Plagiarism Today discusses the issue of plagiarism as it appears in pop culture on "The Gathering," an episode of the series Criminal Minds. Read the post here.
Love it. Samuel Brexit: Waiting For Article 50. Not Endgame Yet.
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We are pleased to announce that The University of Western Australia Law School will host the Art in Law in Art Conference on 4 & 5 July 2017. We look forward to welcoming you, and are now calling for papers for this conference. Please click Here for the call for papers.
The Art in Law in Art Conference will be held in the beautiful Perth Cultural Precinct at the Art Gallery of Western Australia, Perth.
Art in Law in Art is an interdisciplinary conference investigating the broad themes of how law sees visual art, and how visual art sees law. The Conference will be an exciting mix of different perspectives from international experts on the art-law nexus, as scholars, practitioners and artists come together and exchange ideas.
The Conference has two main themes:
1. Art in Law: law touches upon a range of legal topics and areas, and this theme explores the full breadth and depth of issues.2. Law in Art: this theme explores how law is perceived and represented by artists and theorists. This theme explores the broad question of how the law is perceived in the theory and practice of visual art.Confirmed speaker: Carey Young, visual artist.
Please visit the conference website at http://www.law.uwa.edu.au/research/art-in-law-2017 for updated information about the conference, and to register your interest.
We would very much appreciate your help in bringing this conference to the attention of your colleagues, and anyone who might be interested in attending, whether as a paper presenter or otherwise.
If you require further information, please contact the conference convenor, Jani McCutcheon, at email@example.com
Thank you and we look forward to seeing you in Perth in July 2017.
The payments to British authors by American publishers during the mid-19th century, when the works of British authors lacked American copyright protection, has been presented as evidence that copyright might have little benefit to authors. This paper reexamines the evidence that has been used to support this claim and then presents previously unexamined information on payments to British authors by leading American publishers of the period. The main finding is that payments to British authors were minimal or non-existent prior to the establishment of a no-compete agreement among leading American publishers. Even after implementation of this agreement, many British authors were not paid, and those who were paid received considerably less than they would have received under copyright. Because antitrust disallows such agreements, this 19th natural experiment indicates that the removal of copyright in modern economies would likely eviscerate payments to authors.The full article is not available for download.
In academia, a subset of faculty has tenure, which allows its beneficiaries to retain their professorships without mandatory retirement and with only limited grounds for revocation. Proponents of tenure argue it protects intellectual freedom and encourages investment in human capital. Detractors contend it discourages effort and distorts the academic labor market. This article develops a framework for examining academic tenure in the context of U.S. law schools. We construct a unique data set of tenured U.S. law professors who began their careers between 1993 through 2002, and follow their employment and scholarship for the first 10 years of their career. Across all journal publications, tenured faculty publish more frequently, are cited with roughly the same frequency, and place in comparable caliber of journal. These productivity gains, however, largely disappear when excluding solicited publications. These results suggest that legal academics continue to produce after tenure, but channel more of their efforts toward less competitive outlets.The full text is not available from SSRN.
How did dual citizenship evolve from traitorous to trendy? Dual nationality was once considered an offense against nature, an abomination on the order of bigamy. It was the stuff of titanic battles between the United States and European sovereigns. As those conflicts dissipated, dual citizenship continued to be the object of loyalty and misplaced security concerns. Only recently has the status largely shed the opprobrium to which it was once attached. The first monograph on the status in several generations, AT HOME IN TWO COUNTRIES charts the transformed understanding of dual citizenship from strong disfavor to general acceptance. Today, the state lacks both the capacity and the incentive to suppress the status as citizenship becomes more like other forms of membership. Dual citizenship allows many to formalize sentimental attachments. For others, it’s a new way to game the international system. The introduction opens with the author’s own experience acquiring dual citizenship. It then outlines the book’s consideration of dual citizenship in historical and contemporary perspective.Download the introduction from SSRN at the link.
Thomas Healy’s The Great Dissent re-treads the familiar story of US Supreme Court Justice Holmes’s First Amendment conversion between March and November 1919, when he launched his marketplace of ideas theory and strong-form version of the clear and present danger doctrine. Healy’s book demonstrates that fresh perspectives on this vital and ever-intriguing change of mind or transformation on Holmes’s part remain possible. The review offers its own perspective by highlighting the process of “reverse mentoring” which took place, in which the older jurist was mentored on free speech issues by the emerging thought leaders of the day – Laski, Frankfurter, Chafee – and showing how Justice Holmes’s landmark dissent in Abrams was nonetheless and indisputably a product of his own jurisprudential ingenuity.
