Showing papers in "Law, Culture and the Humanities in 2015"
TL;DR: While courthouses often reveal a profound gap between the professed ideals of justice and their delivery, their designs supposedly symbolize the authority of the community over the individual and l...
Abstract: While courthouses often reveal a profound gap between the professed ideals of justice and their delivery, their designs supposedly symbolize the authority of the community over the individual and l...
26 citations
TL;DR: The relationship between law, labor organizing, politics, and the role of academic scholarship on law and work since 1980 is explored in this paper, where the authors explore the relationship between labor, law, and politics.
Abstract: This essay muses on the relationship between law, labor organizing, politics, and the role of academic scholarship on law and work since 1980. As globalization of manufacturing and labor migration have transformed American culture and labor, the boundaries of labor studies have expanded. The more expansive understanding of labor evident in modern scholarship is partly attributable to the decline in union density and the rise of social movements focused on expanding rights of marginalized workers. Yet hyper-capitalism and attacks on labor liberalism have threatened New Deal labor protections and social safety net programs that were core achievements of past labor organizing and foundations for future labor organizing. The rise of income inequality and the decline of middle class jobs, along with right-wing attacks on labor and social welfare legislation, signal a seismic cultural shift that we have only begun to experience and will shape the future of socio-legal studies of labor.
21 citations
TL;DR: Prisoners increasingly appear in court from spaces of incarceration, linked by video technologies, and remote from the physical courtroom in which the legal proceedings take place as mentioned in this paper, and during these vid...
Abstract: Prisoners increasingly appear in court from spaces of incarceration, linked by video technologies, and remote from the physical courtroom in which the legal proceedings take place. During these vid...
16 citations
TL;DR: In this article, the authors argue that only a turn to ontology and immanent politics can resistance be meaningful, whereas for Foucault resistance is a practice existing as a transcendent possibility for any individual, Agamben reads such transcendent forms of resistance as ultimately reinforcing the control of the dispositif.
Abstract: This article interrogates the specter of resistance in the writings of Giorgio Agamben and Michel Foucault, arguing they open up divergent ways of theorizing resistance to power. This article’s focus is on both philosophers’ use and interpretation of the dispositif, or apparatus, which controls and orders subjects, and which is the target for forms of resistance. Whereas for Foucault resistance is a practice existing as a transcendent possibility for any individual, Agamben reads such transcendent forms of resistance as ultimately reinforcing the control of the dispositif, arguing that only a turn to ontology and immanent politics can resistance be meaningful.
13 citations
TL;DR: Brettschneider as discussed by the authors argues that people's claims to privacy have a constitutive, as well as an instrumental, importance to democratic government, which is best seen by attending to democracy as a practice, and not merely as a distinctive set of values.
Abstract: Does the rejection of pure proceduralism show that we should adopt Brettschneider’s value theory of democracy? The answer, this article suggests, is “no.” There are a potentially infinite number of incompatible ways to understand democracy, of which the value theory is, at best, only one. The article illustrates and substantiates its claims by looking at what the secret ballot shows us about the importance of privacy and democracy. Drawing on the reasons to reject Mill’s arguments for open voting, in a previous article by A. Lever, it argues that people’s claims to privacy have a constitutive, as well as an instrumental, importance to democratic government, which is best seen by attending to democracy as a practice, and not merely as a distinctive set of values.
11 citations
TL;DR: There has been a marked increase in the role of the state in the industrial relations of advanced capitalist societies as mentioned in this paper, paralleling the decline of organized labor over the past quarter century.
Abstract: Over the course of the past quarter century, paralleling the decline of organized labor, there has been a marked increase in the role of the state in the industrial relations of advanced capitalist...
10 citations
TL;DR: In the decades following the end of the Cold War, the process of producing state constitutions has transformed into a veritable industry as mentioned in this paper and the provision of "expert" advice in the process has become an industry.
