of American vigilantism, meaning that people administer popular justice by taking the law into their own hands. It focusses particularly on the San Francisco Vigilance Committees of 1851 and 1856 when large numbers of people who were frustrated by crime and corruption took over criminal law enforcement and hanged a number of desperados. The chapter also discusses San Francisco’s Chinatown Squad of 1879-1920, a group of police assigned the job of law enforcement in Chinatown by any means necessary. The chapter then turns to vigilantism in American movies. Given the centrality of vigilantism in American history and the hearty public approval it usually enjoys, it’s not surprising that a vast number of films concern this subject. The chapter concentrates on police vigilantism, exemplified by Dirty Harry and its sequels. Almost all of the Dirty Harry films were set in San Francisco (which connects the two halves of this chapter). These very successful movies transmitted a strong message of political conservatism. They depicted San Francisco as a pit of depravity and sexual permissiveness. Police vigilantism offends the criminal law compromise that gives government a monopoly on the use of force, but subject to a series of constraints that vigilantes ignore.

Download the essay from SSRN at the link.

Haack on The Art of Scientific Metaphors @MiamiLawSchool

Susan Haack, University of Miami School of Law, University of Miami Department of Philosophy, has published The Art of Scientific Metaphors at 75 Revista Portuguesa de Filosofia 2049 (2019). Here is the abstract.

Metaphor has no place in science, some claim; no, others argue, metaphor is crucial to science. Science is a rational enterprise with its own distinctive logical structure; no, it isn’t essentially different from literature, equally a kind of world-making. There is a distinctive metaphorical kind of meaning; no, metaphorical utterances have only their literal meanings, in which they are just plain false. Conspicuous by its absence is the reasonable middle ground Haack will be mapping here. Metaphor is useful, but not essential, to scientific work; metaphors don’t have a special kind of meaning, but they do have a special pragmatic role; scientific work and the writing of fiction do have important things in common, but there are also significant differences between the two enterprises. Once we understand how science works (§1), and then how metaphors work (§2), we can articulate the similarities, and differences, between scientific metaphors and literary ones (§3).

Download the article from SSRN at the link.

Buchanan and Dorf on A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualisms @NeilHBuchanan @dorfonlaw

Neil H. Buchanan, University of Florida College of Law, and Michael C. Dorf, Cornell Law School, are publishing A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism in volume 106 of the Cornell Law Review. Here is the abstract.

Two leading schools of thought among U.S. conservative legal elites — Law and Economics (L&E) and Originalism and Textualism (O&T) — both purport to use their formalist structures to guide analysis in ways that are objective, substantially determinate, and apolitical. Because they rest on very different theoretical underpinnings, L&E and O&T should only randomly reach similar policy or legal conclusions. After all, L&E implements neoclassical economics, a theory of utility maximization, whereas O&T is a theory of semantics. Yet as practiced, L&E and O&T rarely result in conflict. What explains the missing intra-conservative clash? Despite their respective pretenses to objectivity, determinacy, and political neutrality, neither theory delivers on its promises. Economic efficiency, the lynchpin of L&E, is incoherent because it relies on typically hidden but ultimately normative assumptions about preferences that would exist in an impossible world without law. O&T as it has been refined in response to devastating criticisms of earlier versions is indistinguishable from ostensibly less determinate rivals like Living Constitutionalism and purposivism. Accordingly, conservatives use L&E and O&T to obscure the role of normative priors, perhaps even from themselves. Liberals could use the same techniques for different results but heretofore generally have not, instead mostly settling for counterpunching against charges of result-orientation.

Download the article from SSRN at the link.

Northwestern University: Position Available in Legal Studies and American Studies Program

Northwestern University is hiring an Assistant Professor of Instruction to be appointed jointly in the Legal Studies program and the American Studies program. This is a full-time, benefits eligible position with a path to promotion. The initial contract is for two years.

The Assistant Professor of Instruction will offer six courses per year (generally two per quarter) on topics pertaining to Legal Studies and American Studies. The successful candidate will teach the American Studies thesis seminar and the Legal Studies thesis seminar in rotation and will teach an introductory course in Law & Society. Other courses offered would be a mix of seminars and lectures in the area of the successful candidate’s interests.

We are seeking a scholar whose work is rooted in both Legal Studies and American Studies; we encourage candidates with a PhD in Legal Studies, American Studies, or a related humanities or social science discipline to apply. A J.D. is preferred but not required. We are particularly interested in candidates whose work addresses racial and/or gender inequality and engages crime, policing, and/or incarceration, but will consider other areas of focus as well.

