1. Art and Diseño

UPDATED LIST OF PANELS
Friday, March 06, 2015
8:30-10:15 Intellectual Property and Visual/Digital Culture
First Name
Last Name
Company
Email
Title of Proposal
Proposal Text
Amy
Adler
New York University School of Law
[email protected]
The Meaning of "Transformative" and the
Transformation of Meaning
This paper explores recent high-profile clashes between contemporary art and copyright law to argue that the
“transformative” test in copyright should be abandoned. Not only does the test require courts to ascribe
“meaning” to art when the goal of contemporary art is to destabilize meaning, but even if we assumed “meaning”
could be conclusively determined, the pivotal question of how to ascertain meaning remains remarkably
untheorized by courts. Without any theory of interpretation, courts have struggled to find the locus of meaning:
some depend on the artist’s statement of intent, some depend on aesthetics or formal comparison, and some
depend on the viewpoint of the “reasonable viewer.” The mere choice of approach is potentially outcome
determinative in a way that courts have failed to recognize. The deeper problem as I show is that each
interpretive approach rests on premises that contemporary art rejects.
The Intelligibility of Images in U.S. Patent Visual culture poses a challenge to our mostly language- and text-based legal practices. A few areas of law,
Law
however, have confronted relatively directly the relation between linguistic and non-linguistic significance. This
paper considers the divergent approaches U.S. courts have taken to this relation in disputes involving utility
patents and design patents. The two types of patents are governed by similarly worded statutory provisions, as
interpreted by a single appellate court—but that court has directed other courts to prioritize linguistic and nonlinguistic expressions of a claimed innovation in different ways for the two types of patents. My paper contrasts
the doctrine governing the treatment of patent drawings in analyzing utility patent claims with that governing the
treatment of verbal descriptions of claim scope in analyzing design patent claims. The contrast suggests new
perspectives on existing proposals for altering legal training and communication conventions to account for an
increasingly nonverbal vernacular.
Prince v. Cariou: Towards a Jurisprudence This paper explores the implications of Cariou v. Prince and evaluates the case’s values and limitations in
of the Digital Age
pointing the way towards a jurisprudence aligned with contemporary artistic practice and the strategies of the
digital age. In 2009, photographer Patrick Cariou sued appropriation artist Richard Prince for copyright
infringement. In 2013, the Second Circuit sided largely with Prince, holding that 25 of 30 works in question were
“transformative” and therefore fair use. In my paper, I take issue with the assertion by some commentators that
the decision expanded transformative use to gives one artist permission to use another artist’s work “merely for
convenience.” Rather, I argue, the decision enacts a definition of fair use adapted to artistic practice in the digital
age in which artists employ what Conceptual poet Kenneth Goldsmith calls “intentionally self and ego effacing
tactics using uncreativity, unoriginality, illegibility, appropriation, plagiarism, fraud, theft, and falsification.”
Contract as Form and Concept: The
This paper explores the implications of Cariou v. Prince and evaluates the case’s values and limitations in
Siegelaub-Projansky Agreement in Art and pointing the way towards a jurisprudence aligned with contemporary artistic practice and the strategies of the
Law
digital age. In 2009, photographer Patrick Cariou sued appropriation artist Richard Prince for copyright
infringement. In 2013, the Second Circuit sided largely with Prince, holding that 25 of 30 works in question were
“transformative” and therefore fair use. In my paper, I take issue with the assertion by some commentators that
the decision expanded transformative use to gives one artist permission to use another artist’s work “merely for
convenience.” Rather, I argue, the decision enacts a definition of fair use adapted to artistic practice in the digital
age in which artists employ what Conceptual poet Kenneth Goldsmith calls “intentionally self and ego effacing
tactics using uncreativity, unoriginality, illegibility, appropriation, plagiarism, fraud, theft, and falsification.”
Chair/Discussant
Karen
Petroski
St. Louis Univ. School of Law
[email protected]
Alexandra
Perloff-Giles
Yale Law School
[email protected]
Lauren
van Haaften-Schick
Cornell University
[email protected]
Madhavi
Sunder
Steven
Winter
Wayne State Univ. Law School
[email protected]
Why Truth Is Stranger than Fiction
Under the Talmudic principle of “migo,” a claimant with an improbable story is nevertheless believed when she
could have told a more credible false one. The constructedness of perception and knowledge escapes our
attention as we proceed in a common cultural world where truth and reality seem transparent and self-evident.
Typically, the artifactual quality of “reality” becomes salient only when faced with conflict or failure. But
colloquialisms like “truth is stranger than fiction” and “you can’t make stuff like that up” testify to a residual
awareness of the world as recalcitrant to our constructions. We hold onto them nonetheless because they allay
our fears of chaos and mortality. But this comfort is an illusion that conceals and ensbles forms of authority and
oppression that often elude our moral comprehension and condemnation. This is particularly true in law where,
with the right framing, a legal proposition can say many different things.
Ralph
Grunewald
University of Wisconsin-Madison
[email protected]
“The court is attracted by the guilt”:
Representations of Literal and Literary
Innocence
In the light of the exoneration of hundreds of wrongfully convicted defendants in the United States our trust in the
law’s ability to distinguish the guilty from the innocent was shattered. Their factual guilt was as much legal fiction
as the guilt of fictitious characters like Tom Robinson or Joseph K. The law’s claim to a “formal existence” (Fish)
and its legitimizing power (Luhmannn) result in simplifications that James Boyd White calls the “trivializ[ation of]
the human experience”. In my paper I will contrast how differently law and literature approach guilt, innocence
and the human condition. I will argue that law’s normative framework limits the way the human experience is
recognized and that literature provides a pathway to a more comprehensive understanding of guilt. Texts I will
use are actual court cases and fiction from writers like Harper Lee, Ferdinand von Schirach, Ariel Dorfman, or
Bernhard Schlink.
Truth, Fiction, Law
Page 1 of 111
Joseph
D'Agostino
Savannah Law School
[email protected]
Law as the Premiere Anti-Science
For three centuries most legal theorists and jurists have believed that the scientific basis for and content of law
have been increasing. I argue that, instead, law both in theory and in practice is as dependent as ever on
questionable metaphysical assumptions, power politics, and human biases, and further that the latest
philosophies of science and epistemology definitively exclude law from the realm of science. Law is the premiere
anti-science because of its pretentions to scientific classification and its inherently coercive aspects. In contrast,
religion and metaphysics use science as law does, but also candidly acknowledge that their claims are at base
non-scientific and they, like science, do not necessarily involve a coercive dimension. If law is to have a firm
grounding, including the justification for the coercion of some people by others, it must be based on non-scientific
theories, and such theories are in fact available.
Julia
Simon-Kerr
The University of Connecticut School of
Law
[email protected]
Against Credibility Proxies
Anne
Dailey
Our legal system hinges on evaluations of credibility. Whom do we expect to tell the truth? When will they tell it?
And how do we know they are telling it? The need to judge credibility is both inevitable and central in a system
that seeks accurate and therefore legitimate outcomes. Yet, as legal scholars have increasingly argued, the
common law and codified rules of evidence focused on witness credibility bear little resemblance to an effective
system for ascertaining who is and is not lying. While there is a growing understanding that gender, race and
class create distortions in the way the legal system answers the questions posed above, this Article seeks to
address one of the main root causes of those distortions: the use of credibility proxies. From its inception, the
American legal system has relied on a series of proxies to evaluate credibility. Some of those proxies appear
tenuously related to truthfulness: evidence of bankruptcy, prostitution, and petty theft have all served as
admissible evidence that a witness should not be believed. Others, such as the per se admissibility of evidence
that a witness has committed a crime involving a dishonest act or false statement, seem better-tailored to the
task of assessing credibility. Still others, including the widely sweeping provision in the Federal Rules of
Evidence that the commission of a crime punishable by death or imprisonment of more than one year is
admissible evidence on the question of veracity, are difficult to assess because their impact may be felt largely at
Charlton
Copeland
University of Miami Law School
[email protected]
Stacey
Blanche
Floyd-Thomas
Cook
Vanderbilt University
Wayne State University School of Law
[email protected]
[email protected]
Chair/Discussant
Theorizing the Enduring Nature of Racial
Cultural Politics
Cook & Floyd-Thomas
A Tree Meant for Healing: Lynching, Racial No act equals lynching as a metaphor for racial supremacy against black people. Ravi Howard’s,” Like Trees
Spectacle, Federalism and the Promise of Walking,” is a fictionalized account of the lynching of a young black man in Mobile, Alabama in 1981. The
the "New" South
specter of black bodies hanging from trees in the southern United States was part of the “logic” of race relations
during the Jim Crow era. Is a lynching in 1981is an extraordinary example of racial subordination that
momentarily disrupts the egalitarian order? Or is it evidence that the halting progress of the post-Civil Rights
south is the momentary disruption in America’s “normal” experience of race relations? This essay explores law
and culture’s confrontation with racialized incidents within these competing frameworks. This essay explores the
ways such frameworks impact both the deployment of state power, including competition between national and
state authority, in response to racial violence, and the practice of law in racialized spaces.
The Metanarrative of Rape and the
American identity is obsessed with sovereignty. Sovereignty is defined by legal systems, on the one hand,and
Indiscriminate Amalgamation of the
theological justifications on the other. It confers citizenship on bodies, which by virtue of whiteness and maleness
Races: A Dialogue Between Critical Race are guaranteed inalienable rights to life, liberty, and the pursuit of justice, as well as the power and authority to
Feminism and Womanist Ethics
defy anything that threatens it normative Eurocentric, hypermasculine gaze. This sovereignty is performed in
public places wherein authority and power are both raced and gendered.
Using a Critical Race Feminist and Womanist Ethics toolkit, this joint presentation unpacks, debunks, and
demystifies two cases, which are central to the conception of American sovereignty: Dred Scott v. Sanford and
United States v. Amy. This tool kit includes the following lexicon: Rachel D. Godsil’s “implicit bias”; Erik Erickson’s
“pseudospeciation”; Edward Said’s “Orientalism”; Antonio Gramsci’s “hegemony”; Paolo Freire “cognitive
dissonance/conscienzation”; Cornell West’s “normative gaze”; Derrick Bell’s “Principle of Involuntary Sacrifice”
and “racial realism”; Charles S. Maier’s “political economy”; Catherine McKinnon’s’ “hypermasculinity”; Michelle
Alexander’s the “New Jim Crow”; Cheryl Harris’s “whiteness as property”; Angela Harris’s “sexual violence” and
“identity performance”; Stacey Floyd Thomas’s “womanist epistemology”; Renita Weem’s “womanist
hermeneutics”; and Beverly Wildung Harrison’s “Dance of Redemption.”
Leila
Brannstrom
Vinay
Harpalani
Courtney
Marshall
University of Lund
[email protected]
Race and Ethnicity in Swedish AntiDiscrimination Law
From Roach Powder to Radical
Humanism: Understanding Professor
Derrick Bell’s “Critical” Constitutional
Pedagogy
Chair/Discussant
The Power and Prerogatives of the Sovereign
in 16th and 17th Century England and
Scotland
Page 2 of 111
Using these analytical tools, we will demonstrate how both law and theology collude to create structural locations
whose sole purpose is to ensure that Black women remain vulnerable to both labor and sexual exploitation. We
construct a metanarrative of black female exploitation and posit an epistemology that liberates black female
subordination from ideological formulations, cultural codes, and languages of existence that support and protect
white sovereignty, supremacy, and heteropatriarchy. In doing so, we assert a new knowledge production,
epistemology, ontology, framework, and analytical tool kit to reclaim, reconstruct, and restore the black female
subjectfrom the dominant gaze.
Already in 1997 the Swedish government suggested that the country is ’heading towards a new type of class
society in which ethnic background is becoming increasingly significant’. In 2014 awareness is growing that being
poor, living in rundown neighborhoods, and lacking gainful employment, strongly correlates to originating from
outside the West, which around ten percent of Swedes do. It is against this background that the widely publicized
riots took place in the suburbs of Stockholm and the Sweden Democrats have become the third largest
parliamentary party in the 2014 elections. By examining which acts and omissions are conceived as un/related to
race/ethnicity in the anti-discrimination jurisprudence of Swedish courts, this paper offers a suggestion as to how
Sweden has been able to maintain strong commitments against ethnic and racial discrimination while at the
same time displaying one of the most disturbing patterns of inequality along racial/ethnic lines in the EU.
Anne
Sappington
School of History and Humanities, Trinity [email protected]
College Dublin
The Law, the Sovereign, and the
Sacrificial Daughter in Sixteenth-Century
Britain
Sarah
Higinbotham
Georgia Institute of Technology
[email protected]
Roger
Fisher
York University
[email protected]
Claire
Landis
Oxford University
[email protected]
Roger
Fisher
Ajay
Mehrotra
Indiana University Maurer School of Law [email protected]
Darren
Rosenblum
Pace Law School
[email protected]
Stefanie
Mueller
University of California Irvine
[email protected]
Benjamin
McDaniel
University of Minnesota
[email protected]
Karen
Rhone
In sixteenth-century England and Scotland, two very different writers, both dealing with questions of political and
legal authority explored narratives of sacrificial daughters in drama. George Buchanan, the eventual tutor of
James VI, wrote a Latin tragedy based on the Biblical story of Jephthah, and Edmund Plowden, the Tudor
recusant lawyer and scholar, drew extensively on Erasmus’s Latin translation of Euripides’ Iphigenia at Aulis in
his defence of Mary Stewart’s right to succeed to the English throne. In this paper, I consider what about these
remarkably similar narratives drew the attention of such very different political theorists, arguing that each writer
projected his own opinion about the authority of law and the community, and kingly conduct, onto the characters
in order to make sense of this horrific trope.
A Traitorous Imagination: Elizabeth and
Elizabeth I ruled during what historians call the “bloodiest period of English law”; more people were hanged
Symbols of the Law's Violence
during her reign than in subsequent century. When Elizabeth became queen in 1559, over a thousand horsemen
led her through the streets of London during her coronation passage: pageantry, speeches, sermons, elaborate
costumes, and iconographic regalia reinforced her monarchial virtues, especially her power to punish. The Lord
Deputy of Ireland made a disparaging remark about one of the symbols and was convicted of having a “traitorous
imagination.” He was sentenced to death. The coronation spectacle and related case illustrate what’s at stake
when the law’s violence is challenged, and raise the same questions we ask today about racially targeted police
brutality, torture, and mass incarceration -- questions that Austin Sarat reminds us “ought to be the perennial
questions of legal theory.”
A Taciturn Silence: the Historical Origins of At Thomas More’s treason trial in 1535, the prosecutor argued that More’s silence on King Henry VIII’s oath of
Thomas More’s “Right to Silence”
succession was admissible and sufficient evidence of his guilt. Thomas More famously replied that “he who holds
his peace seems to give his consent.” While More’s argument might seem to be “more clever than convincing,”
this paper will argue that he was not asserting a natural law right to silence or advocating an early version of the
modern right to silence from which no incriminating inference can be drawn. In contrast to other martyrs of
injustice, in history and in literature, who choose utter silence as a way to condemn the law, More’s nuanced
principle of tacit assent was a lawyerly argument that combined an ordinary principle of the Roman civil law with
Anglo-Saxon and Anglo-Norman ideas about kingship.
"Lest He May, Prevent": Neo-Roman
According to revisionist historians, republicanism was ‘unthinkable’ in England prior to the 1640s. Such positions
Liberty in Julius Caesar
carry implications for literary interpretation: an emerging consensus holds that any emphasis upon the structures
of government is unavailable in Shakespeare. Undeterred, Andrew Hadfield has recently argued that
Shakespeare was a republican poet. However, neither side of this debate has considered sources that would
readjust the chronology of ‘neo- Roman’ influence to begin in last quarter of the sixteenth century. This current of
thought permitted prerogative powers to be subjected to a distinctly republican logic without embracing a fullblown republican programme. Julius Caesar employs such arguments to deliver a highly nuanced critique of the
royal prerogative, thought to be expanding during Shakespeare’s lifetime. However, the drama also peels back
the veneer of rationality at times to question the relationship between political idealism and violence.
Chair
Regulating Economic Life: Narratives of Tax of
Corporate Law
The VAT Laggards: A Comparative
Cultural History of U.S. and Japanese
Resistance to the Value-added Tax
Page 3 of 111
This paper seeks to explore Japan’s historical resistance and the United States’ continued rejection of the VAT. It
attempts to place the Japanese and American experience into a broader historical and cultural context by, first,
examining the “three waves” of post-World War II VAT adoption across the globe. The paper, then, investigates
several “critical junctures” in the twentieth century fiscal development of these two nations, when national
consumption taxes were considered but rejected by policymakers and legislators. The paper’s principal aim is to
use the fiscal histories of these two dominant twentieth century industrial powers to understand how and why
Japan was able to overcome its long standing historical resistance to a national consumption tax, and why the
United States has continued to resist this global trend. By contrasting the Japanese and American experiences,
this paper seeks to identify the key social, political, and cultural conditions under which fundamental tax reform is
possible.
Sexed Reproduction of Corporate Elites
As several wealthier nations endeavor increase women’s representation in corporate elites, including through
corporate board quotas (“CBQ”s), some proponents expect corporate elites to change, thinking that if women
ruled the world, corporations might take a benevolent turn. However, corporate elites, largely male, reproduce
themselves through highly networked systems. This paper explores how this sexed corporate elite reproduction
(“CER”) will change as women increasingly populate these elite positions. Corporate board quotas render sex
binaries a de rigeur feature of European legal regimes, demanding an analysis of whether quotas shift gender
performativity in CER both toward and possibly even away from binarist performances. This paper will draw
examples of gender performance in the board context from an empirical study that I conducted on the French
CBQ. Through disaggregating bodies from roles and the multiple and conflicting meanings of “women” in the
construction of a female corporate elite, this paper will argue that women’s inclusion may simply reify CER,
although in certain relatively minor respects, it may interrupt CER.
Charity Incorporated in Herman Melville’s At the beginning of the nineteenth century corporations were commonly associated with public purposes and with
The Confidence Man
“feudal privilege”, because of the special privileges that the corporations received through their charter. When
incorporation became available for everyone, it became a tool for private enterprise, yet at the same time kept
some of its association with the common good, in particular with philanthropy. I argue that The Confidence Man
mocks the then-recent vogue of incorporation and the semblance of equality that it projects. It explores many of
the contradictions that followed from this gradual transition from public utility to private benefit and from the
emergence of a new agent in the market who is also a new “citizen”. Finally, legal fictions such as corporate
personality also provide a key to Melville’s aesthetics and the theme of masquerading. It challenges the notion of
the survival of universal values in a secular market society.
At Odds With Progress: Minnesota
The State of Minnesota has one of the most complex and contradictory property tax systems in the United
Property Tax Policy, the Twin Cities and
States. In the Twin Cities, specifically, it functions to facilitate classical economic competition between cities for
the Great Recession (2003-2012)
tax revenue, and then binds them into an economic block that stabilizes economic inequalities between cities and
taxpayers through revenue sharing, state government aids and the more uniform creation and maintenance of
public infrastructure. Nicknamed the "Minnesota Miracle" by Time Magazine in 1971, this "progressive" property
tax system was supposed to withstand the complexity of urban economics and the unpredictable intra-regional
migration of people and businesses from the 1970s onward. Nearly forty years and a major recession later, some
scholars have found that it has been very effective at dealing with some types of financial inequality between
cities and taxpayers, but I argue it has also come at the cost of the formal economic planning necessary to
address a problem with effective demand that now threatens the stability of the tax system. This paper draws
heavily from classical and modern economic theory, although it is not theoretical itself, along with government
financial and archival data to provide a frame through which we might understand the political economy of the
unique tax system in the Twin Cities, and the implications for the feasibility of stablizing legislation in increasingly
volatile economic times.
Chair/Discussant
Law's Role in Constructing Collective Memory
Marc
Poirier
Seton Hall Law School
[email protected]
Things, Places, Neighborhoods: Placing
the Official Memory of LGBTQ Identity
Peter
Leman
Brigham Young University
[email protected]
Laura
Ricciardi
SUNY-Purchase College
[email protected]
Pok Yin
Chow
City University of Hong Kong
[email protected]
Paul Schiff
Sex and Gender in Legal, Feminist, and SocioHistorical Perspective
CHAIR
Jill
Berman
Hasday
A year-long “theme study,” announced by the National Park Service in June, 2014, will identify places related to
LGBT history worthy of inclusion as National Historic Landmark or for listing on the National Register of Historic
Places. Currently, there is one National Historic Landmark, the Stonewall Inn (1999); and four listings, the earliest
from October, 2011.
Several critiques. Often, LGBTQ-identified places were concealed from outsiders and were moveable. Artifacts
are easier to identify. Hence, archives and museums, not monuments. Apparently, the theme study will not
memorialize places related to the lives of personages closeted during their lifetimes. This policy reproduces the
mechanics of the closet in official history. Finally, communities remember themselves through cemeteries. Where
is the gay (or lesbian) cemetery?
African Oral Culture, Post-Conflict
Julie Stone Peters has recently argued that our predilection for post-conflict tribunals in the last several decades
Memoirs, and the Crisis of International
can be traced back to 18th century Western practices of witnessing and testimony. However, because so many of
Law
these tribunals have taken place in Africa, I argue that an alternate history can be found in African oral cultures
that have long used testimony, witnessing, and storytelling in resolving legal disputes. Beyond identifying this
history, however, I argue that literary texts structured by forms of African orality (and, therefore, African law) may
contribute to conversations about international law and human rights. As a case study, I examine the
novel/memoir What is the What and the ways in which its formal adaptations of African orature enable forms of
thought that imaginatively resolve legal crisis by posing new avenues for making meaning and achieving justice
within the international community.
Legislating Memory: Accommodating
A monument is a physical, visual representation of the past. It is a manifestation of a nation’s history, a
Contestations of Public Monuments
representation of presumed public memory. What happens when collective memory is elusive? When
constructing a new monument, who decides what a given moment in time means? Is it possible to manage
multiple meanings? What are the rules for confronting existing monuments and renegotiating their meaning in
the public space? Who and what are monuments for?
This paper will argue that the legal and policy frameworks for constructing and maintaining public monuments
must be understood in light of the role monuments play in the formation and renegotiation of public memory.
Rather than operating under the false assumption that the meaning of a past moment can be controlled for
posterity, monuments should be built in a way that calls attention to their need to be read and encourages
contestation.
Memory and International Law: In Search No truths can be more real than our memory. Collective memories of societies are powerful cultural narratives,
of a Right to Memory
lived, signified and enacted by individuals of the community. Through the process of interpretation, memories
shape identity by generating a common bondage between members of society, as it provides a guide towards
how we make sense of common historical events.
Cultural symbols play an important role in reconciliation and conflict-resolution by determining how historical
events should be remembered. But cultural narratives and public discourses are deeply contested, and so is the
way which narratives are remembered. This, on the other hand, reflects just how fragile and fluid our memory is.
This paper examines the role of international human rights law in protecting collective memories and attempts to
answer questions such as whether law can protect something as vague as ‘memory’. It is based partly on an
article the author published on Human Rights Law Review entitled Culture as Collective Memories: An Emerging
Concept in International Law and Discourse on Cultural Rights
Chair
University of Minnesota Law School
[email protected]
Sex and Gender in Legal, Feminist, and
Socio-Historical Perspective
Assisted Suicide and Constructs of The
Body
Naomi
Shari
Robin
Mezey
Motro
West
Diana
Young
Carleton University Department of Law
[email protected]
Heather
Conway
Queen's University Belfast
[email protected]
This panel explores how the law interacts with and regulates social practices central to sex and gender in the
United States. Jill Hasday’s work examines how the law has regulated deception within intimate relationships
and demonstrates how legal authorities have used this body of law as a powerful platform for expressing and
enacting their views on the nature and significance of gender, class, race, and other divides. Shari Motro’s work
considers what role the law should play in university policies designed to prevent and penalize rape and to help
students find their way to more mutually satisfying, mindful relationships. Robin West’s work argues that both
sides of the debate over whether the law should protect the use of contraception have persistently treated
women’s desires for sex or pregnancy as irrelevant, and have overlooked or underemphasized the harms that
unwanted sex and/or unwanted pregnancy can inflict on women.
Assisted Suicide and Death Rituals
Page 4 of 111
The case of R. v. Carter, currently before the Canadian Supreme Court, concerns the right to die and a challenge
to the provision of the Canadian Criminal Code prohibiting assisted suicide. The debate on this issue has been
reinvigorated in Canada following legalization of assisted suicide in a number of other jurisdictions.
In this paper I consider how the body is constructed through discourses concerning assisted suicide generated
by the courts, legislatures, media, and advocacy groups – in particular, the body’s relationship to our
understandings of the distinctions between the public and private. For example, in what ways do the debates
concerning assisted suicide evince a concept of the body as property, and how does this implicate the conceptual
distinction between the subject and the body? What do the public rituals and procedures that accompany
assisted suicide say about the body and conceptions of autonomy that underlie the right to die?
“Death Rites and Cultural Values: Conflicts One of the greatest challenges facing modern Western legal systems is cultural diversity, and conflicts between
of Law and Custom?”
deep-seated ethnic traditions and national laws. ‘Burial’ of the dead is an obvious (though frequently overlooked)
example. Culturally prescribed burial rituals are a vital part of the traditions in which the deceased was raised and
ensure important social interactions within ethnic groups, yet can fall foul of state laws governing burial in
ethnically composite societies. This paper addresses some of the central questions. How are specific death
rituals reflective of the values and rule systems of particular groups? What tensions exist between cultural
traditions and state burial laws? How are diverse burial customs accommodated within the dominant legal order?
How do human rights discourses intersect with cultural traditions, and can we reconcile fundamental freedoms
such as thought, conscience, religion, expression, and family life where these are at variance with national laws
on burial?
Chris
Geyer
Cazenovia College
[email protected]
Antigone in the 21st Century
The case of Antigone is a staple of law and literature discussions. The current case of Brittany Maynard brings
new life to this ancient claim of the right to determine one's final destiny. This paper examines Ms. Maynard's
claim in relation to earlier claims, such as that of former Washington State governor Booth Gardener, and
compares them to the case of Antigone to explore current legal and humanistic dimensions of the right-to-die and
assisted suicide movement.
Legal Fictions, Inviolability of Persons and This presentation examines how case law employs the concept of inviolability of persons to rationalise legal
the Governance of Assisted Dying
decisions on assisted death. When one ventures beyond judicial ratios, focusing instead on cases as discourses
in relation to wider power-knowledge relations, one glimpses how law helps shape and support a political
rationality of neoliberalism in explicit and subtle ways. The concept of inviolability of persons is used to feed two
legal fictions (immune persons and an immune society), which reflect the individualizing, privatizing and divisive
ethos of a neoliberal rationality. In turn, appeals to death and the legal discussions around them present a
paradox: the law draws on concepts to feed fictions that reflect a neoliberal ethos that presents appellants as the
right kind of subject for death (i.e., they are abject enough because they threaten the stated legal fictions);
however, the law and the concepts and fictions it creates also makes the act of killing these subjects impossible
within the universalizing logic of immune persons and an immune society that ensures subjects are divided from
one another, ‘protected’ from any outside interference.