Abstract: In the decades following the end of the Cold War, the process of producing state constitutions has transformed into a veritable industry. This commentary considers contemporary practices of constitution-making as a site for critical reflection. It takes up the provision of “expert” advice in constitution-making processes in relation to three tropes of how these processes are conceived. As an attempt at diagnosing the constitution-making present, this commentary focuses on constitutional “technicity,” though aspects of what I term constitutional “romanticism” and “civility” continue to inform this technical turn.
9 citations
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TL;DR: After Emmett Till's murder in 1955, African-Americans mobilized political mourning to oppose the status quo of white power as mentioned in this paper, and media coverage that followed generated an affective conn...
Abstract: After Emmett Till’s murder in 1955, African-Americans mobilized political mourning to oppose the status quo of white power. Till’s death and media coverage that followed generated an affective conn...
9 citations
TL;DR: In this paper, the authors examine the governmentality of noncustodial forms of immigration control over immigrant bodies, focusing on electronic detention (alternative to detention, or ATD), which limits an immigrant's freedom, but is considered neither detention nor custody.
Abstract: The article examines the governmentality of noncustodial forms of immigration control over immigrant bodies. It uses the Spiderman cartoon character Venom (Black Spiderman) as a metaphor for expansive and shape-shifting state sovereign power. This plenary power is a machination of the Department of Homeland Security (DHS) and the courts. Like the venom symbiote it takes form from the state having contact with immigrants. Specifically, the article focuses on electronic detention (alternative to detention, or ATD), which limits an immigrant’s freedom, but is technically considered neither detention nor custody. This legal construction leaves almost no accountability. Thus I argue that ATD initiatives create an extra legal space of unchecked power that is deployed on immigrant bodies, and just like Black Spiderman they allow aggression to be amplified to dangerous result.
6 citations
TL;DR: In this article, the authors argue for a specifically acoustic jurisprudence, an orientation towards law attuned to questions of sound and listening, arguing for a shift in how we relate to legal thought, practice and experience.
Abstract: This article argues for a shift in how we relate to legal thought, practice and experience. It argues for a specifically acoustic jurisprudence, an orientation towards law attuned to questions of sound and listening. The argument is made in the abstract before moving on to an example intended to establish the political stakes of the intervention. My example is the Long Range Acoustic Device, invented at the turn of the century and used increasingly today by military and police forces as a way of amplifying the authority of the state and, in some instances, enacting serious acoustic violence.
6 citations
TL;DR: The authors apply a psychoanalytic framework to existing debate to provide a new interpretation as to why testifying to sexual assault can re-traumatize a victim-survivor.
Abstract: Testifying to sexual assault can re-traumatize a victim-survivor. This article applies a psychoanalytic framework to existing debate to provide a new interpretation as to why this is still the case...
TL;DR: In this paper, an anti-jurisprudence that shifts the focus to those forgotten but undeniable substances, asking how they inflect the force of law differently in each case, is proposed.
Abstract: This paper argues that law and humanities scholarship as well as socio-legal studies can benefit tremendously by rethinking systematically the modes of expression of law. The force of law passes through a wide variety of media – to name only a few: spoken or written words, gestures, visual images, technical objects, human bodies. Intuitively, we may sense that each of these different sorts of mediators has some effect on the nature of the legality or normative force that it conducts and makes pass. The jurisprudential temptation is to reduce these media out of existence and to theorize, for instance, the essence of legal form apart from the substances that give it reality and materiality. The paper sketches the outlines of an anti-jurisprudence that shifts the focus to those forgotten but undeniable substances, asking how they inflect the force of law differently in each case. The paper’s most important resources are the concept of mediation in Bruno Latour’s actor-network theory and the theory of stratif...
TL;DR: In this article, a case study examining the construction of a courthouse demonstrates the difficulties in pursuing improvements to the phenomenological experience of justice within these constraints, revealing the need for architectural knowledge to be shared for the common good in order to resist practices that replicate existing conditions and inhibit innovation.
