Nerd Fight! Nerd Fight!: The Bizzaro World Battle of Constitutional Interpretation Reply

Mike Post and Saul Cornell are having a nice round about with each other.  Over at the Faculty Lounge, Saul Cornell critiqued Mike Post’s Constitutional originalism; Post responded in his post Historian Cure Thyself; finally Cornell responded back by referring to the type of scholarship as belonging in the Bizzaro world of Superman Comics.

Cornell wrote:

This is a model of scholarship that belongs in the Bizzaro world of   Superman comics.   Although the amount of   deeply researched and intellectually sophisticated legal scholarship continues to grow and vastly out numbers  this type of  Bizzaro  originalist scholarship, the legal academy is clearly in crisis and Rappaport’s post is a symptom.    Originalism has become a vast scholarly echo chamber.  Originalists cite each other’s work as authority, invite each other to conferences largely dominated by other originalists, publish each other’s papers in their own student edited journals without peer review, and then blog about the paradigm shifting quality of their own work and that of their friends!   I am sorry if my posts have seemed unduly harsh or not collegial, but the system is broken and it will never be fixed unless we acknowledge that “something is rotten in the state of Denmark.”

While I love academic nerd fights as much as the next guy, I am really intrigued by the reference to Bizzaro world as a referent to Post’s scholarship.  (I know, I just upped the nerd ante significantly).   I wonder if Mark White has any thoughts on Bizzaro world as an referent to interpretive principles.

Panel on Deportation, Refugees and Exile Reply

This past week I participated in the Association for the Study of Law, Culture and the Humanities annual meeting.  Warren gave a great wrap up here, and Mai-Linh described the panel that we both participated on here. Below, I am posting the abstracts from my fellow panelists.  I will post a separate piece outlying my presentation.

The panel was chaired by Frank Snyder of Texas Wesleyan, who did a yeoman’s job of coordinating the panel.  It included myself presenting Re-Entering the Loneliness: Robert Penn Warren and the Exile;  Beth Caldwell of Thomas Jefferson Law School, presenting Clinging to Precedent in a Changing World: The Fiction that Deportation is not a Punishment;  and Quyen Vo, a very impressive student at UC Berkeley, presenting National Interest and International Legal Obligations in British Refugee Asylum.  Here are the abstracts in the order presented.

Beth Caldwell, Clinging to Precedent in a Changing World: The Fiction that Deportation is Not a Punishment

The Supreme Court decided that deportation is not a punishment in 1893. The decision was influenced by overt racism that characterized American society at the time. Since then, our societal norms have changed. However, the decision that deportation is not a punishment has remained the same. Although this core holding has not evolved over time, the Supreme Court reasoned in Trop v. Dulles that this characterization may be “highly fictional.” In 2010, the Court acknowledged that deportation may in fact be the most severe penalty resulting from a criminal conviction. The language the Court employs to discuss deportation seems to characterize deportation as a punishment. However, the Court has not explicitly reversed its 1893 decision that deportation is non-punitive. This paper explores the evolution of the case law and attempts to reconcile the Court’s evolving reasoning with its decision not to reverse or reconsider the ultimate question of whether deportation is a punishment. This inquiry is particularly important because deportation would be subject to review under the Eighth Amendment if it were defined as a punishment.

Quyen Vo, National interest and International Legal obligations in British Refugee Asylum, 1933-1951

 This paper considers how the British state’s refusal to acknowledge formally an asylum seeker’s refugee status affected the scope of British refugee asylum between 1933 and 1951; in the former year the first international refugee treaty emerged under the League of Nations, and in the latter a more comprehensive refugee convention was established under the United Nations. This paper argues that the British state sought to determine the entry of asylum seekers and rights of ‘refugees’ territorially present using primarily the national immigration law, which sought above all to protect and promote the national interests. By examining shifting boundaries between national immigration law and international refugee law, this paper highlights distinctions between citizen and alien, legal and illegal, and inclusion and exclusion that lie at the heart of British refugee asylum. More broadly, the analysis offers a richer historical understanding of the British state’s attitudes toward international refugee law.

Marc L. RoarkRe-entering the Loneliness: Robert Penn Warren and the Exile

How do exiles return to community? As Randy Hendricks has demonstrated, Robert Penn Warren uses as a principal literary figure the wanderer to describe his theories of racial relations, his concept of language, and his own place in the southern narrative. This paper explores Robert Penn Warren’s conceptions of the exile as tragic hero in the context of the law. Importantly, Warren’s wanderer’s always return home, a process that requires legal acceptance of the wanderer’s place in society

Wrap up from ASLCH in Fort Worth 1

A few notes from this year’s conference.

  • The Association of for the Study of Law, Culture and Humanities Conference ended yesterday with a fury.   Table contributors Mai-Linh Hong from Legal Lacuna, and Marc Roark each presented papers and participated together on a panel titled Global Citizens: Violence and the Transnational Subject.  Mai Linh presented a paper titled Another Vietnam: War, the Archive and the USS Kirk.  Marc presented Re-Entering the Loneliness: Robert Penn Warren and the Exile.   Perhaps they will post a brief write up on their respective papers.
  • The folks at Texas Wesleyan were all incredibly hospitable.  I understand one faculty member bought lunch for several guests on Saturday.  Southern hospitality never gets old.
  • The keynote address was incredible.  Judith Resnik and Dennis Curtis discussed their new book Re-Presenting Justice: Visual Narratives of Judgment and the Invention of Democratic Courts.  In the words of Austin Sarat, one of the respondents to the talk, the work represents “an audacious representation” and the “best for what we are attempting to do.”  I wanted to shell out $75.00 immediately.  The book looks incredible.  A Summary of the keynote was tweeted by Mai Linh.
  • If you were not following our TWEETS from the conference, you can access them here and here.  They are a little uneven, due to the depth of different talks.   Nevertheless, several were enjoyable.  I particularly enjoyed David Fisher’s Medea’s Laws: Reading Euripides’ Medea as Law and Literature.
  • This year’s conference was well done. Kudos to Linda Meyer and her organizing committee.  Next year’s conference is in London.

Live Tweeting from ASLCH Tomorrow #ASLCH Reply


Tomorrow and Saturday, myself (@warrenemerson) and Mai-Linh of Legal Lacuna (@legallacuna) will be live tweeting from the Association for the Study of Law Culture and Humanities.  Hashtag #ASLCH.  Follow us or come find us.  My offer still stands for a free drink to the winner.