Chair
Jennifer
Hardes
University of Alberta
[email protected]
Karl
Shoemaker
Luis
Plascencia
Arizona State University
[email protected]
Where is the Border?: The Fourth
Amendment and the Production of a
Mexican Zone of Surveillance
Sheila
Moreira
Rutgers University -- Newark
[email protected]
Domestic Violence, Undocumented
Victims, and Rights Denied: Current
Practices in Granting U Visas
Borders, citizenship and Rights
Ana
Henderson
UC Berkeley, Jurisprudence and Social
Policy
[email protected]
Abigail
Stepnitz
UC Berkeley, PhD Student,
Jurisprudence & Social Policy
[email protected]
Judy
Failer
Jessie
Allen
Assistant Professor, University of
Pittsburgh School of Law
[email protected]
Kathryn
Jessie
David
Peter
Sara
Temple
Allen
Fisher
Robson
Murphy
Within academic and popular discourse in the United States, “the border” has become a naturalized trope that
assumes a single signifier: the Mexico-United States political boundary. Congressional leaders’ assertions about
“border security first,” and migrant advocates concerned with human rights violations “along the border,” both
draw upon the same hegemonic concept of “the border.” What is overlooked is the more complex juridical
construction of what is considered the spatial and law enforcement formation of “the border.” The proposed paper
examines how the Fourth Amendment has been central in forming the spatial and law enforcement reach within
“the border” and its equivalents. Specifically, it examines how the surveillance of “Mexicans,” and the legal
challenges brought forth regarding search and seizure issues related to federal migration officials, played a role
in developing the formal notion of what constitutes “the border.”
The U Visa provides undocumented victims of violent crimes an opportunity to attain lawful permanent residence
in exchange for cooperation with the authorities in the investigation or prosecution of offenders. For domestic
violence victims, this is an especially welcome tool…so long as they are willing to prosecute their abusers.
Often, a tension arises between the cultural expectations of law enforcement, which may go beyond the statutory
requirements, for women to participate fully in the prosecution of their abuser and women’s needs to assert
control over their lives by declining to proceed aggressively for various reasons.
My paper will cover (1) the history of the relatively new “U Visa”; (2) the ways in which those rights which are
statutorily granted to victims may be denied or delayed in practice through different legal, cultural or structural
mechanisms; and (3) will analyze through interdisciplinary methods why these rights are denied or delayed.
Discerning Citizenship: from Race to
In the US, voting is almost exclusively limited to US citizens. Citizenship was established by sworn affidavit until
Verification
2004, when some states changed their voter registration laws to require independent proof of citizenship to
register. I argue that this shift can be understood, in part, as a reaction to legal and cultural norms that prohibit
the overt use of race as a pretext for citizenship. Whereas in the past race was accepted as a marker to
differentiate between full members (whites) and non- or second-class members (non-whites), civil rights laws and
legal precedents, particularly since the 1960s, prohibit overt racial discrimination, while colorblindness ideology,
which equates noticing race with racism, disallows it. As a result of the legal and cultural removal of race as a
valid (overt) criterion of membership, other methods must be employed to discern between members and nonmembers. Citizenship verification for voter registration is one such strategy.
To live the life of a civilised being:
Citizenship is often discussed in terms of presence, rights, and civic participation, overlooking its fundamental
Hierarchies of citizenships in a globalized purpose of social closure, which especially in a globalized age knows no geographic bounds. Drawing on political
age
theory, anthropology, sociology, and feminist and cultural studies, I propose a reconceptualization of
citizenship(s) as fluid and creative spaces occupied by individuals, and limited predominantly by the spaces
occupied by others.
I suggest a hierarchy of citizenships, which exist within national boundaries, but are also reproduced at microlevels within communities and at macro-levels, forming trans or supranational citizenships. I support this by
analyzing intersecting identities of individuals and communities, with an emphasis on feminist and post-colonial
notions of citizenship and critiques of historical production of knowledge about citizenship, in particular its
legitimizing function. I challenge citizenship’s universality claim and suggest it does not serve an equalizing
function, but perpetuates hegemonic power structures within and between communities and states.
Chair
Iconography of Justice
CHAIR
Iconography of Justice
Thinking "the Political" Beyond Cognition
Page 5 of 111
Icons of justice take many forms, from statues of Lady Justice to the iconic jurist William Blackstone to the
metaphors of law employed in texts and visual art. This panel explores the roles these iconic symbols play in
constructing and expressing our understanding of justice and legal institutions.
CHAIR
Glenn
Mackin
Eastman School of Music
[email protected]
Thinking "the Political" Beyond Cognition
This panel critically explores the non-cognitive aspects of politics and law. It focuses on beings or forces that
affect politics without knowing they do so, and/or those aesthetic or imaginative phenomena that affect political
actors in ways that exceed logos. Many theorists hope that attention to these issues will provide a new way to
understand how political and legal order works, and therefore, how it can be transformed: Not so much through
violence and ideological conditioning, but also through an aesthetic and imaginative (re-)organization of what can
be sensed and what cannot be. This panel explores and interrogates this promise and how it might be realized.
In doing so, we open up new ways of understanding the roles of aesthetics and imagination in politics and law,
the relationship between aesthetics and cognition, and the nature and mechanisms of social transformation.
Claire
Gregg
Glenn
Rasmussen
Miller
Mackin
Matthew
Anderson
University of New England
[email protected]
Punishment in America: Ways forward in
our teaching and our scholarship
How do we engage with the problem of punishment in America in our teaching and our scholarship? The
roundtable is an invitation to join a conversation framed by this question. The goal is to create a forum for
conference participants to share knowledge, raise questions, and build community. We will begin with a brief
review of Robert Ferguson's recent book, "Inferno: An Anatomy of American Punishment." From there, our
conversation will develop according to participants' interests. For example, we might talk about what we have
learned about how to direct undergraduate student research projects pertaining to punishment. We might
describe how we build units on punishment into courses in the Humanities, or how we incorporate humanistic
texts on or approaches to the subject in the context of legal education. We might take stock of the resources
available--notably thanks to the work of members of the association--for those of us who want to make
contributions, through our scholarship, to an understanding of punishment in America. We might identify sources
of funding available to support teaching or scholarship in this field. Please come join the conversation and share
your questions and your experience.
Paolo
Farah
West Virginia University, Department of
Public Administration
[email protected]
Conflict between Intellectual Property
Rights and Human Rights: A Case Study
on Intangible Cultural Heritage
The increasing sensibility regarding cultural heritage provides momentum to better define a legal framework for
the protection of these peculiar intangible goods. It is indeed fundamental to ascertain whether the current
intellectual property rights (IPRs) regime represents an adequate model of protection vis-à-vis intangible cultural
heritage. As a matter of fact, a comparison of the rationales for these two domains of legal protection is scarcely
attainable as specific relevance must be given to topical concerns of the countries implicated. These concerns
are pivotal for elaborating the needed legal protection.
Punishment in America: Ways forward in our
teaching and our scholarship
CHAIR
10:30-12:15
Four Cultural Heritage Case Studies
Xiaoqian
Hu
Harvard Law School
[email protected]
Alexander
Nagel
Research Associate
[email protected]
Our analysis begins framing the crucial issues detected in literature regarding intangible cultural heritage and
then proceeds to investigate the ways in which the actual IPRs regime grants protection to intangible goods. Our
evaluation supports the idea that without a many-faceted remodeling, current intellectual property laws represent
an unsatisfactory footing to protect intangible cultural heritage, as one can infer from the inefficacy of IPRs under
the patent and copyright regimes to ensure protection of cultural heritage, besides falling short of fostering an apt
comprehensive social policy.
The Law and Politics of State Preservation This paper exposes the politics of UNESCO and Chinese efforts to preserve cultural practice and thereby
of Intangible Cultural Heritage: From
critiques the appropriative and regulatory nature of the legal enterprise of cultural preservation. Despite
UNESCO to China
UNESCO's aspiration to provide a decentralized, people-centered paradigm, its nature as an inter-governmental
organization makes it perpetuate the preexisting nation-centered model of cultural preservation. China
implements and magnifies the UNESCO model by creating an all-active state and silencing local communities.
The law empowers the Chinese state to turn cultural practice into a resource for nation building and to recognize,
reject, and regulate cultural practice with the state's own values. Yet, the law also provides a legitimating rhetoric
for members of society to challenge state control and advance their interests, particularly when conflicts and
backfires within the government create opportunities for strategizing. Through the complex interplay between
official indoctrination and societal strategization, culture evolves, transformed and modernized.
The Last of the Qataban: Preserving
Yemen’s wealth of ancient relics in the form of temple architecture, monumental sculptures and manuscripts and
Ancient cemeteries and antiquities laws in ownership of heritage has been protected and regulated by strong by-laws for centuries. As the southern regions
the Yemen
have been in parts administered by members of the British Protectorate from Aden until the 1960s, while other
parts were administered by a set of tribal laws, any documentation of legislative preservation commitments
requires a more nuanced approach. This paper will introduce aspects of the illicit antiquities trade and policy
making in the province of the Wadi Beihan, a region that has been hitherto unexplored by scholars of
jurisprudence and investigative criminologists. I will trace the history of the licit and illicit trade of materials from
the ancient Qataban capitals and will conclude by providing a number of recommendations about how to prevent
further theft of heritage materials.
Page 6 of 111
Keon
Pettiway
North Carolina State University
[email protected]
Narrating the Constitutive Rhetoric of Law Ghana has sought to protect folklore and cultural expressions in the global marketplace by adopting Copyright
and Cultural Property
Laws 1985 (P.N.D.C. Law 110) and 2005 (Act 690), but these policies are largely ignored in the international
public domain. As noted in the November 1996 edition of Ghana’s Public Agenda newspaper, this issue is most
salient when Asian textiles factories produce imitations of kente without paying royalties for cloth designs. This
essay argues that narrating the constitutive rhetoric of law that governs the global circulation of adinkra provides
a way to imagine alternative international policies to protect cultural properties. Using a theory of constitutive law
and critical cultural legal studies, this essay
Investigates the function of law in the case of Ghanaian textiles and narrates legal infrastructures as spaces of
struggle within everyday practices and institutionalized jurisdiction within the United States, China, and Ghana.
Chair
Madhavi
Sunder
Nina
Hagel
University of California Berkeley
[email protected]
Revisiting Authenticity: Butler, the Psyche, This paper engages Butler’s treatment of the psyche alongside her critiques of authenticity in order to understand
and Violent Integration
authenticity’s persistence, functioning, and possible value. From this engagement, I argue that claims to
authenticity have continuing appeal and persistence not because they express a true or inner self within us all,
but rather, because they indicate how the psyche and the subject are being constituted. Against Butler’s critiques,
I show that claims to authenticity may have value in two ways: first, insofar as they indicate a type of violence that
animates or follows from the integration of the psyche; and second, insofar as they are used to combat restrictive
forms of subject constitution. While Butler’s notion of the unconscious makes it impossible to distinguish a single,
final “truth” to the person, the act of giving an account of oneself produces truths about the person that can
integrate the ego in violent or in less violent ways. The paper concludes by arguing that it might be problematic to
conceptualize “violent integration” too concretely in advance, but that we must still remain attuned to when and
how it manifests itself—and that appeals to authenticity may be a promising indication of this.
Robert
Herian
The Open University
[email protected]
The Semblant Equity
William
Conklin
Windsor Law
[email protected]
Space and Time before the Castle of
Legal Consciousness
Tristana
Martin Rubio
Duquesne University
[email protected]
Andrew
Poe
Clifford
Rosky
University of Utah
[email protected]
Brewer
Scott
Harvard Law School
Elizabeth
Emens
Critical Theory and Law: Butler, Derrida,
Lacan
Buddhism in Pedagogy, Law, and Art
CHAIR
“Equity can be described but not defined”: so said three Australian protectors of the virtues of the law of equity
during the latter half of the twentieth century. Does this simple statement veil a juridical crisis par excellence:
failure to define and thus a loss of certainty?
One response to this question lies with Lacan’s concept of the semblant, as that which aims at a definitional and
conceptual lack. By positing equity at once a resemblance, imitation, ersatz or mimic of some other (juridical)
function, the semblant gives meaning to that which otherwise escapes cognizance, allowing equity, for good or ill,
to appear and function.
As a cause of seduction and deception the semblant might also explain the exacerbation of equity’s definitional
and conceptual crisis. If so, is the semblant equity already in play beyond the narrow margins of law, its affect
having far reaching social and economic ramifications?
This Paper brings into question the senses of legal space and legal time taken for granted in Jacques Derrida’s
interpretation of Kafka’s essay “Before the Law”. I shall argue that in his essay Derrida presupposed a territorial
sense of legal space and a calendar sense of legal time. Together, such senses of legal space and legal time
presuppose a boundary of legal consciousness. Such a boundary delineates units of law from extra-law. Such a
boundary dissolves once on appreciates how the outsider to the castle of law possesses an unwritten language
that cannot be quantified as territorial space or calendar time. Indeed, Kafka’s parable, I shall argue, suggests a
radically different sense of legal knowledge than such a quantitative sense of territorial space and calendar time
presupposed by the sentry, the man from the country and Derrida.
Derrida contra Rawls: "Reasonableness," Rawls’s Laws of the Peoples and Derrida’s Rogues address themselves to the concept of “reasonableness” and
Sovereignty, Democracy
the “sovereignty” of reasonableness, respectively, at the origin of any liberal democratic political system. Drawing
on Laws of Peoples, I argue that reasonableness functions as what Derrida calls an “unconditional” as it operates
as a regulative principle determinative of the ultimate political horizon whose limits produce and ground a
democratically just society. In Rogues, “reasonableness” is conceived as a “transaction” between irreconcilable
positions necessitated by the impossibility of ever closing off the incompleteness of the unconditional. I claim that
while the status of reasonableness in Rawls’ liberal program exists by an act of self-positing that posits itself
outside of the political context in which it is deployed, the status of reasonableness in Rogues is conceived as an
a priori dependent upon its being articulated ever-anew, in a singular way, in a political context.
Chair/Discussant
Page 7 of 111
Buddhism in Pedagogy, Law, and Art
Buddhism, like law, imagines uneasy, unstable relations between theory and practice, between teacher and
student. This panel will present scholars with diverse yet overlapping questions—and perhaps even some
experiential interaction—related to the theoretical, practical, and pedagogical power of Buddhist meditation and
texts. Themes include the following: Has meditation started to overcome its “image problem,” or do Buddhists
still need to “hide the Zen,” as Dan Harris wrote in his recent memoir? Is it possible to bring Buddhism to bear on
the pedagogy and the practice of law—and if so, is its utility diminished or enhanced by explicit reference to
Buddhism itself? Does Buddhist meditation, with its emphasis on compassion, accentuate a universalizing
account of humanity that plays on our instinct to pity those we imagine to be less well off, or does it offer new
practical paths to debiasing our attitudes to those others we fear for aesthetic or existential reasons? What kinds
of texts, artistic endeavors, or practices open people’s minds to experiences or individuals that they would
otherwise avoid?
Dharma East and West: Seeking
Fulfillment at Harvard Law School
I will discuss a course I have been teaching for several years at Harvard Law School titled "The Fulfilled Life and
the Life of the Law." In this class students study both the theories offered by several philosophers or
philosophical systems concerning what it is to lead a fulfilled life, and also the practices that these philosophers
or philosophical systems offer for achieving fulfilment as they conceive it. The systems we examine are those
offered by (Plato's) Socrates, Aristotle, Pyrrhonian Skepticism, Theravada Buddhism, Madhyamaka-Mahayana
Buddhism, and Nietzsche's "Joyful Wisdom." I shall discuss the way in which I conceive the course as an
exploration of "Dharma East and West," that is, an exploration of conceptions and practices of fulfillment that find
resonances and counterparts in both "Eastern" and "Western" philosophical systems. I shall comment
specifically on how I present the two Buddhist theories and practices not as religions, as I understand that term (a
system of beliefs or practices is religious if and only if it rests on beliefs about supernatural entities or processes)
but as non-religious ways of life.
The Law and Politics of Fighting Islamist
Terrorism
Dhillon
Sital
Dhillon
Head of Department
[email protected]
John
Strawson
University of East London
[email protected]
Karen
Rhone
University of Chicago/American Bar
Foundation
[email protected]
Sonia
D'Angelo
York University
[email protected]
Luis
Plascencia
Teresa
Park
Rhetoric, UC Berkeley, Harvard Law
School
[email protected]
Human Rights and Counter Terrorism
This paper takes an experienced based perspective on the requirement of States to protect their publics from
terrorist activity whilst at the same time maintaining their obligations to protect and promote human rights. The
paper draws upon my practical experience of having served in Afghanistan and a number of other states in
conflict as a Human Rights Lawyer and British diplomat. It provides a brief introduction to the subject and outlines
a series of key safeguards which are essential to ensuring a clear balance between the need to protect human
rights whilst countering terrorism. These are based on my experience of having worked in a number of countries
which have been subject to terrorist attack
• Human rights and war rarely mix well. In response to the terrorist attacks on September 11th [9/11], President
George W. Bush declared a “war on terror”, which has proven to have serious consequences for the protection of
human rights and fundamental freedoms. Given that the tragic events of 9/11 were carried out by Al-Qaida, the
“war on terror” largely centres on combating Islamic fundamentalism. In other words, the “war on terror”, is in
some respects a war on ideology.
• As a result civil liberties have been restricted in numerous countries. Country after country enacted Prevention
of Terrorism legislation after 9/11; with the language of terror often used to smear and justify violating the rights of
political opponents and marginalised groups. The problems have been exacerbated by Western states,
particularly the United States, for repression by regimes that are “partners” in the war on terrorism. Pakistan,
Syria, Libya and Sri Lanka are striking examples.
• 9/11 changed everything for the worse. It followed an era of optimism which was full of promise in the 1990s.
The end of the Cold War; the enactment of protective human rights legislation at national and international levels;
the combined outrage of the international community to the atrocities in Rwanda; the former Yugoslavia and East
Timor –led some commentators to wonder whether we were entering new age of enlightenment.
• However, the thaw in East-West relations was not yet complete when a new threat of isolationism and
bipolarisation emerged from the shadows of the disintegrating twin towers of the World Trade Centre in New York
City. Out of these terrible events where 3000 lost their lives another evil emerged; the “war on Terror. As George
W. Bush announced “you are either with us or against us” the world entered dark era with the invasions of Iraq &
Afghanistan; the killing of innocent civilians by terrorist cells; the torture of Iraqis in Abu Ghraib; metaphors for the
systematic invasion of and erosion of fundamental human rights and civil liberties across the globe.
• However, the problem that this creates is that the enemy remains vague and ill-defined, and the definition of
what constitutes terrorism and its relation to the protection and promotion of human rights requires examination.
Despite UN and other national and international legal instruments being created prior to and after the events of
9/11 there is still no universally accepted definition of terrorism under international law.
• In the absence of a uniform definition, there is no consensus of what construes terrorism, aside from agreement
that terrorism consists of the threat or use of violence against innocent people for political means. Not having a
clear definition of terrorism leads to its misuse and unduly wide application, extending to those who merely
dissent
fromwill
theanalyze
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political norms
ofcirculation
society. Hence,
the practice
ofinternational
limiting human
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Fighting ISIS: Demotic International Law in This
paper
the construction
and
of popular
image of
lawrights
in theindebate
aboutit
Print.
military action against ISIS by the USA and the UK. It will take the New York Times and the Guardian newspapers
as the source material and will evaluate editorials, opinion pieces and letters to the editor and news items. The
aim is to track the manner in which what Dayan and Katz (1992) would call a media event, is through the medium
of print, transformed into a popular discourse. It was the Iraq war 2003 that saw the emergence of public
engagement with international law. This paper will focus on the way in which the use of force against ISIS is
understood and discussed. It will consider the way in which a complex legal doctrine transforms into a demotic
form. It will suggest that the result is powerful discourse, which exercises influence over government policy and
has become a rival to professional legal advice to governments
On Islamist Political Economy
The paper argues that although many socioeconomic issues in literatures about traditional international political
economy (IPE) and Islamist political economy (IsPE) run parallel, by and large, they lack scholarly integration,
which may compromise the advancement of both fields. To demonstrate this, the paper juxtaposes seminal works
from both literatures and their influences on more contemporary writings, i.e. published immediately before and
during the 20th century, particularly as these writings intersect ideas about economic change or reform. The
chapter does so to problematize ostensible incompatibilities between ideas located in both literatures, as well as
illuminate how theorists in both traditions understood the task of organizing economic and life similarly. To that
end, the chapter demonstrates, through close textual analysis, that ideas about religion and political economy
became vexed in Western ideas about political economy from around the middle of the 18th century onward.
The possibility of return: Omar Khadr and Omar Khadr was officially repatriated to Canada in September of 2012. Khadr's official repatriation however was
racialized expressions of fear in Canadian prefaced by a lengthy period of contemplation by the Canadian government. As Khadr's repatriation request
national news media
remained under consideration by the Canadian government, narratives reflecting upon Khadr's potential
repatriation began to surface within Canadian national news media. In a letter written to his Canadian lawyer
Dennis Edney, Khadr asks: in what kind of world will I be released? Khadr’s poignant question guides the
analysis of this paper. Utilizing the anticipated repatriation of Omar Khadr as a field of inquiry, this paper
examines the ways in which national news narratives describe Khadr’s anticipated or potential return to Canada.
This paper attends to the ways in which ideological concerns are expressed through notions of fear within
Canadian national news narratives. More specifically, this paper is concerned with the ways in which notions of
fear manifest and operate as racial expressions in three ways; 1) through discussions about Khadr’s family and
its history 2) through expressions about Canadian citizenship and values 3) as well as through the biopolitical
notion of contagion.
Chair
Law, Markets, Dispossession, Degradation:
Narratives of Economic Violence
The history of the English mortgage and its transformation by colonists in America illuminates foreclosure as an
innovative strategy of indigenous land possession rooted in predatory lending The prerequisite for colonists’ use
of land as security to obtain credit was colonists’ expropriation of land from indigenous people. Among other
methods, they accomplished this land seizure by deliberately embroiling indigenous people in debt beyond their
ability to pay and inventing a mortgage for these transactions that ended in foreclosure, or dispossession. The
new American mortgage, which made land in America a money equivalent for the first time, was thus rooted in
racial predatory lending practices. Foreclosure, now ubiquitous, recently commanded the world stage. While the
public blamed the crisis on missteps by a cast of characters-- loan originators, mortgage brokers, banks, I
explore the crisis as systemic and identify its dimensions in the treatment of a nonfungible entity—land-- as
fungible.
Page 8 of 111
Julia
Dehm
Institute for Global Law and Policy,
Harvard Law School
[email protected]
A climate for market construction
Justin
Iverson
Savannah Law School
[email protected]
Michael
Feola
Lafayette College
[email protected]
Vincent
Mosley
Shavana
Musa
Tilburg University
[email protected]
Renana
Keydar
Comparative Literautre, Stanford
University
[email protected]
Catherine
Scott
Columbia University
[email protected]
Jean-Alexandre
De Bousquet
University of Ottawa
[email protected]
Panu
Minkkinen
We are currently in the midst of a climate crisis, whose impacts are already with devastating intensity or
sustained deterioration, effecting the lives and livelihoods of those least responsible for dangerous levels of
anthropocentric atmospheric greenhouse gas concentrations. This crisis was famously described by Nicholls
Stern as the 'greatest market failure the world has seen' yet the dominant response to the climate crisis at the
international level and within domestic policy debates has been to address the problem of mitigation through the
construction of emissions trading schemes. These markets in the new, intangible carbon commodity, like this
novel property right itself, are regulatory artifices produced through the deliberate enactment of legislative limits.
This paper's hypothesis is that an examination of the construction of these novel markets and forms of property
rights provides a 'telling example' of the relationship between law and markets in neoliberal governance. It traces
the constitutive role law plays in actively intervening to create and give value to a standardised and fungible
carbon commodity, but how this constitutive role played by law is subsequently disavowed in market-orientated
discourses in favour of a conception of the market as autonomous and self-regulating. Drawing on the writings of
Michael Polanyi and Friedrich Hayek it argues that this relationship, whereby law creates the ordering conditions
for a competitive market but does not intervene to direct outcomes within this environment, is paradigmatic of the
relationship between neoliberal capital markets and the state.
Developing The Waste Land: Depreciation In exploring the ways that the laws of waste, depreciation, and preservation interact, this Paper seeks to
as a Function of Society Building
reconcile the models of society building amongst several cities within the United States. Depreciation eventually
settles on all property like dust on a ceiling fan, polluting the rest of the room along with the very air around it.
This Paper will draw connections to the Fisher King of Arthurian legends; a man whose personal wound led
directly to the decay of his kingdom. In drawing comparisons to this ancient tale, we can begin to understand how
the decisions of lawmakers and political leaders directly correlate to the growth or decline of society. A city that
does not create incentives to either restore or destroy its wounded sections will ultimately diminish the value of
other sectors. In this way, depreciation serves a gatekeeping function for the law of waste.
Spare Parts: Neoliberalism, Violence and There are some familiar understandings of a surplus. It might be taken as a happy excess of a desirable good;
Agency
or, the economic mechanism through which capitalism extracts value from labor. Recent conversations,
however, have isolated a different sense: those lives that do not meet the entrepreneurial ideal of the neoliberal
imagination – and are thus extraneous within calculations of social benefit, desert, or mattering. These bodies
can be left to endure and wear down on their own. This paper will consider how such devalued lives are
subjected to abandonment as a distinctive form of economic violence. The piece will ultimately, however, turn
around the core question: what are the modes of association through which these forms of exposure can be
contested? If a neoliberal social grammar works through the individuation of merit, desert and subsistence, then
what modes of counter-power could yet be imagined and forged?
Chair/Discussant
Making Victims Whole: The Problematics of
Post-Conflict Restitution
Citizenship Talk: Speech, Power, and
Community Yesterday and Today
Page 9 of 111
Victim Reparation under the Ius Post
Bellum: A Historical and Normative
Perspective
This paper aims to present findings from a comprehensive assessment of the historical development of the
treatment of private persons who have suffered bodily or material damage during wartime in peacemaking
processes. This development is as a reflection of the gradual metamorphosis of international law in general and
the laws of war in particular. The many faces of Sovereignty will also be an inescapable encounter, as will the
rules of ius post bellum, according to selected wartime case studies, such as the Anglo-Dutch Wars, the
American Revolution, the Boer War et al. The historical analyses shall then be presented in conjunction with
modern day victim reparation doctrine and practice. This will allow one to fully comprehend the treatment of
reparation post-war within the current climate, but as an equal partner in the marriage of past and present. It will,
hopefully, also conjure up debate on the step forward.
Legal Mechanisms and Ethical Concerns Protracted conflicts pose a challenge to the field of transitional justice. Mechanisms of transitional justice aimed
in a Reality of a Protracted Conflict
at coping with a past legacy of human rights violations are usually introduced and operate at the end of hostilities.
