August 25, 2016

CBS, Jennifer Lopez, Michael Rauch, and a New Legal Drama

Jennifer Lopez and Michael Rauch (Royal Pains) are offering CBS a legal drama featuring identical twins who don't get along outside the courtroom but complement each other at the bar. The unnamed show is the sort of thing networks perenially like to offer audiences: a law-related series with predictability (the "partners that clash" thing) and just a twist of the new (the "they're twins" thing). I'll be interested to set if it turns up on our small screens in the near future. More here from The Hollywood Reporter.

August 23, 2016

Robert Durst Docudrama In the Works at Lifetime

Lifetime is working on a tv movie about the life and crimes of Robert Durst, who was the subject of the HBO documentary Jinx. The Lifetime project will be based on the Matt Birkbeck true crime book, A Deadly Secret: The Bizarre and Chilling Story of Robert Durst.

A Deadly Secret

Liebowitz on the Payment of British Authors in 19th Century America

Stan J. Liebowitz, University of Texas, Dallas, School of Management, Department of Finance & Managerial Economics, has published Paradise Lost or Fantasy Island? The Payment of British Authors in 19th Century America. Here is the abstract.
The payments to British authors by American publishers during the mid-19th century, when the works of British authors lacked American copyright protection, has been presented as evidence that copyright might have little benefit to authors. This paper reexamines the evidence that has been used to support this claim and then presents previously unexamined information on payments to British authors by leading American publishers of the period. The main finding is that payments to British authors were minimal or non-existent prior to the establishment of a no-compete agreement among leading American publishers. Even after implementation of this agreement, many British authors were not paid, and those who were paid received considerably less than they would have received under copyright. Because antitrust disallows such agreements, this 19th natural experiment indicates that the removal of copyright in modern economies would likely eviscerate payments to authors.
The full article is not available for download.

Interdisciplinary Workshop on Intoxication, Discourse, and Practice, September 30-October 1, 2016, Humanities Research Institute, University of Sheffield

Via Legal History Blog:

Interdisciplinary Workshop on Intoxication, Discourse, and Practice, Friday 30th September and Saturday 1st October, 2016 Humanities Research Institute, University of Sheffield

Since at least the sixteenth century intoxication has frequently been seen as a problem in western cultures – a medical, social, political, moral, and economic concern, affecting both individuals and social bodies, that huge amounts of public funding and energy have been devoted to understanding, addressing, and preventing. Just as frequently, these attempts have failed, even when they are based on apparently incontrovertible ‘scientific’ evidence – to do with serious physiological damage done by alcohol to the brain and liver, for example, or serious personal and social harms caused by illicit drugs.

Organised by the Sheffield research project Intoxicants and Early Modernity: England, 1580-1740, the focus of this workshop is: · discourses that have and/or continue to frame intoxication as a problem over time · other discourses that have represented intoxicants as an integral and valuable feature of social life and personal identity · the relationship between these various discursive traditions and practices of intoxication in different times and places To this end the interdisciplinary workshop brings together exponents of and experts in different kinds of discourse: medical, psychological, cultural, economic, law and politics, public health. But it also brings together experts in social practice: for example, social historians, anthropologists, and sociologists. The workshop provides an opportunity for speakers to think about the epistemologies, language, and assumptions of discourses relating to intoxicants and – in particular – the means by which they are publicly communicated: by whom, to whom, in what media and genres. It also asks students of social practices to think about the key discursive influences on their construction, reproduction, meaning, and value over time.

For a full list of speakers and registration, please click

The deadline for registration is 16 September 2016.

Of Intellectual Disability and the Death Sentence

From the New York Times: In Moore v. Texas, No. 15-797, the U.S. Supreme Court will consider the question of mental capacity and whether a defendant should be eligible for the death sentence if he or she has an I.Q. that is so low that s/he is essentially unable to function in society. This standard is named after the character of Lennie in John Steinbeck's Of Mice and Men.  

More about Lennie and the "Lennie Standard" below.

Carl Bailey, "He's Dumb as Hell, But He Ain't Crazy."

Julia Barton, Judging Steinbeck's Lennie. Life of the Law.

Dianna Wray, "Texas Uses 'Of Mice and Men Standards' To Execute Mentally Disable Man," Houston Press, January 29, 2015.

Yoon on Academic Tenure

Albert Yoon, University of Toronto Faculty of Law, has published Academic Tenure at 13 Journal of Empirical Legal Studies 428 (2016). Here is the abstract.
In academia, a subset of faculty has tenure, which allows its beneficiaries to retain their professorships without mandatory retirement and with only limited grounds for revocation. Proponents of tenure argue it protects intellectual freedom and encourages investment in human capital. Detractors contend it discourages effort and distorts the academic labor market. This article develops a framework for examining academic tenure in the context of U.S. law schools. We construct a unique data set of tenured U.S. law professors who began their careers between 1993 through 2002, and follow their employment and scholarship for the first 10 years of their career. Across all journal publications, tenured faculty publish more frequently, are cited with roughly the same frequency, and place in comparable caliber of journal. These productivity gains, however, largely disappear when excluding solicited publications. These results suggest that legal academics continue to produce after tenure, but channel more of their efforts toward less competitive outlets.
The full text is not available from SSRN.

Spiro On Dual Citizenship

Peter J. Spiro, Temple University School of Law, has published At Home in Two Countries: The Past and Future of Dual Citizenship (Introduction) in At Home in Two Countries (NYU Press, 2016). Here is the abstract.
How did dual citizenship evolve from traitorous to trendy? Dual nationality was once considered an offense against nature, an abomination on the order of bigamy. It was the stuff of titanic battles between the United States and European sovereigns. As those conflicts dissipated, dual citizenship continued to be the object of loyalty and misplaced security concerns. Only recently has the status largely shed the opprobrium to which it was once attached. The first monograph on the status in several generations, AT HOME IN TWO COUNTRIES charts the transformed understanding of dual citizenship from strong disfavor to general acceptance. Today, the state lacks both the capacity and the incentive to suppress the status as citizenship becomes more like other forms of membership. Dual citizenship allows many to formalize sentimental attachments. For others, it’s a new way to game the international system. The introduction opens with the author’s own experience acquiring dual citizenship. It then outlines the book’s consideration of dual citizenship in historical and contemporary perspective.
Download the introduction from SSRN at the link.

