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Law & Humanities Blog

Classifying Legal Theory of the Early Twentieth Century
Hegel, Law and the Environment
Scandivavian Crime Writers Shed Light On Oslo Attacks
Black Gold

Classifying Legal Theory of the Early Twentieth Century

Posted: 27 Jul 2011 03:41 PM PDT

Herbert J. Hovenkamp, University of Iowa, College of Law, has published A Preface to Neoclassical Legal Thought. Here is the abstract.

Most legal historians speak of the period following classical legal thought as "progressive legal thought." That term creates an unwarranted bias in characterization, however, creating the impression that conservatives clung to an obsolete "classical" ideology, when in fact they were in many ways just as revisionist as the progressives legal thinkers whom they critiqued. The Progressives and New Deal thinkers whom we identify with progressive legal thought were nearly all neoclassical, or marginalist, in their economics, but it is hardly true that all marginalists were progressives. For example, the lawyers and policy makers in the corporate finance battles of the 1920s, who advocated for the abolition of par value stock and the adoption of more forward looking theories of corporate valuation, were thoroughly marginalist in their reasoning, but by and large they were regarded by Progressives as the enemy.

Indeed, corporate finance and minimum wage policies are areas where progressive and corporation lawyers flipped against each other. On the minimum wage question, corporate interests in the early twentieth century generally clung to the classical and backward looking "wage fund" theory, which set an absolute limit on wages based on historically accumulated capital. Progressives embraced a forward looking marginal productivity theory. By contrast, in corporate finance, corporate interests generally rejected the view that corporate value should be driven by historically paid in capital as reflected in stated "par" value of shares. Rather, they believed that stated corporate value should be based on reasonable economic prospects, and that this made the concept of par value obsolete.

Neoclassicism in both economics and law was a big tent that fed different and inconsistent ideologies. Describing the successor ideology to classical legal thought as "progressive" does not do justice to the range of views that the successors had. Marginalism in economics led to influential legal theories about policy making, and about the relationship between interest groups and welfare. On one side, it led to progressivity in tax policy, championed by Progressive marginalist economist Edwin R.A. Seligman; and the idea that workers' wages were limited by nothing more than the marginal contribution of each worker to the employer. Marginalism's strong environmentalism also eventually led to greater egalitarianism in race policy, although that change was not reflected in the writing of the Progressives, who attempted to be both marginalist and genetic determinist. On the other side, marginalism also led to a comprehensive revision of corporate finance theory and the modern theory of the large corporation, in which shareholders are all but irrelevant. Marginalism also gave us public choice theory and its deep distrust of government, developed by such writers as Mancur Olson and Buchanan and Tullock in the 1960s.

The theory was derived directly from models of competition in neoclassical economics, and the authors were all economists.

This essay briefly describes the contours of neoclassical legal thought, including its dramatic impact on constitutional adjudication and regulatory theory, corporate law and finance, labor law, race relations, and competition policy.

Download the paper from SSRN at the link.

Hegel, Law and the Environment

Posted: 27 Jul 2011 03:23 PM PDT

Pravin Jeyaraj has published Philosophy of Love: Hegel, Christianity and Environmental Law. Here is the abstract.

Much Christian opposition to Hegel's philosophy is based on the perception the dialectic supports cultural relativism and the idea that opposing truths can both be valid. This is a narrow interpretation of the dialectic and knowledge and that, more broadly, it reflects the contradictions and interdependence that exists between individual entities. This paper argues that the contradictory interdependence of Hegel's dialectic has its roots in Christian thought and Hegel's earlier theological writings. The paper then goes to suggest how this Christian Hegel could be helpful in developing a model for environmental law research.

Download the paper from SSRN at the link.

This paper was presented at a Christian Academic Network workshop on "Knowing in God's World" under the title "Reflections on methods of knowing".

