August 23, 2017

Burke on Why Novelists Write About the Criminal Justice System @alafairburke @Hofstra_Law

Alafair S. Burke, Hofstra University School of Law, is publishing Why Fiction? in the New England Law Review (2017). Here is the abstract.
When I sold my first novel the summer after my first year as a tenure-track law professor, I assured the dean of my law school that fiction was a hobby, completely separate from my academic work, no different than if a colleague were training for a marathon in her spare time. Fifteen years later, this symposium asks its participants - four of us published novelists, one of us a judge, all of us trained lawyers - to reflect on the depiction of the criminal justice system in fiction. Our contributions make clear that the promise I made to my dean was itself a type of fiction. Whether an author realizes it or not, it is impossible to create an interesting, albeit fictional, depiction of the criminal justice system without having something to say about its real-world counterpart. Successful legal fiction uses the legal system as a defining component of the narrative that feels entirely realistic, even if the plot that unfolds there is wholly fictional. To be of interest, a novel’s legal setting must serve a purpose. Legal detail should advance the development of character, plot, or atmosphere. Separate from the question of why a novelist might write about law is the question of why a legal professor might choose to write fiction. This symposium presses me to respond to that query. Fortunately, the five thoughtful and diverse essays contributed to this collection have helped clarify a decade and a half of my own thoughts. I appreciate the opportunity to comment on three themes that I hope I have developed at least as well through fiction as through traditional legal scholarship: (1) individual actors in the criminal justice system matter; (2) legal rules are only a starting point; and (3) justice is not inevitable. Comparing these three points to narrative, one could say that they provide lessons about character, structure, and surprise endings.
Download the article from SSRN at the link.

Solum on Triangulating Public Meaning: Corpus Linguistics, Immersion, and the Constitutional Record @lsolum @GeorgetownLaw

Lawrence B. Solum, Georgetown University Law Center, has published Triangulating Public Meaning: Corpus Linguistics, Immersion, and the Constitutional Record. Here is the abstract.
This Essay contributes to the development of an originalist methodology by making the case for an approach that employs three distinct methods, each of which serves as a basis for confirming or questioning the results reached by the other two. This approach will be called the Method of Triangulation. The three component techniques are as follows: (1) The Method of Corpus Linguistics: The method of corpus linguistics employs large-scale data sets (corpora) that provide evidence of linguistic practice. (2) The Originalist Method of Immersion: The method of immersion requires researchers to immerse themselves in the linguistic and conceptual world of the authors and readers of the constitutional provision being studied. (3) The Method of Studying the Constitutional Record: The method of studying the record framing, ratification, and implementation requires the researcher to examine the drafting process, including sources upon which the drafters relied, debates during the drafting and ratification process, and the early history of implementation of the constitutional provision. These three methods each provide different inputs into the process of constitutional interpretation and construction. Because each method can be checked against the others, the combination of the three methods results in what can be called "triangulation."
Download the article from SSRN at the link.

August 22, 2017

Del Gobbo on Unreliable Narration in Law and Fiction @danieldelgobbo

Daniel Del Gobbo has published Unreliable Narration in Law and Fiction, 30 Canadian Journal of Law and Jurisprudence 311 (2017). Here is the abstract.
This article revisits long-standing debates about objective interpretation in the common law system by focusing on a crime novel by Agatha Christie and judicial opinion by the Ontario High Court. Conventions of the crime fiction and judicial opinion genres inform readers’ assumption that the two texts are objectively interpretable. This article challenges this assumption by demonstrating that unreliable narration is often, if not always, a feature of written communication. Judges, like crime fiction writers, are storytellers. While these authors might intend for their stories to be read in certain ways, the potential for interpretive disconnect between unreliable narrators and readers means there can be no essential quality that marks a literary or legal text’s meaning as objective. Taken to heart, this demands that judges try to narrate their decisions more reliably so that readers are able to interpret the texts correctly when it matters most.

Lawrence Joseph's Sixth Book of Poetry Published @fsgbooks @StJohnsU

Lawrence Joseph, poet and professor of law at St. John's University, has published his sixth book of poems, So Where Are We? (Farrar, Straus, Giroux).

Other collections of his poetry include Into It (2005), and Codes, Precepts, Biases, and Taboos: Poems 1973-1993, both published by FSG. The latter collects his first three books of poetry. He is also the author of the novel Lawyerland, under option by Mr. Mudd Productions. 

CFP: John Grisham and the Law: The University of Memphis Law Review @uofmemphis

From the Mailbox: Via Andrew J. McClurg, University of Memphis School of Law:


Rudy Baylor, a Memphis Law graduate, lost his new associate job before it even started when a bigger firm bought the firm that had hired him as a 3L.  Defeated, yet still determined to pursue a career in the law, Baylor accepted an associate job at an ambulance-chaser firm.  Little did young Baylor know that he would soon find himself litigating against a white-shoe law firm representing a health insurance monolith in an insurance claim—his very first case—that wound up being worth $50 million.

Of course, none of this actually happened in real life.  Twenty years ago, this tale unfolded on the silver screen in the 1997 major motion picture The Rainmaker, which brought to life author John Grisham’s novel of the same name.

We hope you will join us in celebrating John Grisham’s contributions to the law by submitting your articles on legal topics that arise in Grisham’s stories to The University of Memphis Law Review.  An ideal submission will frame its content with specific reference(s) to Grisham’s work(s) and will offer a practical legal argument.  We aim to publish accepted manuscripts in Volume 48, Number 3 of The University of Memphis Law Review.

John Grisham has repeatedly found ways to use his novels to offer incisive commentary on our profession and has popularized timeless themes of law and justice for the masses, in the South and elsewhereTopics could include, but are not limited to:

The Runaway Jury

·         Voir dire / jury tampering
·         Settlements and arbitration
·         Collateral estoppel

The Chamber

·         Death penalty and politics
·         Working with hostile clients
·         Ethical considerations when representing members of the same family

A Time to Kill

·         Race and the law
·         Law in the South
·         Vigilante justice
·         Hate crimes
·         Advocacy techniques
·         Right to a fair trial (venue, voir dire)
·         Capital punishment

The Client

·         Fifth Amendment issues
·         Witness-protection program
·         Attorney-client privilege

The Firm

·         Mail fraud
·         Moral obligations when you know your client is guilty
·         Moral and professional conflicts arising for junior associates
·         Balancing the obligation to maintain clients’ confidentiality with the obligation to comply with law enforcement’s demands

The Rainmaker

·         Attorney-client relationships
·         Self-defense justifications
·         Refusal to pay insurance claims
·         Punitive damages
·         Tort reform

Submission Protocol
To submit an entry to this themed book, please submit directly to Maggie McGowan, Senior Articles Editor at with “Grisham Book” in the subject line.