This is a nine-month faculty appointment, and applicant must have a Ph.D. in hand by September 1, 2020. Applicants should submit a cover letter describing their research interests and teaching experience, a current CV, and the names of two references. (Short-listed candidates will be asked to provide teaching evaluations. References of short-listed candidates will be contacted to provide letters of recommendation.) Applications received by April 24, 2020 will receive full consideration; interviews with finalists will be conducted remotely. The successful applicant will begin Fall 2020.

For further information about this position please contact Ann Kelchner at a-kelchner@northwestern.edu or 847-467-2207. An application link can be found here: https://www.legalstudies.northwestern.edu/people/apoi2020.html

Northwestern University is an equal opportunity, affirmative action employer and does not discriminate against qualified individuals on the basis of race, color, religion, national origin, sex, pregnancy, sexual orientation, gender identity, gender expression, parental status, marital status, age, disability, citizenship status, veteran status, genetic information, or any other protected class. Individuals from all diverse backgrounds are encouraged to apply. Hiring is contingent upon eligibility to work in the United States. For more information, please see the University’s Policy on Discrimination and Harassment at https://www.northwestern.edu/equity/policies-procedures/policies/policy-discrimination-harassment.html.

Wolitz on Alexander Bickel and the Demise of Legal Process Jurisprudence @UTKLaw

David Wolitz, University of Tennessee College of Law, is publishing Alexander Bickel and the Demise of Legal Process Jurisprudence in the Cornell Journal of Law and Public Policy. Here is the abstract.

This article provides an intellectual history of the displacement of Legal Process theory as the predominant jurisprudential approach in American law. The Legal Process approach to law embedded a strict norm of principled adjudication within a larger pragmatic theory of law. Alexander Bickel understood that the Legal Process theory of adjudication clashed with its commitment to pragmatic governance. The country, Bickel believed, could tolerate only so much principled decisionmaking — “No good society can be unprincipled, and no viable society can be principle-ridden.” Bickel convinced himself that the judiciary could promote pragmatic governance while maintaining its own integrity as an institution of principle through the implementation of various justiciability and abstention doctrines, the so-called “passive virtues.” Prudent invocation of the passive virtues, Bickel argued, would keep the core judicial function — rendering decisions on the merits — free from merely expedient considerations while granting the political branches the space and time they need to work out pragmatic compromises. But once Bickel starkly drew out the tension between principled decisionmaking and pragmatic governance, the Legal Process consensus began to fracture. Why allow for unprincipled judicial decisionmaking with respect to certain justiciability and abstention questions, but not in other areas of doctrine? As Gerald Gunther put it, Bickel was effectively advocating “100% principle, 80% of the time.” Bickel’s passive virtues solution found no favor among his Legal Process peers and drew even greater criticism from Warren Court-defending legal liberals. Bickel’s penetrating insights into the tensions between principled decisionmaking and pragmatic governance had exposed an always latent divide in Legal Process thought, one Bickel himself could not successfully reconcile. After Bickel, normative jurisprudence has become ever more polarized between consequentialist-pragmatic approaches on the one hand and principled-rationalist approaches on the other.

Download the article from SSRN at the link.

Millemann, Rauh, and Bowle on Teaching Professional Responsibility Through Theater @MikeMillemann @robertbowiejr

Michael A. Millemann, University of Maryland School of Law, Elliott Rauh, and Robert Bowle, Jr., are publishing Teaching Professional Responsibility Through Theater in the Hastings Race and Poverty Law Journal (2020). Here is the abstract.

