Category: Law and Humanities

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Roundup: Law and Humanities 05.18.16

What’s new in the world of law and humanities:

Conferences

Call for Papers

By Any Other’s Name: A Conference on Law, Authorship, and Appropriation

Louisiana State University, Baton Rouge, LA, October 28-29, 2016

On October 28-29, 2016, the LSU College of Music and Dramatic Arts, LSU School of Theatre, the LSU Law Center, LSU’s ORED (Office of Research and Economic Development) and the Law and Humanities Institute will co-sponsor a conference on law, authorship, and appropriation on the LSU A and M campus in Baton Rouge, LA. This conference will bring together scholars, performers, and students to discuss law and authorship in the face of challenges issued by artists who engage in appropriation—the practice of taking the works of others to rethink or recreate new works.

Some artists who engage in appropriation may describe their activities as parody, sampling, or remixing. Some artists whose work is appropriated may describe the result as misappropriation. Writers might describe the use or reuse of words variously as hommage or plagiarism. Lawyers weigh in both sides of the issue, interpreting such reuse as fair use or infringement, depending on the circumstances.

Digital technology creates a host of new considerations, from the opportunity for a creator to license rights up-front (or not at all) to opportunities for users to create content cooperatively, either on the Web or in face-to-face settings.

What do such changes, in law and in aesthetics and art, mean for our understandings of authorship and the relationship between creator and audience? Do words like “author” and “creator” even continue to have meaning?

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Neither Freedom Nor Equality

Be careful what you wish for – that’s the clear warning that Katherine Franke gives the reader in her new book, Wedlocked: The Perils of Marriage Equality. In the book, Franke offers a far-reaching and incisive critique of marriage, based on the ways in which marriage was both sought after and suffered through by two distinctly different populations: newly freed slaves after the Civil War and same-sex couples in the wake of marriage equality. Careful not to make direct comparisons between the two populations, Franke presents the experiences of both groups side by side and draws out similarities that are always striking and often surprising. The intertwining stories of these two groups provide a window into “what it means to elaborate a new conception of freedom and equality through a form of state licensure.” (p. 11)

Freedom and equality frame the discussion and serve as touchpoints for Franke as she details the unintended consequence of access to marriage for both populations. What becomes clear, as the book progresses, is that the elaboration of freedom and equality through marriage is quite different than the reality of obtaining freedom and equality through marriage. Franke’s first overarching theme – marriage is not freedom – comes through sharply in the wide-ranging stories she tells about couples, both then and now. Marriage does not and cannot equate with freedom because it is a form of state control. This is not news, but the way in which Franke adeptly draws out the myriad ways in which marriage is used as a mechanism for domestication and governance is compelling. But Franke does not stop there. She deepens this argument by describing the peculiar genius of marriage which is that, despite its being a freedom-constraining relationship, the promise of equality that it offers is sufficiently tantalizing to make the trade-off not only acceptable but even desirable. As she presses on the idea of equality in the context of marriage, however, Franke develops her second, twin theme – that marriage rights do not necessarily produce equality. Not only is freedom illusory; equality is not guaranteed.

Beginning with freedom, Franke presses on this concept throughout and skillfully underscores how marriage operates as a “tactic of governance” (p. 62) that is both plastic and persistent. One particular loss of freedom that concerns Franke derives from marriage being deployed by the State as a technology of power that regulates sexuality, erasing all forms of “fantasmatic curiosity.” (p. 115) The embrace and imposition of marriage on both populations has placed alternative sexualities in service of hetero- and now homonormative ideals. Franke regrets in particular with the gay community that, under the yoke of marriage, “we have lost for now the opportunity to explore the possibilities of a ‘lawless homosexuality.’” (p. 115) Marriage is (as I have explored elsewhere) deeply implicated as a part of the “civilizing process.” As such, marriage demands that sexuality be confined to be legitimized and that individuals discipline their internal, sexual drives. Consequently, relationships that tolerate alternate sexualities – such as bigamy, informal marriage, and multi-party relationships – have been penalized, and might be again, in the rush to ensconce marriage as the one legitimate container for sexual intimacy and activity.

