Home » Archives for October 2011

Law & Humanities Blog

Posted: 31 Oct 2011 08:33 PM PDT

A "bloody good" story for Hallowe'en: the discovery of author Bram Stoker's journal on his descendant's Isle of Wight bookshelf. Noel Dobbs didn't know what he had until someone doing research contacted him to ask if he might have some information about Stoker's journal. Mr. Dobbs checked, and found the slim volume. Another relative, great-grand nephew Dacre Stoker, who resurrected a Bram Stoker novel called Dracula: The Un-Dead (due out next year) will also help publish the journal. The Lost Journal will also appear next year, the 100th anniversary of the death of Dracula's author.

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Law & Humanities Blog

Indigenous Peoples and the Protection of Intellectual Property: The Case of the Zia

Posted: 28 Oct 2011 10:28 AM PDT

Stephanie B. Turner, Yale Law School, is publishing The Case of the Zia: Moving Beyond Intellectual Property Laws To Protect Cultural Rights, in the Chicago-Kent Journal of Intellectual Property. Here is the abstract.

This Article focuses on an ongoing dispute in trademark law: the case of the Zia. Located near Albuquerque, New Mexico, this Native American pueblo has been using its sacred sun symbol in religious ceremonies since 1200 C.E. The symbol now appears on the New Mexico State flag, letterhead, and license plate, and on commercial products ranging from chemical fertilizers to portable toilets. The tribe claims that the State appropriated the symbol without permission in 1925, and that the continued use of the symbol by various parties dilutes its sacred meaning and disparages the tribe in violation of Section 2(a) of the Trademark Act. This Article tells the Zia story, focusing on the harms the tribe faces when others appropriate its symbol and the possible solutions. It concludes by suggesting that indigenous groups like the Zia should move beyond intellectual property laws in the fight to protect their cultural rights.

Download the article from SSRN at the link.

Law, Narrative, and Health Care

Posted: 28 Oct 2011 10:04 AM PDT

Kenneth D. Chestek, Indiana University School of Law (Indianapolis) has published Competing Stories: A Case Study of the Role of Narrative Reasoning in Judicial Decisions. Here is the abstract.

Within minutes after President Obama signed into law the Patient Protection and Affordable Care Act (derisively referred to by some as the "Obamacare" law), the lawsuits started flying. Literally dozens of suits were filed all across the country. Some were frivolous, but many others raised serious issues of federalism and the reach of Congress' power under the Commerce Clause.

Of the initial spate of lawsuits, ultimately five were decided by various trial courts on the merits of the Commerce Clause issue. Three judges found the law constitutional, and two others found it unconstitutional. But since the issue is almost purely a question of law (it is the same Commerce Clause and the same body of Supreme Court precedent interpreting it in all five cases), the question arises: why did these cases come out differently?

The mainstream media has seized upon a political explanation: the three judges who found the law constitutional were appointed by Democratic Presidents, while the two judges who found the law unconstitutional were appointed by Republican Presidents. This article challenges that assumption, and suggests a more nuanced explanation: each of the plaintiffs in these cases had different stories to tell. The article explores narrative reasoning (defined as norm-based thinking instead of pure rule-based reasoning) as a possible explanation for the divergent results in these cases.

Download the paper from SSRN at the link.

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UCL Centre for Digital Humanities

Live Chat: Open Access in Higher Education (Guardian Higher Education Network), 28/10/2011, 12-2 BST

Posted: 28 Oct 2011 02:08 AM PDT

After a talk point and a poll, the Guardian Professional Higher Education Network wants to give the subject of open access the full consideration it deserves. To coincide with Open Access Week, on Friday 21 October, from 12–2pm BST, the live chat will consider the various ways in which higher education can become – and is becoming – [...]

Medical Humanities Blog

Call for Papers: International Conference on Pain, Suffering and Health

Posted: 28 Oct 2011 09:47 AM PDT

*Call For Papers: *

*International Conference on Pain, Suffering and Health*

*27 April 2012*

*The University of Hong Kong*

The Centre for the Humanities and Medicine at The University of Hong Kong
invites the submission of abstracts from across the disciplines, in
connection with the international conference

*Pain, Suffering and Health*

to be held on 27 April 2012 at The University of Hong Kong.

The conference is being organized by the Centre's Philosophy, Therapy,
Medicine research theme and seeks to develop comparative perspectives on the nature of pain and its significance in relation to suffering and health.