Legal intellectual history, I suggest in this Paper, is the street sweeper in the parade of law’s history and its use of history. Lawyers and legal academics want great, important figures, cases, and theories with and against which they can do battle. The student-edited law reviews prefer bold, clear claims that explain why one answer to an historical question presented will bring justice, while a competing answer is manifestly unjust; why one past approach lacks principle or created worse consequences; or how one theory or another can explain all manner of thorny legal issues which bedevils academics and practitioners. Viewing an appellate decision, legislative enactment, or academic debate, the legal academic must travel back in time to set matters straight, redeeming the past to make certain that the future avoids its confused and unfortunate fate. Intellectual historians trail behind the legal academy’s heavy-breathing and magnificent use of the past, cleaning up its waste by providing context, complicating narratives, and replacing bright trumpet horns with muted tones, vivid colors with shades of gray. Well after the parade has dispersed and marchers have moved on, and often before the next “Big Issue” causes the celebrants to line back up, intellectual history can bring complexity and context back in to the frame. I illustrate this dynamic first by describing the use of legal realism in Brian Tamanaha’s recent monograph on what he describes as the formalist-realist divide in legal theories about judging and about legal doctrine, and in the debate over that divide. In Part II, I describe a relatively minor figure in the pantheon of legal realists (as that pantheon currently exists), Thurman Arnold, and his realist critique of the criminal law and procedure.Download the article from SSRN at the link.
English Abstract: The profound change in thinking about the law experienced by European jurists at the turning of the 20th century is well known: they renewed their methods, also through the influence of German legal thought and the impact of new social sciences. Focusing on the Italian experience, the research intends to investigate how this innovative change was linked to the teaching of law. Most certainly, new courses were introduced. Concerning the contents of the teachings, another point to investigate are the connections with the legal thought circulating at a transnational level in those times.
Spanish Abstract: El cambio profundo en la manera en la que se pensaba el derecho que experimentaron los juristas europeos a principios del siglo XX es bien conocido: renovaron sus métodos, en parte bajo la influencia del pensamiento jurídico alemán y el impacto de nuevas ciencias sociales. Nuestra investigación, que se centra en la experiencia italiana busca determinar el modo en que aquella innovación estuvo vinculada a la enseñanza del derecho. Seguramente se introdujeron nuevas asignaturas. En cuanto al contenido de aquella enseñanza, otro aspecto a investigar consiste en su conexión con el pensamiento jurídico que circulaba en aquel entonces a nivel transnacional.
This paper responds to an ongoing discussion initiated by Duncan Kennedy concerning the identity of "contemporary legal thought." This contribution argues that that category is so hard to define or exemplify because the historical conditions for its possibility are lacking. The reason that there is no such thing as contemporary legal thought is the destructive contention of theories in the 1970s-90s, and in particular the contending options that caused the initial failure of critical legal studies. If this is true, no engagement with “contemporary legal thought” can fail to face the harsh truth that it simply may not exist, and hence that our main task is not to identify it but to bring it about.Download the essay from SSRN at the link.
We construct our conceptual world using metaphors. Yet sometimes our concepts are flawed and our metaphors do damage. This Article examines a set of metaphors currently doing damage in law – those for legal research. It shows that while technology has radically altered the material world of legal research, our dominant metaphors have remained static, and thus, become outmoded. Conceptualizing today’s reality using old metaphors fails; it is like pouring new wine in old wineskins. To address this problem, this Article first surfaces unwarranted assumptions buried in the metaphors we use when talking about research and then proposes new metaphors to better serve theory and practice. It concludes by examining how this investigation into “finding law” implicates primary jurisprudential concepts of law.
