October 23, 2017

A New Collection of John William Corrington's Writings, Edited by Allen Mendenhall @allenmendenhall @UnivPressNG

Newly published: The Southern Philosopher: Collected Essays of John William Corrington (Allen Mendenhall, ed., University of North Georgia Press, 2017).

John William Corrington was an English professor (D. Phil, University of Sussex) and lawyer (Tulane Law) who became known as a writer of screenplays and poetry. With his wife Joyce, he wrote for such daytime dramas as Search for Tomorrow and General Hospital. The couple also wrote the screenplays for the films The Omega Man and Battle for the Planet for the Apes, among other films.

Professor Mendenhall's new book highlights Professor Corrington's writings on literature, law, and society.

Here's a link to an interview with Professor Mendenhall on his research for the book.

Here's Richard Bishirjian's review of the new collection from Anamnesis. 

The Southern Philosopher

Schlag on Reason as a Fundamental Concept in International Law @ColoLaw

Pierre Schlag, University of Colorado Law School, is publishing Reason in Fundamental Concepts for International Law (Jean d'Aspremont & Sahib Singh, eds., Edward Elgar Publishing, 2018). Here is the abstract.
This brief essay, prepared for a compendium of fundamental concepts in international law, explores the character of reason in law. The particular focus here is on the challenges that reason confronts when faced with a law whose authorities, aesthetics, and self-idealization are resistant to reason. By focusing on a close reading of some passages from Ronald Dworkin’s “Law’s Empire,” the essay shows how the “partisans of reason” who seek to represent law as a reasoned endeavor rhetorically prepare their grounds by engaging in a suspect reductionism and purification. That is to say, they recast law into reason’s idea of law (a pale imitation of the former). With this rhetorical work out of the way, the partisans of reason proceed to show that, in law, reason rules. This widespread and largely successful substitution of reason’s image of law for law itself often goes unnoticed. Not only does this substitution do damage to the collective intellect, but to reason itself. And this — at a political-legal moment when a rigorous and widespread understanding of the uses and limits of reason might be of considerable help.
Download the essay from SSRN at the link.

October 20, 2017

Narrative and Metaphor in the Law, Edited by Michael Hanne and Robert Weisberg, Due in 2018 From Cambridge University Press @Stanford @AucklandUni

Forthcoming from Cambridge University Press in 2018: Narrative and Metaphor in the Law, edited by Michael Hanne, University of Auckland, and Robert Weisberg, Stanford University. Here is a description of the book's contents.
It has long been recognized that court trials, both criminal and civil, in the common law system, operate around pairs of competing narratives told by opposing advocates. In recent years, however, it has increasingly been argued that narrative flows in many directions and through every form of legal theory and practice. Interest in the part played by metaphor in the law, including metaphors for the law, and for many standard concepts in legal practice, has also been strong, though research under the metaphor banner has been much more fragmentary. In this book, for the first time, a distinguished group of legal scholars, collaborating with specialists from cognitive theory, journalism, rhetoric, social psychology, criminology, and legal activism, explore how narrative and metaphor are both vital to the legal process. Together, they examine topics including concepts of law, legal persuasion, human rights law, gender in the law, innovations in legal thinking, legal activism, creative work around the law, and public debate around crime and punishment.

Takes the form of nine conversations between pairs of eminent scholars in different disciplines
Opens up discussion for the first time of the joint roles of narrative and metaphor in the law
Topics include legal persuasion, gender in the law, judicial opinions and public debate around crime and punishment

Includes contributions by Michael Hanne, Robert Weisberg, Greta Olson, Lawrence Rosen, Michael R. Smith, Raymond W. Gibbs, Simon Stern, Peter Brooks, Linda L. Berger, Kathryn M. Stanchi, Roberto H. Potter, Dahlia Lithwick, L. David Ritchie, Katherine Young, Bernadette Meyler, Lawrence Joseph, Meredith Wallis, Mari Matsuda.

The Rights of the Undead, and Some Related Issues

It's Halloween, and naturally our thoughts turn to the rights of ghoulies and ghosties and long-legged beasties. Some clarification here, courtesy of Findlaw.

October 19, 2017

Sugarman on Promoting Dialogue Between History and Socio-Legal Studies: The Contribution of Christopher W. Brooks and "Legal Turn" in Early Modern English History @LancasterUni

David Sugarman, Lancaster University Law School, has published Promoting Dialogue between History and Socio-Legal Studies: The Contribution of Christopher W. Brooks and the ‘Legal Turn’ in Early Modern English History at 44 Journal of Law & Society 37 (October 2017) (Special Issue: Main Currents in Contemporary Sociology of Law). Here is the abstract.
This paper argues that the work of socio-legal scholars and historians would benefit from greater dialogue, and from taking the social history of law itself more seriously. It points up the benefits and the difficulties that might arise from greater cross-fertilization. By way of a case study, it focuses on the ‘legal turn’ in recent history writing on early modern England, particularly, Christopher W. Brooks’s ground-breaking analysis of the nature and extent of legal consciousness throughout society, and the central role of law and legal institutions in the constitution of society. The paper critically reviews Brooks’s principal ideas and findings, the contexts within which they arose, their theoretical underpinnings, and their larger significance. It highlights Brooks’s engagement with diverse scholars, including John Baker, Marc Galanter, Jürgen Habermas, Robert W. Gordon, J.G.A. Pocock and E.P. Thompson. It is proposed that Brooks investigated both elite and popular legal consciousness on an almost unparalleled scale, adopting top-down and bottom-up approaches that revealed the trickle-up, as well as trickle-down, diffusion of legal ideas, transcending the boundaries of social, political, and legal history. More generally, the paper seeks to demonstrate that the turn to law in early modern English history has enlarged the field in terms of subject-matter, methodologies and the range of sources utilised, deepening understanding of the workings of law and its wider importance. Indicative subject areas and topics enhanced by the legal turn are outlined including: law, gender, agency and social hierarchy; legal consciousness; trust, contractual thinking, and capitalism; governance and the growth of state power; and the decline in the participation of ordinary people in the legal system, and the so-called ’vanishing trial’. The paper concludes that a convergence between history, legal history and socio-legal studies has been underway in recent decades, that it provides opportunities for greater cross-fertilization, and that this would enhance our understanding of the role of law in society, and of society. For that greater dialogue to happen there would need to be better institutional support, changes in the cultures and mind-sets of history, socio-legal studies and legal history, and greater self-reflexivity. It would also generate difficult questions and controversy as to what sort of rapport might be appropriate, when, how and to what effect.
Download the article from SSRN at the link.

Biggs on Jousting at Windmills: Cervantes and the Quixotic Fight for Authorial Control

Henry Parkman Biggs, Washington University, St. Louis, has published Jousting at Windmills: Cervantes and the Quixotic Fight for Authorial Control. Here is the abstract.
Achieving a fair balance between the rights of first and follow-on authors has long proved challenging. A less considered aspect of this tension involves the degree to which the first author may be creatively and productively compromised by the follow-on author and whether such interference diminishes creative production. A look at the early 17th century copyright landscape of Don Miguel de Cervantes proves instructive. Cervantes would dramatically change the second half of his masterpiece Don Quixote in terms both of plot and content because of an author who— perfectly legally—published a rival version of Don Quixote, Part II. The resultant war of words ultimately calls the very functioning of copyright’s protections into question: if greater creative production is ultimately the goal, is it purely financial gain that we believe engines that productivity? Or do we also believe protection of the author from creative interference plays a role in improving creative productivity? From a purity standpoint, are we concerned that without any rights of exclusion the author may write something substantially different than he might have without that interference? The copyright landscape and creative sparring that created the Don Quixote we read today provides an example of how deeply such interference can affect a final work.
The paper is not available for download.

October 18, 2017

Stewart on Australian Stories of Tax and Fairness: A Feminist Reading of Peter Carey's The Tax Inspector @AusTaxProf


Miranda Stewart, Australian stories of tax and fairness: a feminist reading of Peter Carey's The Tax Inspector, at 18 Australian Feminist Law Journal 1 (2003) (published online 2015). Here is the abstract.
It was Alistair who said, on national television, that being a Tax Officer was the most pleasant work imaginable, like turning on a tap to bring water to parched country. It felt wonderful to bring money flowing out of multi-national reservoirs into child-care centres and hospitals and social services. He grinned when he said it and his creased-up handsome face creased up some more and he cupped his hands as if cool river water were flowing over his big, farmer's fingers and it was hard to watch him and not smile yourself.… He sold taxation as a public good. It can be seen as a rather perverse notion but I happen to think it's an attractive one: the idea of redistributing wealth. So I'm a writer, and I should be able to make it attractive to the reader. OK, so none of us like paying taxes, but I thought I could at least make readers consider the idea that tax might be a wonderful thing. That's a challenge, of course, an amusing one, so I enjoyed trying. Did I fail or succeed? My opinion varies every time I think about it.

