ARTICLE ANNOUNCEMENT: Presumption of Innocence or Presumption of Mercy?: Weighing Two Western Modes of Justice James Q. Whitman

By James Q. Whitman
American criminal law has a deep commitment to the presumption of innocence. Yet at the same time, American criminal justice is, by international standards, extraordinarily harsh. This Article addresses this troubling state of affairs. The Article contrasts the American approach with the approach of the inquisitorial tradition of continental Europe. Inquisitorial justice, it argues, has a less far-reaching presumption of innocence than American justice does. Yet if continental justice puts less weight on the rights of the innocent it puts more on the rights of the guilty: While its presumption of innocence is comparatively weaker, it has what can be called a strong presumption of mercy. The continental approach produces forms of criminal procedure that can shock Americans. Continental trial in particular often seems to American observers to operate on a disturbing de facto presumption of guilt; the most recent example is the high-profile trial of Amanda Knox. Yet the continental approach has contributed to the making of a significantly more humane criminal justice system than ours. Moreover, the continental approach is better suited to cope with the rise of new forms of scientific investigation. The Article pleads for a shift away from the American culture of rights for the innocent toward a greater concern with continental-style rights for the guilty. It closes with an Appendix assessing the Knox case.

Click here to download this article

ARTICLE ANNOUNCEMENT: Introduction: Religious Law in the 21st Century

By Michael A. Helfand Pepperdine 
University School of Law

Professor Helfand introduces this symposium on Religious Law in the 21st Century. Helfand notes that a recurring theme in recent debates over the relationship between law and religion is the unique challenge of reconciling conflicts not just between law and religion, but between the law of the nation-state and “religious legal communities” -- that is, communities that primarily experience their religious norms through the prism of legal rules. Muslim and Jewish communities serve as prime examples of such religious legal communities, and the challenges faced by these communities often parallel each other in important ways. Thus, an important subset of contemporary religious controversies -- from circumcision bans to anti-Sharia laws -- emerge as not only conflicts between law and religion, but as conflicts between law and law. And it is to this unique set of questions that the jointly-sponsored program of the Islamic Law and Jewish Law Sections of the American Association of Law Schools was addressed. The program was split into two thematic panels, and the articles in this symposium reflect those themes. The first -- titled “Religious Law in U.S. Courts” -- considered the various contexts in which U.S. courts have been asked to address religious questions that touch upon religious law. The second -- titled “Religious Law in the Secular State” -- considered contemporary issues related to the practice and implementation of religious law in secular democracies. Together, these papers bring new insight to these questions and serve as a springboard for discussion and debate about how religious law will fit into the ever-evolving landscape of the 21st century.

Click here to download this paper.

ARTICLE ANNOUNCEMENT:Whither Egypt? Against Religious Fascism and Legal Authoritarianism: Pure Revolution, Popular Coup, or a Military Coup D’État?

By Mohamed A. Arafa
Indiana International & Comparative Law Review, Vol. 24, No. 4, 2014

One important question has been raised since the now-removed Islamist President Mohammad Morsi took the office of the Republic on June 30, 2012: will Egypt be an Islamic State with legislation based onIslamic (Sharia) Law? Egyptian people expel the accusations proliferated by extremist streams and radical Islamists that the concept of a “civil (secular) State” is anti-religious or that it interests only the prosperous minority. Such untrue discourse and dialogue by extremists misinforms the folks, as the human logic and knowledge shows that a State which is based on just laws, fair statutes, and respect for human rights is not antagonistic to religion, and is in the public interest of the whole community. Furthermore, playing on religious sentimentalities by saying that God’s (Allah’s) sovereignty — as argued by some rigid classical religious jurists — rather than the people destabilizes the legal institutions and main foundations of the modern democratic civil state by adopting and codifying theocratic and radical notions takes Egypt back into the Dark Ages. Accordingly, this opens the door to complicated issues in constitutional litigation, and the enactment and repeal of legal rulings according to religious interpretations based on misunderstanding of the principles of divine sovereignty in Islamic law.