August 22, 2016

A Review Essay For the TV Show "The Wire," Courtesy of Shawn Peters @shfrpeters

Shawn W. Peters offers a review essay devoted to the tv show The Wire here.

Cameron on Thomas Healy's "The Great Dissent:" Oliver Wendell Holmes and the Abrams Decision

Jamie Cameron, Osgoode Hall Law School, has published The Great Dissent: How Oliver Wendell Holmes Changed His Mind – And Changed the History of Free Speech in America, by Thomas Healy as Osgoode Hall Studies Research Paper No. 65/2016. Here is the abstract.
Thomas Healy’s The Great Dissent re-treads the familiar story of US Supreme Court Justice Holmes’s First Amendment conversion between March and November 1919, when he launched his marketplace of ideas theory and strong-form version of the clear and present danger doctrine. Healy’s book demonstrates that fresh perspectives on this vital and ever-intriguing change of mind or transformation on Holmes’s part remain possible. The review offers its own perspective by highlighting the process of “reverse mentoring” which took place, in which the older jurist was mentored on free speech issues by the emerging thought leaders of the day – Laski, Frankfurter, Chafee – and showing how Justice Holmes’s landmark dissent in Abrams was nonetheless and indisputably a product of his own jurisprudential ingenuity.

Download the text from SSRN at the link. 

Which Famous Detective Are You?

Above the Law has posted this quiz for you to "to find out which famous detective you are." Note: at the end you will need to enter personal information to get your results.

A Conference on Feminist Legal Theory and Applied Feminism at the University of Baltimore School of Law, March 30-31, 2017

From the mailbox:


The Center on Applied Feminism at the University of Baltimore School of Law seeks paper proposals for the Tenth Anniversary of the Feminist Legal Theory Conference.  We hope you will join us for this exciting celebration on March 30-31, 2017.

This year, the conference will explore how intersecting identities inform -- or should inform -- feminist legal theory and justice-oriented legal practice, legal systems, legal policy, and legal activism. Beginning in 1989, Kimberlé Crenshaw identified the need for law to recognize persons as representing multiple intersecting identities, not only one identity (such as female) to the exclusion of another (such as African American). Intersectionality theory unmasks how social systems oppress people in different ways.  While its origins are in exploring the intersection of race and gender, intersectionality theory now encompasses all intersecting identities including religion, ethnicity, citizenship, class, disability, and sexual orientation. Today, intersectionality theory is an important part of the Black Lives Matter and #SayHerName movements. For more information, see

We seek submissions of papers that focus on the topic of applied feminism and intersecting identities.  This conference aims to explore the following questions: What impact has intersectionality theory had on feminist legal theory?  How has it changed law and social policy? How does intersectionality help us understand and challenge different forms of oppression?  What is its transformative potential? What legal challenges are best suited to an intersectionality approach? How has intersectionality  theory changed over time and where might it go in the future?
We welcome proposals that consider these questions from a variety of substantive disciplines and perspectives. As always, the Center’s conference will serve as a forum for scholars, practitioners and activists to share ideas about applied feminism, focusing on connections between theory and practice to effectuate social change. The conference will be open to the public and will feature a keynote speaker. Past keynote speakers have included Nobel Laureate Toni Morrison, Dr. Maya Angelou, Gloria Steinem, Senators Barbara Mikulski and Amy Klobuchar, NOW President Terry O’Neill, EEOC Commissioner Chai Feldblum, and U.S. District Judge Nancy Gertner.

To submit a paper proposal, please submit an abstract by Friday October 28, 2016 to Your abstract must contain your full contact information and professional affiliation, as well as an email, phone number, and mailing address. In the “Re” line, please state: CAF Conference 2017. Abstracts should be no longer than one page. We will notify presenters of selected papers in November. About half the presenter slots will be reserved for authors who commit to publishing in the annual symposium volume of the University of Baltimore Law Review. Thus, please indicate at the bottom of your abstract whether you are submitting (1) solely to present or (2) to present and publish in the symposium volume. Authors who are interested in publishing in the Law Review will be strongly considered for publication. For all presenters, working drafts of papers will be due no later than March 3, 2017. Presenters are responsible for their own travel costs; the conference will provide a discounted hotel rate as well as meals.

We look forward to your submissions. If you have further questions, please contact Prof. Margaret Johnson at For additional information about the conference, please visit

August 19, 2016

Fenster on Legal Intellectual History

Mark Fenster, University of Florida College of Law, has published Mr. Peabody's Improbable Legal Intellectual History at 64 Buffalo Law Review 101 (2016). Here is the abstract.
Legal intellectual history, I suggest in this Paper, is the street sweeper in the parade of law’s history and its use of history. Lawyers and legal academics want great, important figures, cases, and theories with and against which they can do battle. The student-edited law reviews prefer bold, clear claims that explain why one answer to an historical question presented will bring justice, while a competing answer is manifestly unjust; why one past approach lacks principle or created worse consequences; or how one theory or another can explain all manner of thorny legal issues which bedevils academics and practitioners. Viewing an appellate decision, legislative enactment, or academic debate, the legal academic must travel back in time to set matters straight, redeeming the past to make certain that the future avoids its confused and unfortunate fate. Intellectual historians trail behind the legal academy’s heavy-breathing and magnificent use of the past, cleaning up its waste by providing context, complicating narratives, and replacing bright trumpet horns with muted tones, vivid colors with shades of gray. Well after the parade has dispersed and marchers have moved on, and often before the next “Big Issue” causes the celebrants to line back up, intellectual history can bring complexity and context back in to the frame. I illustrate this dynamic first by describing the use of legal realism in Brian Tamanaha’s recent monograph on what he describes as the formalist-realist divide in legal theories about judging and about legal doctrine, and in the debate over that divide. In Part II, I describe a relatively minor figure in the pantheon of legal realists (as that pantheon currently exists), Thurman Arnold, and his realist critique of the criminal law and procedure.
Download the article from SSRN at the link.

