Legal Fictions

Nancy J. Knauer, Temple University School of Law, has published Legal Fictions and Juristic Truth, in volume 22 of St. Thomas Law Review (2010). Here is the abstract.

The classic legal fiction is a curious artifice of legal reasoning. In a discipline primarily concerned with issues of fact and responsibility, the notion of a legal fiction should seem an anathema or, at the very least, an ill-suited means to promote a just result. However, the deployment of a patently false statement as a necessary component of a legal rule is a widely practiced and accepted mode of legal analysis. In rem forfeiture proceedings rest on the fiction that the inanimate object was bad. Attractive nuisance re-imagines the child trespasser as an invitee. A host of doctrines bearing the term "constructive" in their titles adopt an "as if" rationalization that deems something to have occurred despite the fact that it did not (e.g., constructive notice, constructive eviction, and constructive discharge).

Legal commentators writing in the diverse fields of law and literature, tax policy, and empirical legal studies have taken a renewed interest in legal fictions, including Fuller’s influential work from the 1930s. They have applied the label "legal fiction" to an eclectic group of legal rules, including slavery, the doctrine of discovery, the tax code, and empirically erroneous legal presumptions (i.e., discredited legal regimes, complex statutory schemes, and empirical legal errors). These newly identified legal fictions do not satisfy Fuller’s classic definition of a legal fiction because they are neither acknowledged to be false nor demonstrably false. The enduring conundrum presented by the classic legal fiction is that it retains its utility despite its falsity, similar to false statements used in science and mathematics in order to advance a proof or hypothesis.

Any discussion of fiction necessarily invokes a concept of reality against which the fiction can be measured. Thus, before we can speak intelligibly of fictions, we must first be able to identify truth. Does it make any sense to refer to slavery as a fiction when it was, in fact, a legal system that brutalized millions? Is the choice of a tax base "false" simply because it is statutorily prescribed? Certain legal rules, such as those governing eye witness testimony, explicitly incorporate statements of fact that are readily verifiable by reference to real world events. Slavery and the doctrine of discovery encompass abstract concepts, such as liberty, autonomy and sovereignty that are not provable in any conventional sense of the term. They stand as juristic truths independent from questions of empirical proof.

Fuller cautioned that a legal fiction becomes dangerous when it is believed for then the fiction can approximate a lie, but there is also danger when the force of its constitutive power is ignored. When this occurs, the label of fiction works a denial and removes from memory important lessons regarding the law and the fragility of the human experience

Download via the link.

The Significance of the Charles River Bridge Case

Alfred S. Konefsky, University at Buffalo Law School, SUNY, has published "Simon Greenleaf, Boston Elites and the Social Meaning and Construction of the Charles River Bridge Case," in Transformations in American Law: Essays in Honor of Morton J. Horowitz (sic), vol. II (Daniel Hamilton & Alfred Brophy, eds. Harvard University Press, forthcoming). Here is the abstract.

This essay examines the complexity of the social and cultural forces in antebellum Boston that led to the framing and resolution of the legal and constitutional issues in the Charles River Bridge Case. Though often viewed as a clash between models of economic development, the lines of conflict in the case in reality were first honed in pamphlet wars in the early Jacksonian turmoil of the 1820s focusing on other often overlooked contemporaneous Boston free bridge disputes and the birth of a free bridge political party. Boston elites were pejoratively termed “aristocrats” for their support of the Charles River Bridge franchise and accused of defending the creation of exclusive and monopolistic privilege and property through government grant, while proponents of a new competing - and ultimately free - bridge were castigated as “agrarians” and accused of forcibly taking property in order to equalize its distribution in the face of a state-sanctioned privilege. The driving force of the dispute, therefore, turned out to be the acute social anxiety and stress of Boston’s investors and commercial elites. No one better signifies the contours of the struggle than Simon Greenleaf, recently arrived in Cambridge as a law professor at Harvard. Greenleaf, as one of the lawyers for the competing Warren Bridge, stood in opposition to the established Charles River Bridge interests and was responsible for shaping the legal arguments that ultimately prevailed. For that sin, he was pilloried in the public press and ostracized in the community. Greenleaf’s unhappy experience then becomes a metaphor of sorts, allowing us to appreciate how understanding a social environment can assist us in cracking the code of legal arguments, particularly in this instance early Contract Clause and Takings jurisprudence. In the process of examining this historical episode, we might wish to consider under what conditions legal history might be entitled to call itself a form of social history and to speculate whether the critical question for legal historians interrogating these events is not whether law matters, but rather of what matter law is made.

Download the abstract from SSRN here.

Law, Text, Terror

Ian Ward, University of Newcastle upon Tyne, Faculty of Law, has published Law, Text, Terror, forthcoming from Cambridge University Press. Here is the abstract.

The relationship between law and terrorism has re-emerged recently as a pressing issue in contemporary jurisprudence. Terrorism appears to take law to its limit, whilst the demands of counter-terrorism hold the cause of justice in contempt. At this point the case for engaging alternative intellectual approaches and resources is compelling. Ian Ward argues that through a closer appreciation of the ethical and aesthetical dimensions of terror, as well as the historical, political and cultural, we can better comprehend modern expressions and experiences of terrorism. For this reason, alongside juristic responses to modern expressions of terrorism, Law, Text, Terror examines a variety of supplementary literary texts as well as alternative intellectual approaches; from the drama of Euripides and Shakespeare, to the rhetoric and poetry of Burke and Shelley, the literary feminisms of Lessing and Rame, and the narrative existentialism of Conrad, Coetzee, Dostoevsky and DeLillo.

An Economic Analysis of Immoral Contracts in Roman Law

Péter Cserne, Tilburg Law and Economics Center (TILEC), and Gergely Deli have published "Contracts and Morals: Towards an Economic Analysis of Immoral Contracts in Ancient Rome," as TILEC Discussion Paper 2009-037. Here is the abstract.

The way we nowadays think about “immoral” contracts is based on a number of assumptions. One of those assumptions concerns the relative isolation of law and extralegal standards. This view, however, is not new or even modern: to a large extent, it can be traced back to Roman law that has been both praised and condemned for this relative separation. In this paper we venture into the problematic of immoral transactions by combining historical, doctrinal and economic analysis. Focusing on cases and doctrines in ancient Roman law, our goal is to show how Roman lawyers found reasonable answers to issues which, in spite of obvious differences in economic and cultural context, can teach some lessons for modern contract law. After a brief preliminary on methodological problems of the economic analysis of legal history, we reconstruct the dynamics of how and why the term immorality (contra bones mores) became a general clause of Roman contract law in a relatively short time; discuss what kind of cases were solved with reference to this clause; and analyse how this clause shows the practical rationality of Roman lawyers. Finally we discuss some substantive and methodological insights this historical case can provide for the economic analysis of the interactions of law and morality.

