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Law & Humanities Blog

Law & Humanities Blog

Anniversary of the Scopes Indictment

Posted: 25 May 2011 10:13 AM PDT

May 25, 1925, a grand jury indicted John T. Scopes for violating a Tennessee law (passed only two months before) against the teaching of evolution (the Butler Act; repealed in 1967).  Clarence Darrow undertook Mr. Scopes' defense, while the prosecution enlisted William Jennings Bryan to direct its case. While the jury hearing the case ultimately convicted Scopes, Tennessee's Supreme Court overturned the conviction on the grounds that the judge, rather than the jury, had imposed the penalty.


John T. Scopes
Jerome Lawrence and Robert E. Lee dramatized the trial, somewhat disguising the principals as Henry Drummond (Darrow), Matthew Harrison Brady (Bryan), Bertram T. Cates (Scopes), and E. K. Hornbeck (H. L. Mencken, the famed journalist who covered the trial). The playwrights noted that while their work took the Scopes trial as its departure point it was also an indictment of the McCarthyism that swept the country in the early and mid-1950s. The play made its debut on Broadway in 1955 and was first filmed in 1960.  It has been made for television three times, in 1965, 1988, and 1999, and is a staple for repertory companies and local theater groups.

Links:

Copy of the original New York Times story discussing Scopes indictment here
Mencken's article discussing likelihood of Scopes' conviction
Professor Doug Linder's excellent Famous Trials website with more information on the trial here

Bobbleheads and Bling: The Message of Tex-Mex Rapper Pedro Herrera

Posted: 25 May 2011 09:36 AM PDT

From the New York Times, a feature on Pedro Herrera, "Chingo Bling," who takes inspiration from Mexican foods and culture, and weaves his political concerns into the popular hip-hop that has made him a standard bearer for the Latin American experience. Among his recordings: They Can't Deport Us All (Asylum Records); Chave del Ache: The Kid from da H, El Mero Chingon, Duro en la Pintura, Chicken Flippa, Tamale Season, and Air Chingo: The Mixtape (all Oarfin Records). A link to Chingo Bling's blog here.

The Constitution of Cadiz

Posted: 25 May 2011 08:50 AM PDT

Matthew C. Mirow, Florida International University College of Law, has published Codification and the Constitution of Cádiz in Estudios Jurídicos en Homenaje al Profesor Alejandro Guzmán Brito (Patrício-Ignacio Carajal and Massimo Miglietta, eds.; Edizioni dell'Orso, 2012).

This study seeks to explore the private law side of the Constitution of Cádiz, in particular its use and reference to the legal revolution of codification that was well underway by 1812. By engaging questions of codification and private law, this study explores the relationship between private law and public law at a transformative moment in both areas. In public law, unwritten, ancient constitutions were just beginning to be replaced by written constitutions attempting to limit government and to define individual rights. In private law, centuries of the ius commune tradition were being reorganized and shaped into codes. Thus, an examination of the idea and place of codification in the Constitution of Cádiz should reveal clues about these important changes.

First, this study discusses the placement of Article 258, the constitutional article referring to codes, within the text of the Constitution itself. It then addresses other aspects of the Constitution that point towards codification as a logical outgrowth of the political and legal transformations contemplated by the Constitution. The third topic addressed here is the way Article 258 came into the Constitution through the reports of the debates in the Cortes and what these statements reveal about the perception of codes at the Cortes. This study ends with some concluding comments about the place of the Constitution of Cádiz in the history of Latin American codification.
Download the text from SSRN at the link.

The Meaning of "Precedent"

Posted: 25 May 2011 08:43 AM PDT

Frederick Schauer, University of Virginia School of Law, is publishing Precedent in the Routledge Companion to the Philosophy of Law (Andrei Marmor ed., 2011?). Here is the abstract.

This article on precedent, prepared as an entry for the forthcoming Routledge Companion to the Philosophy of Law (Andrei Marmor, ed.), examines the main philosophical and jurisprudential issues involved with the concept of precedent and its role in legal reasoning and legal decision-making. Among the themes covered are the fundamental idea of a past decision being a reason just because of its existence, the distinction between precedential and analogical reasoning, the issues involved in determining which past decisions are precedents for which current ones, the relation between precedent and rules, and the normative and institutional design questions of when a system of precedential constraint is desirable and when it is not.
Download the text from SSRN at the link.

The State of Nature: Whence Politics?

Posted: 25 May 2011 08:39 AM PDT

William A. Edmundson, Georgia State University College of Law, has published Politics in a State of Nature. Here is the abstract.


Aristotle thought we are, by nature, political animals. Political philosophy in the tradition of Hobbes and Locke sees political society not as natural but as an artifice. For this tradition, political society emerged from a pre-political state of nature by the exercise of innate normative powers. Those powers, together with the rest of our native normative endowment, both make possible the construction of the state, and place sharp limits on the state's just powers and prerogatives.

Thus described, a state-of-nature theory has three components. One is an account of the native normative endowment, or "NNE." Two is an account of how the state is constructed using the tools included in the NNE. Three is an account of the state's resulting normative endowment, which includes a (purported) moral power to impose duties of obedience.

State-of-nature theories disagree about the NNE. For Hobbes, it consists of a moral permission to do whatever seems to one to be necessary to survival, and a moral power to covenant. Locke specified a more constraining NNE, which also included a "natural executive right" to punish wrongdoing. Rawls excluded personal desert from the "original position," his refurbishing of the state of nature. In each case, the NNE is not treated as though it were a matter of empirical investigation and discovery, but rather were one of reflective adjustment to the other two components of the theory.

The work of social psychologist Stanley Milgram and his students suggests a quite different NNE, one far more constrained than what state-of-nature theories have allowed. Norms that constrain moral reproof are of particular interest here. Contrary to Locke, people do not behave in experimental settings as one would predict if they possessed a "natural executive right" to punish wrongdoing. Moral reproof is subject to standing norms. These norms limit the range of eligible reprovers.

This paper draws on this work to support two claims. One, is that the native normative endowment is (as Aristotle held) already political. The other is that political authority should be re-conceived as a matter of standing - that is, as the state's unique possession of a moral permission to enforce moral norms, rather than as a moral power to impose freestanding duties of obedience.
Download the paper from SSRN at the link.
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