In a case like the Israeli-Palestinian conflict, where there is no foreseeable end to the violence, such mechanisms
are absent and we face a legal-ethical void.
Examining Israeli literature post-dating the collapse of the peace negotiations, I show that in the absence of
transitional mechanisms, literature becomes a main forum for grappling with questions of responsibility and guilt.
Interestingly, “post-Oslo” literature addresses the wrongs of the conflict by producing scenes of criminal trials
within the literary texts.
This interdisciplinary borrowing mirrors the prominence of the legalistic approach in the accounting for human
rights violations. In addition, by invoking the mechanisms of criminal justice, these texts offer an extra-judicial
possibility of integrating a historical reckoning with the past with judgment of individual crimes in a “transitional
manner.” At the same time, they also expose the potential failure of this quest for justice when confronted with the
ethical ambiguities of a protracted conflict.
Conceptions of property & social justice in I examine conceptions of property underpinning European Court of Human Rights (ECtHR) adjudication of claims
claims for restitution against former
for restitution in post-socialist states. In particular, I compare collectivist frameworks of property ownership to
socialist states at the European Court of
more individualistic and capitalist models of ownership to interpret the ECtHR's awards of restitution. I analyze
Human Rights
claims for compensation for property that was nationalized or confiscated by former socialist states and claims for
compensation against the post-socialist state for property that was lost during the transitional period from
Communism. Then, moving beyond existing case law of the ECtHR on property restitution, I interrogate the
limits that the liberal conception of rights embedded in the European Convention of Human Rights and the
structure of human rights adjudication in which individual rights-holders make claims against states produces for
questions of social justice. In post-socialist contexts I note that social justice may be conceived as the return of
collective wealth to collective ownership, although the existing paradigm of restitution does not facilitate this
outcome. In cases such as Yukos v. Russia the perceived corruption of privatization schemes may also cast
doubt upon the legitimacy of recent claims for restitution.
The Evolution of the Reinstatement
This paper will review the remedial power of the Human Rights Tribunal of Ontario to reinstate employees, a
Remedy by the Human Rights Tribunal of power not shared by even the highest Courts in Canada, and how the use of reinstatement has evolved in
Ontario
Ontario human rights decisions.
If the Tribunal finds that a party has infringed an anti-discrimination provision, it has wide discretion to make
various forms of remedial orders. This includes monetary compensation or any other restitution that, in the
opinion of the Tribunal, the party ought to do to promote compliance with the Act. Although the Tribunal rarely
awards this remedy, recent developments indicate the Tribunal’s increasing readiness to award reinstatement
and back pay to employees, regardless of the amount of time elapsed since the employee’s termination, thus
prompting employers to evaluate whether they are complying with their obligations under the Human Rights
Code.
Chair
Bethany
Berger
University of Connecticut School of Law
[email protected]
Kristin
Matthew
Daniel
Collins
Lindsay
Morales
Sarah
Burgess
Andrew
Stuart
Sara
Dilts
Murray
Kendall
Daniel
Corinne
KB
Peter
Farbman
Blalock
Burnside
Pihos
Graduate Student, American Studies, Harvard
[email protected]
Anna
Offit
Princeton University
Peter
Matthew
Tal
Brooks
Birkhold
Kastner
Daniel
LaChance
Emory University
Keramet
Rabia
Benjamin
Daniel
Reiter
Belt
Fleury-Steiner
LaChance
Citizenship Talk: Speech, Power, and
Community Yesterday and Today
The categories of citizen and alien are neither natural nor static, but reflect shifting economic realities,
governmental structures, and understandings of race, nation, and geography. This panel explores the sources
and meanings of these changing definitions historically and today. Matthew Lindsay interrogates the doctrine of
plenary power over immigration, showing its origins in the tensions between free labor republicanism and
industrialization at the end of the nineteenth century. Bethany Berger examines the relationship between
litigants, lawyers, and American Indian and Chinese communities in two landmark cases regarding birthright
citizenship, challenging imagined links between citizenship, emancipation, and individualism. Daniel Morales
brings us from history to the present day, reconceptualizing the migration of thousands of unaccompanied minors
and millions of undocumented immigrants as a form of protest speech challenging U.S. border laws and their
implementation. Together, these papers reposition concepts of the nation and the alien and their roles in
American identity.
Chair
Prisons and the Politics of Suicide in a Time of
Biopolitical Logics
University of San Francisco
[email protected]
Prisons and the Politics of Suicide in a
Time of Biopolitical Logics
This panel investigates the ethics and politics of life and death within prison settings governed by biopolitical
logics, the state power “to make live and let die” (Foucault). Through a series of papers, participants consider the
ways in which specific material practices, such as incarceration, indefinite detention, and solitary confinement,
support and maintain our understandings of life and death. In particular, following theorists such as Foucault,
Mbembe, Arendt, Ahmed and others, the papers explore the suicides of incarcerated persons—a figure that
variously escapes, suspends, and undermines the biopolitical power to make live and let die. What kind of power
or agency is exercised by prisoners who take their own lives? And how might we think the suicide as a productive
resistance to forms of social and civic death, the enforced biopolitical life of the prisoner?
Chair
Historical Iterations of the Public-Private
Distinction
Historical Iterations of the Public-Private
Distinction
This panel reconsiders the public-private distinction over a broad sweep of American history. The papers both
confirm the theoretical consensus that the distinction has no substance while also demonstrating that it remains
and remained a powerful force in shaping national legal and political discourse.
[email protected]
Narrative Constructions of Legal Reality
This panel consists of three papers which explore the intersection of law and narrative. Though united by an
interest in the place of stories in law, they draw on distinct methodological, theoretical, and empirical material. In
this way, the panel juxtaposes analyses of film, fan fiction, judicial opinions, and everyday legal practices to
reflect on the construction of legal realities through narrative.
[email protected]
Disabling Institutions
This panel will explore the history of what Kristen Bumiller has called “disabling institutions,” the legal and
physical infrastructures putatively designed to maintain or restore the health and well-being of vulnerable or
wayward citizens, but often operating, by design or accident, to literally and figuratively incapacitate them.
Turning our attention to different times, places, and institutions, from government-funded veterans’ homes in the
aftermath of the Civil War to mental hospitals in the 1950s to prisons in the 1970s, panelists will offer historical
accounts of the creation and operation of disabling institutions in the United States and progressive and
reactionary attempts to undermine their legitimacy.
Narrative Constructions of Legal Reality
CHAIR
Disabling Institutions
CHAIR
13:45-15:30
Pop Culture, Street Art, Cultural Memory
Page 10 of 111
Marilyn
Terzic
UQAM
[email protected]
Jesse
Centrella
Savannah Law School
[email protected]
Jothie
Rajah
American Bar Foundation
[email protected]
Jeremy
Pilcher
University of Leicester
[email protected]
Richard
Legal Framing of Political Demands: The Role
of International Law in Advancing Sexual and
Reproductive Rights
CHAIR
Moria
Law and the Visual in a Post-9/11 World
The violence of 9/11 and its aftermath have been recorded through indelible images. Where is law in this record?
Public trials akin to the iconic Nuremberg trials have not featured in our post-9/11 moment but 9/11-related
mediatised images have proliferated. This paper explores images as post-9/11 sites of law.
Drawing on Vismann’s 2008 media-material genealogy of law, in which she demonstrates that law and record are
mutually determined, and that truth, state, and subject are the entities on which law is based, this paper analyses
the visual as contemporary law’s record through images relating to the killing and burial of Osama bin Laden. The
paper considers first, official images, second, the fact/fiction collapse of unofficial images, third, images’
intertextuality, iconicity, and ideology, and finally, the struggle with images as law’s record when confronted with
extreme brutality.
From at least Duchamp onwards, it has been possible to understand the transformation of everyday objects into
works of art in terms of what Buchloh referred to as the “a new aesthetic of the speech act (‘this is a work of art if
I say so’)” (Buchloh, 1990:116).This ‘transfiguration of the commonplace’ (Buskirk, 2003; Danto, 1981) has been
interpreted in terms of institutional validation. But it has also been regarded as making the connection between
artists and the creation of works of art more significant. Such arguments may be positioned along a spectrum,
with the authority (both moral and legal) of the individual artist situated at one end and the power of social
institutions (including those from the worlds of art and law) at the other. I argue that the intersection between law
and art may be understood through Derrida’s work on the performative (Derrida, 1988). Approached in such
terms, the art work may be regarded as a means for viewers to engage with the way that art and the law both
provide and restrict an opening for change in society.
Sherwin
Paz
Hot Bench, cold medium: Reconstructions For many, arbitration-based reality court shows are the primary means by which they learn about the justice
of syndi-court justice
system. To that end, this paper describes how Judge Judy and its spin-off, Hot Bench, provide viewers with
contrasting models of judicial behavior and dispute resolution. Specifically, the production techniques and
message design strategies used in these programs are examined and the ways in which these courtroom
spectacles shape viewers’ perceptions of the litigants, judges, and proceedings and influence prospective
plaintiffs to seek syndi-court justice are detailed.
Beautiful Justice: Legal Protection of
Beauty is a personal appreciation—it is the eye of the beholder. Beauty is unbound by rules, and therefore,
Deviant Aesthetic
judgment proof. Notwithstanding, aesthetic is regularly measured against the majoritarian conception of what
constitutes or in what context something is beautiful. Measurements that stray from the center—the deviant
aesthetic—are not appraised on character, but rather by quantifiable value and practical function. With no value
or function, deviant aesthetics are often considered a nuisance. In this context, then, the beholder from the above
maxim only has a protected interest to the extent that the interest is harmonious to normative aesthetic. This
Paper explores, through the context of street art, how nuisance law is used to insulate the normative conception
of beauty from an unsanctioned deviant aesthetic and suggests that the visual character and social value of
street art warrants legal protection for artists.
Chair/Discussant
Stanford Law School
[email protected]
Legal Framing of Political Demands: The
Role of International Law in Advancing
Sexual and Reproductive Rights
This panel proposes a conversation among activists and scholars about the framing of political claims at the
international and national level and the interaction of both. In particular, it seeks to highlight the costs of engaging
international law to advance sex equality, the exercise of sexuality as fundamental to an individual's personality,
and the redistribution of resources that ensure reproductive autonomy. At the same time, however, the panel
underscores the challenges faced by activists in Latin America that wish to avoid the pitfalls of international law:
on the one hand, framing is mainly within the power of national courts; on the other, Latin American activists have
little clout to implement rulings and international documents of different kinds.
The participants in this panel build on their diverse backgrounds and expertise to examine the attention to sexual
and reproductive rights at the international level and how advocates channel international energy into national
law reform projects and domestic litigation (with gains and with costs).
Alma
Rachel
Isabel Cristina
Luz Beltran y Puga
Rebouche
Jaramillo Sierra
Genevieve
Painter
Jurisdiction, Colonialism, and the Creation of
the State
UC Berkeley
[email protected]
Page 11 of 111
What is Heard when Indigenous Women This paper is based on a close reading of a) the 1917 petition by Six Nations clan-mothers to King Edward V
Speak: Recognition, Jurisdiction, and Law about Haudenosaunee soldiers in WWI and b) the 1978 petition by Sandra Lovelace to the UN’s Human Rights
Committee about the patrilineal transmission of Indian status under Canadian law. I use speech act theory to
expose how jurisdiction – literally, “speaking the law” – rests on language and prior community, and I then carry
this analysis to the law of state recognition. Recognition as an origin point is paradoxical, as, etymologically, it is
the acknowledgement of something that has already been known before. In the alchemy of international law,
recognition instantly transmutes rebels and savages into sovereigns. I explore how international law hears the
speech of indigenous women as a way of understanding how Indigenous-state relations have been (mis)‘recognized’ as ‘domestic matters’ beyond international jurisdiction.
Laura Lehua
Yim
San Francisco State University
James Madison University
[email protected]
Effacing Law with Chaos: Contesting
Jurisdiction in the Hawaiian Islands
In 1898, the Republic of Hawaii was annexed to the United States as an insular territory. Or not. In June/July
2014, the US Department of the Interior (DOI) held fifteen hearings in the Hawaiian Islands regarding a proposed
rule change to allow “the Native Hawaiian community” to petition the executive branch for “tribal recognition”.
Hearings were held on all islands. At each hearing, citizens identifying themselves as “Hawaiian nationalists,”
“Kingdom subjects,” “kanaka maoli,” or “non-Hawaiian guests” said repeatedly that the U.S. DOI had no
jurisdiction to be able to hold such hearings or make such rules. They said “Hawaiians” never were and never
would be a U.S. “tribe.” Nearly 95% of all speakers said “no” to either the proposed rule change or to DOI
jurisdiction itself. Many of those testifying cited a late-nineteenth-century ancestor, a Kingdom of Hawai’i subject,
who had signed a petition in 1896 protesting US annexation.
My essay takes a closer look at this latest uprising of a complex Hawaiian counter-narrative to the U.S.’s claim to
legal annexation of the Hawaiian Islands. Hawaiians’ assertions of living in a belligerently occupied homeland
are often portrayed as unreal fantasies. The Hawaiian independence movement is repeatedly characterized as
“in chaos” or inciting political chaos. Using kanaka maoli paradigms of governance and legal rectitude, this paper
works with testimony from these hearings to critically explore these portrayals of Kingdom subjects as under a
legal and political delusion. The containment of what is more disruptive—the continuing force of Kingdom case
law in State of Hawai’i common law—by the U.S. racialization of “Native Hawaiians” and the branding of their
“native” nationalism as irrational and chaotic is revealed through this careful analysis.
Tenuous Sovereignty and Narrative Form I explore how the postcolonial fiction of East Africa enters into dialogue with the European tradition of juridicoin Mary Karooro Okurut’s The Invisible
political thought. The historical instability of legal orders in postcolonial east African nations forces intellectuals to
Weevil
conceive sovereignty as much more tenuous than is typical in mainstream Western legal thought. In Okurut’s The
Invisible Weevil, for example, the cyclical narrative structure mirrors the continuous cycle of revolutionary
violence perpetrated by successive regimes in Uganda. In the final section of the novel, this cyclical narration is
used to pose crucial questions about the liberal-democratic institutionalism that emerges in the 1980s. Do these
institutions represent a fundamental shift in the nature of Ugandan governmentality, or do they provide an alibi for
the continuing cycle of partisan violence? Do these institutions answer adequately to the specificity of problems
facing the postcolonial nation, or are they tacitly complicit in allowing more insidious pockets of power to survive?
David
Babcock
[email protected]
Sarah
Burgess
Courtney
Marshall
University of New Hamsphire
[email protected]
Budrunnisa
Khan
University of Virginia (graduate student)
[email protected]
Andrew
Porwancher
University of Oklahoma
[email protected]
Faith
Barter
Vanderbilt University
[email protected]
Teresa
Park
Ravit
Reichman
Brown University
[email protected]
Susanna
Nan
Patricio
Barry
Lee
Goodman
Boyer
Wimpfheimer
Chair/Discussant
Race in 19th Century America
Ain't I A Lady: Black Women And The
Racial Railroad
My presentation examines the narrative strategies of African-American women claims to being “law-abiding
citizens” and traces how segregation law and literature surrounding the railroad’s ladies car defined black
womanhood in the era before Plessy v. Ferguson (1896). I examine two texts: a lawsuit filed by Ida B. Wells in
1884 against the Chesapeake & Ohio Railroad Company after she was ejected from the ladies’ car and Anna
Julia Cooper’s description of a segregated rail station in A Voice From The South (1892). I argue that these texts
expand our understandings of nineteenth century black women’s legal and literary histories by suggesting the
criminalization of respectability politics and the forced masculinization of black women. The yoking of black
ladyhood and criminality has huge ramifications for the study of black women’s legal texts. In the late nineteenth
century, legal wrangling sought to render the term “black lady” oxymoronic and criminal.
Race, Space, and Legal Liminality in
Despite the formal legal promise of the Reconstruction Amendments to the federal constitution, African
Charles Chestnutt’s The Marrow of
Americans at the turn of the century found themselves to be practically outside the law’s bounds, a tension
Tradition
vivified in Charles Chesnutt’s novel The Marrow of Tradition (1900). Chesnutt depicted the brutal ramifications of
this chasm between legal formalism and legal reality, drawing upon his knowledge of the nascent legal realist
movement and his research into the Wilmington “race riots” of 1898. Legal liminality in the novel and the incident
that inspired the text are linked to political, social, and spatial liminality, connections that my paper will probe in
arguing that Chesnutt’s novel is a literary realist text, but is also an early legal realist text using fiction as a mode
to meditate on and apply what would subsequently be recognized as legal realist precepts that have shaped our
understanding of how law operates today.
The Devil Himself: Honor, Insanity, and the On Christmas Eve, 1882, Nicholas Dukes and Captain Adam Nutt dueled to the death after Dukes confessed to
Birth of Modern America
the seduction of Nutt’s daughter. Dukes bested Nutt only to stand trial for murder in a spectacle that garnered
global headlines. A rigged jury acquitted Dukes, who then narrowly escaped on horseback from a bloodthirsty
mob. Still, Dukes’s days were numbered. Nutt’s eldest son, James, hunted down his sister’s former lover and
avenged his father’s death. Overnight, James Nutt became a national hero. The Dukes-Nutt saga prompted an
outpouring of support for honor killing in every corner of the country, including from prominent legislators, judges,
and even President Chester Arthur. The blood-soaked tale suggests that the code of honor was not unique to the
South, as historians have long assumed, but enjoyed widespread acceptance across the nation.
“Dead! Dead! Dead!”: Unnatural Law from In 1829, black abolitionist David Walker published his Appeal to the Coloured Citizens of the World, a rallying cry
The Confessions of Nat Turner and David for black citizens throughout the world to unite in opposition to slavery. Two years later, Nat Turner led the
Walker’s Appeal
Southampton Slave Revolt in southern Virginia. Turner’s 1831 confession—made to Thomas Gray, a local
lawyer—circulated widely as a pamphlet that included an excerpt from Turner’s sentencing. Both Walker and
Turner, through their texts, became cultural touchstones in the 1830s print culture abolition wars. In this paper, I
consider the literary texts as legal objects--criminalized documents whose circulation alone raised vexed legal
questions. I argue that the circulation histories of Walker and Turner expose law’s tendency toward the unnatural,
revealing how law thrives on the tension between uncommon and ordinary to enact literal and symbolic violence
through language, repetition, and ritual.
Chair/Discussant
Fables of Authority
Fables of Authority
Chair
International Law’s Narratives
Page 12 of 111
This panel engages the problem of authority as one grounded in the imaginative labors
CHAIR
Sara
Kendall
University of Kent
[email protected]
International Law’s Narratives
A common critique of law points out that it claims for itself an apolitical universalism while disguising the troubled
origins of its authority. This critique is even more pressing in the international register. Lacking the seductive myth
of popular sovereignty, international law must tell the story of its authority in other ways. Legal positivists turn to
the doctrine of sources, with its conceits of consent and compliance, to further the nineteenth century project of
codifying an unruly and fragmented body of norms and jurisprudence. Others use the trope of the international
and conceptions of the human in efforts to ground aspirational legal projects.
This panel takes up some of the stories told through the field of international law in its various forms. Drawing
upon legal scenes ranging from nineteenth century efforts to develop a jurisprudence of ‘Christian principles’ to
contemporary projects that seek to provide redress through the field of international criminal law, panel
participants investigate the presumptions, aspirations, and exclusions produced through international law’s
narratives.
Rights Talk', Migration and Civil Liberties:
Beyond Legal and Narrative Discourse
CHAIR
Shaping Punishment
CHAIR
Karl
Jill
Mark
Sara
Shoemaker
Stauffer
Antaki
Kendall
Annette
Houlihan
Sharon
Christine
Leslie
Raynor
Corcos
Gutierrez
James
Binnall
Amanda
Michael
Molly
Fisher
Silverman
Steed Jones
Dana
Lloyd
Vincent
Elliot
Lloyd
Ratzman
Caprice
Roberts
Michael
Andrew
Eric
Stephen
Allen
Siegel
Segall
Vladeck
St Thomas University
[email protected]
'Rights Talk', Migrations and Civil Liberties: This panel considers aliens, rights and fictions in law, through various themes. The panelists give different papers
Beyond Legal and Narrative Discourse
that consider how human rights discourses are impacted by laws in; a book about an infectious disease specialist
who migrated from Indian to Africa and the US; media reports about an African man prosecuted for HIV nondisclosure in Canada; aliens in science fiction films and television and testimonios of undocumented migrants in
the US.
University of California, Irvine
[email protected]
Shaping Punishment
This panel explores factors that shape various forms of punishment. Papers examine the abolition of the death
penalty in the deep south, the role of gendered empathy in sentencing, due process protections in probation
revocation hearings, and the participation of convicted felons in the jury selection process. Drawing on a mixture
of theoretical and empirical papers, this panel looks critically at current forms of punishment and contemplates
the future of criminal sanctions in the United States.
Syracuse University
[email protected]
Democratizing Dignity
There has been broad recent interest in the concept of dignity (see recent books such as those by George Kateb,
Michael Rosen, and Jeremy Waldron). Recent collections (such as the Cambridge Handbook on Human Dignity
and Understanding Human Dignity) have brought together theologians, political theorists, and legal scholars to
shed light on this concept from a variety of perspectives. Yet all of these studies have centered themselves on
the Judeo-Christian, European traditions, only occasionally glancing towards other communities and their
potential contributions to the understanding of dignity. We are proposing to explore accounts of dignity that start
from the margins as a way to work through the various legal and cultural manifestations of this important concept
in a way that challenges accounts of dignity complicit in Western cultural imperialism.
Savannah Law School
[email protected]
Past the Façade of the Marble Columns?
This panel explores our assumptions about the proper judicial role and our collective cultural perception of a
"good judge" in light of Dean Erwin Chemerinsky's impassioned critique and call for reform in "The Case Against
the Supreme Court." He urges: "It is time to get past the façade of the marble columns and the mystique of
justices who appear in robes from beyond heavy curtains." The panelists will examine how our current image of
the judiciary came to be, the role of judges themselves in defining the image of their institution, the influence of
our cultural preconceptions about judges on our views about proper methods of statutory and constitutional
interpretation, the fictions and institutional biases built into our current vision of the judicial role, and suggested
reforms that might re-orient our understanding of the judicial role to be more descriptively accurate and better
incentivize our collective pursuit of justice.
Democratizing Dignity
Past the Façade of the Marble Columns?
CHAIR
Page 13 of 111
Analysing law from critical linguistic
perspectives: Views from two disciplines
Anne Lise
Kjær
University of Copenhagen, Faculty of Law [email protected]
Lawrence
Amanda
Siobhan
Davide
Solan
Potts
Weare
Mazzi
Chair
Anne-Marie
Carstens
Georgetown University Law Center
Analysing law from critical linguistic
perspectives: Views from two disciplines
Ostensibly, it would seem that law and linguistics would make easy companions: law is practiced in language;
legal judgements are texts; legal arguments are phrases in texts; and legal concepts are expressed in words.
However, the scholarly community is experiencing a dearth of legal-linguistic studies, stemming in part from
misconceptions from both fields. Critical legal scholars may believe that language is irrelevant for legal analysis
and that tools for linguistic analysis are inaccessible or incomprehensible. Likewise, linguists within the tradition
of critical discourse analysis often consider legal language to be too formulaic to be analytically fruitful. In this
panel, we showcase the ways in which cutting-edge linguistic methodologies may be applied to a critical analysis
of the law, with results that are informative for both scholarly traditions and indicative of an emerging
interdisciplinary field.
War and Culture: Cultural Icons, Cultural
Identities, and the Islamic State
*Roundtable co-sponsored by the Cultural Heritage and Arts Interest Group of the American Society of
International Law--roundtable will include two participants from ASLCH and two participants from ASIL, with
moderator/chair representing both organizations
War and Culture: Cultural Icons, Cultural
Identities, and the Islamic State
CHAIR
[email protected]
Participants in this roundtable will submit 2,000-3,000-word essays in advance for distribution. Essays and
roundtable will focus on threats to cultural icons and cultural identity by the Islamic State and on the ability or
limitations of law to mitigate those threats. Essays will discuss threats to World Heritage sites and other
universally recognized cultural sites in Syria and Iraq, the Islamic State's reliance on income from looted
archaeological sites to fund its activities, the attempts to merge Syrian and Iraqi cultural identities, the historical
underpinnings of the Islamic State's self-proclaimed caliphate, and the threats to cultural subgroups and
representative iconography in Syria and Iraq.
15:45-17:15
Aiyaz
Jennifer
Naomi
TBD
Husain
Gordon
Mezey
Paul
Passavant
Hobart and William Smith Colleges
[email protected]
Andrea
Simpson
University of Richmond
[email protected]
Andrew
Lester
Christopher
Dilts
Spence
Forester-Smith
The Neoliberal State and Urban Space
The Neoliberal State and Urban Space
This panel traces how the neoliberal state is not a shrunken state, but is a distinctive state formation. Examining
its features in urban space, the neoliberal state does not register market preferences with neutrality but actively
produces inequality.
Woman, Thou Art Bound! Agency and the And, behold, there was a woman which had a spirit of infirmity eighteen years, and was bowed together, and
Environmental Justice Movement
could in no wise lift up herself. And when Jesus, saw her, he called her to him, and said unto her, Woman, thou
art loosed from thine infirmity. And he laid his hands on her: and immediately she was made straight, and glorified
God. Luke 13:11-13 KJ The famous T.D. Jakes conferences and books produced under the title “Woman, Thou
Art Loosed” is the cultural context in which I place this project on agency, intersectionality, and the environmental
justice movement. Jakes offers a spiritual solution to problems of poverty, discrimination, and lack of agency
experienced by Black women. Such a fundamentalist Christian program ignores systemic causes of conditions
faced by Black women and their families. The work done by Black women on the grassroots level helps us to
understand that these women need more than spiritual absolution to change conditions. This paper uses the
environmental justice movement as a lens through which to view strategies employed by Black women leading
the environmental justice movement. I argue that Black women are constrained by intersectional forces in their
efforts to clean up their communities. Using election data, media analysis, and my own survey and interviews
with environmental justice movement, we see how intersectional status, urban pro-growth policies, and
partnerships with majority White environmental groups impacts the effectiveness of the movement.
Chair
In the Garden of Interdisciplinarity: Serpents,
Music, Law
Page 14 of 111
CHAIR
Sara
Ramshaw
University of Exeter, School of Law
[email protected]
In the Garden of Interdisciplinarity:
Serpents, Music, Law
"Cobra" is an semi-improvised experimental music score, composed by John Zorn, which takes the form of a
complicated game, often with cacophonous results. Glouberman and Sorbara explain: "The rules of Cobra are
ornate, with cue cards, hand signals, and even headbands and hats, all used to indicate structural changes of
sound and arrangement. Cobra has traditionally been shrouded in a fair amount of mystery. When the game is
performed, the rules are not explained, and they've never been published."