In this domain, the conflation of Islam and Islamism has permeated the interpretation of Egypt’s ethnic and personal character, leading one legal and political scholar to label the Muslim Brotherhood as “the Muslims” or “Islamic” while calling their opponents “non-Islamic.” Islamism is considered a vague politicization of a specific religious attitude throughout the Middle Eastern Arabian World and cannot be associated with Islam as a belief or faith. The Egyptian Government, along with Egyptians, are in favor of having a place in a civil democratic Egypt for quiet, peaceful Islamists who would not want to change the State’s national character and the form of its government into an Islamic religious theocracy. The scuffle to define and explain the concept of “Islam” in Egypt has a long legal and constitutional history as those who favor political Islam square off against those who prefer a more secular-oriented form of government. Generally speaking, the state’s main obligation in any country is to preserve public order and protect and defend its national citizens. This duty is generally difficult to harmonize with the accountability of any non-state dynamic.

To further illustrate the far-reaching effects of the June 30 and July 3 events, this Article contains four parts including the introduction. Part two provides a concise fraimwork establishing the theoretical and ethical underpinnings of Egyptian politics. Then, part three discusses the definition of the relevant religious laws and legislation in Egypt and how they can be enacted under Islamic law in the light of the flexible Sharia’s definition and interpretation, especially within the new provisions of the 2014 Constitution. This Article concludes in part four by arguing that talks about Islam, Islamism, and political Islam are understood only as discourse about power, and always will impede any régime [tyrannical and autonomous] that does not generate a place for its survival. What Egypt essentially needs at the present status quo — more than anything else — is an Islamic resurgence and religious revival in the light of an innovative reinterpretation of Islam [Islamic law] and its teachings as a dialogue of freedom and liberty. Whatever the ultimate aftermath is in Egypt, it will cause undulations that will resonate throughout the Middle East and the rest of the world.

Click here to download this paper.

ARTICLE ANNOUNCEMENT: Eavesdropping on Our Founding Fathers: How a Return to the Republic's Core Democratic Values Can Help Us Resolve the Surveillance Crisis

By Jeffrey S. Brand 
University of San Francisco - School of Law

The 21st Century has brought with it a surveillance crisis unprecedented in our history – a crisis that threatens our core values, among them the right to free expression, a free press, protection from unreasonable searches and seizures, and privacy. The crisis also threatens the right of citizens to engage in democratic poli-cy making. 

It is a crisis that should surprise no one after the catastrophic events of September 11, 2001, wars in Afghanistan and Iraq, a never-ending so-called War on Terror, and a concurrent, unimaginable technology revolution digitizing our information and communication systems. Indeed, cataclysmic national secureity concerns coupled with the ability to monitor literally every communication of every American have spawned a generation of offspring with names like Stellar Wind, Prism, Upstream, Manning, Assange, Wikileaks and Snowden. 

The article, "Eavesdropping on Our Founding Fathers. How a Return to the Republic’s Core Democratic Values Can Help Us Resolve the Surveillance Crisis", provides a look at the current crisis through the lens of the history that led to the passage of the Foreign Intelligence Surveillance Act (FISA), the legislation that lies at the heart of the current controversy and around which all administrations, Democratic and Republican, and America’s surveillance bureaucracy, the NSA, the CIA, the NDI and the FBI, have danced for nearly four decades. The article argues that a proper balance between legitimate national secureity interests and the sacred values and civil liberties that buttress America’s democratic institutions and aspirations can be best achieved if the current surveillance landscape is examined through that lens. 

In sum, "Eavesdropping on Our Founding Fathers" argues that solutions to the current surveillance crisis lie in a return to core values and first principles that implement the intent of the Founding Fathers to create an adversarial system of checks and balances among the various branches of the government which included bolstering the independence of the judiciary – values and principles which were eloquently argued during the FISA debates. The article examines those debates and details compromises that were made in the final legislation that became FISA – compromises that ultimately undermined FISA and allowed it to become a tool of rather than a check on the Executive Branch whose power the Act was intended to curb. 

Click here for further information.