A
key focus of the meeting is on the extent to which experiences and understanding of pain, suffering and health differ across cultural and
historical settings. A further aim of the conference is to consider the
implication and applicability of theoretically-oriented approaches for
health care professionals in clinical situations.

Possible topics might include, but are not limited to, the following:

·       The nature and evolution of pain

·       Culture and pain/Cultures of pain

·       Elaborations on pain (in both Chinese and Western Medicine, History,
Philosophy, Literature, Music, Visual Art)

·       Pain and communication

·       Narratives of pain (particularly narratives of illnesses among
health care professionals)

·       Pain and suffering

·       Religious perspectives on pain and suffering

Papers will be considered on any related theme.

Each presenter is limited to 20 minutes, with additional time for questions
and discussion. To submit, please send via email a 300 word abstract by
Friday 2nd December 2011 at the latest (response by 20th December 2011).
Abstracts, which are sent in after this deadline, cannot be considered.
Please include the following information: a) author(s), b) affiliation, c)
email address, d) title of abstract, e) body of abstract. E-mails should be
entitled: Pain Abstract Submission.

All enquiries and abstracts should be directed to Dr. Barbara Dalle Pezze,
leader of the Philosophy, Therapy, Medicine research theme at the Centre for the Humanities and Medicine (HKU). Email: barbarad@hku.hk

(H/t H-SCI-MED-TECH)

Law & Humanities Blog

Looking Back at "Buck v. Bell"
Shakespeare and War Crimes Trials

Posted: 27 Oct 2011 03:34 PM PDT

Michael Lobban has published Legal Theory and Judge-Made Law in England, 1850-1920 as Queen Mary School of Law Legal Studies Research Paper No. 91/2011. Here is the abstract.

Many nineteenth century jurists agreed that John Austin's separation of the spheres of law and morality lay the foundations for a scientific analysis of law. However, they remained uneasy with his definition of law as the command of a sovereign, preferring to speak of rules enforced by the state. The jurists who succeeded Austin strove to analyze law in terms of rules enforced by the state, and used Austin's tools to put order to the mass of common law materials. However, when it came to discussing how judges should develop the law, they continued to defend the interpretive approach distinctive of the common law tradition. Rather than identifying rules, this entailed applying principles found in older case law to new situations and thereby adapting the law to the changing needs of the community. Consequently, jurists who found Austin's strict separation of law and morality a useful tool for analysis continued to feel that the interpretative work done by the judges needed to take into account the moral needs of the community, and numerous jurists argued explicitly for a connection between law and morality.

In the debates over codification of the 1860s, many judges and jurists who admired the analytical method which allowed them to make sense of a mass of legal materials resisted the aspiration to put all common law into rules. They explicitly defended the common law as a system of principles. In their view, the problems caused by the proliferation of case law resulted from judges looking to find a rule from every reported case, rather than looking to principles. They therefore argued that efforts should be made to digest the principles of the common law, which would allow the law to continue to develop flexibly by reasoning at case level. In response, a number of analytical jurists argued that if the common law could be seen to generate series of authoritative propositions, they could be codified into rules. For them, a digest was a mere preparatory to a code, where judges would apply and not make law. They specifically linked the analytical project, premised on the separation of law and morality, with the codification project. However, by the 1870s, jurists like J.F. Stephen began to separate the codification project from the analytical one. Instead of needing to find an ideal analytical model, Stephen argued, different areas of law could be codified for convenience. By the end of the century, those who argued for codification no longer felt that it would curtail the role of the judge in developing the law in an interpretive way.

The article ends by briefly looking at three jurists who accepted Austin's analytical models, while rejecting (in various degrees) his arguments on the separation of law and morals. William Markby, John Salmond and W.

Jethro Brown all argued that legal and moral norms were related, if distinct, and that judges were to look to moral sources, including the moral needs of the community, on developing the law.

Looking Back at "Buck v. Bell"

Posted: 27 Oct 2011 02:47 PM PDT

Edward Larson, Pepperdine University School of Law, has published Putting Buck v. Bell in Scientific and Historical Context in volume 39 of the Pepperdine Law Review (2011). Here is the abstract.

In this article written for a law-review symposium in response to a presentation on the infamous 1927 U.S. Supreme Court opinion in Buck v. Bell, Edward J. Larson argues that, at the time that the case was decided, eugenics was on the incline, not the decline. In the 1920s, the American scientific and medical community broadly backed eugenic remedies for various forms of mental illness and retardation. Legislatures, lawyers, and jurists took their cue from this scientific and medical consensus. Absent any question that the statute at issue in Buck v. Bell was validly passed by the Virginia legislature or that due process was provided for the persons subject to its reach, the law should have withstood constitutional challenge. The tragedy of Buck v. Bell, Larson argues, was that Carrie Buck never received the due process guaranteed under Virginia's eugenic sterilization statute and that neither her lawyers nor the courts protected her from a flagrant violation of her basic constitutional and statutory rights. Under the fact that should have been brought out at trial, Carrie Buck would not have been sterilized. More fundamentally, had due process been provided in this and other instances, while eugenics would still have been a scientific and medical mistake, it would not be a legal one.

Download the article from SSRN at the link.

Shakespeare and War Crimes Trials

Posted: 27 Oct 2011 02:41 PM PDT

Will Fitzgibbon, Australian National University College of Law, has published Visions of Justice: Shakespeare and Duch's Proposed 'Return to Humanity'. Here is the abstract.

Completed in the first half of 2010, this thesis received a First Class and was supervised by Professor Margaret Thornton. This article provides an analysis of the story and the trial of the Khmer Rouge official, Kaing Geuk Eav, alias Duch, in the Extraordinary Chambers in the Courts of Cambodia (ECCC) through a Shakespearean lens – particularly drawing upon three plays; The Winter's Tale, Coriolanus, and Richard III. Duch's Defence Counsel Mr Francois Roux contended that the real question of Duch's trial was whether 'the hearings would allow one who has exited from humanity to return to humanity'. Using Shakespearean exempla, the essay examines the persuasiveness of Duch and his Defence team in its effort to have Duch 'return to humanity'. This article first details Duch's life and crimes. In what follows, this article analyses through a Shakespearean lens strengths and weaknesses of the Defence's appeal for Duch's 'return to humanity' in light of his alleged recognition of guilty and expression of remorse.

Download the thesis from SSRN at the link.

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UCL Centre for Digital Humanities

Digital Humanities, QRator on The Global Lab Podcast

Posted: 27 Oct 2011 08:28 AM PDT

The latest episode of the Global Lab podcast features an interview with me, Claire Ross, talking about museums, digital technology and what it means to be a digital humanist. You can donwload it via RSS, iTunes or download the .mp3. We discuss the QRator project which is a collaboration between CASA and UCLDH. The Global Lab [...]

This posting includes an audio/video/photo media file: Download Now

Law & Humanities Blog

William Shakespeare: Genius or Stand-In

Posted: 25 Oct 2011 07:59 AM PDT

Do filmgoers care about a movie's historical accuracy? Does an audience take the plot of a docudrama "based on historical events" literally? The Guardian has asked its readers just this question in the case of the new film Anonymous, which takes the position that someone other than William Shakespeare wrote Shakespeare.

Candidates and alternative theories abound. Did Francis Bacon actually write the plays and poems? Christopher Marlowe? The Earl of Essex? Sir Walter Raleigh? The Earl of Derby? Steven Dutch surveys some of the candidates and theories here; James Shapiro in his recent book Contested Will discusses the issue at length. Schools and institutions have sponsored symposia on the subject. Frontline presented a program on the authorship of the plays. Even Justice Stevens offers an opinion. His pick is the Earl of Oxford.

If you can't decide, you can take a fallback position on the question of who wrote Shakespeare's works. William Shakespeare.

Bibliography:

James Shapiro, Contested Will: Who Wrote Shakespeare (Simon and Shuster, 2010).

Symposium: Who Wrote Shakespeare: An Evidentiary Puzzle 72 Tenn. L. Rev 1 (Fall 2004).

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Law & Humanities Blog

VARA and Moral Rights

Posted: 24 Oct 2011 02:51 PM PDT

Nathan M. Davis has published As Good As New: Conserving Artwork and the Destruction of Moral Rights in volume 29 of the Cardozo Arts & Entertainment Law Journal (2011).

Here is the abstract.

American legal protections afforded to artists with respect to their own works are so narrowly focused, and the statutory language so loosely defined, that it is not clear whether certain measures to conserve artworks may have the counterintuitive, adverse effects of depriving artists of the protections contemplated in the Visual Artists Rights Act of 1990 (VARA). This Note explores problem areas in the nexus of conserving works of art and VARA jurisprudence, arguing that the statute's narrow scope confers inconsistent and unpredictable protections over artworks such that the ever-evolving best practices of arts professionals — those who work to conserve artworks or otherwise play a stewardship role for artists' creations — may indiscriminately jeopardize artists' rights in their works.
Part I presents an overview of VARA from a practical perspective, contrasting the expansive scope of visual artistic media over the last one hundred years with the restrictive designations of moral rights protections, demonstrating a philosophical gap between the statute and the artworks it was designed to protect. Part II addresses the statute's case law, which casts a divide between VARA's application and the practical scenarios that arts professionals encounter in preserving artworks, examining two cases: Flack v. Friends of Queen Catherine and Board of Managers of SoHo International Arts Condominium v. City of New York (Board IV). Lastly, Part III suggests an amendment to VARA in order to effectuate its purpose when applied to common conservation practices and puts forward a set of guidelines for arts professionals to reduce the likelihood that conserving an artwork could jeopardize artist rights in it or otherwise run afoul of VARA's protections.

Download the article from SSRN at the link.

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Law & Humanities Blog

The Writer and the Law

Posted: 20 Oct 2011 03:13 PM PDT

John James Berry, Barry University School of Law, has published The Law, The Writer and The Work: How an Author's Interaction with the Legal System Impacts His Writing. Here is the abstract.

By tracing the lives led by four famous authors and exploring the societies which produced them, this article will show how law affects literature in ways that many readers may not notice. Rather than explore what was expressed by the author, this work will examine the affect the background of the author has on the tone of the works of literature which they produce, the affect the law and their culture's legal system had on their background, and how the characteristics of the cultures and authors reflect the characteristics of the governing legal system. Ultimately, this piece shows that, rather than a society's legal system reflecting its' underlying culture, the power of the law has the ability to shape the culture which it is supposed to serve.

Download the paper from SSRN at the link.

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Law & Humanities Blog

Amazing Guys In "Suits"

Posted: 17 Oct 2011 02:47 PM PDT

Math professor and guest blogger Ed Aboufadel explains the math behind an amazing client save on the show "Suits."

Posted: 17 Oct 2011 08:52 AM PDT

Jeffrey M.

Gaba, Southern Methodist School of Law, has published Copyrighting Shakespeare: Jacob Tonson, Eighteenth Century English Copyright, and the Birth of Shakespeare Scholarship. Here is the abstract.

In 1709, Jacob Tonson, the premier publisher of his age, purchased the "copyright" to Shakespeare. Tonson and his family over the next fifty years went on to publish some of the most significant editions of the collected works of Shakespeare, edited by the likes of Nicholas Rowe, Alexander Pope and Samuel Johnson. In many ways, the Tonsons were responsible for the growth of Shakespeare's popularity and the critical study of his work.

This article discusses the significance of copyright to the Tonsons' publication decisions. It suggests that the Tonson copyright did not significantly "encourage" their contributions to Shakespeare scholarship. First, Jacob Tonson could not have relied on statutory copyright for protection of his seminal 1709 Rowe edition. Tonson, quite simply, did hold the copyrights at that point, and the Statute of Anne had not yet been introduced, let alone passed, by Parliament. Second, the Tonsons' publication of later editions would not, as some have asserted, have perpetuated any common law or statutory copyright claim Tonson might have to the works of Shakespeare. Third, although the textual notes and comments contributed by his editors may have been copyrighted, most of the significant editorial contributions to Shakespeare scholarship would not themselves have been subject to copyright protection. Selection of plays in the legitimate Shakespeare canon, for example, and selection of the appropriate text from earlier quarto and Folio editions would not have been subject to copyright protection. Fourth, the expansion of public access to cheaper, more widely available editions of the Shakespeare plays arose in spite of, rather than because of, copyright protections. It was a challenge by a book "pirate" that caused the Tonsons, not to seek legal protection through their claimed copyright, but to flood the market with their own cheap editions of the plays.

Finally, the article suggests a reason why the Tonsons, whose name appears as plaintiff in many of the early copyright cases, never sought to litigate their claim to a copyright in Shakespeare. Simply put, litigating a claim to copyright in Shakespeare would have been a poor "test case" to secure what the Bookseller's sought at that time – a perpetual common law copyright based on the natural rights of authors.

This article suggests that copyright issues, although certainly important, were ancillary to the Tonsons' publication decisions. Market forces, the protections from competition afforded by a Bookseller cartel, and a respect for Shakespeare's works, more than copyright protections, appeared to drive the Tonsons' actions and therefore the growth of Shakespeare scholarship.

Download the paper from SSRN at the link. Read More... Law & Humanities Blog

Law & Humanities Blog

Fielding a Story: Tracking Down an Anecdote About David Dudley Field

Posted: 14 Oct 2011 05:17 PM PDT

Ross E.

Davies, George Mason School of Law, has published The Judiciary Funded: The Generosity of David Dudley Field at 14 The Green Bag 2d 433 (Summer 2011). Here is the abstract.

In mid-1894, shortly after the death of David Dudley Field (one of the most powerful and famous, and least-loved, American lawyers of the 19th century), lawyer-journalist Irving Browne published an implausibly laudatory anecdote about Field, based on a letter in which Field claimed to have engaged in a longstanding act of secret philanthropy that was wholly out of character. An experienced observer of public affairs in 1894, or in 2011, surely could be forgiven for doubting the veracity of such a self-serving, out-of-character story, told only posthumously by a friendly journalist, and with no evidence to back it up. The Gilded Age was, after all, a time when politicians and power-mongers like Field could rely on select reporters and editors to serve as virtual publicists – mixing innuendo with truths, half-truths, and non-truths (often supplied by unidentified sources) in news stories that boosted their favorites. Neither Browne nor anyone else seems to have made any effort to verify Field's story, even though there were seemingly easy ways to do so. It is perhaps for those reasons that Browne's parable of the secretly saintly David Dudley Field, revealed only post-mortem in all the glory of his selfless kindness and generosity, was largely ignored at the time and has been ever since. But the story is true, or true at least as to Field's initial generosity. And there is evidence to back it up.

Download the article from SSRN at the link.

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Law & Humanities Blog

A Bibliography of Derrick Bell's Works
The History of the Full Faith and Credit Clause
Are We In Kansas? Free Love and the Right of Privacy In State v. Walker

A Bibliography of Derrick Bell's Works

Posted: 13 Oct 2011 11:14 AM PDT

As promised, a bibliography of Derrick Bell's books and articles, prepared by Kevin Baggett, Circulation Librarian at the LSU Law Center Library. Posted with permission.

Derrick A. Bell Bibliography

Books

1. Faces at the Bottom of the Well: The Permanence of Racism. New York, NY: Basic Books, 1992

2. Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform. Oxford; New York: Oxford University Press, 2004.

3. And We Are Not Saved: The Elusive Quest for Racial Justice. New York: Basic Books, 1987.

4. Confronting Authority: Reflections of an Ardent Protester. Boston: Beacon Press, 1994.

5. Shades of Brown: New Perspectives on School Desegregation. New York: Teachers College Press, Columbia University, 1980.

6. The Age of Segregation: Race Relations in the South, 1890-1945: Essays (Co-author Robert J. Haws). Jackson: University Press of Mississippi, 1978.

7. Ethical Ambition: Living a Life of Meaning and Worth. New York: Bloomsbury: Distributed by Holtzbrinck Publishers, 2002.

8. Gospel Choirs: Psalms of Survival for an Alien Land Called Home. New York. NY: Basic Books, 1996.

9. Afrolantica Legacies. Chicago: Third World Press, 1998.

10. Race, Racism, and American Law. Boston, Little, Brown, 1973.

11. The Derrick Bell Reader (Co-authors Richard Delgado, Jean Stefancic). New York: New York University Press, 2005.

12. Civil Rights – Leading Cases. Boston: Little, Brown, 1980.

13. And We Are Not Saved: The Elusive Quest for Racial Justice. New York, Basic Books, 1989.

14. Constitutional Conflicts: Cincinnati: Anderson Pub. Co., 1997.

15. Faces at the Bottom of the Well: The Permanence of Racism. New York, NY: Basic Books, 1992.

16. Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform. Oxford; New York: Oxford University Press, 2004.

17. And we are Not Saved: The Elusive Quest for Racial Justice. New York, Basic Books, 1987.

18. Confronting Authority: Reflections of an Ardent Protester. Boston: Beacon Press, 1994.

19. Shades of Brown: New Perspectives on School Desegregation. New York: Teachers College Press, Columbia University, 1980.

20. The Age of Segregation: Race Relations in the South, 1890-1945: Essays (Co-author Robert J. Haws). Jackson: University Press of Mississippi, 1978.

21. Ethical Ambition: Living a Life of Meaning and Worth. New York: Bloomsbury: Distributed by Holtzbrinck Publishers, 2002.

22. Gospel Choirs: Psalms of Survival for an Alien Land Called Home. New York. NY: Basic Books, 1996.

23. Afrolantica Legacies. Chicago: Third World Press, 1998.

24. Race, Racism, and American Law. Boston, Little, Brown, 1973.

25. Civil Rights – Leading Cases. Boston: Little, Brown, 1980.

26. Constitutional Conflicts: Cincinnati: Anderson Pub. Co., 1997.

27. When Race Becomes Real: Black and White Writers Confront Their Personal Histories (Co-Author Bernestine Singley). Chicago, Ill.: Lawrence Hill; Lancaster: Gazelle, 2004.

28. Civil Rights in 2004: Where Will We Be? College Park, Md.: Center for Philosophy and Public Policy, 1985.

29. The African American Law School Survival Guide: Information, Advice, and Strategies to Prepare You for the Challenges of the Law School Experience (Co-author Evangeline M. Mitchell). Houston, Tex.: Hope's Promise Pub., 2006.

30. Ask Your Mama; 12 Moods for Jazz (Co authors Langston Hughes, Arnold Rampersad, and others). New York: Alfred A. Knopf, Art Farm West, 2009, 1961.

31. In Defense of Minority Admissions Programs: A Response to Professor Graglia (co-author Lino A. Graglia). Philadelphia, 1970.

Articles

Bell, Derrick A., Jr.. 2007. "A Prophesy for Effective Schooling in an Uncaring World." Boston College Third World Law Journal 27, no. 1: 1-12.

Bell, Derrick A.. 2004. "The Unintended Lessons in Brown v. Board of Education." New York Law School Law Review 49, no. 4: 1053-67.

Bell, Derrick A.. 2000. "Wanted: a white leader able to free whites of racism.." U.C. Davis Law Review 33, no. 3: 527-44.

Bell, Derrick A.. 2000. "Brown v. Board of Education {74 S. Ct. 686 (1954)}: forty-five years after the fact." Ohio Northern University Law Review 26, no. 2: 171-81.

Bell, Derrick A.. 1999. ""Here come de judge": the role of faith in progressive decision-making." The Hastings Law Journal 51, no. 1: 1-16.

Bell, Derrick A.. 1999. "A colony at risk." Touro Law Review 15, no. 2: 347-9.

Bell, Derrick A.. 1999. "The power of narrative." Legal Studies Forum 23, no. 3: 315-48.

Bell, Derrick A.. 1999. "Getting beyond a property right in race." Washington University Journal of Law and Policy 1: 27-36.

Bell, Derrick A.. 1998. "Constitutional conflicts: the perils and rewards of pioneering in the law school classroom." Seattle University Law Review 21, no. 4: 1039-51.

Bell, Derrick A.. 1997. "California's Proposition 209: a temporary diversion on the road to racial disaster." Loyola of Los Angeles Law Review 30: 1447-64.

Bell, Derrick A.. 1997. "A gift of unrequited justice." Howard Law Journal 40, no. 2: 305-13.

Bell, Derrick A.. 1996. "Racial libel as American ritual." Washburn Law Journal 36: 1-17.

Bell, Derrick A.. 1996. "A pre-memorial message on law school teaching." New York University Review of Law and Social Change 23, no. 2: 205-15.

Bell, Derrick A.. 1995. "Black history and America's future." Valparaiso University Law Review 29: 1179-91.

Bell, Derrick A.. 1995. "1995 commencement address—Howard University School of Law." Howard Law Journal 38: 463-71.

Bell, Derrick A.. 1995. "The triumph in challenge." Maryland Law Review 54: 1691-9.

Bell, Derrick A.. 1995. "Who's afraid of critical race theory?." University of Illinois Law Review 1995: 893-910.

Bell, Derrick A. and Linda Singer. 1993. "Making a record." Connecticut Law Review 26: 265-84.

Bell, Derrick A.. 1993. "Diversity and academic freedom." Journal of Legal Education 43: 371-9.

Bell, Derrick A. and Erin Edmonds. 1993. "Students as teachers, teachers as learners." Michigan Law Review 91: 2025-52.

Bell, Derrick A.. 1993. "The racism is permanent thesis: courageous revelation or unconscious denial of racial genocide." Capital University Law Review 22: 571-87.

Bell, Derrick A.. 1993. "An epistolary exploration for a Thurgood Marshall biography." Southern University Law Review 20: 83-105.

Bell, Derrick A.. 1993. "Political reality testing: 1993." Fordham Law Review 61: 1033-43.

Bell, Derrick A.. 1993. "Learning the three "I's" of America's slave heritage." Chicago-Kent Law Review 68: 1037-49.

Bell, Derrick A.. 1993. "The permanence of racism." Southwestern University Law Review 22: 1103-13.

Bell, Derrick A.. 1992. "The Racial Preference Licensing Act. A fable about the politics of hate." American Bar Association Journal 78: 50-5.

Bell, Derrick A.. 1992. "Racial realism." Connecticut Law Review 24: 363-79.

Bell, Derrick A.. 1992. "Reconstruction's racial realities." Rutgers Law Journal 23: 261-70

Bell, Derrick A.. 1991. "Racism is here to stay: now what?." Howard Law Journal 35: 79-93.

Bell, Derrick A.. 1991. "Foreword: the final Civil Rights Act." California Law Review 79: 597-611.

Bell, Derrick A., Tracy Higgins and Sung-Hee Suh. 1990.

"Racial reflections: dialogues in the direction of liberation." UCLA Law Review 37: 1037-100.

Bell, Derrick A.. 1990. "After we're gone: prudent speculations on America in a post-racial epoch." Saint Louis University Law Journal 34: 393-405.

Bell, Derrick A.. 1989. "Racism: a prophecy for the year 2000." Rutgers Law Review 42: 93-108.

Bell, Derrick A.. 1989. "Xerces and the affirmative action mystique." The George Washington Law Review 57: 1595-613.

Bell, Derrick A.. 1989. "The final report: Harvard's affirmative action allegory." Michigan Law Review 87: 2382-410.

Bell, Derrick A.. 1988. "White superiority in America: its legal legacy, its economic costs." Villanova Law Review 33: 767-79.

Bell, Derrick A.. 1988. "The republican revival and racial politics." The Yale Law Journal 97: 1609-21.

Bell, Derrick A.. 1988. "The constitution at 200: reflections on the past—implications for the future." New York Law School Journal of Human Rights 5: 331-44.

Bell, Derrick A.. 1986. "The dilemma of the responsible law reform lawyer in the post-free enterprise era." Law & Inequality 4: 231-43.

Bell, Derrick A.. 1986. "Strangers in academic paradise: law teachers of color in still white schools." University of San Francisco Law Review 20: 385-95.

Bell, Derrick A.. 1986. "Application of the "tipping point" principle to law faculty hiring policies." Nova Law Journal 10: 319-27.

Bell, Derrick A.. 1985. "The Supreme Court, 1984 term—foreword: the civil rights chronicles." Harvard Law Review 99: 4-83.

Bell, Derrick A.. 1984. "An American fairy tale: the income-related neutralization of race law precedent." Suffolk University Law Review 18: 331-45.

Bell, Derrick A.. 1984. "A tragedy of timing." Harvard Civil Rights-Civil Liberties Law Review 19: 277-9.

Bell, Derrick A.. 1984. "A holiday for Dr. King: the significance of symbols in the black freedom struggle." U.C. Davis Law Review 17: 433-44.

Bell, Derrick A., Alan Freeman, Monroe Fordham and Sidney Willhelm. 1984. "A hurdle too high: class-based roadblocks to racial remediation: a panel." Buffalo Law Review 33: 1-34.

Bell, Derrick A.. 1983. "A school desegregation post-mortem." Texas Law Review 62: 175-90.

Bell, Derrick A.. 1981. "Private clubs and public judges: a nonsubstantive debate about symbols." Texas Law Review 59: 733-54.

Freeman, Alan, Derrick A. Bell and Henry McGee. 1981. "Race, class, and the contradictions of affirmative action." The Black Law Journal 7: 270-89.

Bell, Derrick A.. 1981. "Law school exams and minority-group students." The Black Law Journal 7: 304-13.

The History of the Full Faith and Credit Clause

Posted: 13 Oct 2011 08:03 AM PDT

Charles M. Yablon, Cardozo School of Law, has published Madison's Full Faith and Credit Clause: A Historical Analysis at 33 Cardozo Law Review 125 (2011). Here is the abstract.