Practice trumped theory on the precise status of newly independent states when Americans drafted and ratified early state constitutional documents. General agreement appears to exist that the Continental Congress was empowered to conduct the Revolution and make foreign alliances, while the states were empowered to regulate internal police matters. State politicians during the time between the drafting of the Declaration of Independence and the ratification of the federal Constitution, however, consistently undertheorized the basis of the distinction between internal and external affairs, at least when framing official state constitutional documents. 1770s and 1780s pamphleteers and essayists frequently expounded on the proper relationships between the periphery and core, but those responsible for early state constitutions did not adopt any available understanding of federalism in a uniform or clear matter. Broad statements on theory were either ambiguous or conflicting. Some provisions in early state constitutions indicated that the United States was becoming, or was, a confederated union composed of independent, sovereign states. Others evince a more consolidated regime. The best evidence suggests that under the pressure of time and circumstances, those responsible for state constitutions felt little need to reach agreement or even think deeply about the theoretical foundations of the federal-state relationship when they agreed on the immediate practical division of labor before them. The state constitutional response, or lack thereof, to the ratification of the federal Constitution suggests that Americans reached no greater consensus on the location of ultimate sovereignty in 1788, when the Constitution was ratified, or in 1791, when all states ratified the Constitution.Download the article from SSRN at the link.
“Collateral Thoughts” is part of a special issue edited by Professor James Allan, who invited and challenged a group of scholars to select and discuss a favourite law review article. I chose “The Charter Dialogue Between Courts and Legislatures” because it is the most influential article to date in the Charter of Rights and Freedom’s relatively short history (since 1982). I call this reflection “Collateral Thoughts” because my interest is less in the merits of dialogue theory than in its remarkable impact, at home in Canada as well as abroad, in the broader reaches of comparative constitutionalism and constitutional theory. In the main, this reflection asks how and why “dialogue” became a runaway concept, and considers what that tells us about the nature and formation of constitutional theory. It shows that Dialogue was fundamentally connected to Canada’s catharsis of rights, in 1982 and in the early years of Charter interpretation. That is why its claim that the legitimacy battles which define American judicial review are irrelevant – because Canada’s system of rights protection is based on “dialogue” – was so explosive. Not only did this article command attention in Canada, the concept of dialogue would be “reified”, castigated and deeply analyzed by scholars and Commonwealth jurisdictions who wondered whether weaker or weak-form judicial review was institutionally possible. Much like other theories in the US constitutional tradition, Dialogue responded to controversy by theorizing and attempting to legitimize review. Despite failing in its objective to eliminate legitimacy concerns about review, Dialogue catalyzed a national and international movement in constitutional thought.Download the essay from SSRN at the link.
James Madison thought and wrote a great deal about issues of religious liberty. Some of his stances are well-known, while others ought to be better known. His theory of religious liberty resists easy categorization by the partisans in our current debates over church and state. While Madison himself claimed to stand for “total separation” of religion and government, his stances differed in important ways from those of many of today’s “strict separationists.” At the same time, he firmly rejected state attempts to support religious truths and practices — even broad “Judeo-Christian” ones — as well as state attempts to acknowledge the privileged place of religion in our history and culture. This invited essay, written for the 2015 Faulkner Law Review Symposium on “The Meaning of Religious Liberty in the Anglo-American Tradition,” summarizes and documents Madison’s understanding of religious liberty, with specific reference to concepts such as religious toleration, natural rights of conscience, religious exemptions in law, and establishments of religion. Along the way, the essay draws attention to points of agreement and disagreement between Madison and John Locke.Download the essay from SSRN at the link.
This paper aims to provide an overview of surveillance theories and concepts that can help to understand and debate surveillance in its many forms. As scholars from an increasingly wide range of disciplines are discussing surveillance, this literature review can offer much-needed common ground for the debate. We structure surveillance theory in three roughly chronological-thematic phases. The first two conceptualise surveillance through comprehensive theoretical frameworks, which are elaborated in the third phase. The first phase, featuring Bentham and Foucault, offers architectural theories of surveillance, where surveillance is often physical and spatial, involving centralised mechanisms of watching over subjects. Panoptic structures function as architectures of power, not only directly but also through (self-)disciplining of the watched subjects. The second phase offers infrastructural theories of surveillance, where surveillance is networked and relies primarily on digital rather than physical technologies. It involves distributed forms of watching over people, with increasing distance to the watched and often dealing with data doubles rather than physical persons. Deleuze, Haggerty and Ericson, and Zuboff develop different theoretical frameworks than panopticism to conceptualise the power play involved in networked surveillance. The third phase of scholarship refines, combines, or extends the main conceptual frameworks developed earlier. Surveillance theory branches out to conceptualise surveillance through concepts such as dataveillance, access control, social sorting, peer-to-peer surveillance, and resistance. With the datafication of society, surveillance combines the physical with the digital, government with corporate surveillance, and top-down with self-surveillance.