A New Version of "Witness for the Prosecution" May Be Headed For the Screen

Ben Affleck may remake Witness for the Prosecution for Fox, according to the Hollywood Reporter.  Billy Wilder famously made the Agatha Christie short story into a hit film in 1957; it starred Tyrone Power, Charles Laughton, Elsa Lanchester, and Marlene Dietrich. Diana Rigg and Beau Bridges starred in a 1984 adaptation for television (Dame Diana taking the Marlene Dietrich role. There was also another 1949 television version.

Below, a selected bibliography on Witness for the Prosecution and the law.

Chase, Anthony, Lawyers and Popular Culture: A Review of Mass Media Portrayals of  American Attorneys, 11 Law and Social Inquiry 281 (April 1986). 

Corcos, Christine Alice, Legal Fictions: Irony, Storytelling, Truth, and Justice in the Modern Courtroom Drama,  25 U. Ark. L. Rev. 503 (2003).

Papke, David Ray, Conventional Wisdom: The Courtroom Trial in American Popular Culture:  Essay, 82 Marquette Law Review 471 (1999). 

Papke, David Ray, American Courtroom Trial: Pop Culture, Courthouse Realities, and the Dream World of Justice, 40 South West Texas Law Review 919 (1999).

Singer, Eliot A., The Whodunit as Riddle: Block Elements in Agatha Christie, 43 Western Folklore 157 (July 1984).

Links available if you are a subscriber to Hein Online or JSTOR.

Monti on "Interdisciplinary" Legal Studies and the Emergence of New Academic Teachings: A Research Project on Law Courses in 19th-20th Century Italy

Annamaria Monti, Bocconi University Department of Law, has published 'Interdisciplinary' Legal Studies and the Emergence of New Academic Teachings: A Research Project on Law Courses in 19th-20th Century Italy (Estudios Legales 'Interdisciplinares' y la Aparición de Nuevas Enseñanzas Académicas: Un Proyecto de Investigación Sobre los Cursos de Derecho en Italia en los Siglos XIX y XX) at 19 CIAN: Revista de Historia de las Universidades 91 (2016). Here is the abstract.
English Abstract: The profound change in thinking about the law experienced by European jurists at the turning of the 20th century is well known: they renewed their methods, also through the influence of German legal thought and the impact of new social sciences. Focusing on the Italian experience, the research intends to investigate how this innovative change was linked to the teaching of law. Most certainly, new courses were introduced. Concerning the contents of the teachings, another point to investigate are the connections with the legal thought circulating at a transnational level in those times.

Spanish Abstract: El cambio profundo en la manera en la que se pensaba el derecho que experimentaron los juristas europeos a principios del siglo XX es bien conocido: renovaron sus métodos, en parte bajo la influencia del pensamiento jurídico alemán y el impacto de nuevas ciencias sociales. Nuestra investigación, que se centra en la experiencia italiana busca determinar el modo en que aquella innovación estuvo vinculada a la enseñanza del derecho. Seguramente se introdujeron nuevas asignaturas. En cuanto al contenido de aquella enseñanza, otro aspecto a investigar consiste en su conexión con el pensamiento jurídico que circulaba en aquel entonces a nivel transnacional.

Download the article from SSRN at the link. 

Moyn @samuelmoyn on Legal Theory Among the Ruins: In Search of Contemporary Legal Thought

Samuel Moyn, Harvard University, is publishing Legal Theory among the Ruins in In Search of Contemporary Legal Thought (Justin Desautels-Stein and Christopher Tomlins, eds.; Cambridge University Press, forthcoming). Here is the abstract.
This paper responds to an ongoing discussion initiated by Duncan Kennedy concerning the identity of "contemporary legal thought." This contribution argues that that category is so hard to define or exemplify because the historical conditions for its possibility are lacking. The reason that there is no such thing as contemporary legal thought is the destructive contention of theories in the 1970s-90s, and in particular the contending options that caused the initial failure of critical legal studies. If this is true, no engagement with “contemporary legal thought” can fail to face the harsh truth that it simply may not exist, and hence that our main task is not to identify it but to bring it about.
Download the essay from SSRN at the link.

August 18, 2016

Of Note: A New Journal, Politics and Poetics

From the mailbox: news of a new peer-reviewed journal, Politics and Poetics, with a focus on philosophy.  Volume 1 (2014/2015), devoted to Tragedy, is now available. The editor is Jonathan Price, University of Leiden.

See the CFP for future volumes here.

Law and Society Association 2017 Annual Meeting Will Be in Mexico City, June 20-23, 2017: The Theme Is Walls, Borders, and Bridges

The Law and Society Association has announced its theme for the 2017 meeting: Walls, Borders, and Bridges: Law and Society in an Inter-Connected World. Mexico City is the site for this, the first International Meeting on Law and Society, which will take place June 20-23, 2017.

Co-sponsors are the Research Committee on the Sociology of Law, and with the participation of the Socio-Legal Studies Association, the Japanese Association of the Sociology of Law, and the Canadian Law and Society Association, and other groups.

The Program Committee includes:

• Lawrence M. Friedman, Professor of Law, Stanford University, Stanford, CA, United States
• Manuel A. Gomez, Associate Dean of International & Graduate Studies, Florida International University College of Law, Miami, FL, United States
• Masayuki Murayama, Professor, Meiji University, Chiyoda-ku, Tokyo, Japan, and President of RCSL

The deadline for proposal submission is October 18, 2016. Registration begins in early February, 2017. Here's a link to the website.