This article is about ethics-focused law school courses, co-taught with a theater director, in which students wrote, produced and performed in plays. The plays were about four men who, separately, were wrongfully convicted, spent decades in prison, and finally were released and exonerated, formally (two) or informally (two). The common themes in these miscarriages of justice were that 1) unethical conduct of prosecutors (especially failures to disclose exculpatory evidence) and of defense counsel (especially incompetent representation) undermined the Rule of Law and produced wrongful convictions, and 2) conversely, that the ethical conduct of post-conviction lawyers and law students helped to partially vindicate the rights of those wrongfully convicted, but could not provide any real remedy for decades of wrongfully deprived freedom. In sharp contrast, the worst and best of the legal profession were on display. We argue that reproducing these extraordinary stories as plays, with students playing the roles of prosecutors, defense counsel, defendants (with not only wrongful convictions but also decades of wrongful incarceration), family members, crime victims, and people in the affected communities, is a powerful way to teach both law students and public audiences about the direct connections between legal ethics rules and the Rule of Law. It teaches as well the ripple effects on many people and communities, not just the parties, of unethical lawyer behavior. The students learned about legal ethics through in depth analysis of the actual case records, from pretrial motions through trial transcripts and appellate briefs (in the nature of ethics autopsies), and from the personal presentations in class by the exonerated men and their families. As important, the students learned about professional responsibility and irresponsibilities, from their immersion in the roles of the lawyers and “secondary” characters, like the affected families of the four men and the crime victims and their communities. The students also learned about competence, including how to work collaboratively to develop and to tell stories, to appreciate cultural differences, to examine witnesses, and to deal with performance anxiety. Because the men, all African Americans, were tried in 1968 (two), 1975, and 1983, the plays served as important points of comparison of criminal justice — criminal law and procedure — then and now. In this respect, the courses also were virtual laboratories in which to explore legal realism and critical legal theory, especially race theory; the true stories were powerful critiques of the romanticized, theoretical model of due process that underlies the formal criminal justice curricula.

Download the article from SSRN at the link.

Voigt on Minding the Gap: Analyzing the Divergence Between Constitutional Text and Constitutional Reality @CESifo @ILEHamburg

Stefan Voigt, University of Hamburg, Institute of Law & Economics; CESifo (Center for Economic Studies and Ifo Institute), has published Mind the Gap – Analyzing the Divergence Between Constitutional Text and Constitutional Reality Here is the abstract.

Constitutional Economics – the analysis of constitutions drawing on the economic approach – has made important progress over the last two decades. The factors determining whether a constitution is complied with, however, have received only little attention. This is surprising, as a huge gap between constitutional text and constitutional reality seems to exist in many countries. In this paper, this gap is referred as the de jure/de facto gap. The paper discusses ways in which the gap can be researched systematically and surveys the scant available literature that has tried to do so thus far.

Download the article from SSRN at the link.

Lemley on Chief Justice Webster @marklemley

Mark A. Lemley, Stanford Law School, has published Chief Justice Webster. Here is the abstract.

The Supreme Court has a love affair with the dictionary. Half of its decisions in the 2018 term cited a dictionary, often as the primary or exclusive means of defining a term in the statute. The Solicitor General may long have been the “tenth Justice,” but in the 21st century the Chief Justice of the Supreme Court may as well be, not John Roberts, but Noah Webster. The Court’s obsession with dictionaries as the arbiter of statutory meaning is a recent phenomenon. A review of cases from 50 or 100 years ago reveals no such focus. The Court’s increased use of dictionaries may stem from the idea – very much in vogue today in some quarters – that courts are not to make law but simply “call balls and strikes.” Looking up a term in the dictionary can seem like the height of judicial restraint. A court that does so isn’t consciously or subconsciously imposing its own ideology on a statute; it’s just turning to a trusted neutral source. That impression is misleading. Dictionaries are not the neutral, commonly-accepted panacea the Court seems to suppose. In this Article, I discuss a historical test case for the use of dictionaries to interpret legal documents. In the early 2000s, patent law flirted with the use of dictionaries to define the terms of patent claims, a process akin to statutory interpretation. The Federal Circuit (the national patent court) unanimously abandoned that experiment after only three years, for a simple reason: it was a disaster. The lessons of patent law’s brief flirtation with dictionary primacy in claim construction suggest that it’s a bad idea to turn to dictionaries to interpret statutes. That’s true for several reasons. Dictionaries aren’t designed to give what courts want: a single definitive meaning (or complex of considerations) that define what the law is. Dictionaries deliberately define terms expansively and in self-contradictory ways, seeking to capture all possible meanings of a term, not to pick among them. They don’t take legal nuance into account, and they can’t incorporate a background pattern of behavior or centuries of precedent against which Congress may have adopted a term. The use of legislative history is often attacked as a cover for judicial activism, but in fact it is the dictionary that provides the easiest cover for activist decisions that depart from Congressional intent and precedent. Dictionaries can literally justify any plausible meaning of a term. Courts that turn to them are doing exactly what they purport to disdain: picking the meaning of a statute based on their own personal preferences.

Download the article from SSRN at the link.