In Greek mythology, "Hydra" was a serpent-like water monster with numerous heads. It also designates our
adaptation of Zorn’s Cobra for use in the training of law students, lawyers and judges. This legal "game piece"
created by the participants of this panel hones legal argumentation skills, requiring participants to be Hydraheaded and able to rapidly analyse a legal issue from a variety of angles and perspectives.
The process of creating Hydra for lawyers is the focus of this panel discussion, as a rich case study through
which to analyse the benefits and challenges of collaborative interdisciplinary research between law and music.
Paul
Adnan
Kathryn
Stapleton
Marquez-Borbon
McNeilly
Adil
Hasan Khan
IHEID, Geneva
[email protected]
Crisis, Late Colonial Times and the Tasks The ‘colonization of time’ has been identified as a key process in the reproduction of colonial rule by scholarship
of Inheritance
in colonial studies. Furthermore, this has been accompanied by a well-supported argument that modern law has
played a central role in this process. As this well-established narrative has it, modern law acted as a technology
for regulating time and generating a ‘colonial temporality’, one which sought to displace other modes of
generating temporality and operated by constituting the relationship between the past, present and future in a
transitional, evolutionary and teleological schema, wherein the past, associated with immaturity, is consigned to
being the first stage on a progressive path that is inexorably leading towards a pre-determined utopian future
telos. In this mode, ‘colonial difference’ gets constructed as the ‘past’, while a particular (hyperreal) ‘West’,
assumes the universal location of the future telos.
What is less adequately addressed in this scholarship is that with the onset of the crisis of modernity and the
emergence of ‘late colonialism’ in the last few decades, ‘colonial temporality’ and its techniques of
temporalization have also undergone mutations. In it the relationship between the past and the present gets
constructed as being entirely ruptured and the possibilities of any future horizons get denied. In this
temporalization at the ‘end of history’ the perpetual present gets constructed as the universal which is in a state
of endless crisis from a frozen past, that signifies atavistic violence, and a foreboding future which signifies
catastrophe, both of which need to be constantly averted. Its persistent coloniality lies in its continued denial of
coevality to ‘colonial difference’ which gets assigned to a fixed atavistic past and gets constructed as, along with
all alternative modes of temporalizing, a lacking exception to the universal ‘now time’ and, crucially, towards
which no responsibility accrues upon those purported to be occupying this present. In a more fractured temporal
schema, the transformative violence of ‘temporal upliftment’ visited upon ‘colonial difference’ in the teleological
schema, premised on the promise of a better singular future, give way to a violence of containment and
abandonment of colonized populations and a selective rescue individual victims from their collectives, premised
on the insistence on their being no alternatives to the singular present and its global order.
This paper first sets out to briefly explore how international legal practice could be said to be engaged in this this
generation of ‘colonial temporality’, particularly in the wake of the crisis of modernity. It then proceeds to
undertake a closer examination of the practices and conduct of certain scholars belonging to a broad network of
critical international lawyers ‘of the South’ (referred to by the acronym TWAIL), suggesting that such a study
might provide us with the lineaments of possible alternative modes of temporalizing in the colonial present.
Pavithra
Tantrigoda
Carnegie Mellon University
[email protected]
‘Green Imperialism’ in Law: The Place of
Colonized Populations in the Natural
Rights Discourses of Francisco de Vitoria
and Immanuel Kant
Colonialism and Its "Subjects"
Page 15 of 111
Colonized 'other' occupies a crucial place in natural rights discourses of influential European thinkers such as
Vitoria and Kant. Contrary to the often held view in postcolonial legal scholarship that the colonized are simply
ignored or massed together with animals when formulating human rights, for some European legal scholars, the
imperial encounters with and increased knowledge of the 'other' presented a complex problem. While the
colonized signified the boundary between the human and the animal, it was crucial to configure their rightful
place within dichotomies such as human/animal, civilized/uncivilized, rational/ irrationals, and culture/nature in
order to advance a doctrine of rights that is universal in scope. Colonized populations, who exhibited signs of
rationality and humanity, but remained 'barbaric' and 'uncivilized' in their behavior and practices in the European
eyes could neither be constituted as non-human, and thus not entitled to any rights, nor could they be granted
similar rights as the Europeans, given their presumed inferiority.
This paper examines how key historical thinkers on natural rights such as Francisco de Vitoria and Immanuel
Kant address the dilemma presented by the colonized other in formulating the natural rights doctrine. Their rights
discourses are founded on taxonomies such as nature/culture and civilized/uncivilized that are products of the
colonial encounter. Establishing the boundaries of these categories remain important to these thinkers in
formulating the rights doctrine. While they challenged and modified existing European views on the colonized by
acknowledging them as of the species human', the imperialist views on the 'irreducible difference' of the
colonized other and their inferiority compelled these scholars to place them in an ambiguous location in relation
to natural rights. This paper argues that for Vitoria and Kant, if colonized are to be fully entitled to their dignity and
rights as humans, these very same rights have to be temporarily suspended until the colonized becomes fully
human under the tutelage of superior Western civilization. They constitute the colonized 'other' as both inside and
outside the European rights discourse, as provisional subjects of rights, and project the possibility of their full
enjoyment of natural rights into an indefinite future. Thus, it appears that for the colonized to become fully
enfranchised subjects of rights, 'civilizing mission' of the empire remains an imperative.
Jean-Philippe
Crete
University of Alberta
[email protected]
Debjani
Bhattacharyya
Daniel
Matthews
Basak
Tara
Adam
Ertur
Mulqueen
Knowles
Steven
Colonial Anxiety and Sovereign
Accusation at the Birth of the Criminal
Code of Canada (1877-1893)
University of Hong Kong
[email protected]
Jurisdiction Otherwise
Macias
Southern Illinois University, Carbondale
[email protected]
Confusion as a Justification for Inequality
Carlo
Pedrioli
Barry University School of Law
[email protected]
Roberta
Kwall
DePaul U. College of Law
[email protected]
Luke
Boso
USF School of Law
[email protected]
This paper examines how colonial discourses on the disposition of criminally accused Indigenous legal subjects
emerged in the codification of the Criminal Code of Canada. Prior to its enactment in 1893, multiple variations of
the Criminal Code of Canada were debated and circulated throughout Parliament and jurists between 1889-1893.
Emerging in these debates and drafts are new and refined punishments relating to crimes that involve Indigenous
people – specifically those that "incite riotous acts". Placed in a historical context and reflecting on the Métis
Northwest Rebellion of 1885, one suspects that the increase in punitiveness is a result of broader colonial
anxieties summoning upon sovereign modes of accusation (e.g.: codified criminal law) to ensure security and
peace in the Dominion of Canada. In drawing upon archived Parliamentary debates, letters, and criminal codes,
this paper will illustrate how politics of Canadian colonial government activate sovereign modes of accusation
through the codification of criminal law.
Chair/Discussant
Jurisdiction Otherwise
Jurisdiction is centrally important to law and jurisprudence but has attracted limited attention in critical and
interdisciplinary scholarship. To the practicing lawyer’s ears, jurisdiction speaks of procedure, standing, and the
conflict of laws. However, jurisdiction has a life beyond these forensic technicalities. Juris-diction is the law’s
speech, naming the expressive register of normativity, the study of which opens a number of questions regarding
performativity, speech acts, as well as the aphonia of law. Focusing on jurisdictional questions is to turn to the
experiential and technical, encouraging us theorize law in terms of its process and procedure rather than in terms
of its norms. An attention to jurisdiction refocuses our attention away from abstract meditations on sovereignty,
towards an appreciation of the material affects law has in shaping legal subjectivities, territorial delimitations and
representations, and our ethical conduct in bringing different legal cultures and traditions into relation.
Law's Response to Social Change: The Case
of Sexual Orientation
Motivated by the use of the concept of confusion in recent political and legal debates over same-sex marriage,
this paper seeks to contextualize that use within a broader framework—broader historically, but also broader in
terms of appreciating the multiplicity of subordinated groups against which the confusion trope has been used. I
am fundamentally concerned with unpacking rhetorical appeals to confusion within larger debates about equality
practice, and how those appeals make their way into legal analysis. Although grounded in philosophy and
historical practice, the paper turns to legal doctrine where confusion-avoidance is an accepted and legitimate
state interest.
Goodridge v. Department of Public Health, In 2003, the Supreme Judicial Court of Massachusetts announced its decision in Goodridge v. Department of
Same-Sex Marriage, and the
Public Health, which was the first state supreme court decision to strike down restrictions on same-sex marriage.
Massachusetts Supreme Judicial Court As Goodridge was controversial, and backlash against the decision was both swift and ongoing.
Critical Social Movement Ally
Without attempting to discount the role of activists in the movement for same-sex marriage, this paper draws
upon social movement theory to examine how the Supreme Judicial Court played a leading role from within the
establishment in furthering the social movement for same-sex marriage in the United States. The paper looks at
the various opinions in Goodridge, as well as the opinions in response to the Massachusetts Senate’s request for
an advisory opinion on Senate No. 2175, a bill that would have offered civil unions but not marriage to gays and
lesbians, to see how the members of the Court, divided four votes to three in both sets of opinions, constructed
or refrained from constructing marriage as a right that should be available to gays and lesbians. The paper
proceeds by offering a brief note on social movement theory in the field of rhetorical studies, examining the
various opinions in Goodridge, and reviewing the ensuing advisory opinions on Senate No. 2175. This
discussion should contribute toward a greater understanding of state supreme court rhetoric of same-sex
marriage and also offer some refinement of social movement theory, particularly with regard to how a faction
within a fractured establishment can further a social movement.
The Culture and Law of Homosexuality in My paper explores how each of the three major Jewish denominations grapples with the tradition’s ban on
Judaism
homosexuality that is derived from the Torah. The discussion highlights the progression and nature of the
discourse in the denominations, particular in recent decades. Within Judaism, the most visible disputes about
homosexuality relate to matters that are very public in nature, such as the performance of same-sex commitment
ceremonies and the rabbinic ordination of openly gay individuals. The analysis reaffirms that halakhah and the
culture from which it has been derived are inextricably intertwined. Specifically, when law and culture are seen as
separate domains, it becomes impossible to maintain a shared language and continuity of the tradition. On the
other hand, when there is a complete resistance to incorporating a consideration of current cultural norms in legal
interpretation, the tradition may suffer from paralysis.
Sexual Orientation Stereotyping
What does it mean to discriminate because of sexual orientation? Many states and municipalities have in recent
years enacted laws that prohibit discrimination because of sexual orientation—in housing, in employment, in
education, and in places of public accommodation. Despite the proliferation of statutory LGB-inclusive antidiscrimination protections, some significant questions remain unanswered regarding the contours of actionable
sexual orientation discrimination claims. This Article addresses one way that courts have permitted plaintiffs to
prove discriminatory intent in other contexts, such as sex and race discrimination, which is to rely on evidence of
stereotyping.
But courts have demonstrated enormous difficulty and inconsistency in evaluating evidence of sex stereotyping,
which has in turn narrowed the pool of potential claimants who can seek refuge under the law’s protective reach.
Courts’ difficulty in analyzing evidence of sex stereotyping has led to ill-conceived, judicially defined definitions of
masculinity and femininity. If sexual orientation discrimination law likewise permits plaintiffs to present evidence
of stereotyping to demonstrate a defendant’s intent to discriminate “because of sexual orientation,” what kinds of
evidence will suffice and how should courts analyze that evidence? The way that courts answers these questions
in some ways affects the cultural meanings of sexual identity categories such as gay, lesbian, bisexual, and
straight, which in turn affects who is included in and marginalized by those categories. When evaluating evidence
of sexual orientation stereotyping, then, the law should not embark on a course similar to sex discrimination law
by offering a universalizing definition of gayness or straightness. Culturally, this would stilt the malleable and
countercultural spirit of what it means to be queer. Legally, this would exclude plaintiffs who don’t fit into a judge’s
narrow perception of what it means to be gay.
Sarah
Burgess
Chair
Page 16 of 111
The Roles of Age, Race, Gender, and Doctrine
in Judicial Decision-Making
Accusation and Punishment
CHAIR
Jessie
Allen
Assistant Professor, University of
Pittsburgh School of Law
[email protected]
Doctrine, Ritual and Impartiality
Amanda
Fisher
Savannah Law School
[email protected]
Gendered Judicial Empathy
Helene
Love
University of Toronto
[email protected]
Ageism and the Language of Judgments
Meagan
Rafferty
Savannah Law School
[email protected]
Diversifying Jurisprudence: An Argument
For An All-Minority Supreme Court
Anne
Dailey
Keally
McBride
University of San Francisco
[email protected]
Accusation and Punishment
Elisabeth
Amy
George
Anker
Swiffen
Pavlich
Robyn
Marasco
Hunter College, CUNY
[email protected]
James Martel, "The One and Only Law:
Walter Benjamin and the Second
Commandment"
Panu
Jill
Adam
Minkkinen
Stauffer
Thurschwell
Ruth
Buchanan
Associate Professor
[email protected]
Approaches to Aesthetics, Justice and
Law
Anne
Christine
Frey
Hegel-Cantarella
TCU
Western Connecticut State University
[email protected]
[email protected]
Doran
Larson
Hamilton College
[email protected]
Chair
James Martel, "The One and Only Law: Walter
Benjamin and the Second Commandment"
CHAIR
Can we reconstruct a legitimate role for doctrine by envisioning it as a practice that affects legal decision makers,
rather than dictating legal decisions? Drawing on recent psychological studies and ritual and performance
theory, this article offers a theory of how doctrinal reasoning might contribute to judicial impartiality, even if
doctrine is wholly indeterminate. Rather than substantively identifying or narrowing a range of objectively correct
legal outcomes, doctrinal reasoning may broaden or shift judges’ ordinary subjective points of view. The
conventional practice of analyzing recognized authoritative sources through traditionally developed methods
might facilitate judges’ stepping outside of their ordinary personal perspectives. In this way formal doctrinal
reasoning could contribute to legality—not by directing substantive results, but as a professional practice that
alters judges’ ordinary point of view.
Undeniably, gender differences play a large role in the conversation about judicial decision-making. This Paper
explores how a judge’s background may influence decision-making, and whether it is preferable for the judicial
decision-making process to embrace or ignore empathy from any gender. In 2009, Justice Sonia Sotomayor’s
confirmation hearings sparked the reemergence of a debate colloquially known as the “Empathy War.” The
Empathy War is a debate focused on whether women can make decisions based on law or whether they will
“vote their gender.” Gender stereotypes assume that women have difficulty separating emotional triggers from
the facts of a situation, while men can make a decision based purely on logic. This reasoning is illogical and
disserves both men and women. This Paper argues that empathy does not have the negative connotations of
bias and therefore should be viewed as a positive quality in a prospective judge of any gender.
In this paper I will describe how ageism and ageist language permeates one aspect of culture, written judgments.
Written judgments reflect the application and interpretation of the law as pronounced by some of the most
respected members of society: judges. Given the widespread influence of judgments, it is important that the
language employed in judgments does not perpetuate negative stereotypes about older adults. In the first part of
the paper I will describe the fundamental importance of language in creating and perpetuating power
relationships within society. In the second part of this paper I look at a clear example of how language has been
used as a tool of oppression by describing the exclusion of women from the definition of “persons” in legislation.
In the third part of this paper I will argue that ageism is perpetuated in written judgments by the use of ageist
terms. Today, a word that is considered ageist is “elderly”. The fourth part of this paper uses the word “elderly” as
a case study in order to demonstrate how the meaning of a word depends in a large part on the context and the
social climate at any given time.
Chief Justice Roberts famously analogized Supreme Court Justices to umpires who call "balls and strikes,”
reflecting the common belief that judges must be "neutral.” Judges, however, like everyone, make decisions
based on knowledge and perspective acquired from prior life experiences. Of the 112 Supreme Court Justices,
106 have been white, ostensibly straight men. White, straight men have thus decided nearly every constitutional
question in our history, which created the precedent to which current and future Justices owe deference.
Because of this demographic history and the nature of stare decisis, this paper proposes that the Court
fundamentally shift to consist entirely of lesbian and bisexual Justices of color. With a goal of balanced judicial
perspectives, rather than neutral judging, swinging to one extreme begins to compensate for the time spent at the
other extreme. The pendulum can then eventually settle in the middle to achieve genuine, enduring balance on
the Court.
Approaches to Aesthetics, Justice and Law
Page 17 of 111
Accusation and Punishment
In many instances, practices of accusation initiate criminalizing processes that enable state authorized
punishment. This panel will focus on various precipitating accusatorial forms, countenancing their effects and the
possibilities for alternative forms of governance.
Author Meets Readers: Gruesome Spectacles:
Botched Executions and America's Death
Penalty by Austin Sarat
CHAIR
Austin
Sarat
Amherst College
[email protected]
Author Meets Readers: Gruesome
Spectacles: Botched Executions and
America's Death Penalty by Austin Sarat
This panel will focus on Austin Sarat's recent book to consider among other things, the cultural life of capital
punishment, ideas of scientific progress as they play out in the history of the death penalty, and the significance
of botched executions in the story of America's death penalty
Daniel
Naomi
Karl
Austin
LaChance
Mezey
Shoemaker
Sarat
Andrew
Poe
Amherst College
[email protected]
The Meaning of Death for the Meaning of
Law
How does the meaning of death condition the meaning of the law? Lethal violence has traditionally been viewed
as either exterior to the law, or – conversely – as the legitimate monopoly on the state. These contrasting
accounts seem to depend on an all-too-stable definition of deadly violence. This panel hopes to problematize the
meaning of death, and in so doing, rethink the relations between lethal violence and the law. What is the purview
of lethal violence? Is the law legitimated or de-legitimated by such violence? What, in a democracy, is the
contemporary place of violence? Are there forms of death that democracy now depends on? The papers on this
proposed panel aim to reconsider the meaning of such violences and rhetorics of death as a rethinking of the law.
Simon
Thomas
Steven
Stow
Dumm
Jonston
Chair
Nicolette
Bruner
University of Michigan
[email protected]
The Limits of Legal Personhood in
Tobacco Country: Robert Penn Warren’s
Night Rider (1939) and the Black Patch
War
Marc
Roark
Savannah Law School
[email protected]
Robert Penn Warren's Southern
Exceptionalism
From 1905 to 1911, in Western Kentucky and parts of Tennessee, tobacco farming was war. Growers of the
region’s specialty, a type of dark green, smoke-cured tobacco, formed the Dark Tobacco District Planters’
Protective Association (PPA) in an attempt to counteract the monopolistic power of the American Tobacco
Company. Although it initially encouraged farmers to join the organization peacefully, frustration within the PPA
gave rise to a splinter organization, the “Silent Brigade,” that sought to raise the price of tobacco by decreasing
the supply—salting and raking tobacco beds, at first, then burning and dynamiting whole warehouses. The Black
Patch War, as it became known, would not die down until the Supreme Court held the American Tobacco
Company in violation of the Sherman Antitrust Act in United States v. American Tobacco Co., 221 U.S. 106
(1911).
A native of Guthrie, Kentucky, the epicenter of the Black Patch Wars, Robert Penn Warren wove this history of
cooperation and conflict into his first novel, Night Rider (1939). In this paper, I examine the multiple layers of law
operating within the novel, from the twin trials (one for murder, one for terrorism) that bookend the novel’s action
to the internal codes that bind the communities operating in the novel. In particular, I look at the Association of
Growers of Dark-Fired Tobacco (the novel’s version of the PPA) as an attempt to counteract the corporate person
of the tobacco purchasing company. I argue that the violent splintering of the Association offers a critical glimpse
into the challenges of group personhood in the context of the tobacco wars in Kentucky. Set in a moment when
real entity theory – the notion that a group person can arise out of collective will alone – was ascendant among
theories of corporate personhood, but written in a moment when real entity theory had become outdated, Night
Rider illustrates the flaws in the theory’s glorification of a unanimity of thought that, in practice, could not exist.
Conversely, even as the novel laments the pernicious effects of corporate power, it cannot help but praise the
effectiveness of those organizations – corporate and governmental alike – that manage to combine shared ideals
with formalized legal roles in a manner congruent with artificial entity theory.
This article confronts two forms of exceptionalism in Robert Penn Warren’s literature: personal exceptionalism
and corporate exceptionalism. Both forms are present in a variety of Robert Penn Warren’s work, including his
enduring political work All the King’s Men, his novel of return Flood, his political essays titled Democracy and
Poetry, and his memoir Jefferson Davis Gets his Citizenship Back. In each of these works, Warren confronts the
meaning of self and society as both actually and perceived exceptional creations of society. Importantly for
Warren, both place and law are reflections of these types of identity-bound exceptionalisms, and leave some
people as exiles in the land they occupy.
Chris
Geyer
Sara
Kathryn
Murphy
Temple
NYU/Gallatin
[email protected]
The Meaning of Death for the Meaning of Law
Saturday, March 07, 2015
Personhood in the literature
9:00-10:30 Self, Society,ofand
Robert Penn Warren
Chair/Discussant
Law and Aesthetics
Law and Aesthetics
Chair
Law, Life and Exclusion
Page 18 of 111
CHAIR
Jurispolitics: Law, Legitimacy, Power
CHAIR
Love and Loss in the Legal Archive
CHAIR
Michaela
Brangan
Christopher
Seeds
Eric
Sapp
Aisha
Anna
Ghani
Krakus
Alecia
Simmonds
Honni
Gian-Marco
Van Rijswick
Vidor
Intellectual Property Narratives: France, Italy,
U.S.
First Name
Last Name
Cornell University Dept of English
[email protected]
Law, Life, and Exclusion
In what ways do modern conceptions of biological life and bodily regulation intersect and influence legal practices
and concepts? In thinking about these intersections, how might we then theorize the captive human body as a
site for social and legal critique? The papers on this panel, coming from disparate academic fields and focusing
on different areas of law, unite in thinking about the permanent exclusion under law of particular bodies, and how
such policies and practices might relate to those concerning the security and health of the broader population.
Put another way, the panel asks how and to what extent legal policies that serve to cut off certain members
permanently from society may extend beyond the punishment of the individual or formal justice goals per se to
implicate broader administrative ends that do not reveal themselves readily.
Stanford University
[email protected]
Jurispolitics: Law, Legitimacy, Power
Neither separable from nor reducible to the political, the juridical is a structured terrain for political contestation.
Invocations of law are used to legitimate and, sometimes, to delegitimate state power. The clash of legal ideals,
judicial processes and extra-juridical practices present a history of ideological claims to sovereignty and
subjectivity. The panel will compare a few attempts at reconfiguration or refusal of the notion of legal legitimation
of power.
University of Technology Sydney
[email protected]
Love and Loss in the Legal Archive
This panel examines the historical expansion of law's jurisdiction into matters of the heart and the hearth. The
papers encompass nineteenth-century Italian criminological ponderings on the problems of passion; colonial
Australian women's efforts to seek financial remedies for broken amorous promises; and the use and abuse of
the figure of the Australian Aboriginal child in law's violent imaginary. In so doing, we discuss the vexed
relationship between law and emotion and how the state, represented by judges, legislators, legal theorists and
the law, have ruled on matters of sexuality and family life.
Company
Email
Title of Proposal
Sue
Liemer
Southern Illinois University School of Law [email protected]
Bernardo
Piciche
Virginia Commonwealth University
[email protected]
Jorge
Contreras
University of Utah - College of Law
[email protected]
Narratives of Gene Patenting
Proposal Text
France had no statute for moral rights until 1957, despite being the international leader in this area of the law for
100 years before that. This paper examines a series of interesting relevant French court cases decided during
the years of the French Revolution and shortly after it. In these cases, just as the Napoleonic Code becomes the
law of the land, French judges stretch to find equitable results for starving artists and their starving descendants.
In doing so, the courts start developing le droit moral, via case law.
Italian law believes that it is "just" to preserve a national heritage for the sake of "ethos" (that in Greek is related
to the mores of the past.) Beauty and history become a collective good. For this reason, most art works cannot
be part of a private possession (people have private galleries, but with the monitor of the state. Owners of art
have to report it to the state, like owner of exotic pets...). Similarly, many works of art cannot be sold abroad (a
Roman statue that one finds in one's own garden, belongs to the state not to the owner of the garden. It is not
res nullius, to use a legal concept, like a treasure found in the middle of the sea). This paper examines the idea
that beauty and public utility are connected, indeed, that the state has a right to regulate beauty for the public
good.
The debate over gene patenting in the United States has been ongoing for nearly three decades. It reached a
climax in June 2013, with the Supreme Court's decision in Assn. for Molecular Pathology v. Myriad Genetics.
The Myriad case was remarkable for many reasons, not least because it fostered the engagement of hundreds of
scientists, physicians, patients, lawyers, activists and policy makers, each of whom expressed a view regarding
the case and gene patenting, more generally. From this multitude of voices emerged six distinct narrative types
that recounted the "facts" in the case. I have termed these the Science, Innovator, Administrative, Access,
Dystopian and Congestion narratives. In this article, I trace the origins of each of the narrative types in Myriad
from press accounts, published literature and the record in the case, including nearly one hundred separate
amicus briefs filed at all stages of the litigation. I then assess how each narrative type influenced and became
incorporated into the resulting judicial decisions. There is a strong correlation between the narrative types
employed by a speaker and the normative case outcome desired by that speaker. This correlation occurs not
only when the narrators are litigants or amici curiae, but also judges. This finding suggests that the judges
issuing decisions in the case calibrated the narratives or “facts” expressed in their opinions to align best with the
doctrinal outcomes that they desired.
The six narrative types that emerged in Myriad also constitute at least a partial taxonomy of narrative types within
the broader realm of disputes involving new technology, scientific discovery and innovation. Thus, whether a
dispute involves gene patenting, genetically modified organisms, nanotechnology or self-driving vehicles, it is
likely that some or all of the narrative types in the Myriad case will make an appearance. However, the same
narrative types in different technological settings do not always appear to support the same doctrinal outcomes.
Thus, narrative type cannot be said to be determinative of case outcome without additional context provided by
the narrator’s perspective, audience and worldview.
Madhavi
Sunder
Chair/Discussant
Assimilation of Immigrants and Refugees
Page 19 of 111
Leif
Dahlberg
Kungliga Tekniska högskolan
[email protected]
Forms and conditions of court
interpretation in Stockholm lower level
courts: Implications for access to fair trial
(ECHR, article 6.3e)
Quyen
Vo
U.S. Court of Appeals for the Ninth Circuit [email protected]
As in many other Western countries, immigrants and people with immigration background are overrepresented in
court cases in the Swedish judicial system, both in civil and criminal cases. In most of these cases, it is
necessary to have a court interpreter, a right spelled out in the ECHR, article 6.3: “Everyone charged with a
criminal offence has the following minimum rights: […] e: to have the free assistance of an interpreter if he cannot
understand or speak the language used in court.” This is the case even when the person – party or witness –
knows Swedish, since on one hand he/she is not familiar with legal language and on the other he/she is not able
to express him/herself as well in Swedish as in his/her native language. The quality of court interpretation – which
is a function both of the quality of the interpreter and the conditions under which he/she is working – is therefor
an important part of giving people with immigration background access to a fair trial. The paper investigates the
conditions of court interpretation and how it affects the legal process, both inside the courtroom and outside,
focusing in particular on the question of having access to justice and the implications for a fair trial. The paper is
based in part on an ethnographic study of court interpretation in three Stockholm lower level courts (Solna
tingsrätt, Stockholms tingsrätt, Södertörns tingsrätt); on interviews with authorised court interpreters, judges, and
legal counsel; and on literature studies. The result is in part descriptive, presenting and analysing the protocols
for interpretation, the role of the interpreter, the use (or not) of telephone and video-mediated interpretation; in
part suggesting ways to improve the conditions for interpreters – including increased use of video technology –
and thereby the quality of interpretation, which would increase the access to fair trial for people with immigrant
background.