Scandivavian Crime Writers Shed Light On Oslo Attacks

Posted: 27 Jul 2011 03:11 PM PDT

NPR is featuring the remarks of Scandinavian crime writers, who seem to have insights into last week's terrible attack on the government building and youth camp that left so many dead and wounded. Reporter Sylvia Poggioli cites novelist Anne Holt, a lawyer, former journalist, and former justice minister (1996-1997), who notes, "This boy [Breivik] is born in the best and richest country in the world, he has had every single chance of being happy, perfectly adjusted human being, but something went terribly wrong and we have to ask ourselves why." Ms. Holt's crime fiction features two different series, one centering on a married couple (a profiler and a police officer) and one featuring a retired police inspector.

By the way, here's a list of Ms. Holt's favorite female detectives.

Black Gold

Posted: 27 Jul 2011 07:37 AM PDT

Katia Fach Gómez, University of Zaragoza, has published Crude: The Real Price of Oil: A Legal Analysis. Here is the abstract.

Legal Analysis of the U.S. film "Crude".

Download the paper from SSRN at the link. (Note: the text is in Spanish).

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Law & Humanities Blog

Legal Writing and Legal Education
Bad Is Good
The Cultural Study of Law and Lawyers
A Recommended Reading List

Legal Writing and Legal Education

Posted: 26 Jul 2011 03:21 PM PDT

Erika Abner, Postgraduate Medical Education Office, and Shelley M. Kierstaed, Osgoode Hall Law School, have published Text Work as Identity Work for Legal Writers. Here is the abstract.

The authors conduct a conduct analysis of a number of first year and practitioner legal writing texts in order to examine whether and how these texts focus on the development of a legal identity; in particular, through creation of a personal, professional, or discoursal voice. The question of creation of a legal identity is significant, in part, because of the increased focus on teaching and learning professionalism and professional behaviors, both within law schools and in practice. The authors conclude that there is a limited focus within the texts on the identity work inherent in learning to write with authority under conditions of uncertainty.

The social practice of writing tends to be under-emphasized.Download the paper from SSRN at the link.

Bad Is Good

Posted: 26 Jul 2011 01:16 PM PDT

From the Chronicle of Higher Education: Kudos to Sue Fondrie, of the University of Wisconsin, Oshkosh, whose immortal (?) sentence "Cheryl's mind turned like the vanes of a wind-powered turbine, chopping her sparrow-like thoughts into bloody pieces that fell onto a growing pile of forgotten memories" wins her this year's first prize in the Annual Bulwer-Lytton Fiction Contest. Want more giftedly bad writing? Check out this year's winning entries here.

Winner in the Crime Section

Wearily approaching the murder scene of Jeannie and Quentin Rose and needing to determine if this was the handiwork of the Scented Strangler--who had a twisted affinity for spraying his victims with his signature raspberry cologne--or that of a copycat, burnt-out insomniac detective Sonny Kirkland was sure of one thing: he'd have to stop and smell the Roses.

Mark Wisnewski, Flanders, NJ

Runner-Up:

Five minutes before his scheduled execution, Kip found his thoughts turning to his childhood-- all those years ago before he had become a contract killer whose secret weakness was a severe peanut allergy, even back before he lost half of a toe in a gardening accident while doing community service-- but especially to Corinne, the pretty girl down the street whom he might have ended up marrying one day if she had only shown him a little more damn respect.

Andrew Baker, Highland Park, NJ

Dishonorable Mention:

The victim was a short man, with a face full of contradictions: amalgam, composite, dental porcelain, with both precious and non-precious metals all competing for space in a mouth that was open, bloody, terrifying, gaping, exposing a clean set of asymptomatic impacted wisdom teeth, but clearly the object of some very comprehensive dental care, thought Dirk Graply, world-famous womanizer, tough guy, detective, and former dentist.

Basil McDonnell, Vancouver, BC

The Cultural Study of Law and Lawyers

Posted: 26 Jul 2011 09:21 AM PDT

Rakesh K. Anand, Syracuse University College of Law, has published Advancing the Cultural Study of the Lawyer: Developing Three Philosophical Claims and Introducing a New Comparative Normative Inquiry at 3 Washington University Jurisprudence Review 107 (2010). Here is the abstract.