Abstract: The discourse around the merit of public architecture often depicts the architect as having complete autonomy over its design. This belies the constraints placed upon creative solutions by design briefs or the intense negotiations between the State, the architect and the various stakeholders involved in the construction process. Through a case study examining the construction of a courthouse, we demonstrate the difficulties in pursuing improvements to the phenomenological experience of justice within these constraints. It reveals the need for architectural knowledge to be shared for the common good in order to resist practices that replicate existing conditions and inhibit innovation.
TL;DR: The authors argued that the thinking behind different theories of collective self-constitution is commonly restricted by the particularly occidental metaphysics of medieval natural theology, which rendered transcendence immanent and domesticated and circumvented God's unlimited power.
Abstract: This article first argues that the thinking behind different theories of collective self-constitution –
normative political and reflexive – is commonly restricted by the particularly occidental metaphysics
of medieval natural theology which rendered transcendence immanent and domesticated and
absolutized God’s unlimited power. The article then shows how this ‘‘defective immanence’’
of constitutional thinking functions ideologically through retroactively colonizing other forms of
‘‘theo-politics’’ in non-occidental monotheistic socio-political organizations.
TL;DR: In this article, the authors examine the relationship between museums, constituting, and constitution-making, and examine the role of museums in the production of such imaginations, as well as their role in the creation of meaning-making.
Abstract: Constitutional theorists frequently take the constitutional arrangement as their primary focus of critique. Indeed, for many constitutional scholars, the constitution is presumed as the central place from which to navigate and negotiate political community. However, this approach neglects the ways in which imaginations of political community are also launched at other sites of meaning-making. This commentary reflects on the role of museums in the production of such imaginations. In it, I examine the relationship between museums, constituting, and constitution-making.
TL;DR: The authors consider a recent vampire narrative as a story about bullying and offer an interpretation of this story via the theories of Claudia Card and Jacques Derrida, arguing that together this archive provides a more nuanced understanding of the kinds of damage inflicted by bullying than has been provided by realist or sociological accounts.
Abstract: School bullying has been recognized only relatively recently by policy-makers, media and the courts as a serious and widespread social problem. But despite this recent notice, there has been no evidence that techniques adopted to stop bullying have led to anything more than modest success, implying that we need to do more work to unpack and theorize the nature of bullying. In this article, we consider a recent vampire narrative as a story about bullying. We offer an interpretation of this story via the theories of Claudia Card and Jacques Derrida, arguing that together this archive provides a more nuanced understanding of the kinds of damage inflicted by bullying than has been provided by realist or sociological accounts. In particular, it illuminates damage to the morality of the victim, to their soul, which is a kind of damage that has previously not been given great attention. It also highlights the ways in which practices of judgment can become very tangled when trying to resolve bullying situations, ...
TL;DR: This paper argued that the analytical lens of the exception allows us to appreciate the perplexities that Eichmann in Jerusalem presents from a still uncommon perspective, and enable us to attend in new ways to Arendt's own suppositions, propositions, and contradictions in this text.
Abstract: This article offers a close reading of Hannah Arendt’s Eichmann in Jerusalem: A Report on the Banality of Evil. It argues that in this text, Arendt consistently, even obsessively, evaluates the legal and moral challenges posed by Eichmann’s trial through the relationship between exception and rule. The article contends that the analytical lens of the exception allows us to appreciate the perplexities that Eichmann in Jerusalem presents – some fifty years after the book’s publication – from a still uncommon perspective, and enables us to attend in new ways to Arendt’s own suppositions, propositions, and contradictions in this text.
TL;DR: This paper argued that reality television in the United States has often been understood to reinforce the punitive and neoliberal turns American political culture took in the late twentieth century. But in this article,...
Abstract: Reality television in the United States has often been understood to reinforce the punitive and neoliberal turns American political culture took in the late twentieth century. But in this article, ...