Nicoletti on The Rise and Fall of Transcendent Constitutionalism in the Civil War Era @UVALaw

Cynthia Nicoletti, University of Virginia School of Law, is publishing The Rise and Fall of Transcendent Constitutionalism in the Civil War Era in volume 106 of the West Virginia Law Review (2020). Here is the abstract.

In the aftermath of the Civil War, American intellectuals saw the war itself as a force of transcendent lawmaking. They viewed it as a historical catalyst that had forged the United States into a nation. In writing the Fourteenth Amendment, Congress sought to translate the war’s nationalistic spirit into text. But in the eyes of many contemporary thinkers, the war’s centripetal energy was a double-edged sword. It could create a nation out of disparate parts, but it was also potentially uncontainable, divorced from the regular lawmaking process and beyond the control of human actors. As a result, many American jurists feared that the war could result in the complete destruction of American federalism and the erection of a system based on unitary sovereignty. After the Civil War, the Supreme Court significantly narrowed the revolutionary potential of the Fourteenth Amendment, as generations of legal scholars have noted. What scholars have failed to appreciate, however, is exactly what the Court meant to do in its controversial opinion in the Slaughterhouse Cases. In Slaughterhouse and other post-war cases, the Court sought to provide a counterforce against the forces of transcendent lawmaking, intending to preserve the fundamental distinction between state and federal authority in the United States, which the justices feared might be entirely elided otherwise. To many Americans living in the aftermath of the Civil War, the Supreme Court’s decision to quash the radical potential of transcendent constitutionalism represented a welcome return to the ordinary operation of law in the United States.

Download the article from SSRN at the link.

Dane on Law Clerks: A Jurisprudential Lens @perrydane

Perry Dane, Rutgers, the State University of New Jersey, Rutgers Law School, is publishing Law Clerks: A Jurisprudential Lens in the George Washington Law Review Arguendo, Forthcoming. Here is the abstract.

American law clerks often draft opinions for their judges. Yet American legal culture is remarkably diffident about that simple fact. The role that law clerks play in drafting opinions is not a secret. Far from it. But it might qualify to be somewhere in the outer vicinity of being an “open secret.” And it continues to be controversial. This essay explores a set of questions about opinion-writing by law clerks. The first major question is meta-normative. The goal is not to decide whether the practice of law clerks drafting opinions is proper or improper, but why it is occluded and controversial in the first place. Specifically, why is there so much more diffidence and doubt about the role of law clerks than about the work of aides in the other branches of government such as Presidential speechwriters and Congressional staff? The second question is hermeneutic. Should the fact that judges might not always draft their own opinions lead us to read and interpret those opinions differently, especially when we draw conclusions about the “jurisprudence” of this or that judge or Justice or the way that legal doctrines often seem to be shaped by longstanding, dialectical, debates among judges or Justices? The discussion of both questions tries to shed some light on broader constitutional and jurisprudential questions, including the distinctly metonymic relationship between the “President” and the rest of the Executive Branch and the complicated connections between judicial reasoning, the exercise of judicial authority, and the identity of the individual judge. This essay was written as part of symposium marking the hundredth anniversary of the formal institution of Supreme Court law clerks.

Download the article from SSRN at the link.

Lindgren on The Religious Beliefs, Practices, and Experiences of Law Professors @NorthwesternLaw

James Lindgren, Northwestern University School of Law, has published The Religious Beliefs, Practices, and Experiences of Law Professors at 15 University of St. Thomas Law Journal 342 (2019). Here is the abstract.

In the 1990s I surveyed law faculties at the top one hundred law schools, collecting data on professors’ religious affiliations. [Measuring Diversity: Law Faculties in 1997 and 2013, 39 Harv. J.L. & Pub. Pol’y 89 (2016), https://ssrn.com/abstract=2581675] I found that Christians were represented at only about half their percentages in the larger population, while Jewish and nonreligious law professors were substantially overrepresented. Yet knowing whether a professor is, for example, Christian or Jewish only scratches the surface. For the general public, the General Social Survey and the American National Election Studies have long asked about belief in God and church attendance, but these questions had never before been asked of law professors. This article reports the results of a 2017 survey of about 500 law professors. The study first updates the 1997 study on religious preference and then moves on to explore the issues of belief in God, church attendance, and religiously motivated discrimination. Law faculties are substantially less devout than mere reports of religious preferences would indicate. Though religious belief in the general population tends to fall with increased education, that phenomenon does not explain or account for the observed magnitude of the differences. For example, while 24 percent of law professors say that they “don’t believe in God” and another 18 percent “don’t know whether God exists,” among those in the general population who have graduate and professional degrees, only 5.4 percent do not believe in God and 10.4 percent do not know whether God exists. While in this study higher percentages of Christians report religious discrimination than the non-religious, so do higher percentages of Jews and those who embrace “other religions.” As for their schools preferring non-Christians over Christians, Christians are much more likely to report this behavior than Jews or the non-religious, but the percentages reporting having witnessed this discriminatory preference are still relatively small.