Download the paper from SSRN here.

Conference on Religious Legal Theory

“Religious Legal Theory: The State of the Field”
Seton Hall University School of Law
Newark, New Jersey
Thursday-Friday, November 12-13, 2009
Seton Hall Law School will host Religious Legal Theory: The State of the Field, a conference to assess the state of the field of religiously-informed legal theory and its contributions.
Through presentations and in-depth discussions, presenters and participants will help consolidate the advances and chart new directions for religious perspectives on law and public policy. The conference will feature five plenary speakers, and twenty-four presentations of papers by legal scholars representing a wide range of religious traditions.
Visit http://law.shu.edu/religiouslegaltheory for the full program and registration information.
For more information, please contact Professor David Opderbeck at david.opderbeck@shu.edu or Professor Angela Carmella at angela.carmella@shu.edu.

Consentual Language

Janice Nadler, Northwestern University School of Law and American Bar Foundation, and J. D. Trout, Loyola University of Chicago, have published "The Language of Consent in Police Encounters," in Oxford Handbook of Linguistics and Law (L. Solan and P. Tiersma eds.; Oxford University Press, forthcoming). Here is the abstract.

In this chapter, we examine the nature of conversations in citizen-police encounters in which police seek to conduct a search based on the citizen’s consent. We argue that when police officers ask a person if they can search, citizens often feel enormous pressure to say yes. But judges routinely ignore these pressures, choosing instead to spotlight the politeness and restraint of the officers’ language and demeanor. Courts often analyze the language of police encounters as if the conversation has an obvious, context-free meaning. The pragmatic features of language influence behavior, but courts routinely ignore or deny this fact. Instead, current Fourth Amendment jurisprudence assumes that the authority of armed police officers simply vanishes when they pose their desire to search as a question. We discuss empirical evidence suggesting that people are afraid to decline police officer requests to search, and conclude by discussing the social and psychological cost of the widespread use of consent searches.

Download the chapter from SSRN here.

The Uses of Verbs

Who said the Civil War was fought over a verb: "The United States is" or "The United States are"?

Minor Myers, Brooklyn Law School, has published "Supreme Court Usage and the Making of an 'Is'," at 11 Green Bag 2d 457 (Summer 2008). Here is the abstract.

This survey examines use of the phrases “United States is” and “United States are” in opinions of the United States Supreme Court from 1790 to 1919. The familiar claim, popularized by Shelby Foote in the Ken Burns Civil War documentary, is that the Civil War marked a shift in usage from plural to singular. This survey demonstrates that in the Supreme Court this account of the timing of the change is not accurate. Although patterns of usage changed abruptly in the 1860s, justices continued to use the plural form through the end of the nineteenth century. Indeed, the plural usage was the predominant usage in the 1870s, 1880s, and 1890s. Only in the beginning of the twentieth century did the singular usage achieve preeminence and the plural usage disappear almost entirely.

Download the article from SSRN here.

O Dracula, Where Art Thou?

From MSNBC.com, why we are so fascinated with vampires. It's a thrill that's centuries old.

Word Imagery

Cristina Costantini creates "word clouds" out of her writings using a program called Wordle. See examples here and here. Very neat!

Oh, That Arnold!

From NPR, this story about a possible coded message from the Office of Governor Arnold Schwarzenegger to California State Assemblyman Tom Ammaino. Reporter Melissa Block asks an expert cryptographer for assistance.

The Use of Law and Literature

Katie Rose Guest Pryal, University of North Carolina, Chapel Hill, has published "Law, Literature, and Interdisciplinary Copia: A Response to Skeptics." Here is the abstract.

Recently, the law and literature (L&L) enterprise has been "reassessed" by a variety of scholars, whose opinions fall loosely into two camps. Some assert that L&L serves a necessary function in legal scholarship and education and should be preserved. Others, such as Jane B. Baron, see L&L as a flawed enterprise that is probably worth preserving, but not in its current incarnation, and not without recognizing its theoretical and practical limitations. In this essay I focus on the purposes and consequences of L&L for legal pedagogy. In order to discover the benefits of L&L, we must ask whether L&L is appropriate for legal education, and why. What I propose is that studying literary texts - fictional, dramatic, cinematic, or poetic works, of the high or low variety - in relation to and alongside of law, can benefit some of our students very much. Baron asserts that L&L discredits law as a field of study by claiming that we can only learn about human nature, compassion, empathy, or other humanistic quality crucial to competent lawyering or judging, by reading literature. This claim treats law "as a largely empty domain composed mainly of rules, a barren realm of technocratic doctrinal manipulation." Although Baron does not say so explicitly, she has expressed a pedagogical concern. The argument she critiques sets up an antagonistic dichotomy: it claims that we learn different and better things by studying literature than by studying law. Proponents of the dichotomy seek to prove that studying L&L is appropriate in legal education. I argue here that the best approach to L&L is an expansive and generous one, an approach that does not rely upon the denigration of law to prove the appropriateness of literature to legal studies. In discussing the benefits of L&L to legal pedagogy, I suggest that L&L, and indeed other interdisciplinary areas, are useful to and appropriate for legal pedagogy because they provide a variety of heuristics, or learning tools. These heuristics enable our various law students to find paths to legal knowledge that works best for them. This concept of multifarious methods derives from the rhetorical copia, as outlined in particular by Erasmus in the sixteenth century. In Part I, I build upon Baron's critiques of current trends in L&L as a framework to review the antagonistic dichotomy of L&L discourse that privileges literature on one hand and denigrates law and traditional legal studies on the other. In Part II, I reframe this dichotomy in a way that is constructive, returning value to traditional legal texts. In Part III, I use the theory of rhetorical copia to show that L&L is best thought of as one of many methods available to legal pedagogy, a strong supplement to traditional doctrinal and skills courses.

Download the paper from SSRN here.

The Language of Power in Racine

Eric Heinze, Queen Mary University of London School of Law, has published "'This Power Isn’t Power If It’s Shared': Law and Violence in Jean Racine’s 'La Thébaïde'" in volume 22 of Law & Literature (2010). Here is the abstract.