Marriage also entails another, related, loss of freedom because it demands not only sexual but also social conditioning. Marriage is a public-facing relationship that requires that families look and act a certain way: a husband and wife, several children, a well-ordered household. Measured against these perfect families, Franke’s “fluid families” come up short and are penalized for their different-looking, non-traditional forms. Women bear a particular burden of regulation and correction, because the picture-perfect form of marriage is a hierarchical and gendered one. “Fluid families” are therefore disrupted and disciplined not only because of their expressive sexuality but also because they do not conform to gender-based hierarchy. In the context of freed slaves, “female-headed households, or even matrifocal families, in many slave communities were pointed to as evidence of the dysfunction, or even the pathology, of slave family life.” (p.81) Even current marriage laws, however, “take matrimony to be a legal relationship that is fundamentally structured by gender inequality.” (p. 209) Accordingly, Franke worries about the effects of marriage on same-sex couples and how it might transform previously gender-fluid relationships into gender-filled ones. Whether or not same-sex couples will change marriage or marriage will change them, encouraging same-sex couples to reinscribe conventional gender roles in their relationships, remains to be seen. The sociology is in the making. Nevertheless Franke’s warning to monitor the impulse to gender within marriage is apt, especially given power imbalances that result in many couples due to asymmetrical earnings in a marriage.

Finally, marriage represents an immediately relevant form of state intervention and loss of freedom because it imposes default rules about money, resources, and sharing. Marriage economics are, as Franke points out, intimately related to the gendered nature of marriage and marriage as a form of “private welfare.” (p. 90) Because of legal assumptions about the specialization of household labor and marriage as an economic partnership, divorce laws mandate forced sharing, absent private contracting. Same-sex couples are not always aware of these rules (not unlike their different-sex counterparts) and, furthermore, divorce courts don’t always know what to do when confronted with couples who might have been married sooner than they were, had they been allowed to do so. Franke’s story of Ruth and Beth underscores these problems and highlight the possibility of unjust enrichment. (p. 211) Equally likely, however, is the possibility that long-term same-sex couples who have been economic partners for years will be dealt with unfairly by courts refusing to recognize those years of partnership upon divorce. That is to say, while backdating to the beginning of the dating period is one option courts have when constituting the marital estate, they also have the option of not taking into account anything that happened previous to the marriage and thereby artificially circumscribing the assets available to distribute at divorce. Given the reluctance of courts to accord property claims to unmarried cohabitants – and the almost complete rejection by state legislatures of the ALI principles (p. 156) – this may be the more likely danger. Either way, Franke establishes through an abundance of examples that freedom has little relationship with marriage.

Having deconstructed the notion of freedom with respect to marriage – the freedom to marry is really an invitation to relinquish personal freedom to the State – Franke goes on to suggest that the promise of equality through marriage may also be illusory. Marriage inequality operates on several levels. For starters, the right to marry for same-sex couples does not necessitate the right to equal treatment by a legal and societal culture still hobbled by bias and discriminatory desire. One noteworthy thread that runs through the book is that bias has an afterlife – it does not just disappear but rather gets channeled into new outlets and finds new modes of appearance. In the case of marriage equality, inequality may appear in the guise of reinvigorated enforcement of adultery and bigamy law with respect to same-sex couples. (p. 151) Laws that have been on the books for decades, never invoked, may be animated anew because of reconstituted homophobia. Gay men and lesbians, Franke remarks, “have long been accustomed” (p. 152) to outdated laws being selectively applied in order to penalize gay sex. Marriage equality may not change this. This bias may also find other ways to get into court. With same-sex couples having and adopting children, as well as divorcing, bias could easily show up in family court. It is, in fact, simple to speculate about how discrimination and stereotypes might find their way into judicial determinations about property division, spousal maintenance, and child custody. This is a matter, in many respects, of cultural change lagging behind legal change on certain issues and in certain locations. Franke does not have the space, nor is it necessarily a part of her project, to take on the question of how to move cultural change forward, to full acceptance of same-sex relationships and sexuality. The necessity of doing so, however, remains.