Gries and Slocum on Ordinary Meaning and Corpus Linguistics @McGeorgeLaw

Stefan Th. Gries, Deoartment of Linguistics, University of California, Santa Barbara, and Brian G. Slocum, University of the Pacific, McGeorge School of Law, are publishing Ordinary Meaning and Corpus Linguistics in Brigham Young University Law Review (2018). Here is the abstract.
This paper demonstrates how corpus analysis, and similar empirically-based methods of language study, can help inform judicial assessments about language meaning. We first briefly outline our view of legal language and interpretation in order to demonstrate the importance of the ordinary meaning doctrine, and thus the relevance of tools such as corpus analysis, to legal interpretation. Despite the heterogeneity of the current judicial interpretive process, and the importance of the specific context relevant to the statute at issue, conventions of meaning that cut across contexts are a necessary aspect of legal interpretation. Indeed, such conventions are an important aspect of the sequential nature of legal interpretation, where a court first determines the ordinary meaning of the textual language and then: (1) accepts that meaning as the legal meaning of the text, (2) rejects it in favor of an unordinary meaning, or (3) precisifies it in some way because the ordinary meaning is indeterminate in relation to the interpretive question before the court. Nevertheless, the constituent question of what makes some permissible meaning the ordinary meaning is an inherently normative issue that courts typically, and incorrectly, treat as self-evident. Corpus analysis can provide valuable insights about language usage but cannot by itself resolve normative issues. We demonstrate the potential of corpus analysis (and similar empirically based methods of language analysis) through the study of two rather infamous cases where the reviewing courts made various general claims about language meaning. In both cases, United States v. Costello and Smith v. United States, the courts made statements about language that are contradicted by corpus analysis. We also demonstrate the potential of corpus analysis through Hart’s no-vehicles-in-the-park hypothetical. A discussion of how to approach Hart’s hypothetical shows the potential but also the complexities of the kind of linguistic language analyses that such situations and scenarios require. Corpus linguistics can yield results that are relevant to legal interpretation, but the necessary analysis is complex and requires training. We conclude that while it is doubtful that judges will themselves become proficient at corpus linguistics, they should be receptive to the expert testimony of corpus linguists in appropriate circumstances.
Download the article from SSRN at the link.

Solan and Gales on Corpus Linguistics as a Tool in Legal Interpretation @brooklynlaw @HofstraU

Lawrence M. Solan, Brooklyn Law School, and Tammy A. Gales, Hofstra University, are publishing Corpus Linguistics as a Tool in Legal Interpretation in the Brigham Young University Law Review (2018). Here is the abstract.
In this paper, we set out to explore conditions in which the use of large linguistic corpora can be optimally employed by judges and others tasked with construing authoritative legal documents. Linguistic corpora, sometimes containing billions of words, are a source of information about the distribution of language usage. Thus, corpora and the tools for using them are most likely to assist in addressing legal issues when the law considers the distribution of language usage to be legally relevant. As Thomas Lee and Stephen Mouritsen have so ably demonstrated in earlier work, corpus analysis is especially helpful when the legal standard for construction is the ordinary meaning of the document’s terms. We argue here that four issues should be addressed before determining that corpus analysis is likely to be maximally convincing. First, the legal issue before the court must be about the distribution of linguistic facts. Second, the court must decide what makes an interpretation “ordinary.” Third, if one wishes to search a corpus to glean the ordinary meaning of a term, one must decide in advance what to search. Fourth, there are different reasons as to why a particular meaning might present a weak showing in a corpus search and these need to be understood. Each of these issues is described and discussed.
Download the article from SSRN at the link.

Rosenberg on Contract and Freedom: Constrained Existence in Middlemarch and The Mayor of Casterbridge @AnatRosenberg

Anat Rosenberg, Interdisciplinary Center Herzliyah-Radzyner School of Law, is publishing Chapter 4: Contract and Freedom(?): Constrained Existence in Middlemarch and The Mayor of Casterbridge in Liberalizing Contracts: Nineteenth Century Promises Through Literature, Law and History (Routledge 2018). Here is the abstract.
The book examines nineteenth-century liberal thought in England, as developed through, and as it developed, the concept of contract, understood as the formal legal category of binding agreement, and the relations and human practices at which it gestured, most basically that of promise, most broadly the capitalist market order. It does so by placing canonical realist novels in conversation with legal-historical knowledge about Victorian contracts. Liberlalizing Contracts argues that current understandings of the liberal effort in contracts need reconstructing from both ends of Henry Maine’s famed aphorism, which described a historical progress “from status to contract.” On the side of contract, historical accounts of its liberal content have been oscillating between atomism and social-collective approaches, missing out on forms of relationality in Victorian liberal conceptualizations of contracts which the book establishes in their complexity, richness, and wavering appeal. On the side of status, the expectation of a move “from status” has led to a split along the liberal/radical fault line among those assessing liberalism’s historical commitment to promote mobility and equality. The split misses out on the possibility that liberalism functioned as a historical reinterpretation of statuses – particularly gender and class – rather than either an effort of their elimination or preservation. As the book shows, that reinterpretation effectively secured, yet also altered, gender and class hierarchies. There is no teleology to such an account. The chapter examines the liberal association of contracts with freedom. With George Eliot’s Middlemarch and Thomas Hardy’s The Mayor of Castebridge we see a move from the midcentury project of pressing on readers the importance of relationality for individual agency and for the morality of choice, toward explorations of the constraining implications of living in a web of relationships. The consciousness of constraints highlighted relationality as the basis of the contractual order, yet reversed associations of contracts with freedom.
Download the essay from SSRN at the link.

Agha on Un-Doing Law: Public Art as Contest Over Meanings @CharlesUniPRG

Petr Agha, Charles University in Prague, Law Faculty, has published Un-Doing Law – Public Art as Contest Over Meanings as Charles University in Prague Faculty of Law Research Paper No. 2017/III/4. Here is the abstract.
The following text explores the relationship of symbolic, performative and discursive exchange in the public sphere and the effect it has on the practices and processes of cultural and legal signification. We shall consider the mutually interdependent relationality between law and (public) art, understood as a contest over meanings, modes of interpretation and knowledge-production, with an eye to examining how artistic activities contribute to ongoing legal, political and cultural discussions in society. This chapter will in particular consider whether and how street art, graffiti art and performance art can produce new concepts and ideas, and whether they are able to re-shape existing symbolic, legal and political boundaries by first producing new (symbolic) spaces and secondly reinterpreting existing ones.
Download the article from SSRN at the link.

Vaughn on Michael Crichton's View of Lawyers


Lea B. Vaughn, University of Washington School of Law, has published A Few Inconvenient Truths About Michael Crichton’s State of Fear: Lawyers, Causes and Science at 20 Seton Hall Journal of Sports & Entertainment Law 40 (2010). Here is the abstract.
Although Crichton has lost the battle regarding global warming, his characterization of lawyers and law practice remains unchallenged. This article challenges his damning portrait of lawyers as know-nothing, self-aggrandizing manipulators of various social and environmental causes. A more nuanced examination of “cause lawyering” reveals that lawyers are not part of a vast conspiracy to grab power through the causes for which many work; in fact, the rules of professional responsibility as well as the structure of “cause lawyering” limit their power and influence. Regardless, lawyers are nonetheless vital, and generally principled, participants in the debates and causes that inform environmental (and other scientific) policy-making in a democratic society.
Download the article from SSRN at the link.

Vaughn on Susanna Blumenthal, Law and the Modern Mind

Lea B. Vaughn, University of Washington School of Law, is publishing Book Review - (Of Susanna L. Blumenthal, Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture (2016)) in volume 67 of the Journal of Legal Education (Autumn 2017). Here is the abstract.
In a masterful book titled Law and the Modern Mind, Susanna Blumenthal simultaneously describes the battles among scientists, doctors, and jurists in the period following the Revolutionary War and up through the Gilded Age, and takes on traditional scholarship in legal history as to who this person or “mind” is. Her study not only provides an alternative account of the formation of American character, but also provides a series of detailed portraits of the various turning points in the formation of that character, and the legal determination of capable, accountable personhood. This review essay initially discusses Blumenthal’s approach to legal history and the challenge she presents to traditional scholarship. The second section provides an overview of Blumenthal’s methodology, which draws on a breathtaking base of source materials; she weaves hundreds of cases, treatises, and biographical notes into her observations. Finally, this review considers what is one of the most powerful and important contributions of her book—an in-depth analysis of the intersection of law and medicine in the period under study. The review points out ways in which Blumenthal’s insights can be brought to bear on modern conversations involving law, genetics, and neuroscience.
Download the book review from SSRN at the link.