In America, law is a cultural practice, a type of social activity that generates a complete world of meaning. As such, it makes behavioral demands on those who participate in its form of experience. That is, it requires that those who take up its way of life act in certain ways. This fact -that law has an innate normativity, or an inherent ethics - is the organizing principle of the cultural study of the lawyer, a project that considers the implications of this condition for our thinking about law and about the work of law's most representative figures, namely lawyers. This Article builds upon previous writing in the project and pursues two natural consequent lines of inquiry. First, it provides a more detailed account of three philosophical claims that the cultural study of the lawyer has made, either explicitly or implicitly, the purpose of which is to clarify certain intellectual positions of the project. Second, moving forward from the cultural study of the lawyer's earlier exploration of how, at the most basic level, the behavioral demands of law differ from those associated with the moral form of experience, this Article begins a parallel discourse, reflecting on the behavioral demands of law and those of the cultural practice of economics, again specifically focusing on fundamental principles and their differential character. As with the earlier consideration of legal and moral prescription, the aim of this analysis is to make clear the distinction between the two cultural practices' requirements on conduct - an analysis that in turn shows that, at his or her core, a lawyer is not an economic person (and therefore not a businessperson). Because the cultural study of the lawyer may be unfamiliar to some, this Article begins with an overview of the project, emphasizing in particular its intellectual setting and genealogy.

Download the article from SSRN at the link.

A Recommended Reading List

Posted: 26 Jul 2011 09:03 AM PDT

In the ABA Journal's current issue, 30 Lawyers Pick 30 Books Every Lawyer Should Read.

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Medical Humanities Blog

On Demedicalizing the Medical Humanities

Posted: 26 Jul 2011 12:07 PM PDT

Otniel Dror (Hebrew University of Jerusalem) has a fascinating new paper out in The European Legacy vol 16, no 3 (2011) entitled De-medicalizing the Medical Humanities. Here is the Abstract:

In this essay I argue that the integration of the humanities into "medical humanities" has implicitly medicalized the humanities. This medicalization of the humanities suppresses those dimensions of the humanities that can most significantly contribute to medicine. I present my argument by studying the critical and crucial gap between the humanities as they are presented and taught in the context of medical schools, often as a set of skills, sensitivities, and competencies, and the humanities as they are experienced and lived in the humanities—as an ideological-ethical calling, which saturates and infuses daily life with an ethicizing, politicizing, and ideological critique. It is this core essence of the humanities that is abrogated and annulled in medical humanities. After presenting my argument, I exemplify some of the ways in which my colleagues and I attempt to imbue medical students with the critical and ethicizing outlook and calling of the humanities.

I am extremely sympathetic to Dror's concerns here. In fact, I have refrained from noting the article here on MH Blog because I have been desperately trying to make some time to give it the (blog) attention it deserves. I have not been able to make that time yet, but hope to do so in the near future, and if so, I will update the post and tack it to the front of the blog.

This issue of The European Legacy is a theme issue on medicine and the humanities, which is entirely worth checking out. Dror's article in particular is highly recommended.

(h/t Lit&Med listserv)

Law & Humanities Blog

Rhetoric and Legal Forms
Oscar Wilde and the Narrative of Sexual Identity
The Development of Culture and Legal Institutions In Seventeenth Century England

Rhetoric and Legal Forms

Posted: 25 Jul 2011 03:18 PM PDT

Kirsten K. Davis, Stetson University College of Law, has published Legal Forms As Rhetorical Transaction: Competency in the Context of Information and Efficiency in volume 79 of the University of Missouri (Kansas City) Law Review (Spring 2011). Here is the abstract.

The increased production of legal forms by commercial publishers, the electronic availability of lawyer-produced documents through subscription-based and free Internet sites, and the increasing number of institutionally approved forms is creating a paradoxical and challenging environment for principled form use by lawyers. On one hand, courts, legislatures, and administrative agencies, for example, encourage, and even require, the use of forms in the practice of law. Commercial publishers tout the benefits of form use to sell legal formbooks and to entice lawyers to access subscription databases filled with contracts, pleadings, briefs, and motions. On the other hand, the same entities that encourage form use in some circumstances sternly admonish lawyers for using or relying on forms in others.