August 17, 2016

Re-Examining the Jon-Benet Ramsey Case

Via THR, CBS is working on a docuseries about the Jon-Benet Ramsey case. The six-year-old was found dead in the basement of her Boulder, Colorado, home on Christmas Day, 1996. Law enforcement has never charged anyone for the crime, although it has considered various suspects. The CBS series will begin airing September 18.

Lifetime has its own Jon-Benet project in the works, a TV movie starring Eoin Bailey. Because this year marks the 20th anniversary of little Jon-Benet's death, it's no surprise that there is renewed interest in this tragic unsolved murder.

In 2000, Kris Kristofferson starred in an adaptation of Lawrence Schiller's Perfect Murder, Perfect Town (HarperCollins, 1998).

Sloan and Starger @ColinStarger on Metaphor and Legal Research

Amy E. Sloan and Colin P. Starger, both of the University of Baltimore School of Law, are publishing New Wine in Old Wineskins: Metaphor and Legal Research in the 2016 Notre Dame Law Review Online. Here is the abstract.
We construct our conceptual world using metaphors. Yet sometimes our concepts are flawed and our metaphors do damage. This Article examines a set of metaphors currently doing damage in law – those for legal research. It shows that while technology has radically altered the material world of legal research, our dominant metaphors have remained static, and thus, become outmoded. Conceptualizing today’s reality using old metaphors fails; it is like pouring new wine in old wineskins. To address this problem, this Article first surfaces unwarranted assumptions buried in the metaphors we use when talking about research and then proposes new metaphors to better serve theory and practice. It concludes by examining how this investigation into “finding law” implicates primary jurisprudential concepts of law.

Download the article from SSRN at the link.  

August 16, 2016

A Film About Thomas Edison, George Westinghouse, and Electricity To Hit the Big Screen

IP nerds take note: Graham Moore's novel The Last Days of Night, which dramatizes Thomas Edison's battle with George Westinghouse and the AC/DC wars (for the younguns, this is before the rock group) will hit the big screen as a film from Black Bear Pictures. Eddie Redmayne has signed on to play Paul Cravath, of Cravath, Swaine, & Moore, who at 26 was hired to represent Edison in the infringement suit.

Mr. Moore is also known for the film The Imitation Game, which was based on his novel. 

More here from NPR, the ABA Journal. 

More here about the IP battle from the Smithsonian Magazine.

August 15, 2016

Graber on State Constitutions as National Constitutions

Mark Graber, University of Maryland School of Law, is publishing State Constitutions as National Constitutions in the Arkansas Law Review. Here is the abstract.
Practice trumped theory on the precise status of newly independent states when Americans drafted and ratified early state constitutional documents. General agreement appears to exist that the Continental Congress was empowered to conduct the Revolution and make foreign alliances, while the states were empowered to regulate internal police matters. State politicians during the time between the drafting of the Declaration of Independence and the ratification of the federal Constitution, however, consistently undertheorized the basis of the distinction between internal and external affairs, at least when framing official state constitutional documents. 1770s and 1780s pamphleteers and essayists frequently expounded on the proper relationships between the periphery and core, but those responsible for early state constitutions did not adopt any available understanding of federalism in a uniform or clear matter. Broad statements on theory were either ambiguous or conflicting. Some provisions in early state constitutions indicated that the United States was becoming, or was, a confederated union composed of independent, sovereign states. Others evince a more consolidated regime. The best evidence suggests that under the pressure of time and circumstances, those responsible for state constitutions felt little need to reach agreement or even think deeply about the theoretical foundations of the federal-state relationship when they agreed on the immediate practical division of labor before them. The state constitutional response, or lack thereof, to the ratification of the federal Constitution suggests that Americans reached no greater consensus on the location of ultimate sovereignty in 1788, when the Constitution was ratified, or in 1791, when all states ratified the Constitution.
Download the article from SSRN at the link.

Cameron on Dialogue in Charter Interpretation

Jamie Cameron, Osgoode Hall Law School, has published Collateral Thoughts on Dialogue's Legacy as Metaphor and Theory: A Favourite from Canada as Osgoode Legal Studies Research Paper No. 66/2016. Here is the abstract.
“Collateral Thoughts” is part of a special issue edited by Professor James Allan, who invited and challenged a group of scholars to select and discuss a favourite law review article. I chose “The Charter Dialogue Between Courts and Legislatures” because it is the most influential article to date in the Charter of Rights and Freedom’s relatively short history (since 1982). I call this reflection “Collateral Thoughts” because my interest is less in the merits of dialogue theory than in its remarkable impact, at home in Canada as well as abroad, in the broader reaches of comparative constitutionalism and constitutional theory. In the main, this reflection asks how and why “dialogue” became a runaway concept, and considers what that tells us about the nature and formation of constitutional theory. It shows that Dialogue was fundamentally connected to Canada’s catharsis of rights, in 1982 and in the early years of Charter interpretation. That is why its claim that the legitimacy battles which define American judicial review are irrelevant – because Canada’s system of rights protection is based on “dialogue” – was so explosive. Not only did this article command attention in Canada, the concept of dialogue would be “reified”, castigated and deeply analyzed by scholars and Commonwealth jurisdictions who wondered whether weaker or weak-form judicial review was institutionally possible. Much like other theories in the US constitutional tradition, Dialogue responded to controversy by theorizing and attempting to legitimize review. Despite failing in its objective to eliminate legitimacy concerns about review, Dialogue catalyzed a national and international movement in constitutional thought.
Download the essay from SSRN at the link.