October 17, 2017

Acosta Arcarazo on Open Borders in the Nineteenth Century: Constructing the National, the Citizen, and the Foreigner in South America @BristolUni

Diego Acosta Arcarazo, University of Bristol, has published Open Borders in the Nineteenth Century: Constructing the National, the Citizen and the Foreigner in South America as Robert Schuman Centre for Advanced Studies Research Paper No. 2017/46.
This working paper describes and explains the historical origins of the division between the national and the foreigner in South America. In the early nineteenth century, all the previously Spanish possessions in South America as well as Brazil achieved independence. With this new freedom, countries turned their attention to asserting their statehood through the delineation of three constitutive elements: government, territory and population. The new governments had to define who were going to be considered as nationals, citizens and foreigners, and the rights that pertained to each of these categories. These countries were all concerned with attracting new settlers and very early on introduced constitutional provisions on open borders and equal treatment for foreigners. White, male Europeans were the principal addresses of open borders provisions in an effort to entice them to settle in territories presented as empty to the exclusion of indigenous groups, bring new industries, and contribute to the whitening of mixed race populations. Whilst weak statehood came with independence, forming nations was a much longer process and States used migration and citizenship policies as tools to define nationhood.
Download the article from SSRN at the link.

October 16, 2017

Lloyd on Why Originalism Cannot Work @LloydEsq

ICYMI: Harold Anthony Lloyd, Wake Forest University School of Law, has published Why Originalism Cannot Work: Lessons from Logic, Scripture, and Art. Here is the abstract.
Neil Gorsuch lauds judges who purport to “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be . . . .” It’s hard to see how such Originalism withstands scrutiny. First, using “reasonable reader” understandings rather than speaker meaning turns language and law on their heads. Audiences effectively become the speakers in ordinary speech (since reader or audience meaning prevails), and audiences (and thus the ruled) effectively become the rulers when interpreting law (since audiences’ meaning prevails). Second, since laws look forward to govern conduct, how can best legal practices keep such a backward focus? Third, words (however understood by others at the time “originally” uttered) may or may not (depending on speaker and not reader meaning) signify concepts whose meanings embrace change over time. For example, the word “planet” used by a speaker before the discovery of Uranus and Neptune may or may not include further planets depending upon what the speaker meant by “planet.” (The same applies to the inclusion or exclusion of Pluto had the speaker used the word “planet” after the discovery of Pluto but before its exclusion by current science.) Unlike the “reasonable” reader of Gorsuch’s Originalism as phrased above, speakers run the gamut from reasonable to unreasonable, from informed to uninformed, and from thoughtful to thoughtless. Fourth, to the extent a judge is principally “constrained” by a text or texts (as he may determine), by dictionaries that he chooses, and by “history” as the judge understands it, isn’t judicial activism encouraged rather than restrained? Talk of a “reasonable” reader masks the fact that there can be multiple “reasonable” conclusions of what a reasonable or unreasonable speaker meant. Is a judge not therefore left to pick definitions and applications of terms that accord with the judge’s understandings of history, understandings that may well be colored by the judge’s politics and judicial philosophy? This applies to principles as well as labels for things. Principles are also subject to multiple frames, and their terms are subject to multiple definitions therefore raising the very same questions just raised above. Finally, such Originalism doesn’t merely fail with legal texts. It also fails when applied to other texts (including sacred texts such as the Ten Commandments) and when used to interpret art (such as “Landscape with the Fall of Icarus” often attributed to Bruegel and which inspired such great ekphrasis as Auden’s “Musée Des Beaux Arts”). These further failures underscore the dysfunction of Originalism as described by Gorsuch above.
Download the article from SSRN at the link.

Ricca on How To Make Space and Law Interplay Horizonally


Mario Ricca, University of Parma, has published How to Make Space and Law Interplay Horizontally: From Legal Geography to Legal Chorology. Here is the abstract.
This essay addresses the thorny issue of how legal words and spatial experiences interplay. The topic is treated trough the spectrum of the subsidiarity principle and its semantic-spatial implications. This perspective allows for an immediate focus on the cognitive continuities extant between categorical and spatial frames. When a subject (public or private) is considered to be subsidiary with respect to another, then he/she/it is entitled to a substitution, which as such implies a semantic and experiential shifting. This very possibility for shifting/displacement reveals cognitive continuities between word and space in the legal realm and experience. Moving from this view, the essay proposes a different approach to the relationships between legal words and space, assumed as a division of power by contemporary Legal Geography. The method used to define this perspective is precisely “Legal Chorology.” The essay will address its theoretical and practical implications in bridging and dynamically managing the diffraction between law and space. Legal reasoning is thus enhanced by using a semiotic perspective in the analysis of human spatial experience and cognition. The topics addressed range from a discussion of the intertwining of the human activity of categorization and the perception of space, to an assessment of the consequences that a chorological view can engender for classical legal issues such as inheritance law, urban law, contract law, public assistance on behalf of subjects with disabilities, and so on.
Download the article from SSRN at the link.

Selkälä and Rajavuori on Traditions, Myths, and Utopias of Personhood @TSelkl @Ger_Law_Journal @UniTurku

Toni Selkälä and Mikko Rajavuori, both of the University of Turku Faculty of Law, have published Traditions, Myths, and Utopias of Personhood: An Introduction at 18 German Law Journal 5 (2017) 18 German Law Journal 1017 (2017). Here is the abstract.
Legal personhood continues to serve an important role in the legal system. The millennial distinction of persons and things, while often unarticulated, is an essential building block of all legal relations. This introduction to persons and things outlines the past tradition, draws on present myths, and construes a utopia of which the articles on this special issue will comment, clarify, and criticize. The tradition of personhood has been well-established in recent academic commentary on personhood. Often construed as a gradual evolution and expansion from its modest original scope covering only adult male heads of household to present universal human personhood, the concept of legal person is tightly connected to the rule of law and the emergence of human rights. On this tradition, personhood is reserved an emancipatory role: Personhood is a legal fiction that sets everyone on an equal footing before the law. Also, due to its fictional character, collective human enterprises from state to corporation are donned with personhood as tools for realization of humane personhood. As such, the tradition serves an important part in perception of law and justice as ultimately egalitarian and often blind. Recent interest in legal personhood has come to criticize the traditional narrative, claiming that it construes a myth concealing the fact that law remains profoundly discriminatory and unjust partly because of the way legal personhood is defined. A range of new entities commanding some or all features of a legal person — such as animals, cyborgs, and fetuses — are left outside legal protection due to their wanting personhood. Clinging on ideas equating humans to persons lead to affronts of morality in name of legality, the critics of the traditional narrative argue. According to them, rather than maintaining a material bind to a human being, a legal person should be a concept of art reserved to an artificial bundle of rights that can be allocated to anyone or anything. As truly artificial, legal personhood would better serve justice by providing rights to everyone and everything unlike the traditional account. The utopia proposed by this introduction as well as by all of the articles forming this special issue pushes both the tradition and its critics to their limits. The utopia, on the one hand, argues for a fully material account of personhood where all things stand initially on an equal footing and, on the other hand, demands that also artificiality takes itself seriously in its denouncement of any material bind. We argue that such a utopia will better highlight the functions personhood serves in law and allows for a reevaluation of our appreciation of things.
Download the article from SSRN at the link.

October 15, 2017

Hollander-Blumoff on Novel Negotiation

ICYMI: Rebecca E. Hollander-Blumoff, Washinton University, St. Louis, School of Law, is publishing Novel Negotiation in the Journal of Dispute Resolution. Here is the abstract.
In dispute resolution, a field of study that is inherently interdisciplinary, there is no clear metric for how we ought to delineate the limits of relevant domains. Literature, with its ability to transport us to different times, places, lives, and stories, can reveal critical and crystallizing truths about human interaction in both conflicts and transactions. Careful and cross-disciplinary analysis of literary works will only serve to amplify our understanding of negotiation behavior in ways that can enrich our writing, our teaching, and our thinking on negotiation. In this essay, I address three different novels and highlight the ways in which they help elucidate, and provide new insight into, some fundamental and familiar aspects of negotiation. While the situations in these novels often dovetail with academic dispute resolution literature on aspects relevant to the negotiation process, they add nuance and amplification.