August 21, 2017

Hiring Announcement: Louisiana State University Law Center

Hiring Announcement:

LOUISIANA STATE UNIVERSITY, PAUL M. HEBERT LAW CENTER seeks to hire three (3) tenure-track or tenured faculty members. Areas of particular interest to us include the following: business & transactional law; civil procedure; criminal law & procedure; environmental law; energy law; ethics and professionalism; evidence; family law; and juvenile justice clinical teaching.

We may consider applications who specialize in areas other than those listed. We also seek applications for the position of Director of the John P. Laborde Energy Law Center. Applicants should have superior academic credentials and publications or promise of productivity in legal scholarship. 

Contact: Melissa T. Lonegrass, Chair of the Faculty Appointments Committee c/o Pam Hancock Paul M. Hebert Law Center, Louisiana State University 1 East Campus Drive Baton Rouge, LA 70803-0106.

The Paul M. Hebert Law Center of LSU is an Equal Opportunity/Equal Access Employer and is committed to building a culturally diverse faculty and encourages applications from female and minority candidates.

Rossner, Tait, McKimmie, and Sarre on Courtroom Design and the Presumption of Innocence @meredithrossner @blakemckimmie @UniversitySA

Meredith Rossner, London School of Economics & Political Science, David Tait, University of Western Sydney College of Arts, Blake McKimmie, University of Queensland, and Rick T. Sarre, University of South Australia School of Law, have published The Dock on Trial: Courtroom Design and the Presumption of Innocence at 44 Journal of Law and Society 317 (2017). Here is the abstract.
This article examines the place of the criminal dock in courtroom design. Challenges to the use of the dock have been based upon the inability of the defendants to hear effectively, to communicate with counsel, to maintain their dignity, and to benefit from the presumption of innocence. Increasingly courts are incorporating secure docks, where defendants are partially or completely surrounded by glass (or in some countries, metal bars). To what extent do these changes and modifications undermine the right to the presumption of innocence? We present the results of an experimental mock jury study that was designed to test whether the placement of the accused influences jurors’ perceptions. We find that jurors are more likely to convict defendants when they are located in a traditional dock or a secure dock, compared to sitting next to their counsel at the bar table. We conclude by discussing the implications for trial procedures, counsel communications, and courtroom design.
The full text is not available from SSRN.

August 19, 2017

A Raymond Chandler Map of Los Angeles

This item might make a great holiday gift for someone: it's a foldout map of Los Angeles showing points of interest mentioned in Raymond Chandler's novels. Put together by Herb Lester and published by Gestalten. 

I know it's a little early to be thinking about purchasing presents for the non-denominational holidays, but I shop all year, so...

August 17, 2017

"Suits" Spinoff Will Star Gina Torres In a Series Set In Chicago @Suits_USA

From The Hollywood Reporter: USA Network is planning a Suits spinoff to star Gina Torres, who plays Jessica Pearson in the current series. The pilot for the possible series will air as Suita' season 7 finale and debut in spring of 2018. The Pearson character will move to Chicago and start a new life in politics, which will propel the stories in this new series. More here from International Business Times.

August 16, 2017

Makela on Whether Law Is an Academic Discipline

Finn Makela, Université de Sherbooke, Faculty of Law, has published Is Law an Academic Discipline? at 50(3) R.J.T.U.M. 422 (2017). Here is the abstract.
This article engages with the existing literature on the role of legal research in the University by framing the question as whether law is an academic discipline. I answer in the affirmative but my defense of this position is based on a sociological rather than an ontological conception of disciplinarity. Law is an academic discipline not by virtue of its relationship to a specific object or methodology, but by virtue of the institutional recognition of its legitimacy to produce a scholarly discourse. The argument relies on the distinction between points of view internal and external both to law and to disciplines.
Download the article from SSRN at the link.

A Book on the Superhero "Green Arrow" from Richard Gray, Phil Hester, Neal Adams, Mike Grell, Chuck Dixon, Brad Meltzer, and Jeff Lemire

New from the Sequart Organization:

Richard Gray et al., Moving Target: The History and Evolution of Green Arrow (2017).

For 75 years, Green Arrow has been a part of the DC Comics world, working his way up from a supporting player to the star of a flagship television series. Yet for much of his career, he was a hero without a home, separate from his contemporaries, or unfavorably compared with a certain Dark Knight. Whether it is the “cowboys and Indians” influences of the 1940s and 1950s, the rebellious realism of the 1970s, the darker edge of the 1980s, or the melodrama of his TV personas, Green Arrow has remained the conscience of the comics world, and perhaps an even better representative than Batman of what one person can do. This collection is the definitive analysis of the Emerald Archer, from his Golden Age origins to his small screen adventures and beyond. Exploring overlooked chapters of Green Arrow’s life, and those of alter ego Oliver Queen, this book shows that Green Arrow has never been just one thing, but rather a perpetually moving target. Includes new interviews with Green Arrow creators from across the decades, including Neal Adams, Mike Grell, Chuck Dixon, Phil Hester, Brad Meltzer, and Jeff Lemire.

A New Book on the Development of Sherlock Holmes Into a Worldwide Literary and Cultural Icon: Bostrom's From Holmes To Sherlock

Newly available in English translation: Mattias Boström, From Holmes to Sherlock: The Story of the Men and Women Who Created an Icon (The Mysterious Press, dist. by Grove Atlantic, 2017).
Everyone knows Sherlock Holmes. Sir Arthur Conan Doyle created a unique literary character who has remained popular for over a century and is appreciated more than ever today. But what made this fictional character, dreamed up by a small-town English doctor in the 1880s, into such a lasting success? In From Holmes to Sherlock, Swedish author and Sherlock Holmes expert Mattias Boström recreates the full story behind the legend for the first time. From a young Arthur Conan Doyle sitting in a Scottish lecture hall taking notes on his medical professor’s powers of observation to the pair of modern-day fans who brainstormed the idea behind the TV sensation Sherlock, from the publishing world’s first literary agent to the Georgian princess who showed up at the Conan Doyle estate and altered a legacy, the narrative follows the men and women who have created and perpetuated the myth. It includes tales of unexpected fortune, accidental romance, and inheritances gone awry and tells of the actors, writers, and readers who have transformed Sherlock Holmes from the gentleman amateur of the Victorian era to the odd genius of today. Told in fast-paced, novelistic prose, From Holmes to Sherlock is a singular celebration of the most famous detective in the world—a must-read for newcomers and experts alike.

Cummings on The Social Movement Turn in Law @UCLA_Law

Scott L. Cummings, University of California, Los Angeles, School of Law, is publishing The Social Movement Turn in Law in Law & Social Inquiry. Here is the abstract.
The rise of social movements in US legal scholarship is a current response to an age-old problem in progressive legal thought: harnessing law for social change while maintaining a distinction between law and politics. This problem erupted in controversy around the civil rights–era concept of legal liberalism defined by activist courts and lawyers pursuing political reform through law. Contemporary legal scholars have responded by building on social science to develop a new concept — movement liberalism — that assigns leadership of transformative change to social movements to preserve conventional roles for courts and lawyers. Movement liberalism aims to achieve the lost promise of progressive reform, while avoiding critiques of legal activism that have divided scholars for a half-century. Yet rather than resolving the law-politics problem, movement liberalism reproduces long-standing debates, carrying forward critical visions of law that it seeks to transcend.
Download the article from SSRN at the link.