August 11, 2016

Olree on Madison's Vision of Religious Liberty

Andy G. Olree, Faulkner University School of Law, has published A Madisonian Vision of Religious Liberty at 7 Faulkner Law Review 19 (2015). Here is the abstract.
James Madison thought and wrote a great deal about issues of religious liberty. Some of his stances are well-known, while others ought to be better known. His theory of religious liberty resists easy categorization by the partisans in our current debates over church and state. While Madison himself claimed to stand for “total separation” of religion and government, his stances differed in important ways from those of many of today’s “strict separationists.” At the same time, he firmly rejected state attempts to support religious truths and practices — even broad “Judeo-Christian” ones — as well as state attempts to acknowledge the privileged place of religion in our history and culture. This invited essay, written for the 2015 Faulkner Law Review Symposium on “The Meaning of Religious Liberty in the Anglo-American Tradition,” summarizes and documents Madison’s understanding of religious liberty, with specific reference to concepts such as religious toleration, natural rights of conscience, religious exemptions in law, and establishments of religion. Along the way, the essay draws attention to points of agreement and disagreement between Madison and John Locke.
Download the essay from SSRN at the link.

Galic, Timan, and Koops on Bentham, Deleuze, and Beyond: An Overview of Surveillance Theories From the Panopticon to Participation

Maša Galič, Tjerk Timan, and Bert-Jaap Koops, all of Tilburg University, Tilburg Institute for Law, Technology, and Society, have published Bentham, Deleuze and Beyond: An Overview of Surveillance Theories from the Panopticon to Participation at Philos. Technol. (2016), DOI: 10.1007/s13347-016-0219-1. Here is the abstract.

This paper aims to provide an overview of surveillance theories and concepts that can help to understand and debate surveillance in its many forms. As scholars from an increasingly wide range of disciplines are discussing surveillance, this literature review can offer much-needed common ground for the debate. We structure surveillance theory in three roughly chronological-thematic phases. The first two conceptualise surveillance through comprehensive theoretical frameworks, which are elaborated in the third phase. The first phase, featuring Bentham and Foucault, offers architectural theories of surveillance, where surveillance is often physical and spatial, involving centralised mechanisms of watching over subjects. Panoptic structures function as architectures of power, not only directly but also through (self-)disciplining of the watched subjects. The second phase offers infrastructural theories of surveillance, where surveillance is networked and relies primarily on digital rather than physical technologies. It involves distributed forms of watching over people, with increasing distance to the watched and often dealing with data doubles rather than physical persons. Deleuze, Haggerty and Ericson, and Zuboff develop different theoretical frameworks than panopticism to conceptualise the power play involved in networked surveillance. The third phase of scholarship refines, combines, or extends the main conceptual frameworks developed earlier. Surveillance theory branches out to conceptualise surveillance through concepts such as dataveillance, access control, social sorting, peer-to-peer surveillance, and resistance. With the datafication of society, surveillance combines the physical with the digital, government with corporate surveillance, and top-down with self-surveillance. 

Download the article from SSRN at the link.

A New Blog Devoted To Legal History Makes Its Debut

Three legal historians have launched a new blog devoted to, appropriately enough, legal history: Legal History Miscellany.  Sara M. Butler is the King George III Professor of British History at The Ohio State University.  Krista Kesselring is Professor of British History at Dalhousie University.  Katherine D. Watson is Senior Lecturer at Oxford Brookes University. More about them here.

Allen on Doctrine as a Disruptive Practice.

Jessie Allen, University of Pittsburgh School of Law, has published Doctrine as a Disruptive Practice as University of Pittsburgh Legal Studies Research Paper No. 2016-21. Here is the abstract.
This article proposes a different way to think about legal reasoning that focuses on its psychological effects rather than its ability to identify legal outcomes. Legal doctrine, such as statutes and case law, is generally thought to contribute to legal decision making only to the extent that it determines legal outcomes, or at least narrows the range of justifiable outcomes. Yet in many cases that come to court, the available authorities are acknowledged to be indeterminate. Over the course of decades, various theories and methods have been proposed to justify judges’ continued reliance on doctrine. Most of this literature focuses on doctrine’s capacity to direct substantive outcomes and ignores other benefits that doctrinal reasoning might provide. Recently, however, some empirical studies have begun to consider the potential cognitive effects of judges’ engagement with doctrine. This article offers another model for how doctrine might influence judges’ perceptions. Drawing on performance theory and recent psychological studies of readers, I argue that judges’ disciplined engagement with formal legal doctrine might have self-disrupting effects akin to those performers experience when they deliberately alter their physical and vocal habits. Investigating doctrine’s disruptive potential might help explain why judges continue to reason doctrinally despite doctrinal indeterminacy. The model of self-disruptive doctrine cannot explain how judges ultimately resolve, or should resolve, legal questions. But disruptive doctrinal effects would be valuable in and of themselves as a way for legal decision makers to set aside their usual subjective biases.
Download the article from SSRN at the link.

ICYMI: Abate on Filicide in Snow White

ICYMI: Michelle Ann Abate, Ohio State University, Department of English, and Teaching and Learning Administration, "You Must Kill Her": The Fact and Fantasy of Filicide in "Snow White," 26 Marvels & Tales 178-203 (2012).

Dr. Abate has also published Bloody Murder: The Homicide Tradition in Children's Literature (Johns Hopkins University Press, 2013) and Tomboys: A Literary and Cultural History (Temple University Press, 2008).

McNeil on the Relativity of de Jure Sovereignty in Canada, 1600-2016/La Relativité de la Souveraineté de Jure au Canada, 1600-2016

Kent McNeil, York University, Osgoode Hall Law School, has published La Relativité de la Souveraineté de Jure au Canada, 1600-2016 (The Relativity of de Jure Sovereignty in Canada, 1600-2016) as Osgoode Legal Studies Research Paper No. 40/2016. Here is the abstract.
French Abstract: Ce texte examine les affirmations européennes de souveraineté sur le territoire aujourd’hui connu sous le nom de Canada en établissant une distinction entre les notions de souveraineté de facto et de jure. La souveraineté de fait requiert l’exercice d’une autorité effective sur un territoire, tandis que la souveraineté de jure est un concept abstrait et relatif, puisqu’il dépend en fait du choix d’appliquer un système juridique plutôt qu'un autre. Ce choix est en essence normatif, car il fait intervenir une question de légitimité. À la lumière de ce qui précède, l’auteur conclut que bien que le Canada possède aujourd’hui la souveraineté de fait sur son territoire, la souveraineté de jure qu’il prétend détenir affiche en réalité un déficit de légitimité, dans la mesure où celle-ci n’est pas reconnue au sein des systèmes juridiques autochtones.