The Seventeenth century witnesses the steady demise of the fragmented or overlapping power regimes that had been rooted in the European Middle Ages. Centralised control increasingly structures emerging states. Jean Racine's La Thébaïde, recreating a chapter in the Oedipus myth, displays the Hobbesian drive for undivided sovereignty pushed to its logical conclusion: even two shareholders in power become one too many. Legal norms are constantly invoked to resolve a political and military power struggle, including discourses of absolute and shared sovereignty, separations of powers, popular consent, public welfare, national interest (raison d’état), natural law, and just war. Far from overcoming a brute power dynamic, however, those legal discourses show how the emerging modern state turns them into a tool of coercive power.

Download the abstract from SSRN here.

Missouri's Civil War

Frank O. Bowman III, University of Missouri School of Law, is publishing "Stories of Crimes, Trials and Appeals in Civil War Era Missouri," forthcoming in the Marquette Law Review. Here is the abstract.

This paper explores criminal appellate practice in Missouri from the time of statehood in 1821 until the 1870s, with particular focus on the decades before and after the Civil War. The article uses the stories of three trials in and around Columbia, Missouri - an attempted rape case against a slave that resulted in a lynching, a murder case against a white farmer that ended in his execution, and another murder case successfully appealed - to explore the legal culture of the period. All three trials involved two prominent central Missouri lawyers, James S. Rollins and Odon Guitar, who were also important political figures in Missouri’s Civil War. The article weaves together the trials, the biographies of Rollins and Guitar, and an exploration of contemporary rules and trial and appellate norms to explain the relative dearth of criminal appeals in mid-19th Century Missouri, and the factors that gradually produced an appellate system more like our own.

This paper was written for a symposium at Marquette Law School on criminal appeals, but it arises from a larger project examining the social, military, and legal history of central Missouri before, during, and after the Civil War.

Download the article from SSRN here.

The Law in Ancient Athens

Adriaan Lanni, Harvard Law School, has published "Social Norms in the Courts of Ancient Athens," at 1 Journal of Legal Analysis 691 (Summer 2009). Here is the abstract.

Ancient Athens was a remarkably peaceful and well-ordered society by both ancient and contemporary standards. Scholars typically attribute Athens’ success to internalized norms and purely informal enforcement mechanisms. This article argues that the formal Athenian court system played a vital role in maintaining order by enforcing informal norms. This peculiar approach to norm enforcement compensated for apparent weaknesses in the state system of coercion. It mitigated the effects of under-enforcement in a private prosecution system by encouraging litigants to uncover and punish their opponents’ past violations. Court enforcement of extra-statutory norms also permitted the Athenians to enforce a variety of social norms while maintaining the fictions of voluntary devotion to military and public service and of limited state interference in private conduct.

Download the article from SSRN here.

How Right (Or Wrong) Does Television Get It?

From MSNBC.com, two stories about how television reflects the real world; a piece on the progress women have made in breaking through the glass ceiling since the 1970s,and a story on those interesting older woman/younger man relationships. Along the way: do anti-discrimination laws help or hurt, or have no effect? Do women flooding into the workplace eventually have the effect of flooding into the boardroom, or not?

Madeleine Albright has some interesting things to say about the power of a woman's word, even if it's expressed symbolically. In her new book, Read My Pins: Stories From a Diplomat's Jewel Box (HarperCollins, 2009) the first female U.S. Secretary of State discusses how Saddam Hussein inspired her use of jeweled pins to make subtle pronouncements on behalf of the government. "It would never have happened if not for Saddam Hussein. When U.S. ambassador to the United Nations Madeleine Albright criticized the dictator, his poet in residence responded by calling her "an unparalleled serpent." Shortly thereafter, while preparing to meet with Iraqi officials, Albright pondered: What to wear? She decided to make a diplomatic statement by choosing a snake pin. Although her method of communication was new, her message was as old as the American Revolution—Don't Tread on Me." (From the B&N website). The pins are part of a special exhibit at the Museum of Arts & Design in New York, and then will travel to several cities in the country including Little Rock and Indianapolis.

The History of Branding and Trade Mark Law in the UK

John Mercer is publishing "A Mark of Distinction: Branding and Trade Mark Law in the UK from the 1860s," in Business History (forthcoming). Here is the abstract.

The development of branding is a neglected theme in business history. This article examines the emergence on a large scale of the unique product brand name - distinct from a company name or product descriptor - in the UK in the latter nineteenth century. It looks at the interaction of branding strategies and UK trade mark law, which is shown to have accorded property rights in word-based marks only gradually and shaped the development of branding in the UK. Trademark application data from the 1870s to the 1920s is cited to illustrate the widespread take-up of the brand name in the UK from the 1880s, and to consider its use by different types of consumer goods firms. The article then analyses the effects of such branding into the twentieth century, including its contribution to competitive advantage, the introduction of brand architecture, and the problem of brand genericisation. It is argued that the adoption of the brand name marked a major shift in brands, from descriptions of origin to objects of artifice.

Download the article from SSRN here.

The History of Criminal Prosecutions

Barry Godfrey, Keele University Department of Criminology, has published "Changing Prosecution Practices and Their Impact on Crime Figures, 1857-1940," at 48 British Journal of Criminology 171 (2008). Here is the abstract.

This article examines the changes in prosecution practices and policies that shaped crime trends between the mid-nineteenth and the mid-twentieth centuries. It concentrates on two processes which took place over this period: the disappearance of the victim as an active participant in the prosecution process; and the increasing dominance of both public and privatized agencies over the prosecution process. Victims were active participants in the prosecution process until the end of the nineteenth century. If it were not for the persistence of complainants in securing the offender and pressing their cases in court, rates of recorded crime would be much lower. However, by 1880, the police had in many cases assumed the role of prosecutor. The first part of this article questions how this change affected recorded rates of violent crime. The second part of the article explores the rise of private prosecutors of regulatory style offences (which constituted over half the business of local magistrates courts from 1880 to 1940). It concludes that from 1880, crime rates were increasingly subject to the policies and practices of the police and other appointed officials, and that the role of the victim as active prosecutor had become almost redundant by the First World War.

Call For Papers

This inter-disciplinary conference seeks to examine issues surrounding the conjunction between evil and the feminine. In many cultures women have been long suspected as the source of sundry human miseries, however basic to society they may be. At the same time as ideals of purity and dedication to family have been exalted and feminine beauty lauded, women have been viewed as embodying sinister forces of evil. Mistrusted as seductive and beguiling, women are also often thought of as vengeful, manipulative and even malevolent. In grappling with our understanding of what it is to be ‘evil’, the project aims to shine a spotlight on this dark area of the human condition and explore the possible sources of the fear and resentment of women.


