Law & Humanities Blog |
- A New Book On Law and Literature
- Historical Argument and Constitutional Interpretation
- The Very Model of a Modern Law Professor?
| A New Book On Law and Literature Posted: 21 Aug 2013 08:44 AM PDT Very interesting new book edited by Daniela Carpi and Jeanne Gaakeer, published by DeGruyter, entitled Liminal Discourses: Subliminal Tensions in Law and Literature (Law and Literature; 6). Lots of fascinating essays included, from Cristina Costantini's Representing Law: Narrative Practices, Poetic Devices, Visual Signs and the Aesthetics of the Common Law Mind to Melanie Williams' Liminal Tensions in Public to Private Conceptions of Justice: Nussbaum, Woolf and the Struggle for Identity, to Jeanne Clegg's Moll Flanders, Ordinary's Accounts and Old Bailey Proceedings. Laura Apostoli's Altered Bodies, Fragmented Selves: Reconstructing the Subject in Fay Weldon's The Cloning of Joanna May looks really interesting--well, all the chapters will keep me busy. Here's the rundown. Daniela Carpi, Introduction 1: The Sublime of Law Jeanne Gaakeer, Introduction 2: On the Threshold and Beyond: An Introductory Observation Cristina Costantini, Representing Law: Narrative Practices, Poetic Devices, Visual Signs and the Aesthetics of the Common Law Mind Maria Aristodemou, Bare Law Between Two Lives; Jose Saramago and Cornelia Vismann on Naming, Filing and Cancelling Melanie Williams, Liminal Tensions in Public to Private Conceptions of Justice: Nussbaum, Woolf and the Struggle for Identity Julian Jimenez Heffernan, "Under the Force of the Law": Communal Imagination and the Constitutional Sublime in Walter Scott's The Bride of Lammermoor" Jeanne Clegg, Moll Flanders, Ordinary's Accounts and Old Bailey Proceedings Sidia Fiorato, Ariel and Caliban as Law-conscious Servants Longing for Legal Personhood Laura Apostoli, Altered Bodies, Fragmented Selves: Reconstructing the Subject in Fay Weldon's The Cloning of Joanna May Jeanne Gaakeer, The Business of Law and Literature: To Compose an Order, To Imagine Man Daniela Carpi, Renaissance Into Postmodernism: Anticipations of Legal Unrest  |
| Historical Argument and Constitutional Interpretation Posted: 21 Aug 2013 07:59 AM PDT Jack M. Balkin, Yale University Law School, is publishing The New Originalism and the Uses of Historyin the Fordham Law Review (forthcoming). Here is the abstract. Central to the New Originalism is the distinction between constitutional interpretation and constitutional construction. Interpretation tries to figure out the Constitution's original communicative content, while construction builds out doctrines, institutions and practices over time. Most of the work of constitutional lawyers and judges is constitutional construction. The distinction between interpretation and construction has important consequences for constitutional theory. In particular, it has important consequences for longstanding debates about how lawyers use history and should use history. First, construction, not interpretation, is the central case of constitutional argument, and most historical argument occurs in the construction zone. Second, although people often associate historical argument with originalist argument, the actual practices of lawyers and judges demonstrate that non-adoption history is as important as adoption history to constitutional construction. Third, there is no single modality of "historical argument." Instead, history is relevant to many different kinds of constitutional argument. One important task of this article is to rethink the familiar model of modalities of argument offered by Philip Bobbitt and Richard Fallon; and to offer a different version that better reflects the multiple ways that lawyers and judges actually use history in constitutional argument. Fourth, according to the New Originalism, arguments about adoption history can offer mandatory answers only with respect to questions of interpretation; they cannot do so for questions of constitutional construction. That is, New Originalists accept an originalist model of authority only with respect to questions of interpretation, not construction. |
Yet New Originalists, like most lawyers, often make appeals to adoption history in constitutional construction. This raises the obvious question why American judges and lawyers should use or accept arguments from adoption history in constitutional construction and only sometimes find them persuasive. The originalist model of authority by itself cannot answer this question. Fifth, we can solve this puzzle by paying careful attention to how lawyers and judges actually use adoption history. In constitutional construction, "originalist" argument is not a single form of argument. It involves many different kinds of argument, and it often appeals to ethos, tradition or "culture heroes" -- honored authorities who are treated as objects of respect, wisdom and emulation. In fact, in constitutional construction, arguments from adoption history are often hybrid; they appeal to multiple modalities of argument simultaneously. Most arguments about the founding period usually also make implicit appeals to one of three modes of argument: national ethos, political tradition, or honored authority. This hybrid nature gives arguments from adoption history their distinctive character in constitutional construction. Despite the dominance of original public meaning originalism in originalist theory, lawyers actually use adoption history quite differently than academic theory prescribes. Sixth, precisely because originalist arguments (in constitutional construction) generally appeal to ethos and tradition, they will normally not be persuasive unless the audience can plausibly accept the values of the adopters as their own or can re-characterize them so that they can plausibly accept them as their own. When these values appear too alien or irrelevant, lawyers generally avoid making originalist arguments. Thus, lawyers do not feel an obligation to consult adoption history in every case; and when they do, they do not accept the results of adoption history as binding on them if there are other considerations. Seventh, in constitutional construction, adoption history is a valuable resource available to originalists and non-originalists alike. Indeed, once they understand how originalist-style arguments actually operate in the construction zone, non-originalists and living constitutionalists should have no qualms about appealing to adoption history and making originalist arguments. Using such arguments does not undermine living constitutionalist theories of construction in the least. Refusing to employ adoption history serves no important theoretical principle and has no significant rhetorical advantages; indeed, all it does is limit lawyers' ability to persuade their fellow citizens through calling on shared traditions and invoking powerful symbols of cultural memory.
Download the article from SSRN at the link.
Download the article from SSRN at the link.
The Very Model of a Modern Law Professor?
Posted: 21 Aug 2013 07:51 AM PDT
Carlo A. Pedrioli, Barry University School of Law, has published Professor Kingsfield in Conflict: Rhetorical Constructions of the U.S. Law Professor Persona(e) at 38 Ohio N. U. L. Rev. 701 (2012). Here is the abstract.
Download the article from SSRN at the link.
At least since the 1960s, a "'two cultures' phenomenon" has become quite apparent within the legal field in the United States. On one hand, some lawyers, usually those within the university, have been more academically oriented, and, on the other hand, other lawyers, usually those in legal practice or sitting on the bench, have been more pragmatically oriented. Problems arise when these two groups begin to talk differently from each other. In a way, the field of law has developed into at least two different legal professions, and, not surprisingly, scholars and practitioners have experienced tension because of this situation. The problem comes to a head when, through rhetoric, lawyers envision their ideal role(s) for the law professor. Calling upon rhetorical theory, this article traces the contours of the conflict over the construction of the role(s), or persona(e), of the U.S. law professor from 1960 to the present. The article draws an initial line at 1960 because, by the 1960s, law schools in the United States had matured to the point at which they clearly were thinking of themselves as graduate programs within the university system. After a discussion of persona theory and persona analysis, this article addresses the two major personae that have emerged in the conflict, the law professor as scholar and the law professor as practitioner. As appropriate, each subsection of the article that considers a persona also addresses the type of rhetoric that lawyers have employed in developing their preferred persona. In this study, the term lawyers refers to both practicing lawyers and academic lawyers. A concluding section synthesizes some of the communication problems that have emerged in this ongoing conflict, usually due to a heavy reliance on traditional Aristotelian rhetoric, or persuasion, as a rhetorical strategy. Although descriptive in nature, the current article sets the stage for a subsequent article, normative in nature, that will open the door to an alternative approach to this ongoing conflict.
Download the article from SSRN at the link.
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