Download the article from SSRN at the link.

Bandes on Remorse and Judging @BandesSusan

Susan A. Bandes, DePaul University College of Law, is publishing Remorse and Judging in Remorse and Judging, in Remorse in Criminal Justice: Multi-Disciplinary Perspectives (Routledge, 2020). Here is the abstract.

This chapter focuses on the judicial evaluation of remorse. It is an article of faith that judges can and should evaluate remorse when determining sentence. Although the dynamics of this evaluation are understudied, the existing literature helps illuminate the assumptions judges employ and the dangers and limitations of those assumptions. Judges rely on evaluation of demeanor and body language and on allocution, and their interpretations are rife with implicit assumptions and unstated rules about what counts as remorse. Many of these assumptions (for example the link between remorse and decreased recidivism and the possibility of assessing remorse from demeanor) lack evidentiary support. These assumptions and implicit rules vary widely from judge to judge. They often fail to account for the influence of race, ethnicity, gender and social class on the expression and evaluation of remorse. Moreover, they put a premium on the willingness to plead guilty, and to do so at the earliest possible opportunity. The chapter draws upon the few existing empirical studies on the topic and identifies areas that require further study.

Download the essay from SSRN at the link.

Colella on Looking Back at the Allen Ginsberg Obscenity Trial 62 Years Later @HaubLawatPace

Frank G. Colella, Pace University, has published Looking Back at the Allen Ginsberg Obscenity Trial 62 Years Later at 262 N.Y.L.J. no. 6 (Aug. 29, 2019). It is also forthcoming as a Pace University Research Paper. Here is the abstract.

Sixty-two years ago this month, a decade before 1967's Summer of Love, San Francisco hosted the obscenity trial of Allen Ginsberg's epic poem, Howl, during the summer of 1957. The 1950s, and well into the 1960s, witnessed no shortage of censorship battles over the arts-even comic books. This particular battle focused on a small chapbook of obscure poetry, Howl and Other Poems, has reached quasi-mythological status in the history of the Beat Generation. The nationwide publicity generated by the trial single-handedly dragged Ginsberg and Howl into the public consciousness. Today's global recognition and critical acclaim for Howl aside, that the trial itself still resonates in the legal community is no small accomplishment because the decision was never officially published. Moreover, it is unusual in and of itself for a municipal court trial judge to author a written opinion, which would be binding only upon those individuals within that municipality. As a consequence, People v. Ferlinghetti was never cited as precedent, or otherwise, in any subsequent legal proceeding.

Download the essay from SSRN at the link.

Tillman on the 1792 Madison-to-Pendleton Letter: A Time for Reconsideration, Reflection, and Response? @SethBTillman

Seth Barrett Tillman, National University of Ireland, Maynooth, Faculty of Law, has published The 1792 Madison-to-Pendleton Letter: A Time for Reconsideration, Reflection, and Response? Here is the abstract.