English Abstract: This paper examines European assertions of sovereignty in what is now Canada by distinguishing between de facto and de jure sovereignty. De facto sovereignty requires actual exercise of authority in a territory, whereas de jure sovereignty is an abstract concept that depends on the application of a specific legal system. De jure sovereignty is relative because, while it may be valid in one legal system, it is not necessarily valid in other legal systems. A choice of law question is therefore involved that raises an issue of legitimacy. The paper concludes that, although Canada has de facto sovereignty over its territory today, its claim to de jure sovereignty lacks legitimacy as long as it is not acknowledged by Indigenous legal systems.

Note: Downloadable document is available in French.
Download the article from SSRN at the link.

August 5, 2016

USA Network Will Bring Us Another Season of "Suits" and a New Drama, "Eyewitness," This Fall

From the Hollywood Reporter: USA Network's Suits will return for a seventh season,  and the network will slot the new crime drama Eyewitness in on Sundays this fall.

A New Book on the Legacy of Slavery From Rutgers University Press: The Psychic Hold of Slavery: Legacies in American Expressive Culture

Soyica Diggs Colbert, Robert J. Patterson, and Aida Levy-Hussen have published The Psychic Hold of Slavery:  Legacies in American Expressive Culture (Rutgers University Press, 2016). Here is a description of the contents from the publisher's website.
What would it mean to “get over slavery”? Is such a thing possible? Is it even desirable? Should we perceive the psychic hold of slavery as a set of mental manacles that hold us back from imagining a postracist America? Or could the psychic hold of slavery be understood as a tool, helping us get a grip on the systemic racial inequalities and restricted liberties that persist in the present day? Featuring original essays from an array of established and emerging scholars in the interdisciplinary field of African American studies, The Psychic Hold of Slavery offers a nuanced dialogue upon these questions. With a painful awareness that our understanding of the past informs our understanding of the present—and vice versa—the contributors place slavery’s historical legacies in conversation with twenty-first-century manifestations of antiblack violence, dehumanization, and social death. Through an exploration of film, drama, fiction, performance art, graphic novels, and philosophical discourse, this volume considers how artists grapple with questions of representation, as they ask whether slavery can ever be accurately depicted, trace the scars that slavery has left on a traumatized body politic, or debate how to best convey that black lives matter. The Psychic Hold of Slavery thus raises provocative questions about how we behold the historically distinct event of African diasporic enslavement and how we might hold off the transhistorical force of antiblack domination.

August 3, 2016

Philip Wood's New Book: The Fall of the Priests and the Rise of the Lawyers (Hart Publishing)

Philip Wood has published The Fall of the Priests and the Rise of the Lawyers (Hart Publishing, 2016). Here is a description of the book's contents from the publisher's website.

This fast-paced, inspiring and original work proposes that, if religions fade, then secular law provides a much more comprehensive moral regime to govern our lives. Backed by potent and haunting images, it argues that the rule of law is the one universal framework that everyone believes in and that the law is now the most important ideology we have for our survival.
The author explores the decline of religions and the huge growth of law and makes predictions for the future of law and lawyers. The book maintains that even though societies may decide they can do without religions, they cannot do without law.
The book helpfully summarises both the teachings of all the main religions and the central tenets of the law – governing everything from human relationships to money, banks and corporations. It shows that, without these legal constructs, some of them arcane, our societies would grind to a halt. These innovative summaries make complex ideas seem simple and provide the keys to understanding both the law and religion globally. The book will appeal to both lawyers and the general reader.
The book concludes with the author's personal code for a modern way of living to promote the survival of humankind into the future.
Vividly written by one of the most important lawyers of our generation, this magisterial and exciting work offers a powerful vision of the role of law in centuries to come and its impact on how we stay alive.

August 2, 2016

A Reboot of "L. A. Law" On the Horizon?

From the Hollywood Reporter: Steven Bochco is planning to try a relaunch of the 1980s hit L.A. Law, updated for the 21st century. Not clear which network might be interested in backing the show. However, legal shows seem to be perenially popular. More here.

Bilder on Charter Constitutionalism, Edward Coke, and the Virginia Charter

Mary Sarah Bilder, Boston College School of Law, is publishing Charter Constitutionalism: The Myth of Edward Coke and the Virginia Charter in volume 94 of the North Carolina Law Review. Here is the abstract.
Magna Carta’s connection to the American constitutional tradition has been traced to Edward Coke’s insertion of English liberties in the 1606 Virginia Charter. This account curiously turns out to be unsupported by direct evidence. This Article recounts an alternative history of the origins of English liberties in American constitutionalism. A quarter century before the Virginia charter, provisions assuring liberties to English children born overseas were inserted in the earliest letters patent. These provisions drew on an older practice extending liberties to children born overseas. Because of these provisions, persons born in the colonies were guaranteed the same liberties as those born in England. This explanation suggests new appreciation for the interpretive flexibility of early written constitutionalism. As the liberties provisions reveal, words described the underlying concept but were not used to fix a precise definition. Thus, various words could be altered over time to ensure that the concept adapted to contemporary political and legal issues. Throughout, however, the assurance remained that those born in the colonies possessed English liberties. This Article calls this genre of early written constitutionalism “charter constitutionalism” to emphasize this elastic interpretive practice. Charter constitutionalism deserves recognition as a founding strand of American constitutionalism.
Download the article from SSRN at the link.