August 14, 2017

Swanson on "Great Men," Law, and the Social Construction of Technology @KaraWSwanson

Kara W. Swanson, Northeastern University School of Law, is publishing 'Great Men,' Law, and the Social Construction of Technology in Law and Social Inquiry. Here is the abstract.
Alexander Graham Bell is famous as the inventor of the telephone. Is his fame owing to law and lawyers? Two recent histories argue that some popular tales of invention originated with lawyers and judges as part of patent litigation battles. (Stathis Arapostathis and Graeme Gooday, Patently Contestable: Electrical Technologies and Inventor Identities on Trial in Britain (2013); Christopher Beauchamp, Invented by Law: Alexander Graham Bell and the Patent that Changed America (2015)). Bringing law into the historical project of understanding the social construction of technology, the authors unsettle great man narratives of invention. A tale of a recent patent war, however, is a case study in the persistence of such narratives, highlighting the uses of legal storytelling. (Ronald K. Fierstein, A Triumph of Genius: Edwin Land, Polaroid, and the Kodak Patent War (2015)). Together, these works invite consideration of the cultural power possessed by invention origin stories, the role of narratives in law and history, and the judicial performance of truth-finding in Anglo-American law.
Download the article from SSRN at the link.

Marmor on What Law Is and What Counts as Law @CornellLaw

Andrei Marmor, Cornell University Law School, has published What Is Law and What Counts as Law? The Separation Thesis in Context at Cornell Legal Studies Research Paper No. 17-34. Here is the abstract.
The separation thesis associated with the legal positivist tradition in legal philosophy holds that the legal validity of norms depends only on their sources, not on considerations of merit or value. In this essay I show that the separation thesis comes under pressure from cases in which an answer to the question: Is o an F? partly depends on the values associated with the nature of F. This is certainly the case when we try to determine whether an object is a work of art, for example. In response, proponents of the separation thesis would want to resist the analogy with art, and maintain that the ascription of legal validity to a norm does not involve any evaluative dimensions. I argue that this line of response is not very firm, and a better way to defend the separation thesis is to see it as an answer to the question of what makes it the case that an o counts as an F in the relevant society. I try to show that this latter type of question follows from the theoretical context in which the separation thesis comes up, namely, a reductionist explanation of legal validity. My purpose here is to show how a proper construal of the separation thesis, in the context of legal positivism’s reductionist ambition, goes a long way in supporting its truth.
Download the article from SSRN at the link.

August 11, 2017

McCutcheon on Some Observations Inspired by Kelley v. Chicago Park District

Jani McCutcheon, University of Western Australia Faculty of Law, is publishing Natural Causes: When Author Meets Nature in Copyright Law and Art. Some Observations Inspired by Kelley v Chicago Park District in volume 86 of the University of Cincinnati Law Review. Here is the abstract.
This article considers the interplay between author and nature in United States copyright law, using Kelley v Chicago Park District as a catalyst. In Kelley, the Seventh Circuit repudiated Chapman Kelley’s authorship of his enormous wildflower garden, Wildflower Works, partly on the basis that natural forces, rather than Kelley, were primarily responsible for the form of the work. The article has two broad purposes. The first is to critique the Seventh Circuit’s denial of Kelley’s authorship. The article argues that the Seventh Circuit misconceived Wildflower Works by conflating the work with the plants constituting it. This skewed its assessment of Kelley’s authorship, failing to give sufficient weight to his selection and arrangement effort. The second, and primary, purpose of the article is to explore the ramifications of Kelley for other contemporary art employing natural materials and natural forces, and to more deeply examine authorship doctrine in this context. Using a number of examples of artists who collaborate with nature, the article explains how natural forces can disturb authorship, but may not defeat it. The aims of the article are to fuel discussion, prompt reflection, and question some deeper assumptions about the relationship between nature and authorship in copyright law.
Download the article from SSRN at the link.

FX's "The Americans," False Identities, and a Real-Life Canadian Citizenship Conundrum

FX Network's The Americans is a well-done series about the lives of two KGB agents living undercover in Washington, DC during the 1980s, raising a family and carrying out their mission. The show examines both the personal and political costs of such choices, and it's very good at drawing us into its fictional world.

But there' are real-life counterparts to the lives of the show's characters, Philip and Elizabeth Jennings, and their children. They are Canadian born Alexander and Timothy Foley, who have discovered that their names are those of two dead Canadian babies, and their parents are two Russian spies. The Canadian government is attempting to strip them of their Canadian citizenship, on the theory that because their parents were "employees of a foreign government," the boys could not obtain Canadian citizenship legally. Alex has won his case on appeal to regain his citizenship, although the Canadian government can still appeal. Tim is still fighting his battle in court. More here from Maclean's.

Meyer on Hearing the Constitutional Infirmity of the Modern American Death Penalty in the Bygone Songs of Ozark Folklore @NSULawCollege

Chance Meyer, Nova Southeastern University, Shepard Board College of Law, is publishing Twas the Devil: Hearing the Constitutional Infirmity of the Modern American Death Penalty in the Bygone Songs of Ozark Folklore in volume 87 of the Mississippi Law Journal (2017). Here is the abstract.
In the midcentury Ozark Highlands, folklorist Mary Celestia Parler collected over 4,500 reel-to-reel recordings of hillfolk singing the songs and spinning the tales of their ancestors. The Ozark Folksong Collection was recently digitized in a preservation effort at the University of Arkansas Libraries, providing new access to the deeply rooted folk knowledge of the region. Murder ballads reveal that murderers were consistently portrayed to generations of Ozarkers as inhuman monsters, purely evil, with an inevitable deservingness of the death penalty uncomplicated by complex behavioral drives or moral vagaries. News reports, commentary, rhetoric, and prosecutorial arguments surrounding twenty-first century executions of capital defendants tried in Ozark counties of Missouri, Arkansas, and Oklahoma reflect that Ozarkers still rely on folkloric attributes to understand murderers. As a result, folk knowledge supplants Eighth Amendment principles that require capital sentencing jurors to view defendants as complexly, multidimensionally human and subject to biopsychosocial influences. Because there are regional folk traditions across the country, the folklore-based constitutional infirmity of the modern American death penalty apparent in the Ozarks is sure to occur beyond the hilltops.
The full text is not available for download.

Mańko on Form and Substance of Legal Continuity

Rafał Mańko, University of Amsterdam, Centre for the Study of European Contract Law (CSECL), is publishing Form and Substance of Legal Continuity in volume 17(2) of Zeszyty Prawnicze. Here is the abstract.
The paper claims that the form vs. substance dichomoty is relevant for the study of legal continuity, however, only provided that the notion of ‘form’ refers to the ‘form of law,’ and the notion of ‘substance’ refers to the socio-economic reality which the law strives to regulate. Therefore, the study of legal continuity despite a socio-economic transformation is, ultimately, the study of interaction between the (unchanged) form and (changed) substance.
Download the article from SSRN at the link.