Download the article from SSRN at the link.

October 14, 2017

Woman With a Mission: Frances Glessner Lee and Her Crime Dioramas

Frances Glessner Lee, a woman with a fortune, was also a woman with a mission--to convince law enforcement and others involved in the justice system to take forensic science seriously. She decided to use popular culture to do so. Specifically, she used meticulously created dioramas, called Nutshell Studies, and her own ability to bring important people together, to bring attention to the need to use science to solve crimes. More about Mrs. Lee here in an Atlantic Monthly article,  and in the articles listed below. An upcoming exhibition at the Renwick Gallery is devoted to her work.

Erika Engelhaupt, Peek Into Tiny Houses

Kirstin Fawcett, Frances Glessner Lee's Crime Dioramas Are Getting Their Own Exhibition

Frances Glessner Lee (National Library of Medicine)

How a Chicago Heiress Trained Chicago Detectives With an Unusual Tool: Dollhouses

The Nutshell Studies of Unexplained Death

October 8, 2017

Human Rights Lawyers in Films

Corallina Lopez-Curzi created this short list of human rights lawyers on film for Rights Info. While it includes Joe Miller from Philadelphia and Betty Ann Waters from Conviction, it also lists Erin Brockovich from the film of the same name, who isn't a lawyer (Ms. Lopez-Curzi concedes that). There are other human rights lawyers we could include, especially if we define "human rights lawyer" as she seems to, as lawyers who defend clients with rights claims, and not as lawyers who repeatedly take on human rights cases. Indeed, just about any lawyer could fill the bill.  How about Atticus Finch, the epitome of the human rights lawyer (To Kill a Mockingbird)? Jed Ward (iClass Action)? Sir Wilfred Robards (Witness for the Prosecution)? Paul Biegler (Anatomy of a Murder)? Martin Vail (Primal Fear)?  Kathryn Murphy (The Accused)? And of course Hans Rolfe and Richard Widmark in Judgment at Nuremberg?

October 3, 2017

Call For Papers: 2018 Law & Humanities Junior Scholar Workshop @ColumbiaLaw

From the mailbox:

CALL FOR PAPERS – 2018 Law & Humanities Junior Scholar Workshop

Columbia Law School, the University of Southern California Center for Law, History & Culture, UCLA School of Law, Georgetown University Law School, Stanford Law School, and the University of Pennsylvania invite submissions for the annual meeting of the Law & Humanities Junior Scholar Workshop, to be held at Stanford Law School in Palo Alto, California, on June 4 and 5, 2018.

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

Papers must be works-in-progress that do not exceed 15,000 words in length (including footnotes/endnotes); most papers selected for inclusion in recent years have been at least 10,000 words long.  An abstract of no more than 200 words must also be included with the paper submission.  A dissertation chapter may be submitted, but we strongly suggest that it be edited so that it stands alone as a piece of work with its own integrity.  A paper that has been submitted for publication is eligible for selection so long as it will not be in galley proofs or in print at the time of the Workshop; it is important that authors still be in a position at the time of the Workshop to consider comments they receive there and incorporate them as they think appropriate in their revisions.  We ask that those submitting papers be careful to omit or redact any information in the body of the paper that might serve to identify them, as we adhere to an anonymous or “blind” selection process.

The selected papers will appear in a special issue of the Legal Scholarship Network; there is no other publication commitment.  (We will accommodate the wishes of chosen authors who prefer not to have their paper posted publicly with us because of publication commitments to other journals.)  The Workshop will pay the domestic travel and hotel expenses of authors whose papers are selected for presentation.  For authors requiring airline travel from outside the United States, the Workshop will cover such travel expenses up to a maximum of $1000.

Submissions (in Word, no pdf files) will be accepted until January 5, 2018, and should be sent by e-mail to:  juniorscholarsworkshop@sas.upenn.edu.    Please be sure to include your name, institutional affiliation (if any), telephone and e-mail contact information in your covering email (not in the paper itself).

For more information, please send an email inquiry to juniorscholarsworkshop@sas.upenn.edu.  To see selected papers from some of the previous years’ workshops, go to: http://www.law.columbia.edu/center_program/law_culture/lh_workshop.

Anne Dailey, University of Connecticut Law School
Katherine Franke, Columbia Law School
Sarah Barringer Gordon, University of Pennsylvania
Nan Goodman, University of Colorado
Ariela Gross, University of Southern California
Naomi Mezey, Georgetown University Law Center
Paul Saint-Amour, University of Pennsylvania
Hilary Schor, University of Southern California
Norman Spaulding, Stanford Law School
Clyde Spillenger, UCLA School of Law
Nomi Stolzenberg, University of Southern California
Martha Umphrey, Amherst College


Call For Papers/Call For Proposals: Association for the Study of Law, Culture, and the Humanities @Law_Cult_Huma

From Karl Shoemaker, University of Wisconsin, Madison:

We are pleased to announce that the Twenty-First Annual Meeting of the Association for the Study of Law, Culture and the Humanities will be held at the Georgetown Law School, in Washington D.C. on March 16-17, 2018.

We invite your participation.  Please note that panel or individual paper proposals are welcome.  All proposals are due Wednesday, November 1, 2017.Individual proposals should include title, contact information and an abstract (no more than 300 words).

Panel proposals should include contact information and abstracts for all members, a panel title, and proposal outlining the panel (no more than 300 words).  If multiple panels are forming a stream, please indicate the name of the panel and its order (e.g. law and time I, II etc.)  in order to avoid clashes.

All proposals should be sent to LCH2018submissions@gmail.com.

The Association for the Study of Law, Culture and the Humanities is an organization of scholars engaged in interdisciplinary, humanistically-oriented legal scholarship. The Association brings together a wide range of people engaged in scholarship on legal history, legal theory and jurisprudence, political theory, law and cultural studies, law and anthropology, law and literature, law and the performing arts, and legal hermeneutics.

We want to encourage dialogue across and among these fields about issues of interpretation, identity, and values, about authority, obligation, and justice, and about law's role as a constituent part of cultures and communities.

If you have any general questions about the conference, please do not hesitate to ask me at kbshoemaker@wisc.edu. Special thanks to Hyo Yoon Kang of Kent Law School for serving as chair the program committee.
 Karl Shoemaker
Professor of History and Law
University of Wisconsin, Madison
President, Association for the Study of Law, Culture, and the Humanities

October 2, 2017

Call For Papers: Third Annual Constitutional Law Scholars Forum, Barry University School of Law, March 2, 2018 @Barry_Law @TAMULawSchool @acslaw.org

The American Constitutional Society for Law and Policy,  Barry University Law School Student Chapter, and Texas A&M University School of Law are hosting the Third Annual Constitutional Law Scholars Forum at Barry University School of Law in Orlando, FL, March 2, 2018.

Here is a link to the Call for Papers. The deadline to submit is December 1, 2017.

The Constitutional Law Scholars Forum invites scholarly proposals on constitutional law at any stage of pre-publication development, from the germination of an idea to the editing stage.  The Forum provides an opportunity for scholars and educators to vet their work-in-progress in a welcoming, supportive environment.  (The Forum is not accepting proposals from students at this time.)

Barry University School of Law is located within close proximity to recreational activities: Universal Studios, Disney World, Epcot Center, Sea World, world class golf courses, and beaches.  Orlando offers an average temperature of 78°F in March/April. 

There are no conference fees and meals are provided, but participants are expected to pay their own travel expenses.

Abstract Submissions:
Email proposals to Professor Eang Ngov, engov@barry.edu, with “Constitutional Law Scholars Forum” in the subject line.  Submissions should include a short abstract (300 words maximum) and biography (150 words maximum).

Conference Organizers: 
Professor Eang Ngov, engov@barry.edu, office (321) 206 -5677, cell phone (571) 643-2691

Professor Meg Penrose, megpenrose@law.tamu.edu

September 29, 2017

Gerber on Law and Catholicism in Colonial Maryland @ONULaw

Scott D. Gerber, Ohio Northern University College of Law, has published Law and Catholicism in Colonial Maryland at 103 Catholic Historical Review 465 (2017). Here is the abstract.
Montesquieu famously concluded in The Spirit of the Laws that each form of government has an animating principle — a set of “human passions that set it in motion” — and that each form can be corrupted if its animating principle is undermined. Maryland is a compelling case study of Montesquieu’s theory: founded in 1632 by Lord Baltimore as a haven for Catholics, a mere two decades later that animating principle was dead. This article explores why. More specifically, the article examines the birth, death, and resurrection of Maryland’s animating principle by identifying with as much precision as possible the impact of the law itself on regime change in colonial Maryland.
Download the article from SSRN at the link.