Papers, reports, work-in-progress and workshops are invited on issues related to the following themes:

~ Evil Women and Feminine Evil
~ Representing and Misrepresenting the Female
~ Motherhood; Monstrous Motherhood
~ Monstrous Births and Infanticide
~ Matriarchy / Matricide
~ Devious Sexuality and Feminine Perversions
~ Women and the Abject
~ Menstruation, Castration
~ Fears and Myths: Feminine Blood
~ Anthropological Perspectives
~ Historical Perspectives
~ The Evil Woman in Literature
~ Psychoanalytic perspectives: “Vagina Dentata” etc
~ Sexualizing the Female or Evil Objectification
~ Jezebel, Delilah, Lilith, Harpies and the Femme Fatale
~ The Bitch
~ Women and Power
~ Beauty as threatening or evil
~ Portrayals of Evil Women
~ Fantasy
~ Mythology
~ Vampires, Witches and Sirens
~ Case Studies

The Steering Group particularly welcomes the submission of pre-formed panel proposals. Papers will also be considered on any related theme. 300 word abstracts should be submitted by Friday 27th November 2009. If an abstract is accepted for the conference, a full draft paper should be submitted by Friday 12th March 2009.

300 word abstracts should be submitted simultaneously to both Organising Chairs; abstracts may be in Word, WordPerfect, or RTF formats with the following information and in this order:

a) author(s), b) affiliation, c) email address, d) title of abstract, e) body of abstract.

Please use plain text (Times Roman 12) and abstain from using footnotes and any special formatting, characters or emphasis (such as bold, italics or underline). We acknowledge receipt and answer to all paper proposals submitted. If you do not receive a reply from us in a week you should assume we did not receive your proposal; it might be lost in cyberspace! We suggest, then, to look for an alternative electronic route or resend.

Organising Chairs:

■Sorcha Ni Fhlainn
Hub Leader, Project Co-Leader, School of English, Trinity College, Dublin, Ireland
■Stephen Morris
Hub Leader, Independent Scholar, New York USA
■Rob Fisher
Network Founder and Leader,Inter-Disciplinary.Net,Freeland, Oxfordshire, United Kingdom
The conference is part of the At the Interface programme of research projects. It aims to bring together people from different areas and interests to share ideas and explore various discussions which are innovative and exciting. All papers accepted for and presented at the conference will be eligible for publication in an ISBN eBook. Selected papers may be developed for publication in a themed hard copy volume(s).

Style Sheets
In preparing your papers, please pay strict attention to the following style sheets

■Download Oxford Style Sheet – v7 (pdf) ■Download Oxford Reference Style Sheet 2 (pdf) ■Download Template document (Word)

See the website here.

Call For Papers: Comparative Law Workshop

CALL FOR PAPERS

FIFTH ANNUAL COMPARATIVE LAW WORKS IN PROGRESS WORKSHOP

May 20-22, 2010
The University of Illinois College of Law

Sponsored by:
American Society of Comparative Law
University of Illinois College of Law
Princeton University
Program for Law and Public Affairs


Jacqueline Ross (University of Illinois College of Law),
Kim Lane Scheppele (Princeton University, Program for Law
and Public Affairs), and James Q. Whitman (Yale Law School)
are calling for paper submissions for the Fifth Annual
Comparative Law Works in Progress Workshop which will take
place at The University of Illinois College of Law from May
20-22, 2010. (The arrival date would be May 20.) This
workshop will co-sponsored by the American Society of
Comparative Law.

Having been called away by many of his other
responsibilities, including his editorship of the American
Journal of Comparative Law, Mathias Reimann regrets that he
will not be able to continue his role as co-organizer of
this workshop. We will miss his lively and incisive
contributions. We are very happy to announce, however, that
as of this year, we will be joined as co-organizers by
James Q. Whitman, Ford Foundation Professor of Comparative
and Foreign Law at Yale Law School. The annual workshop
will now rotate between Princeton University, the
University of Illinois College of Law, and Yale Law School.


ABOUT THE WORKSHOP:

There is no regular opportunity for comparative law
scholars in the United States to meet and discuss their
work in any depth. The scholarly programs of the meetings
of the American Society of Comparative Law are chosen and
organized by the respective host schools and aim at the
presentation of finished papers on a given topic. While
there is some opportunity to present work in progress,
there is little opportunity for sustained discussion. The
meetings of the Comparative Law Section at the AALS
Conference each January are also dedicated to a specific
topic and usually exhaust themselves in the presentation of
papers with little substantive discussion. There is thus a
need for a forum in which comparative law work in progress
can be explored among colleagues in a serious and thorough
manner that will be truly helpful to the respective
authors.

The Annual Comparative Law Works-in-Progress Workshop is
intended to fill that need. It will involve up to six
papers during a two-day period. If more than six papers are
submitted for discussion, the organizers will jointly
decide which ones to accept, giving preference to younger
scholars.

The participants will consist of the respective authors,
one commentator on each paper, faculty members of the host
institution, particularly those with expertise in
comparative law and research, and others interested in
attending. The overall group will be kept small enough to
sit around a large table and to allow serious discussion
(20 people maximum). The papers will not be presented at
the workshop. They will be distributed two weeks in advance
and every participant must have read them before attending
the meeting. The commentator will present a 10 to 15 minute
introduction and critique, leaving at least one hour for
discussion. There are no plans to publish the papers.
Instead, it is up to the authors to seek publication if,
and wherever, they wish.

The Fifth Annual Comparative Law Workshop will take place
on May 20-22, 2010 at the University of Illinois College of
Law. The Workshop will be funded by the host school and by
the American Society of Comparative Law (ASCL). Authors of
papers and commentators from ASCL member schools will be
reimbursed for their travel expenses and accommodation up
to $600.00, in accordance with the ASCL reimbursement
policy (as posted on its webpage), though only up to six
authors and commentators will be reimbursed by the ASCL.
(The University of Illinois College of Law will reimburse
the remainder.) The ASCL's policy provides that
reimbursement is available only if the applicant cannot
obtain reimbursement from his or her home school.


PAPER SUBMISSION PROCEDURE:

Interested authors should submit papers electronically to:

CONTACT: Jacqueline Ross
Email: MAILTO:jeross1@illinois.edu

by March 1, 2010.

We will inform them of our decision by early April, 2010.
"Work in progress" means scholarship that has reached a
stage at which it is substantial enough to merit serious
discussion and critique but that has not yet appeared in
print (although it may have been accepted for publication.
It includes law review articles, book chapters or outlines,
substantial book reviews, and other appropriate genres.

