Manko on Ideology and Legal Interpretation: Some Theoretical Considerations

Rafał Mańko, University of Amsterdam, Centre for the Study of European Contract law (CSECL), has published Ideology and Legal Interpretation: Some Theoretical Considerations in 1 Constitutional Values in Contemporary Legal Space 117 (Kalvis Torgāns et al., Riga 2016). Here is the abstract.

The aim of the present paper is to analyse the actual role of ideology in legal interpretation from the perspectives of legal theory, philosophy of law and theoretical sociology of law. Due to the unavoidable indeterminacy of legal language and the impossibility to predict all potential future situations at the stage of creating legal norms by the legislator, legal interpretation always involves a certain degree of discretionality on the side of the interpreter who fills in the gaps left by the legal materials by solutions consistent with that ideology.

Download the essay from SSRN at the link.

Poscher on the Normative Construction of Legislative Intent

Ralf Poscher, Albert-Ludwigs-University Freiburg, is publishing The Normative Construction of Legislative Intent in Droit & Philosophie, Annuaire de l‘ Institut Michel Villey (forthcoming). Here is the abstract.

Legislative intent is not only important for the legitimacy of large parts of the law. More fundamentally it is also central to an analytical reconstruction of legal hermeneutics. As amongst others the work of Paul Grice and Donald Davidson has highlighted, non-natural signs acquire their meaning only through the communicative intentions that are connected to them. No meaning, no interpretation and no hermeneutics of linguistic expressions can exist without communicative intentions, be they factual or fictive. Central to communicative intentions is an intentional subject. For codified law, that means the legislature. Without a convincing reconstruction of legislative intent, the whole analytical reconstruction of legal hermeneutics fails to get off the ground. In modern legal systems, however, legislation is a collective process involving often several hundred individuals. In the more recent literature the thus raised issues of collective intentionality have often been addressed by pointing to reductive accounts in the theory of action and group agency. There is, however, little reason to be confident that the conditions of reductive accounts of collective intentionality, which have been designed for small sized groups, can be met by the legislature. The essay shows why this is the case even if we take the anaphoric character of the vote on legislation into account. The anaphoric analysis of the voting act, however, allows to reveal the linguistic structure of our legislative practices and the normative assumptions build into it. It then becomes apparent, how our talk of legislative intent relies on normative ascriptions of communicative intentions to individual legislators. It is via normative ascriptions of intentions – also ubiquitous in other areas of the law – that we arrive at the necessary overlap of communicative intentions for a reductive account of legislative intent. This normative construction of legislative intent has to be distinguished from legal construction as a practice to amend the law mainly in cases where legislative intent runs out.

Download the essay from SSRN at the link. 

Very Bad Science Fiction Presidents

For the website Geek, K. Thor Jensen @kthorjensen gives us a list of really, really unappetizing sf Presidents. Remember Morgan Clark (Gary McGurk) from Babylon 5? Or Lex Luthor? How would you rank these candidates for Worst SF President Ever?

Cooper @SteveCooperEsq on Steinbeck and This Year's Election

Stephen Cooper discusses the meaning and relevance of John Steinbeck in the wake of Tuesday's election results. Mr. Cooper, a former D.C. public defender, is now a full-time writer who lives in Woodland Hills, California.

Wan on Masculinity and the Trials of Modern Fiction

Marco Wan, University of Hong Kong, has published Masculinity and the Trials of Modern Fiction (Routledge, 2016). Here is a description of the book's contents from the publisher's website.

How do lawyers, judges and jurors read novels? And what is at stake when literature and law confront each other in the courtroom? Nineteenth-century England and France are remembered for their active legal prosecution of literature, and this book examines the ways in which five novels were interpreted in the courtroom: Gustave Flaubert’s Madame Bovary, Paul Bonnetain’s Charlot s’amuse, Henry Vizetelly’s English translations of Émile Zola’s La Terre, Oscar Wilde’s The Picture of Dorian Gray, and Radclyffe Hall’s The Well of Loneliness. It argues that each of these novels attracted legal censure because they presented figures of sexual dissidence – the androgyne, the onanist or masturbator, the patricide, the homosexual, and the lesbian – that called into question an increasingly fragile normative, middle-class masculinity. Offering close readings of the novels themselves, and of legal material from the proceedings, such as the trial transcripts and judicial opinions, the book addresses both the doctrinal dimensions of Victorian obscenity and censorship, as well as the reading practices at work in the courtroom. It situates the cases in their historical context, and highlights how each trial constitutes a scene of reading – an encounter between literature and the law – through which different forms of masculinity were shaped, bolstered, or challenged.

Schulz and Youn on Monsters and Madwomen? Neurosis, Ambition, and Mothering in Women Lawyers in Film

Jennifer L. Schulz, University of Manitoba Faculty of Law, and JiHyun Youn, Independent, are publishing Monsters & Madwomen? Neurosis, Ambition and Mothering in Women Lawyers in Film in Law, Culture, and Humanities (2016). Here is the abstract.

In this article we engage with the writings of feminist scholars Sandra Gilbert and Susan Gubar, whose landmark work, The Madwoman in the Attic, critiques the image of the female madwoman or monster. We use Gilbert and Gubar’s thesis of the female monster as the primary analytical framework for excavating three variants of female madness as depicted in three films: madness as neurosis using Laws of Attraction; monstrosity as ambition using Michael Clayton; and madness/monstrosity as failed motherhood using I Am Sam. Our goals for this article are to explore the ways in which popular films featuring female lawyers channel the “madwoman/monster” metaphor; trace those characters in terms of neuroses, ambition, and motherhood; and argue for the possibility of reconfiguring the notion of “madwoman” as a valid and meaningful mode of female subjectivity that expands the field of possibilities for women lawyers.

Download the article from SSRN at the link.

Bianchi @IHEID on International Law Theories: An Inquiry Into Different Ways of Thinking (Oxford, 2016)

Via @maksdelmar:

Andrea Bianchi, Professor of International Law, The Graduate Institute, Geneva, has published International Law Theories: An Inquiry into Different Ways of Thinking (Oxford University Press, 2016). Here is a description of the book's contents from the publisher's website.

Two fish are swimming in a pond. "Do you know what?" the fish asks his friend. "No, tell me." "I was talking to a frog the other day. And he told me that we are surrounded by water!" His friend looks at him with great scepticism: "Water? What's that? Show me some water!" This book is an attempt to stir up 'the water' the two fish are swimming in. It analyses the different theoretical approaches to international law and invites readers to engage with legal thinking in order to familiarize ourselves with the water all around us, of which we hardly have any perception. International lawyers and students of international law often find themselves focused on the practice of the law rather than the underlying theory. The main aim of this book is to provide interested scholars, practitioners, graduate, and postgraduate students in international law and other disciplines with an introduction to various international legal theories, their genealogies, and critique. By providing an analytical approach to international legal theory, the book encourages readers to sharpen their sensitivity to these different methodologies and to consider how the presuppositions behind each theory affect analysis, research, and practice in international law. Theories of International Law is intended to assist students, scholars, and practitioners in reflecting more generally how knowledge is formed in the field.

 

Peltz-Steele @RJPeltzSteele on Ways of Expressing Disfavored Ideas

Richard J. Peltz-Steele, University of Massachusetts School of Law, Dartmouth, has published Frakking Flyting: Chasing the Neophemism. Here is the abstract.