Cushman on The "Constitutional Revolution" of 1937 @NDLaw

Barry Cushman, Notre Dame Law School, has published Inside the 'Constitutional Revolution' of 1937 at 2016 Supreme Court Law Review 367 (2017). Here is the abstract.
The nature and sources of the New Deal Constitutional Revolution are among the most discussed and debated subjects in constitutional historiography. Scholars have reached significantly divergent conclusions concerning how best to understand the meaning and the causes of constitutional decisions rendered by the Supreme Court under Chief Justice Charles Evans Hughes. Though recent years have witnessed certain refinements in scholarly understandings of various dimensions of the phenomenon, the relevant documentary record seemed to have been rather thoroughly explored. Recently, however, a remarkably instructive set of primary sources has become available. For many years, the docket books kept by a number of the Hughes Court justices have been held by the Office of the Curator of the Supreme Court. These docket books supply a wealth of information concerning the internal deliberations of the justices. Justice Pierce Butler’s docket book in particular provides a remarkably rich set of notes on the Court’s discussions of cases in conference. Yet the existence of these docket books was not widely known, and access to them was highly restricted. As a consequence scholars knew very little about the Court’s internal deliberations in the landmark cases of its 1936 October Term. This article, which is based upon a review of all of the surviving docket books from that Term, considers what those sources can teach us about the cases comprising what some have called the “switch-in-time”: West Coast Hotel Co v Parrish, which upheld Washington State’s minimum wage law for women and overruled Adkins v Children’s Hospital; the Labor Board Cases, which upheld the constitutionality of the National Labor Relations Act; and the Social Security Cases, which upheld the constitutionality of provisions of the Social Security Act establishing an old-age pension system and a federal-state cooperative plan of unemployment insurance, as well as corresponding state unemployment compensation statutes. Considered in concert with information previously known, the data revealed by these docket books shed considerable new light on the nature of the Court’s deliberations in each of these three sets of cases, on the reasons for its decisions, and on the contention that the justices wrought a “Constitutional Revolution” in the spring of 1937.
Download the article from SSRN at the link.

Dorsett on Metropolitan Theorizing: Legal Frameworks, Protectorates, and Models for Maori Governance, 1837-1838

Shaunnagh Dorsett, University of Technology Sydney, Faculty of Law, has published Metropolitan Theorising: Legal Frameworks, Protectorates and Models for Maori Governance 1837-1838 at 3 Law & History 1 (2016). Here is the abstract.
This article considers the little-known 1838 proposal by Robert Torrens for the establishment of a native government in New Zealand. In so doing, it joins recent literature which seeks to move away from doctrinal or juridical legal history through an exploration of the ways in which legal concepts were used in the first part of the nineteenth century by colonial actors as tools, deployed for political advantage, rather than in strict reliance on them as a particular legal form. In so doing, however, this article also contends that although legal concepts were often malleable and could be, and were, deployed in this way, those who relied on them were also bound by Imperial constitutional principles which, while often broad and ambiguous, nevertheless acted as limits on the deployment of these concepts.

Download the article from SSRN at the link. 

September 28, 2017

van den Berge on Sophocles' Antigone and the Promise of Ethical Life

Lukas van den Berge, Erasmus University Rotterdam (EUR), Erasmus School of Law, has published Sophocles’ Antigone and the Promise of Ethical Life: Tragic Ambiguity and the Pathologies of Reason. Here is the abstract.
This article aims to demonstrate that works of art and literature can provide important insights in law and justice that are hard to grasp by one-sidedly rationalist methods of academic analysis. It takes Sophocles’ Antigone - perhaps the most classical text of law and literature’s familiar catalogue - as a case in point, drawing attention to some important aspects of that play’s legal epistemic relevance that are still largely overlooked. Arguing that the widespread view on the confrontation between Antigone and Creon as a clash between ‘divine’ and ‘human’ law is mistaken, the article builds forth on Hegel’s view that the positions of both protagonists are likewise incomplete, denying elements of law and justice that are equally essential, the one being no less divine than the other. However, it departs from Hegel’s analysis in maintaining that the play does not entail the promise of ‘ethical life’ (Sittlichkeit) as some synthesis that recognises the specific value of both Antigone’s and Creon’s stances on law and justice but takes away their incompatibility. Instead, it is argued that the play rather teaches us that such a synthesis is unattainable - a no less valuable lesson indeed.
Download the article from SSRN at the link.

September 27, 2017

Murray on The Sharpest Tool In the Toolbox: Visual Legal Rhetoric and Narrativity

Michael D. Murray, University of Massachusetts School of Law, has published The Sharpest Tool in the Toolbox: Visual Legal Rhetoric and Narrativity. Here is the abstract.
The visual brief will become the norm in legal practice, because of the communicative and rhetorical power of visual media. Visual devices work rapidly, almost immediately, to communicate ideas and attain the audience’s adherence to the meaning and truth of the ideas communicated and thus to persuade the audience of the truth and propriety of the speaker’s communication, which allows greater perception, comprehension, and retention of information. Visual imagery is not only faster than words, it is better than words. Law students and lawyers should be aware that the tool of visual rhetoric is very sharp, and because of the audience’s role in interpreting and understanding the message of visual works, the sharpness cuts in multiple directions. These attributes require special attention so as to avoid intentional or inadvertent misleading of the audience when using visual rhetorical devices. This Article draws lessons from the power, complexity, and potential dangers of visual rhetoric regarding: (A) the analysis of when to use or not use a visual; (B) the decision to manipulate or not to manipulate images or video; (C) the decision to use color or not to use color; (D) the advisability of focus groups, or a wider and more diverse test audience; and (E) the goal to capture the "decisive moment" in a visual.
Download the article from SSRN at the link.

Phillips and White on The Meaning of the Three Emoluments Clauses in the U.S. Constitution: A Corpus Linguistic Analysis of American English, 1760-1799

James Cleith Phillips, University of California, Berkeley, School of Law (Students), and Sara White, Brigham Young University, Law School; BYU Center for Language Studies, have published The Meaning of the Three Emoluments Clauses in the U.S. Constitution: A Corpus Linguistic Analysis of American English, 1760-1799. Here is the abstract.
The recent flurry of scholarship seeking to understand the meaning of the emoluments clauses of the Constitution, particularly the Foreign Emoluments Clause, in the wake of President Trump’s election and subsequently filed lawsuits, has relied on a host of interpretive methodologies. To the extent scholars now (and courts later) seek to understand what the term emolument(s), used thrice in the Constitution, would have meant to the founding generation, their methodologies in determining such have generally relied on small, unrepresentative samples of language usage and founding era dictionaries. But the former cannot confidently provide insights that we can generalize to the greater population (either overall or of lawyers) from the time, and the latter are simply not up to the task of determining usage patterns. Instead, corpus linguistics—what Professor Lawrence Solum had predicted “will revolutionize statutory and constitutional interpretation”—is needed to answer that question. This paper tackles the meaning of emolument(s) in the founding era using the first (that we can find) full-blown corpus linguistic analysis of constitutional text in American legal scholarship. While at least three others (Randy Barnett, Jenn Mascott, and Joel Hood) have done corpus linguistics-like analysis in constitutional interpretation, none have used all of the tools of a corpus (collocation, clusters/n-grams, frequency data, and concordance lines) and used a sufficiently large and representative corpus of the relevant time period—here the underlying data of the soon-to-be released Corpus of Founding Era American English (COFEA)—to make confident conclusions about probably founding-era meaning. The article does not discount other methodologies of constitutional exegesis; nor does the article claim to prove the meaning of any of the Constitution’s invocation of the word emolument, only make some meanings more probable than others; nor does the article take sides on whether the President has violated the Constitution. But the article does add another piece to the emolument puzzle, and provides a more rigorous, relevant, transparent, and accurate methodology than scholars have so far employed in investigating the original public meaning of the various emoluments clauses. In sum, this article is narrower than most on the topic, but within that niche it dives deeper than any have so far gone. We constructed three corpora for our analysis that covered 1760-1799: one of books, pamphlets and broadsides from a mix of ordinary and elite authors (53.4 million words), one correspondence of six major “Founders” (43.9 million words), and one of legal materials (48.6 million words). From each we sampled about 250 instances of the use of the term emolument (and read over 150,000 words of context--the equivalent of a Harry Potter novel). We found that the broad, general sense of emolument was the most common compared to the narrow, office/public employment sense in the “ordinary” corpus (54.6% to 34.1%, 11.2% ambiguous), but that the general sense was less common than the narrow sense in the “elite” corpus (29.3% to 64.8%, 5.9% ambiguous) and the “legal” corpus (25.6% and 68.7%, 5.7% ambiguous). When just looking at instances in our sample where the recipient is an office, we found the narrow sense dominated: “ordinary” corpus (84.2%), “elite” corpus (88.0%), “legal” corpus (94.2%). And the narrow sense was even more common when looking in the context of emoluments from government: “ordinary” corpus (86.7%), “elite” corpus (92.6%), and “legal” corpus (97.3%). This paper concludes that the Congressional and Presidential Emoluments Clauses would have most likely been understood to contain a narrow, office or public-employment sense of emolument. But the Foreign Emoluments Clause is more ambiguous given its modifying language “of any kind whatever.” Further research into that phrase is needed.
Download the article from SSRN at the link.