August 10, 2017

Cooney on Passive Voice Phrasing, Linguistic Ambiguity. and the Board Game "Clue" @WMUCooleyLaw ‏

Mark Cooney, Western Michigan University Cooley Law School, has published Give a Clue (A Linguistic Whodunit) at 96 Michigan Bar Journal 60 (June 2017). Here is the abstract.
This column cites and quotes a number of cases in which ambiguity caused by passive-voice phrasing determined the outcome or hindered a court's interpretation of a statute or pleading. The column presents this material within the context of a mock British murder mystery, complete with thinly veiled references to characters from the popular board game Clue. It's a short humor piece with a serious message to lawyers: passive voice is a substantive issue in the law, not merely a matter of style.
Download the article from SSRN at the link.

August 9, 2017

Kellogg on the Trolley Problem, Pragmatism, Moral Particularism, and the Continuum of Normative Inquiry

Frederic R. Kellogg, Universidade Federal de Pernambuco, has published Take the Trolley Problem . . . Please! Pragmatism, Moral Particularism, and the Continuum of Normative Inquiry. Here is the abstract.
Departing from hypothetical dilemmas and drawing on examples from law, this paper offers a pragmatist account of normative induction that characterizes moral particularism and generalism as stages of inquiry into ethical problems, rather than rival accounts of moral knowledge and motivation. Ethical particularism holds that the evaluative cannot be “cashed out” propositionally, that it is descriptively “shapeless.” Real moral problems occur in a continuum, and at first encounter a shapeless particularist context of seemingly unlimited non-moral properties. But normativity is driven by repetition of similar situations toward shared practices and descriptive predication. Rather than a Dancian retention of epistemic status by defeated reasons, this illustrates retirement of relevant properties and accompanying reasons, transformation of the reasons environment, and a pluralist normative ontology. This paper contends that pragmatism’s response to analytical moral theory lies in understanding the transformative nature of John Dewey’s social continuum of inquiry. The actual continuum is unrecognized in the analysis of hypothetical dilemmas, like the trolley problem, but can clearly be seen in studies of law. Real moral dilemmas represent actual conflicts, the solution of which cannot be addressed through the analysis of cleverly balanced moral puzzles. Repeated over time, real problems drive the consensual formation and revision of social practices and the predication of general moral rules and principles.
Download the article from SSRN at the link.

Stephens and Boyce on The Struggle for Civic Space Between a Minority Legal Language and a Dominant Legal Language: The Case of Māori and English @MamariStephens @VicUniWgtn ‏

Māmari Stephens, Victoria University of Wellington, and Mary T. Boyce, University of Canterbury, have published "The Struggle for Civic Space between a Minority Legal Language and a Dominant Legal Language: The Case of Māori and English in Legal Language: A Comparative Perspective 289 (2016). Here is the abstract.
Our experience in creating a bilingual Māori-English legal dictionary (He Papakupu Reo Ture – a dictionary of legal Māori terms LexisNexis 2013) has shown us that legal lexicography offers fascinating insights into the relationship between the legal language for special purposes (LSP) of a dominant language such as English, and the legal LSP3 of a minority language such as Māori. This chapter demonstrates three particular insights. A diachronic corpus comprising texts of a threatened indigenous language will yield rich and useful data, but may not provide true comparability between texts. Investigation into how borrowings from the dominant language can change in usage over time yields potentially useful insights into lexical change in a diachronic corpus. Finally, paying particular attention to customary legal terms will yield insights into how an indigenous language absorbs and expresses Western legal concepts.
Download the chapter from SSRN at the link.

Desnoyer and Alexander on Race, Rhetoric and Judicial Opinions: Missouri as a Case Study @MizzouLaw

Brad Desnoyer and Anne Alexander, both of the University of Missouri School of Law, have published Race, Rhetoric, and Judicial Opinions: Missouri as a Case Study at 76 Maryland Law Review 696 (2017). Here is the abstract.
This Essay studies the relationship between race, rhetoric, and history in three twentieth century segregation cases: State ex rel. Gaines v. Canada, Kraemer v. Shelley, and Liddell v. Board of Education. Part I gives a brief overview of the scholarship of Critical Race Theory, majoritarian narratives and minority counter-narratives, and the judiciary’s rhetoric in race-based cases. Part II analyzes the narratives and language of Gaines, Kraemer, and Liddell, provides the social context of these cases, and traces their historical outcomes. The Essay contends that majoritarian narratives with problematic themes continue to perpetuate even though court opinions have evolved to use less explicit race-based rhetoric. The Essay proposes that this rhetoric has been replaced with majoritarian enthymemes, i.e., unstated assumptions about race. These majoritarian enthymemes allow the underlying narratives of historic court opinions to retain vitality even outside of the courts. The Essay concludes that long-lasting societal change has been elusive, in part, because, without explicitly rebutting majoritarian narratives and giving voice to counter-narratives, even progressive judicial opinions cannot effectively challenge the status quo.
Download the essay from SSRN at the link.

Garon on Fandom and Creativity, Including Fan Art, Fan Fiction, and Cosplay @NSULawCollege

Jon Garon, Shepard Broad College of Law, has published Fandom and Creativity, Including Fan Art, Fan Fiction, and Cosplay. Here is the abstract.
Fandom has grown into a sufficiently important cultural phenomenon that it has engendered a number of scholarly journals, books, and conferences. As with any academic discipline, there are a multitude of theories and schools of thought on the cultural significance and motivating structure of these communities. These studies tend to focus on the complex relationship between the fan community and the producers of the creative works. While the theoretical understanding of this dynamic tension is worthy of study, the focus of this chapter is primarily on the practical implications of these phenomena and the Con organizer’s ability to foster these relationships.
Download the article from SSRN at the link.

August 8, 2017

Funk and Mullen on The Spine of American Law: Digital Text Analysis and U. S. Legal Practice @kellenfunk @lincolnmullen

Kellen R. Funk, Princeton University (Students), and Lincoln A. Mullen, Department of History and Art History, George Mason University, are publishing The Spine of American Law: Digital Text Analysis and U.S. Legal Practice in the American Historical Review (February 2018). Here is the abstract.
In the second half of the nineteenth century, the majority of U.S. states adopted a novel code of legal practice for their civil courts. Legal scholars have long recognized the influence of the New York lawyer David Dudley Field on American legal codification, but tracing the influence of Field’s code of civil procedure with precision across some 30,000 pages of statutes is a daunting task. By adapting methods of digital text analysis to observe text reuse in legal sources, this article provides a methodological guide to show how the evolution of law can be studied at a macro level—across many codes and jurisdictions—and at a micro level—regulation by regulation. Applying these techniques to the Field Code and its emulators, we show that by a combination of creditors’ remedies the code exchanged the rhythms of agriculture for those of merchant capitalism. Archival research confirmed that the spread of the Field Code united the American South and American West in one Greater Reconstruction. Instead of just a national political development centered in Washington, we show that Reconstruction was also a state-level legal development centered on a procedure code from the Empire State of finance capitalism.
Download the article from SSRN at the link.