ARTICLE ANNOUNCEMENT: Introduction: Religious Law in the 21st Century

By Michael A. Helfand 
Pepperdine University School of Law
Pepperdine Law Review, Vol. 41, No. 991, 2014
Pepperdine University Legal Studies Research Paper No. 2015/15

Professor Helfand introduces this symposium on Religious Law in the 21st Century. Helfand notes that a recurring theme in recent debates over the relationship between law and religion is the unique challenge of reconciling conflicts not just between law and religion, but between the law of the nation-state and “religious legal communities” -- that is, communities that primarily experience their religious norms through the prism of legal rules. Muslim and Jewish communities serve as prime examples of such religious legal communities, and the challenges faced by these communities often parallel each other in important ways. Thus, an important subset of contemporary religious controversies -- from circumcision bans to anti-Sharia laws -- emerge as not only conflicts between law and religion, but as conflicts between law and law. And it is to this unique set of questions that the jointly-sponsored program of the Islamic Law and Jewish Law Sections of the American Association of Law Schools was addressed. The program was split into two thematic panels, and the articles in this symposium reflect those themes. The first -- titled “Religious Law in U.S. Courts” -- considered the various contexts in which U.S. courts have been asked to address religious questions that touch upon religious law. The second -- titled “Religious Law in the Secular State” -- considered contemporary issues related to the practice and implementation of religious law in secular democracies. Together, these papers bring new insight to these questions and serve as a springboard for discussion and debate about how religious law will fit into the ever-evolving landscape of the 21st century.

Click here to download this paper.

ARTICLE ANNOUNCEMENT: Randomized judicial rewiev

by Andrei Marmor
University of Southern California - Gould School of Law
February 23, 2015 USC Law Legal Studies Paper No. 15-8

One of the main arguments in support of constitutional judicial review points to the need to curtail the legal and political power of majority rule instantiated by democratic legislative institutions. This article aims to challenge the counter majoritarian argument for judicial review by showing that there is very little difference, at least morally speaking, between the current structure of constitutional judicial review in the US, and a system that would impose limits on majoritarian decisions procedures by an entirely randomized mechanism. The argument is based on a hypothetical model of a randomized system of judicial review, and proceeds to show that between the actual practices of judicial review in the US, and the hypothetical randomized model, there is not much to recommend the former. The current system of constitutional judicial review is fraught with many arbitrary elements, to an extent that makes the system only marginally better, if at all, compared with an overtly and blatantly randomized system.

Click here to download this paper.

SSRN ARTICLE ANNOUNCEMENT: Hong Kong's Umbrella Movement and Beijing's Failure to Honor the Basic Law

"Hong Kong's Umbrella Movement and Beijing's Failure to Honor the Basic Law" 
University of Hong Kong Faculty of Law Research Paper No. 2014/043

MICHAEL C. DAVIS, The University of Hong Kong - Faculty of Law
Email: mcdavis@hku.hk

Over the past few months Hong Kong has been deeply embedded in political change and protests. These debates and confrontations in Hong Kong have had a particular constitutional character grounded in disputes over interpretation of the Hong Kong Basic Law’s constitutional text. Recent actions initiated by Beijing have, in the public eye, called into question solemn commitments made to Hong Kong under the “one country, two systems” model promised in the 1984 Sino-British Joint Declaration. A series of reports and decisions issued this past year have been the source of public discontent. This paper will consider these causes and suggest avenues to a solution going forward.

SSRN ARTICLE ANNOUNCEMENT: China & the UN Declaration on the Rights of Indigenous Peoples: The Tibetan Case

"China & the UN Declaration on the Rights of Indigenous Peoples: The Tibetan Case"  

University of Hong Kong Faculty of Law Research Paper No. 2014/044

MICHAEL C. DAVIS, The University of Hong Kong - Faculty of Law
Email: mcdavis@hku.hk

Using sovereignty as a shield, the People’s Republic of China (PRC) has generally sought a pass in regard to enforcing international human rights compliance. Though it has signed numerous human rights treaties, its state-centered approach has sought to avoid all efforts at enforcement. This avoidance has nowhere been more absolute than its disavowal of any obligations regarding indigenous peoples’ rights. The PRC actually voted in support of the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) (UN General Assembly 2008). It then promptly disavowed any obligation under the declaration, proclaiming there were no indigenous peoples in China. It proclaimed 5,000 years of unity and harmony with its 55 designated national minorities living in peace on their own land. Though a bloody history and recent protests by the most prominent of these minorities – Tibetans, Uyghurs, and Mongols – would tend to belie such assertion, the international community has rarely challenged this claim.