There are also other inequalities engendered by the push for equality. In fact, the larger problem with marriage “equality” may be that it creates inequalities within and between various communities. This is a major point in the book and one that weaves together the stories of the gay and African-American communities in the contemporary landscape. In short, the problem with the move to gain rights through marriage, thereby making marriage the standard by which other relationships are “both made legible and assigned value” (p. 112), is that it renders other relationships different and lesser. As Franke argues, “winning the right to marry should not result in making non-traditional families … even more vulnerable for their failure to take a nuclear form.” (p. 111) Perhaps one of the most damaging aspects of this bias “offloading” is that it penalizes and further stigmatizes African-Americans because of the high prevalence of non-normative families in African-American communities. (p. 61) The promise of equality is, consequently, tempered by competing claims to relationship legitimacy and the continuing legacy of racism.

Freedom is not free and equality is not equal. Looking at the possible losses rather than gains in freedom and equality that result from obtaining the right to marry, one is left to wonder two things. Why do we need marriage? And, if we do need marriage for certain purposes, how can and should we manage the technology of marriage so that it serves as a mechanism for enabling freedom and equality?

An answer to the first question is that we don’t need marriage for everything. Consequently, one way to reduce marriage governance is to stop provisioning goods and resources through marriage to the extent that we currently do. There are indisputably good instrumental and practical reasons to marry, given the structure of our current system. As Windsor winningly demonstrated, it is manifestly unfair to ask same-sex couple to be taxed when different-sex couples are not. And, on the flip side, if many different-sex couples count financial planning among the reasons for marriage, why shouldn’t same-sex couples do the same? The thousand-plus benefits that the government provisions through marriage constitute an extremely compelling reason to get married. This has led to a phenomenon of many same-sex couples “holding their noses” and getting married.

This argument, however, does not justify marriage on the merits. There is nothing inherent to marriage that makes it the right or only way to provision benefits. In fact, the answer to the benefits question may be to have the State provision them outside of marriage. Franke does not explore how else we, collectively, might choose to provision benefits or the responsibility of the State to do so in a more equality driven manner. She does, however, nod at the question of redistribution when she suggests that all “married queers” think about what it means to enjoy economic advantage through marriage and reshape their behavior accordingly. (p. 235) Actions like these will help decrease the marriage privilege and smooth out differences among the various types of intimate relationships. This will also prevent couples from being channeled into marriage without any real desire for it.

Another answer is that we need marriage for certain people because, for these couples, the substance of marriage is compelling. Marriage, for some, is a positive good. Consequently, a second strategy – compatible with the first – is to commit to making marriage more equal for those who choose to be in it for affirmative substantive reasons. Franke rightly critiques the fact that “marriage has been recharged as the most august holding environment for the elaboration of one’s mature and authentic self.” (p. 61) Trying to find the charm and charisma of marriage, however, it may be that marriage is deeply appealing because it is a site for making and maintaining a unique connection with another person. The modern ideal of companionate marriage reinforces this ideal and demonstrates how marriage is more than money. Marriage provides a way for individuals to commit to one another, offer continuing support, and receive both love and encouragement. Marriage is of course not required for this type of relationship to develop and flourish. Marriage does, however, serve a signaling function and provide a legal framework for resource sharing and caretaking of multiple kinds.

