Category: Law and Humanities


Can We Tolerate Tolerance?  

This is the third in a series of occasional short essays about free speech in America. Earlier installments can be found here and here.

We live in a tolerant society. Of course, that is an exaggeration. But when it comes to so many flashpoint issues – ranging from blasphemy to race-hate speech – we are far more tolerant than almost all other nations, so much so that we are routinely criticized for being too tolerant. It is our badge of honor . . . and dishonor.

Professor Mark Lilla

Professor Mark Lilla

Mindful of the events in France and Denmark earlier this year, I wonder: Will we continue to tolerate toleration if our world takes a terrible turn? My question has less to do with what is being tagged as the “terrorist’s veto” than with a more complex problem, and one therefore even more difficult to resolve. This problem occurred to me when I first read an eye-opening essay by Mark Lilla in the New York Review of Books, an essay entitled “France on Fire.” Here is a very brief excerpt:

“For the past quarter-century a political and intellectual culture war over the place of Islam in French society has been bubbling along, and every few years some event — a student wears a burka to school, riots erupt in a poor neighborhood, a mosque is attacked, the National Front wins a local election — renews hostilities.”

I want to extrapolate from that essay (at once insightful and provocative) in order to outline a phenomenon that may be hurling our way, a phenomenon related to toleration and dissident speech.

Before I do, however, let turn to the glorious side of the toleration equation by way of a well-known case, West Virginia State Board of Education v. Barnette (1943). Recall the Jehovah’s Witnesses’ flag-salute case, the one with that liberty-inspiring majority opinion by Justice Robert Jackson. In words that should be fixed in every lawmaker’s consciousness, Jackson declared: “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.” The judgment in that case affirming First Amendment freedom is all the more amazing given that it was rendered in wartime and involved a religious sect that was then very much hated in various quarters of American society. (See Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution (2000).)

The (Hypothetical) Problem

Against that backdrop, imagine the following scenario. Assume that the editors of a respectable libertarian magazine elected to publish several satirical cartoons of the Prophet Muhammad in order to make a First Amendment point and to take a stand against the “terrorist’s veto.” Assume thereafter that the Charlie Hebdo incident replayed itself in Cincinnati (the headquarters of my hypothetical magazine). Ten people who work for the magazine are murdered and two Muslim extremists take credit. Both of the terrorists are later killed in a shootout with police that also results in the deaths of two local police officers.

Here is where I begin to extrapolate from Professor Lilla’s essay. Now assume the following additional scenarios, replete with a few quotations from the Lilla essay”

  1. The Governor of Ohio calls for a moment of mourning with heads bowed on the day following the tragedy (say, the time is 11:00 a.m.);
  2. A “noticeable number” of Muslim public high school students in Cincinnati refuse, on religious and political grounds, to bow their heads;
  3. “And not only that. Some [tell] their teachers that the victims got what they deserved because no one should be allowed to mock the Prophet”;
  4. “Others celebrate the killers on social media, and circulate rumors that the entire crisis was manufactured by the government and/or Zionist agents”; and
  5. The parents (some of whom work for state and local governments) of some of these Muslim-American students speak openly (though not at work) to defend their children and endorse the positions they took.

Note that the Muslim-Americans in the above scenarios were otherwise peaceful and law abiding. And some Muslim-American leaders sought to counteract the messages of the violent extremists among them. That said, let me stir the pot a bit more with a few more scenarios and related questions:

  1. So far as government entities are involved, how far are we willing to go to accommodate (culturally, statutorily, and constitutionally) the religious views of the more observant and separatist Muslim-Americans who harbor what we would see as extreme views concerning homosexuality, female purity, and Jews and Israel?
  2. Finally, let me again from quote Professor Lilla to raise a final question: Some “students and their parents demand separate swimming hours or refuse to let their children go on school trips where the sexes might mix. . . . There are fathers who won’t shake hands with female teachers, or let their wives speak alone to male teachers. There are cases of children refusing to sing, or dance, or learn an instrument, or draw a face, or use a mathematical symbol that resembles a cross. The question of dress and social mixing has led to the abandonment of gym classes in many places. Children also feel emboldened to refuse to read authors or books that they find religiously unacceptable: Rousseau, Molière, and Madame Bovary. Certain subjects are taboo: evolution, sex ed, the Shoah. As one father told a teacher, ‘I forbid you to mention Jesus to my son.’” Does our commitment to religious freedom extend that far so as to accommodate the genuine religious views of those who hold them?