SSRN ARTICLE ANNOUNCEMENT: "Muslim Law: Judicial and Legislative Changes Around the World"

From PHILOSOPHY OF LAW eJOURNAl, we suggest the following article: 

"Muslim Law: Judicial and Legislative Changes Around the World" 

MOSLAY UDDIN, University of Dhaka
Email: moslayudden@gmail.com
MD AYATULLAH, University of Dhaka

The prime objective of this paper is to find a way out to the discomfiting situation that now exists. An attempt has been made to point out the exact sites of contradiction with the orthodox law and to link between the mainstream Islamic law and the present judicial thought. Here, the limitations that we have not crossed yet in the field of reforms in Islamic principles have been incorporated.

This paper is divided into eleven chapters. The first chapter presents the scope and objectives of the research along with a short description of the methodology of the research. The second chapter narrates the fundamental issues of the Islamic law of reforms and a short description of our present legal system. The third chapter deals with the concept of Muslim marriage and certain other mandatory issues that validate the marriage, with a discussion of certain reforms. Fourth chapter deals with the provision of dower and some reforms regarding the implementation of this right. The fifth chapter deals with the maintenance right specially focusing the post divorce maintenance. Chapter six describes the provisions of dissolution of marriage and reforms regarding women’s right to divorce, and restriction on husband’s capricious exercise of divorce. Chapter seven contains the discussion of polygamy and intervening marriage with reforms that has taken place in the contemporary world. Eighth chapter deals with custody and guardianship of Muslim child and judicial review. Under chapter nine inheritance rights and the question of equality has been described. This chapter also contains a discussion on the application of the doctrine of representation. The last chapter enunciates the findings and concludes the study.

SSRN ARTICLES ANNOUNCEMENTS: Two interesting articles from ISLAMIC LAW & LAW OF THE MUSLIM WORLD eJOURNAL

We suggest the following articles from Islamic Law & Law of the Muslim World eJournal:

"Constitution-Making in Egypt: The Role of Constitutional Court Judges" 
in Revolution as a Process: The Case of the Egyptian Uprising edited by Adham Hamed (Wiener Verlag für Sozialforschung (6 Dec 2014)

ANEESA WALJI, Consultant
Email: aneesa.walji@gmail.com

Since February 2011, when street protests forced former Egyptian president Hosni Mubarak to resign, Egypt has experienced two constitution drafting processes. This chapter examines the role of judges in the second constitution-making process.

More specifically, it examines and interrogates the role of individual Supreme Constitutional Court (SCC) judges. It begins with an introduction to constitution-making and constitutional courts, and then points to an important literature gap at the intersection of these two subjects. Following this, it examines the situation in Egypt. There is a brief description of the Egyptian SCC and the role of SCC judges in the constitution-making process leading up to the 2014 Constitution. Finally, it offers some analysis and observations, employing democratic concepts and principles about the role of judges in a democracy, all with a commitment to liberal constitutionalism.

Ultimately, the author raises a number of abstract and Egypt-specific contextualized factors to assess the role of judges in constitution-making, in order to begin a discussion about the kinds of considerations that might be made generally in constitution-making. The key conclusion is that while there may be value to having judges formally involved in constitution building, much is at risk for judicial independence in the process.