Refugee Integration and the Mixed
This paper examines the resettlement of Hungarian and British ‘refugees’ in Britain between 1956 and 1958 to
Economy of Welfare: The Resettlement of raise broader questions about the nature and the scope of state and voluntary sector relations with respect to
Hungarian and British ‘Refugees’ in
refugee integration. The narrative highlights historical parallels of movement of refugees in Europe and recurrent
Britain, 1956-58
questions about integration.
The paper demonstrates that the different resettlement schemes for the Hungarian and British ‘refugees’ were
shaped largely by the government’s broader distinction between refugees admitted as an act of benevolence and
‘refugees’ resettled as a matter of government policy; the former group was deserving of British asylum but may
not be worthy of full state support whereas the latter group required extensive state assistance. This distinction
is not viable as an official refugee integration policy because the resettlement of Hungarian and British refugees
demonstrated that the welfare of all refugees accepted by the government was a matter of state obligation.
Veronica
Hendrick
John Jay College of Criminal Justice
(CUNY)
[email protected]
Sara
Ross
Sylvia
“Chinese Immigrant Labor: Water Ghosts
and the Consequences of the Chinese
Exclusion Act”
Schafer
University of Connecticut
[email protected]
Stacey
Tovino
William S. Boyd School of Law, University [email protected]
of Nevada, Las Vegas
Giving Thanks: The Ethics of Grateful
Patient Fundraising
Jantje
Technau
Kent Law School
Antenatal Care, Alternative Medicine and
the Law
Elisabeth
Anker
Marco
Wan
Set in the early 1900s, Shawna Yang Ryan’s novel Water Ghosts reveals the troubling realities faced by the
Chinese community living in Lock, California. The repercussions of The Chinese Exclusion Act, which curtailed
the influx of Chinese immigrant laborers into United States, began to be felt by the community soon after it was
signed into federal law in 1882. The subsequent 1888 Scott Act prohibited Chinese American citizens from reentering the country. In a 1912 work, Mrs. Spring Fragrance, by Sui Sin Far (Edith Maud Eaton), problematic
situations faced by both ethnic Chinese and those of blended western and Asian ancestry are explored in the
context of the United States’ social and legal structures. Using Ryan’s work and that of Sui Sin Far, this paper
will explore the intersection of literature and law in relation to Chinese immigrant labor in the United States.
Chair/Discussant
Law, Illness, and Medicine
[email protected]
Reciprocity, Equivalence, and Difference:
Law, Illness, and Outsiders in Late
Nineteenth-Century France
This talk will explore new efforts in this period to address to the perennial question of how and when to care for
foreigners in physical distress. The fin-de-siècle transformations in the French state’s understanding of charity,
hospitality, and rights accompanied the broader coalescence of a new language for governing difference across
national borders – and the borders of health and sickness -- through tropes of equivalence and exchangeability.
This new language would in turn provide a crucial figurative foundation for bilateral reciprocal assistance accords
drafted on the eve of World War I and concluded between France and its neighbors after the war’s end. French
authorities and jurists thus delineated an important interstitial space in twentieth-century practices of governing
non-nationals that depended neither on an ideal of common human identity nor on a unyielding principle of
xenophobic exclusion. This was a space of conditional welcome that left difference firmly in place.
Grateful patient fundraising, defined as the solicitation of philanthropic donations by health care providers from
current and former patients, raises a number of legal and ethical issues of concern to attorneys and medical
humanists. That is, physicians who solicit philanthropic donations from their own patients risk conflicted health
care decision making, health care resource allocation injustices, financial exploitation, breach of confidentiality,
and breach of privacy. My paper identifies and reconciles two bioethical catch-22s associated with grateful
patient fundraising. First, approaches to health care philanthropy that pose the lowest risk of breach of
confidentiality increase the likelihood of conflicted decision making. Second, approaches to health care
philanthropy that avoid conflicts of interest increase the likelihood of breach of confidentiality. To lessen these
risks, my paper proposes new ethical guidelines governing physician involvement in grateful patient fundraising.
More broadly, my paper recommends that law, culture, and the humanities play a role in the development of
hospital philanthropy initiatives.
This study looks into the possibilities of including more holistic care into biomedical antenatal care as provided by
the UK’s National Health Service. This paper highlights the lack of care in the first trimester in western medicine
and the focus on screening over care in the entire antenatal period. It shows the lack of clarity in UK employment
law which should facilitate the care of parents during pregnancy. It concludes earlier and more regular antenatal
care is needed in order to insure that women are seen as more than just a vessel carrying new life, moreover the
legal framework needs to be more concise with regards to what qualifies for time off work and adapt maternity
leave laws in order to take into account the possibility of “overdue” babies.
Chair
Legal Consciousness, Rhetoric, and Dissent:
China Past and Present
University of Hong Kong
[email protected]
The 'Umbrella Revolution', Hong Kong and This paper examines the ways in which the term ‘rule of law’ has been used in the political and cultural discourse
the Rule of Law
on Occupy Central, or the ‘Umbrella Revolution’, in Hong Kong. The Movement, sparked by Hong Kongers’
discontent about the pace of local democratization, has been repeatedly condemned by both the Chinese and
Hong Kong governments as being against the rule of law. It has also captured the attention of the international
media. This paper examines ‘classic’ formulations of the ‘rule of law’ by figures such as A.V. Dicey and Joseph
Raz, and assesses the ways in which the use of the term in current discourse overlaps with, and deviates from,
such formulations.
Page 20 of 111
Hsiao-tan
Wang
National Chengchi University
[email protected]
Self-other relationship and law in everyday Law in everyday life may reflect not only self-other relationship but also legal value and legal thought in a
life: in the context of Chinese culture
particular culture. In Chinese culture where self-other relationship is not easy to separate into individual
relationships, the facts before the law in everyday life may be represented with fiction as people do not like to
confront conflicts and clarify rights and duties with others. In this paper, we focus on legal consciousness in
Chinese culture and develop three ideal types (simplify the law, mask the law and declare the law) to
demonstrate the way people deal with potential conflicts. We collect stories and emphasize the cultural context of
facts construction with its role in the construction of law in everyday life. Our ethnographic fieldwork suggests the
importance of self-other relationship to clarify and develop different legal values and legal thoughts in a post-legaltransplanted/ post-legal-colonial society.
Literature and Law: Examined from the
In Ming China (1386−1644), a type of novel called Gong An Novels or Shu Pan Ti Novels developed form court
Interactions between Judicial Opinions
cases. They were designed to exemplify to the public and attorneys how to prepare documents, how to file a
and Gong An Novels in Ming China
lawsuit, and how a lawsuit should proceed. Furthermore, the Ming government encouraged court judgments to
be written in the style of rhythmic prose. Characterized by parallelism and ornateness these judgments were
meant to impress litigants as well as the public and emphasize the formality and authoritativeness of the court
decisions. Representative judicial opinions were collected into books and published, some of which are kept till
today. By examining the interactions between literary productions and court rulings in Ming China, this article
explores the causes for the blending of law and literature throughout Chinese history and investigates the
resurgence of scholastic and official requests to combine law and literature in modern China.
Chair/Discussant
Yan
Sun
Ms
[email protected]
Paolo
Farah
Nicole
Lindahl
UC Berkeley
[email protected]
Danielle
Boaz
Drake University
[email protected]
On Witches and Crack Whores: Gender, This paper analyzes reports from the local media and US government on crack cocaine use from 1985 - 1990,
Deviance and the Politics of Reproduction the height of the drug scare, and compares the depictions of female crack users to the portrayals of women in the
in Europe and the US
Malleus Maleficarum (1487) and the Compendium Maleficarum (1607), documents justifying and standardizing
the persecution of witchcraft across 16th and 17th century Europe. Both groups of women were portrayed as
having intimate relations with an overwhelmingly powerful force that robbed them of agency: for minority US
women in the 1980s, crack; for 16th and 17th century European women, the devil. I argue that the similarities in
these gendered narratives across space and time ultimately speak to a broader and deeper anxiety plaguing
patriarchal societies: women’s inherent control over the machinery of reproduction.
Obeah, Witchcraft, and the “Pretended”
In many former British colonies in the Caribbean, statutes proscribe the practice of “obeah” and prohibit an
Use of “Supernatural Powers”: Evaluating individual from “pretending” to possess any “occult” or “supernatural” power. Through a case study of the
the Meaning of Freedom of Religion in the passage and enforcement of obeah legislation in Jamaica, I interrogate why these broad and vague statutes from
Anglophone Caribbean
the colonial era have remained in effect and largely uncontested despite national and international mechanisms
protecting freedom of religion in most Caribbean nations. The majority of those prosecuted for violating these
laws are/were individuals who performed African-derived forms of divination, medico-religious healing and other
rituals without invoking the assistance of a god or divinity. I explore the possibility, therefore, that the reason that
obeah laws are still in effect and relatively unopposed is that non-theistic African belief systems fall outside the
legal definition of “religion” in the context of protected civil and political rights in the Anglophone Caribbean.
Shimelis
Kene
McGill University
[email protected]
Legal Rituals
Witchcraft, Deviance, and the Rituals of Law
Ritual is considered an “essential constitution” of society (Chase: 3). Ritual plays crucial roles in the maintenance
of political systems and in the operation of criminal sanctions. As Glenn correctly observes, ritual is not “passive
deference to external patterns” (Glenn: 327). In fact, ritual is inextricably ingrained in the specific social context
and it draws its normative force from a deep sense of allegiance by its adherents.
However, despite the ubiquitous presence of rituals in the major legal traditions of the world and the nexus
between law and ritual in legal processes, rituals are largely ignored in the academic study of law. Therefore I
ask, 1) what exactly is the relationship between law and ritual? 2) What functional similarities the two share? and
3) What practical significance rituals have in legal processes generally? In my paper, I explore these questions in
the context of legal processes, with legal anthropology as a methodological approach.
--1. Oscar Chase. “Law, Culture, and Ritual: Disputing Systems in Cross-Cultural Context” (New York: New York
University Press, 2005).
2. Patric Glenn. “Legal Traditions of the World” (Oxford: Oxford University Press, 2010).
Thresholds of Legibility in Post-Conflict
Resolution
CHAIR
Cynthia
Merrill
Chair/Discussant
Sangina
Aaron
Barabra
Patnaik
Bady
Harlow
Swarthmore College
[email protected]
Thresholds of Legibility in Post-Conflict Resolution
Nancy
Marder
Chicago-Kent College of Law
[email protected]
Juror Bias, Voir Dire, and the Judge-Jury
Relationship
Sonali
Chakravarti
Wesleyan University
[email protected]
Jurors and Subversive Democracy
Juries
Page 21 of 111
In the United States, voir dire is viewed as essential to selecting an impartial jury. Judges, lawyers, and the
public fervently believe that a fair trial depends on distinguishing between prospective jurors who are impartial
and those who are not. However, in England, Australia, and Canada, there are impartial jury trials without voir
dire. This paper challenges the assumption that prospective jurors enter the courtroom as either impartial or
partial and that voir dire will reveal the impartial ones. Though voir dire fails as an "impartiality detector," this
paper explores how voir dire contributes to the trial process in two critical ways. First, voir dire helps transform
"reluctant citizens," who might have biases into "responsible jurors," who are able to perform their role impartially.
Second, voir dire lays the foundation for the judge-jury relationship, which is aided by other practices, such as
interactive jury instructions.
Can juries be a space where individuals learn to be thoughtful rule-breakers? Contrary to assumptions about
jurors being Tocquevillian upholders of democracy or docile bodies in the institution of the court, I will examine
whether and how jury service might cultivate skills of subversive democracy, including the opportunity for those
who are not normally given decision-making power to express discontent with the law. Moreover, the skills of jury
service provide a way to think about the fallibility of legal authority in a way that can be transferred to the political
realm. This paper will examine theories of authority in the writings of Dworkin, Raz, and Arendt in order to
elucidate the basis of legitimate disobedience in relation to the jury as well as the differences between legal and
political authority.
10:45-12:15
Kathleen
Shapley
Linda
Meyer
Birte
Christ
Simone
John Cyril
Knewitz
Barton
Caroline Joan
University of Texas at Austin
[email protected]
A Trollopian Vision of Community Justice: This paper examines how Trollope's fictional legal narratives engaged with Victorian debate regarding the
The Three Clerks and Orley Farm
respective roles of professional advocates and juries. In the nineteenth century, a tension existed between the
vision of the jury as the “palladium of justice” and the notion that “There is hardly an assize which would not
furnish a chapter for 'Punch.'” Using a law and literature methodology to analyze this tension within Orley Farm, I
intend to present a radical Trollope who grapples with the repercussions of modernity in drawing his vision of
community justice. Analyzing the significance of Trollope's legal narratives also requires consideration of
barristers' criticism of Trollope's legal inaccuracies. This paper will analyze the discursive struggle between legal
and literary discourses through a structuralist perspective, which allows me to extend my analysis to consider the
afterlife of Trollope with the legal scholarly community as a tool in the teaching of legal ethics.
Chair
Property and Punishment: Discourses on
Legal Subjecthood in Antebellum Era
UC Irvine / Giessen University, Germany [email protected]
Property and Punishment: Discourses on
Legal Subjecthood in the Antebellum Era
Legal and extra-legal discourses around property and punishment, we propose in this panel, played a central role
in shaping the concept of legal subjecthood in antebellum America. Property rights, penal regimes, the extralegal
debate about them and the aesthetic engagement with them circumscribed the legal subject, but in extension
also negotiated who was considered a citizen, a subject, a person – questions that, in the antebellum period,
were inextricably linked to racial issues. Looking at slavery in the south and at penal institutions in the north, this
panel explores under which circumstances people could be considered property and how property and
personhood were constructed as (mutually exclusive) mirror terms, how public notions of the “good” convict
interpellated both the educatable person and, vis-à-vis that convict, the responsible citizen, and how the
ascription of criminality rendered people responsible legal agents and thus granted or withheld measures of
personhood.
Picart
Tim Bower Rodriguez, P.A.
[email protected]
Toward a Poethics in Film and Law:
Documenting Real/Reel Representations
of the Holocaust and Holocaust Trials
Ruth
Buchanan
Associate Professor
[email protected]
Global Justice and the Cinematic Slum:
Ethics and Aesthetics”
Alex
Feldman
MacEwan University
[email protected]
The Perpetrators' Theatre: Forensic
Sobriety and Subordinate Villainy in
Recent Verbatim Plays
This paper examines the general trajectory of the role film has played in relation to the evolving historical and
legal narratives of the Holocaust. This is because in relation to Holocaust representations, there is a complex
historical arc. It begins with analyzing a documentary film, Nazi Concentration Camps (1945), which functioned
as a “self-evident” witness during the Nuremberg International Military Tribunal (IMT). It then analyzes docudramatic depiction, embedding documentary footage into fictional rendition, as in Stanley Kramer’s Judgment at
Nuremberg (1961). Finally, it analyzes a “historical”/popular cultural document, Steven Spielberg’s Schindler’s
List (1993). In Schindler’s List, black and white film simulates the look of the “real” in order to appear
documentary, and substitutes for documentary footage.
The thrust of the paper is genealogical and deconstructive but it also raises the possibility of a “poethics” (to
borrow and adapt Richard Weisberg’s term) of the production and reception of Holocaust-related films.
“In the face of mounting evidence of intensifying inequalities in most parts of the world, it is difficult to debate the
urgency of global justice as an ethical demand. At the same time, the persistence of extreme poverty in many
parts of the globe presents a challenge to the claim that the world will make good on this promise. This paper
seeks to contribute to a critical literature on global justice through considering it in terms of an aesthetic rather
than an ethic. I will do so through a close examination of cinematic depictions of poverty such as those found in
the films City of God and Slumdog Millionaire. What is the relation between the aesthetic and the ethical in these
portrayals? What aesthetic pleasures and affective engagements do they incite? How might they speak both to
the promise and the failure of global justice?
Reading the "Tribunal Plays", performed over the last twenty years at London's Tricycle Theatre, through debates
surrounding the Eichmann trial, this paper presents the minimalist aesthetics of the verbatim stage as a
corrective to the “theatricality” central to Hannah Arendt’s critique of the trial’s jurisprudential irregularities. I argue
that where the responses of Susan Sontag, Shoshana Felman and others to events in Jerusalem in 1961 can be
read as contributions to the emergent field of trauma studies, Arendt’s critique (insisting that the trial paid
insufficient attention to the defendant and was preoccupied, unjustifiably, with witness testimony), seems to
gesture towards what we might think of as a perpetrator studies. Characterised by their own paradoxically antitheatrical aesthetics and concerned, as Arendt is, with the deeds of the perpetrator (and his obfuscating speech)
rather than with the suffering of his victims, the Tribunal plays’ treatment of contemporary criminality establishes a
perpetrators’ theatre.
Richard
Sherwin
Josephine
Ross
Sarah Jane
Susan
Julie
Forman
Tanner
Lane
Daniel
McLoughlin
James
Steven
Martel
DeCaroli
Ethics and Aesthetics in Cinematic and
Theatrical Responses to Atrocity and Poverty
Chair/Discussant
A Feminist Perspective on How the Criminal
Justice System Treats People. From Street PatDowns to Prisons
Howard University School of Law
[email protected]
"A Feminist Perspective on How the
Criminal Justice System Treats People,
From Street Pat-Downs to Prison"
Chair
Law, Economy and Political Action
UNSW
[email protected]
Page 22 of 111
Law, Economy and Political Action
Giorgio Agamben has been one of the most important political thinkers in continental philosophy over the past
decade and law has been, from the beginning, at the centre of his political thought. But, although the early
volumes of the Homo Sacer project were influential, they were also criticised for failing to address non-juridical
forms of power and for lacking an account of political action. Agamben’s recent publications have directly
addressed these problems by investigating the genealogy of economy and articulating a non-juridical politics of
‘use’ that renders law and economy inoperative. This panel explores the implications of Agamben’s recent work
for the analysis of law and practices of resistance and reconsiders the political and philosophical stakes of the
Homo Sacer project.
Fictional and Non-Fictional Narratives of
Criminal Law and Prison Life
Emily
Hainze
Columbia University
[email protected]
Raphael
Ginsberg
University of North Carolina at Chapel
Hill
[email protected]
Shawn
Peters
University of Wisconsin-Madison
[email protected]
Laura
Appleman
Willamette University College of Law
[email protected]
Melissa
Ganz
Aniket
Kesari
University of California, Berkeley
[email protected]
Zac
Stone
UC Irvine
[email protected]
“‘My Future Is To Be Better Now’: Reading While recent critical conversations tend to imagine the prison as a space of total dehumanization and social
Case Files from the Bedford Hills
death, I look to the institutional archive of women’s incarceration to explore the prison as a space in which social
Reformatory”
categories such as race and gender were not only institutionally produced, but also contested and reshaped. This
paper specifically investigates the discordant forms of social life emerging from the New York State Reformatory
for Women at Bedford Hills, a prison that pioneered the study of female delinquency and prostitution at the turn of
the century in the United States. Attending to the genre of the prison case file, I argue that the formal composition
of these files – from records of mental and physical examinations to love letters and poetry exchanged between
incarcerated women – at once construct a body of criminological knowledge that imagined new forms of classed
and racialized citizenship, while also illuminating the ways in which incarcerated women forged unexpected
intimacies and affiliations that destabilized the reformatory’s rehabilitative agenda.
Who’s the Real Other?: Comparing
This paper compares constructions of sexuality in Prison Rape Elimination Act (PREA) testimony and debates in
Orange is the New Black and Prison Rape 2003 to those in Orange is the New Black (OISNB). PREA recommended stricter sexual violence monitoring and
Elimination Act Discourse.
robust treatment for victims of sexual assault. Debates preceding the passage of PREA painted a grim picture of
prison sex: victimization was rampant and healthy sexual relationships were impossible. By contrast, while sex in
OISNB can be violent and exploitative, it is also comical, functional, and erotic.
Neither discourse offers the “correct” version of prison sexuality. Both strive to achieve specific goals, either to
establish a crisis of sexual victimization or to entertain, and each utilizes specific tropes. PREA capitalizes on a
horror of male-on-male sex, which is portrayed as necessarily hierarchical and exploitative. OISNB, by contrast,
while exploiting prison’s novel otherness, relies on the benign status of female-on-female sex, which can be
mutually supportive.
“A Man’s Got to Have a Code”: Street
In his book Code of the Street, Elijah Anderson posits that street codes are sets “of informal rules governing
Codes, The Wire, and the War on Drugs interpersonal public behavior, particularly violence.” This paper examines how street codes are portrayed in
season one of The Wire (2002), the HBO drama that depicts street life in Baltimore in the early 2000’s. The show
explores how the likes of Avon Barksdale (a local drug kingpin) and Omar Little (a complex freelance criminal)
operate in an environment where state power is misdirected and often laughably attenuated. Respect for, and
adherence to, street codes are essential to the ordering of this world. (Little underscores this point by saying, “A
man’s got to have a code.”) This paper focuses on how the street codes of the first season of The Wire develop
over time and become normative for the community, challenging for primacy the formal legal code enforced by
the state.
GOTHIC STORIES, LEGAL TREATISES, How did nineteenth-century fiction, gothic and otherwise, affect the development and rise of the 19th-century
AND 19TH-CENTURY AMERICAN
criminal law? In an era largely without formal legal training, the role of law treatises cannot be underestimated,
CRIMINAL LAW
essential for the future lawyer “reading law.” And these legal treatises often relied heavily on literature to flesh
out points of doctrine. Additionally many law treatises of the era, particularly those discussing advocacy,
pointed to literary examples as a tool for lawyers to use in the courtroom.
More subtle forms of linkage exist, however, between 19th-century gothic/criminal fiction and the intellectual
development of 19th-century American criminal law. One example is the rise of new narrative techniques in 19thcentury fiction in developing character studies, including third-person narrative forms, and the simultaneous
development of mens rea analysis (i.e., that liability for wrongdoing should not just be based on sheer
“wickedness,” but on actual intent to commit a specific crime). As literary gothic fiction explored a new, more
complex understanding of why a criminal defendant might act the way he did, this matched—and undoubtedly
influenced-- the way the legal understanding of mens rea became more refined, shifting from a simple finding of
general wrongdoing to a more sophisticated, elemental approach.
Moreover, the development of an objective standard for criminal wrongdoing in 19th century American law was
neatly paralleled in the popular American gothic literature at the time. Both demanded a more detailed inquiry
into the actions and reactions of the criminal suspect/protagonist, examining the causes, qualities, and results of
a particular mental state on both mind and body.
Chair
Encryption, Surveillance, and Popular Protest
Page 23 of 111
The Fifth Amendment and iOS8: SelfApple Inc. launched the iPhone 6 on September 19th, 2014. Accompanying this event was the release of iOS8,
Incrimination in Searches of Smartphones the platform's newest operating system. One of the major features of iOS8 is a privacy mechanism that utilizes
encryption which precludes Apple from complying with government requests for users' personal data exchanged
via Short Message Service (SMS) or the Internet. This development is especially important as a privacy concern
because the new hardware allows users to store confidential data such as credit card information, which in turn
can be easily associated with other identifiers like addresses, social security numbers etc. The only way to
access this information would be if the owner of the device manually decrypts it.
While this is a clear victory for privacy advocates, the Fifth Amendment implications are unclear, especially as
related to the right against self-incrimination. Encryption poses a fundamental problem for law enforcement: Can
a person be forced to decrypt his/her own personal device, or would this act constitute self-incrimination?
Moreover, does Apple's policy constitute an obstruction of justice by giving users enhanced capabilities of
protecting their information from warranted searches?
This paper attempts to uncover the relevant information necessary for answering this question. First, it will
examine the legal framework that governs corporations' obligation to the government with regards to divulging
consumer information. Based on a combination of case precedents and the recent history of intelligence
requests made of technology companies, the paper will attempt to identify the rules, regulations, and practices
currently in place. Particular attention will be given to recent Supreme Court and Circuit Court cases such as
Riley v. California (2014), Ontario v. Murphy (2009), and United States v. Davis (2014) that limited state power to
search cellphones without a warrant, and provided clues as to how the courts interpret the property rights
associated with data stored on smartphones.
Archiving Subversion, Two Histories
The limited public release of records from two state-level surveillance agencies, the California Senate UnAmerican Activities Committee and the Mississippi State Sovereignty Commission, offer an opportunity to explore
the intersection of law and psychology in the construction of collective memory and historical consciousness.
Michael-Anthony
Lutfy
Carleton University
[email protected]
Unmasking Dissent: The Criminalization of Protests are not only populated by people, but with objects. These objects are all, to varying degrees, part of an
Masks at Protests
assemblage of space, people, and culture which define an action as a protest, amplify particular narratives, and
make mundane ‘things’ political. The Canadian government recently passed Bill-309 criminalizing the donning of
masks during assemblies construed as unlawful. Drawing from actor-network theory, I use the ‘Guy Fawkes
mask,’ popularized by the graphic novel and film V for Vendetta, the hacktivist group Anonymous, and global
Occupy Wall Street protests, as a case study. I demonstrate how the mask acts as a free-floating signifier and
central node mediating the borders between art, the Internet, and dissent in a way that is enabled by the mask’s
physical properties. In conclusion, I reflect on the future of social movements that rely on mask iconography to
create and shape meanings that can transcend the limits of art and the Internet.
Chair/Discussant
Leif
Dahlberg
Adam
Thurschwell
Unaffiliated
[email protected]
Other Responses to Terrorism
We are all now all too familiar with terrorism and the responses it has generated, above all in the form of the
national security state and its excesses. And we are all familiar with the responses to those responses – political
outrage; legal actions; journalistic exposés, law review articles, and so on. This panel presents some other
responses, and responses to the responses. The arts and humanistic disciplines have been taken by the theme
of terrorism as much as every other part of our social and intellectual life since 9/11 (and in fact even before:
“There’s a curious knot that binds novelists and terrorists,” Don DeLillo has a character say in his 1993 novel
Mao II). We provide a small sample of that work here.