The Defense of Marriage Act (DOMA) has created a new wave of interest in the Full Faith and Credit Clause and its apparent contradictions. Important recent scholarship has shown that American lawyers in the eighteenth century often viewed the term "full faith and credit" as referring to an evidentiary rule. This interpretation ameliorates, but does not actually resolve, the apparent conflict between the first sentence of the Clause, which seems to create a mandatory rule of sister state deference, and the second sentence of the Clause, which seems to give Congress plenary power to abrogate that rule. Rather than seek a chimerical general understanding of the Clause, this Article focuses on James Madison to provide a new and strikingly different historical account of the creation of the Full Faith and Credit Clause. It shows how the Full Faith and Credit Clause was part of a broader plan by Madison and others to curb the ability of states to take acts that were harmful to one another and to the nation, particularly those which, by interfering with vested contract and property rights, jeopardized the country's economic well-being. Madison purposely sought a Clause that would embody a vague but dynamic deference obligation that could be increased by Congress over time.

Madison's actions and writings regarding the Full Faith and Credit Clause strongly suggest that he would have considered congressional actions to weaken or abrogate existing deference obligations not just unwise and unjust, but unconstitutional. Unlike powers which appropriately belonged to the federal legislature irrespective of how they were exercised, Madison's justification for the powers granted under the second sentence of the Clause was based on how Madison expected those powers to be used, namely, to "provide for the harmony and proper intercourse among the states." What emerges from this analysis is a picture of the Full Faith and Credit Clause that has significant similarities to the "one way ratchet" interpretation which has been used to argue that the DOMA is unconstitutional, but one in which the presumed constraints on congressional action are the product of national interest, political virtue, and natural law as well as the language of the Full Faith and Credit Clause.

Download the article from SSRN at the link.

Are We In Kansas? Free Love and the Right of Privacy In State v. Walker

Posted: 13 Oct 2011 07:56 AM PDT

Charles J. Reid, Jr., University of St. Thomas School of Law (Minnesota) has published The Devil Comes to Kansas: A Story of Free Love and the Law as University of St. Thomas Legal Studies Research Paper No. 11-26.

State v. Walker (1887) is an important but hitherto neglected landmark case in the development of the right of privacy. The case involved the "autonomistic" or "free-love" marriage of Edwin C. Walker and Lillian Harman, daughter of Moses Harman, the radical newspaperman.

Edwin and Lillian, who rejected state control over marriage, proclaimed themselves married in the fall of 1887, although they declared that their union was neither permanent or exclusive. Prosecuted for illegal cohabitation because of their refusal to obtain a marriage license, they and their defenders developed a vocabulary that would profoundly influence the future path of American law.

Their supporters in the radical press began to speak of the right of women to control their own bodies, woman's right to reproductive autonomy, and a right of sexual privacy. Indeed, it was in the midst of this controversy that the expression "freedom of choice" was used, probably for the first time, in its modern meaning by Lillian Harman writing from prison.

The Kansas Supreme Court, which ruled on the appeal of their convictions, was, in contrast, a deeply conservative and Christian group of men who were publicly known for their religious fidelity and who brought their religious feelings to bear in the case.

Thanks to the survival of both a substantial body of newspapers and the personal papers of the three justices who ruled on the appeal, it is possible to reconstruct a vivid account of this first skirmish in the American culture wars.

Download the paper from SSRN at the link.

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On Pain as a Global Public Health Priority

Posted: 13 Oct 2011 06:15 AM PDT

Daniel S. Goldberg (East Carolina University) and Summer J. McGee (Center for Practical Bioethics & University of Kansas Medical Center) have a new article out in BMC Public Health entited Pain as a Global Health Priority. Like all papers in BMC journals, it is available full-text open-access.

Here is the Abstract:

Background

Pain is an enormous problem globally. Estimates suggest that 20% of adults suffer from pain globally and 10% are newly diagnosed with chronic pain each year. Nevertheless, the problem of pain has primarily been regarded as a medical problem, and has been little addressed by the field of public health.

Discussion

Despite the ubiquity of pain, whether acute, chronic or intermittent, public health scholars and practitioners have not addressed this issue as a public health problem. The importance of viewing pain through a public health lens allows one to understand pain as a multifaceted, interdisciplinary problem for which many of the causes are the social determinants of health. Addressing pain as a global public health issue will also aid in priority setting and formulating public health policy to address this problem, which, like most other chronic non-communicable diseases, is growing both in absolute numbers and in its inequitable distribution across the globe.

Summary

The prevalence, incidence, and vast social and health consequences of global pain requires that the public health community give due attention to this issue. Doing so will mean that health care providers and public health professionals will have a more comprehensive understanding of pain and the appropriate public health and social policy responses to this problem.

Comments, feedback, and suggestions are always welcome.