For these people, marriage is an unalterable part of the social landscape. For them, Franke offers valuable suggestions in her “Call to Action For Married Queers,” including asking spouses to monitor their economic privilege, be aware of gender, and resist offloading bias on other, various non-normative groups. The notion alone of queering marriage is a project worth pursuing in an attempt to help further change the nature of marriage. In this vein, one additional suggestion for Franke’s Call to Action is for married queers – and unmarried ones as well – to open and protect robust critical, queer spaces both inside and outside of marriage. Franke’s message about preserving queer spaces in the context of sexuality is equally important in the political context. Part of keeping marriage equality in play and in question is curating spaces of play and resistance – critical spaces in which divergent practices and personae can be explored. Franke laments that the push to marriage has foreclosed many of these spaces in the gay community. These spaces, however, can be perpetually reinvented through critical inquiry and activity, and they will be the sites of cultural as well as legal resistance.

Ultimately, Wedlocked deftly deconstructs the notions of both freedom and equality with respect to marriage. What remains is to think through how to counter marriage primacy, change marriage internally, and keep open the space for critical play.

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Roundup: Law and Humanities 02.05.16

An update on the Law and Humanities Scene, February 2016.

CONFERENCES

1.The Law and Society Association meets in New Orleans from June 2 to June 5, 2016. The theme of the conference is At the Delta: Belonging, Place and Visions of Law and Social Change. Registration opens in early February, 2016. More information is available at the conference website here.

2.The Association for the Study of Law, Culture, and the Humanities 19th Annual Conference takes 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. More information is available at the conference website here.

3.The Kent Summer School in Critical Theory will run for the second time this year, in Paris, 13-24 June 2016. The website has just gone live.

This summer school for early career researchers and doctoral students aims to create a unique pedagogical experience, enabling leading critical thinkers to conduct an intensive 2-week seminar with members of a new generation of critical scholars.

Applications are now open to attend the summer school, and you will find application instructions on the website.

The teachers of the intensive seminars in 2016 will be Professor Samantha Frost, Professor James Martel, and Professor Bernard Stiegler. The website also contains information about the seminars, in addition to the school’s other events.

 

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A Christmas Movie that Led to a Financial Reg (Sort of)

Trading Places is a Christmas movie in that it is set during the holidays and I suppose making hundreds of millions (or probably billions in today’s dollars) is a 1980s Christmas wish as compared to other Christmas wish movies. It is a heart-warming story of a young Eddie Murphy and Dan Akroyd taking on the entrenched elite by, oh well, by insider trading. The ending and the glory of frozen concentrated orange juice live on. First the full explanation of how the two manage to out maneuver the Dukes is a little tricky. But after the thirtieth anniversary a two years ago, a few places explain it nicely. NPR’s coverage is succinct. Business Insider is good and has better pictures. But the best is from Don’t Worry I am an Economist which has a step-by-step on short selling, and then applies it to the movie including explaining how the pricing worked (142 is in fact A $1.42 and 29 is $0.29 per pound but the contracts are for thousands of pounds thus “Trading begins at 102 cents per pound (at 15,000 pounds of F.C.O.J. per contract – size of a typical contract – the value of a single contract is $15,300).”.). So he shows that

How much have they made? Let’s see. In the movie Winthorpe says they’ve moved around 20,000 contracts. Assuming they’ve sold short at a constant pace from 142 down to 102, and that later they’ve bought them back while the price was falling from 46 down to 29, let’s say that the average sell price was around 122 cents per pound, where the average buy-back price was 37.5 cents per pound. The spread is therefore 122 – 37.5 = 84.5 cents per pound profit. Per single contract this is 15,000 pounds * 84.5 cents per pound = $12,675 per contract. Multiply this by roughly 20,000 contracts and their total profit was: $253,500,000.

