17 September 2014

ARTICLES ANNOUNCEMENT: Philosophy of Law eJournal

From the new issue of Philosophy of Law eJournal, we suggest the following articles:

JASON M. SOLOMON, Stanford Law School
Email: jsolomon@law.stanford.edu

At the root of many contemporary debates and landmark cases in the civil justice system are underlying questions about the role of the civil jury. In prior work, I examined the justifications for the civil jury as a political institution, and found them wanting in our contemporary legal system.

This Article looks closely and critically at the justification for the civil jury as an adjudicative institution and questions the conventional wisdom behind it. The focus is on tort law because the jury has more power to decide questions of law in tort than any other area of law. The Article makes three original contributions.

First, I undermine the claim that the breach question in negligence is inevitably one for the jury by revisiting a famous debate between Cardozo and Holmes about the possibility of judge-made rules around breach in tort. Second, I draw on social and cognitive psychology to question the conventional wisdom that juries applying general standards are ideally suited to identify and apply social norms. And third, I sketch a middle-ground approach on breach, which involves presumptive rules that defer to indicia of social norms such as statutes and regulations, custom, and the market. 

JORDAN J. PAUST, University of Houston Law Center
Email: jpaust@central.uh.edu
The evident split in Kiobel has, in the words of Justice Kennedy, left open a number of significant questions regarding proper elaboration and explanation of the extraterritorial reach of the Alien Tort Statute. Among these are whether a presumption against extraterritoriality should apply and, if it is used, whether inconsistent and ambiguous criteria are preferable in deciding when it is displaced. Extraterritoriality of some sort has been affirmed, but there is an evident lack of consensus on rationales, doctrines, and criteria.

For this reason, its is important to reconsider what the full set of early cases and opinions of Attorneys General add for proper decisionmaking regarding the statute’s evident reach; what is compelled by adequate awareness of the nature of the law that is expressly incorporated by reference and its jurisdictional attributes and substantive grasp; how congressional endorsement of the Filartiga line of cases should displace a judicially-created presumption as well as supposed “foreign relations” concerns and provide needed guidance; how the Charming Betsy rule supplements the need to interpret the statute consistently with universal jurisdiction and responsibility as well as human rights of access to courts and to an effective remedy under international law; and how the rationale in the Bowman exception to a presumption of non-extraterritoriality supports that requirement. This article provides a basis for such an inquiry. Part III identifies evident misconceptions in some of the opinions and is organized into eight areas.

"War for the Wrong Reasons: Lessons from Law" 
11 Journal of Moral Philosophy 454 (2014)
GABRIELLA BLUM, Harvard Law School
Email: gblum@law.harvard.edu
Harvard Law School
Email: jgoldberg@law.harvard.edu
In Ethics for Enemies, Frances Kamm argues that, under certain conditions, it is morally permissible for a state to launch a war for opportunistic reasons. We consider how law might shed light on Kamm’s argument. Part I addresses the application of criminal and tort law to individual acts of violence analogous to the acts of war analyzed by Kamm. It primarily argues that these bodies of law rely on a framework for determining legal permissibility that runs counter to, and perhaps demonstrates weaknesses in, Kamm’s framework for assessing moral permissibility. Part II considers the law of war. It maintains that, although modern law permits certain opportunistic acts of war, the law does so on terms that cut against Kamm’s claim as to their moral permissibility.


We suggest two interesting articles from the new issue of Legal History eJournal

"Historicism and Materiality in Legal Theory" 
Forthcoming in Maksimilian Del Mar and Michael Lobban, editors, Law, Theory and History: New Essays on a Neglected Dialogue (Oxford: Hart Publishing)
CHRISTOPHER TOMLINS, University of California, Berkeley - Jurisprudence and Social Policy Program
Email: ctomlins@law.berkeley.edu

