Monthly Archives: September 2012
Sep 11, 2012 Camille Gear RichFamily LawJotwell
Adrienne Davis’s recent article, Regulating Polygamy: Intimacy, Default Rules and Bargaining for Equality, is a must read for family law scholars, marriage equality scholars, as well as anyone interested in understanding the limits of contemporary analogies made between gay marriage and polygamy.
Davis begins her analysis by highlighting the fundamental difference between these two frequently compared marriage forms. She argues that gay marriage proponents’ commitment to dyadic two-person marriages makes their quest starkly different from polygamy proponents’ quest for social recognition of a marriage model that recognizes the affective and cooperative links between multiple marriage partners. Continue reading "The Uniform Sister-wife Act: Ensuring A Fair Share of the “Marital Pie ”"
Sep 10, 2012 Rebecca TushnetJotwellTechnology Law
Peter Decherney has written an excellent book about the ways in which copyright laws have shaped and responded to the movie industry in the US. Professor Decherney, who, not incidentally, was instrumental in achieving the first context-specific exemption for ripping DVDs (for use in teaching film studies, renewed in the 2009 cycle), has a sharp eye for the way the movie industry has exploited and reacted to law as part of its business models over time. He suggests that the usual reaction of the industry to legal rulings has been self-regulation either to confirm or to avoid the formal law, depending on what works best for the people in charge.
History repeats, not just in the oft-told story of new media relying on unauthorized copying from old media—plays into films, for example—but also in the smaller details. The relationship between technological measures designed to prevent copying and unauthorized copying, for example, goes back to the start of moviemaking, when different producers used film with different sprocket holes in order to preserve their control over their own preferred, often patented, technologies. This incompatibility didn’t deter copying, though. Instead, it led people who wanted to show movies to make their own copies to fit on their own equipment, just as technical protection measures still do today. Continue reading "Just a Little Bit of History Repeating"
Sep 7, 2012 Roman HoyosJotwellLegal History
Tabatha Abu El-Haj,
Changing the People: Legal Regulation and American Democracy, 86 N.Y.U. L. Rev. 1 (2011),
available at SSRN.
A while back over at the Legal History Blog, there was a brief discussion about the relevance of legal history to the legal academy. On the heels of this discussion, Pierre Schlag posted a typically hilarious paper on SSRN about the faculty workshop that in part demonstrated the irrelevance of legal history, or at least the inability of legal scholars to access historians’ questions. This is probably the main source of anxiety/frustration of legal historians who work in the legal academy, despite the (apparently “whiggish”) historical turn in constitutional scholarship. History these days seems to be relevant to legal scholarship only in the context of debates over original meaning/intent. What makes this particularly frustrating for historians is that the quality and quantity of legal history, produced by professionally-trained historians, has increased dramatically in recent years. The last two decades, in particular, has witnessed the emergence of a bountiful body of scholarship, that is both theoretically and forensically rich, and that engages some of the biggest questions about law: its nature and function, and its relationship to various other macro-institutions such as society, the market, the polity, the state, and democracy. (For starters, just look at the work by the contributing editors to the legal history section here.) And yet we still find it difficult to engage our colleagues and convince them of the importance of our work; for many institutions we remain a “luxury.” Historians have long worried about our declining ability to reach popular audiences. Apparently, we are losing some colleagues too.
This is where I find Tabatha Abu El-Haj’s recent article heartening. What struck me immediately about the article was how Abu El-Haj framed it. In a seven-page introduction she spends two paragraphs on legal historiography; her main target is law and democracy scholarship. Consciously or not, Abu El-Haj has offered an example of how to smooth the ground between historian and legal scholar. Translating between disciplines, Elizabeth Mertz has told us, is a project fraught with misunderstanding. But, perhaps because of her training in a law and society program, Abu El-Haj appears to have both the fluency and willingness to attempt an effective translation. In this article, for example, she uses “the repertoire of democratic political practices” in the past to expose and undermine two major assumptions of modern law and democracy scholarship. Continue reading "On Becoming Relevant: The Role of Legal History in Legal Scholarship"
Sep 5, 2012 Carole SilverJotwellLegal Profession
The importance of India as a site for activity and study with regard to the legal profession and globalization is underscored by the attention it currently generates in the legal and popular press But it also is an area characterized by uncertainty. In fact, even as I write, there has been an additional development regarding the practice of law by foreign law firms: the Indian Supreme Court issued an interim order on July 4, 2012 that reinforced the uncertainty surrounding the authority for and confidence of global law firms to serve clients with interests in and related to India. In light of this, I was delighted to learn that the subject had been taken on by Mihaela Papa and David Wilkins, both of Harvard Law School’s Program on the Legal Profession. Their new article, “Globalization, Lawyers, and India: Toward a Theoretical Synthesis of Globalization Studies and the Sociology of the Legal Profession,” promises to “draw[] together globalization literature with the scholarship on the sociology of the legal profession . . . [to] provide a new lens through which to analyze economic, political and social transformations occurring in the Indian legal profession.” (P.2) My interest in the article was piqued not only by the topic, but also because Wilkins, the highly-regarded Professor of Law and chair of Harvard’s Program on the Legal Profession, is spearheading its GLEE project (Globalization, Lawyers, and Emerging Economies), which “investigates the impact of globalization on the corporate legal sector in major emerging economies and the effect of changes in this sector on other parts of the legal order, including legal education and the provision of legal services to underrepresented populations.” This paper is an early product of GLEE and, as such, reveals promises of the larger study.
The article does not disappoint and offers a thoughtful addition to the growing body of work on globalization and the legal profession. Papa and Wilkins begin by framing their investigation of India’s legal profession within the literature on globalization, and identify three “social processes commonly identified by globalization scholars in other areas [as] help[ful] to explain the changes currently taking place in the Indian legal profession: economic globalization, globalization of knowledge, and globalization of governance.” (P.3) In doing this, they offer a terminology for analysis that reveals the importance both of differentiating and connecting these three core processes. Continue reading "Negotiating Globalization’s Influence: The Indian Perspective"
Sep 4, 2012 Val NapoleonEqualityJotwell
For anyone interested in a critical, practical, and political exploration of reconciliation, Colleen Murphy’s book is a wonderful resource. It is a fast-paced and well-written book that compels the reader to keep going. And, it is useful in the everyday world.
In Canada, over the past thirty years, almost 600 indigenous women and girls have gone missing or have been slain. Between 2000 and 2008, there were 153 new cases. Most of the disappearances and deaths occurred in the western provinces in British Columbia, Alberta, Manitoba, and Saskatchewan. The majority of these women and girls were mothers. Some were students. Almost half of these cases remain unsolved. Time and time again, these women and girls are described as sex trade workers and addicts as if somehow that designation defines them all or explains them away. What is so disturbing is that their murders and disappearances seem to have become normalized – a part of Canada – but in the background or in the shadows. Continue reading "One Engagement – Moral Theory of Political Reconciliation"
