Duke Project on Custom and Law

We’re trying out something new at Duke next (2011-12) academic year that I wanted to float by Lounge readers.  If any of you have tried something similar at your schools (or even if you haven’t), we’d like to get input from you on anything that worked or didn’t, that you wish you had done differently or better, methods that you might employ if you were to do something similar to this, etcetera.

The plan is to have a continuing academic dialogue at the law school that is broad enough to include large segments of the faculty (ideally, all of it) and, eventually, other folks on campus as well.  I think that the goal is to encourage conversation, collaboration, and cross-pollination among as much of our immediate community as possible.  In order to do that we need a topic that is relevant to many people’s scholarship across fields, obviously. 

We’ve chosen the relationship between custom and law.  Sometimes custom informs the law, sometimes it is antagonistic to law, and sometimes it actually is the law.  The year-long dialogue will explore these differing relationships between custom and law.

This topic connects with a wide range of subject areas.  For example:  Tort law considers custom in the industry in determining the standard of care.  Contract law fills in the gaps of commitments based on customary practices.  Assessments of criminal fraud are often affected by industry practices.  Custom has a potentially significant influence on what is considered “fair use” in intellectual property law.  Constitutional law is informed by the customary operations of government.  One of the two major forms of international law is customary rather than codified.  And an understanding of the unwritten institutional customs of legal actors (such as courts and prosecutors’ offices) is often essential to an appreciation of how they operate.  There are others, of course, and we welcome suggestions on other applications, as well as readings, either foundational or new, on which we might focus as a group at various points throughout the year.

The plan is to have a number of components to the project.  First, there will be a series of lunches during which faculty members will discuss important published works relating to the topic.  Second, there will be a number of workshops in which faculty members from other schools will come and present works in progress that concern the intersection of custom and law.  Third, there will be an interdisciplinary conference at which faculty from law and other departments (such as Anthropology, Economics, Political Science, and Sociology) will present and discuss their own draft papers.  It is expected that some of the papers will be published in a symposium issue of one of Duke's law journals.

The project is being organized by Professor Curtis Bradley and he welcomes your advice and input at [email protected].  But you should also feel free to leave comments, questions, and the like in the comments section here regarding any of the three components, readings for the “reading group” sessions, or whatever else you think of, in the event that other Loungers would find it helpful.  

For example, is the selected topic sufficiently broad to engage lots of faculty?  But not so broad that it fails to fulfill the goal of generating a single conversation?  If not, how might it be practically narrowed as we progress through the year?  Or is the best plan to just wait and see what themes arise organically from the conversations?  What's the best way to make sure that people are informed, included, engaged?  Is it possible to generate a year-long conversation of this nature that gets folks talking about common ground, even when we all have very different specific interests?  

I know that we have many associate deans for research as readers (and also as bloggers) here -- if it was your school, how would you approach and implement an agenda designed to further a goal of such conversation, collaboration, and community-building that, as the plan for a published volume suggests, culminates with meaningful scholarship that fits into some (broadly defined) coherent theme?  And because I know how you lot think . . . suggestions that involve the firing and replacing of large numbers of recalcitrant faculty, while appreciated, are not likely to be implemented in the near future.

Thanks in advance for the brainstorming session!

 

Comments

[Dan Joyner]

Hi Kim,
I have to say that this sounds like a rather bizarre topic to try and bring alot of other disciplines in on. And it just screams to me that Curt Bradley is trying to continue in any way he can his own ill fated work on custom in international law. I think we've all had about enough of his and Mitu's thoughts on this subject. If you have read the responses their YLJ article has gotten, and particularly the set of papers published by the DJCIL in reponse to it, they have spectacularly failed to impress the serious international law academic community that their brave new idea on withdrawing from custom is a persuasive one. Curt simply strayed from his long established winning formula on this one - i.e. writing on US foreign relations law - and ventured imprudently into pure public international law source theory, in which he has little experience or expertise. He has paid the price through this negative reception - even being politely but firmly slammed on the pages of his own law school's international law journal. I personally think he should call it a day on this topic, and not try to salvage it through this strange new attempt at interdisciplinarity.

[Curt Bradley]

Thanks for your thoughts, Dan. I am sure they are heartfelt, but I hope you will forgive me in thinking that they are not particularly responsive to Kim’s posting. The school-wide project that she describes is not primarily focused on international law, and it certainly is not focused on the withdrawing from international custom issue — an issue that, as you indicate, has been heavily vetted recently. (Mitu Gulati and I are very pleased with the Duke symposium on this topic that you reference, and it sounds like you are pleased with it too, which is terrific.) If you have specific thoughts relating to the school-wide project, I would love to hear them. Please feel free to send these thoughts to me privately if you would be more comfortable doing so. I have received a number of offline suggestions from others relating to the project, and I really appreciate them.

Cheers,
Curt

[Matt Lister]

With large, multi-disciplinary events like this it takes a lot of effort to keep them focused enough to make them very interesting, as opposed to a real hodge-podge. Something I think might be useful as a model of what _not_ to do would be the Penn Humanities Forum. See here: http://www.phf.upenn.edu/

The Penn Humanities Forum is nominally based on a theme each year ("virtuality" this year) but heavy stress has to be put on "nominally". While the individual lectures are sometimes interesting, I think people would be hard pressed to say they came away with a better understanding of the supposed theme, even if they went to all of them- and most people won't, as it's just too diverse and disparate, and often loosely connected to theme, for most people to be interested in more than a few. So, I would recommend working hard to keep the participants "on topic", even working hard to keep the focus on "custom" tied into a range of ideas as much as possible. I think people will be more likely to learn something if that's done.

[Kim Krawiec]

Hi Matt - thanks for returning us to the original topic. This is a real concern. i'm sure that we've all been to symposia or conferences and wondered what was supposed to be the connection among all the papers. Want to avoid that, if possible. It will be a challenge to stay broad enough to capture interest, but not so broad that it looks like PHF. May pick your brain again further down the road.
Best,
Kim

[Alfred Brophy]

Is it a real concern that faculty may bring their diverse interests to a broad topic like custom and law? I'd think that might be the virtue of picking a broad topic. Seems to me that the Penn Humanities Forum is actually a nice way of engaging with a broad section of the community. I think a key problem is getting people to talk about their topics at a level that the rest of us can understand, not so much that you'll have a lot of people talking on their areas of expertise that touch the broad topic.

[Kim Krawiec]

Thanks, Al -- I think that one has to strike a balance, no? If the theme is no constraint at all, then it's hardly a year-long conversation that differs from what schools do every year. But too narrow, of course, and people won't engage.

[Dan Joyner]

I know my comment above has been artfuly, and with apparent magnanimity, dismissed by Curt as being irrelevant to the topic/question Kim proposed. But I did mean to respond to her question by identifying the likely motivation behind this project's genesis; a fact which might perhaps give some indication of the directions in which the work program might be led under its organizer's guidance.