Law & Humanities Blog |
- Roman Legal History Resources
- The History of the Trade Fixtures Doctrine, 1350-1803
- Conciling the Jurisprudential Meanings of Human Dignity
- Pre-Empting Crimes and Civil Rights In Fact and Fiction
- Plain Speaking Outside the Courtroom
| Posted: 01 Jun 2011 09:22 AM PDT From Ernest Metzger, the Douglas Professor of Civil Law, University of Glasgow School of Law, comes a note that the website Roman Law Resources may be of interest to readers of Law and Humanities Blog. Among the journals listed under "Journals" on the opening page is one that Professor Metzger edits, Roman Legal Tradition, which he tells us is a open access publication.   |
| The History of the Trade Fixtures Doctrine, 1350-1803 Posted: 01 Jun 2011 08:11 AM PDT Mark Lane Roark, University of La Verne College of Law & University of Missouri School of Law, has published Disease War and Waste: A Consideration of External Factors on the Trade Fixtures Doctrine between 1350-1803. Here is the abstract. Between 1350 and 1803, eleven cases were decided that shaped the trade fixtures doctrine for jurisprudence in the English Commonwealth and its admirers. Prior to 1350, rights to things attached to real property were settled solely considering its attachment to the realty. However, between 1350 and 1803 dramatic shifts in the doctrine occurred. Interestingly, each of those shifts were paralleled by significant social seismic events. Instead, this essay considers not a particular moment in time, but rather a subset of doctrinal decisions that occur across a variety of moments. In short, this essay argues that the dates of the decisions deciding early trade fixture cases point to courts ruling out strict attachment as an all-encompassing fixtures definition, in favor of a more pliable and flexible doctrinal rule that could account for social unevenness between landlords and tenants. This essay attempts to contextualize in a very small subset of cases the slow turn away from attachment. This essay, considers the development of the trade fixtures doctrine in three movements: the early trade fixtures cases; the formative trade fixtures cases; and the refining trade fixtures cases.Download the paper from SSRN at the link.   |
| Conciling the Jurisprudential Meanings of Human Dignity Posted: 01 Jun 2011 08:08 AM PDT Neomi Rao, George Mason University School of Law, has published Three Concepts of Dignity in Constitutional Law, at 86 Notre Dame Law Review 183 (2011). Here is the abstract. The U.S. Supreme Court and constitutional courts around the world regularly use the term human dignity when deciding cases about freedom of speech, reproductive rights, racial equality, gay marriage, and bioethics. Judges and scholars treat dignity as an important legal value, but they usually do not explain what it means and often imply that it has one obvious core meaning. A close review of constitutional decisions, however, demonstrates that courts do not have a singular conception of dignity, but rather different conceptions based on how they balance individual rights with the demands of social policy and community values. Using the insights of political theory and philosophy, this Article identifies three concepts of dignity used by constitutional courts and demonstrates how these concepts are fundamentally different in ways that matter for constitutional law. In contentious cases, the concepts of dignity will often conflict. If constitutional courts continue to rely on human dignity, judges must choose between different understandings of dignity. |
This Article provides the groundwork for making these choices and defending a concept of dignity consistent with American constitutional traditions.Download the article from SSRN at the link.
Pre-Empting Crimes and Civil Rights In Fact and Fiction
Posted: 01 Jun 2011 08:03 AM PDT
Mark Niles, Seattle University School of Law, has published Preempting Justice: 'Precrime' in Fiction and in Fact, in volume 9 of the Seattle Journal for Social Justice (2010). Here is the abstract.
Immediately after the September 11 attacks, the United States government took a significant turn in the focus of its domestic law enforcement and international security policy from investigating crimes and pursuing criminals to preventing potential criminal acts. This focus on preventing future acts raises serious practical, legal and moral questions: What mechanism will government officials use to make these predictions of future threats and what will ensure the reliability of these predictions? What punishment or sanction, if any, is appropriate when it is determined that someone would have committed a harmful act but is apprehended (or otherwise derailed) before they have the chance to do so?Download the article from SSRN at the link.
Dean Niles' lecture addresses these and other questions with an analysis of Philip K. Dick's 1956 science fiction short story "The Minority Report," and Steven Spielberg's 2002 film "Minority Report," in which a near future law enforcement agency relies on predictions to incarcerate potential criminals before they are able to commit their crimes. The analysis of these stories, of the assumptions involved in both, and of some very different structures and conclusions in the two texts suggests something about the authors and the different times when they were produced. It will cast light on the current societal response to ongoing pre-emptive incarcerations in Guantanamo Bay and elsewhere and provide a basis for discussion of the proper role, if any, that "pre-emptive justice" can play in this or any society.
Plain Speaking Outside the Courtroom
Posted: 01 Jun 2011 08:00 AM PDT
Jason Cohen, Rutgers School of Law (Camden), has published Attorneys at the Podium: A Plain Language Approach to Using the Rhetorical Situation in Public Speaking Outside the Courtroom, at 8 Legal Communication &Rhetoric 73 (2011). Here is the abstract.
The general public typically has the unrealistic expectation that all lawyers are effective and persuasive public speakers who, when called upon, have the innate ability to say "just the right thing." In fact, not all of us have that innate ability. And even though we may have some level of legal genius swirling around in our minds, that genius is sometimes poorly communicated in speeches that ultimately don't meet audience expectations or needs. Certainly, law school has taught us how to think and write like lawyers, but the ability to effectively communicate orally isn't as frequently emphasized. This lack of emphasis on effective public speaking is unfortunate because lawyers are frequently forced to engage in some public speaking outside the courtroom, including speaking to lay groups about various matters of legal controversy; making appearances before legislatures, city councils and municipal boards; presenting at bar association luncheons; making client pitches; or participating in media interviews on behalf of clients. All of these occasions require the attorney-speaker to organize content, consider the audience, and deliver the most effective message possible.Download the article from SSRN at the link.
Understanding the rhetorical situation - a theoretical concept with huge practical implications - before crafting the response helps the speaker meet these crucial components to effective speaking. Rather than focus merely on the mechanics of speech delivery or the flourishes of theatrical speaking, the speaker should first identify the rhetorical situation, which will force the speaker to concentrate on specific content for the speech.
The good news for those attorneys who want to become more successful public speakers is that if they understand the rhetorical situation, they will be better able to meet audience expectations. This is true because their analysis of the situation gives the attorney-speaker the tools to understand the environmental context of the speech (what is happening in the world outside the speech) and the audiences affected by this context. Together, these understandings ultimately permit the speaker to craft a speech that can aid, persuade, or satisfy those affected.
This short article first introduces the theoretical definition of the rhetorical situation. Translating the theory into plain language, it then offers a checklist for the attorney in preparing for any speaking scenario. These steps embody the rhetorical-situation analysis. Finally, the article illustrates the recommended approach by guiding the reader through an analysis of the rhetorical situation surrounding President Reagan's Challenger speech.
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