Susan
Eugene
Sage Heinzelman
Garver
Sarah
Abramowicz
Wayne State University Law School
[email protected]
Parenthood by Contract
Ayres
Texas A&M Univ. Law School
[email protected]
Paternity Fraud and Family Secrets
Courts are often reluctant to permit parties to determine parental status through contracts other than the marriage
contract, such as co-parenting agreements, surrogacy contracts, and contracts relinquishing or preserving the
parental status of gamete donors. To better understand the judicial resistance to parenthood by contract, the
Article traces its early history, in the form of judicial refusals to enforce both adoption contracts and separation
agreements allocating custody to the wife. The Article identifies two types of concerns that animated the early
judicial resistance to parenthood by contract: commodification/child welfare concerns and family-regulation
concerns, in particular, a desire to promote and sanction both marital parenthood and a patriarchal hierarchy
within marriage. The Article explores the extent to which these early concerns still animate the resistance to
parenthood by contract today, and brings this inquiry to bear on the question of whether parenthood contracts
should be enforced.
My project involves comparing the somewhat unique and surprising 2011 Texas statute that allows a father to
petition to terminate his parental rights on the basis of fraud with provisions in the Uniform Parentage Act and
laws in other states that allow a father to rescind acknowledgment of paternity. The Texas statute is problematic
because it greatly extends the window of time for a father to contest parental rights. Moreover, while a
successful termination of parental rights generally ends the father-child relationship, the Texas statute provides
that the “father” may request future access/possession of the child.
Susan
Other Responses to Terrorism
Parenthood and Law
From a policy perspective, I consider two channeling functions of law in the context of this statute. One
channeling function is identifying children and providing for a permanent relationship between fathers and
children. The Texas statute undermines this channeling function and penalizes children by terminating parentchild relationships. A second channeling function of law is the regulation of women’s sexuality. The statute’s
gendered effect is to demonize women while regulating their sexuality. Moreover, the statute impermissibly
penalizes children to shape parents’ sexual conduct.
Stu
Marvel
Anne
Dailey
Debjani
Bhattacharyya
Emory Law School
[email protected]
Drexel University
[email protected]
Pro-Natalist Politics, Queer Families and
the Reproductive Imperative in Quebec
and Israel
From a practical perspective, in examining the statute’s effect on both channeling functions, it is important to
acknowledge the work of Carol Smart and others regarding family secrets and the many valid reasons a woman
might choose not to reveal concerns about paternity. This competing consideration of family secrets is better
illustrated not through case law, but through fiction, such as The Celestials.
This paper explores the relationship between state funding for reproductive technology, non-standard forms of
parentage, and a state’s identity as a ‘distinct culture under siege’. By comparing reproductive health care
mandates in Quebec and Israel, it aims to understand how the state response to internally contested forms of
legitimate parental identity – including single, LGBTQ and older parents – may be structured by external
contestations over the legitimacy of its political sovereignty.
The paper looks first at the province of Quebec, as the only jurisdiction in North America to offer unconditional
state-subsidized support for up to three rounds of in-vitro fertilization (IVF) and six rounds of donor insemination.
It looks specifically at how gay and lesbian parents have accessed this funding to create biologically-related
families, and the ways in which homonationalist state policies intersect with the queer politics of reproduction. As
a ‘distinct culture’ within Canada and a state which has contemplated political independence through populist
referendum, how does Quebec’s official policy toward technologically-assisted reproduction serve certain
biopolitical aims, and what is the role of the queer subject within this policy frame?
It then compares the situation in Israel, using the work of Jasbir Puar to discuss the ‘pinkwashing’ of Israeli pronatalist healthcare policy and the manner in which queer subjects have benefited from public funding for
reproductive technology. Israel is the world’s leading destination for IVF ‘fertility tourism’ and has made great
efforts to become a friendly location for LGBTQ parents. By exploring how pro-natalist state policies converge
with homonationalist legal strategies through an analysis of support for queer reproduction, I aim to better
understand the politics of family creation within siege states and the ways in which queer families may support or
trouble these normative ends.
Chair/Discussant
Colonial and Post-Colonial Legality in India
Legal Heterotopia: Unstable Ecologies
and Property Law in Colonial India
Page 24 of 111
This paper argues that the colonial struggle for converting unstable ecological spaces (benami, literally land
without name) into property provides an excellent angle for documenting how the bureaucratic rationality of the
East India Company managed geographical indeterminacy through a fictive staging of law in the Bay of Bengal
region. The East India Company enacted a series of regulations and by-laws from1820-1850, which initiated a
process whereby possession and vernacular forms of living with land and water were converted into private
property sanctioned by a bureaucratic paper-regime of property deeds, leases and cadastral mapping. By
analyzing property dispute cases, two colonial river surveys and maps, alongside pre-colonial maritime poetry I
chart how land-as-possession circulating in a sacred and multilayered riverine geography was legally abstracted
as asset in the financialized market. This process of abstraction was executed and maintained through a
productive gap between the necessary and possible juridico-economic definitions of property.
Padmapriya
Srivathsa
University of Kent
[email protected]
Mohsin
Bhat
Yale Law School
[email protected]
Teresa
Park
Allen
Mendenhall
Faulkner University
[email protected]
Shelby
Bell
University of Minnesota
[email protected]
Susan
Schmeiser
University of Connecticut School of Law
[email protected]
Linda
Meyer
PIA
MOLLER
Roger
Jaafar
Sean
Pia
Katy
Lancaster
Aksikas
Johnson Andrews
Moller
Razzano
Creation of Legal Subject in Modern Hindu Hindu law governs about 800 million people in India and the term 'Hindu' is used as a default category to include
Law
persons who are not Muslim, Christian or Parsi. With the arrival of the British as colonizers, pre-modern Hindu
jurisprudence was gradually replaced by modern liberal principles, leading to the creation of Anglo-Hindu law.
This paper explores the creation of the legal subject in this body of law and outlines the trajectory that led to the
creation of gendered subjects, especially with respect to family law.
From Insular to Redemptive
Giving an account of the everyday life of constitutionalism in postcolonies is vexed. Owing to the history of
Constitutionalism: Roads to a
colonialism and the complicity of modern legality in domination, existing theories look at these spaces as being
Constitutional Culture in India
marked by “dualist” legalities (Galanter: 1968), where there is a gap between the artifacts of liberal
constitutionalism and popular consciousness (Chatterjee: 2013). Partly challenging this view, I claim that taking
democratic practices around the law seriously points us towards the creation of what I call ‘constitutional culture’
in polities like India. By constitutional culture, I mean a discursive space where the modern constitutional
discourse constitutes subjectivites, but is equally constituted by democratic citizenship practices. I study this
development by looking closely at the ongoing social movement mobilization for affirmative action among the
religious minority Muslims in India. This movement, I argue, reflects a compelling shift of this religious community,
invoking Robert Cover, from insular to redemptive constitutionalism. I claim that studying the postcolonial
constitutional culture allows us to look at the evolving commitment along with a deep reflexivity towards the
constitutional discourse.
Chair/Discussant
The Voice of the Judge
Holmes’s Dissents and Emersonian
Superfluity
This paper presents statistics regarding the number of opinions and dissents written by Oliver Wendell Holmes,
Jr. Holmes did not author many dissents by comparison to other United States Supreme Court justices. The
statistics suggest that he gained his reputation as a Great Dissenter because of the quality and not the quantity
of his dissents. His dissents in Black & White Taxi & Transfer Co. v. Brown & Yellow Taxi & Transfer Co. and
Gitlow v. New York display his use of figurative language, alliteration, assonance, rhythm, meter and other
devices that indicate his resort to Emersonian “superfluity,” a term coined by Richard Poirier. Poirier’s theory of
Emersonian superfluity sheds light on Holmes’s use of casual and ordinary idioms to extraordinary effect based
in sound. Poirier traces a pragmatic tradition back to Emerson in which authors using casual and ordinary idioms
have availed themselves of superfluity to transcend the limitations of influence (a concept Poirier borrows from
Harold Bloom) and of linguistic skepticism, a term coined by Poirier to describe the inherent vagaries and
obscurities of language that are also sources of creativity because they facilitate an agonistic struggle against
limitation. Dissents enable agonism to flourish because they pit themselves against the majority position and
against binding precedent. Dissents are superfluous; they have no bearing on the disposition of the case under
consideration; they are sites of creative possibility because they are not bound by the rhetorical conventions of
majority opinions. By calling into question the validity of the majority position, they enable a vagary in the law
against which later judges and justices must struggle. Poirier’s subjects avail themselves of superfluity to
overcome, outdo, and move beyond their poetic precursors and the confines of language in the same way that
Holmes used dissents to overcome stasis in the law in the form of settled precedents and binding opinions. His
dissents enabled the variation necessary for the common-law system to advance; they reached future judges and
justices who vindicated his arguments.
Do Per Curiam Opinions Enact the Rule of Though it was expected that the Supreme Court’s Bush v. Gore (2000) decision would hurt the Court’s credibility,
law?: A Case-Study of Bush v. Gore
research showed no measurable loss of faith after the decision. How could it be that such a controversial case
had so little effect on public opinion? This paper works to answer this question. Utilizing a rhetorical analysis of
the Court's opinions in this paper finds that the justices’ invocations of judicial responsibility are one of the most
important rhetorical strategies used in this case. Along with the anonymity of the per curiam opinion, the
arguments about responsibility worked to lend credibility to the arguments in a way that a signed opinion could
not. The per curiam opinion communicated in a way that was disembodied, thus invoking the norms of the rule of
law. This paper demonstrates how the rule of law is produced and reified in legal rhetoric.
Judge David Bazelon and the Possibility of What tensions and harmonies exist between models of human behavior focused on psychic processes and their
a Psychoanalytic Jurisprudence
complex determinants, and those concerned with systemic and institutional barriers to equality? This project
examines the career and jurisprudence of Judge David Bazelon, an American jurist who sat for almost four
decades on the District of Columbia Court of Appeals. His writings on criminal responsibility and other
challenges to social order afford an occasion to consider how law both invites and resists the contributions of
disciplines that potentially unsettle fundamental precepts organizing legal reasoning. A pioneer in the burgeoning
field of mental health law and policy and self-proclaimed judicial activist whose vision of law and legal institutions
reflected Progressive-era ideals that yielded to swelling forces of conservatism in American culture, Judge
Bazelon welcomed the expertise that other disciplines offered to legal processes and public policies. Yet whereas
the jurisprudence of his early decades on the bench embraced psychiatric knowledge, particularly the
psychodynamic accounts of human agency and motivation that reigned during the middle decades of the 20th
century, by the 1970s and early 1980s Bazelon’s emphasis shifted from individual psychology to structural
disadvantage.
Chair
Towards a Cultural Studies of the Law:
Culture, Law, and 'The Juridical Turn' in the
Neoliberal Era
CHAIR
Visiting Assistant Professor, University of [email protected]
Wisconsin-Milwaukee
Towards a Cultural Studies of the Law:
Culture, Law, and 'The Juridical Turn' in
the Neoliberal Era
Page 25 of 111
More than a decade has passed since cultural studies and legal scholar Rosemary Coombe called for a cultural
studies of law. She wrote, "although we can discern a large and engrossing body of legal studies that assumes
cultural perspectives and considers law as a cultural phenomenon, there is as yet no substantial body of work
that can be identified as a cultural studies having law as its subject area of inquiry" (A Companion to Cultural
Studies 57). This panel offers an assessment of the still emerging cultural studies of law as well as specific
analyses of contract law, anti-immigration law, and paternity policies, elucidating how law organizes social
relations in neoliberal American society. Participants present from their work in the recent special issue of the
journal Cultural Studies titled Cultural Studies of/and the Law (edited by Aksikas and Johnson Andrews).
The Problematics of Supernational
Governance: the Case of the EU
13:30-15:30
Rafal
Manko
Centre for the Study of European
Contract Law
[email protected]
Alina
Neculae
Paul
Linden-Retek
Mathilde
Cohen
Cynthia
Merrill
UCLA Center for the Study of Women
[email protected]
Retreat from Equality into History: The
Supreme Court's 2014 Decisions on
Religion and Culture
Mark
Strasser
Capital University Law School
[email protected]
Religion, Free Exercise, and the
Constitution
Nomi
Stolzenberg
USC Law School
[email protected]
Political Theology With a Difference
Matthew
Scherer
George Mason University
[email protected]
The Politics of Religious Freedom in
Hosanna-Tabor and Hobby Lobby
Sara
Ludin
UC Berkeley, Jurisprudence and Social
Policy, UC Berkeley
[email protected]
Suspicion in Courtrooms in the Age of
Reformations: Germany in the 16th
Century
Dana
Lloyd
[email protected]
Yale University, Dept of Political Science [email protected]
Ideological interpellation and technocratic The aim of the paper is to offer a critique of (legal) ideology embodied in contemporary European private law,
contract law
with particular reference to (consumer) contract law. Methodologically, the paper draws inspiration from postMarxist philosophy (Althusser) and psychoanalytic theory (Dolar, Žižek) and key tool of critique deployed in the
paper is the notion of ‘ideological interpellation’ understood through the lens of Lacanian capitonnage. The paper
argues that EU private law has a technocratic nature which has far-reaching consequences for the forms of
subjectivity proposed to European citizens, addressed by legislation and case-law above all in the guise of
‘consumers’. This form of ideological interpellation leads to a reductionist perspective on human existence,
expounding the quality of being a homo oeconomicus passivus at the expense of an active, critical and
participatory citizen. As a solution the paper propose a radical democratisation and re-politicisation of private law
in Europe.
The Legal Force of the Fundamental
The theme of the study is how an economic organization like the European Union started including the protection
Rights Charter in the European Union's
of human rights in the core objectives. We will analyze in the first part the doubtful constraint power of the
Legal Order
Charter before the entry into force of the Lisbon Treaty which will explain its soft law status. The
constitutionalisation of the Charter after the entry into force of the Treaty of Lisbon, the second part, explains the
revolution performed to the protection of Human Rights in Europe. The future of the text is a very important point
to be discussed in the context of the coexistence with the European Convention of Human Rights.
Cosmopolitan Law and Time: On the
This paper articulates how European citizens might perceive the transition from national to cosmopolitan identity
Temporal Foundations of Supranational
as meaningful, and thereby as capable of motivating robust commitments to supranational social solidarity.
Solidarity
Complementing theories of constitutional patriotism and constitutional pluralism, the paper's central claim is that
the register of time enables citizens to hold in equipoise cosmopolitan law's two ostensibly divergent hopes:
mutual commitment, on the one hand; self-decentering plurality, on the other. Drawing on the work of Benhabib,
Derrida and Cover, the paper develops two concepts critical to sustaining cosmopolitan solidarity: cosmopolitan
promise-making, a form of diachronic political intersubjectivity undergirding meaningful cosmopolitan practice;
and cosmopolitan legal narrative, a reading of law as the textual inscription of plural normative interpretations in
an evolving constitutional structure. The paper concludes with the theory’s practical application, assessing the
normative force of the European legal order and the proper roles and responsibilities of judicial actors within it.
Chair/Discussant
Religion, Secular Society, and Constitutional
Order
Chair
Page 26 of 111
In Town of Greece v. Galloway, the U.S. Supreme Court abandoned the “endorsement” test in deciding an
Establishment Clause challenge – and, along with it, any effort to address expressive harms or the equality
principles earlier Establishment Clause jurisprudence purports to incorporate. Citing “history” as its touchstone,
the Court confuses heritage with legitimacy, concealing dissonance, struggle and dissent within an “unbroken”
history that regulates collective memory. The Court likewise elided emerging gender equality principles in
Burwell v. Hobby Lobby Stores. Addressing exercise of religion and decided on statutory rather than
constitutional grounds, Hobby Lobby’s solicitude for the expressive import of commercial transaction contrasts
starkly with Galloway’s blindness to expressive harm and coercive identity formation. Drawing on these cases,
this paper will argue that resolution of religious disputes must re-focus on the communicative and cultural impact
of governmental action. Such disputes demand what Seyla Benhabib calls “democratic iteration,” reinterpretation
of foundational commitments through contestation and evolving understandings of equality and citizenship in a
pluralist society.
The United States Supreme Court has interpreted free exercise guarantees to apply only to religious practices,
which suggests that there are criteria in light of which religion can be differentiated from non-religion. But those
criteria have varied over time, sometimes focusing on the sincerity of the beliefs, sometimes the strength of the
beliefs, sometimes the kind of beliefs, and sometimes the role of the beliefs in an individual’s life. What qualifies
as religious under some of these criteria would not qualify as religious under others, which means that whether
particular practices will be protected under free exercise guarantees may vary across time. An additional
complicating factor involves the diversity of spiritual (and religious) belief in this country, which makes finding a
persuasive method by which to differentiate all the more difficult. Nonetheless, recent cases suggest that finding
an acceptable way to distinguish will be increasingly important and increasingly contentious.
This paper excavates a tradition of political theology derived from the theological doctrine of divine
accommodation which is secularist and protoliberal at the same time that it is theologically grounded and
embraces an emergency theory of the state, confounding the distinctions between religious and secular, liberal
and antiliberal political theories.
Religious Freedom, and the fundamental political and theoretical problems opened by this concept, are receiving
renewed attention both in the practical fields of political and legal contestation, and in the more rarified registers
of scholarly debate. This essay makes three arguments about religious freedom: first a satisfactory analysis of
the specific politics of religious freedom requires that these be set within a broader framework of modern
secularism. Second that the problematics of religious freedom and modern secularism are mutually illuminating.
Third that progress can be made in negotiating the politics of religious freedom by following out a shift in the
basic understanding of secularism away from the idea of separating religion and politics, and toward the
recognition that these fields are engaged in a continual process of mutual transformation. I focus on two recent
US Supreme Court decisions Hosanna-Tabor vs. EEOC and Burwell v. Hobby Lobby.
In the age of Reformations, suspicion becomes routinely associated with the definition, handling, and treatment
of ‘religion’ in the courtrooms of the Holy Roman Empire. This essay offers a close reading of the Protestants’
1534 recusal of the Imperial Chamber Court, a text dominated by “suspicion.” “Suspicion” is often treated as an
obvious or self-explanatory effect in a world of competing interests. Law becomes in these accounts mere scene
or instrumentality. This paper explores suspicion as an affect, linked to particular “inclinations,” but also tied to a
particular form of legal complaint, and certain expectations about the arrangements most conducive to the
achievement of “equality” and “freedom.” This paper argues that these early modern legal encounters of
“suspicion” shape the ways in which secular legal orders define, handle, and treat ‘religion’ at law, even in the
present.
The Relationship Between Literary and Legal
Argument
Colleen
Kropp
Temple University
[email protected]
Daniel Defoe's Moll Flanders and the
Language of Obligation and Promise
Markéta
Klusoňová
Masaryk University, Brno
[email protected]
Argumentation by Literary Fiction in the
Czech Republic
Jakub
Misek
Ph.D. student at Institute of Law and
Technology, Faculty of Law, Masaryk
University
[email protected]
Legal Kitsch and its Appearance in
Everyday Praxis
Kate
Sutherland
York University
[email protected]
Law and Literary Reputation: Edgar Allan
Poe, L.M. Montgomery, and Theodore
Dreiser in Court
Alejandra
Rodriguez Galan
Universidad de Buenos Aires (UBA)
[email protected]
Reflections on literature, law and
democracy
Daniel
McLoughlin
Vincent
Mosley
Savannah Law School
[email protected]
Hannah
Brenner
MSU College of Law
[email protected]
Erin
Sheley
George Washington University
[email protected]
Defoe describes the Union of 1707 between Scotland and England, ‘as if’ it were a marriage. I read Defoe’s
remarks as anticipating the 1753 Marriage Act. If the fiction of marriage, the ‘as if’, operates in an effective way
insofar as explaining obligations between subject and state, what does this mean for actual marriages? Is the ‘as
if-ness’ of a union enough to produce obligation? Defoe focuses on the ‘true intent’ of matrimony and
contemporary society’s degraded understanding of what produces obligation in such a union. We can/should
understand Defoe as establishing a sort of textual continuity between his nonfiction and fiction in order to
emphasize the importance of understanding and respecting obligation as it arises from contract. The construction
of the ‘as if’ infiltrates character interiority/personal perception in Defoe’s fictional texts. The concerns in his
nonfiction are echoed particularly in Moll Flanders (1722), the central text of my inquiry.
This paper refers to possibility of argumentation by literary fiction in law, particularly in reasoning of judicial
decisions. The central thesis of this paper is that such argumentation is an admissible instrument of legal rhetoric
even in the Central Europe discourse. It is not so rare in Common law system but situation in Civil law system
and especially in the Central Europe is different. Due to historical experience of Real Socialism, law is reluctant
to admit almost any non-legal influences on law. However, argument by literary fiction is a kind of metaphor which
is based on common cultural knowledge and which is able to clarify true meaning of legal rules within their wider
context. Aim of this paper is to provide a conceptual theoretical framework of the use of argumentation by literary
fiction in legal argumentation in the Central Europe.
Presented paper is concerned with a possibility and manifestations of a legal kitsch. An aesthetic concept of
kitsch as a pseudo-art is a vantage point and the paper is seeking parallels between aesthetical impingement of
art and argumentation and persuasion effectiveness of a legal text.
First part of the paper discusses several conceptions of an aesthetical kitsch emphasizing the theory of kitsch by
Tomas Kulka. His work is taken as a framework for legal kitsch, which is presented in the second part of the
paper. Practical examples from legislation and jurisprudence are also demonstrated. The final part connects
discussed topic with a concept of a moral kitsch as presented by Milan Kundera and Vaclav Belohradsky, who
explained moral kitsch as certain tendencies in the post-totalitarian society. The presented paper argues
existence of a strong connection between legal and moral kitsch, and that these phenomena are not exclusive for
post-totalitarian societies.
Lawsuits involving writers as litigants and literary texts as evidence provide a point of intersection between law
and literature worthy of detailed attention. This is an arena where much can be learned about literature from law,
much can be learned about law from literature, and tensions between the two realms can be explored. In this
paper, I illustrate these contentions through discussion of three cases: a libel suit launched by Edgar Allan Poe
against a fellow writer and critic; a contractual battle fought by L.M. Montgomery against her first U.S. publisher;
and a case brought by Theodore Dreiser against Paramount Pictures over a film adaptation of one of his novels.
These are not writers that one ordinarily thinks of together, but common themes emerge from considering the
stories of their legal battles as a group, particularly in relation to the use of law as a tool to protect literary
reputation.
My proposal is a reflection upon the links between literature, law and democracy.
I suggest engaging a journey of dazzling possibilities and to explore in the light of certain chosen texts the
meaning of law and democracy.
The first one, which prompted me to begin this path, is an essay entitled "Literature and law, before the law" by
Claudio Magris, a renowned Italian writer.
Another one is the “Great Inquisitor” by Fiódor Dostoyevsky, where lies the eternal dilemma between liberty and
authority. The third one is “Before the Law”, by Franz Kafka, who explored in his writings what law and literature
had in common.
This essay, which has been published in 2013 by the Institute of Constitutional Politics, of the Academy of
Political and Moral Sciences of Buenos Aires, of which I am a member, reflects the vision of those who
understand law as a cultural manifestation.
Chair
Rape, Sexual Assault, and Law
Page 27 of 111
Body Mongers: Search for Sexual
Despite the development of statutes and doctrine governing rape cases, the prosecution of sexual assault
Autonomy and the Presumption of Harm in remains primarily a region of retaliatory law. Much of the progression has been in response to problematic
Rape Prosecution
notions in sexual assault cases, especially regarding evidentiary burdens by alleged perpetrators and the
ambiguity of the presumption of harm for victims. The reactive stance of legislature drafted for sexual assault
cases presupposes long-held and archaic views of property rights in human beings, or at the very least
implicates a gender bias in the way we conceptualize and prosecute rape. This Note will look at the problems
and challenges associated with the promulgation of sexual assault legislation that incorporates the property or
gender bias views, and why we should eschew these statutory schemas in favor of legislation that presupposes
sexual autonomy as the basis for rape claims.
Media Narratives Surrounding Rape,
In the last decade, two influential international political figures, Dominique Strauss-Kahn, former head of the
Politics and Power: The Cases Against
International Monetary Fund, and Moshe Katsav, former President of Israel, made international headlines
Dominique Strauss-Kahn and Moshe
surrounding accusations that they perpetrated various forms of sexual violence like sexual assault, rape and
Katsav
sexual harassment. The respective narratives surrounding the cases against the two men received extensive
coverage by the media in France, Israel, and the United States. Utilizing the research method of content analysis,
this article evaluates the convergence of sexual violence, politics and power, and the related presumptions of
guilt or innocence, from a comparative, cross-cultural media perspective. Specifically, this article analyzes
headlines from three newspapers, The New York Times, Le Monde, and Haaretz. Building on my previous
scholarship on sexual violence vis à vis the Strauss-Kahn and Katsav framework and use of content analysis in
another research context, it exploits the unique opportunity presented by the widespread coverage of these
cases.
Narrative Subjectivity and the Legal Truth Rape occupies a contradictory role in western legal consciousness. One of the most serious crimes, rape is also
of Rape
one of the most difficult to prove. The definition and prosecution of rape have been uniquely susceptible to input
from cultural assumptions about sexuality, gender and human biology, take on new forms in various historical
contexts. Many elements of modern rape and its proofs were established and solidified during the late
eighteenth and nineteenth centuries, a time when the literary novel form—with its new representations of
subjectivity—was beginning to problematize the nature of unilateral truth. This paper discusses the interaction
between literary representations of rape and three evidentiary developments in rape jurisprudence: specifically,
how novelistic modes and reading practices affected understandings of the required element of “force,” the
significance of a victim’s pregnancy, and the moral character of the victim as it relates to her credibility.
Emily
Lockhart
York University
[email protected]
Within the Borders of Sexual Citizenship? The flexibility of legal categories in instances of sexual violence and exploitation among teenagers reveals both
Legal, Political, and Cultural Responses to law’s inadequacy in dealing with sexual violence as well as its role in the production and regulation of teenage
Rehtaeh Parsons
sexuality. This paper engages with Canadian legal, political, and cultural responses to the Rehtaeh Parsons
case. The state strategy to implement nation-wide cyber-bullying curriculum in October and the introduction of Bill
C-13 have been intimately connected to the case. Both strategies have publicly engaged with the Parsons family
while the Nova Scotia court continues to uphold the publication placed on the case. Parsons’s name as been
synonymous with a push for better laws around cyber-bullying, sexual exploitation, consent, and how police
respond to allegations of sexual assault, yet, the legal system has silenced it. I investigate the lack of clarity that
the various responses to this case have created about teenage sexual subjects and sexual citizenship.