The 'Net and True Crime @lithub @katelizabee

Kathleen Barber discusses the interaction of the new media and the Internet on post conviction remedies. Can lay investigators, those for whom true crime isn't just an ordinary interest but a passion, actually right the wrongs of the legal system? Real life crime has been of interest for decades, if not centuries. Does the Internet make a substantial difference in the way we look at it? Do we take it more seriously, precisely because we can be more exposed to it?

More here from Literary Hub.

August 7, 2017

Maatman on The Mockingbird's Brief: The Fairness Argument Stated In To Kill a Mockingbird @MaryEllenMaatma

Mary Ellen Maatman, Widener University Delaware Law School, is publishing The Mockingbird's Brief in volume 47 of the Cumberland Law Review (2017). Here is the abstract.
By comparing the texts of Harper Lee’s Go Set a Watchman and To Kill a Mockingbird, this article explores what Harper Lee ultimately wanted to say in To Kill a Mockingbird, and why she said it the way that she did. The article’s thesis is that To Kill a Mockingbird can be understood as the “brief” written to make the case that Go Set a Watchman attempted to state: the massive resistance movement of the 1950’s was wrong. This article examines the rhetorical situation Harper Lee confronted as she wrote Go Set a Watchman and then transformed it into To Kill a Mockingbird. This situation is defined by considering Harper Lee and her upbringing, her audience in the Deep South, and the need to speak to that audience as the White Citizens’ Council movement took hold in the region. Go Set a Watchman was Lee’s first attempt to respond to the rhetorical situation posed by the Council movement’s purposes, methods, and rhetoric. In that work, Lee responded to this situation with a raw, morality-based counterargument to the Council movement. This argument had little chance of success, as segregationists at that time regarded themselves to be on the moral side of history. Thus, this article examines how To Kill a Mockingbird works as “the Mockingbird’s brief.” If published in the 1950’s, Go Set a Watchman’s morality argument might have had traction with Southern moderates, but was unlikely to persuade segregationists. Yet, legal developments in desegregation litigation indicated that segregationists were willing to at least pay lip service to fairness principles. Thus, Harper Lee used the reworking of Go Set a Watchman into To Kill a Mockingbird to seize the rhetorical situation with a fairness argument calculated to win over her audience. The shift to fairness, which at first blush might be perceived as ducking segregationists’ punches, actually was a shift to greater effectiveness for the time and place for which Lee wrote. This article concludes that Lee’s rhetorical strategy with To Kill a Mockingbird was effective. Ultimately, Harper Lee held a kind of reverse mirror up to segregationists by remaking her Atticus into a man who embodied what southern law and lawyers could be, if guided by fairness principles.
Download the article from SSRN at the link.

August 3, 2017

Dubber on Legal History as Legal Scholarship @MarkusDubber

Markus D. Dubber, University of Toronto Faculty of Law, University of Toronto Centre for Ethics, has published Legal History As Legal Scholarship: Doctrinalism, Interdisciplinarity, and Critical Analysis of Law in the Oxford Handbook of Historical Legal Scholarship (2016). Here is the abstract.
Legal history is having a methodological moment. So is law (and, as it turns out, history as well). And not just in one country or legal system but across the common law/civil law divide. In this essay I try to capture some aspects of this methodological moment—or moments— and then to add some reflections of my own that locate legal history within the enterprise of legal scholarship. More specifically, I will outline an approach to legal history that regards historical analysis as one mode of critical analysis of law, along with other modes of “interdisciplinary” analysis (economical, philosophical, sociological, literary, etc.) and “doctrinal” analysis. In this way, legal history plays a key role in the general effort to move beyond the long-standing and rhetorically useful, but ultimately unproductive, distinction between “modern” and “traditional” legal scholarship, and that between “common law” and “civil law” scholarship besides. According to this view of legal history, it is a mode of jurisprudence (in fact, we might call it New Historical Jurisprudence) rather than a sub-specialty of law or a form of applied history.

Download the essay from SSRN at the link. 

July 31, 2017

Georgetown Law Center to Host 2018 ASLCH Annual Meeting @GeorgetownLaw

Just announced:

Georgetown Law Center will host the 2018 annual meeting of the Association for the Study of Law, Culture, and the Humanities (ASLCH). The meeting will be held March 16-17, 2018. Link to the association website here. More information will be available in the coming weeks.

Composer/Lawyer Derrick Wang Joins the Peabody Institute To Teach Law and Music

Composer and attorney Derrick Wang ("Scalia/Ginsburg") will join the Peabody Institute in the fall to teach law and music, both on the undergraduate and graduate levels, according to the Institute.   He received his B.A. from Harvard and his M.M. in music from Yale. He received his j.D. from the University of Maryland School of Law. 

Mr. Wang's opera made its premiere in 2015 at the Castleton Festival and got rave reviews. Its libretto has footnotes (befitting a lawyer) and is published at 38 Columbia Journal of Law and the Arts. Justices Ginsburg and Scalia contributed prefaces to the piece.

More about Professor Wang here.

Mendenhall on Jeffrey Rosen's Depiction of Louis Brandeis as the Jeffersonian Jurist @allenmendenhall

Allen Mendenhall, Faulkner University School of Law, is publishing The Jeffersonian Jurist? a Reconsideration of Justice Louis Brandeis and the Libertarian Legal Tradition in the United States in volume 9 of the Elon Law Review (2017). Here is the abstract.
This article explores Jeffrey Rosen’s depiction of Justice Brandeis as a “Jeffersonian prophet,” “the leader of a Jeffersonian tradition,” and “the Jewish Jefferson” to examine the meaning of the term “libertarian” in the context of American constitutional jurisprudence. It argues that Rosen unsettles the characterization of Brandeis as non-libertarian or anti-libertarian and, consequently, destabilizes the very meaning of “libertarianism” as that term is used by self-described libertarians in current scholarship about American constitutionalism. Whether Brandeis was a pure or true libertarian does not concern me. What interests me is the way in which scholars have invoked Brandeis to delimit the nature of libertarian jurisprudence in the American constitutional context. Brandeis simultaneously illuminates and problematizes the designation “libertarian.” His formative influence on American constitutional law elicits dogged attempts to categorize or classify him. He continues to attract admirers and provoke antagonists, both of whom express firm opinions about his association with libertarianism. At stake in the debate over Brandeis’s association with libertarianism is the meaning and import of “libertarian” jurisprudence in our constitutional tradition. Disturbing any consensus regarding the term “libertarian” in the context of American constitutional jurisprudence is significant because it necessitates two questions: what, exactly, is “libertarian” jurisprudence, and who decides? Answers to these questions may disrupt the momentum that self-identified libertarian legal scholars have enjoyed over the last decade and underscore claims to libertarianism that are at odds with that consensus.
Download the article from SSRN at the link.