Heyman on The Light of Nature: John Locke, Natural Rights, and the Origins of American Religious Liberty @ChicagoKentLaw @MarqLRev

Steven J. Heyman, Chicago-Kent College of Law, IIT, is publishing The Light of Nature: John Locke, Natural Rights, and the Origins of American Religious Liberty in the Marquette Law Review. Here is the abstract.
This Article explores John Locke’s theory of religious liberty, which deeply influenced the adoption of the First Amendment and the first state bills of rights. Locke sharply criticized the religious and political order of Restoration England – an order in which the king claimed to hold absolute power by divine right and in which individuals were required by law to conform to the established church. In opposition to this regime, Locke developed a powerful theory of human beings as rational creatures who were entitled to think for themselves, to direct their own actions, and to pursue their own happiness within the bounds of the law of nature. He then used this view to give a new account of political and religious life. To promote their happiness in this world, rational individuals would agree to give up some of their natural freedom and to enter into a civil society for the protection of their natural rights or “civil interests” of life, liberty, and property. By contrast, Locke argued that, when they made the social contract, rational individuals would not surrender any of their religious freedom, for they could reasonably hope to attain eternal happiness or salvation only if they used their minds to seek the truth about God and the path he desired them to follow. For Locke, the most basic precepts of religion could be known by the light of nature and reason, while others were matters of faith. Locke’s conception of human beings as rational creatures provided the basis not only for individual rights but also for duties toward others. Reason required one to recognize that other individuals were entitled to the same rights one claimed for oneself. It followed that all members of society were obligated to respect both the religious freedom and the civil rights of those who differed with them in matters of religion. In addition to defending religious freedom, Locke advocated a strict separation of church and state. Because liberty of conscience was an inalienable right, individuals would not grant the state any authority over spiritual matters. Instead, those matters were reserved for the individuals themselves as well as for the religious societies or churches that they voluntarily formed to promote their salvation. In these ways, Locke sought not only to protect the inherent rights of individuals but also to dissolve the dangerous unity between church and state that characterized the Restoration. At the same time, he sought to transform the nature of those institutions in a profound way: instead of being rooted in any notion of a hierarchy ordained by God or nature, both church and state should be founded on the consent of free and equal individuals and should respect their nature as rational beings. Understood in this way, religion would be an ally rather than a threat to human liberty. After exploring Locke’s theory, the Article sketches some of the ways that it contributed to the eighteenth-century American view of religious liberty that was embodied in First Amendment.
Download the article from SSRN at the link.

September 26, 2017

A New Book From Hart Publishing: Nahel Asfour: Wrongful Enrichment: A Study in Comparative Law and Culture @hartpublishing @nn_asfour

New from Hart Publishing:

Nahel Asfour, Wrongful Enrichment: A Study in Comparative Law and Culture (2017)(International Studies in the Theory of Private Law).  Here is a description of the book's contents.

This book analyses enrichment law and its development and underpinning in social culture within three geographical regions: the United States, western members of the European Union and the late Ottoman Empire. These regions correspond, though imperfectly, with three different legal traditions: the American, continental and Islamic traditions. 
The book argues that we should understand law as a mimetic artefact. In so doing, it explains how typical patterns and exemplary articulations of wrongful enrichment law capture and reiterate vocal cultural themes found in the respective regions. The book identifies remarkable affinities between poetic tendencies, structures and default dispositions of wrongful enrichment law and cultural world views. It offers bold accounts of each region's law and culture providing fertile grounds for external and comparative elucidations of the legal doctrine.

Media of Wrongful Enrichment

September 25, 2017

Tilburg University Accepting Applications For Witteveen Memorial Fellowship In Law and Humanities @TilburgU

From Michiel Bot, Tilburg University:

In 2014, Tilburg University established the annual Witteveen Memorial Fellowship in Law and Humanities in order to commemorate the life and work of prof. Willem Witteveen. The fellowship aims to enable a junior scholar (PhD or postdoc level) to develop her or his research in the field of law and humanities during a visit to Tilburg. The fellowship seeks to promote research on the relations between law and language, rhetoric, narrative, image, sound, and/or culture.
 What is expected of the Witteveen Memorial Fellow:During the period of the fellowship the scholar will be present in at Tilburg Law School, participate in the academic life of both Tilburg Law School and the Tilburg School of Humanities, and deliver a guest lecture to students. Any publications resulting from the fellowship should mention the Witteveen Memorial Fellowship in Law and Humanities.
 Eligible CandidatesScholars who are currently working on a PhD dissertation (at least in the third year of their PhD trajectory) or who obtained their PhD within the last five years are eligible. What the Witteveen Memorial Fellowship in Law and Humanities offers:The Witteveen Memorial Fellow will have office space and facilities at Tilburg Law School, as well as full library access. We offer reimbursement of travel expenses and accommodation expenses (max. 5,250 Euro). The Witteveen Memorial Fellowship does not constitute an employment relationship. For this reason, Tilburg Law School will not pay salary and will not make social insurance contributions or contributions to pension or unemployment insurance. Fellows will need to find their own accommodation. In principle, the Witteveen Memorial Fellow in Law and Humanities will be at Tilburg Law School for the duration of three months in the spring following the application deadline. Candidates are welcome to propose a different period. In case the fellow will visit for  less than three months, the maximum amount to be reimbursed will be proportionately lower. If the fellow’s visit will be longer, the total amount to be reimbursed remains 5,250 euro. Professor Willem Witteveen (1952-2014) was an early representative of the interdisciplinary and contextual approach to legal scholarship in the Netherlands. Whereas the emphasis of this approach has often been on the social sciences, Willem’s focus was on intersections between law and the humanities. Willem’s many contributions to academia, politics and society combined rhetoric, literary analysis, political philosophy and intellectual and cultural history. In his teaching, Willem embraced  the classic Bildungsideal, and put textual interpretation at the heart of his classes. He fostered an academic environment that revolved around thinking and discussing. You can apply for the fellowship here:


Somos on George Ticknor's Progress of Politicks (1816): An American Reception of German Comparative Constitutional Thought @msomos

Mark Somos, Harvard University, Edmond J. Safra Center for Ethics, Harvard Law School, has published George Ticknor’s Progress of Politicks (1816): An American Reception of German Comparative Constitutional Thought as Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2017-20. Here is the abstract.
George Ticknor (1791-1871) was a famous American educator, reformer, and public intellectual. After a brief legal career he moved to Germany to obtain the best possible education in the humanities, and take his knowledge and ideas for educational reform back to the young United States with him. His unpublished notebooks reveal that like many of his peers, such as John Quincy Adams, George Bancroft, or Edward Everett, Ticknor was also fascinated by German constitutional theory and history, their connection to politics and human geography, and the forerunners of German legal science. Throughout his life, Ticknor revised his notes and drew on them in his teaching. Progress of Politicks, one of the notebooks, is transcribed and edited here to offer new insights into German and American mutual perceptions, self-perceptions and exchange, legal education, and the origins of legal science in both Germany and the United States.
Download the article from SSRN at the link.