Larissa
Brian
University of Pittsburgh
[email protected]
At the Thresholds of Contract and
Fantasy: The Ambiguity of Speech in
California’s Affirmative Consent Law
Susan
Schmeiser
Bethania
Assy
PUC-Rio de Janeiro
[email protected]
Law as Political: The Potency of
Weakness and The extraordinary Politics
of Resistance
Jack
Jackson
Whitman College
[email protected]
The Violence of the Political
The language of the law (as logos) structures discursive conditions for speaking about sexual desire through
norms of "consent" that function as nomos, an ordering principle that rhetorically shapes our relations to the
world and each other. Such a norm assumes individuals to be free, rational, and autonomous, as consent law
rests on the principle that humans are neutral subjects with a capacity for speech. As a verbal contract, consent
presupposes that subjects can enter into a “meeting of the minds” where an offer is initiated and an acceptance
(willfully) made. California’s recent passing of the Affirmative Consent, or “Yes Means Yes” sexual consent law
(SB967), draws on such a presupposition in its attempt to prevent sexual violence/rape by upholding the first
standard in which every sexual act must be mutually—and verbally—agreed to between parties. This paper
seeks to explore the rhetorical framing of this law by inquiring into its aim to render “unambiguous” that which is
often deemed ambiguous, unknowable, or even inarticulable: desire. Moving between a psychoanalytical theory
of fantasy and law by way of Lacan, and Judith Butler’s analysis that desire always already exceeds the
language of consent law, this paper then draws out the rhetorical aporia between the law’s promise of a sexual
“meeting of the minds," and the struggle of affirmative speech acts to name fantasy.
Chair
Traversing the Law/Politics Divide
Richard
Weisman
York University
[email protected]
Popular Trials as Degradation and
Elevation Ceremonies
Kathleen
Fitzpatrick
Brown University
[email protected]
“Like good modern art”: Legal Form in
Catch 22
Page 28 of 111
This paper focuses on acts/politics of resistance in a legal context. The starting point is to problematize some
consequences of a position taken by most normative theorists of justice: neglecting or denying law as a political
order. A phenomenology of injustice cannot neutralize the implications of the historical gap rising up nomos’
internal tension between the extraordinary of political action and the stability of constitutional law. Such is the
juridical-political ambivalence of law, situated as it is between legitimated normativity and factual life
(emancipation), it embraces the possibility of recognizing the crisis of the validity of law and its internal operative
violence. I will then consider the main implications for the conceptualization of the relationship between law and
political action. The juridical-political imperfection of law is not contingent; it is rather constitutive. One key
question that thus arises is whether there will be any promising law left on the promise of the Constitution. I
pursue some of the deeply political implications of the deterioration of the link between law and factual life
apropos the political potentiality of the excluded. Meaningful examples will be given, including the role of what I
will call hybrid political-juridical acts of resistance, such as social movements in Brazil. The touchstone here is
that I will claim that some types of resistances necessarily constitute themselves precisely in-between normativity
and political action, mobilizing an imbroglio of faith, political resistance and normativity.
Numerous political theorists and thinkers have attempted to mark out the parameters of “the political;” to find its
essence, to discover its nature. Locating and conceptualizing violence has been central to that endeavor. Some
theorists have seen the political as defined by the absence of violence, violence being thus constituted as the
political’s ‘outside’ (Aristotle and Hannah Arendt, as example). Others, by contrast, have discerned violence and
its ‘right’ as that which is the very currency of the political (Max Weber and Carl Schmitt, for example). Of interest
here are the possible commonalities circulating between these quite different theoretical traditions. More exactly:
what becomes expelled from politics in these allegedly antagonistic articulations of the relationship between
violence and “the political,” and what are the implications for feminist politics in those expulsions?
Any effort to nail down “the political” is a means by which to exclude a variety of questions as improperly political
& thus banish them into a “natural” and presumed order of things on & around which “the political” deploys and
operates. That is, dominant traditions in political theory naturalize radical and systematic forms of violence. These
dominations become antipolitical facts-of-the-world. Understanding how these constellations of political
theoretical traditions inform and limit our capacities to mobilize politically and legally against gendered forms of
violence---too often presumed and too infrequently challenged---will be at the center of my paper and
presentation
The paper seeks to apply and emend Harold Garfinkel’s classic conceptualization of degradation ceremonies to
that genre of public communication that can be designated as the popular trial or a trial that captures the
attention of a community. Using examples drawn from selected trials in common law jurisdictions including the
United States, Canada, and South Africa, my purpose is both to demonstrate the usefulness of Garfinkel’s
formulation for analyzing the performance of the law – a step not taken by Garfinkel himself- and to expand his
formulation to show how the transformative power of the popular trial can result not only in a degraded status but
also in an elevated status. In approaching the popular trial as a rite of passage between one status and another,
the paper draws on relevant work in cultural anthropology, sociology, and socio-legal studies.
My paper reads Joseph Heller’s 1961 novel, Catch 22, as a meditation on competing visions of democratic law.
For the post-war legal theorist, Lon Fuller, it is well-crafted law that defines liberal-democratic government. Lawmaking is safeguarded by the “pride of the craftsman,” he argues (43). Meanwhile, for those engaged in the civil
disobedience movements of the 1960s, democracy hinges on the perpetual rewriting of existing law. Civil rights
and New Left protestors refuse the sense of closure implied by legal craftmanship. Heller’s obsession with
paradox, I argue, functions as a critique of legal formalism. In Catch 22, formal principles are turned against
themselves, producing perfectly ill-formed laws. Heller contrasts this perverted legal craftmanship with a
postmodern vision of law, one that echoes the structure of civil disobedience. Heller’s anatomy of legal and
aesthetic form, I argue, anticipates the changing conceptions of law that accompanied the cultural shifts of the
1960s.
Thomas
Crocker
Sue
Sterett
Elizabeth
Britt
Jennifer
Jessie
Erin Leigh
Andrus
Richards
Frymire
Itamar
Mann
Ioannis
Gearold
Delphine
Heidi
Kalpouzos
O Cuinn
Dogot
Matthews
Kathryn
Temple
Jack
Jenny
Hanna
Simon
Richard
Sammons
Scott
Musiol
Stern
Sherwin
Sheryl
Hamilton
University of South Carolina School of
Law
[email protected]
Wittgenstein on Crisis, Exceptions, and
Rule-Following
President Franklin Roosevelt asserted that, “Necessitous men are not free men,” and that “People who are
hungry and out of a job are the stuff of which dictatorships are made.” This claim sets up an opposition between
necessity as a condition of the unfree and an unarticulated liberty as a condition of deliberative self-government.
Because inevitable crisis makes necessity unavoidable, some argue that constitutional democracies are
incapable of governing according to law during emergencies. The weakness of this criticism, I argue, is that it
contains a false view of the relation between governing form and function, thinking that political decisions must
already be determined by prior understandings of legal rules in order to be legitimately constrained. But
constraint within liberal legal systems need not always operate according to rigid rules already laid down. Like the
operation of any rule as Wittgenstein made clear, there will always be new situations requiring decisions about
how best to follow the rule when addressing novel situations. The application of rule to circumstance, even an
exceptional one, is always subject to some contingency and uncertainty, neither of which undermines broader
commitments to governing by law within constitutional constraints—a view that Wittgenstein’s account of
judgments and rule following helps clarify, as this paper argues.
Northeastern University
[email protected]
Legal Rhetorics of the Everyday
Georgetown Law Center
[email protected]
What is a “Legal Lag”? The co-production The “cultural lag” argument, originally introduced by sociologist William Ogburn, is the claim that developments in
of Weapons and Law
technology somehow precede cultural developments. This ostensibly creates periods of crisis, in which culture
must adjust or “catch up” with faster material developments. A particular genre of this argument has in recent
years emerged everywhere in the context of the laws of war. New military technologies, so goes the story, require
new doctrinal developments that will somehow close a normative gap that threatens to render law obsolete or
indeed irrelevant. This panel aims to examine historically and theoretically the implicit assumptions of this “legal
lag” argument, and the kinds of political agendas it advances. We hope to at least temporarily replace constant
conversations about questions like how drones require new laws, by their converse. For example, how do drones
illuminate and help expose fundamental characteristics of the legal conditions that allowed them to emerge in the
first place?
Georgetown University
[email protected]
Meta-Aesthetics of Law and Justice
Chair
Legal Rhetorics of the Everyday
What is a "Legal Lag"? The co-production of
Weapons and Law
CHAIR
Since the 1993 publication of Sarat and Kearns’ Law in Everyday Life, scholars from a range of disciplines have
enriched our understanding of how law both permeates the rest of social life and is transformed by it. This panel
takes a rhetorical approach to this study, examining how legal discourses function in relation to other discourses.
The papers are concerned with discourses that are invisible or taken for granted: public commonplaces about
victims of domestic violence, the everyday speech of Bosnian Americans displaced by war, CIA manuals for
interrogators, and complaints against abusers filed in municipal courts. Invisible discourses are often discounted
or seen as inevitable. By examining these discourses through the methods of rhetorical criticism, this panel
illustrates the power dynamics through which they are produced and in which they play important roles.
Meta-Aesthetics of Law and Justice
Is there an aesthetics of law and justice? These papers ask the meta-questions, focusing on theoretical
approaches to aesthetics that help us understand what we mean when we refer to the "aesthetics of justice" or
the "aesthetics of law." Papers draw on theorists such as Hegel, Boal, Ranciere, and Scarry while contributing
their own insights into these questions.
Chair
Regulating the Body
Law and Legal Studies, Carleton
University
[email protected]
Regulating Dirty Hand(shakes) in
Pandemic Culture
Our quotidian haptic encounters – touching objects, our selves, others – are increasingly shaped by the anxieties
of pandemic culture. Since the recognition of HIV/AIDS, actual pandemics have been rare, but talk about them
has exploded – SARS, West Nile Virus, H1N1, H5N1, MERS, H9N7, Coronavirus, Ebola.
In this paper, I examine attempts to regulate end-of-game handshakes in the ludic-legal event of youth, team
sports in the name of preventing the spread of communicable disease. Against a dominant reading of the
handshake as a functional ritual of good sportsmanship, I suggest that we can understand the handshake as
embodied ritual (Crossley, 2004), as promiscuous haptic encounter, and as legal gesture (Hibbits 1995).
Understood in this way, the end-of-game handshake operates as a ritual of propriety re-establishing a
heternormative haptic order. As a result, it is resilient to elimination, and at the very least, must be replaced by
other (less contagious) haptic gestures.
Page 29 of 111
Laura
Collins
Virginia Tech
[email protected]
The Frontiers of Choice: the Decaying
Female Body and Infertility Insurance
Mandates
Mathilde
Cohen
UConn Law School
[email protected]
Is Breast Milk the New Raw Milk?
Alisa
Sanchez
UC Berkeley
[email protected]
Hospitals as Conscientious Objectors:
Attempts to Claim Institutional Right of
Conscience to Refuse Abortion Care in
Colombia
This paper contributes to ongoing efforts to define reproductive justice, considering how anxiety over infertility
contributes to demands for greater reproductive “choice” for some women while rendering the infertility of other
women legally and culturally inscrutable. By rhetorically analyzing recently infertility insurance mandates, I
demonstrate how these laws use the topos of the decaying female body and the ever-increasing capabilities of
medicine to present infertility as an impediment to reproductive choice and responsible family planning. Such an
articulation diverts attention away from environmental and social causes of infertility and, thus, continues to elide
the higher rates of infertility among low-income and minority women (who, in many cases, are not covered by
these insurance mandates). Ultimately, I argue that true reproductive justice requires not only relinquishing
notions of boundless individual “choice,” as augmented by medical and legal interventions, but also
disarticulating female aging from decay and malfunction.
The story of animal and human milk is deeply connected. The consumption of fluid animal milk is a relatively
recent phenomenon in Western culture, introduced in the mid-nineteenth century, primarily as a breast milk
substitute for infants. Today, animal milk is one of the most heavily regulated commodities. By contrast, until
recently, human milk remained outside of the purview of the law. With the increasing popularity of breastfeeding
and the possibility of pumping and storing breast milk, a cottage industry has sprung up for women wishing to
buy, sell, or donate breast milk. A few states regulate milk banks, but neither the FDA nor most of the states
regulate the informal selling or donating of breast milk. Medical professionals and advocates, however, are calling
for tighter supervision. The paper will compare the emergent debate over the regulation of breast milk to the old
and ongoing debate over animal milk regulation.
In Latin America, human rights language and arguments have proven powerful tools in social justice struggles
related to gender and sexuality. However, forces critical of expanded rights for women and sexual minorities have
increasingly turned to human rights arguments protecting moral or religious freedom to criticize and block these
progressive gains. This paper examines continued challenges to abortion in Colombia following its limited
legalization in 2006, considering Colombian Constitutional Court cases in which judges, doctors, and hospitals
have claimed a conscientious objector status to refuse provision of abortion medical care. Though the Court has
consistently ruled that only individual doctors can claim conscientious objector status, cases continue to appear.
Colombian hospitals' invocation of conscientious objection resonates with recent developments in the United
States, which has seen growing legal recognition of corporate personhood, including for religious claims such as
in the Hobby Lobby case. How do institutional claims to rights of moral and religious freedom challenge the idea
of rights adhering to a single individual? When an institution claims freedom of conscience based on its belief in
fetal personhood, what becomes the relation among these persons, and among them as rights-holders? Through
a close reading of court documents, the paper explores how institutions' mobilizations of human rights to claim a
right of conscience further complicate questions of personhood in reproductive rights cases.
Natalia
Reyes
UC Berkeley
Lynn
Eckert
Marist College
Sarah
Burgess
Jessica A.
Clark
(co-presenter)
[email protected]
Pornography's Discursive Effects: A
Theory of Harm
Anti-pornography feminists claim that pornography harms women's citizenship rights while opponents contend
that no direct causal harm exists between pornography and
women. This legal and philosophical debate about pornography's harms has reached an impasse - antipornography feminists struggle to elaborate the nature of pornography's harm outside of the conceptual
straightjacket of deterministic causality while pro-pornography defenders contend that pornography's diffuse
harms remain too indirect to regulate. This article seeks to move beyond the impasse by elaborating a theory of
pornography's harm, one that rejects the simplistic deterministic causal model of harm and challenges the
libertarian conceptualization of free speech characterizing much of modern day U.S. free speech jurisprudence.
The article highlights the centrality of speech in maintaining gender inequality by arguing for a
reconceptualization of speech's relationship to discrimination through a theory of discursive effects.
Chair
Theorizing Under-Recognized Dilemmas for
Equality in Relationships and the Family
University of Minnesota Law School
discussant
- [email protected]
Page 30 of 111
This panel presents papers that aim to address under-recognized problems of philosophical justice from an
egalitarian perspective. These papers focus on problems for egalitarian theory found in family law and the law of
interpersonal relationships that remain under-theorized and under-recognized as problems for egalitarian theory.
The first paper, by Samantha Godwin, questions the trivialization of children’s interests in non-coercive treatment
in children’s law, arguing that the diminished capacities of children do not preclude applying general principles of
egalitarian justice to children’s law. The second paper, by Michael Boucai, asks whether assisted reproduction is
properly cast as a right of LGBT people, drawing from second wave feminism and gay liberationist critiques of the
nuclear family. The third paper, by Hadar Aviram and Gwendolyn Leachman, introduces the concept of
"spillover" in social movement theory to analyze the conflicting effects of the same-sex marriage equality
movement on the legal status of polyamorous relationships.
Samantha
Godwin
Yale Law School
The Place of Autonomy and
Dignity Interests in Child Law
[email protected]
Michael
Boucai
SUNY Buffalo Law School
Hadar
Paternalistic policies directed at adults are expected to pass a high threshold of necessity, or minimally
curtail adult’s liberty, in order to overcome adult’s autonomy interests. Children however are subject to
general paternalism without any consideration for the liberty or autonomy interests considered
characteristic of adults’ political rights. Where there may be a role for paternalism towards children, I
argue that children’s interests in non-coercion are not inherently more trivial than those of adults and
must be taken into equal account.
Aviram
Given the inherent sterility of same-sex relationships, LGBT people would seem to be a natural
constituency for easy and affordable access to assisted reproductive technologies (ART). Should the
LGBT movement, at an organizational level, take up this cause? Although there are plausible arguments
on both sides of the question, my paper focuses on reasons to doubt the claim that access to ART is or
Is Assisted Procreation an LGBT should be an LGBT-rights issue. It explores the possibility that (to quote Michael Warner's take on gay
Right?
marriage) an embrace of ART represents "a repudiation of queer culture's best insights." My analysis
draws on a number of relevant traditions: "antinatalist" strains in second-wave feminism; gay
liberationist objections to the nuclear family; LGBT people's lived experience in "families of choice"; and
critiques of "repronormativity," "bionormativity," and "futurism" in contemporary critical theory, legal
and otherwise.
[email protected]
UC Hastings College of the Law
The Future of Polyamorous
Marriage: Lessons From the
Marriage Equality Struggle
Paul
Gowder
University of Iowa College of Law
[email protected]
Chair
Manal
Totry- Jubran
Faculty of Law, Tel Aviv University
[email protected]
THE ROLE OF NGOS IN DESIGNING
THE ISRAELI SPACE AND SOCIETY
Gian Giacomo
Fusco
University of Kent
[email protected]
Ghetto: a biopolitical reading
Sara
Ross
Osgoode Hall Law School
[email protected]
The Commodification of True Grit: The
Artistic Essence of Cultural Enclaves,
Displacement, and Gentrification
Amidst the success of the same-sex marriage struggle, polyamorous activists have expressed interest in
legal recognition of multipartner relationships. In this paper, we develop the concept of "spillover" in
social movement theory to argue that legal mobilization for same-sex marriage has produced conflicting
pressures for contemporary polyamorous activism. On one hand, same-sex marriage litigation has
provided several doctrinal footholds for expanding marriage to polyamorous relationships. On the other
hand, same-sex marriage litigation has simultaneously reinforced cultural stigmas against polyamorous
relationships — stigmas which constrain the practical utility of those legal tools (especially as means for
implementing broader social change beyond the letter of the law). By accounting for these conflicting
legal and cultural pressures, this Article provides a comprehensive roadmap of the issues, strategies, and
challenges likely to emerge along the path toward polyamorous marriages. This paper is co-authored by
Gwendolyn Leachman.
The Cultural Politics and Legal Demarcation of
Space
Page 31 of 111
Spatial planning plays a crucial role in determining the quality of life and environment as well as the prospects for
socio-economic development and the well-being of individuals and communities alike. During the last two
decades, there has been a significant increase in the number of Israeli Advocacy Non-Governmental
Organizations (Here and after: NGOs) addressing spatial issues. These NGOs are involved in submitting legal
petitions that address problematic legislation; administrative decisions, marketing of land and residential spaces
that are initiated by the private and public sector. Furthermore, in the last two decades, there has been an
increase in advocacy NGOs' involvement in initializing legislation that has an enduring effect on the design of
space. This research explores the role advocacy NGOs play in the design of space and consequently, on the
design of society.
The main aim of this paper is the presentation of part of a research project I have undertook on the legal
definition of a social space of confinement. Having said that it is perhaps immediately clear why the reference is
to the ghetto. Following a legal philosophical approach I will try to use the concept of the ghetto as a paradigm for
the understanding of the creation of spaces of confinement looking especially at the legal institution of such
spaces. The idea underlying this research consists in highlighting the intimate biopolitical character of the ghetto,
and in looking especially at the political and legal acts that have founded its birth. Thus, the social space of the
ghetto will work in the economy of this research as a paradigm explaining the unsaid, the grey area that connects
different forms of positive, concrete historical examples of creation of peculiar forms of social life through the
delimitation of specific spaces. More specifically, in this paper I will look at the birth of the ghetto in Venice and
Rome, through a close analysis of the legal provision that decreed the enclosure of the Jewish communities
behind the walls of the ghettoes. In doing so, I will try to detect the reasons and the ideology that have animated
the decision of the creation of such spaces of confinement. Keeping the point of view of biopolitics, I will propose
the ghetto as a specific paradigm for the administration of urban spaces – different from the one underlying
phenomena like the “slum” – whose traces are still observable in the context of contemporary cities.
As cities compete with each other to secure coveted recognition as a “creative city”, the commercial viability of
the elements that attract the sought after attention of the “creative class” to a particular neighbourhood becomes
a key focus of urban renewal strategies and real estate development. The process by which regulations, bylaws,
and legislation interact with the idealized cultural enclaves during this process provide insight into how the law
can be used to either protect, damage, appropriate, or destroy a culture, depending on who summons their use.
The grit and culture of these neighbourhoods through this process is often essentialized and commodified in
order to attract property developers and business interest into the area, which further enhances the draw and
gentrification of these neighbourhoods and cultural enclaves. Yet the commodifiable artistic essence of the
human composition that characterizes these neighbourhoods is what eventually drives these same individuals
from the space.
Judy
Failer
Indiana University, Bloomington
[email protected]
"Politics in the Parochial Square: Using
Secular and Jewish Law to Control the
Women of Beit Shemesh"
Beit Shemesh, Israel, has become ground zero for a larger culture war that is spreading throughout Israel. Haredi
(ultra-orthodox) men there have been asserting authority over the woman and girls who might cross their paths:
walking to school, entering public health clinics, even walking on the “wrong” side of the street. They act out of
religious obligation; they believe their religion forbids them from encountering women who do not conform to
Haredi standards. Following the lead of their co-religionists in Israel, Haredim have made similar attempts in the
United States, including efforts to segregate women and regulate their dress in Haredi enclaves in Brooklyn,
Queens, and upstate New York. They have even tried to separate men and women on public buses.
The Haredim’s actions in both Beit Shemesh and the United States evoke the familiar multicultural dilemma over
how democracies should respond to the anti-democratic in their midst. Here the analysis is complicated by the
fact that the Haredim do not concede that they are acting in public space; rather they act to protect the space
they need to be pure in order to lead holy lives. I call this arena the “parochial square.”
But in Israel, Haredi efforts to control women in the parochial square are even more complicated by the fact that
Israel is both a democracy and a Jewish state. The Haredim use Jewish law to justify their control of women and
girls in the parochial square -- including those who are Orthodox but not “ultra-Orthodox.” The non-Haredi
Orthodox dispute the Haredim’s interpretation of Jewish law, and assert parity in religious interpretive authority.
The fight over who gets Jewish law “right” transforms the battles in Beit Shemesh into something larger: a war
over what it means to be a Jewish state and who has authority to decide which version of Judaism rules. In
short, it is a battle – fought through both secular and Jewish law – over civic identity.
Emma
Patchett
Paul
Passavant
Audrey
In this paper, I propose to examine the Haredim’s efforts to use both secular and religious law to control women
in the parochial square. My goals are two-fold. First, I aim to understand the extent to which their actions add a
new dimension to democratic debates about multiculturalism by trying to control the “parochial square.” Second,
I aim to tease out the ways that these battles over the parochial square illuminate larger battles about civic
identity in Beit Shemesh – over which version of Jewish identity should define and control communal life.
Squatting , property law and possession in Since the 1970s there has been an encroaching shift towards the removal of squatters’ rights (Finchett Maddock,
dystopian Fiction
2012). Exploring ownership as a complex construct (Ackerman, 1977; Penner, 1996 ), this paper aims to move
beyond the narrative of squatting as an anarchic anti-state practice or as a form of ‘nascent citizenship’
(Manjikian 2013: 17). Through a critical legal reading of the dystopian texts Benefits by Zoe Fairbairns and The
Passion of New Eve by Angela Carter, I will theorise squatting through a recognition of the violence inherent in
property law and its discursive construction of space (Blomley, 2003). My aim is to build on critical work on
property law by calling for a radical shift in the paradigm of property through the particular spatio-temporal
distortion of dystopian literature (Moylan, 1986).
Chair
WWU Münster
[email protected]
Golden
University of Virginia, Dept of English
[email protected]
Human Rights from Southeast Asia:
Contemporary Perspective on Language,
Violence, and the Law
How do we narrate human rights from Cambodia, Myanmar, and Vietnam? This panel brings together the works
of Vaddey Ratner, Karen Connelly, and Thanhha Lai—three contemporary women writers immersed in matters of
loss and resistance arising from Southeast Asia. Employing images of political violence, activism, and
refugeeism, these authors reconsider the intertwined language of literature and law in regions still grappling with
recent histories of tyranny and war. Ultimately, the panel questions how literature represents the rights afforded to
persons tied to these geopolitical spaces, and in so doing, it asks how such an inquiry might encourage us to
rethink the stark lines typically drawn between victims and perpetrators.
Kerry
Lena
Mei-Linh
Abrams
Khor
Hong
Chair
Joana
Aguiar
Escola de Direito da Universidade do
Minho
[email protected]
'The criminal in us': criminology between
law, fiction and narrative
Melissa
Ganz
Marquette University
[email protected]
William Godwin, Jack Sheppard, and
Criminal Biography: Re-reading _Caleb
Williams_
No natural entity lies underneath the legal concept of crime, which, in the end, is always the result of a human
construction. What today is considered a crime, may well not be so tomorrow, and behavior once considered
criminal, may now (or elsewhere) be a perfectly acceptable and ‘normal’ one. What does it mean, then, talking
about someone´s criminal nature? And what is a ‘normal’ conduct? What about the hidden criminality of ordinary
people? What does good and evil have to do with it?
The idea in this paper is to connect the concept of legal crime to the processes of fictionality as conceived by
Vahinger’s Philosophy of As If, exploring the changes that contemporary criminology has been undergoing in its
need to accommodate the legal potential for indeterminacy and fragmentation.
Considering the legal concept of crime as fiction, in Vaihingerian terms, in the same manner as Kelsen
considered his Grundnorm a vaihingerian fiction, we make room for the relevance of narrative and of literature as
means through which we can deconstruct the fictionality entailed in the criminal legislator's abstract
constructions. This may allow us to understand deviation as an incident that somehow stands dialectically
halfway between facts and norms, or between social reality and legal hyperreality. And it may do so without
giving two important insights. On the one hand, Saleilles’ remark, that when a fiction becomes indispensable, it
must be thought of as a reality, and on the other, Durkheim’s belief on crime’s social functionality.
This paper examines the ways in which William Godwin both draws upon and subverts the conventions of
criminal biography in his 1794 novel, _Things as they Are; or, The Adventures of Caleb Williams._ In particular,
the paper focuses on Godwin’s reworking of accounts of the celebrated criminal Jack Sheppard. Sheppard’s
shocking escapes from Newgate Prison captivated the reading public in the 1720s, and stories of his life
continued to circulate throughout the century. In _Caleb Williams,_ I will argue, Godwin capitalizes on the public
interest in crime—and the life of Sheppard, in particular—while turning the conventions of criminal biography on
their head. The novel presents a frightening world in which the innocent are treated as if they were guilty, and the
guilty terrorize the innocent. Early in the novel, Caleb makes the shocking discovery of his master’s illicit past.
Prompted by Caleb’s constant inquiries, Squire Falkland eventually confesses to killing his rival and framing one
of his servants. The guilty Falkland now turns his ire upon Caleb, falsely accusing him of stealing banknotes,
jewels, and plate from his house. Although he is innocent, Caleb thus quickly assumes the position of the outlaw.
Godwin draws upon Sheppard’s life in his account of Caleb’s masterful prison escape and subsequent flight. Yet,
while Godwin uses details of Sheppard’s life to expose the tyranny of the justice system, he constantly reminds
readers of Caleb’s innocence. (Caleb, in fact, firmly rejects the idea of joining a gang of thieves, continuing his
struggle to elude Falkland’s spies on his own.) Godwin thus strategically limits the appeal of Sheppard’s
example. By drawing upon yet rewriting Sheppard’s life, Godwin exposes the blurry line between law and
lawlessness in late eighteenth-century England, while highlighting the need for legal reform.