July 30, 2017

Leading Female Detectives In Fiction

In the Guardian, Kristin Lepionka (The Last Place You Look) lists her choices for the top ten female detectives in fiction, including Tana French's Antoinette Conway and Sue Grafton's Kinsey Milhone. More here.

July 27, 2017

Justin Trudeau and "The West Wing"

From The Hill: Canadian Prime Minister Justin Trudeau says he watched the hit TV show "The West Wing" to prep for debates against the incumbent Stephen Harper in 2015. As it turns out, he's a fan of the long-running series (which aired on NBC 1999-2006). The show is now available on Netflix.

Prime Minister Trudeau revealed this very interesting info recently to the podcast "The West Wing Weekly"--listen here to episode 3.15, Dead Irish Writers (with Prime Minister Justin Trudeau).  He does point out that real life being a head of government isn't as easy as it looks on TV. Maybe "I'm not a real Prime Minister but I played one on television" has something to recommend it.  More here from Maclean's. 

Pop culture has dominated the political news cycle over the past year or so. Stay tuned.

Meyer on Legal Discourse and the Contemporary Native American Novel on the Indian Removal @UniOsnabrueck

Sabine N. Meyer, University of Osnabrueck, has published From Federal Indian Law to Indigenous Rights: Legal Discourse and the Contemporary Native American Novel on the Indian Removal, at 29 Law & Literature 269 (2017). Here is the abstract.

My contrapuntal readings of the indigenous rights debates that took place in the United Nations in the 1990s and two Native American historical novels on the Indian Removal published in the United States around the same time reveal that Native American literary production has been deeply inflected by the law. Robert Conley's Mountain Windsong: A Novel of the Trail of Tears(1992) needs to be read as a critique of the idea that Native American rights can be secured from within the United States’ legal order. Through the jarring juxtaposition of historical legal documents and a romantic plot, the novel deconstructs the idea of domestic law as an agent of change and introduces the language of human rights as an alternative normative framework for Native resistance. Diane Glancy's Pushing the Bear: A Novel of the Trail of Tears (1996) engages with a question that figured prominently in the debates about indigenous rights, namely whether these rights can be realized within the context of a human rights regime that puts the individual center stage. On closer scrutiny, the novel opens up an alternative way of thinking about the relationship between individual and group rights. It thereby contributes to closing the theoretical gap between individual and group rights, which stymied indigenous rights debates considerably.
The full text is available by subscription. 

Bijl on Human Rights and Anticolonial Nationalism In Sjahrir's "Indonesian Contemplations"

Paul Bijl has published Human Rights and Anticolonial Nationalism in Sjahrir's Indonesian Contemplations at 29 Law & Literature 247 (2017). Here is the abstract.
In 1945 and under the pseudonym Sjahrazad, Indonesia's first prime minister Sutan Sjahrir and his wife Maria Duchâteau published a book in Dutch entitled Indonesian Contemplations about Sjahrir's exile to and incarceration in the 1930s in the Dutch colonial concentration camp Boven-Digoel. Through an analysis of the book's critique of the legal spatialities of the Dutch empire and its imagination of the space of the Indonesian nation-state, this article makes a double argument: on the one hand, for the importance of scholarly analyses of Indonesian writing on the Dutch colonial-legal project and, on the other, against the idea that national liberation and international human rights were mutually exclusive in anticolonial nationalism.
Download the article from the website at the link.

Pope on Section 1 of the Thirteenth Amendment and the Badges and Incidents of Slavery

James Gray Pope, Rutgers Law School, Newark, is publishing Section 1 of the Thirteenth Amendment and the Badges and Incidents of Slavery in volume 65 of the UCLA Law Review (2018). Here is the abstract.
This article presents the first comprehensive treatment of the basic and officially “open” question whether section 1 of the Thirteenth Amendment directly bans the badges and incidents of slavery. It then explores possible implications for the constitutional law of discrimination against whites, racially disparate impact, race-based affirmative action, gender equality, and reproductive freedom.
Download the article from SSRN at the link.

Neti on "The Love Laws": THe Indian Penal Code and Roy's "The God of Small Things" @Occidental

Leila Neti, Occidental College, has published "The Love Laws": Section 377 and the Politics of Queerness in Arundhati Roy's The God of Small Things at 29 Law & Literature 223 (2017). Here is the abstract.
This article examines Arundhati Roy's novel The God of Small Things (1997) in relation to Section 377 of the Indian Penal Code. In it, I show how the literary text aligns with law derived from the colonial era by effectively conflating homosexuality with child sexual abuse, thus restaging the structuring logic and legal history of Section 377. As a result, I argue that Roy's novel, while overtly antagonistic to the disciplinary norms of sexual policing, nevertheless reproduces many of the same proscriptions that it ostensibly aims to critique. Drawing on a range of approaches from psychoanalysis and legal studies to queer theory, the article seeks to frame the novel's representation of the “Love Laws” in the context of the material enforcement of Section 377.
The full text is available online by subscription.

Goodrich on Islands, Pirates, Sovereignty, and Jurisdiction @CardozoLaw

Peter Goodrich, Cardozo School of Law, has published Mos Piraticus: On the Haunting and Infesting of the Seas, at 29 Law & Literature 193 (2017). Here is the abstract.
The island and the pirate raise the question of jurisdiction. The pirate haunts the seas, meaning that the pirate reminds the commonwealth of its past and of its others, the common ownership and shared possession of all things that Erasmus and then John Selden translate into the common inheritance of a shared knowledge. The adages and exempla of the humanists mix and mingle with the maxims and regulae of an inherited law whose hieroglyph is not, as Sir Edward Coke argues, the Crown, but rather the double D of the Decretals and the Digest.
The full text is available online by subscription.

July 26, 2017

Why So Many Mystery and Horror Plots Grow Up--and Out--of Small Towns

Emily Farrelly offers five reasons that small towns are such wonderful settings for mystery and horror: 1) the illusion of closeness (everyone knows everyone else--yikes) 2) slow investigative response (the cops, who know everyone, also know nothing about solving crimes) 3) isolation (everyone knows everyone else's secrets--more yikes) 4) the stakes are much higher (everyone knows you really well--okay, the yikes are really piling up now) and 5) the town is a character of its own (it dominates the people who live in it--okay, the yikes are out of sight).

More here.