August 1, 2016

The Rise of the Domestic Crime Thriller

The Guardian discusses the rise of the "domestic suspense thriller" here, noting the dominance of female writers in that genre. The Atlantic has done a feature on this type of crime fiction; it's in the July/August 2016 issue.

Features of this kind of writing? Murder, of course, but the body count tends to be low, and the motives tend to be emotional. Emotion is the hallmark of a lot of this writing. That's not to say that some of these works aren't procedurals: police procedurals, P.I. novels, or even cosies (they can be thrillers, too, and very procedural in their approach). But think Agatha Christie. Motive in an Agatha Christie is traceable to the human heart. Wackos are few in a Christie, and even they are deranged because of lack of emotional connection.

In an era in which we seem both more connected than ever and less able to make connections, maybe the popularity of crime fiction that speaks to our deepest fears and feelings isn't so difficult to understand. 

Curran on a Slice of Life in Vichy France

Vivian Grosswald Curren, University of Pittsburgh School of Law, is publishing Law and Human Suffering: A Slice of Life in Vichy France in the Journal of Law and Literature. Here is the abstract.
This essay discusses three diaries from the Vichy era, the period of the Nazi Occupation of France: Jean Guéhenno’s Journal des années noires 1940-1944, Hélène Berr’s Journal, and Jacqueline Mesnil-Amar’s Ceux qui ne dormaient pas. Guéhenno was an educator and writer who entered the Resistance in 1940. His diary offers deep moral reflection as well as accounts of the dishonorable peace Vichy imposed and the ignoble servitude to which the new collaborationist French State and the Nazi occupier subjected France. In the final pages, as Leclerc’s army marches into Paris, with a victory he understands to be thanks to the help of the Allied forces, Guéhenno dares to rekindle his former faith in humankind. Berr was a young university student born into a wealthy old French Jewish family, the daughter of a famous scientist. Sensitive and generous-spirited, she lived an unusual life inasmuch as her family seemed to suffer no material hardship throughout the years that culminated in their deportation in the spring of 1944. Among the memorable events of her diary is her experience of the first day she was forced to wear the yellow star. Finally, Mesnil-Amar’s diary spans just one month at the end of the war in France, the month in which her husband has been detained and is about to be deported on the last train to leave Paris. The diary evokes her embracing of Jewish identity as a result of being identified as Jewish by anti-Semites. The lyricism of her writing approaches poetry in a work that is both a retrospective and a love letter to her husband. These diaries show us a slice of life of the times, but they also spur us to reflection on law and humanity, their limitations, potentials and fluctuations.
Download the essay from SSRN at the link.

July 29, 2016

Culture Court: A Law and Film/Lit/Media/Radio Related Website

Lawrence Russell's Culture Court website discusses film, literature, and other media that have law-related themes. Check it out here.


Yes, we've been watching the Republican and Democratic Conventions, and they've been interesting--even historic. But what about what's been going in London? At Whitehall, the ginger furred Larry the Cat is still in possession of Number 10 even as Prime Ministers come and go. David Cameron Brexited. Enter Theresa May. Larry Remained.

A four-footed rival appeared, however. Tuxedo cat Palmerston has taken up residence at the Foreign Office, and things are not going well between Larry (not, frankly, a great PM name--why not Winston, or Churchill, or Atlee) and Palmerston (now, there's a great Foreign Office moniker). The two have staked out territory and exchanged undiplomatic paw punches.  Palmerston seems to be getting the better of these skirmishes. Not only did he manage to infiltrate No. 10--he had to be ousted by security--but once outside he stared down an officer. He also dispatched Larry to the vet for emergency care, although it seems he might be missing some fur himself. Tough moggy, that Palmerston. I wonder what would happen were he appointed to oversee Brexit negotiations. Do EU cats all speak the same dialect of Feline?

Larry also used to mix it up with the former FO kitty, Freya, who was eventually sent off to the country to avoid future spats.

Meanwhile, the Treasury has acquired its own fluffy--Gladstone (also a great name). Apparently, the 18-month-old has been around for about a month. The Houses of Parliament have been questioning why they don't have their own mousers. More coverage on the "diplocats" from CNN here.

Will Palmerston continue to tick Larry off? Will Parliament get its own felines? Will members of the Commonwealth demand pawrity? I smell a TV series, complete with furry politicians carrying out intrigue behind doors that are only partially closed (a cat would never allow a door to be left completely closed). Maybe some dog assistants and mouse minions. House of Claws. 

Houdini, waiting for the premiere of House of Claws. "Don't call me until it airs. And order pizza."

Update: The Cabinet Office is probably getting its own feline, and His or Her Furriness will probably be called Cromwell. I would have gone with Melbourne or Churchill, but that's me.

Ekins on the Constitution as an Object of Interpretation

Richard Ekins, University of Oxford Faculty of Law, is publishing Objects of Interpretation in Constitutional Commentary (forthcoming). Here is the abstract.
This paper argues that the central object of constitutional interpretation is the Constitution, which is an intentional lawmaking act rather than a text floating free in the world, and that the point of such interpretation is primarily to understand the meaning that those who made the Constitution intended to convey by promulgating the text in question. The paper develops these claims by way of a critique of Cass Sunstein’s recent argument that there is nothing that interpretation just is, contending that he misunderstands the way that intention works in language use in general and that the alternatives to intentionalism that he outlines each fail. The radical interpretive choice for which he argues is ruled out by the nature of the Constitution. The final part of the paper considers the various ways in which one might understand the Constitution as an object requiring interpretation and outlines the significance that this understanding has for interpretive practice.
The full text is not available for download from SSRN.

Joe Biden To Make Appearance On Law & Order: SVU Episode

Current Vice President Joe Biden is the latest in a series of political figures (including the late Senator Fred Thompson, who actually became a regular on three of the Law & Order franchises), who will make a tv appearance. The White House has announced that the Veep (not to be confused with Veep's Selina Meyer) is in Gotham (not to be confused with Gotham) to film a cameo that will be part of an upcoming Law & Order: Special Victims Unit episode (not to be confused with Law & Order, Law & Order:  UK, Law & Order: Criminal Intent, Law & Order: Trial By Jury, or Law & Order: LA. 