Human Rights from Southeast Asia:
Contemporary Perspective on Language,
Violence, and the Law
Criminology, Prisons, Prosecutors
Page 32 of 111
15:45-17:15
Eisha
Jain
Georgetown University Law Center
[email protected]
Prosecutors and the Peacekeeping
Function
Johann
Koehler
UC Berkeley
[email protected]
Felon disenfranchisement and the
jurisprudence of degradation
Gil
Rothschild
JSP (Jurisprudence and Social Policy)
PhD, UC Berkeley
[email protected]
Governing Demeanor: Towards a New
Legal Governmentality
Linda
Meyer
Stacy
Douglas
Kathryn
Samantha
Morgan
TEMMA
Prosecutors routinely make decisions that hold little relationship to the criminal justice process. An arrest
provides criminal prosecutors with leverage to seek outcomes that they believe are desirable as a matter of
public policy, but which have no significant relationship to crime control. Prosecutors can ask that arrested
individuals agree to invasive forms of monitoring, alter their living arrangements, agree to voluntarily depart from
the United States, or forgo work in certain occupations. These civil consequences operate separate and apart
from any criminal conviction. But in spite of the way that criminal prosecutions trigger meaningful civil
consequences – particularly for minor arrests – prosecutors continue to be regulated as though they are focused
virtually exclusively on criminal law outcomes, such as conviction maximization. This article examines how
prosecutors achieve social policy through plea bargaining and considers how prosecutors should be regulated
when they act primarily to achieve social or public policy ends.
Critical scholarship of felon disenfranchisement law examines whether the practise can be reconciled with two
popular traditions of citizenship theory. The liberal contractarian tradition holds that violations of the social
contract by criminals vitiate their participation in the political process. The republican communitarian tradition
holds that disenfranchisement insulates the electoral pool from infection by the unworthy. Previous work has
argued that disenfranchisement cannot be adequately justified by an appeal to either of these traditions. This
paper engages those critiques, and finds them mis-directed in their failure to address the inegalitarianism
operating at the core of disenfranchisement; instead, it re-directs the critique of disenfranchisement to engage an
alternative justifying approach, labelled the ‘jurisprudence of degradation,’ that places attributions of dignity at the
fore. The paper evaluates whether disenfranchisement is tenable on those terms, and finds that it is not.
This paper suggests an interpretative framework for thinking about the institutional logic of (criminal) trial courts.
It analyzes an emerging legal-governmentality whose practicable object is demeanor—conceived as a proxy for
risk—and which is best understood as employing a regulatory-ensemble for governing mis-demeaned persons.
Demeanor, as elaborated by Goffman in an oft-forgotten essay, refers to that symbolic element of one’s behavior
that communicates to others who that person is and how she generally performs. Drawing on recent literature
analyzing the expansion of penal regulation to the pre-punishment stage (e.g. Kohler-Hausmann 2013), I
concentrate on courts’ reappropriation of the communicative potential (impressive and expressive) that mundane
legal/procedural technologies harbor. Realizing this potential, courts economically construe mis-demeanor as
signaling social danger and consequently mobilize available resources for governing demeanor. Critically, I
demonstrate that—much like in everyday life—such communicative mechanisms easily lend themselves to
processes of marginalization, particularly by relying on a culturally-laden preconception of demeanor.
Chair
Aesthetics of Narratives of Justice
CHAIR
Law and Legal Studies, Carleton
University
[email protected]
Aesthetics of Narratives of Justice
Temple
Hogg
Thomas
PINKOFSKY
Carleton University
University of Cincinnati
Carleton University
[email protected]
[email protected]
[email protected]
Kyle
Scott
University of Houston
[email protected]
Action and Inaction: The practicality of
humility as a political virtue within the
death penalty debate
Michael
Clemente
Yale Law School
[email protected]
Idiocy Protections in 1791
Guns and Death: Interrogating Private Gun
Ownership and State Death Penalty Laws
Page 33 of 111
Hubris blinds us when making fatal decisions as it blinds us from appreciating the consequences of our actions.
The implication is that humility stands as a potential obstacle to decisions that would otherwise have irreversible
consequences. The death penalty can be addressed in these terms and this paper will take up Arthur Miller’s
Crucible as a way of examining the subject. I will use The Crucible to raise the possibility that we see folly in
justice systems other than our own but we rarely stop to investigate whether ours, not just in practice but in
principle, is not itself a worthy subject of criticism. Criticisms of particular aspects of the judicial system, or of a
specific Supreme Court decision, are common. But, questioning whether the assumptions that undergird our
legal system is far less common. The death penalty imposes a penalty that is irrevocable. Humility is a virtue
absent from a system that is willing to impose such penalties. The question remains as to what actions humility
permits. This then begs the further question of whether humility is a practical virtue given that action must be
taken, sometimes with permanent consequences. The possibility then opens up that politics—as it is premised
upon the assumption of action—cannot be virtuous if humility is a virtue and humility prohibits action with
irreversible consequences.
When the Eighth Amendment was ratified, common law protections categorically prohibited the execution of
“idiots.” On two occasions, the Supreme Court has considered whether these protections proscribe executing
people with intellectual disabilities; however, the Court concluded that idiocy protections on shielded the
“profoundly or severely mentally retarded.” This Note argues: 1) that the Court’s historical analysis of idiocy
protections was inaccurate; 2) that idiocy protections included people with a wide range of intellectual
(dis)abilities; and 3) that based on this new historical accounting, there are disabled people on death row today
who would have been protected from execution in 1791.
Colin
Christensen
University of California at Berkeley
[email protected]
The “True Man” and His Gun: The
Masculine Mystique of Second
Amendment Jurisprudence
The Supreme Court’s recent Second Amendment jurisprudence raises serious normative questions for the use of
self-defense with a firearm. This jurisprudence also implicates our prevailing social norms with respect to socially
constructed and structurally pervasive gender roles. I argue that the judicial construction of the Second
Amendment’s core purpose as guaranteeing the right to armed defense of one’s self and one’s home is
underpinned by a peculiarly American conception of masculinity. In a strict legal sense, the Court’s recent Second
Amendment rulings create an individual protection for gun ownership and incorporate the same against the
individual states, but the reasoning offered by the Court entangles this protection with an implicit valuation of
manhood that reifies the notion that “true men” do not retreat in the face of danger. In so entangling, the Court
establishes an association between the perceptions of and responses to vulnerability and the legitimate use of
force that fetishizes the firearm as both a tool of defense as well as a manifestation of masculinity. Here, I explore
the socio-legal structures that underpin the Court’s reasoning to explain (a) how the right to keep and bear arms
is rooted in a dubious ideal of the American “man,” and thus how (b) the purposes for which one may keep and
bear arms constitutionally galvanizes a masculine mystique within our Second Amendment jurisprudence that
establishes a problematic cultural narrative of and ethos for manhood in America.
Drawing on the broad literature on overcriminalization and the social costs of incarceration in the War on Drugs, I
seek to problematize the current and proposed use of criminal law as the regulatory paradigm for managing gun
possession. Focusing on the racial and socio-economic damage that the drug war has wrought, I argue for a
critical re-examination of criminal law as a means of advancing the progressive aims of gun control proponents.
While the rhetorical framing of anti-drug and anti-gun measures may appear unrelated, this paper will highlight
the ways in which a potential (and, in some respects, an already-ongoing) “war on guns” should be viewed in the
context of the critiques leveled against the failed War on Drugs. Ultimately, I argue that those wary of an
overreliance on the state’s police powers in the drug context should be wary of embracing a “culture of control” in
the gun context.
Benjamin
Levin
Harvard Law School
[email protected]
Guns and Drugs
Carlo
Pedriolli
Peter
Swan
Dept. of Law & Legal Studies, Carleton
University
[email protected]
max Weber and the Constitution of
Political Subjectivity
Kathryn
Heard
University of California, Berkeley
[email protected]
Matthew
McManus
York
[email protected]
Maria
Drakopoulou
University of Kent
[email protected]
The Post-Secular Subject? Habermas and The purpose of this paper is twofold: first, to interrogate how the circumscription of religion from public life in
the "Remainders" of Public Reason
secular liberal thought has been construed as reasoned and rational, and second, to examine if – and how – this
move imparts a particular subjectivity to the religious members of late modern polities. More specifically, it
utilizes the foregoing framework to interrogate Jürgen Habermas’s determination that contemporary civil society
has, as a result of decades of transnational migration and capital flow, entered into an era of post-secularism.
Under such conditions of robust public pluralism, he argues, the liberal state can remain a viable form of
governance if – and only if – it cultivates a reasoned and rational core that can be accessed by persons of many
(or of no) faiths. This paper ultimately suggests that Habermas pays insufficient attention to the powerful history
of “reason” in secularist thought and, as a result, performatively reproduces a governable subject predicated on
the bifurcation of its newly public piety from substantive political life.
Becoming to Belong
My dissertation will challenge the liberal model of consciousness, from which I will draw out certain legal and
socio-political conclusions. Drawing on my philosophical model, I will argue that social actors should adopt a
dignity, rather than liberty, oriented approach to justice. This includes recognizing human rights as legal tools to
realize and amplify what I refer to as expressive powers.
Prosopon and Person: reflections upon
This paper explores the notion of the person and its apprehension in law, centring on the period of classical
questions of tradition and sexual
antiquity. The intention is to enter into a dialogue with recent jurisprudential engagements inspired by Agamben
difference
and Esposito, and to do so by addressing the tradition upon which these engagements rest. A central claim of
this body of work is that the western juristic conception of the person is located in law’s indebtedness to theatre,
Roman law and Christian theology. This paper interrogates this body of work; to be more precise the sexual
economy of its constitution.
Chair
The Liberal Subject
Since the late 1980's social scientists and political theorists on both sides of the Atlantic have suggestively
argued that the projects of Michel Foucault and Max Weber were similarly concerned with the regulation of ‘life
conduct'. I would like to follow up these suggestions by looking at areas within Weber's work where we can see
hints of his views on the constitution of individual and collective political subjectivities. While acknowledging
Weber’s suggestions for a thoroughly rational mode of governance through forms of law that shape individual lifeconduct by habituation to empirically valid modes of behavior, I will locate this analysis within the context of an
exploration of a broader Weberian exploration of the regulation of both “everyday” and “extraordinary forms of
subjectivity in the writings on the “economic ethics of world religions and in his
View of tragic choices that is constitutive of the political conduct of 'scientific” and political actors in the “Vocation
essays”.
Foregrounding analysis on the concept of oikonomia and its rise in Xenophon’s Oekonomicus, and restoring to it
its originary reference to the sexual order rather than to an order of governance, the paper reveals the shadowy
threads which connect oikonomia to the notion of prosopon in classical Athens and to that of the legal person in
republican Rome. I argue that a sexual economy is already at work at the beginning of the tradition and
foundational to it.
Sara
Kendall
Sara
Kendall
Chair
Chair
Nigeria as a Case Study for Seeing Law in
Cultural Context
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Black Religion, Black Critique, and the Limits
of Law
CHAIR
Olanrewaju
Adeojo
olabisi onabanjo university, ago-iwoye,
ogun state
OLADAYO
KOLEOLA
Alexandra
Mercescu
Peter
Leman
Vincent
Lloyd
Terrence
Ian
Johnson
Ward
[email protected]
THE INTERFACE BETWEEN LAW AND
CULTURE UNDER NIGERIAN LAW OF
INHERITANCE
The present day Nigeria of about one hundred and seventy million people is made up of various ethnic groups
occupying different geographical areas. It is governed, in some respects, by same law and more importantly by
an organic law of the constitution against the background of several cultures, customs and traditions in operation
in the various communities. It is noteworthy that the constitution is based on the principles of democracy, social
justice, and freedom from discrimination. However, the principles that developed through cultures, customs and
traditions deemed acceptable among the peoples of the various communities, also run together with the law and
the constitution. The assertion equity is equality and equality is equity is not well founded, where for instance,
under culture; female children and not male children are disqualified to benefit from the estate of their deceased
father (who died intestate). Furthermore, what is the essence of the law against discrimination in a situation
where there is an insistence that, a woman, according to culture, cannot inherit the property of her deceased
husband because she had no male child? Indeed there is also an interface between law and culture in matters
relating to distribution of assets of a deceased father between his surviving children that are male and female. It
is imperative to state that ‘gender’, which in a sense is the state of being male or female, is critical in the study
and analysis of the law and culture relating to issues of inheritance in Nigeria. The objective of this study would
be to highlight the right of male and female children to participate in the distribution of assets of their late father
and its consistency or otherwise with the law and constitution. Furthermore, it will examine the competence of a
man or woman (having a male or female child) to inherit each other. This study will rely, essentially, on qualitative
methodology and gather its information from the statement of the law, decisions of the courts; documentary
sources, like journals, magazines, books, newspapers and internet materials. This paper will argue that a culture
that dis-inherits either a daughter from her father’s estate or wife from her husband’s property by reason of God
instituted gender differential is barbaric and deserves to be condemned as being repugnant to natural justice,
equity and good conscience. Indeed it will be made clear in this paper that decisions of some appellate courts, in
this regard, are gratifying and clearly act as total break from unjust and discriminatory cultural practices. This
paper will posit that, notwithstanding the unstable development in this area, the courts have been proactive in
their recent decisions, aimed at ensuring justice and fairness in their consideration of application of culture in
conformity with the twenty-first century societal setting. This paper will make recommendations regarding the
effective way of combating the challenges that culture raises under the law of inheritance in Nigeria.
UNIVERSITY OF IBADAN, OYO STATE, [email protected]
NIGERIA.
AT THE CONFLUENCE OF LAW AND
LORE: THE RICHNESS AND REACHES
OF A NIGERIAN LITERARY
JURISPRUDENCE.
Paris 1 Panthéon-Sorbonne University
Comparative Legal Studies and
Interdisciplinarity: a Missed Encounter
The law of a particular society, like its lore, is usually traceable to its people. Law is most effective when it flows
from the history and culture of its target society. A people’s lore –history, culture and unique experience of the
human condition- inspires its literature, which, in time, blends back in and expands the organic pool of that lore.
Law and lore (including its written form, literature) have an overflowing meeting point or confluence.
Interdisciplinary studies of that confluence include ‘literary jurisprudence’ or law and literature scholarship.
In Nigeria, interdisciplinary scholarship in law, culture and the humanities is non-existent, despite great potential
for it. This research highlights the potential richness and reaches -scope of influence and challenges- of a
localized and comparative Nigerian literary jurisprudence, offers suggestions, and thereby calls the attention of
fiction writers, literary, cultural studies and legal scholars to this unique confluence of law and lore.
In retrospect, comparative legal studies could have embraced the commitment to interdisciplinarity that
characterizes various postmodern in(ter)disciplines such as feminist, cultural, American or postcolonial studies,
all the more so that a number of analogies can be drawn between the former and these other fields of
knowledge. However, even today, most comparative undertakings remain confined to black-letter rule analyses,
disregarding the cultural background of law and, with it, the need for interdisciplinarity. Not only is
interdisciplinarity not practiced but it also suffers from undertheorization, which, given the discipline’s increasing
preoccupation for issues related to epistemology, is very surprising. Thus, my paper seeks to explore the reasons
that could account for legal comparativists’ enduring reluctance towards interdisciplinary work, since I believe that
only after thoroughly looking at the absence of interdisciplinarity can one move on to engage with the presence of
interdisciplinarity, that is, with its benefits as well as its limits.
[email protected]
Chair/Discussant
Syracuse University
[email protected]
Black Religion, Black Critique, and the
Limits of Law
The Limits of State Power
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Black religious communities in the United States are often credited with providing a space for organizing against
unjust laws during slavery and segregation. But Black religious ideas – for example, about God’s law or about the
flawed wisdom of the world – also played a crucial role in providing a critical perspective on unjust laws. Critical
legal scholarship on race has often exhibited a secularist bent, perhaps echoing a Marxian suspicion of the
religious. This roundtable discussion will explore how engaging with religious ideas that play an important role in
the African American tradition, such as prophecy and higher law, can fruitfully contribute to critical legal
scholarship. Specifically, each participant will use one figure - the activist and educator Anna Julia Cooper, the
cultural critic Cornel West, and the critical legal scholar Derrick Bell - as a starting point for discussion.
Lisa
Kelly
Rana
Zeina
Katherine
Jaleel
Jallad
Franke
James
Martel
Maria
Jodi
William
James
Aristodemou
Dean
McNeil
Martel
Columbia Law School & Center for
Reproductive Rights
[email protected]
The Limits of State Power
Scholars of cosmopolitanism and multiculturalism have developed transformative theories about the limits of
state power amidst alternative governance structures in families, tribes and minority communities. This panel
argues that “cultural compromise” claims provide a crucial, but only partial, explanation of the limits of state
power. This panel brings to bear a political economy frame. We claim that material, labor, and economic
bargains are a constitutive part of cultural compromises between state and non-state groups. To make this claim,
we analyze the legal regulation of corporal punishment in Canada, the governance of labor at Indian-owned and
operated businesses in the United States, and the status of Samaritan Jews in Palestine. Each of these case
studies will interrogate the linkages between culture and economy in power-sharing arrangements. Our aim is to
illuminate how issues of childrearing and dependency, labor and employment, and shared geography shape the
legal limits of the modern state.
Chair
Author meets readers: Maria Aristodemou's
"Law, Psychoanalysis, Society"
CHAIR
Permutations of Property: The Codification of
Cultural Production and Entitlement
CHAIR
Peter
Schneck
SFSU
[email protected]
Author meets readers: Maria
Aristodemou's "Law, Psychoanalysis,
Society"
Osnabrueck University
[email protected]
Permutations of Property: The Codification Current debates about the nature and legitimacy of intellectual property rights (and the claims connected to these
of Cultural Production and Entitlement
rights) are less characterized by incompatibility in terms of logic than by antagonisms in terms of politics. The
deep schism between the different parties involved in these constant negotiations is not mirrored institutionally,
however. While corporate interest and government regulators negotiate international treaties in secret, creators
and consumers often create and operate under their own paradigms, stretching and transgressing the limits of
legal regulations and of conventional cultural concepts of legitimate ownership. These parallel, yet separate
projects rarely interact, and they often contradict each other.
These ongoing conflicts in regard to the definition of the nature and the limits of intellectual property rights are not
new. Indeed, the emergence of the concept of intellectual property – as the ownership of ideas – and the
subsequent institution of intellectual property as a legal form at the beginning of the 18th century also
inaugurates the modernization of the general conceptualization of property as increasingly mobile, intangible,
abstract and interchangeable. Consequently, the realm of cultural production has been transformed into the
privileged (or haunted) realm where property is constantly being created and re-created, only to be re-integrated
eventually into the larger dynamics of commodification and capitalization.
Given their historical trajectory and persistent dynamics, the panel seeks to explore contemporary debates on
intellectual property rights within the larger context of cultural production and expression and from a historical
perspective. It also wants to examine the 'gray areas' of intellectual property rights focusing on the central
concept of intellectual property – the ownership in ideas – as constantly evolving and contested, yet unattainable.
[email protected]
Law School Dropouts: What Can We
Learn About Non-Learners at the Early
Modern Inns of Court
Martin
Maciej
Jens
Peter
Zellinger
Jakubowiak
Bonk
Schneck
Robert
Fox
Tufts University
Cristian
Villalonga
University of California Berkeley. PhD(c) [email protected]
JSP
This will be a roundtable panel discussing Maria Aristodemou's recent book "Law, Psychoanalysis, Society"
Legal Culture, Legal Training, and the Politics
of the Legal Profession
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Law was arguably early modern England’s most important “growth industry” with the number of barristers
increasing from 1-in-20,000 Englishmen in 1558 to 1-in-2,500 in 1640. Not surprisingly, annual admissions to the
four Inns-of-Court tripled during the period; but what is surprising is how in the same period, the number of
admitted pupils later “called to the bar” was only 1-in-6 (and 1-in-11 at Gray’s Inn). Historians and historicallyfocused literary scholars suggest that these large numbers of what Baker terms “non-learners” speak to how
many attended the Inns not to gain entry into the legal profession but instead as a base for enjoying London’s
social/cultural life or to gather a smattering of knowledge before returning to family businesses/estates. Such
conclusions, however, have not been tested using data from Inns’ records tracking information such as pupils’
county-of-origin, father’s profession, rank-in-family, fines levied for missed “mandatory” learning-exercises, etc.
Using computational methods developed for Digital Humanities’ scholars, I will analyze Inns’ data to discern
characteristics common to this sizeable (but largely-overlooked) population of non-learners, and through this
“distant reading,” I hope to develop a broader understanding of such students’ place within Inns’ culture.
“A New Law for a New Society”: Lawyers, During the 1960s, the discourse of legal crisis emerged as a common topic within the Chilean legal profession,
Social Change, and the Rhetoric of Legal which began to underscore the unresponsiveness of law due to its shortcomings when facing social needs. Until
Crisis (Chile, 1964-1970)
that time, elite lawyers used to dominate the public arena, representing juridical science as superior form of
governance. However, the advancement of the administrative state and the political raising of groups that
promoted large-scale projects of transformation challenged their long-established place. Builds upon Pierre
Bourdieu’s insights, this paper explains how some groups of them develop their narratives of mobilization to
regain influence in policy-making. So, this rhetoric constituted a way to advance their particular professional and
partisan agendas: claiming to act “in the name of law”, they legitimated their participation in legal reform and their
attempts to rearrange professional hierarchies.
John
Bliss
Jurisprudence and Social Policy, UC
Berkeley
[email protected]
Kathleen
Darcy
Michigan State University College of Law [email protected]
Linda
Meyer
Samantha
Paul
Godwin
Gowder
Deconstructing Drift
MEDICALIZING GENDER: HOW THE
LEGAL AND MEDICAL PROFESSIONS
SHAPE WOMEN’S EXPERIENCES AS
LAWYERS
Research on legal education has described a pervasive "public interest drift," by which students abandon public
interest career aspirations in favor of careers in corporate law. In this paper, I examine what is meant by “drift” in
this literature. I begin by analyzing the ordinary language genealogy of “drift” and the term’s family resemblance
to deviance, criminal careers, and other pathologized language in the early literature on delinquency. This
background provides context for my broader critique of existing accounts of public interest drift, which, I claim,
tend to overemphasize moral choice and overgeneralize from the experiences of students from privileged
backgrounds.
I argue that historical medical understanding ultimately created a complex and substantial barrier that kept
women from exploring options outside the “spheres” of society they have traditionally occupied, utilizing the
weight of science and the well-respected medical community. Medically-supported gender theories, in practice,
have actually operated to limit women’s professional progress in the legal profession. I examine how this barrier
operates in three ways: how early women lawyers adopted these medical theories into views about their own
gender; how society and those surrounding these early women lawyers adopted these views to shape outside
expectations about women as lawyers; and how the court explicitly and implicitly relied on these assumptions
about gender to keep women out of the legal profession. This paper concludes that vestiges of these theories
may contribute to some of the barriers and double-binds that impede women lawyers today.
Chair
Theorizing Under-Recognized Dilemmas for
Equality in the State and Society
Yale Law School
University of Iowa College of Law
[email protected]
[email protected]
discussant
In the Social Contract, Rousseau asserts (bk. 2, ch. 6) that the general will cannot issue in non-general
laws. Rousseau's argument for this proposition is an indecipherable detour into metaphysics, but there's
an intuitive grip to it nonetheless. To what extent is a democracy limited to enacting laws that comply
The rule of Law, Democracy, Equality with the rule of law principle of generality---the principle that the laws must treat their subjects as
equals? Is this a conceptual claim about democracy, a pragmatic necessity for a democratic state, or
something else? And can it be used to generate an account of the role of "countermajoritarian" courts,
qua enforcers of the rule of law, in a democratic polis?
Against Immutability
It is often said that antidiscrimination law provides the most protection for characteristics thought
immutable, like sex and race. The gay rights movement has succeeded in convincing many courts to
expand the concept of immutability to include not just those traits an individual cannot change, but also
those considered too important for anyone to be asked to change. Religion is a paradigmatic
example. This Article critically examines this new concept of immutability, asking whether it is
fundamentally different from the old, and how it might apply to characteristics on the borders of
employment discrimination protection, such as obesity, pregnancy, and ex-offender status. It argues that
the new immutability does not avoid the old version’s troublesome judgments about which traits are
morally blameworthy, that it introduces new problems by requiring troublesome judgments about which
traits are important, and that it ultimately distracts from the disruption of biases, stereotypes, stigma, and
subordination. Jessica A.
Clarke
University of Minnesota Law School
[email protected]
Noya
Rimalt
University of Haifa, Faculty of Law
[email protected]
Multicultural Challenges
Allison
Tait
Columbia Law School
[email protected]
Defining and Delegating to the Public
This panel will explore the ways in which law constructs, construes and uses the concept of the “public.”
Panelists will address how legal constructions of a public are incomplete because they fail to take into account
the multiple populations and communities that comprise the category.
Scott
Sarah
George
Enderle
Swan
Wright
John
Strawson
University of East Lonodn
[email protected]
Legal Images and Popular Discourse
This panel seeks to explore the way in which legal images are constituted as popular discourse through the
media. While much work in the area of criminal law there is relatively little work in area of international law and
human rights. This panel will bring together papers that will focus on some critical international legal questions:
international military action against ISIS, the Sri Lankan civil war, the rights of indigenous peoples ,he terrorists
and sex criminals. These themes raise complex theoretical and technical issues concerning issue of the use of
force, war crimes, crimes against humanity and the application of international human rights standards within
legal discourse itself. The panel will track the manner in which the media (broadcast, print, social) popularizes
both the legal and transforms the theoretical and technical into a form of social rhetoric.
Barry
Roshan
Edel
Jeremie
Collins
de Sliva Wijeyeratne
Hughes
Gilbert
Defining and Delegating to the Public
Legal Images and Popular Discourse
CHAIR
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Specifically, the paper identifies
these TWAIL scholars as generating
an alternative temporality in their
practices of what it, following
Jacques Derrida, identifies as an
undertaking their ‘task of
inheritance’. It suggests that these
tasks get carried out by them partly
in their practice of re-narration and
re-description of histories of past
struggles of the generation of anticolonial modernizing nationalist
‘Third World’ international lawyers
from the decolonization era (referred
to as the ‘Bandung Generation’), as
forming a part of their vital
inheritance in the present and not as
some naïve and immature struggles
from a bygone era. The paper
argues that the critical productivity
of these practices in the present
arises on two fundamental and
related counts. Firstly, by turning
towards this past and engaging with
it as a continuing active presence
and as a vital source generating
potentialities to transform the limits
of the colonial present, TWAIL
scholars not only disrupt the violent
separation of the past from the
present but also actively engage in
the generation of alternative futures.
Secondly, in undertaking this task
these scholars adopt a mode of
narrative re-emplotment which
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Religion, Race, and Law
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Chair AND Discussant
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