Let me be clear: I do not mean to demean Muslim-Americans as a class, nor do I wish to be understood as saying the above scenarios mirror the sentiments of most Muslim-Americans . I trust they are not. Then again, I may disagree with some of them, and sometimes vigorously, on several of the issues flagged above. But I also believe in toleration, and the ever-present need to be sensitive to the plight of minorities of all ideological, political, and religious stripes.

So where does that leave us?

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Roundup: Law and Humanities 10.20.15

A quick view of the Law and Humanities landscape, mid-October 2015.


First, we are looking forward to a couple of notable conferences next year. The Association for the Study of Law, Culture, and the Humanities (ASLCH) 19th Annual Conference will take place at the University of Connecticut Law School April 1-2, 2016. This year’s conference theme is Reading Race, Writing Race, and Living Race. The deadline for submitting paper and panel proposals is extended until October 22nd. More information here at the conference website.

Another notable conference is the Law and Society Association Conference. This year LSA will hold its meeting in New Orleans from June 2-5, 2016. This year’s theme is At the Delta: Belonging, Place and Visions of Law and Social Change. The submission deadline for papers and panels has been extended to October 25. More information here at the LSA website.

In addition, AALS will have several interesting law and humanities-themed sessions.  The AALS Law and Film Committee presents as its feature film selection this year, Wednesday, January 6 at 7:30 p.m., Reversal of Fortune. This movie, based on the nonfiction account of the case by Alan Dershowitz of Harvard Law School, who represented Claus von Bulow, convicted of attempted murder of his wife Sunny, in his attempt to obtain a new trial. The film stars Jeremy Irons as von Bulow and Ron Silver as Dershowitz. On Friday, January 8, also at 7:30, the Committee presents the documentary film The Hunting Ground. This 2015 film, made by Kirby Dick and Amy Ziering, investigates the explosion of campus rape and the repeated failure of many university officials to address the problem.

The Law and Humanities Section presents its panel at 10:30, January 9. This year’s presentation is on Law and Images. The Law and Interpretation Section presents its panel on January 9 at 4:30. Its theme is the Empirics of Legal Interpretation.  The Legal History Section presents its panel at 1:30 January 9. Its theme is 800 Years of Comparative Constitutionalism: The Unique Legacy of Magna Carta.


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Roundup: Law and Humanities 07.30.15

There’s a lot going on in law and the humanities these days. Here’s a sampling.

First, an opportunity for publication:

Fairleigh Dickinson University Press invites the submission of proposals for books, monographs, or essay collections in the interdisciplinary fields of humanistically-oriented legal scholarship for the series The Fairleigh Dickinson University Press Series in Law, Culture and the Humanities.

Possible topics range from scholarship on legal history; legal theory and jurisprudence; law and critical/cultural studies, law and anthropology, law and literature, law and film, law and society, law and the performing arts, law and communication, law and philosophy, and legal hermeneutics.

Proposals must include: a description of the issue/s you intend to explore and the method/s you will use; a comparison and contrast with existing books on similar or related topics; a table of contents and a precis of what each chapter aims to cover; a description of the book’s target market/s; the author’s/authors’ or editor’s/editors’ curriculum vitae; if it is a collection of essays, a compiled and alphabetized list of short biographies of prospective contributors, and a list of three experts in the field capable of assessing the value of the project.

The series also welcomes submissions of completed monographs and essay collections; kindly make an inquiry prior to sending over the completed book or collection of essays, together with the author’s curriculum vitae and three suggested experts, if you are the author/authors. If you are an editor/editors of a completed collection of essays, please include a compiled and alphabetized list of short biographies of prospective contributors, together with your curriculum vitae and list of possible experts. Essay collections must be of previously unpublished material. Conference sessions, properly edited and often expanded by calls for papers, into essay collections, are also welcome.

Referees may or may not be from the submitted list of suggested experts. The series benefits from the advice of an international board of leading scholars in the field. Proposals may be sent to:

Caroline Joan S. Picart, Ph.D., J.D., Esquire
Tim Bower Rodriguez, P.A.
601 N. Ashley Drive, Suite 310,

Tampa, FL 33602


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Is the Happiness Industry Creating Algorithmic Selves?