In a 1995 Stanford Law Review article, Professors Akhil Reed and Vikram David Amar argued that the U.S. Constitution’s Succession Clause and its “officer”-language does not permit legislative officer succession. They concluded that the nation’s first succession act—passed by the Second Congress—which put the Senate’s and House’s presiding officers in the line of presidential succession—was unconstitutional. The modern presidential succession statute also puts legislative officers in the line of succession, and so the Amars concluded that it too was unconstitutional. In reaching their conclusion, they opined on the Succession Clause’s history, text, purpose, etc. The largest part of their argument was of a more intuitive variety: i.e., argument based on so-called “constitutional structural.” The Amars supported their intuition, in substantial part, by claiming James Madison shared their intuition. Or, to put it more precisely, they renewed an argument which, according to the Amars, was first put forward by James Madison in a letter to Edmund Pendleton (hereinafter the “Madison-to-Pendleton Letter”), and then they claimed Madison as high authority for the position they put forward. My object in this short paper is limited: it is to show why the Amars were wrong to rely on James Madison. The argument they put forward is their intuition, and not Madison’s. The Amars’ argument may be right on the merits (i.e., legislative officer is unconstitutional) and it may be wrong (i.e., the first succession act and its modern successor are both constitutional)—but the Amars’ claiming the mantle of Madison in support of their position is and always was largely historical error. The intellectual stakes here are not only reasonably high, but also peculiarly timely. The meaning of the Constitution’s Succession Clause and its “officer”-language is always two heartbeats away from contemporary relevance. That issue is always of at least some concern, even absent hype and the more idiosyncratic concerns of cloistered academics. Today, the presidential succession issue is relevant not merely because we are two heartbeats away, but also because we are one impeachment and one heartbeat away from applying the 1947 Presidential Succession Act—which puts the two presiding legislative officers, i.e., the Speaker of the House and the Senate President Pro Tempore (“SPPT”), in the line of succession. Finally, the Amars’ article and the Madison-to-Pendleton Letter are the key (modern) article and the key (premodern) historical evidence discussed in the academic debate over the Constitution’s “office”-language. That debate no longer resides exclusively in the halls of the academy—it has moved into the federal courts which are now litigating civil claims brought against the President under the Foreign Emoluments Clause. That latter clause applies to “Person[s] holding any Office of Profit or Trust under [the United States].” How we resolve or should resolve the issue of whether the President holds an office of profit or trust under the United States will depend, in part, on the rightness (or wrongness) of the Amars’ analysis, the meaning of the Succession Clause and its “officer”-language, and the meaning of the Madison-to-Pendleton Letter. Finally, I add that over ten years ago, I hypothesized that: “There is some reason to believe that [in the Madison-to-Pendleton Letter] all Madison was doing [was] reporting prior debate. Viz., each of ‘Madison’s’ four arguments in his letter to Pendleton had already been expressed on the floor of the House by speakers other than Madison in prior debate.” Today, I intend to make that claim good.

Download the article from SSRN at the link.

IUPUI Law: Visiting Assistant Professor of Law Position in Legal Communication and Analysis @IUMcKinney

Job Announcement

Visiting Assistant Professor in Legal Communication and Analysis

Indiana University Robert H. McKinney School of Law

Indiana University Robert H. McKinney School of Law invites entry-level and experienced applicants for a visiting professorship in the school’s nationally ranked Legal Communication and Analysis Program.

The visitor position is a full-time position. The visitor is expected to teach up to 40 first-year students in Legal Communication and Analysis, which is a year-long course. The course is a graded, two-credit course each semester. Responsibilities include creating course materials, teaching in the classroom and in one-on-one student conferences, reviewing outlines and drafts, assessing papers, and providing detailed feedback to students.

The visitor position is ideal for one seeking entry into the legal academy. An entry-level visitor would have the opportunity to work with and learn from IU McKinney’s Legal Communication and Analysis faculty—Cynthia Adams, Brad Desnoyer, Jim Dimitri, Allison Martin, and Joel Schumm—who have decades of experience as nationally recognized teachers and scholars. The position would be a ten-month appointment for the 2020–21 academic year, with the possibility for reappointment for the 2021–22 academic year. The visitor would be given the opportunity to attend legal writing conferences and to write scholarship in the legal writing field. The visitor would not be required to serve on faculty committees or to teach during the summer.

The compensation package includes an entry-level salary of $70,000, a generous professional development fund that may be used to travel to conferences, a generous research assistant fund, and university benefits.

The law school is strongly committed to achieving excellence through intellectual diversity and strongly encourages applications from persons of color, women, persons with disabilities, the LGBT community, veterans, and members of other groups that are under-represented on university faculties. The law school is an Equal Opportunity/Affirmative Action Institution. For more information about the school, visit http://mckinneylaw.iu.edu/.

Applicants must demonstrate a strong academic record and strong writing skills. Ideal candidates will have teaching experience and experience as a judicial clerk or a practitioner.

To apply, please send a cover letter, a curriculum vitae, three references, a writing sample, and teaching evaluations (if available) to Professor Jim Dimitri, Indiana University Robert H. McKinney School of Law, 530 West New York Street, Indianapolis, Indiana 46202-3225; jddimitr@iupui.edu. Individuals who require a reasonable accommodation to participate in the application process must notify Professor Dimitri a reasonable time in advance.

Applications will be reviewed on a rolling basis but must be received no later than March 25, 2020.