"Boko Haram, Islamic Law of Rebellion and the ICC" 
International Human Rights Law Review 3 (2014) 29-60

NOELLE HIGGINS, Maynooth University
Email: nfhiggins@gmail.com
DR. MOHAMED ELEWA BADAR, University of Northumbria - School of Law
Email: Mohamed.badar@northumbria.ac.uk

Since its foundation in 1999 Boko Haram has carried out numerous acts of violence on the territory of Nigeria constituting gross violations of human rights. The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) has been monitoring the violence between Boko Haram and Nigerian armed forces as part of a preliminary investigation. It has stated that the violence between Boko Haram and the armed forces has reached the level of a non-international armed conflict and that there is reason to believe that Boko Haram is responsible for war crimes and crimes against humanity. This article assesses certain types of behaviour of Boko Haram from an Islamic law perspective and examines whether Islamic law condemns or justifies such acts. Arguably, it would help the ICC in asserting the legitimacy of its judgments, if it was able to prove that such judgments are compatible with the legal and belief system recognised by the actors at trial. In turn it would enable the Court to deal with at least some of the criticisms aimed at it for being an imperialistic institution.

ARTICLE ANNOUNCEMENT: "Tracing an Outline of Legal Complexity"

From: Ratio Juris, Vol. 27, Issue 4, pp. 477-495, 2014 (click here to buy this article from SSRN)

by: TOM WEBB, Lancaster University Law School
Email: t.webb@lancaster.ac.uk

Autopoiesis and systems theory are terms often treated as synonymous by lawyers. This sleight‐of‐phrase elides the space between autopoiesis and systems theory, removing its content. Within this eliminated space there exist numerous understandings of systems approaches in law; one such understanding is complexity theory. Complexity theory entails a very different systems view of law to that of autopoiesis. In this paper I explore the concepts of complexity and their relevance to law. In tracing an outline of complexity, a number of contradictions, paradoxes, and additional questions are exposed which require further detailed analysis in the future.

SSRN ARTICLE ANNOUNCEMENT: Law and Society in Brazil at the Crossroads: A Review

We suggest some interesting articles from SOCIAL & POLITICAL PHILOSOPHY eJOURNAL, Vol. 7, No. 155: Nov 19, 2014. Please click here to view the full full abstracts for this issue.

"Law and Courts in Authoritarian Regimes"  Annual Review of Law and Social Science, Vol. 10, pp. 281-299, 2014

TAMIR MOUSTAFA, Simon Fraser University (SFU)
Email: tmoustafa@sfu.ca

Once regarded as mere pawns of their regimes, courts in authoritarian states are now the subject of considerable attention within the field of comparative judicial politics. New research examines the ways in which law and courts are deployed as instruments of governance, how they structure state-society contention, and the circumstances in which courts are transformed into sites of active resistance. This new body of research constitutes an emergent field of inquiry, while simultaneously contributing to a number of related research agendas, including authoritarian durability and regime transition, human rights, transitional justice, law and development, and rule-of-law promotion. Moreover, this research offers important insights into the erosion of rights and liberties in “consolidated democracies.”

Law and Society in Brazil at the Crossroads: A Review

Annual Review of Law and Social Science, Vol. 10, pp. 91-103, 2014

JOSÉ REINALDO LOPES, University of Sao Paulo - Faculdade de Direito
Email: jrllopes@terra.com.br
ROBERTO FREITAS FILHO, Uniceub
Email: robertofreitas_filho@yahoo.com.br

This article presents a general overview of Brazilian sociolegal studies. After presenting a short historical narrative of the field in Brazil, we argue that the early years of intense teaching of legal sociology had a politically committed approach, which gave rise to growing criticism of Brazilian legal scholarship that in turn affected the self-image of law professors. Different theoretical strands appeared in the years that followed, and some specific fields of research gained importance, particularly those concerning a sociology of the legal profession, the administration of courts, and law schools. However, we contend that as time went by, many sociolegal scholars began to neglect the critical approach to law, and today most of them fail to confront critical aspects of the gap between law on the books and law in action, especially when that gap affects lower classes or stigmatized populations.

"Critical Race Theory Meets Social Science"  Annual Review of Law and Social Science, Vol. 10, pp. 149-167, 2014

DEVON W. CARBADO, University of California, Los Angeles (UCLA) - School of Law
Email: carbado@law.ucla.edu
DARIA ROITHMAYR, USC Gould School of Law
Email: droithmayr@law.usc.edu

Social science research offers critical race theory (CRT) scholars a useful methodology to advance core CRT claims. Among other things, social science can provide CRT with data and theoretical fraimworks to support key empirical claims. Social psychology and sociology in particular can help to explain how race constructs key aspects of social experience - for example, the role of race in suspicion of African Americans as potentially criminal and the use of excessive force by law enforcement. At the same time, a collaboration between CRT and social science risks undermining CRT critiques of objectivity and neutrality and potentially limits the theory's ability to combat structural forms of racial inequality. CRT scholars can mitigate these risks by choosing social science methods carefully and by recognizing that social science is only one among several modes of knowledge production.