As the time constraints on lawyers become greater, legal practice becomes more global and multi-jurisdictional, and information increases exponentially and becomes more difficult to manage, lawyers, particularly lawyers new to practice or new to a particular practice area need to develop a principled approach to legal form use to ensure forms are used competently.

This article explores legal forms and proposes a rhetorical approach to understanding and using forms.

This approach is unique because it uses rhetorical theory to define and categorize legal forms, and it offers specific suggestions for competent legal form use based on rhetorical theory.Download the article from SSRN at the link.

Oscar Wilde and the Narrative of Sexual Identity

Posted: 25 Jul 2011 12:07 PM PDT

Laura I. Appleman, Willamette University College of Law, has published Oscar Wilde's Long Tail: Framing Sexual Identity in the Law at 70 Maryland Law Review 985 (2011). Here is the abstract.

This article argues that narrative has been the hidden link in the intersection between law and sexual identity, shaping and structuring the relationship between the two. The power of the hidden narrative continues to influence legal decisions today, most recently including the national debate on same-sex marriage. I contend that the basis for this complicated relationship began with a few critical 19th-century events, in particular the widely publicized trials of Oscar Wilde for the crime of sodomy. I aim to restore the camouflaged work of narrative to its rightful place in our understanding of sexual identity in the law. In so doing, I hope to not only dissect and expose the complex interrelationships between law, narrative, and sexuality, but also clarify the shifting dynamics of legal sexual identity. This Article asserts that only through recognizing the role of narrative in structuring our legal definition of sexual identity will we ever be able to understand how and why courts are deciding gay rights cases in the way they do.

Download the article from SSRN at the link.

The Development of Culture and Legal Institutions In Seventeenth Century England

Posted: 25 Jul 2011 07:09 AM PDT

Peter Murrell, University of Maryland Department of Economics, and Martin Schmidt, University of Maryland, College Park, have published The Coevolution of Culture and Institutions in Seventeenth Century England. Here is the abstract.

We examine how cultural and institutional development interact with each other over time, constructing new annual measures of cultural dynamics and institutional development for a paradigmatic episode of change, seventeenth century England. The institutional measures reflect citations of cases and statutes appearing in later legal decisions, thereby capturing the growth of formal legal institutions weighted by usage. The cultural measures reflect frequency of word use in publications, interpreted using a model of social learning that elucidates the relationship between cultural diffusion and word frequency.

We find that institutional development takes place over the whole period that we study (1559-1714). Especially fecund years are from the mid-1580's to the mid-1620's and from 1660-1680. There is no indication that the Glorious Revolution of 1688 spurred institutional development. The diffusion of modern ('whig') political culture is much more concentrated in time than is institutional development. Until 1640, the diffusion of whig culture is limited, but then dramatic change occurs, with over half of the cultural diffusion that we focus upon completed by 1660. The process of cultural change was largely completed by the time of the major constitutional legislation of the late 17th century. Vector-error-correction estimates of the relationships in the annual data suggest that culture and case-law coevolve but that statute law is a product of the other two.

Download the paper from SSRN at the link.

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Medical Humanities Blog

Call for Applications: Tenure-Track Assistant or Tenured Associate/Full Professor, History of Medicine, Yale University

Posted: 24 Jul 2011 04:10 PM PDT

Yale University invites applications for a tenure track Assistant/Associate or tenured Associate/full Professor in the History of Medicine beginning July 1, 2012.

Applicants with interests in the history of the biomedical sciences, experimental life sciences, or clinical practice since 1800 are particularly encouraged to apply.

Duties will include teaching in the Program in the History of Science and Medicine, the Department of History, and the Section for the History of Medicine in the School of Medicine. The successful candidate must interact effectively with students in the School of Medicine as well as undergraduate and graduate students in the History of Science and Medicine. The search committee will begin considering applications on October 15, 2011.