In a recent podcast called “Thinking Allowed,” host Laurie Taylor covered two fascinating books: The Wellness Syndrome, and The Happiness Industry. One author discussed a hedge fund that’s now managing what it calls “biorisk” by correlating traders’ eating, drinking, and sleeping habits, and their earnings for the firm. Will Davies, author of The Happiness Industry, discussed less intrusive, but more pervasive, efforts to assure that workers are fitter, happier, and therefore more productive. As he argues in the book,

[M]ood-tracking technologies, sentiment analysis algorithms and stress-busting meditation techniques are put to work in the service of certain political and economic interests. They are not simply gifted to us for our own Aristotelian flourishing. Positive psychology, which repeats the mantra that happiness is a personal ‘choice’, is as a result largely unable to provide the exit from consumerism and egocentricity that its gurus sense many people are seeking.

But this is only one element in the critique to be developed here. One of the ways in which happiness science operates ideologically is to present itself as radically new, ushering in a fresh start, through which the pains, politics and contradictions of the past can be overcome. In the early twenty-first century, the vehicle for this promise is the brain. ‘In the past, we had no clue about what made people happy – but now we know’, is how the offer is made. A hard science of subjective affect is available to us, which we would be crazy not to put to work via management, medicine, self-help, marketing and behaviour change policies.

The happiness industry thrives in a culture premised on an algorithmic model of the self. People (or “econs“) are seen a bundle of inputs (data collection), algorithmic processes (data analysis), and outputs (data use). Since the demands of affect can only be extirpated in robots, the challenge for the happiness industry is to optimize some quantum of satisfaction for its human subjects, compatible with their maximum productivity. Objectively, the algorithmic self is no more (nor less) than the goods and services it uses and creates; subjectively, it strives to convert inputs of resources into outputs of joy, contentment–name your positive affect. As “human resources,” it is simply raw material to be deployed to its most profitable use.

Audit culture, quantification (e.g., the quantified self), commensuration, and cost-benefit analysis all reflect and reinforce algorithmic selfhood. Both the Templeton Foundation and the Social Brain Centre in Britain are developing some intriguingly countercultural alternatives to big data-driven behaviorism. As he highlights the need for such alternatives, Davies deserves great credit for exposing the political economy behind corporate appropriations of positive psychology.


ROUNDUP: Law and Humanities 05.20.15


The Spring 2015 issue of the New Mexico Law Review is devoted to the TV show Breaking Bad. Here’s a link to the issue’s intriguing contents, which includes such articles as Max Minzer’s Breaking Bad in the Classroom, Elizabeth N. Jones’ The Good and (Breaking) Bad of Deceptive Police Practices, and Jennifer W. Reynolds’ Breaking BATNAS: Negotiation Lessons From Walter White. The Wall Street Journal took note here; law and pop culture seems to have gone decidedly media mainstream.



On May 11, Supreme Court Justice Ruth Ginsburg presided over the competency trial of Don Quixote at Washington, D.C.’s Shakespeare Theatre Company’s Sidney Harman Hall. Assisting her were her colleague Justice Stephen Breyer and Chief Judge Merrick Garland and Judge Patricia Millett of the U.S. Court of Appeals for the D.C. Circuit and Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia.  Tony Mauro of the Blog of Legal Times provides coverage here.

The Quixote case is the latest in a series of law and humanities-inspired moot courts, beginning in 1994, that the Bard Association of the Shakespeare Theatre Company has hosted.  More here.





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ROUNDUP: Law and Humanities 04.16.15

New Books

New books of interest to law and humanities folks include Robert P. Burns’  Kafka’s Law: “The Trial” and American Criminal Justice (University of Chicago Press, 2014).  Here’s a description from the publisher’s website.

The Trial is actually closer to reality than fantasy as far as the client’s perception of the system. It’s supposed to be a fantastic allegory, but it’s reality. It’s very important that lawyers read it and understand this.” Justice Anthony Kennedy famously offered this assessment of the Kafkaesque character of the American criminal justice system in 1993. While Kafka’s vision of the “Law” in The Trial appears at first glance to be the antithesis of modern American legal practice, might the characteristics of this strange and arbitrary system allow us to identify features of our own system that show signs of becoming similarly nightmarish?
If you’d like to keep up on new books in the legal area, check out the New Books in Law twitter feed:

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Books 03

Does Scholarship Really Have an Impact? The Article that Revolutionized Privacy Law

Does scholarship really have an impact? For a long time, naysayers have attacked scholarship, especially scholarship about law. U.S. Supreme Court Chief Justice Roberts once remarked: “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something.” He noted that when the academy addresses legal issues at “a particularly abstract, philosophical level . . . they shouldn’t expect that it would be of any particular help or even interest to the members of the practice of the bar or judges.” Judge Harry Edwards also has attacked legal scholarship as largely irrelevant.