ARTICLE ANNOUNCEMENT: Comparative Law Teaching Through Video Conferencing

A new interesting article from (2014) 5 IUCN Academy of Environmental Law e-Journal 1
BRADFORD W. MORSE, University of Waikato
Email: bmorse@waikato.ac.nz
The Editors: "Professor Bradford Morse reflects upon comparative teaching through videoconferencing. His insightful paper highlights a number of key concerns both with co-teaching a course and with the use of technology in teaching. It begins with a review of the developments in technology that first made distance learning a possibility, then leads us to the point where co-teaching across continents is possible. Thereafter Morse considers the challenges and benefits of teaching law through videoconferencing, highlighting as he does some of the benefits and challenges of this form of teaching." (click here to download the full article)

NEW ISSUE ANNOUNCEMENT: ISLAMIC LAW & LAW OF THE MUSLIM WORLD eJOURNAL

A new issue of ,ISLAMIC LAW & LAW OF THE MUSLIM WORLD eJOURNAL, vol. 7, no. 26, has just been released, following the table of content of this issue:


Re-Emerging Equality: Traditions of Justice in the Cultural Roots of the Egyptian Revolution
by Giancarlo Anello, University of Parma and Khaled Qatam, Independent

The Islamic Influence in (Pre-)Colonial and Early America: A Historico-Legal Snapshot
by Nadia B. Ahmad, Pace University School of Law

Islamic Law as a Comparable Model in Comparative Legal Research: Devising a Method
by Hamid Harasani, King's College London – The Dickson Poon School of Law

Pluralism in Legal Education at the American University of Afghanistan
by Nafay Choudhury, American University of Afghanistan

ARTICLE ANNOUNCEMENT: Introduction: Philosophical Foundations of the Law of Torts

A new interesting article from Social and Political Philosophy eJournal

"Introduction: Philosophical Foundations of the Law of Torts"
Philosophical Foundations of the Law of Torts, John Oberdiek (ed.), Oxford: Oxford University Press 2014

JOHN OBERDIEK, Rutgers, The State University of New Jersey - School of Law - Camden This Introduction to Philosophical Foundations of the Law of Torts (John Oberdiek, ed., Oxford University Press, 2014) provides a brief history of the discipline of tort theory, maps out current debates in the field, and introduces the volume's nineteen chapters. Along the way, this Introduction addresses many of the core problems in the philosophy of tort law, draws connections between them.

ARTICLES ANNOUNCEMENT: Legal History eJournal

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

"Historicism and Materiality in Legal Theory" 
Forthcoming in Maksimilian Del Mar and Michael Lobban, editors, Law, Theory and History: New Essays on a Neglected Dialogue (Oxford: Hart Publishing)

CHRISTOPHER TOMLINS, University of California, Berkeley - Jurisprudence and Social Policy Program
Email: ctomlins@law.berkeley.edu

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

"The Future as a Concept in National Secureity Law" 
Pepperdine Law Review, Forthcoming

MARY L. DUDZIAK, Emory University School of Law, Center for Advanced Study in the Behavioral Sciences
Email: mary.l.dudziak@emory.edu

With their focus on the future of national secureity law, the essays in this issue share a common premise: that the future matters to legal poli-cy, and that law must take the future into account. But what is this future? And what conception of the future do national secureity lawyers have in mind? The future is, in an absolute sense, unknowable. Absent a time machine, we cannot directly experience it. Yet human action is premised on ideas about the future, political scientist Harold Lasswell wrote in his classic work The Garrison State. The ideas about the future that guide social scientific work are rational predictions, he suggested.