Oh and here is the law and regulation part: The movie was explicitly invoked as the Eddie Murphy rule when the government finally made insider trading on the commodities market illegal. Per the WSJ when the rule passed CFTC Chief Gary Gensler explained:

We have recommended banning using misappropriated government information to trade in the commodity markets. In the movie “Trading Places,” starring Eddie Murphy, the Duke brothers intended to profit from trades in frozen concentrated orange juice futures contracts using an illicitly obtained and not yet public Department of Agriculture orange crop report. Characters played by Eddie Murphy and Dan Aykroyd intercept the misappropriated report and trade on it to profit and ruin the Duke brothers. In real life, using such misappropriated government information actually is not illegal under our statute. To protect our markets, we have recommended what we call the “Eddie Murphy” rule to ban insider trading using nonpublic information misappropriated from a government source.

Law and lit and reg I guess. Anyway Merry Christmas and in the words of Nenge Mboko “Merry New Year.”

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Cyberpunk Because You Forgot to Get Someone a Gift

OK Cyberpunk can be great for a range of reasons, but I saw this repost from i09 on The Essential Cyberpunk reading list and thought, “A great list with some books I have not read. Wait! It’s a list for folks who need to send a just in time Christmas gift (assuming they are available as eBooks, which I know some are). I easily recommend Neuromancer, Snow Crash, and Mirrorshades. I look forward to reading the rest (Accelerando did not work for me but I may try it again). Plus this genre really does a great job of positing worlds and issues that are pressing the tech-law space right now, so that is another reason to jump in.

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Philip K. Dick – Most Important SciFi Author of the 20th Century?

Philip K. Dick may be the most important sci-fi author of the 20th Century akin to Verne and Wells in vision and contemporary relevance well after they wrote. Do Androids Dream of Electric Sheep (Blade Runner), We Can Remember It For You Wholesale (Total Recall, twice), Minority Report (Minority Report, film and TV), Paycheck (Paycheck), A Scanner Darkly (A Scanner Darkly), Adjustment Team (The Adjustment Bureau), and now The Man in the High Castle as an Amazon TV show is just a partial list of Philip K Dick’s work that has been adapted. Although Amazon does not usually release its streaming numbers, The Man in the High Castle has become its “most-streamed original show, overtaking shows like the detective-centric Bosch and Jill Soloway’s feted dramedy Transparent.” The popularity is not the point. As a fan of Dick’s work Ubik and even Valis (though that one is much work to read) both of which have not been adapted to the screen, I am saying that Dick’s novels and short stories did what great sci-fi does. They use technology and maybe some fantasy to comment on where society is headed and how things might evolve. I think it was Dan Solove who once said to me that Dick’s work fits his era, and others in, I think Dan said, the New School were working on the same ideas (apologies, Dan, if I am mistaken about what you said). Regardless of who or what school treads the same area as Dick, for me something about his work catches attention and highlights the way we live more than others.

Take Do Androids Dream of Electric Sheep, the movie is a good adaptation in that it hits themes rather than trying to stay true to the precise way the novel works. The novel has great stuff on machines to dial up a mood. People use it to stimulate anger, happiness, etc. as the situation requires. Did that presage mood drugs and more? Sort of. Did it hit on how we choose to live and ideas of what is authentic life and emotion? Yes. Should we take the messages about the world as reflecting reality today? No.

Although law and literature can, and maybe should, use literature to help understand an idea, saying that the world is now just like Minority Report or some other work is a reach. Using a film or novel to say something is a concern or to illustrate ideas of Orwellian, Kafkan, or other futures and that we wish to ask whether that is real can help. But the key is to rally the facts that show that those fictions are now a reality or that facts are in place that open the door to dystopia. Speaking of dystopia, I wonder how often people use fiction to say that the world or a technology is leading us to a better place. In my experience legal scholars tend to dismiss upbeat outlooks as naive or “just so” stories. I am not sure that Dick is dystopian. But in general if folks have examples where literature or film are examples of a good outcome from technology, please share.

Nonetheless, I offer Philip K. Dick in all his messy glory as my choice for Most Important SciFi Author of the 20th Century.

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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?

Testing Our Tolerance Read More

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Roundup: Law and Humanities 10.20.15

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

Conferences

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

Email: cjpicart@gmail.com

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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.