This article proposes a different way to think about legal reasoning that focuses on its psychological effects rather than its ability to identify legal outcomes. Legal doctrine, such as statutes and case law, is generally thought to contribute to legal decision making only to the extent that it determines legal outcomes, or at least narrows the range of justifiable outcomes. Yet in many cases that come to court, the available authorities are acknowledged to be indeterminate. Over the course of decades, various theories and methods have been proposed to justify judges’ continued reliance on doctrine. Most of this literature focuses on doctrine’s capacity to direct substantive outcomes and ignores other benefits that doctrinal reasoning might provide. Recently, however, some empirical studies have begun to consider the potential cognitive effects of judges’ engagement with doctrine. This article offers another model for how doctrine might influence judges’ perceptions. Drawing on performance theory and recent psychological studies of readers, I argue that judges’ disciplined engagement with formal legal doctrine might have self-disrupting effects akin to those performers experience when they deliberately alter their physical and vocal habits. Investigating doctrine’s disruptive potential might help explain why judges continue to reason doctrinally despite doctrinal indeterminacy. The model of self-disruptive doctrine cannot explain how judges ultimately resolve, or should resolve, legal questions. But disruptive doctrinal effects would be valuable in and of themselves as a way for legal decision makers to set aside their usual subjective biases.Download the article from SSRN at the link.
French Abstract: Ce texte examine les affirmations européennes de souveraineté sur le territoire aujourd’hui connu sous le nom de Canada en établissant une distinction entre les notions de souveraineté de facto et de jure. La souveraineté de fait requiert l’exercice d’une autorité effective sur un territoire, tandis que la souveraineté de jure est un concept abstrait et relatif, puisqu’il dépend en fait du choix d’appliquer un système juridique plutôt qu'un autre. Ce choix est en essence normatif, car il fait intervenir une question de légitimité. À la lumière de ce qui précède, l’auteur conclut que bien que le Canada possède aujourd’hui la souveraineté de fait sur son territoire, la souveraineté de jure qu’il prétend détenir affiche en réalité un déficit de légitimité, dans la mesure où celle-ci n’est pas reconnue au sein des systèmes juridiques autochtones.
English Abstract: This paper examines European assertions of sovereignty in what is now Canada by distinguishing between de facto and de jure sovereignty. De facto sovereignty requires actual exercise of authority in a territory, whereas de jure sovereignty is an abstract concept that depends on the application of a specific legal system. De jure sovereignty is relative because, while it may be valid in one legal system, it is not necessarily valid in other legal systems. A choice of law question is therefore involved that raises an issue of legitimacy. The paper concludes that, although Canada has de facto sovereignty over its territory today, its claim to de jure sovereignty lacks legitimacy as long as it is not acknowledged by Indigenous legal systems.
Note: Downloadable document is available in French.Download the article from SSRN at the link.
What would it mean to “get over slavery”? Is such a thing possible? Is it even desirable? Should we perceive the psychic hold of slavery as a set of mental manacles that hold us back from imagining a postracist America? Or could the psychic hold of slavery be understood as a tool, helping us get a grip on the systemic racial inequalities and restricted liberties that persist in the present day? Featuring original essays from an array of established and emerging scholars in the interdisciplinary field of African American studies, The Psychic Hold of Slavery offers a nuanced dialogue upon these questions. With a painful awareness that our understanding of the past informs our understanding of the present—and vice versa—the contributors place slavery’s historical legacies in conversation with twenty-first-century manifestations of antiblack violence, dehumanization, and social death. Through an exploration of film, drama, fiction, performance art, graphic novels, and philosophical discourse, this volume considers how artists grapple with questions of representation, as they ask whether slavery can ever be accurately depicted, trace the scars that slavery has left on a traumatized body politic, or debate how to best convey that black lives matter. The Psychic Hold of Slavery thus raises provocative questions about how we behold the historically distinct event of African diasporic enslavement and how we might hold off the transhistorical force of antiblack domination.