Our objective is not only to provide an opportunity for the
discussion of scholarly work but also to create an
opportunity for comparative lawyers to get together for two
days devoted to nothing but talking shop, both in the
sessions and outside. We hope that this will create synergy
that fosters more dialogue, cooperation, and an increased
sense of coherence in a discipline badly in need of it.

Jacqueline Ross Kim Lane Scheppele James Q. Whitman

The CSI Effect

Diane Auer Jones discusses her recent experience on a jury and notes that "CSI"-like tv shows have much more impact on jurors' reasoning than the judge's instructions. What's going on?

On this issue see also

Cole, Simon A., and Dioso-Villa, Rachel, CSI and its Effects: Media, Juries, and the Burden of Proof, 41 New England Law Review --(2007)

Mann, Michael D., The "CSI Effect": Better Jurors Through Television and Science?

Podlas, Kimberlianne, "The CSI Effect": Exposing the Media Myth
16 Fordham Intell. Prop. Media & Ent. L.J. 429 (Winter, 2006)

Schweitzer, N.J., and Michael J. Saks, The CSI Effect: Popular Fiction About Forensic Science Affects Public Expectations About Real Forensic Science, 47 Jurimetrics 357 (Spring 2007)

Shelton, Donald E., Young S. Kim, and Gregg Barak, A Study of Juror Expectations and Demands Concerning Scientific Evidence: Does the 'CSI Effect' Exist? 9 Vanderbilt J. Ent. & Tech. L. 330 (2006).

Interracial Relationships

Jason Gillmer, Texas Wesleyan University School of Law, has published "Telling Stories of Love, Sex, and Race." Here is the abstract.

The history of interracial sex is often told from the perspective of either legislatures or lynch mobs. The approach has a certain appeal; it allows us to track the ideological currents of the dominant society, as they ebb and flow from passive acceptance of the practice to outright hostility. But the approach also minimizes the role of the participants, routinely casting them as unimportant players in the overall history of sex and race in this country. In this book chapter, I look at the subject of interracial intimacy from the perspective of the people involved: one story involves a white man and black woman from slavery times, and the other involves a black man and white woman from the turn of the century. The purpose is to add some depth and detail to our understanding of some of these relationships, in the process upending some of our basic assumptions about what they might have been like. Indeed, by shining a light on individual cases, we begin to appreciate both the contradictions and complexities of interracial unions, breathing life into a portion of history too often left untold.

Download the paper from SSRN here.

Women and Wall Street

Christine Sgarlata Chung, Albany Law School, has published "From Lily Bart to the Boom Boom Room: How Wall Street's Social and Cultural Response to Women Has Shaped Securities Regulation." Here is the abstract.

In Edith Wharton’s 1905 novel House of Mirth, Lily Bart learns in one brutal moment what happens to women who get tangled up with the stock market. Though she is beautiful and well-born, Lily is vulnerable when she seeks salvation in the stock market - she has no family to support her, no fortune of her own, no training in business matters, and no socially acceptable means of acquiring money, save marriage. When the husband of a friend (Gus Treanor) offers to help Lily by speculating in the stock market, Lily agrees. And when Treanor begins presenting Lily with money, she gladly accepts what she assumes are trading profits. One night, however, after luring Lily to his house under false pretenses, Treanor makes his true intentions known. After accusing Lily of leading him on, Treanor demands sexual favors, telling Lily that she must "pay up". Even though Lily manages to extricate herself from the house without submitting to Treanor’s demands, she is ruined by this encounter. Cast off by her social circle, Lily eventually leaves her last pennies to Treanor, takes an overdose of sleeping medication and dies alone in a boarding house room.

One hundred years later, when senior Morgan Stanley executive Zoe Cruz sought her fortune in the stock market, she appeared to have none of Lily Bart’s limitations. Ms. Cruz was a long-time Wall Street warrior. She began working on Wall Street in 1982 after graduating from Harvard College and Harvard Business School. After proving herself on the trading desk, she spent more than twenty years working her way up through management, eventually earning millions of dollars per year in compensation, and billions in profits for her employer. By 2007, she was the heir apparent for the CEO job. Just months after praising Ms. Cruz's market insights and her contributions to the Morgan Stanley’s bottom line, however, Ms. Cruz's boss called her to his office. With the subprime mortgage crisis unfolding, losses mounting and his own job under pressure, Ms. Cruz's boss said that he had "lost confidence" in her and asked her to resign. After a ten minute meeting, Ms. Cruz left the building and never went back. In the wake of termination, some former colleagues questioned whether the woman they had nicknamed "the Cruz Missile" had ever understood the markets, trading or how to manage financial risk.

In this article, I argue that even though Lily Bart’s fictional ruin and Ms. Cruz's rise and fall are separated by more one hundred years, "stories" like theirs are typical, and reflect Wall Street’s fixed and surprisingly narrow social and cultural response to women who wish to trade securities or work in the financial industry. In Wall Street lore, the "masters of the universe" are almost invariably men - they are the high-flying traders, the crusading regulators and even the notorious scoundrels though to have shaped the markets and our system of securities regulation. Women, by contrast, are portrayed as social and cultural outsiders to the Wall Street world. Drawing upon industry narratives, articles from the popular press and selected academic commentary from the past one hundred years, I show how women are either omitted from Wall Street narratives entirely, as if they are (and should remain) absent from securities markets, or relegated to the status of hapless victims or allegedly incompetent shrews. In either case, Wall Street's prevailing narrative assumes that women lack the skills and characteristics necessary to navigate on Wall Street, and risk financial and reputational ruin if foolish enough to venture into the markets alone.

I further argue that Wall Street’s social and cultural response to women has become embedded in our system of securities regulation. Drawing upon selected case law, legislative history and administrative agency reports from the 1920s to the present, I show how reform-minded legislators, courts and regulators have used stories of vulnerable female victims of investment abuse - particularly "poor widows" - when seeking to curb abusive sales practices on Wall Street. Drawing upon employment discrimination cases, I show how Wall Street firms have used the same stereotypes about women to justify excluding women from employment on Wall Street and to rebut discrimination, harassment and retaliation claims.