Critics are quick to point out that much legal scholarship is not cited much — and many articles are never even cited by anyone other than the authors themselves in subsequent works.

But I think that a lot can be learned from the story of one of the most influential law articles of all. That article was Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harvard Law Review 193 (1890).

Brandeis Right to Privacy 02

Warren and Brandeis discussed how journalism was becoming more sensationalistic: “Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery.” And they expressed concern about a new technology they called “instantaneous photograph[y.]” — the new smaller and cheaper cameras being marketed by the Eastman Kodak Company that made it possible for candid photos to be taken.

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ROUNDUP Law and Humanities 03. 03. 2015

Douglas Coulson, Assistant Professor of English at Carnegie-Mellon, is publishing a new blog in the area of law and the humanities: Nostrum remedium. Its tagline is “Miscellany on law, narrative, art, and memory.” Professor Coulson is particularly interested in legal rhetoric; his website provides links to a nice bibliography here and weblinks here.

A couple of interesting conferences are coming up this year. First:

An International Conference on Legal Argumentation and the Rule of Law is set for June 25 and 26, 2015 at the Erasmus School of Law, Rotterdam, the Netherlands. Keynote speakers are Jacco Bomhoff, London School of Economics, Damiano Canale and Giovanni Tuzet, University of Bocconi, Milan, and Matthias Klatt, University of Hamburg.  More information at the website here.


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ROUNDUP: Law and Humanities 01.23.15

Austin Sarat, Matthew Anderson, and Cathrine O. Frank are the editors of an excellent publication, Law and the Humanities: An Introduction (Cambridge, 2014).  Included are a valuable chapter on the origins of the discipline by the three editors, “Three tales of two texts: an introduction to law and the humanities,” by Kathryn Abrams, a section on Ideas of Justice from the biblical to the postmodern by leading scholars in the field, and other important overviews of the movement. A worthwhile purchase for those interested. Contributors include Richard Sherwin, Christine Farley, Penny Pether, Jay Mootz, Ravit Reichman, and Desmond Manderson. The hardcover is a bit pricey at a list price of $155, but the paperback is $38, and the ebook is priced at $30.

Upcoming law and humanities conferences include the Association for the Study of Law, Culture, and the Humanities, which holds its annual meeting this year at Georgetown University Law Centre on March 6-7. Here’s the program.  In addition, the annual meeting of the Law and Society Association will be in Seattle at the Westin Seattle, from May 28 through the 31. This year’s theme is Law’s Promise and Law’s Pathos in the Global North and the Global South.



To Sarat or Not Sarat

As in Austin Sarat, Law and Humanities scholar at Amherst College.  As in one of the leading figures within the Association of Law Culture and Humanities, which has become one of my favorite destinations over the years for engaging discussion across the disciplines.  (FYI, today is the deadline to submit abstracts to the Law Culture and Humanities Conference being held at Georgetown this year).
Glancing across Sarat’s scholarship one might notice a fascination with documenting the morbidity of law.  Images of war, death, and imprisonment filter the landscape of writings; the images are used to magnify their contrast. They create discourses in binaries.  We understand legal violence distinctive from non-legal violence; death distinctive from non-death; and imprisonment distinctive from non-prisoned life.  Sarat sums this up in his Article Violence, Democracy, Responsibility, and the Problem of Punishment.


Moreover, by equating the conditions of legal legitimacy with that masking, much of that jurisprudence promotes righteous indifference and allows law’s violence to continue unabated. I am neither so idealistic nor so naive as to imagine that a change in legal theory would in itself end violence done, authorized or approved by legal institutions and officials. Still the energy in much of my work on punishment comes from a desire to interrogate legal theory in order to understand how law, surrounded by so much pain, is, nonetheless, able to maintain its calm, bureaucratic facade.