Yale University is an equal opportunity/affirmative action employer and actively encourages applications from minority and women scholars. Ph.D. preferred by the time of appointment. Applicants should send a curriculum vitae, three letters of recommendation, a statement about their work and professional plans, and a sample of their scholarly writing such as a dissertation or book chapter or article to Professor John Harley Warner, Chair, History of Medicine Search Committee, c/o Ewa M Lech, Section of the History of Medicine, Yale University School of Medicine, P.O. Box 208015, New Haven, CT 06520-8015, USA.

Law & Humanities Blog

James Fitzjames Stephen and His Theory of Criminal Punishment

Posted: 22 Jul 2011 09:09 AM PDT

Marc O. DeGirolami, St. John's University School of Law, has published Against Theories of Punishment: The Thought of Sir James Fitzjames Stephen, in volume 9 of the Ohio State Journal of Criminal Law (2012). Here is the abstract.

This paper reflects critically on what is the near-universal contemporary method of conceptualizing the tasks of the scholar of criminal punishment. It does so by the unusual route of considering the thought of Sir James Fitzjames Stephen, a towering figure in English law and political theory, one of its foremost historians of criminal law, and a highly prominent public intellectual of the late Victorian period. Notwithstanding Stephen's stature and importance, there has as yet been no sustained effort to understand his views of criminal punishment. This article attempts to remedy this deficit. But its aims are not exclusively historical.

Indeed, understanding Stephen's ideas about the nature of punishment serves two purposes, one historical and the other theoretical.

The historical aim is to elucidate Stephen's own thought, a subject which has been thoroughly contested and, unfortunately, deeply misunderstood. The primary culprit has been exactly the effort to pin down Stephen's ideas about punishment as retributivist, or consequentialist, or a specific hybrid. The drive to systematize Stephen's thought has had the regrettable effect of flattening it, in some cases unrecognizably. Though he followed Kant, Hegel, Beccaria, and Bentham, Stephen wrote at a time that preceded the full flowering of the philosophy of punishment by roughly a century, and his assumptions and arguments about the nature and purposes of punishment are an uncomfortable fit within the modern hard-edged methodology of punishment theory.

The theoretical aim concerns whether punishment theory might learn from its serious misunderstanding and misrepresentation of Stephen, whether and to what extent its own methodological assumptions ought to be adjusted in light of the paper's historical reconstruction. The article claims that that they might be, and arguably should be. Perhaps more than any other writer on the subject, Stephen poses a powerful challenge to the methodology of systematization in punishment theory; his ideas are an extended argument that an allegiance to system renders thought about the reasons for punishment less rich and more monolithic than they otherwise might be. The article suggests, first, that punishment theorists ought to open themselves to historical scholarship as a source of illumination in fashioning, and perhaps modifying, their sophisticated normative accounts; and second, the theoretical perspective that is most capable of internalizing historical studies and ideas would adopt a pluralistic view of the justification of punishment. The reason for examining neglected historical views is that one may actually improve one's theory by beclouding and complicating it with perspectives that do not match one's existing prescriptive views. And the reason for inclining toward pluralistic theoretical accounts is that it is precisely their untidy and unsystematic methodological commitments which make it possible for theory to learn from history.Download the article from SSRN at the link. Read More... Law & Humanities Blog

Law & Humanities Blog

Scandinavian Crime

Posted: 21 Jul 2011 10:11 AM PDT

Scandinavian crime fiction is suddenly in vogue--not just novels by Stieg Larsson (The Girl With The Dragon Tattoo) and Peter Høeg (Smilla's Sense of Snow)--but many more authors. Here's a roundup of articles discussing mystery writers from the area.

The BBC On Scandinavian Crime Fiction: Nordic Noir (video not available in US)

John Crace, Move Over, Inspector Rankin, The Guardian, January 23, 2009

Inspector Norse, The Economist, March 11, 2010

Boris Kachka, Number 1 With an Umlaut New York Magazine, 5/8/2011

Nathaniel Rich, Scandianavian Crime Wave, Slate (July 8, 2009)

In addition, check out the blog Euro Crime, devoted to British and continental European crime fiction, film and tv.