Finally, having exposed links between Wall Street's social and cultural response to women and our regime of securities regulation, I argue that Wall Street’s singular narrative for women has come at a cost, and one that we have yet fully to explore. Securities regulation purports to be a gender-neutral exercise. It uses supposedly gender-neutral standards like "reasonable", "sophisticated" and "unsophisticated", and it assigns rights and obligations based on purportedly gender-neutral roles like "trader" "broker" and "customer". In reality, however, relevant standards and systems reflect unstated gender norms about who is sophisticated and skilled when it comes to the markets, and who is not. And because the law, with its tendency to use labels and stereotypes, has seized upon Wall Street’s image of women as incompetent outsiders, it has reinforced and in some cases legitimized Wall Street’s gender norms. As a result, instead of examining the skills and characteristics of individual market participants, we assume that some people are competent merely because they "look the part" (say, Bernard Madoff) and we are skeptical of those who do not. We presume that some people are vulnerable and in need of protection (poor widows), but we are skeptical when people who do not fit this stereotype allege investment abuse. And, we assume that norms and systems impact all system participants equally, when in reality, they may reflect the experiences and perspectives of one or more dominant groups.

This paper examines links between Wall Street's prevailing image of women and case law, legislative and regulatory activity as a first step in understanding how Wall Street's gender norms have affected securities regulation. Going forward, this paper urges scholars to ask hard questions about the unexamined underpinnings of our system of securities regulation (including but not limited to unexamined gender stereotypes), so that our regulatory regime might be as effective and efficient as our times demand.

Download the paper from SSRN here.

Call For Papers

Georgetown University Law Center, Columbia Law School, University of Southern California Center for Law, History & Culture, and UCLA School of Law invite submissions for the eighth meeting of the Law & Humanities Junior Scholar Workshop to be held at USC Gould School of Law in Los Angeles on June 4 & 5, 2010.

PAPER COMPETITION:
The paper competition is open to untenured professors, advanced graduate students and post-doctoral scholars in law and the humanities; in addition to drawing from numerous humanistic fields, and welcomes critical, qualitative work in the social sciences. Between five and ten papers will be chosen, based on anonymous evaluation by an interdisciplinary selection committee, for presentation at the June Workshop. At the Workshop, two senior scholars will comment on each paper. Commentators and other Workshop participants will be asked to focus specifically on the strengths and weaknesses of the selected scholarly projects, with respect to subject and methodology. Moreover, the selected papers will then serve as the basis for a larger conversation among all the participants about the evolving standards by which we judge excellence and creativity in interdisciplinary scholarship, as well as about the nature of interdisciplinarity itself.

Papers should be works-in-progress between 10,000 and 15,000 words in length (including footnotes/endnotes), and must include an abstract of no more than 200 words. A dissertation chapter may be submitted but we strongly suggest that it be edited so that it stands alone as a piece of work with its own integrity. A paper that has been submitted for publication is eligible so long as it will not be in galley proofs or in print at the time of the Workshop. The selected papers will appear in a special issue of the Legal Scholarship Network; there is no other publication commitment. The Workshop will pay the travel expenses of authors whose papers are selected for presentation.

Submissions (in either Word or Wordperfect, no pdf files) will be accepted until January 8, 2010, and should be sent by e-mail to:

Center for the Study of Law and Culture
culture@law.columbia.edu

Columbia Law School
435 W. 116th Street
New York, N.Y. 10027

Please be sure to include your contact information. For more information: Tanisha Madrid, 212.854.0692 or culture@law.columbia.edu. The full text of the Call for Papers is available at: http://www.law.columbia.edu/center_program/law_culture/lh_workshop.

Storytelling Across the Curriculum

Carolyn Grose, William Mitchell College of Law, has published "Storytelling Across the Curriculum: From Margin to Center, from Clinic to the Classroom," as NYLS Clinical Research Institute Paper No. 09/10 #3. Here is the abstract.

Narrative theory and storytelling have emerged as threads in legal scholarship steadily over the past 20 years. Beginning in the late ‘80s and early ‘90s, the 'Legal Storytelling' movement sought to acknowledge and include the voices of 'outsiders' in legal scholarship and dialogue. More recently, the 'Applied Legal Storytelling' movement has emerged as scholars encourage each other to use storytelling to enhance their understanding of particular skills lawyers practice, and how to improve those skills. Scholars in the 'Law and Literature' movement explore the uses of literature to help lawyers stay connected to their imaginations, to their creativity, and to their humanity. Each of these scholarly movements has led to, or grown out of, professors’ experiments with using particular kinds of narrative theory and storytelling as part of their pedagogy.

In clinical teaching and scholarship, storytelling has always assumed pride of place for all of these reasons: to help students hear and incorporate the voices of 'outsiders' as they engage in and practice various lawyering skills, and to challenge them to think creatively and compassionately about their case strategy and practice. Lucie White’s 'Sunday Shoes' piece and Binny Miller’s 'Give Them Back Their Lives' are just two examples of narrative theory and storytelling practice that many clinical teachers use either explicitly or behind the scenes in their supervision or seminar teaching.

I believe narrative theory and storytelling can be used even more fundamentally, cutting across types of courses and types of lawyering. I teach skills, doctrinal and clinical courses, and I use narrative theory and storytelling in all three, all with the same goal: to help students recognize that as lawyers, they are not only hearers and tellers of stories, but also, and perhaps most important, constructors of stories. And that, simply put, is what I mean by narrative theory. The practice of storytelling is the craft of constructing stories, based on choices made with intention and reflection by the lawyer and her client. A pedagogy that relies on this theory and practice leads students to realize that The Law itself is a set of stories that have been adopted by decisionmakers, and that those stories have been constructed by none other than lawyers, just like themselves.

My particular pedagogy relies on an exploration of both narrative theory and the practice of storytelling. Most, if not all, of my classes - regardless of their official content - involve discussions about what stories are and what makes them 'good' (persuasive, compelling), both substantively (the 'what' of the story) and technically (the 'how' of the story). That’s the narrative theory. In addition, my students spend a lot of time constructing and deconstructing stories, focusing on their elements - both the 'what' and the 'how' - and on the choices that resulted in the story’s substance and structure. That’s the storytelling practice.

In this piece, I develop the idea of using storytelling across the curriculum to teach students this kind of critical thinking and reflection about their role as lawyers. In Part One, I describe the importance of storytelling and stories in the craft of lawyering. Part Two reviews briefly how clinical and non-clinical teachers use storytelling in their teaching. The bulk of the piece - Part Three - is a description and analysis of my own teaching and how it achieves the goal of developing students’ critical thinking skills and reflective practice. I provide concrete examples of my teaching, as well as critique and analysis based on narrative and lawyering theory scholarship.

The piece concludes with the suggestion that narrative theory and storytelling as a pedagogy used systematically across individual courses and the curriculum has the potential to transform a student’s experience of law school, resulting in her development as an empowered, reflective, and socially responsible member of the legal profession, regardless of the kind of law she practices or the kinds of clients she represents.

