Law & Humanities Blog

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Extratextual Sources and Constitutional Originalism Posted: 17 Dec 2013 08:53 AM PST Lawrence B. Solum, Georgetown University Law Center, has published Originalism and the Unwritten Constitution at 2013 University of Illinois Law Review 1935. Here is the abstract. In his book, America's Unwritten Constitution, Akhil Reed Amar contends that to properly engage the written Constitution, scholars and laymen alike must look to extratextual sources: among them America's founding documents, institutional practices, and ethos, all of which constitute Amar's "unwritten Constitution." In this Article, I argue that contemporary originalist constitutional theory is consistent with reliance on extraconstitutional sources in certain circumstances. I establish a framework for revaluating the use of extratextual sources. That framework categorizes extratextual sources and explains their relevance to constitutional interpretation (the meaning of the text) and constitutional construction (elaboration of constitutional doctrine and decision of constitutional cases).

Law & Humanities Blog

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• Baseball and Legal Reasoning
• Child Abuse and Legal Intervention In Early Nineteenth Century Quebec
• Deconstructing "Benito Cereno"

Baseball and Legal Reasoning Posted: 16 Dec 2013 08:44 AM PST John Tehranian, Southwestern Law School, has published It'll Break Your Heart Every Time: Flood v. Kuhn, (Baseball) Romanticism and the Fallibility of Courts. Here is the abstract. The recent blockbuster 42 romanticizes the role of major league baseball in the civil rights movement. But Jackie Robinson's shattering of the color line in 1947 represented only the first step in the game's evolution. With considerably less fanfare, Curt Flood took the next step. Flood's ill-fated challenge to the infamous reserve clause landed him before the United States Supreme Court in 1972. It'll Break Your Heart Every Time casts new light on Flood's underappreciated legal struggle by presenting a meta-meditation on his lawsuit, the fallibility of judges and the power of the National Pastime's grand mythology. When the Supreme Court's infamous decision in Flood v. Kuhn, 407 U.S. 258 (1972), is cited for any one proposition, it is not for its key holding — the reaffirmation of baseball's antitrust exemption. Rather, it has become exhibit A for the risks of slavish adherence to stare decisis. In the four decades since its pronouncement, the holding has never been completely overruled — either by the Supreme Court or Congress. And while the decision itself has received widespread condemnation elsewhere, legal, economic and policy analysts have generally failed to appreciate a critical first-order question about the case: how it happened and whether, in other circumstances, it could happen again. This Essay address these issues by examining the profound role of the National Pastime's mythology and its spell-binding romanticism in the making of bad law.

UCL Centre for Digital Humanities

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Affect, Audience Experience and the Digital Humanities Posted: 12 Dec 2013 06:50 AM PST Authors: Christina Kamposiori & Vasileios Routsis Monday 9th December 2013 saw our conference 'Affective Experiences: media art, design & research' which took place at the Parasol Unit: foundation for contemporary art. This conference was a great opportunity to close the conversations we started on February on the context of the AHRC funded project 'New Media, Audiences and Affective Experiences'. The project aimed to establish a platform for creative dialogue and collaboration for doctoral students from City University London, Kings College London, Middlesex University, New London Graduate School (NLGS) and University College London in the academic fields of Creative Industries and Practice, Art and Design and Digital Humanities. In this context, we were honoured to represent UCLDH as a distinguished partner of this collaborative effort.

Law & Humanities Blog

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The Legal History Enterprise at LaTrobe University Posted: 09 Dec 2013 10:01 AM PST Christopher L. Tomlins, University of California, Irvine, Law School, has published Law 'And', Law 'In', Law 'As': The Definition, Rejection and Recuperation of the Socio-Legal Enterprise at 29 Law In Context 137 (2013). The critical moment in socio-legal studies that flowered in the United States and elsewhere between the mid-1970s and the early 1990s coincided with the maturation of the Legal Studies Department at Melbourne's La Trobe University. During its two-decade span (1972-1994) La Trobe Legal Studies developed multidisciplinary critical and theoretical perspectives on law – as substance, as professional practice, as field of academic inquiry – to an extent and depth unrivalled in Australia or, with just a few exceptions, internationally.

Law & Humanities Blog

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From the Law and Society Association: Support Available For Junior Scholars Posted: 05 Dec 2013 09:23 AM PST From the Law and Society Association: Attention Junior Scholars - would you like a chance to present your ideas for the Law and Society Association at the 2014 annual meeting and receive generous travel support? We invite junior scholars around the world with new and innovative ideas to submit them to the LSA Project on the 2nd  Half Century at the 50th Anniversary Meeting in Minneapolis MN May 29-June 1 2014.

Law & Humanities Blog

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Law and Literature and Criminal Law Posted: 03 Dec 2013 01:20 PM PST Simon Stern, University of Toronto Faculty of Law, is publishing Law & Literature (As an Approach to Criminal Law in The Oxford Handbook of Criminal Law (Markus Dubber & Tatjana Hoemle, eds., Oxford University Press, 2014). Here is the abstract. This book chapter discusses the use of literary material as a means of studying criminal law.