Burazin on Brian Leiter and the Naturalization of the Philosophy of Law

Luka Burazin, University of Zagreb Faculty of Law, is publishing Brian Leiter and the Naturalisation of the Philosophy of Law in The Province of Jurisprudence Naturalized (Jerzy Stelmach, Bartosz Brożek, and Łukasz Kurek eds. Warsaw: Wolters Kluwer 2017).
The paper opens with an exposition of the basic ideas of the philosophical school of naturalism and its most widespread version, methodological naturalism. This is followed by three of Leiter’s proposals for the naturalisation of questions of the philosophy of law: the first consists in naturalising the theory of adjudication modelled on replacement and normative naturalism in epistemology, the second consists in turning the philosophy of law into the abstract and reflective part of the empirical social sciences on law, and the third consists in colonising the philosophy of law with experimental philosophy. The thesis that the last version of Leiter’s naturalism is, in fact, reduced to a so-called modest methodological naturalism is put forward. The paper closes with the most important criticisms of Leiter’s naturalistic methodological approach, as well as with the thesis on the complementarity between conceptual analysis and modest methodological naturalism.
Download the essay from SSRN at the link.

September 24, 2017

Rick Grimes (The Walking Dead) In an Australian Court @bucketorange

More of Sarah Lynch's musings on chargeable crimes for tv characters here for Bucket Orange. This time she considers what Rick Grimes of The Walking Dead has been up to, and what charges he might face in an Australian court.

Dracula In Court @bucketorange

By Sarah Lynch, for Bucket Orange Magazine, a discussion of possible crimes Dracula could be charged with under Australian law. They include stalking and false imprisonment. But he's so charming...

September 22, 2017

Sheryll Cashin's New Book on the Loving v. Virginia Case: Loving: Interracial Intimacy in America and the Threat To White Supremacy @SheryllCashin @GeorgetownLaw

New from Beacon Press: Sheryll Cashin, Loving: Interracial Intimacy in America and the Threat To White Supremacy (2017). Here is a description of the book's contents.
Loving beyond boundaries is a radical act that is changing America. When Mildred and Richard Loving wed in 1958, they were ripped from their shared bed and taken to court. Their crime: miscegenation, punished by exile from their home state of Virginia. The resulting landmark decision of Loving v. Virginia ended bans on interracial marriage and remains a signature case—the first to use the words “white supremacy” to describe such racism. Drawing from the earliest chapters in US history, legal scholar Sheryll Cashin reveals the enduring legacy of America’s original sin, tracing how we transformed from a country without an entrenched construction of race to a nation where one drop of nonwhite blood merited exclusion from full citizenship. In vivid detail, she illustrates how the idea of whiteness was created by the planter class of yesterday and is reinforced by today’s power-hungry dog-whistlers to divide struggling whites and people of color, ensuring plutocracy and undermining the common good. Cashin argues that over the course of the last four centuries there have been “ardent integrators” and that those people are today contributing to the emergence of a class of “culturally dexterous” Americans. In the fifty years since the Lovings won their case, approval for interracial marriage rose from 4 percent to 87 percent. Cashin speculates that rising rates of interracial intimacy—including cross-racial adoption, romance, and friendship—combined with immigration, demographic, and generational change, will create an ascendant coalition of culturally dexterous whites and people of color. Loving is both a history of white supremacy and a hopeful treatise on the future of race relations in America, challenging the notion that trickle-down progressive politics is our only hope for a more inclusive society. Accessible and sharp, Cashin reanimates the possibility of a future where interracial understanding serves as a catalyst of a social revolution ending not in artificial color blindness but in a culture where acceptance and difference are celebrated.


Magendanz on the Structure of Religious Violence: Hugo Grotius on Property and Pious War @DougMagendanz

Doug Magendanz, University of Queensland, has published The Structure of Religious Violence: Hugo Grotius on Property and Pious War. Here is the abstract.
Hugo Grotius (1583-1645) is well-known for his defence of just war in The Rights of War and Peace (1625). He is less well-known for his defence of pious war and religious violence. God wants Christians to wage just war against the wicked, he argued, this being part of ‘the whole duty of a Christian solider’. Grotius held that religion presents no barrier to military alliances and commercial trade with heretics, infidels, and pagans. On the contrary, religion is an ideological tool to be used to achieve national prosperity and international justice (Immanuel Kant famously called him a ‘sorry comforter’ of military aggression). Grotius replaced the traditional defence of religious violence (the liberty of the Church) with a new libertarian defence of property rights. Religious war is justified on non-religious grounds, namely the protection of property and the recovery of just compensation for injury and sin. This paper examines Grotius’s defence of pious war, paying special attention to the creditor-debtor relationship as foundational structure of religious violence.
Download the article from SSRN at the link.

West on The New Legal Criticism @GeorgetownLaw

Robin L. West, Georgetown University Law Center, has published The New Legal Criticism at 117 Columbia Law Review Online 144 (2017). Here is the abstract.
Professors Hanoch Dagan and Avihay Dorfman’s article Just Relationships is a fundamental reinterpretation of the moral ideals of large swaths of private law. Its significance, however, may go beyond even that broad ambition. In this Response, I suggest that Just Relationships is also an exemplar — perhaps par excellence — of an emergent form of critical discourse, which may itself foreshadow a paradigm shift in contemporary critical legal scholarship. That new form of scholarship might usefully be dubbed “the new legal criticism.” The label serves partly as an echo of the “New Criticism” movement that emerged in literary criticism in the middle of the twentieth-century, which, in methodological ways, the new legal criticism very much resembles. But primarily, the label “new legal criticism” suggests that this ascendant group of legal scholars articulates a different point of departure for critical thinking about law — particularly for critical thinking about private law — from that which most immediately preceded it in twentieth century legal thought: the critical legal studies movement. Part I describes new legal criticism and compares it with the critical legal scholarship movements of the 1970s, 1980s, and 1990s. Part II further expands my claim that Just Relationships is a good exemplar of the new legal criticism by looking at the roles played by relational justice in Dagan and Dorfman’s explication of their jurisprudential claims. Part III looks at the limits of new legal criticism, again as exemplified by Just Relationships. I will explore whether the reliance of the new legal criticism on law itself in the development of the idea of justice limits its potency as a form of criticism by comparing the authors’ discussion of discrimination in housing with a subject they do not address, at-will employment. Finally, the conclusion explores possible avenues of further exploration within the authors’ chosen field — private law, largely understood — and within the parameters set by the new legal criticism’s premises.

Download the article from SSRN at the link. 

September 20, 2017

West In Praise of Richard Weisberg's Intransigence @GeorgetownLaw @CardozoLaw

Robin L. West, Georgetown University Law Center, has published In Praise of Richard Weisberg's Intransigence at 29 Law & Literature 21 (2017). Here is the abstract.
In early essays on Herman Melville’s Billy Budd, Sailor, Richard Weisberg startled the literary and legal academic world with a novel claim: Captain Vere, he argued, far from being a tragic hero resigned to the moral and legal necessity of an unpopular act, as he had been commonly understood, was a murderer. His summary execution of Billy Budd, Weisberg showed, was neither required, excused, nor justified by law. Rather, Vere engineered an unreviewable conviction and death sentence, contrary to both the letter and spirit of the governing positive law, for personal gain. But why was Weisberg’s claim so novel? Why was it that for seven decades, well over half a century, Vere’s villainy was so obscure, even to so many legally sophisticated readers? In this article, I argue that the obscurity of Vere’s villainy resulted from the dominant legal theories developed over the past seven decades. This, in turn, explains the novelty of Weisberg’s understanding of Vere’s character: his understanding rests on a conception of law and legal meaning distinctively outside all our received jurisprudential traditions. And it suggests a much-needed corrective, not only of our understanding of Melville’s story, but also of our conventional and critical jurisprudence. It suggests the case, more specifically, for moving our conventional legal thinking away from its focus on the unjust law, and toward the duplicitous or unjust adjudicator, and for moving our critical sensibility away from its still-dominant commitments to indeterminacy, legal skepticism, and interpretive flexibility, and toward an appreciation of the virtues of legal intransigence. In the first part of this article, I put forward an account of why it was that Richard Weisberg could see clearly what was beyond the reach to most of Billy Budd’s professional readers for the duration of the book’s life, both in law and in literature. In the second part, I turn to Weisberg’s recent defense of legal intransigence, suggesting some reasons we should attend more carefully to the case Weisberg has made for intransigence and against “flexibility” in law and jurisprudence. I then offer a couple criticisms along with a qualified endorsement of Weisberg’s brief for interpretive fidelity to positive law, informed by humane commitments to text, law, and moral rectitude.
Download the article from SSRN at the link.