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Law & Humanities Blog

The Man Who Came To Steal Your Dinner

Posted: 20 Jul 2011 07:15 AM PDT

Helen A. Anderson, University of Washington School of Law, has published From the Thief in the Night to the Guest Who Stayed Too Long: The Evolution of Burglary in the Shadow of the Common Law. Here is the abstract.

Burglary has been evolving away from the common law crime almost as soon as Lord Coke defined it in 1641 as breaking and entering a dwelling of another in the night with the intent to commit a crime therein.

It expanded early on to include breaking and entering buildings, not just dwellings, and the breaking requirement was little more than symbolic in many jurisdictions. But, sometime between the publication of the 1962 Model Penal Code and today, burglary lost its core, its actus reus: "entry." In the majority of jurisdictions, burglary can now be accomplished by simply remaining in a building or vehicle with the intent to commit a crime. Not only does such an offense cover a wide range of situations, but it allows burglary to be attached to almost any crime that occurred indoors, and justify a significant additional penalty – even death. Burglary thus functions as a "location aggravator" for other crimes. Paradoxically, it may be the shadow of the common law crime that has obscured the breadth and significance of these changes. Burglary's long tradition and pedigree gives an illusion of solidity to the charge, even when it no longer necessarily describes real criminal conduct beyond the target offense.Download the paper from SSRN at the link.

This is the first survey of burglary in the United States since the Model Penal Code. It begins with a summary of burglary's history from the common law definition through the first two centuries of the republic, then explains the Model Penal Code proposal for burglary – as well as the Model Code authors' misgivings about the offense. The article then looks in detail at what happened in the states after the Model Penal Code – how the common law elements continued to erode until we ended up with today's very thin crime. The article shows what this has meant: a serious crime with significant penalties that can be invoked in a range of situations, e.g., shoplifting, hold-up of a gas station, or murder by a houseguest. It concludes that burglary's evolution has in some instances gone too far, and no longer necessarily describes a distinct offense. It is only the memory of the common law offense that keeps courts and lawmakers from recognizing how empty the crime has become. Read More... Law & Humanities Blog

Law & Humanities Blog

The Philosophy of Law of Alain Badiou
Women and Their Work In Early Twentieth Century U.S. Criminal Courts
The Political Career of Franz Boas

The Philosophy of Law of Alain Badiou

Posted: 19 Jul 2011 11:20 AM PDT

Igor Stramignoni, London School of Economics, Law Department, has published Seizing Truths: Art, Politics, Law at Art and Law 73 (O. Ben-Dor, ed. Routledge, 2011). Here is the abstract.

The work of French philosopher Alain Badiou has been described as the most powerful alternative yet conceived in France to the various forms of postmodernism that arose after the collapse of the Marxist project. Art interests Badiou in its own right but also as both that which, in the twentieth century, eclipsed philosophy and as that which today philosophy, increasingly de-sutured from art, must imitate in order to make clear that there are truths after all. Badiou conceives of law, on the other hand, as part and parcel of a specific political machine that must continuously perform certain problematic exclusions if it is to keep the fiction of parliamentary democracy together. So how is the relationship between art and law, between the poet and the city, in Badiou's oeuvre?

Download the essay from SSRN at the link.

A shorter version of this essay was presented to the symposium on 'Law and Art: Ethics, Aesthetics and Justice', held at Tate Modern London in March 2010, and it was published in LSE Law, Society and Economy Working Papers 14/2010.

Women and Their Work In Early Twentieth Century U.S.

Criminal Courts

Posted: 19 Jul 2011 11:16 AM PDT

Mae C. Quinn, Washington University, St. Louis, School of Law, has published 'Feminizing' Courts: Lay Volunteers and the Integration of Social Work in Progressive Reform, in Feminist Legal History: Essays on Women and Law, (Tracy A. Thomas & T. J. Boisseau eds.; NYU Press, 2011). Here is the abstract.