Merlino on Montesquieu e la scienza giurdica italiana (Montesquieu and Italian Legal Science)

Antonio Merlino, Paris-Lodron-Universitaet Salzburg, has published Montesquieu e la scienza giuridica italiana (Montesquieu and Italian Legal Science) as Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2017-13. Here is the abstract.
Italian Abstract: Secondo Giovanni Tarello, Montesquieu è stato un precursore dell’illuminismo giuridico e il fondatore del principio della teoria della tripartizione dei poteri in esecutivo, legislative e giudiziario. Inoltre, egli avrebbe subordinato quest’ultimo al potere legislativo, definendo il giudice la «bocca della legge», che ripete, meccanicamente, la volontà del legislatore. In questo scritto propongo delle interpretazioni alternative. Secondo altri interpreti italiani, la teoria della separazione dei poteri non deve essere interpretata come una teoria astratta e razionale, avente lo scopo di separare i poteri e di assoggettare i giudici alla parola della legge. Al contrario, Montesquieu avrebbe cercato di limitare il potere pubblico attraverso un modello di sovranità divisa. Seguendo questa chiave di lettura il potere giudiziario in Montesquieu è un contropotere che limita il potere legislativo interpretando lo «spirito» dell’ordinamento giuridico prima che la «lettera» della legge.

English Abstract: According to Giovanni Tarello, Montesquieu was a forerunner of the legal enlightenment. He is believed to have formulated the theory of the tripartition of state powers into executive, legislative, and judicial branches. Moreover, he is supposed to have subordinated the judicial to the legislative power (the judges should therefore be merely the “mouth of the law” and limit themselves to the mechanical application of the legislator’s will). In this paper I will suggest other interpretations. In the view of other Italian scholars, the theory of the separation of powers should not be seen as subjecting the judiciary to the legislative branch. On the contrary, Montesquieu can be understood as having intended to limit public power through the division of sovereignty, whereby judges set boundaries on the wielding of political power by interpreting the spirit rather than merely the letter of the law.
Download the article from SSRN at the link.

Endicott and Oliver on The Role of Theory in Canadian Constitutional Law @OxfordLawFac @PeterCOliver @OxUniPress

Timothy A. O. Endicott, University of Oxford Faculty of Law, and Peter C. Oliver, University of Ottawa, Common Law Section, are publishing The Role of Theory in Canadian Constitutional Law in The Oxford Handbook of Canadian Constitutional Law (N. Des Rosiers, P. Macklem, and P. Oliver, eds., Oxford University Press, 2017). Here is the abstract.
Constitutional theory has been institutionalized in distinctive ways in Canada. The Constitution Act, 1867 (formerly the British North America Act, 1867) created unique opportunities and imperatives for political leaders, advocates, judges, scholars, law students and others to articulate their understanding of Confederation. And even while the country chose a parliamentary form of government very different from American republicanism, Confederation generated a set of entrenched rules defining the powers of the federal and provincial governments, which would give judges a hand in the law of the Constitution that judges had not had in the United Kingdom. Moreover, Canadian federalism generated an extraordinary statutory provision for references (i.e., requests for advisory opinions) to the Supreme Court of Canada on matters of law and fact, including (as it would turn out) matters of convention. The judges’ reasons for decision involve them in the theoretical task of articulating the basis of the Constitution. The Constitution Act, 1982 further enhanced the judges’ role as theorists of the Constitution, through their role in the interpretation and elaboration of the Charter of Rights and Freedoms. We aim to illustrate ways in which both express theorizing and inarticulate theoretical assumptions have shaped Canadian constitutional law, and we argue that good theorizing is essential for the sound development of the law and practice of the Constitution.
Download the essay from SSRN at the link.

July 25, 2017

Literature and Human Rights: The Law, the Language and the Limitations of Human Rights @degruyter_lit

New in paperback from de Gruyter:

Literature and Human Rights: The Law, the Language and the Limitations of Human Rights Discourse (Ian Ward, ed., 2017) (to be released July 26, 2017)

This very interesting volume includes essays by Maria Aristodemou, Daniela Carpi, Jeanne Gaakeer, Ian Ward, and many other scholars. Available in hardcover, paperback, and ebook.

July 24, 2017

"Star Trek" and Revolutionary Socialism @nytimes

A. M. Gittlitz examines Star Trek's links to revolutionary socialism, here, for the New York Times.

Asimow on Jewish Lawyers on Television @StanfordLaw @OxfordCSLS ‏

Michael Asimow, Stanford Law School, has published Jewish Lawyers on Television at 2017 (2) Journal of the Oxford Centre for Socio-Legal Studies 14.
Jewish lawyers have appeared in numerous television series, including lawyer shows as well as soap operas and police stories. Many of these portrayals reflect negative stereotypes that suggest Jewish lawyers are worse than other lawyers. Jewish lawyers frequently are represented as shrewd, manipulative, cunning and unethical. Most are physically unattractive and many are obnoxious. These negative representations may reflect deep seated and persistent anti-Semitic views. However, some Jewish TV lawyers are presented in a mildly positive light and a few are very positively represented. This article introduces the Jewish TV lawyers and seeks to explain both the negative and positive stereotypes embodied in their characters.
Download the article from SSRN at the link.

July 13, 2017

Mikhail on The Definition of "Emolument" In English Language and Legal Dictionaries, 1523-1806 @_John_Mikhail