Download the paper from SSRN here.

Brain Science, Learning, and Narrative

Lea B. Vaughn, University of Washington School of Law, has published "Feeling at Home: Learning, Law & Narrative." Here is the abstract.

Brain science, simplified here, suggests that the first task is to “grab” someone’s attention because “better attention always equals better learning.” (Medina 74) One of the features of stories that captures attention better than cases is their emotional content. Emotionally charged events are more likely to capture our attention and to be remembered. A beneficial consequence of the emotional fixation is that it focuses attention on the context and meaning. Studies suggest that this context is the platform that allows later and successive integration of the details. Thus, stories “work” because they focus attention and provide a context for learning the “details,” i.e., the law. Moreover, the same principles that apply to the success of this strategy in the classroom can also bear fruit in the courtroom and in litigation documents.

This paper is designed to complement Prof. O’Neill’s (Univ. of Washington SOL) paper on the use of print media stories about the recent financial crisis to teach contracts. The focus of my paper will be to consider theories and accounts from cognitive as well as evolutionary psychology, neuroscience, and cultural anthropology in order to explain why the use of stories is such an effective teaching and presentation strategy.

Download the paper from SSRN here.

The Order of "Law & Order"

Law & Order's Rene Balcer discusses how those "ripped from the headlines" stories make it to the small screen. An NPR interview here.

Hollywood, Women's and Children's Rights, and the News

FindLaw's Marci Hamilton discusses the popular culture image of polygamy in Big Love and the reaction to the news of the arrest of director Roman Polanski here, arguing that some media can sometimes present a very particularized interpretation of child abuse and women's rights. Interesting views, interesting reading.

Documentary Films and Criminal Justice

Taunya Lovell Banks, University of Maryland School of Law, has published "What Documentary Films Teach Us About the Criminal Justice System - Introduction," in volume 8 of University of Maryland Journal of Race, Religion, Gender & Class (2009). Here is the abstract.

Film has been used effectively to shape public perceptions about the criminal justice system, [and] the documentary form has power to convict or release a defendant, as well as to disclose the positive and negative aspects of the criminal justice system. Three articles on this subject appear in this issue of the 'University of Maryland Law Journal of Race, Religion, Gender and Class' and add to this body of scholarship. Our goal was to foster a series of dialogues among and between a number of individuals.

Download the paper from SSRN here.

The Impact of Civil Law On Common Law

Vivian Grosswald Curren, University of Pittsburgh School of Law, has published "Voices Saved from Vanishing," at 70 University of Pittsburgh School of Law 435 (2009). Here is the abstract.

Jurists Uprooted: German-speaking Émigré Lawyers in Twentieth-century Britain examines the lives of eighteen émigré lawyers and legal scholars who made their way to the United Kingdom, almost all to escape Nazism, and analyzes their impact on the development of English law.

Download the article from SSRN here.

The Third Man

Shulamit Almog and Amnon Reichman, University of Haifa Faculty of Law, have published "Ethics, Aesthetics, and Law: The Third Man’s Three Prongs," at 46 Studies in Law, Politics, and Society 169-201 (2008). Here is the abstract.

The chapter explores the role of law in society and its relation to ethical conflicts as reflected through the prism of the film The Third Man. By focusing on the complexities of life in post-war Vienna, the film exposes dilemmas that prevail in ordinary times and in functioning democracies as well. Our analysis suggests that one way to manage these dilemmas and balance the conflicting loyalties and interests they raise is to sustain open channels between the law and other narrative-generating practices from which normative stances are evaluated. The law-and-cinema discourse is one such channel and The Third Man presents, in our eyes, the vitality of that channel, due to its rich aesthetical language and its unique representation of the ethical tensions (and their consequences) in the modern era. 'War and its aftermath crush all individuals, however clever they may be.' – Sinclair (1988, p.1)

Download the essay from SSRN here.

Marriage In Fine Art

Benjamin A. Templin, Thomas Jefferson School of Law, has published "The Marriage Contract in Fine Art," in volume 30 of the Northern Illinois University Law Review (2009). Here is the abstract.

This paper studies the depiction of the marriage contract in Dutch, French and English genre paintings from the 14th to 18th centuries. Increasingly, scholars have recognized that visual imagery influences the development of legal norms and institutions. During the period studied several genre artists produced paintings that dealt with themes that were central to the issues surrounding the marriage laws, such as the rights of women or whether marriage is a sacrament or a contract. Interestingly, many of the themes depicted in the collective body of marriage contract art echoes and amplifies the issues surrounding the rights of women and the scope of the marriage contract in the writings of John Locke and Jean-Jacques Rousseau. Although it is impossible to measure the impact this collective body of work had on changing the law, the artistic and legal themes expressed in these paintings illustrates the “pre-formative” role of art in terms of signaling where change may occur in our legal norms and institutions. This analysis of the depiction of the formation of the marriage contract may also be of some interest to family law scholars given the renewed interest in the historical foundation of marriage law as a result of the debate over same-sex marriage. The analysis of visual representation of the marriage contract yields another data point for marriage scholars researching the history and origin of society’s conception of marriage as either a contract or a sacrament.

Download the paper from SSRN here.

The Rhetoric of Property Law

Johanna Gibson, Queen Mary University of London School of Law, has published "The Lay of the Land: The Geography of Traditional Cultural Expression," in Intellectual Property and Traditional Cultural Expressions in a Digital Environment 182-201 (C. B. Graber & M. Murr-Nenova eds.; Cheltenham: Edward Elgar, 2008). Here is the abstract.

This paper examines the nature of land or territory as a linking concern in the discussion of intellectual property, traditional knowledge and the digital environment. Fundamentally, intellectual property models are circumscribed by the legal, economic and philosophical western traditions of land and land ownership and the translation of traditional knowledge within intellectual property frameworks imposes a similarly competitive, rivalrous and crowdable imperative upon that subject matter. In mapping traditional knowledge through intellectual property, traditional relationships to land (through the rendering of the knowledge embedded in that land) are similarly translated into competitive western systems, and indeed traditional and indigenous communities have been subjected to the same rationalisation, whereby authenticity is realised and "proven" externally through attachment to the land in what often derives from a colonial construction of Indigenous and traditional interests. This construction is vested in the continuity of connection to place and geographic community which ultimately betrays a self-conscious western construction of cultural resources and knowledge. That is, such knowledge and the relationship to that knowledge is understood only within the context of the institution of western legal paradigms and the legitimated justice of individual property interests. Notably, when it comes to the digital environment, industries based upon intellectual property struggle to chart and define territory by transforming knowledge into “land” as it were. Much has been said about the relationship between intellectual property and personal property, but what is of particular interest to this paper is the way in which an idea is reterritorialised by intellectual property models so that land ownership (at least in a conceptual sense) becomes intriguingly relevant. In examining the role or interference of intellectual property in traditional knowledge protection and indeed interpretation, this paper examines the former not through the expression of ideas as chattels but rather through the way in which ideas and information relate to territories; that is, the relationship between intellectual property frameworks and, not goods (as personal property), but land (as real property).