This essay, appearing as a chapter in FEMINIST LEGAL HISTORY: ESSAYS ON WOMEN (N.Y.U. PRESS 2011), uncovers groundbreaking court innovations employed by Judge Anna Moscowitz Kross. To date, Kross's work has gone largely unexamined by legal historians and court reformers. This essay describes how Kross, one of the nation's first women judges, sought to rethink the role and goals of criminal courts in order to meet and address social realities. Beginning in the 1930's she expanded the boundaries of criminal courts to permit female volunteer caseworkers and lay probation officers, as representatives of the larger community, to play a role in court operations. Her lay volunteer armies, which were seen as controversial and at times came under official scrutiny, continued their efforts over the course of several decades. What is more, many courts across the country replicated Kross's experiment without crediting her for her ideas. While this essay celebrates this largely forgotten historical figure and her work as an early judicial innovator, it also warns that social engineering efforts in criminal courts at the hands of lay counselors, both then and now, raise important questions that are worthy of further exploration. This essay, therefore, concludes by suggesting that today's criminal justice reformers might learn important lessons from Kross's attempts at judicial creativity that relied on private funding and private citizen participation in criminal court proceedings.

Download the essay from SSRN at the link.

The Political Career of Franz Boas

Posted: 19 Jul 2011 09:25 AM PDT

Alan H. McGowan, The New School for Liberal Arts, Eugene Lang College, has published Franz Boas and the Progressive Spirit, in Jewish Currents, Autumn 2010. Here is the abstract.

This article examines the political career of Franz Boas, called the Father of American Anthropology. In addition to being a pioneering anthropologist, Boas realized the impact that scientists could have on public policy. In addition to commenting on issues concerning race, he organized committees to defend free speech in educational institutions and elsewhere.

Download the text from SSRN at the link.

Via First Amendment Law Prof Blog.

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Law & Humanities Blog

Comparative Law and Legal History

Posted: 18 Jul 2011 12:29 PM PDT

Seán Patrick Donlan, University of Limerick, has published Remembering: Legal Hybridity and Legal History in the Comparative Law Review, June 2011. Here is the abstract.

An interest in contemporary, comparative legal and normative hybridity, or, "legal pluralism," around the globe has become increasingly common. But the hybridity of our own Western past, and the significance of this fact, is too often ignored.As part of a wider project on, "hybridity and diffusion," the mixtures and movements of state law and other norms, this article contributes to the process of 'remembering' this past. It does so to better prepare comparatists for the challenges of the present.

The article was published in June 2011 in the Comparative Law Review (see http://www.comparativelawreview.com/ojs/index.php/CoLR).

Note that the article is formatted somewhat differently there and anyone citing the article should consult the published version.
Download the article from SSRN at the link.

Widows' Pensions In the Early Nineteenth Century

Posted: 18 Jul 2011 12:10 PM PDT

Kristin A. Collins, Boston University School of Law, has published 'Petitions Without Number': Widows' Petitions and the Early Nineteenth-Century Origins of Marriage-Based Entitlements, forthcoming in the Law & History Review. Here is the abstract.

Between 1792 and 1858, Congress enacted approximately seventy-six public law statutes granting cash subsidies to large classes of military widows. War widows' pensions were not wholly unknown in Anglo-American law before this time, but the widows' pension system of the early nineteenth century was distinctive in both scope and kind: Congress rejected the class-based approach that had characterized war widows' pensions of the eighteenth century by pensioning widows of rank-and-file soldiers, not just widows of officers, and by extending pensions to widows of veterans. This significant equalization and expansion of widows' pensions resulted in the creation of the first broad-scale system of marriage-based entitlements in America. This article seeks to explain the blossoming of this system and argues that widows' petitioning efforts played a central role. Unlike the women who used the petition to oppose slavery and Indian removal during the same period, widows seeking pensions did not overtly challenge socio-political conventions by petitioning Congress. Rather, in both locution and purpose, widows' pension petitions conformed to and reinforce dominant views concerning men's and women's social roles and responsibilities. And it was precisely the conformist nature of widows' petitions that made them effective in precipitating the development of a substantial system of public marriage-based entitlements. Attention to these overlooked sources helps explain the emergence of marriage-based entitlements in American law, and enables us to construct a more textured picture of how, in the early nineteenth century, the law shaped women's lives and women shaped the law.

Download the article from SSRN at the link.

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