Magna Carta’s connection to the American constitutional tradition has been traced to Edward Coke’s insertion of English liberties in the 1606 Virginia Charter. This account curiously turns out to be unsupported by direct evidence. This Article recounts an alternative history of the origins of English liberties in American constitutionalism. A quarter century before the Virginia charter, provisions assuring liberties to English children born overseas were inserted in the earliest letters patent. These provisions drew on an older practice extending liberties to children born overseas. Because of these provisions, persons born in the colonies were guaranteed the same liberties as those born in England. This explanation suggests new appreciation for the interpretive flexibility of early written constitutionalism. As the liberties provisions reveal, words described the underlying concept but were not used to fix a precise definition. Thus, various words could be altered over time to ensure that the concept adapted to contemporary political and legal issues. Throughout, however, the assurance remained that those born in the colonies possessed English liberties. This Article calls this genre of early written constitutionalism “charter constitutionalism” to emphasize this elastic interpretive practice. Charter constitutionalism deserves recognition as a founding strand of American constitutionalism.Download the article from SSRN at the link.
This essay discusses three diaries from the Vichy era, the period of the Nazi Occupation of France: Jean Guéhenno’s Journal des années noires 1940-1944, Hélène Berr’s Journal, and Jacqueline Mesnil-Amar’s Ceux qui ne dormaient pas. Guéhenno was an educator and writer who entered the Resistance in 1940. His diary offers deep moral reflection as well as accounts of the dishonorable peace Vichy imposed and the ignoble servitude to which the new collaborationist French State and the Nazi occupier subjected France. In the final pages, as Leclerc’s army marches into Paris, with a victory he understands to be thanks to the help of the Allied forces, Guéhenno dares to rekindle his former faith in humankind. Berr was a young university student born into a wealthy old French Jewish family, the daughter of a famous scientist. Sensitive and generous-spirited, she lived an unusual life inasmuch as her family seemed to suffer no material hardship throughout the years that culminated in their deportation in the spring of 1944. Among the memorable events of her diary is her experience of the first day she was forced to wear the yellow star. Finally, Mesnil-Amar’s diary spans just one month at the end of the war in France, the month in which her husband has been detained and is about to be deported on the last train to leave Paris. The diary evokes her embracing of Jewish identity as a result of being identified as Jewish by anti-Semites. The lyricism of her writing approaches poetry in a work that is both a retrospective and a love letter to her husband. These diaries show us a slice of life of the times, but they also spur us to reflection on law and humanity, their limitations, potentials and fluctuations.Download the essay from SSRN at the link.
This paper argues that the central object of constitutional interpretation is the Constitution, which is an intentional lawmaking act rather than a text floating free in the world, and that the point of such interpretation is primarily to understand the meaning that those who made the Constitution intended to convey by promulgating the text in question. The paper develops these claims by way of a critique of Cass Sunstein’s recent argument that there is nothing that interpretation just is, contending that he misunderstands the way that intention works in language use in general and that the alternatives to intentionalism that he outlines each fail. The radical interpretive choice for which he argues is ruled out by the nature of the Constitution. The final part of the paper considers the various ways in which one might understand the Constitution as an object requiring interpretation and outlines the significance that this understanding has for interpretive practice.The full text is not available for download from SSRN.
Lawyers’ commodification of personal identity is nothing new. For generations now, white male lawyers have benefitted from positive racial and gender stereotypes regarding their competence and loyalty to clients and firms to secure job offers, promotions and elevated status within the profession. Yet the concept of identity capital – the value one derives from one’s personal identity – warrants attention for two related reasons. While prevalent, lawyers’ use of identity capital has historically been implicit. As explicit and visible use of identity capital grows, however, lawyers must reckon with the meaning of and consequences of using identity capital in their practice. In addition, because women and minority lawyers are increasingly criticized for undermining professional standards by actively using identity capital or by passively allowing its commodification, fairness dictates that the profession comes to terms with the relationship between merit and capital. This essay examines the commodification of women and minority lawyers’ personal identity in the context of the ongoing commodification of lawyers’ personal identity more generally. Specifically, it explores several qualities of identity capital that ought to inform both the decision-making of individual lawyers who either actively deploy it or passively tolerate its commodification by others in representing clients and of the profession as it assesses the use of identity capital by its members: inevitable and avoidable uses of identity capital, the desirability of lawyers’ commodification of personal identity, active and passive uses of identity capital, the impact of identity capital exchanges on third parties, the interplay of merit and identity capital and the appropriate terms of identity capital transactions.Download the article from SSRN at the link.
Gregory: Is there any other point to which you would wish to draw my attention.
Holmes: To the curious incident of the dog in the night-time.
Gregory: The dog did nothing in the night-time.
Holmes: That was the curious incident.