John Mikhail, Georgetown University Law Center, has published The Definition of 'Emolument' in English Language and Legal Dictionaries, 1523-1806. Here is the abstract.
In its motion to dismiss in CREW et al. v. Trump, the Department of Justice (DOJ) defines the word “emolument” as “profit arising from office or employ.” DOJ claims that this “original understanding” of “emolument” is both grounded in “contemporaneous dictionary definitions” and justifies an “office-and-employment-specific construction” of that term. On this basis, it argues that the Emoluments Clauses of the Constitution “do not prohibit any company in which the President has any financial interest from doing business with any foreign, federal, or state instrumentality.” Unfortunately, DOJ’s historical definition of “emolument” is inaccurate, unrepresentative, and misleading. Particularly because the government may seek to utilize its flawed definition in subsequent court filings, this Article seeks to correct the historical record. It does so based on a comprehensive study of how “emolument” is defined in English language dictionaries published from 1604 to 1806, as well as in common law dictionaries published between 1523 and 1792. Among other things, the Article demonstrates that every English dictionary definition of “emolument” from 1604 to 1806 relies on one or more of the elements of the broad definition DOJ rejects in its brief: “profit,” “advantage,” “gain,” or “benefit.” Furthermore, over 92% of these dictionaries define “emolument” exclusively in these terms, with no reference to “office” or “employment.” By contrast, DOJ’s preferred definition — “profit arising from office or employ” — appears in less than 8% of these dictionaries. Moreover, even these outlier dictionaries always include “gain, or advantage” in their definitions, a fact obscured by DOJ’s selective quotation of only one part of its favored definition from Barclay (1774). The impression DOJ creates in its brief by contrasting four historical definitions of “emolument” — two broad and two narrow — is, therefore, highly misleading. The suggestion that “emolument” was a legal term of art at the founding, with a sharply circumscribed “office-and-employment-specific” meaning, is also inconsistent with the historical record. A vast quantity of evidence already available in the public domain suggests that the founding generation used the word “emolument” in broad variety of contexts, including private commercial transactions. This Article adds to that emerging historical consensus by documenting that none of the most significant common law dictionaries published from 1523 to 1792 even includes “emolument” in its list of defined terms. In fact, this term is mainly used in these legal dictionaries to define other, less familiar words and concepts. These findings reinforce the conclusion that “emolument” was not a term of art at the founding with a highly restricted meaning. Finally, the Article calls attention to the fact that the government’s dictionary-based argument is flawed in another, more fundamental respect. Little or no evidence indicates that the two historical dictionaries — Barclay (1774) and Trusler (1766) — on which DOJ relies in its brief to defend its “office-and-employment-specific” definition of “emolument” were owned, possessed, or used by the founders, let alone had any impact on them or on the American people who debated and ratified the Constitution. For example, neither of these dictionaries is mentioned in the more than 178,000 searchable documents in the Founders Online database, which makes publicly available the papers of the six most prominent founders. Nor do these volumes appear in other pertinent databases, such as the Journals of the Continental Congress, Letters of Delegates to Congress, Farrand’s Records, Elliot’s Debates, or the Documentary History of the Ratification of the Constitution. By contrast, all of the dictionaries that the founding generation did possess and use regularly — e.g., Johnson, Bailey, Dyche & Pardon, Ash, and Entick — define “emolument” in the broad manner favoring the plaintiffs: “profit,” “gain,” “advantage,” or “benefit.” To document its primary claims, the Article includes over 100 original images of English language and legal dictionaries from 1523 to 1806, as well as complete transcripts and easy-to-read tables of the definitions contained therein. A second study is currently underway of dictionaries from 1806 to the present, which seeks to determine how and why definitions of “emolument” may have changed over time. Collectively, these inquiries are designed to accomplish more than simply aiding judges and holding lawyers’ feet to the fire in the emoluments cases now pending in three federal courts. They also provide a basis for educating members of Congress, government officials, journalists, and the broader public about the historical meaning of this important yet obscure constitutional term.
Download the article from SSRN at the link.

July 12, 2017

Comino, Galasso, and Grasizno on The Diffusion of New Institutions: Evidence From Renassiance Venice's Patent System @AlbertoGalasso

Stefano Comino, Università degli Studi di Udine, Alberto Galasso, University of Toronto, Rotman School of Management, University of Toronto, Strategic Management, and Clara Graziano, Università degli Studi di Udine - Department of Economics; CESifo (Center for Economic Studies and Ifo Institute for Economic Research, have published The Diffusion of New Institutions: Evidence from Renaissance Venice's Patent System. Here is the abstract.
What factors affect the diffusion of new economic institutions? This paper examines this question by exploiting the introduction of the first regularized patent system, which appeared in the Venetian Republic in 1474. We begin by developing a model that links patenting activity of craft guilds with provisions in their statutes. The model predicts that guild statutes that are more effective at preventing outsiders’ entry and at mitigating price competition lead to less patenting. We test this prediction on a new dataset that combines detailed information on craft guilds and patents in the Venetian Republic during the Renaissance. We find a negative association between patenting activity and guild statutory norms that strongly restrict entry and price competition. We show that guilds that originated from medieval religious confraternities were more likely to regulate entry and competition, and that the effect on patenting is robust to instrumenting guild statutes with their quasi-exogenous religious origin. We also find that patenting was more widespread among guilds geographically distant from Venice, and among guilds in cities with lower political connections, which we measure by exploiting a new database of noble families and their marriages with members of the great council. Our analysis suggests that local economic and political conditions may have a substantial impact on the diffusion of new economic institutions.
Download the article from SSRN at the link.

Domingo on Justinian and the Corpus Iuris: An Overview @RafaelDomingoO1

Rafael Domingo, Emory University School of Law; University of Navarra, has published Justinian and the Corpus Iuris: An Overview. Here is the abstract.
The authors explores the most important legal undertaking of Antiquity: the Corpus Iuris Civilis promulgated by Emperor Justinian. Justinian’s codification is the bridge that links Antiquity, the Byzantine Empire, and Europe. It is also the link between civil law and common law, and between canon law and civil law. To know about the Corpus Iuris is to know about something that was instrumental for the development of justice and law in the past, continues to operate in the present, and will probably have its impact in the future. The Corpus Iuris, especially the Digest, has not only a historic value but an intrinsic one because it embodied the creative spirit and permanent character of all of Roman jurisprudence.
Download the article from SSRN at the link.

Dubber on Colonial Criminal Law and Other Modernities @UTLaw

Markus D. Dubber, University of Toronto Faculty of Law, is publishing Colonial Criminal Law and Other Modernities: European Criminal Law in the Nineteenth and Twentieth Century in the Oxford Handbook of European Legal History (forthcoming). Here is the abstract.
This paper has two parts. The first part reflects on various traditional approaches to the historical study of European criminal law in the nineteenth and twentieth century. The second part lays out an alternative, two-track, conception of "modern" European criminal legal history. It does this by taking an upside-down -- or outside-in -- view of the subject, by focusing on an understudied, but fascinating, project of European criminal law: the invention, implementation, and evolution of colonial criminal law.
Download the essay from SSRN at the link.

Reynolds on Truth and the Trial Lawyer @Oregon_Law

Jennifer Reynolds, University of Oregon School of Law, has published Truth and the Trial Lawyer at Trial Lawyer, Summer 2017, at 13. Here is the abstract.
Lawyers routinely deal in fictions, so much so that they are somtimes criticized as professional liars. But can this proficiency with storytelling actually bring us closer to the truth?
Download the essay from SSRN at the link.

July 11, 2017

Alexander on Libel and Copyright in the Satire of Peter Pindar

James R. Alexander, University of Pittsburgh, Jonestown, has published Libel and Copyright in the Satire of Peter Pindar. Here is the abstract.
In 1802, the English Chancery Court denied the satirical poet John Wolcot (‘Peter Pindar’) injunctive relief for copyright infringement claimed against his publisher John Walker. While the original agreement between the parties was ambiguous, the ruling was more procedural rather than interpretive. As Wolcot’s verse was always scandalous and arguably libelous, Eldon ruled that Wolcot should first establish his property in the contested works at law before seeking equitable relief, to thereby clear away any question of their criminality. This was arguably the first application to copyright of an eighteenth-century maxim that there could be no property in criminally-libelous literary works. Almost immediately and for over the next century in equity cases and both English and American legal treatises, Eldon’s ruling was interpreted as establishing the Court as censor morum, authorized under common law to rule exceptions to copyright protection based on a determination of illicit or illegal content, regardless of whether copyright statutes specified content-based exceptions. However, a careful review of the Chancery records reveals the ruling warrants a more tempered reading, and that the long-assumed legal precedent may have followed a hoped-for rather than established principle.
Download the article from SSRN at the link.