Although my tone in this post is a little flippant, the theme of the episode Mr. Biden will guest on is not. The episode will feature the backlog of untested rape kits that currently plagues a number of jurisdictions and thus endangers sexual assault prosecutions. Mr. Biden will play himself in a press conference in the episode, recognizing Olivia Benson's work in the area. More here from the Wrap, here from the CBC.

July 28, 2016

Wald on Lawyers' Identity Capital

Eli Wald, University of Denver College of Law, is publishing Lawyers’ Identity Capital in volume 22 of the International Journal of the Legal Profession (2016). Here is the abstract.
Lawyers’ commodification of personal identity is nothing new. For generations now, white male lawyers have benefitted from positive racial and gender stereotypes regarding their competence and loyalty to clients and firms to secure job offers, promotions and elevated status within the profession. Yet the concept of identity capital – the value one derives from one’s personal identity – warrants attention for two related reasons. While prevalent, lawyers’ use of identity capital has historically been implicit. As explicit and visible use of identity capital grows, however, lawyers must reckon with the meaning of and consequences of using identity capital in their practice. In addition, because women and minority lawyers are increasingly criticized for undermining professional standards by actively using identity capital or by passively allowing its commodification, fairness dictates that the profession comes to terms with the relationship between merit and capital. This essay examines the commodification of women and minority lawyers’ personal identity in the context of the ongoing commodification of lawyers’ personal identity more generally. Specifically, it explores several qualities of identity capital that ought to inform both the decision-making of individual lawyers who either actively deploy it or passively tolerate its commodification by others in representing clients and of the profession as it assesses the use of identity capital by its members: inevitable and avoidable uses of identity capital, the desirability of lawyers’ commodification of personal identity, active and passive uses of identity capital, the impact of identity capital exchanges on third parties, the interplay of merit and identity capital and the appropriate terms of identity capital transactions.
Download the article from SSRN at the link.

Pultizer Prize and MacArthur Grant Winner James Alan McPherson Dies

Acclaimed writer James Alan McPherson has died at the age of 72. He won the Pulitzer Prize for Fiction in 1977 for his work Elbow Room. He was the first African American writer to win the prize.

Professor McPherson, who taught at the University of Iowa's Writers Workshop for many years, retiring in 2014, as well as at the University of Virginia, was also a graduate of Iowa, receiving a master's degree in fine arts, after graduating from Harvard Law School. One can find that legal training reflected in his writing. As Sam Roberts notes in the New York Times obituary for Professor McPherson, he "would invoke the equal protection clause of the 14th Amendment and infuse his literature with the principles of diversity propounded by Albion W. Tourgée in his brief in 1896 against segregated railroad cars in Plessy v. Ferguson."

The James D. and Catherine T. MacArthur Foundation awarded James Alan McPherson one of the first "genius grants" in 1981.

A selected bibliography is below:

Beavers, Herman, I Yam What You Is and You Is What I Yam: Rhetorical Invisibility in James Alan McPherson's "The Story of a Dead Man," 29 Callaloo 565-577 (Autumn 1986).

Beavers, Herman, Wrestling Angels Into Song: The Fictions of Ernest J. Gaines and James Alan McPherson (University of Pennsylvania Press, 1995).

McPherson, James Alan, Conversations With Ralph Ellison (1995).

Wallace, Jon, The Politics of Style in Three Stories by James Alan McPherson, 34 MFS: Modern Fiction Studies 17-26 (Spring 1988).

Brexit and Popular Culture

Popular culture references and comparisons are beginning to emerge in the wake of Brexit. Steve Peers @StevePeers invokes a Star Trek: The Original Series reference for a job for Nigel Farage, who has stepped down as the leader of the United Kingdom Independent Party.

Any of the jobs done by any of those guys in red shirts

Oh, feel the burn (not Sanders, or Switzerland, which is not a member state of the EU).

David Allen Green @David Allen Green quotes both Arthur Conan Doyle and Samuel Becket in tweets about failure to invoke Article 50 of the TEU.

David Allen Green ‏@DavidAllenGreen [tweeted July 4] “The curious incident of the Article 50 notification.” - There was no notification. “That was the curious incident,” remarked Holmes. The line occurs in the short story, "Silver Blaze." Here's the excerpt.

Gregory: Is there any other point to which you would wish to draw my attention.
Holmes: To the curious incident of the dog in the night-time.
Gregory: The dog did nothing in the night-time.
Holmes: That was the curious incident.

Holmes notes that a watchdog that alerts on the presence of strangers did not do so when someone approached on this occasion. Thus, the dog knew the person who approached it, This observation has now become so obvious a deduction for pop culture detectives on tv and in film whenever a dog is in a scene that if either a professional or amateur sleuth doesn't mention the dog's behavior, viewers automatically know that the detective is an idiot (and that the screenwriter has never read the literature, or seen any mystery or detective movies or tv over the past 50 years). It would be interesting and novel to substitute a cat or a ferret for the dog in some of these scripts. Monkeys and parrots have been done, BTW (Columbo: Death Hits the Jackpot (1991)) and Perry Mason: The Case of the Perjured Parrot (1958)).

The Curious Incident of the Dog in the Night-Time has also become a Tony-winning Broadway Play.

David Allen Green ‏@DavidAllenGreen Jun 25 ESTRAGON: Well, shall we Leave? VLADIMIR: Yes, let's Leave. (They do not send the Article 50 Notification.)

(Parodying Waiting for Godot). Mr. Green has retweeted it numerous times. He is understandably quite fond of it; it's clever, but also, we've been Waiting For Brexit for a month. It's sort of like Waiting To Brexhale.

And this long hommage to Samuel Beckett, from a number of Tweeters: