Law & Humanities Blog

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

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:

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.