TL;DR: For instance, this article argued that the American labor movement is "exceptionally weak and conservative" and "exceptally" conservative in the sense that it is "weak and conservative".
Abstract: Since Werner Sombart visited the United States at the beginning of the 20th century, scholars and activists have debated whether the American labor movement is “exceptionally” weak and conservative...
TL;DR: The authors argue that the criminal against humanity must be distinguished from the enemy of humanity, because crimes against humanity provide a universal yet minimal normative recognition to the offender within a global legal order.
Abstract: This article theorizes the politically productive aspects of the term ‘‘crimes against humanity’’ in contradistinction to normative political theories that conceive of international law as applied ethics and to Schmittian approaches to law as the medium of depoliticization. I argue that the criminal against humanity must be distinguished from the enemy of humanity, because crimes against humanity provide a universal yet minimal normative recognition to the offender within a global legal order. Analyzing the distinct patterns of agency and authority that arise from rights and crime respectively, I outline the communal dimension of the criminal law and discuss the performative claim to humanity as a global body politic that attends pronouncements of crimes against humanity by international authorities.
TL;DR: The state formation of neoliberal authoritarianism, and political subjects attached to this state, took shape in the wake of the 1968 presidential election in the United States, and police were encouraged to go beyond law enforcement to control the perception of disorder as discussed by the authors.
Abstract: The state formation of neoliberal authoritarianism, and political subjects attached to this state, took shape in the wake of the 1968 presidential election in the United States. Now the state sought to manage inequality – if not enjoy it – rather than ameliorate it. Policing became more militarized, and police were encouraged to go beyond law enforcement to control the perception of disorder. Police were also encouraged to kick ass. The enjoyment of militarized policing of those poor and black, or the enjoyment of police kicking the asses of those poor and black with regard to minor violations, indicate the points of subjective affective attachment to neoliberal authoritarianism. The New York Police Department’s and the Ferguson Police Department’s disparate policing of those poor and black are institutional manifestations of these affective attachments. In the wake of the NYPD’s killing of Eric Garner, and the shooting of Michael Brown in Ferguson, the protests of the people have forced us to heed the ca...
TL;DR: B Brettschneider as discussed by the authors develops an attractive and powerful conception of self-government -the value theory of democracy -that encompasses both substantive rights like privacy and procedural rights.
Abstract: In Democratic Rights: The Substance of Self-Government, Corey Brettschneider develops an attractive and powerful conception of self-government - the value theory of democracy - that encompasses both substantive rights like privacy and procedural rights. Although he argues, following Habermas and Rawls, that substantive rights and procedural rights are "co-original," the structure of his theory may lead him to reduce the former into the latter and not fully to account for personal self-government in his conception of democratic self-government. The wages of his democratic justifications for substantive rights may be a surprising anxiety or unwarranted tension concerning judicial review protecting such rights.
TL;DR: This paper used a grounded theory analysis on a sample of 256 U.S. federal judicial opinions between 1873 and 1956 to show that evidentiary rules developed by judges in anti-obscenity cases at the turn of the twentieth century were actually "feeling rules" meant to penalize lust, assert social control over women via normative shame, and define normalcy as self-control over inner life.
Abstract: This essay argues that U.S. judicial decisions in obscenity cases at the beginning of the twentieth century reveal a systematic social process of emotion management that supported, in ways not previously recognized, the emotional culture of the middle class and, through it, middle-class status policy. Using a grounded theory analysis on a sample of 256 U.S. federal judicial opinions between 1873 and 1956, the analysis shows how the evidentiary rules developed by judges in anti-obscenity cases at the turn of the twentieth century were actually “feeling rules” meant to penalize lust, assert social control over women via normative shame, and define normalcy as self-control over inner life.
TL;DR: The authors examines the logic of necessity in eminent domain cases in the United States and concludes that public use justifications as adjudicated by courts are not sufficient in such cases, and proposes a different approach.