Current interest in a rapprochement between legal theory and legal history rests on a transformation of legal theory into a species of historicism, a mode of inquiry that emphasizes the tempero-spatial locatedness of its objects of attention, and examines the multiplicity of relations existing between object and context. Contemporary paradigms in historicism further contend that whatever the context in relationship to which the object of inquiry is situated, the outcome is indeterminacy – the irreducible contingency of alternative possibilities, paths taken and not taken. Given the stranglehold that historicism has achieved in legal history, it is not surprising that its core contentions should be the drivers of revisionism in legal theory. However, alternatives should be considered. This paper undertakes a critique of historicism, and examines a rival philosophy of history that I will call “materiality.” A less developed, more eclectic, standpoint, materiality stresses the impact upon the formation of law of technologies, artifacts, and material practices. Rather than collapse law into its context, it seeks to examine the fabrication of law’s differentiation. Its potential is exemplified in work as varied as Cornelia Vismann’s Files: Law and Media Technology (2000; trans. 2008) and Bruno Latour’s The Making of Law (2002; trans. 2010). My main emphasis, however, will be on the species of historical materialism developed in the work of Walter Benjamin (1892-1940), where one finds both an intense stress on the materiality of an object of attention, and an understanding of historical perspective to entail much more than the derivation of the object’s meaning from the circumstances in which it is located. If history promises to enliven our understanding of an object, we must recognize the object is not enlivened by the relationalities of its time, within which it allegedly belongs, but by the fold of time that creates it in constellation with the present, the moment of its recognition.

MARY L. DUDZIAK, Emory University School of Law, Center for Advanced Study in the Behavioral Sciences
Email: mary.l.dudziak@emory.edu
With their focus on the future of national security law, the essays in this issue share a common premise: that the future matters to legal policy, and that law must take the future into account. But what is this future? And what conception of the future do national security lawyers have in mind? The future is, in an absolute sense, unknowable. Absent a time machine, we cannot directly experience it. Yet human action is premised on ideas about the future, political scientist Harold Lasswell wrote in his classic work The Garrison State. The ideas about the future that guide social scientific work are rational predictions, he suggested.

If law is premised on ideas about something unknowable, something that can, at best, be a prediction, then it seems important to examine what those ideas, assumptions and predictions are. This essay examines future-thinking in prominent works related to national security, including the ideas that the future is peacetime, a long war, a "next attack," and the future as a postwar. Drawing from scholarship on historical memory and conceptions of temporality, this essay argues that understandings of the future depend on more than the rational empirical predictions that Lasswell had in mind. The future is a cultural construct that depends in part on the way we remember the past. It does not exist apart from the politics and values that inform our perceptions. The future does not unfold on its own. We produce our future through both our acts and our imaginations. Culture matters deeply in this context, for the future we imagine is a well-spring of law.

16 September 2014

CLEA ANNOUNCEMENTS: CLEA Call for Conference Papers 2015 and Essay Competition 2014

Essay Competition

This year will see the launch of our 5th Essay Competition. The competition is open to all students registered on an undergraduate law degree course within a Higher Education Institution in a Commonwealth Nations (see website<http://www.clea-web.com/essay-competition/> for the full competition rules).  The competition closes on 31 October 2014.

The title for this year is:

"Can the Commonwealth (Latimer House) Principles on Three Branches of Government 2003 serve as an effective framework for safeguarding democracy and the rule of law in Commonwealth Countries?"

£1000 of cash prizes will be awarded to the winners of first, second and third places as follows: 1st Prize: £500  2nd Prize: £300 3rd Prize £200.  The winning entry will also be published in the Newsletter of the Commonwealth Legal Education and may also be published in the journal of Commonwealth Law and Legal Education. Further details are available from: the Essay Co-ordinators: clea.essaycompetition@gmail.com<mailto:clea.essaycompetition@gmail.com>.

2015 Biennial Conference in Glasgow

CLEA are pleased to announce that their 2015 conference<http://www.clea-web.com/events-conferences/glasgow-2015/> will take place in Glasgow, Scotland in April 2015.  The conference will run from Thursday 9th until Friday 10th April 2015 at Glasgow Caledonian University.  Preceding the conference, there will be a seminar on interactive teaching methods, organised by David McQuoid-Mason, the President of CLEA.  After the conference, there will be an optional organised tour arranged for Saturday 11th April to visit some of Scotland's landmarks. The Commonwealth Moot will then take place from Sunday 12th until Wednesday 15th April.  Please contact Michael Bromby<mailto:m.bromby@gcu.ac.uk> for any conference enquiries.

Call for Papers

The conference theme is "Transnational Legal Education: Commonwealth Perspectives" and the call for papers<http://www.clea-web.com/events-conferences/glasgow-2015/2015-call/> sets out the thematic areas and instructions for submitting an abstract.  The current deadline is 28 November 2014, with a further and final call for papers in early 2015.

Keynote Speakers

A keynote speech will be delivered by Prof. Justice Date-Bah<http://www.clea-web.com/events-conferences/glasgow-2015/keynote-date-bah/>, who is the Chairman of the University of Ghana Council. He was also a Justice of the Supreme Court of the Gambia from 2008-2013. He is currently the Chairman, Ghana Law Reform Commission and Chairman, Council of the University of Ghana, Legon.

