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Law & Humanities Blog

Law & Humanities Blog

TV Show "Coal" Proves To Be Educational Experience For MHSA Officials

Posted: 08 Apr 2011 09:50 AM PDT

Remember the new reality show Coal, which debuted March 30 on Spike TV? It has already had a real-world effect. Officials at the Mine Safety and Health Administration apparently were part of the viewing audience, and saw some things they didn't like. They've cited Cobalt Coal, owner of the mine featured in the show, for safety violations. Cobalt's chief exec is looking on the bright side. The show can "educate miners nationwide about the right and wrong way to do things."  Owners and viewers might learn also.  

The Rhetoric of Immigration Jurisprudence

Posted: 08 Apr 2011 09:37 AM PDT

Keith Cunningham-Parmeter, Willamette University College of Law, has published Alien Language: Immigration Metaphors and the Jurisprudence of Otherness, at 79 Fordham Law Review 1545 (2011. Here is the abstract.


Metaphors tell the story of immigration law. Throughout its immigration jurisprudence, the U.S. Supreme Court has employed rich metaphoric language to describe immigrants attacking nations and aliens flooding communities. This Article applies research in cognitive linguistics to critically evaluate the metaphoric construction of immigrants in the law.

Three conceptual metaphors dominate legal texts: IMMIGRANTS ARE ALIENS, IMMIGRATION IS A FLOOD, and IMMIGRATION IS AN INVASION. In order to gauge the prevalence of these metaphors, the Article engages in a textual analysis of modern Supreme Court opinions and presents original empirical data on the incidence of alienage terminology in federal court decisions. The Article explains how immigration metaphors influence not only judicial outcomes, but also social discourse and the broader debate over immigration reform. As such, the theoretical study of language has very practical consequences for the people defined by immigration metaphors.

The Article concludes by proposing an oppositional metaphoric framework based on the concepts of migration and economic sanctuary. These metaphors describe immigration in terms of movement, work, and community, in contrast to existing legal metaphors that describe immigration in terms of danger, attack, and criminality. Thus, while today's immigration metaphors signify a loss of economic security and cultural hegemony, the proposed terms emphasize immigrants' economic contributions and potential for social belonging.
This process of evaluation and substitution diminishes the power of existing metaphors to conflate and essentialize, while creating space in the legal imagination for new frames to emerge.Download the article from SSRN at the link.

Thurgood Marshall as Writer

Posted: 08 Apr 2011 03:03 AM PDT

Anna P. Hemingway, Starla J. Williams, Jennifer M. Lear, all of Widener University School of Law and Ann Fruth, of Widener University School of Law, Harrisburg, have published Thurgood Marshall: The Writer at 47 Willamette Law Review 211 (2011). Here is the abstract.


This article profiles Thurgood Marshall as a writer in his roles as an advocate and social activist, a legal scholar and a Supreme Court Justice. It examines the techniques that he used as a writer to inform and persuade his audiences in his life-long endeavor to achieve equality for everyone. This examination of Marshall's legal, scholarly, and judicial writings can help lawyers, academics, and students increase their knowledge of how the written word profoundly impacts society. The article first studies his arguments and legal strategy in two early civil rights cases, University of Maryland v. Murray and Smith v. Allwright. It goes on to examine several letters Marshall wrote while he was working on Lyons v. Oklahoma, a murder trial where the prosecution sought the death penalty. It explains how his creativity as a legal strategist was fashioned of necessity as a young African-American lawyer representing African-American clients in a still segregated society. The second profile explores how the social context and the ethical dilemma that Marshall faced in drafting his brief in Brown v. Board of Education influenced his use of persuasive writing techniques. It shows how Marshall's choices as a writer accomplished an effective strategy that was simultaneously principled and practical. The article then considers Marshall as a moral activist by examining his speech and writing on the occasion of the Bicentennial Celebration of the Constitution in which he famously refused to applaud it. It compares the contemporaneous reaction to his stance to the consequent controversy about his position that arose during the Senate confirmation hearings of Marshall's most famous clerk, Elena Kagan. Finally, the article looks at Justice Marshall as a writer in his dissent in Payne v. Tennessee, a capital sentencing case. It demonstrates that by choosing to attack the assumptions underlying the majority's argument, he was able to craft a broad and powerful writing in which he not only advocated his position opposing the death penalty, but also defended a panoply of individual rights that he believed essential to attaining and maintaining his aspiration of equality for everyone.
Download the article from SSRN at the link.

How Australia's Framers Used the U.S. Civil War

Posted: 08 Apr 2011 03:00 AM PDT

Helen Irving, University of Sydney Faculty of Law, has published Counterfactual Constitutionalism: The American Civil War and the Framing of Australia's Constitution as Sydney Law School Research Paper No. 11/26. Here is the abstract.


Counterfactual history - the construction of imagined, fact-like scenarios arising from the alteration of antecedents and consequents in real past events - is a controversial business. Among supporters, counterfactualism is defended as serving a valuable heuristic function, and furnishing questions to drive research. But can the knowledge generated by counterfactual history have a real-world, functional application? Is it possible to use what we learn from counterfactualism, not just for future research, but to pre-empt or alter the future? Constitution-making provides us with one answer. This proposition is illustrated with a discussion of the use made of the American Civil War by the framers of Australia's Constitution in the 1890s.
Download the paper from SSRN at the link.
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