A survey of “bad language” study reveals that power lies not in bad words themselves, but in their meaning, or the ideas with which they are associated. Put simply, words are not taboo; ideas are. Fuck is not taboo per se; its vulgar sexual connotation is. The fluid capacity of words to associate or dissociate with ideas is made manifest in contemporary media with the proliferation of “the near swear,” or “fake swear.” Our pantheon of terminology for the linguistic expression of taboo ideas presently includes dysphemisms, which are offensive renditions (fucking); euphemisms, which are inoffensive, often metaphorical renditions (making love); and orthophemisms, which are sober renditions (having sexual intercourse). This paper posits a fourth category: the neophemism. A neophemism is a new word associated with taboo expression, usually for the purpose of evading censorship or reinforcing constructs in fiction. Frakking is a neophemism for fucking. Neophemisms are experiencing a profound proliferation at present because of the explosive growth of electronic media. But the neophemism is not a new device. Fuck has neophemisms in many variations, form from firk (arguably) in Shakespeare to fug in Norman Mailer to frak in Glen A. Larson’s Battlestar Galactica. Other variants form from truncation, heterographs, homophones, metathesis, rhyming slang, and other word play. Neophemisms can be tools to effect social change because they offer an alternative manner of expression about taboo ideas. Accordingly, neophemisms present a curious problem for the regulator, who would resist social change. If a neophemism affords a speaker access to taboo subject matter, then the regulator has incentive to censor. Censorship of neophemisms points down a dangerous road, because free expression ultimately is jeopardized by unbridled regulatory discretion. In the end, neophemisms demonstrate the inevitability of social change and the futility of enforcing social taboo by speech regulation.

Download the article from SSRN at the link.

Bruncevic @doctorbruncevic on Law, Art, and the Commons

Merima Bruncevic, Department of Law, University of Gothenburg, is publishing Law, Art and the Commons (Routledge, 2016). Here is a description of the book's contents from the publisher's website.

The concept of the cultural commons has become increasingly important for legal studies. Within this field, however, it is a contested concept: at once presented as a sphere for creativity, democratic access and freedom of speech, and as one that denies property rights and misappropriates the public domain. In this book, Merima Bruncevic takes up the cultural commons not merely as an abstract notion, but in its connection to physical spaces such as museums and libraries. A legal cultural commons can, she argues, be envisioned as a lawscape that can quite literally be entered and engaged with. Focusing largely on artin the context of the copyright regime, but also addressing a number of cultural heritage issues, the book draws on the work of Deleuze and Guattari in order to examine the realm of the commons as a potential space for overcoming the dichotomy between the owner and the consumer of culture. Challenging this dichotomy, it is the productive and creative potential of law itself that is elicited through the book’s approach to the commons as the empirical basis for a new legal framework, which is able to accommodate a multitude of interests and values.

Justin O'Brien's Book on James M. Landis Soon To Be Available in Paperback

Hart Publishing is making available a paperback edition of Justin O'Brien's The Triumph, Tragedy and Lost Legacy of James M. Landis (Hart Publishing, 2017). Here is a description of the book's contents from the publisher's website.

James M Landis – scholar, administrator, advocate and political adviser – is known for his seminal contribution to the creation of the modern system of market regulation in the USA. As a highly influential participant in the politics of the New Deal he drafted the statute which was to become the foundation for securities regulation in the US, and by extension the founding principle of financial market regulation across the world. He was also a complex and in some ways tragic figure, whose glittering career collapsed following the revelation that he had failed to pay tax for a five year period in the 1950s. The oversight was to cost possible elevation to the Supreme Court, forced prosecution and sentencing in 1963 to one month's imprisonment, commuted to forced hospitalisation, and subsequent suspension of licence to practise. This candid and revealing book sets his life in the context of his work as an academic, legislative draftsman, administrator and Dean of Harvard Law School. In rescuing from history Landis's battles and achievements in regulatory design, theory and practice, it speaks directly to the perennial problems in financial market regulation - how to deal with institutions deemed too big to fail, how to regulate the sale of complex financial instruments and what role can the professions play as gatekeepers of market integrity. It argues that in failing to learn from the lessons of history we limit the capacity of regulatory intervention to facilitate cultural change, without which contemporary responses to financial crises are destined to fail.

Raffield on The Art of Law in Shakespeare

Paul Raffield, Professor of Law, University of Warrick, is publishing The Art of Law in Shakespeare (Hart Publishing, 2017). Here is a description of the book's contents from the publisher's website.

Through an examination of five plays by Shakespeare, the author analyses the contiguous development of common law and poetic drama during the first decade of Jacobean rule. The broad premise of the book is that the 'artificial reason' of law was a complex art form, which shared the same rhetorical strategy as the plays of Shakespeare. Common law and Shakespearean drama of this period employed various aesthetic devices to capture the imagination and the emotional attachment of their respective audiences. Common law of the Jacobean era, as spoken in the law courts, learnt at the Inns of Court, and recorded in the law reports, used imagery that would have been familiar to audiences at the plays of Shakespeare. In its juridical form, English law was intrinsically dramatic, its adversarial mode of expression being founded on an agonistic model. Conversely, Shakespeare borrowed from the common law some of its most critical themes: justice, legitimacy, sovereignty, community, fairness, and (above all else) humanity. Each chapter investigates a particular aspect of the common law, seen through the lens of a specific play by Shakespeare. Topics include the unprecedented significance of rhetorical skills to the practice and learning of common law (Love's Labour's Lost); the early modern treason trial as exemplar of the theatre of law (Macbeth); the art of law as the legitimate distillation of the law of nature (The Winter's Tale); the efforts of common lawyers to create an image of nationhood from both classical and Judaeo-Christian mythography (Cymbeline); and the theatrical device of the island as microcosm of the Jacobean state and the project of imperial expansion (The Tempest).

Thomas Giddens @ThomGiddens on Comics and Legal Aesthetics: Multimodality and the Haunted Mask of Knowing (Routledge, 2017)

Routledge is publishing a wealth of really interesting books in the area of law and the humanities this year and next. Here's another.

Thomas Giddens, St. Mary's University, is publishing On Comics and Legal Aesthetics: Multimodality and the Haunted Mask of Knowing (2017) (due next summer or autumn). Here is a description of the book's contents from the publisher's website.

Law brings certainty to life. Its production of and reliance upon rational text as the predominant way of knowing about, and thus judicially managing, the world enables law to give practical and certain answers to difficult and complex moral, judicial and philosophical questions. But law’s conscious ‘certainty’ involves the denial of alternative ways of knowing, and a repression of the aesthetic and the visual within dominant forms of legal knowledge. Tapping into the recent ‘turn’ towards literary, cultural and visual concerns in legal studies, this book examines the critical value that comics can bring to law. Situated in-between the rational, textual, aesthetic and the visual, comics are, this book demonstrates, uniquely able to explore the limits of the legal text; and, in expanding legal discourse, to offer new ways of figuring the future of law.

Taking Popular Culture Seriously: Daniel Hourigan @dphourigan's New Book on Law and Enjoyment

Daniel Hourigan, University of Southern Queensland, is publishing Law and Enjoyment: Power, Pleasure and Psychoanalysis (Routledge, 2016). Here is a description of the book's contents from the publisher's website.

This book advocates, and develops, a critical account of the relationship between law and the largely neglected issue of ‘enjoyment’. Taking popular culture seriously – as a lived and meaningful basis for a wider understanding of law, beyond the strictures of legal institutions and professional practices – it takes up a range of case studies from film and literature in order to consider how law is iterated through enjoyment, and how enjoyment embodies law. Drawing on psychoanalytic theory, this book addresses issues such as the forced choice to enjoy the law, the biopolitics of tyranny, the enjoyment of law’s contingency, the trauma of the law’s symbolic codification of pleasure, and the futuristic vision of law’s transgression. In so doing, it forges an important case for acknowledging and analyzing the complex relationship between power and pleasure in law – one that will be of considerable interest to legal theorists, as well as those with interests in the intersection of psychoanalytic and cultural theory.

A New Book on Crime Fiction and the Law, edited by Maria Aristodemou @maariaris, Fiona Macmillan, and Patricia Tuitt

Another interesting book due out next month from Routledge:

Crime Fiction and the Law (Maria Aristodemou, Fiona Macmillan, and Patricia Tuitt, eds., 2016). Here is a description of the book's contents from the publisher's website.

This book opens up a range of important perspectives on law and violence by considering the ways in which their relationship is formulated in literature, television and film. Employing critical legal theory to address the relationship between crime fiction, law and justice, it considers a range of topics, including: the relationship between crime fiction, legal reasoning and critique; questions surrounding the relationship between law and justice; gender issues; the legal, political and social impacts of fictional representations of crime and justice; post-colonial perspectives on crime fiction; as well as the impact of law itself on the crime fiction’s development. Introducing a new sub-field of legal and literary research, this book will be of enormous interest to scholars in critical, cultural and socio-legal studies, as well as to others in criminology, as well as in literature.

A New Book on Law's "Spatial Turn": Spaces of Justice, Edited by Chris Butler and Edward Mussawir

Chris Butler and Edward Mussawir, both of the Griffith Law School, are editing Spaces of Justice: Peripheries, Passages, Appropriations (Routledge, 2017). Here is a description of the book's contents from the publisher's website.

This collection is inspired by the transdisciplinary possibilities posed by the connections between space and justice. Drawing on a variety of theoretical influences that include Henri Lefebvre, Gilles Deleuze and Felix Guattari, Doreen Massey, Gillian Rose, Walter Benjamin, Elias Canetti, Antonio Negri and Yan Thomas, the contributors to this book conduct a series of jurisprudential, aesthetic and political inquiries into ‘just’ modes of occupying space, and the ways in which space comes under the signs of law and justice. Bringing together leading critical legal scholars with theorists and practitioners from other disciplines within the humanities, Spaces of Justice investigates unexplored associations between law and architectural theory, the visual arts, geography and cultural studies. The book contributes to the ongoing destabilisation of the boundaries between law and the broader humanities and will be of considerable interest to scholars and students with an interest in the normative dimensions of law’s ‘spatial turn’.

Forthcoming from Routledge: Envisioning Legality: Law, Culture, and Representation (2017)

Forthcoming from Routledge: Envisioning Legality: Law, Culture and Representation (William Macneil, Timothy Peters, and Karen Crawley, 2017). Here is a description of the contents from the publisher's website.

Envisioning Legality: Law, Culture and Representation is a path-breaking collection of some of the world’s leading cultural legal scholars addressing issues of law, representation and the image. Law is constituted in and through the representations that hold us in their thrall, and this book focuses on the ways in which cultural legal representations not only reflect or contribute to an understanding of law, but constitute the very fabric of legality itself. As such, each of these ‘readings’ of cultural texts takes seriously the cultural as a mode of envisioning, constituting and critiquing the law. And the theoretically sophisticated approaches utilised here encompass more than simply an engagement with ‘harmless entertainment’. Rather they enact and undertake specific political and critical engagements with timely issues, such as: the redressing of past wrongs, recognising and combatting structural injustices, and orienting our political communities in relation to uncertain futures. Envisioning Legality thereby presents a cultural legal studies that provides the means for engaging in robust, sustained and in-depth encounters with the nature and role of law in a global, mediated world.

Forthcoming from Routledge: Julia Shaw on Law and the Passions (2017)

Forthcoming from Routledge:

Julia Shaw, Law and the Passions: A Discrete History (2017). Here is a description of the book's contents from the publisher's website.

Although the connection of law, passion and emotion has become an established focus in legal scholarship, the extent to which emotion has always been, and continues to be, a significant influence in informing legal reasoning, decision-making, decision-avoidance and legal judgment – rather than an adjunct – is still a matter for critical analysis. Engaging with the underlying social context in which emotional states are a motivational force – and have produced key legal principles and controversial judgments, as evidenced in a range of illustrative legal cases – Law and the Passions: A Discrete History provides a uniquely inclusive commentary on the significance and influence of emotions in the history and continuing development of legal institutions and legal dogma. Law, it is argued, is a passion; and, as such, it is a primarily emotional endeavour.

Forthcoming from Routledge: Law's Hermeneutics: Other Investigations

Forthcoming from Routledge:

Law's Hermeneutics: Other Investigations (Simone Glanert and Fabien Girard eds., 2017). Here is a description of the book's contents from the publisher's website.

Bringing together leading academics hailing from different cultural and scholarly horizons, this book revisits legal hermeneutics by making particular reference to philosophy, sociology and linguistics. On the assumption that theory has much to teach law, that theory motivates and enables, the writings of such intellectuals as Martin Heidegger, Hans-Georg Gadamer, Jacques Derrida, Paul Ricœur, Giorgio Agamben, Jürgen Habermas, Ronald Dworkin and Ludwig Wittgenstein receive special consideration. As it explores the matter of reading the law and as it inquires into the emergence of meaning within the dynamic between reader and text against the background of the reader’s worldly finiteness, this collection of essays wishes to contribute to an improved appreciation of the merits and limits of law’s hermeneutics which, it argues, is emphatically not to be reduced to a simple tool for textual exegesis.

On the Genealogy of Nietzsche's Pop Culture Image

Shon Arieh-Lerer and Daniel Hubbard examine Friedrich Nietzsche's writings, and the evolution of his influence and popular culture image here, for Slate.

Lederman on The Law (?) of the Lincoln Assassination

Martin Lederman, Georgetown University Law Center, has published The Law (?) of the Lincoln Assassination in Scholarship @ GEORGETOWN LAW, 2016. Here is the abstract.

Shortly after John Wilkes Booth killed Abraham Lincoln, President Andrew Johnson directed that Booth’s alleged coconspirators be tried in a makeshift military tribunal, rather than in the Article III court that was open for business just a few blocks from Ford’s Theater. Johnson’s decision implicated a fundamental constitutional question that had been a source of heated debate throughout the Civil War: When, if ever, may the federal government circumvent Article III’s requirements of a criminal trial by jury, with an independent, tenure-protected judge presiding, by trying individuals other than members of the armed forces in a military tribunal? This Article III question has been debated in several of the nation’s major wars, yet remains unresolved, particularly with respect to the trial of domestic-law offenses. Moreover, that question is especially significant in the United States’ current armed conflicts against nonstate terrorist organizations, such as al Qaeda, both because members of such enemy forces, who lack international law “combatant immunity,” often violate U.S. criminal laws, and because Congress has recently authorized military commissions to try such enemy forces for certain domestic-law, war-related offenses. In attempting to justify the constitutionality of such military trials, the government has, perhaps surprisingly, turned to the Lincoln assassination commission as a leading precedent, one that arguably helps to establish a longstanding political branch practice that should inform constitutional understandings. Such reliance on the Lincoln trial as legal authority is understandable, because that proceeding was, in Judge Kavanaugh’s words, “the highest-profile and most important U.S. military commission precedent in American history,” and thus it would be striking — indeed, a significant constitutional embarrassment — to conclude that the trial and convictions of the Lincoln conspirators were unlawful. As I demonstrate in this article, however, such respect for the Lincoln assassination trial as a canonical constitutional precedent would itself be historically anomalous. For almost 150 years it was virtually unthinkable for anyone to rely upon that proceeding as venerated legal authority: as one knowledgeable observer wrote, the Lincoln trial was a case of military jurisdiction that “no self-respecting military lawyer [would] look straight in the eye.” This article offers the first comprehensive account of the ways in which the Article III question was contested during and immediately after the Civil War, with particular attention to the Lincoln assassination trial. The article also carefully examines the place of the Lincoln trial in the national constitutional discourse after 1868 — the ways in which that proceeding, and other Civil War military trials, have been accorded authority, or dismissed as nonauthoritative, by later generations. This broader historical narrative thus can help inform current academic and judicial debates about whether and under what circumstances political branch practice, especially high-profile precedents, ought to inform, or “liquidate,” the meaning or proper application of the Constitution.

Download the article from SSRN at the link.

Alton on the Strange Case of Dr. Jekyll's Will

Stephen R. Alton, Texas A & M University School of Law, is publishing The Strange Case of Dr. Jekyll's Will: A Tale of Testamentary Capacity in the Tulsa Law Review. Here is the abstract.

Robert Louis Stevenson’s classic novella, The Strange Case of Dr. Jekyll and Mr. Hyde, published in 1886, is the well-known tale of a respected scientist (Dr. Henry Jekyll) who transforms himself into an evil-doer (Mr. Edward Hyde). While the work raises issues of tort and criminal liability, this article analyzes the legal issues presented by one particular and crucial plot device that Stevenson employs — the last will of Dr. Jekyll. It is this will that so obsesses Jekyll’s friend and solicitor, Gabriel John Utterson (through whose eyes the story unfolds), that Utterson is impelled to seek the truth behind his friend’s relationship to Hyde. At the end of Utterson’s search, the solicitor learns about Jekyll’s dangerous scientific experiment, which leads to the respected doctor’s moral downfall and his physical death. This article is presented as an imagined dialogue between the article’s author and Jekyll’s lawyer, Utterson, about the issues surrounding Jekyll’s mental capacity to make the will that left the doctor’s estate to Hyde. Jekyll’s will is an excellent case study for the application of various legal rules and doctrines regarding a testator’s mental capacity to make a valid will. These rules include those relating to the general soundness of the testator’s state of mind, the issues of undue influence and duress, and the doctrine of insane delusion. Stevenson’s novella is a wonderful vehicle for examining important legal problems that remain as relevant in America today as they were in England during Queen Victoria’s reign.

Download the article from SSRN at the link.

LGBTQ Characters and Their Representation On Television: The GLAAD Report 2016/2017

Bethonie Butler of the Washington Post discusses GLAAD's annual report, Where We Are On TV, '16-'17, on the number of LBGTQ characters on TV, which notes that those numbers are increasing. GLAAD says that 43 of the 895 recurrring TV characters are identifiably LBGTQ. For example, as many as 16 on MSM, cable, and streaming shows are transgender. Representation of diabled characters is up from less than one percent to nearly two percent.

About twenty percent of TV recurring characters are black, although female black characters continue to be less highly represented than black men.

The report contains more interesting information, and breakdowns by legacy tv, cable, and streaming networks.

The 2015 report is available here.

Polemos: Journal of Law, Literature, and Culture (Sept. 2016) Now Available

Volume 10, issue 2, September 2016, the new issue of Polemos: Journal of Law, Literature, and Culture is out. Here's a link to the contents.

Fables of the Law: Fairy Tales in a Legal Context. A New Volume Edited By Daniela Carpi and Marett Leiboff Available From DeGryuter

New from DeGryuter:

Fables of the Law: Fairy Tales in a Legal Context (Daniela Carpi and Marett Leiboff, 2016) (Law & Literature; 13).


This very interesting volume includes essays by Luis Gomez Romero, The Wondrous (Baroque) Gender Revolution, or the Rise and Fall of the Empire of Fairies, Cristina Costantini, The Haunting Memory of Law: Mystic Fables, Uncanny Presences and Normative Spectrality, Doris Pichler, Playing with Conventions and Traditions: The Modern Legal Fairy Tale, Anna Enrichtta Soccio, Divorce and the Failure of Law in Dickens's "Hard Times,"  Daniela Carpi, Fables of the Holocaust: Hansel and Gretel, and Giovanna Ligugnana, An Invented Executive: The Ministry of Magic in "Harry Potter." 

So many fascinating pieces: I've mentioned only a few.  Complete table of contents here.

Texas, the Law, and the "Lennie Standard"

The case of Moore v. Texas raises the question of whether the "Lennie Standard," named for and adopted from the character of Lennie in John Steinbeck's Of Mice and Men, is appropriate for determining whether an intellectual disabled defendant can appropriately be held responsible for his or her acts. More here in a discussion from On the Media, here from NPR, and here from the New York Times.

Abrams on References to Baseball in Judicial Opinions and Written Advocacy

Douglas E. Abrams, University of Missouri School of Law, has published References to Baseball in Judicial Opinions and Written Advocacy at 72 Journal of the Missouri Bar 268 (September-October 2016). Here is the abstract.

Professor Abrams authors a column, Writing it Right, in the Journal of the Missouri Bar. In a variety of contexts, the column stresses the fundamentals of quality legal writing - conciseness, precision, simplicity, and clarity. Future columns will be posted as they are published every three months or so.

Download the essay from SSRN at the link.

From The Hollywood Reporter @THR, News That a Series About the Original For Raymond Chandler's Philip Marlowe Is In the Works From the CW

Via @THR, news that the CW Network @TheCW is developing a private investigator show called Marlowe  that, although it will be set in 1937, will use stories from today. The premise: the main character is the original for Raymond Chandler's famous fictional PI, Philip Marlowe. Here's an L.A. Times story about Samuel Marlowe, the man who began detective work in twenties L.A.  It looks as if  he was the man on whom Chandler based his fictional sleuth.

Devon Greggory is writing the scripts for the CW series.  More here from The Hollywood Reporter. 

Here are more (big screen) versions of Marlowe, beginning with Dick Powell's interpretation (1944), and not including the iconic Humphrey Bogart version. Check out The Thrilling Detective Marlowe webpage that includes great information about the character here.

I'm going to be watching this story with great interest!

Tax Law and Hallowe'en Candy

Kelly Phillips Erb discusses the tax consequences of leftover Hallowe'en candy, here, for Forbes Magazine. Via @BitsyNOLA. (Not listed: entertainment for felines. I caught mine playing kitchen hockey with some of the pieces before I could bring it to work).

Kundera and Law: A Panel at the Law and Literature Conference, Masaryk University, May 31th-June 2, 2017

The upcoming 2017 Law and Literature Conference at Masaryk University (Brno) will include a session on Kundera and Law. The convenor is Dr. Rafał Mańko (University of Amsterdam). Here's a brief description of the panel content.

The topic of Kundera’s engagement with the Law in all its possible facets has not been yet addressed, at least in the English-language literature of the subject. This Stream aims at making a first step, hopefully in the right direction, aimed at filling this gap. The venue of the conference – Brno – is a perfect location for this, being the native town of the great Czech writer. We invite contributions analysing any of Kundera’s novels (or all of them, for that matter) from the point of view of his engagement with the topic of ‘Law’, most broadly understood. Papers could fit into one of the four suggested strains, dealing with positive law, Law in the psychoanalytical sense, law of the genre and, finally, philosophy of law understood as creatively applying Kundera’s general philosophical reflections to the legal domain.

This conference looks just wonderful.  Stay tuned.

Wheatle @seshaunawheatle on Bounded Cosmopolitanism and a Constitutional Common Law

Se-shauna Wheatle, Durham Law School, is publishing Bounded Cosmopolitanism and a Constitutional Common Law, forthcoming in the Journal of Comparative Law. Here is the abstract.

There remains deep uncertainty regarding the growing transnational nature and scope of law. This uncertainty is in part answered by, but also fuelled by, current cosmopolitan theories. Such theories -- including Jeremy Waldron’s conception of a ‘ius gentium’ as a body of principles shared by the legal world, and Neil Walker’s articulation of ‘global law’ -- are decidedly cosmopolitan in nature by articulating legal orders and systems that see the individual as part of a shared human community. While these theories make valuable contributions to legal studies, they have overreached by asserting an extensive level of transnational consensus, consensus which is not fully represented in current transnational dialogue. What is needed is a framework that balances the cosmopolitan impulse with awareness of the current experience of transnational law, and the historical and cultural limitations on transnational dialogue. With this contextual background in mind, I propose the idea of ‘bounded cosmopolitanism’, which harnesses the power of cosmopolitanism but restrains the cosmopolitan impulse through awareness of the interplay between convergence and divergence that is central to the experience of transnational law. As an instance of bounded cosmopolitanism, the article advances a cosmopolitan common law constitution, which embodies the convergent influence of common law methods and principles with the divergent elements of specific constitutional design in individual common law jurisdictions.

The full text is not available from SSRN.

Craig on English Foundations of U.S. Administrative Law

Paul P. Craig, University of Oxford Faculty of Law, has published English Foundations of US Administrative Law: Four Central Errors. Here is the abstract.

Philip Hamburger posed a provocative challenge to administrative law in the USA, as attested to by the title to the book, which asked whether administrative law was unlawful. His thesis was grounded in English administrative law, as it developed in the seventeenth century and eighteenth centuries, when lawyers in the American colonies would have been familiar with it. It is central to Hamburger’s argument that much of administrative law concerning both rulemaking and adjudication was “extralegal” and was thus regarded by English law during this period. In an earlier article I argued that this thesis was wrong as adjudged by positivist and non-positivist sources alike. Hamburger responded to my article, and took issue with the argument made therein. This article is a response to Hamburger’s latest offering. The flaws in Hamburger’s argument are even clearer now than hitherto, and there are numerous such mistakes. This article will, however, concentrate on four errors that are central to his thesis. First, Hamburger’s thesis rests on the argument that administrative law is extralegal, and hence illegitimate and unlawful. It is the central construct from which all else flows. In my earlier article I contended that there were serious difficulties with his conception of the term extralegal. I was wrong. It is untenable. It will be seen that this is so when judged from the perspective of first principle, and from the perspective of positive law. Hamburger’s project is thus built on an intellectual construct that does not withstand scrutiny. It is a pillar of sand. Secondly, Hamburger’s thesis as to the legitimacy of adjudication and rulemaking by bodies charged with administration in the seventeenth and eighteenth century is wrong. He contends that events such as the demise of Star Chamber and the repeal of the Statute of Proclamations show that administrative adjudication and rulemaking were generally perceived to be extralegal and illegitimate in England at this time. He maintains this fixed view, and is critical of any who differ, repeatedly contending that they have ignored the historical sources. The reality is to the contrary. Hamburger’s fierce insistence that his interpretation of these events is correct is combined with a signal unwillingness to consider whether that interpretation coheres with the evidence. This is a dangerous cocktail, which leads repeatedly to error. His interpretation is not correct. It is irreconcilable in empirical terms with a very great deal of regulatory legislation enacted over two hundred years, in which Parliament continually accorded the administration with powers and duties of a kind that are inconsistent with Hamburger’s thesis. His argument is also incompatible with thousands of cases decided by the courts via judicial review, in which the courts accepted the grant of such authority as lawful, and did not in any way characterize it as extralegal or irregular. Hamburger’s thesis is moreover defective in failing to recognize the clear normative differences between the situations where administrative adjudication and rulemaking were regarded as lawful and those where they were not. Thirdly, the qualifications that Hamburger makes to his own thesis are conceptually incoherent and do not fit with the empirical evidence. Hamburger seeks to qualify his conclusion that administrative law is extralegal and unlawful. His modality for doing so in the context of rulemaking is through definition of legislative and non-legislative rules; while in the context of adjudication it is done through definition of the term judicial. These qualifications are central to Hamburger’s thesis. The meaning of these terms is, however, conceptually incoherent. It is also inconsistent with much empirical evidence, since as will be seen below the legislature frequently accorded the administration power of a kind that Hamburger believes that it did not and should not have had. The fourth error in Hamburger’s thesis is methodological. Hamburger takes my earlier argument to task, contending that it was predicated on some brutish Austinian positivism, which ignored constitutional ideals. This is, as will be seen below, nonsense. It is nonetheless fitting that Hamburger should have raised the issue of methodology, since it will be seen that his own argument is premised on a constitutional methodology that is unsustainable both historically and legally. He seeks to defend a far-reaching argument that an entire body of law is unlawful, while ignoring a very considerable body of evidence in terms of legislation and judicial decisions that is inconsistent with his thesis. His argument is, moreover, premised on an indefensible distinction between ‘constitutional ideals’ on the one hand, and legislation and court decisions on the other, which ignores the normative values that are embodied in the latter.

Download the article from SSRN at the link.

Tomasovic on Soundscape History and Environmental Law in the Supreme Court

Brian Tomasovic is publishing Soundscape History and Environmental Law in the Supreme Court at 45 Environmental Law 895 (2015).. Here is the abstract.

Today’s technology unleashes new, digitized information resources with immense scale and speed. This Article examines one such resource — the archive of audio recorded proceedings of the United States Supreme Court — appraising, for the first time, its value to those who study and practice environmental law. From hundreds of hours of audio across six decades, a history of environmental litigation sounds forth, imparting rich lessons on advocacy, judicial reasoning, and the role of the Court in environmental law’s development. The Article organizes itself in three major parts, furnishing insights on: oral advocacy in the environmental docket; the voices from the bench; and the audience for prospective engagement with any selection or subset of recordings. Serving partly as a listener’s guide, the Article defines the reach of environmental litigation in the audio archive and demonstrates its unique value as a tool for learning and the professional betterment of environmental law scholars and practitioners.

The full text is not available for download from SSRN. Here's a draft.

Falcon y Tella's New Book on Law and Literature (Brill, 2016).

ICYMI:

María José Falcón y Tella, Professor of Legal Philosophy, Complutense University of Madrid, has published Law and Literature (Brill, 2016). Here is a description of the book's contents.

There are many ways to approach the concept of “Law and Literature”. In the classical manner, the author distinguishes three paths: the Law of Literature, involving a technical approach to the literary theme; Law as Literature, a hermeneutical and rhetorical approach to examining legal texts; and finally, Law in Literature, which is undoubtedly the most fertile and documented perspective (the fundamental part of the work focusses on this direction). This timely volume offers an introduction to this enormous field of study, which was born in the United States over a century ago and is currently taking root in the European continent.

 Table of contents here.

Rawlings on the Great Fire of London and the Origins of Fire Insurance

Philip Rawlings, Queen Mary University of London School of Law, has published The Great Fire of London and the Origins of Fire Insurance: A Brief Note as Queen Mary School of Law Legal Studies Research Paper No. 246/2016. Here is the abstract.

The Great Fire of London in 1666 reshaped the architecture of London and was a factor in establishing the City as a place of financial innovation. Fire insurance did not emerge immediately after that event because of the difficulties in establishing a viable scheme. Nevertheless, the fire and the enthusiasm for financial speculation brought various experiments that eventually led to relatively sophisticated fire insurance schemes.

Download the essay from SSRN at the link.

Sood and Trielli @DanielTrielli on the Representation of Race, Gender, and Crime on the Television Series Law & Order

Gaurav Sood and Daniel Trielli, both independent scholars, have published The Face of Crime in Prime Time: Evidence from Law and Order. Here is the abstract.

Race, gender, and crime are inextricably linked in people's minds. And television programming is thought to strongly influence how they are linked. We investigate the extent to which popular television programming perpetuates stereotypical linkages by tallying the race and gender of criminals and victims in three popular series of the most successful criminal procedural franchise on television --- Law & Order. Using data from a census of the shows from aired seasons of Special Victims Unit and Criminal Intent series, and data from seven seasons of the Original series, we find that whites and women are overrepresented (and blacks and men underrepresented), both as victims and as criminals. In particular, blacks are dramatically underrepresented both as criminals and as victims, with actual arrest rate and violent victimization rate of blacks nearly 300% and 200% respectively of the commensurate numbers for the show.

Download the article from SSRN at the link.

Minor Jurisprudence 2016: A Berkeley Law Symposium December 2-3, 2016

The fourth meeting of the "Law As..." biennial symposia on "historical, social scientific, literary, and legal scholarship in the service of conceptual innovation in the analysis and history of law" will take place at the Berkeley School of Law December 2-3 of this year.

Symposium participants include Kirsten Anker (McGill), Natalie Davidson (Hebrew University Jerusalem), Peter Goodrich, (Yeshiva University), Genevieve Painter, (University of California), Jothie Rajah (American Bar Foundation), Marianne Constable, (University of California), Nan Seuffert (University of Wollongong), and James Martel (San Francisco State University).

More about the symposium here at its webpage.

Rodriguez-Blanco, Law and Authority Under the Guise of the Good (Hart) Now Available in Paperback

Veronica Rodriguez-Blanco's book Law and Authority Under the Guise of the Good (Hart Publishing, 2016) is now also available in paperback. Here is a description of the contents from the publisher's website.

The received view on the nature of legal authority contains the idea that a sound account of legitimate authority will explain how a legal authority has a right to command and the addressee a duty to obey. The received view fails to explain, however, how legal authority truly operates upon human beings as rational creatures with specific psychological makeups. This book takes a bottom-up approach, beginning at the microscopic level of agency and practical reason and leading to the justificatory framework of authority. The book argues that an understanding of the nature of legal normativity involves an understanding of the nature and structure of practical reason in the context of the law, and advances the idea that legal authority and normativity are intertwined. This point can be summarised thus: if we are able to understand both how the agent exercises his or her practical reason under legal directives and commands and how the agent engages his or her practical reason by following legal rules grounded on reasons for actions as good-making characteristics, then we can fully grasp the nature of legal authority and legal normativity. Using the philosophies of action enshrined in the works of Elisabeth Anscombe, Aristotle and Thomas Aquinas, the study explains practical reason as diachronic future-directed intention in action and argues that this conception illuminates the structure of practical reason of the legal rules' addressees. The account is comprehensive and enables us to distinguish authoritative and normative legal rules in just and good legal systems from 'apparent' authoritative and normative legal rules of evil legal systems. At the heart of the book is the methodological view of a 'practical turn' to elucidate the nature of legal normativity and authority.

 

Schulz on A Transnational Study of Law & Justice on TV: Canada

Jennifer L. Schulz, University of Manitoba Faculty of Law, is publishing A Transnational Study of Law & Justice on TV: Canada, in A Transnational Study of Law & Justice on TV (Peter Robson & Jennifer L. Schulz eds., Hart, 2016). Here is the abstract.

Our book examines law and justice on television in 14 different countries around the world. It is a rare empirical study of how much justice material viewers were able to access in November 2014, looking at three phases: apprehension (police), adjudication (lawyers), and disposition (prison). In my chapter on Canada I note that there were 5020 law-related programs in the month of our analysis, not including the law-related content found on news and magazine programs. Although this is a vast amount of legally-themed television, only 26.6% of the shows were Canadian. Seventy-two percent of all the legal shows available on television were American and 81% of the legally-themed television available to be watched in Canada was about police officers, not lawyers.

Download the essay from SSRN at the link.

Call For Submissions From Renaissance Hub: Sex, Lies, and Rhetorical Responsibility: "Trumping It" In the Renaissance

Renaissance Hub has posted a call for submissions in the area of  Sex, Lies, and Rhetorical Responsibility: "Trumping it" in the Renaissance. 

Here's more from the website.

Twitter mobs and online public shaming; the curious rise of ‘The Donald’ in US politics; an historic Brexit result; widespread mistrust of ‘experts’: it’s safe to say that we have never been more engaged as a public in the politics of today. But what does an informed opinion consist of? How do we represent ourselves, and why? Where does real power lie? Who should wield it? And is it ever really possible to get to the truth of a matter amidst all of the spin?  These seemingly contemporary political concerns actually touch upon questions about human knowledge and ethical responsibility that date back at least as far as Plato, over 2300 years ago.

Renaissance Hub (www.renaissancehub.net) is an exciting new online magazine which strongly believes in promoting the continued relevance of early modern thought to a non-academic audience. As such, our first issue entitled ‘Sex, Lies and Rhetorical Responsibility’ will address the issues described above from the fascinating starting point of the Renaissance (loosely defined here as 1450-1650). We are looking for specialists in the field to bring these issues to life in a fun and exciting way, particularly for a wider audience who may not be entirely familiar with early modern thought.

Renaissance Hub is currently accepting brief articles of approximately 1000-1500 words which deal with any of the following topics:

The political machine: what did ‘politics’ mean to people in the early modern period?; political establishments and power structures; the role of religion in state affairs; power and the people during the Renaissance; marginalised groups and their representation in Renaissance culture
Staying connected: political scandal and intrigue; the role of the printing press in public life; diplomacy and political go-betweens; politics and the royal courts
A strictly ‘no-spin’ zone?: the study of rhetoric in the Renaissance; classical influences on the art and ethics of discourse; the language of politics and political debate in the early modern period; assessing the true power of persuasion in public life; courtiers and the art of sprezzatura or ‘studied carelessness’

We are also looking for two book reviews of approximately 1000-1500 words which would ideally discuss a popular fiction or non-fiction release that addresses some of these themes.

The deadline for both article and review submissions is 16:00, Friday 11th November. Please send your article or review via email to [email protected]. We particularly welcome submissions which manage to show parallels (however brief) between the Renaissance and the 21st century political landscape. We would also like to stress that we welcome content dealing with any and every aspect of culture, religion and philosophy across this time period, from Western Europe to East Asia, Calvinism to Kabbalah. Furthermore, if you are interested in becoming a peer reviewer for our publication then please send us a message and we will be happy to send you information on how this works. It is very flexible, requires little work and can even be added to your CV.

If you have any further questions, please feel free to e-mail us at the address listed above, or send a message under the ‘Contact’ page. We look forward to hearing from you! 

From Andrew Murphy: A New Book on the Political Thought of William Penn

Andrew R. Murphy, Professor of Political Science, Rutgers University, has published Liberty, Conscience, & Toleration: The Political Thought of William Penn (Oxford University Press, 2016). Here is a description of the book's contents from the publisher's website.

In a seventeenth-century English landscape populated with towering political and philosophical figures like Hobbes, Harrington, Cromwell, Milton, and Locke, William Penn remains in many ways a man apart. Yet despite being widely neglected by scholars, he was a sophisticated political thinker who contributed mightily to the theory and practice of religious liberty in the early modern Atlantic world. In this long-awaited intellectual biography of William Penn, Andrew R. Murphy presents a nuanced portrait of this remarkable entrepreneur, philosopher, Quaker, and politician. Liberty, Conscience, and Toleration focuses on the major political episodes that attracted William Penn's sustained attention as a political thinker and actor: the controversy over the Second Conventicle Act, the Popish Plot and Exclusion Crisis, the founding and settlement of Pennsylvania, and the contentious reign of James II. Through a careful examination of writings published in the midst of the religious and political conflicts of Restoration and Revolutionary England, Murphy contextualizes the development of Penn's thought in England and America, illuminating the mutual interconnections between Penn's political thought and his colonizing venture in America. An early advocate of representative institutions and religious freedom, William Penn remains a singular figure in the history of liberty of conscience. His political theorizing provides a window into the increasingly vocal, organized, and philosophically sophisticated tolerationist movement that gained strength over the second half of the seventeenth century. Not only did Penn attempt to articulate principles of religious liberty as a Quaker in England, but he actually governed an American polity and experienced firsthand the complex relationship between political theory and political practice. Murphy's insightful analysis shows Penn's ongoing significance to the broader study of Anglo-American political theory and practice, ultimately pointing scholars toward a new way of understanding the enterprise of political theory itself.

Dr. Murphy discusses his new book in a post on the OUP blog here.

Waldron @JeremyJWaldron on Immigration, Culture, and Community

Jeremy Waldron, New York University School of Law, has published What Respect is Owed to Illusions About Immigration and Culture? Here is the abstract.

Against the background of my own general skepticism about cultural arguments in favor of immigration restrictions, I consider the possibility that such arguments may be redeemed by focusing on the damage unrestricted immigration may do to "imagined" cultural community as opposed to "actual" cultural community. There is plenty to explore here, but the paper ends with the suggestion that arguments about "imagined community" will operate differently and will be subject to greater constraints than well-founded arguments about the impact of immigration on actual culture.

Download the article from SSRN at the link.

Stefan Larsson's New Book: Conceptions in the Code: How Metaphors Explain Legal Challenges In Digital Times @lastsys

Via @maksdelmar

Stefan Larsson, Associate Professor in Technology and Social Change, Lund University Internet Institute (LUii), Sweden, is publishing Conceptions in the Code: How Metaphors Explain Legal Challenges in Digital Times (Oxford, 2017) (Oxford Studies in Language and Law). Here is a description of the book's contents from the publisher's website.

Stefan Larsson's Conceptions in the Code makes a significant contribution to sociolegal analysis, representing a valuable contribution to conceptual metaphor theory. By utilising the case of copyright in a digital context it explains the role that metaphor plays when the law is dealing with technological change, displaying both conceptual path-dependence as well as what is called non-legislative developments in the law. The overall analysis draws from conceptual studies of "property" in intellectual property. By using Karl Renner's account of property, Larsson demonstrates how the property regime of copyright is the projection of an older regime of control onto a new set of digital social relations. Further, through an analysis of the concept of "copy" in copyright as well as the metaphorical battle of defining the BitTorrent site "The Pirate Bay" in the Swedish court case with its founders, Larsson shows the historical and embodied dependence of digital phenomena in law, and thereby how normative aspects of the source concept also stains the target domain. The book also draws from empirical studies on file sharing and historical expressions of the conceptualisation of law, revealing both the cultural bias of both file sharing and law. Also law is thereby shown to be largely depending on metaphors and embodiment to be reified and understood. The contribution is relevant for the conceptual and regulatory struggles of a multitude of contemporary socio-digital phenomena in addition to copyright and file sharing, including big data and the oft-praised "openness" of digital innovation.

 

(Please Don't) Send In the Clowns?

Okay, here it is. The beginnings of a new area for law and popular culture scholars to investigate.

Clowns and the Law!

Out of concern for community reactions, and because of the recent wave of scary clown sightings, some municipalities are banning clown costumes for Hallowe'en.

Christine Hauser, Clowns, Candidates, and Other Halloween Missteps
Amber Jamieson,  No Clowns Allowed: Scariest Halloween Costume of 2016 Faces Bans Across US
Maureen Sullivan, Boo--Connecticut Schools Ban Clown Costumes For Halloween

Effects of Clown Costumes: What Evidence Might Support a Clown Costume Ban?

Esther Bergdahl, Why Clowns Are a Particular Kind of Scary

Ah, but wait: We have First Amendment concerns.

Eugene Volokh, Kemper County (Miss.) Bans Clown Costumes, Likely Violates the First Amendment 

PI, Assault and Battery, and Clowns

Law Offices of Cohen and Jaffe, Personal Injury Attorneys Discuss the Impact of Scary Clowns on Halloween Safety
Mark Pesto, Fears of a clown: Pa. entertainers 'afraid' to travel amid reports of unnerving sightings

There's even a Twitter account:

Clown Sightings (@ClownsSightings)

And don't forget the IP prong:

Law and Magic Blog: Clowning Around, or More on Clowns and Copyright

Law and Popular Culture Generally

Benjamin Radford,  Bad Clowns (University of New Mexico Press, 2016).

Time to quit clowning around (oh, you knew that was coming). Things to do. I will, however, check out more clowns and the law issues. I have some ideas..... will check the databases...back soon.

Tyler @profamandatyler on the English Habeas Corpus Act and the Statutory Origins of the Habeas Privilege

Amanda L. Tyler, University of California, Berkeley, School of Law, has published A 'Second Magna Carta': The English Habeas Corpus Act and the Statutory Origins of the Habeas Privilege at 91 Notre Damae Law Review 1949 (2016). Here is the abstract.

This Article tells the story of the English Habeas Corpus Act of 1679, which came in direct response to perceived failings by the royal courts and the common law writ to do enough to check executive excess at the expense of individual rights. Unearthing the story of the backdrop against which the Act was passed and tracing its role in English law going forward reveals that the Act was enormously significant in the development of English law’s habeas jurisprudence — far more so than most jurists and scholars recognize today. Further, extensive evidence of the Act’s influence across the Atlantic dating from well before, during, and after the Revolutionary War demonstrates that much of early American habeas law was premised upon efforts to incorporate the Act’s key protections rather than developed through judicial innovation. Further, there is every reason to believe that the Act, along with its suspension by Parliament on several occasions in the late seventeenth and eighteenth centuries, established the suspension model that the Founding generation imported into the United States Constitution’s Suspension Clause. Accordingly, in tracing the Anglo-American development of habeas corpus jurisprudence, it is important to account for the statutory roots of the habeas privilege, particularly because statutory developments were designed in important respects to alter and constrain the common law courts’ approach to habeas corpus and harness the common law writ toward specific ends.

Download the article from SSRN at the link.

Solan and Gales on Finding Ordinary Meaning in Law: The Judge, the Dictionary, or the Corpus?

Lawrence M. Solan, Brooklyn Law School, and Tammy A. Gales, Hofstra University, are publishing Finding Ordinary Meaning in Law: The Judge, the Dictionary or the Corpus? in The International Journal: Journal of Legal Discourse. Here is the abstract.

Courts in the U.S. frequently apply a rule of statutory construction that calls for the words in laws to be given their “ordinary meaning”. The rule is based on the presumption that legislatures are most likely to have intended the language to be understood in their ordinary sense and on the value that people subject to such laws will more likely comprehend the rights and obligations granted to them. Courts are not, however, in accord when it comes to determining which of a term’s available meanings is the “ordinary” one. This article describes three methods for making this determination: the judge’s linguistic intuitions, dictionary definitions, and reference to linguistic corpora. We argue that the use of corpus analysis enhances the legal system’s ability to rely on actual distributional facts about word usage, thus enhancing the accuracy of ordinary meaning analysis. We apply the three methods to a case pending before the U.S. Supreme Court, Shaw v. United States, at the time this article is written. The issue in Shaw is whether the expression “defraud a financial institution” applies to a situation in which the defendant tricked a bank into releasing to him the funds of another depositor, when the bank suffered no loss. We look first at linguistic literature based largely on intuition, then at dictionary definitions, and finally at a corpus. Examining hundreds of examples from the Corpus of Historical English (COHA) developed at Brigham Young University, we find that the verb “defraud” is virtually always used to describe a situation in which the object of the fraud is also the target of the ultimate loss. Analyses based on the intuitions of linguists and on dictionary definitions are consistent with this result, although less robust. We conclude that if the Court wishes to be faithful to the ordinary meaning of the statutory language, it should rule that the statute does not apply to this situation.

Download the article from SSRN at the link. 

Reminder: Witteveen Memorial Fellowship In Law and Humanities Still Accepting Applications: Deadline Is November 15, 2016

Reminder:

 Witteveen Memorial Fellowship in Law and Humanities Tilburg University has established the annual Witteveen Memorial Fellowship in Law and Humanities in order to commemorate the life and work of Willem Witteveen. The fellowship aims to enable a junior scholar (PhD or postdoc level) to further develop his or her research in the area of ‘Law and Humanities’ during a visit to Tilburg. Professor Willem Witteveen was an early representative of the interdisciplinary and contextual approach to legal scholarship in The Netherlands and Tilburg Law School. Whereas the emphasis often is on social sciences, Willem’s focus was on law and humanities. Rhetoric, literature, political philosophy and (intellectual and cultural) history in particular were breeding grounds for Willem’s many contributions to academia, politics and society. Willem attached a lot of importance to student formation in the sense of the classic Bildungsideal to which expression (rhetoric, language) and contact with classical texts are central. As progressive as much of his work is, as strong was his attachment to traditional forms of academic life, with their opportunities for direct exchange of ideas.    What the Witteveen Memorial Fellowship in Law and Humanities offers: The Witteveen Memorial Fellow will have office space and facilities at the Department of Public Law, Jurisprudence and Legal History of Tilburg Law School, as well as full library access. We offer reimbursement of travel expenses and accommodation expenses (max. 5250 Euro). The Witteveen Memorial Fellowship does not constitute an employment relationship. For this reason, Tilburg Law School will not make social insurance contributions or contributions to pension or unemployment insurance. In principle the Witteveen Memorial Fellowship in Law and Humanities is for a duration of three months in the Spring following the application deadline. Candidates are welcome to propose a different period. In case the fellowship is awarded for less than three month the maximum amount to be reimbursed will be proportionately lower. If the fellowship is awarded for longer than three months, the total amount to be reimbursed, travel or commuting costs included, remains 5250 euro. What is expected of the Witteveen Memorial Fellow: During the period of the fellowship the scholar will be present in Tilburg, 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 explicitly. Application procedure Scholars who are currently working on a PhD dissertation or who defended one not longer than five years ago are eligible. Candidates are requested to submit their application before 15-11-2016. Applications can only be submitted online (www.tilburguniversity.edu/about-tilburg-university/working-at/wp/).
Candidates must submit a cover letter, a CV including publications, a statement of intent (‘what do you plan to do during the fellowship?’, ‘what is the end product?’) and one reference letter. Candidates must submit a cover letter, a CV including publications, a statement of intent (‘what do you plan to do during the fellowship?’, ‘what is the end product?’) and one reference letter.In principle, the selection committee will decide on the basis of the written application only. The extent to which a candidate’s background is in law and humanities as well as evidence of interaction between both disciplines in the candidate’s work is an important selection criterion For questions, please contact Jacoba Floor ([email protected]). h

The Police In Film and On Television

Alyssa Rosenberg on real life law enforcement and Hollywood images of the police, here, for the Washington Post. First in a five-part series.

Read more about the police and pop culture below. Selected bibliography.

US TV Shows

Frances Heidenson and Jennifer Brown, "From Juliet to Jane: Women Police in TV Cop Shows, Reality, Rank, and Careers," in Policing: Politics, Culture, and Control 111 (Bloomsbury, 2012).

Hollie McKay, "Angie Dickinson "Felt Exploited" In "Police Woman" But Says Women's Roles in Crimes (sic) Dramas Have 'Evolved'." Fox411.

Jonathan Nichols-Pethick, TV Cops: The Contemporary American Police Drama (Routledge, 2012).

Roger Sabin, Cop Shows: A Critical History of Police Shows on Television (McFarland, 2015).

UK TV Shows

Contemporary British Television Crime Drama: Cops On the Box (Routledge, 2016). Due out November 2.

A New Book on Borges and the Law, Edited by Jose Calvo Gonzalez

Jose Calvo Gonzalez, University of Malaga, has a new publication out:

Borges en el espejo de los juristas: Derecho y literatura borgeana (Thomson/Reuters, Aranzadi, 2016) (Duo). Here's a description (in Spanish) of the contents.

Once trabajos internacionales de 'Derecho y Literatura' dedicados a la obra de Jorge Luis Borges. Leer a Borges desde el Derecho es la deliberada proyección de un acto de rebeldía jurídica.
Su propósito de Borges en el espejo de los juristas. Derecho y Literatura borgeana ha sido inventar –es decir, construir; o sea, ingeniar– lecturas jurídicas sobre textos borgeanos transfigurando en Derecho el ámbito de legibilidad de su literatura.

This work is the first of its kind dedicated to the study of Borges and the law.

Justice Ginsburg and the Daughter of the Regiment

Ruth Bader Ginsburg has her first speaking role in opera--as the Duchess of Krakenthorp in the Washington National Opera's production of Donizetti's The Daughter of the Regiment (Nov. 12 only). It seems that she'll be putting her own stamp on the role. Some lines from her decisions have been incorporated into her part. More here from Law.com.

There's not much of an explanation of the opera available there, though (not that operas generally make much sense). Here's a synopsis from a University of Michigan press release.  This particular Donizetti work is one of my favorites, so if you don't already know it, and you get a chance to see it in person or hear a recording, I suggest that you just enjoy it without trying to make it logical. It's a lot of fun.

Law Library of Congress Video from the Depiction of Law in Film and Television Now Available

The Law Library of Congress has made video from its event The Depiction of Law in Film and Television available here.

The Law Library held the event July 20, 2016.