Munshi on Comparative Law and Decolonizing Critique @GeorgetownLaw

Sherally K. Munski, Georgetown University Law Center, has published Comparative Law and Decolonizing Critique. Here is the abstract.
This essay seeks to reanimate comparative legal scholarship by reorienting it towards decolonizing critique. In his critical assessment of the state of the field, Pierre Legrand suggests that comparative law has become mired in a solipsistic and outmoded style of positivism. Drawing upon theoretical insights from critical theory, Legrand argues that comparative law might render itself more generative and more relevant by engaging in a more contextualized analysis of law and encouraging active interpretation beyond descriptive reporting. In this essay, I extend Legrand’s arguments to suggest that an emancipated, incorporative, and interdisciplinary comparative law might play an important role in decolonizing legal scholarship more broadly. Founded in a commitment to constrain an ethnocentric impulse in legal discourse, comparative law might be expanded to challenge the varieties of Eurocentrism that continue to define legal scholarship and study, while providing hospitable ground for critical and interdisciplinary projects aimed at exploring the colonial roots of both the contemporary nation-state system and globalized racial formations.
Download the article from SSRN at the link.

Feminism In London: An October 14-15 Event Sponsored by FiLiA @FiLiA_charity @ThomGiddens

Via Thom Giddens @ThomGiddens:

FiLiA announces a conference at the Institute of Education, London, October 14-15, 2017, on Feminism in London. Some of the panels and workshops include "When Courage Is "Illegal," "Justice For Women," "Prison Doesn't Work," "Feminist Art," "International Activism," "Domestic Abuse and the Family Courts," and Lesbian Line: 40 Years."

There are also a number of interesting events planned, including art exhibitions and some performances and readings. There's also a breakout session on sex robots: I would love to attend that.

This event looks wonderful.

September 19, 2017

Alexander on Objects of Art; Objects of Property @CornellLaw

Gregory S. Alexander, Cornell Law School, has published Objects of Art; Objects of Property as Cornell Legal Studies Research Paper No. 17-39. Here is the abstract.
Seemingly worlds apart, art and the law of property in fact share much in common. Some of this shared space is obvious, the result of their intersection through property law's protection and regulation of art. But another aspect of their commonality is considerably less obvious. Both rely, implicitly and in ways not always acknowledged, on assumptions about objects in the world-thing-ness. That is, both have relied, or traditionally have done so, on certain assumptions about the nature of objects-the objects of art and the objects of property-and the upshot of those assumptions is that those objects are characterized by thing-ness, i.e., physicality, tangibility, stability, durability. Further, these assumptions are not only parallel to each realm but intersect with each other in functional ways. Notably, property law's interaction with art depends upon art's assumption of its own thing-ness, for property law itself traditionally has depended upon certain assumptions regarding the nature of property-what can be property. It has assumed that art is a tangible, stable, and durable object.
Download the article from SSRN at the link.

Silver on Serfdom By Contract In the Late Roman Empire

Morris Silver, City College of New York, Economics Department, has published Serfdom by Contract in the Late Roman Empire. Here is the abstract.
Legal codes and other documents of the late Roman Empire reveal a system, the colonate, which resembles serfdom in the Middle Ages. Farmers (coloni) had their (head and land) taxes paid by estate owners in whose census rolls they were registered. If the land changed ownership coloni were entitled to stay and were registered in the tax roll of the new owner. However, coloni and their offspring lacked the right to migrate. The paper argues that the pristine or original form of the colonate is a voluntary contractual arrangement among free farmers, estate owners, and the imperial Fiscus which acquired a public law dimension because it required a change in the personal status of the farmer. By means of this serfdom contract the contractors expected to share in the aggregate gains from reducing tax-collection costs and from stabilizing tax revenues. The paper goes on to suggest that a secondary or derived form of the serfdom contract probably emerged in response to the Roman state’s interventions in credit markets. The paper next considers the implications of the colonate for economic efficiency and concludes with some observations on the reasons for changes over time in its importance.
Download the article from SSRN at the link.

New From McGill University Press: Censored: A Literary History of Subversion, by Matthew Fellion and Katherine Inglis @EdinburghUni

Via Simon Stern (ArsScripta)

New from McGill University Press:

Matthew Fellion, Independent Scholar, and Katherine Inglis, Department of English, University of Edinburgh, have published Censored: A Literary History of Subversion and Control (2017).


When Henry Vizetelly was imprisoned in 1889 for publishing the novels of Émile Zola in English, the problem was not just Zola’s French candour about sex - it was that Vizetelly’s books were cheap, and ordinary people could read them. Censored exposes the role that power plays in censorship. In twenty-five chapters focusing on a wide range of texts, including the Bible, slave narratives, modernist classics, comic books, and Chicana/o literature, Matthew Fellion and Katherine Inglis chart the forces that have driven censorship in the United Kingdom and the United States for over six hundred years, from fears of civil unrest and corruptible youth to the oppression of various groups - religious and political dissidents, same-sex lovers, the working class, immigrants, women, racialized people, and those who have been incarcerated or enslaved. The authors also consider the weight of speech, and when restraints might be justified. Rich with illustrations that bring to life the personalities and the books that feature in its stories, Censored takes readers behind the scenes into the courtroom battles, legislative debates, public campaigns, and private exchanges that have shaped the course of literature. A vital reminder that the freedom of speech has always been fragile and never enjoyed equally by all, Censored offers lessons from the past to guard against threats to literature in a new political era.

Pert on the Development of Australia's Legal Personality

Alison Pert, University of Sydney Law School, has published The Development of Australia's International Legal Personality at 34 Australian Yearbook of International Law 149 (2017). Here is the abstract.
This article considers the concepts of statehood, sovereignty, independence and international legal personality as they applied to Australia in the early years after federation in 1901. It outlines the reasons for, and the process of, federation, and charts the subsequent uneven growth in autonomy in matters of foreign relations granted by the United Kingdom. One of the clearest manifestations of such autonomy is the power to enter into treaties, and the development of this power is therefore described in some detail. The precise international legal status of Australia and the other British Dominions in the early part of the 20th century was a mystery to most legal commentators, both within and outside the British Empire. This uncertainty was compounded by the rapidity of constitutional change within the Empire, particularly in the 1920s, and by Australia’s apparent diffidence to independence. For these reasons, few writers have suggested a specific date on or by which Australia acquired international legal personality. This article argues that regardless of when Australia might have gained full international legal personality, tantamount to independence, it had acquired “almost full” international personality by 1923, sufficient to enable it to act autonomously on the international plane.
Download the essay from SSRN at the link.

September 18, 2017

New From OUP: New Directions in Law and Literature @OxUniPress

New from Oxford University Press: New Directions in Law and Literature (Elizabeth S. Anker and Bernadette Meyler, 2017). Here is a description of the contents.
After its heyday in the 1970s and 1980s, many wondered whether the law and literature movement would retain vitality. This collection of essays, featuring twenty-two prominent scholars from literature departments as well as law schools, showcases the vibrancy of recent work in the field while highlighting its many new directions. New Directions in Law and Literature furnishes an overview of where the field has been, its recent past, and its potential futures. Some of the essays examine the methodological choices that have affected the field; among these are concern for globalization, the integration of approaches from history and political theory, the application of new theoretical models from affect studies and queer theory, and expansion beyond text to performance and the image. Others grapple with particular intersections between law and literature, whether in copyright law, competing visions of alternatives to marriage, or the role of ornament in the law's construction of racialized bodies. The volume is designed to be a course book that is accessible to undergraduates and law students as well as relevant to academics with an interest in law and the humanities. The essays are simultaneously intended to be introductory and addressed to experts in law and literature. More than any other existing book in the field, New Directions furnishes a guide to the most exciting new work in law and literature while also situating that work within more established debates and conversations.

Table of Contents:

Part One-Genealogies and Futures
1) Elizabeth S. Anker and Bernadette Meyler, 2) Brook Thomas, 3) Caleb Smith, 4) Austin Sarat,
Part Two-Methods5) Martin Jay Stone, 6) Peter Brooks, 7) Ravit Reichman, 8) Janet Halley, 9) Lorna Hutson, 10) Bernadette Meyler, 11) Peter Goodrich, 12) Julie Stone Peters, 13) Elizabeth S. Anker,
Part Three-Cases
14) Anne Cheng, 15) Imani Perry, 16) Eric Cheyfitz and Shari Huhndorf, 17) Elliott Visconsi, 18) Elizabeth Emens, 19) Simon Stern, 20) Paul Saint-Amour, 21) Priscilla Wald, 22) Wai Chee Dimock,

The book is available in hardcover, paperback, and ebook.