Law & Humanities Blog

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• Storytelling For Lawyers
• Religious Symbols and Constitutional Meaning
• Irish-American Politics and Justice
• Law and Humanities Table of Contents, Volume 7, Number 2 (2013), Now Available

Storytelling For Lawyers Posted: 02 Dec 2013 09:45 AM PST Storytelling For Lawyers, a new publication from Philip Meyer, Vermont Law School. From the Oxford University Press website: 0  1  2     https://global.oup.com/academic/covers/pop-up/9780195396638 0  1  2 Storytelling for Lawyers Philip Meyer Good storytelling is a necessity for trial lawyers, and this book explains how to do it Author is a law professor who also holds a masters degree in creative writing from the University of Iowa Writers Workshop Breaks narratives down into their fundamental parts to show how they work Will be of interest to any lawyer struggling to craft a compelling story

Religious Symbols and Constitutional Meaning Posted: 02 Dec 2013 10:03 AM PST Frederick Mark Gedicks, Brigham Young University Law School, and Pasquale Annicchino, European University Institute, Robert Schuman Centre for Advanced Studies (RSCAS), have published Cross, Crucifix, Culture: An Approach to the Constitutional Meaning of Religious Symbols. Here is the abstract. In the United States and Europe the constitutionality of government displays of confessional symbols depends on whether the symbols also have nonconfessional secular meaning or whether, at least, the confessional meaning is somehow absent. Yet both the United States Supreme Court (USSCt) and the European Court of Human Rights (ECtHR) lack a workable approach to determining whether secular meaning is present or confessional meaning absent. The problem is that the government can nearly always articulate a possible secular meaning for the confessional symbols that it uses, or argue that the confessional meaning is passive and ineffective. What matters, however, is not the possibility that secular meaning is present or confessional meaning absent, but whether whether this presence or absence is historically and culturally authentic. Courts largely ignore this, routinely appealing to history and culture to justify government use of confessional symbols without undertaking a serious investigation of either history or culture. Drawing on the work of C.S. Peirce, we propose that courts ask three successive questions in religious symbol cases: (1) Is the ordinary meaning of the symbol confessional or otherwise religious? (2) Does the immediate context in which the symbol is displayed suggest a possible historical, cultural, or other secular meaning? (3) Is this alternate secular meaning authentically present and genuinely recognized in the history and culture of the place where the symbol is displayed? We illustrate this approach with Salazar v. Buono, in which the USSCt upheld government display of a Christian cross, and Lautsi & Others v. Italy, in which the ECtHR deferred to Italian court decisions upholding government display of a Catholic crucifix. While the USSCt in Buono and the Italian courts in Lautsi imagine conceivable nonconfessional meanings for the confessional symbol at issue, neither meaning can be found in American or Italian history or culture. In Lautsi, thjerefore, the ECtHR ends up deferring to a nonexistent Italian "tradition." Judical denial of obvious confessional meaning and invention of substitute secular meanings for confessional symbols betrays a cultural schizophrenia: Majoritarian religions rail against the secularization of culture and its subversion of belief, yet they insist that their confessional symbols remain at home in this culture. But confessional symbols no longer fit in mainstream culture as confessional — hence their redefinition as secular, even and especially by the majoritarian religions that use them. Ironically, judicial secularization of these symbols to validate their use by government is likely to accelerate and entrench the very secularization that such religions deplore. Download the paper from SSRN at the link. Via Legal Theory Blog.

Irish-American Politics and Justice Posted: 02 Dec 2013 07:50 AM PST Saran Ramshaw, Queen's University, Belfast, has published Improvising (Il)Legality: Justice and the Irish Diaspora, N.Y.C., 1930-32, at 3 Irish Journal of Legal Studies 90 (2013). Here is the abstract. The Seabury Commission, 1930-32, probed allegations of corruption made against, amongst others, the Irish-American Mayor of New York City, James J. 'Jimmy' Walker, and the Irish-dominated Tammany Hall, the Democratic political machine that had supported Walker. Taking the Seabury inquiry as its focus, this article explores these allegations from the perspective of Critical Studies in Improvisation (C.S.I.) fused with postcolonial critique. Improvisation, in accordance with C.S.I. principles, is not a lawless or extempore event; it is, instead, lawful, or full of law. The laws of improvisation may appear impenetrable to those unfamiliar with the practice. However, when read through a hibernocentric postcolonial perspective, their meaning and form become more understandable. As will be argued in this article, diasporic communities are inherently improvisatory; that is, they utilise improvisational techniques to help adapt and respond to new situations and social contexts. To be queried is whether the law and politics practiced by Tammany and Walker, taken together, constituted a markedly Irish approach to justice, one that entailed not scripted or planned illegality, as was alleged by Judge Seabury, but improvisations on Anglo-Protestant law as a response to the displacement of and discrimination against the Irish Diaspora in early twentieth century America. Download the article from SSRN at the link. This Samuel Seabury is descended from an earlier Samuel Seabury, who was an Episcopalian bishop, political activist during the American Revolution, and son of yet another Samuel Seabury. Read about him in Paul Victor Marshall, One, Catholic, and Apostolic: Samuel Seabury, and the Early Episcopal Church (Church Publishing, 2004). Under the pseudonym A. W. Farmer, Seabury wrote political tracts that figured in revolutionary thought. See Benjamin H.

Law & Humanities Blog

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• The Law and Jeremy Bentham
• How They Do It Good
• Ludwig's Way

The Law and Jeremy Bentham Posted: 26 Nov 2013 08:13 AM PST Philip Schofield, University College London, Faculty of Laws, has published The Legal and Political Legacy of Jeremy Bentham at 9 Annual Review of Law and Social Science 51 (2013). Here is the abstract. The study of Jeremy Bentham (1748–1832), the English legal philosopher and reformer, is being transformed by the appearance of volumes in the new authoritative edition of The Collected Works of Jeremy Bentham. Following revisionist studies in the 1980s and 1990s that reasserted Bentham's credentials as a key figure in the emergence of the liberal tradition, more recent work has explored an increasingly varied range of topics from the perspective of an increasing variety of disciplines, including literary studies, sociology, and history of political thought, as well as law and philosophy. The view of Bentham as a crude authoritarian behaviorist is no longer tenable, and Bentham's place as a major philosopher with relevance for the twenty-first century is being increasingly recognized. The full text is not available from SSRN.