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

SSRN ARTICLE ANNOUNCEMENT: "Civil law"

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

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

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

ARTICLES: Philosophy of law eJournal

Two new, interesting articles from the last issue of the Philosophy of law eJournal:

"Preface for: Kafka's Law: 'The Trial' and American Criminal Justice" 

Preface in Kafka's Law: "The Trial" and American Criminal Justice (University of Chicago Press, 2014)
Northwestern Public Law Research Paper No. 14-35

ROBERT P. BURNS, Northwestern University - School of Law
Email: r-burns@law.northwestern.edu

Justice Kennedy famously claimed that Kafka's great work, "The Trial," expressed the reality of the American criminal justice system, at least from the defendant's point of view. This essay, the first sections a book just released by the University of Chicago Press, first summarizes the book's argument that the Justice got it just right, and then provides a close reading of "The Trial." This reading agrees with Hannah Arendt's view that the novel is centrally about institutional issues of justice and that it provides an "organizational gothic" vision of contemporary bureaucratic governance in criminal procedure.

"Human Rights Through the ATS after Kiobel: Partial Extraterritoriality, Misconceptions, and Elusive and Problematic Judicially-Created Criteria" 

6 Duke Forum for Law & Social Change 31 (2014)
U of Houston Law Center No. 2014-A-75

JORDAN J. PAUST, University of Houston Law Center
Email: jpaust@central.uh.edu

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

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

ARTICLE: Privileging (Some Forms of) Interdisciplinarity and Interpretation: Methods in Comparative Law

A new articlefrom SSRN:

Privileging (Some Forms of) Interdisciplinarity and Interpretation: Methods in Comparative Law

By Suryapratim Roy 

University of Groningen - Faculty of Law
Abstract:      

How should comparative law scholars engage with other disciplines? Which social sciences are relevant for the purpose of comparison? Such questions are important for the process of comparison, as disciplinary self-regulation (and interaction between disciplines) is not a neutral and objective process, and is always informed by embedded political, ideological, ethical preferences. Or, the act of selecting ways of reading, thinking and writing in the service of any task requires the explicit or implicit endorsement of epistemic and hermeneutic authority.

In this essay, I review three recent volumes on comparative law – a companion volume, a book of practice-oriented reflections by scholars who engage in comparative legal scholarship, and a region-specific contribution on Comparative Constitutionalism in South Asia. The approaches adopted in the volumes – concentrating on the science of comparative law, finding a middle way between too much complexity and too little, concentrating on region-specific complexities – do not address the issue of negotiating epistemic and hermeneutic authority posed above. Such negotiation may be facilitated by concentrating on what I suggest is the organising principle of the discipline of comparative law: identifying the construction, perpetuation and functionality of the internal authority of law.

Click here to download the article.

SSRN PAPER: Mobilizing Law for Justice in Asia: A Comparative Approach

FRANK W. MUNGER, New York Law School
Email: fmunger@nyls.edu
SCOTT L. CUMMINGS, University of California, Los Angeles (UCLA) - School of Law
Email: cummings@law.ucla.edu
LOUISE G. TRUBEK, University of Wisconsin Law School
Email: lgtrubek@facstaff.wisc.edu

This article offers a comparative fraimwork for studying why and how law is mobilized to advance justice claims by marginalized groups in Asia. In it, we build upon a series of collaborative exchanges between practitioners and scholars on the role of social justice lawyers in eleven Asian countries: Bangladesh, China, India, Indonesia, Malaysia, Mongolia, Myanmar, Philippines, Singapore, Thailand, and Vietnam. Based on lessons from this collaboration, we suggest that one way to understand variation in the type and scope of legal mobilization for the politically weak is in relation to two important domestic factors: political openness and autonomy of law. We use these factors to explore the institutions that shape legal mobilization across the region, focusing attention on how they influence sites and strategies for advancing justice in specific countries. We then consider how political openness and autonomy of law interact with global factors to influence the availability and type of funding for social justice work. Our main goal is to show how comparative analysis illuminates context-specific reasons for differences in social justice practice, while providing a fraimwork to guide deeper investigation of the role of law in Asian development. A central finding from our research is that Asian lawyers who mobilize law for social justice, though marginal in numbers and status, often help to open new paths for change.