Abstract: This article examines the logic of necessity in eminent domain cases in the United States. While much has been written about “public use” justifications as adjudicated by courts, less attention has...
TL;DR: For instance, this article argued that the legal legitimacy of copying has centered on the visual like-ness of a copy to its original, which has suppressed more productive questions about the critical cultural functioning of copying in better understanding what a copy says about its copier and Chinese national identity.
Abstract: Widely derided for its materialistic culture of ‘‘cheap knock-offs,’’ the growing Chinese middle class has struggled to wean itself from the re-production and status-based consumption of counterfeit goods and Western aesthetics. From the Chinese re-production of canonical icons of Western modernity, to the more recent copying of the aesthetics of contemporary architecture abroad, the legality of copying has centered on the visual like-ness of a copy to its original. However, this preoccupation with visual aesthetics has suppressed more productive questions about the critical cultural functioning of copying in better understanding what a copy says about its copier and Chinese national identity.
TL;DR: There has been a recent shift in perceptions of photography and privacy in Australia as discussed by the authors, and the view that our privacy is under threat has created an atmosphere of paranoia and fueled demands for law refo...
Abstract: There has been a recent shift in perceptions of photography and privacy in Australia. The view that our privacy is under threat has created an atmosphere of paranoia and fueled demands for law refo...
TL;DR: In this paper, the authors ask about the dignity of weapons, the kind of elevated worth weapons appear to have acquired despite (or because) of their role in the production of indignity, a worth which, perhaps not as paradoxically as it may otherwise appear, constitutes (or rather de-constitutes) human dignity.
Abstract: In this article, I wish to ask about the dignity of weapons, the kind of elevated worth weapons appear to have acquired despite (or because) of their role in the production of indignity, a worth which, perhaps not as paradoxically as it may otherwise appear, constitutes (or rather de-constitutes) human dignity. I shall not take Kant as my guide, though, but the other K, namely, Franz Kafka.
TL;DR: In this paper, a reading of the Federal Communication Commission's proceedings on broadcast flag protection for digital television is presented, where the authors consider apparent constraint as productive rather than simply repressive regulation.
Abstract: Following Foucault’s demystification of liberal rights, this article complicates narratives of cultural enclosure in intellectual-property regulation, and especially their central figure of a right-fully sovereign user constrained by copy protection. First, it problematizes the freedom imagined for the user, as a specific and ambivalent orientation to contemporary cultural transformation. Second, in a reading of the Federal Communication Commission’s proceedings on “broadcast flag” protection for digital television, it reconsiders apparent constraint as productive rather than simply repressive regulation, which goes to constructively map uses and users in new domains of digital media.
TL;DR: The authors consider how greater attention to the memory of resistance might alter the parameters of contemporary efforts to reckon with systematic abuse, and they take the Eichmann Trial, which feature in this paper, as an example.
Abstract: This article considers how greater attention to the memory of resistance might alter the parameters of contemporary efforts to reckon with systematic abuse. I take the Eichmann Trial, which feature...
TL;DR: In this paper, the concept of solidarity is linked to the notion of a welfare community, which is grounded in a political critique of free market capitalism, and requires a bold assertion of a constitution as a limitation of the socially and economically destructive effects of markets.
Abstract: Radical constitutional scholarship could make use of a concept of solidarity to enable a new engagement with concepts of welfare and political community. Rather than a welfare state, with all its attendant problems, it is possible to link the concept of solidarity to the notion of a welfare community. A welfare community asserts the importance of common life against capitalist market relationships. Conceiving of the welfare community requires insights from continental philosophy, as well as developments of co-production and core economy thinking. Most importantly, this approach grounds welfare in a political critique of free market capitalism, rather than a theory of rights, and requires a bold assertion of a constitution as a limitation of the socially and economically destructive effects of markets.