Prof. Justice Date-Bah has held academic positions at the University of Ghana, University of Nairobi, University of Calabar as well as visiting positions at Lincoln College, Oxford University, Yale Law School and at the University of Fribourg, Switzerland.

Seminar on Interactive Teaching Methods
A 1-day pre-conference seminar<http://www.clea-web.com/events-conferences/glasgow-2015/teaching-workshop/> will take place on Wednesday 8th April 2014, led by David McQuoid-Mason, University of KwaZulu-Natal; Patricia McKellar, University of London; and Lindi Coetzee, Nelson Mandela Metropolitan University.

2015 Moot
The fourteenth Commonwealth Moot<http://www.clea-web.com/events-conferences/glasgow-2015/2015-moot/> will be held in conjunction with the 19th Commonwealth Law Conference also being held in Glasgow.

The Commonwealth Moot is an initiative of the Commonwealth Legal Education Association (CLEA) and the Commonwealth Lawyers Association (CLA). It is an 'invitation-only' Moot, being limited to representative teams from regions of the Commonwealth only. The regions, for the this purpose, are; North America, United Kingdom, the Caribbean, South Asia (India), South Asia (Bangladesh, Pakistan, and Sri Lanka), South East Asia, Western Africa , Eastern Africa, Southern Africa, Australasia (Australia and New Zealand send separate teams), and the South Pacific.

15 September 2014


A new article from Legal History eJournal (click here to browse all abstracts of the Journal)

"Civil Law"
Centre for the Study of European Contract Law Working Paper Series No. 2014-06
Amsterdam Law School Research Paper No. 2014-43
MARTIJN W. HESSELINK, University of Amsterdam - Centre for the Study of European Contract Law (CSECL)
Email: m.w.hesselink@uva.nl
The concept of civil law has two distinct meanings. First, civil law may refer to the branch of the law that deals with civil disputes, ie disputes between private parties (individuals, corporations), as opposed to other branches of the law, such as administrative law or criminal law, which relate to disputes between individuals and the state. Secondly, the term civil law is often employed to indicate a legal "tradition" or a "family" of legal systems, this time in contrast with other legal traditions or families, in particular the common law. This is the sense in which we say, for example, that France and Germany are civil law countries while the United States and Australia are common law countries. This forthcoming contribution to The Encyclopedia of Political Thought (M. Gibbons ed.) is concerned exclusively with the civil law in the latter sense.

The entry concludes that the number of contexts in which the concept of "civil law" today can be employed unproblematically, ie without running the risk of reductionism, anachronism, oversimplification or indeed caricature, seems rather limited. The similarities, differences and interconnections between the various jurisdictions in the world seem almost invariably to be far too complex to be capable of being usefully captured in the general concept of "the civil law" and its contrast with "the common law". In any case, the concept and its use is hardly ever neutral. Therefore, at best it can provide a convenient starting point for further critical analysis and discussion.

SSRN ARTICLE:Towards a Comparative and Localized Study of Brazilian Law and Literature

A new article from: Philosophy of Law eJournal

Click here to browse all articles of the Journal

"Towards a Comparative and Localized Study of Brazilian Law and Literature" (Free Download)
Direito e Literatura na Virada do Milênio/Law and Literature at the Turn of the Millennium. Ed. Sonja Arnold and Michael Korfmann. Porto Alegre: Editora Dublinense, 2014. 15-38.
GRETA OLSON, Justus-Liebig-University Giessen
Email: Greta.Olson@anglistik.uni-giessen.de
I am grateful to the editors of this volume for allowing me to contribute in the atypical form of a comment on the subject of the volume rather than with a scholarly essay. Composing an essay that might have made manifest in print what the title of my talk at the conference Literatura e Direito na virada do milênio/Law and Literature at the Turn of the Millennium had promised turned out to be an impossibility. In entitling my talk “Law and Literature in the United States, the United Kingdom, Germany (and Brazil): Comparing Legal Systems, Literatures, and Cultural Preoccupations,” I discovered that I had promised too much. As an expatriate US American living in Germany and teaching British and American studies, I could not match the knowing I have of German, British, and American legal systems, literatures,and social issues with enough information about Brazil in a short time and without facility in Brazilian Portuguese. Thus the following has the character of a programmatic sketch rather than an analytic description.