Drawing on themes that prompt considerations of justice and violence, it’s no wonder that Sarat and Robert Cover were walking the same halls in New Haven in the early 1980’s.  I don’t know if Sarat and Cover interacted much.  Really, does it matter?  Sarat himself was a well accomplished scholar in the humanities prior to enrolling at Yale (I mean how many of us as one L’s had their professor begin a civil procedure class by reading and discussing our own work?) .  Perhaps he and Cover never interacted.  I’d like to think they didn’t but that the recursiveness of space, time and ideas latched on to them independently as they traveled the halls.

Besides violence, Sarat’s scholarship prompts me to think about similar themes in my own work.   Loneliness has been a particular theme of mine.  Robert Penn Warren, Fydor Dostovsky, and Flannery O’Connor have been shaping devices of this theme.  They play themselves out in a chorus of questions about space, roles, isolation, and time.  When Warren writes about the South as a Lonely place, he prompts me to wonder whether and how time shapes people.  For those three, time is the violence of memory, sometimes maintained through static relationships of property, law, family, and culture.  Sarat likewise prompts us to consider how time shapes our understandings of justice and violence.  He writes in the same article prompted above:

For me, democracy requires a particular orientation toward time. Democratic temporality is the time of change, of reconsideration. It is open-ended and open to a sense of the endlessness of time. Acts of punishment, even if we had a way of calculating what people deserve, are always in some sense the servants, not the masters, of time. Numerous authors have highlighted the problem of time in asking whether the person being subject to punishment, 2, or 12, or 20 years after the crime is really the same person as the one who committed the crime that justified the punishment in the first place. When, many years ago, Justice Brennan described the death penalty as taking away the right to have rights, he might well have said that no punishment that seeks to be timeless, or stop the movement of time, can be reconciled with a democratic theory of punishment.

The conception of time as a marker of change is one, I think Robert Penn Warren would greatly admire.  On May 15, 1961, The New Republic published a review of Warren’s essay The Legacy of the Civil War.  In the review essay, writer Peter d’a Jones aligned Warrens views with Robert Patterson of the Citizens Counsel of Mississippi, a group formed following the Supreme Court’s decision in Brown v. Board of Education.  The group, put simply, was designed to use legal (and non-legal) violence to stymie desegregation.
Following the review of Warren’s essay, Warren wrote a letter to the New Republic editor:

Dear Sir,

This letter is promoted by a review of my essay the Legacy of the Civil War, which appeared in your issue of May 15.  I could wish that Mr. Peter d’a Jones had thought better of my essay or at least of my intellectual integrity, but I am not now writing in defense of either.  What I want to do here is disabuse those readers who may feel, from Mr. Jones’ review that I have much sympathy with Mr. Robert Patterson of the Citizens’ Committee of Mississippi, whom he cites with, perhaps, some effect of guilt by association.  

The quickest thing for me to do is state three things — things which it is strange for any citizen to feel constrained to state.

1 It is morally right, as well as politically and economically necessary, that all the rights and privileges of American citizenship be guaranteed to all citizens.  
2 A man’s worth should be judged by the qualities of his manhood.
3 Any official of any state who does not honestly and vigorously endeavor to punish, with full rigor, any violence against or coercion of any individual or group has violated his public trust and should be impeached.  

I suppose that a reader can easily infer from these statements my attitude in specific instances, as I had assumed one might from other writings of mine, including the Legacy of the Civil War; but I shall add that I think Dr. Martin Luther King a great man, and that the sit ins conducted according to his principles are morally unassailable, and will win.  One reason they will win is that they offer, even to the man howling from the sidewalk, an exhibition of courage, dignity, and self control.  

                        Very Respectfully Yours,

                        Robert Penn Warren

P.S.  One more thing: since Mr. Jones takes the trouble to quote from me in 1929, I wish he had taken the trouble in his researches to glance at my explicit repudiation some time back, of what I said in 1929.  In 1929, in my youth, I was wrong — and even now, I do not feel myself entirely above error.  

Warren’s reflection of change over time merges with his views of social responsibility.   For what its worth, Warren was also wandering around New Haven in the early 1980’s.  How I would enjoy sitting at a table amongst Warren, Sarat and Cover as they talked about these things.  How the walls in New Haven must have been ablaze with ideas in the early 80’s.

(P.S. Robert Patterson was also former Captain of the Mississippi State football team — ergo my promised college football reference, in case anyone needed an irrational reason to hate the number one ranked team).