Download the essay from SSRN here.

Student Law and Film Societies in the U.S.

For a listserv (the LAWPROF list) I put together some information on Law and Film Societies (not student orgs devoted to entertainment/sports/media law and career opportunities) at U.S. law schools. I'm reproducing it here.

These societies have as their sole or added mission to show and discuss movies. I’ve also included some initiatives undertaken at some schools to increase interest in and awareness of law and film. This list doesn’t include law and film courses (too many to list), festivals, or symposia although some respondents reported on those and they are extremely interesting. A lot of those are listed here as I hear about them.

The Columbia Law School Film Society. This club has a website at http://www.columbia.edu/cu/newmedia/film/film.htm but does not seem to have been updated in years, which suggests it is defunct. If someone at Columbia (or elsewhere) can verify that it is funct, please let me know. However, at least one other group has shown a movie (A Class Apart) recently: The American Constitution Society (http://www.acslaw.org/node/8445).

Harvard has a law and film series associated with the Program on Negotiation (see http://www.pon.harvard.edu/category/events/pon-film-series/?cid=72). Jennifer Schulz, now at the University of Manitoba, led the discussion on the film Chocolat (refreshments included chocolate).

Seton Hall University School of Law’s Marc Poirier reports that there was a school-wide group, active for years, that seems to have ceased this year, possibly because of overscheduling; students have such a wide variety of activities to choose from now. In addition the Lambda Legal Alliance (for which he is faculty advisor) decided this year to do a film series, with three each semester, accompanied by introductory talks and/or discussion, but he is unsure at this point whether it will take off. He also reports that some student groups are trying to organize film series.

John Radsan at the William Mitchell Law School also ran a “spy/crime” film series showing such films as “Goodfellas,” “In the Name of the Father,” and “Syriana.” Professor Radsan also moderated an event called A Strange Bond: The CIA and the Cinema which appeared on public television in Minnesota. Included on the panel were Mark Bowden (author of Black Hawk Down) and John Rizzo (the then Acting General Counsel of the CIA). To welcome new students to Wisconsin Law this summer, the school also sent them all a copy of the novel, The Spy Who Came in From the Cold, and later held an event in the auditorium to discuss the book and to play the movie on the school’s big screen.

Villanova Law School is starting up a student law and film organization this fall. Currently it is co-partnering with the Tax Law Society, which will provide refreshments for both groups. It will show its first film on September 29th.

The University of Chicago Law School Film Fest at http://www.law.uchicago.edu/studentorgs/filmfest. Law School Film Fest is listed as a student organization. The festival is currently held annually. According to an email from a former head of the organization:

We hold several movie screenings throughout the year. Each screening is hosted by a professor, and we usually allow him or her to pick the film. The movies are sometimes law-related and sometimes just movies the professor enjoys. We order food for the students and the professor gives a brief introduction to the film followed by a discussion of the film afterward. We typically schedule events for the late afternoon, around 4 o'clock.

Last year, we experimented with holding an actual "film festival" in addition to the periodic film screenings, and it was a great success. We lined up four professors to have screenings for four consecutive days and we planned to have a movie-themed wine mess (a weekly get-together for students and professors at our school) at the end of the week, although that fell through. We usually either rent the movies or check them out from the law school library.

I think there are probably more law and film clubs/groups/societies out there. If so, and I hear of them, I will send out an updated list later on, and post an updated list here.

The Masons (Collectively, Not Perry)

And on the Freemasons, suddenly hip, with the publication of Dan Brown's The Lost Symbol.

James Ellroy Discusses American History and Crime Writing

From NPR's Morning Edition, an interview with crime writer James Ellroy, who discusses his newest novel, Blood's a Rover.

Function, Form, and the Criminal Law

Martha Grace Duncan, Emory University School of Law, has published "Beauty in the Dark of Night; The Pleasures of Form in Criminal Law," in volume 59 of the Emory Law Journal (2010). Here is the abstract.

After learning that the man she loves is the son of her 'great enemy,' Juliet goes to her window and speaks: What’s Montague? It is nor hand, nor foot, Nor arm, nor face, nor any other part Belonging to a man. O, be some other name! Unaware that Romeo is listening from the Capulets’ garden below, she continues her now-famous reflections: What’s in a name? That which we call a rose by any other word would smell as sweet. Like Juliet, numerous criminal law scholars have assumed that names are merely arbitrary symbols, capable of being changed with impunity to avoid unwanted connotations. According to these critics, the mellifluous names and definitions of criminal law are 'amorphous,' 'broad,' even meaningless. The defining characteristic of murder, malice aforethought, is said to be 'inscrutable on its face' and 'a term of art, if not a term of deception.' The premeditation-deliberation formula is criticized as a 'mystifying cloud of words.' And the various definitions of Depraved Heart Murder are dismissed as 'notoriously unhelpful,' 'a collection of colorful verbiage' that 'tend[s] to carry more flavor than meaning.' Disdaining criminal law’s figurative language, with its inevitable ambiguity, legal scholars have urged replacing the traditional terms with words whose meaning is precise and consistent. In a concrete manifestation of this ambition, the American Law Institute sponsored the creation of the Model Penal Code, which has been adopted in part by roughly half the states. The explicit purpose of the Code is to 'dispel the obscurity of the Common Law.' In contrast to these critics, Professor Duncan’s article seeks to show that the Common Law language of Criminal Law is valuable for its meaning, its beauty, and its rich historical resonance. Rather than being a failed attempt at precise language, the Common Law terms are, she proposes, a different kind of language altogether. It is what philosopher Philip Wheelwright calls expressive or depth language, whose ambiguity stems not from sloppiness but from an effort to unite diverse associations and thereby invent new meanings.

Download the article from SSRN here.

The Effects of Advertising

Mark Bartholomew, University at Buffalo Law School, has published "Advertising and Social Identity." Here is the abstract.

This essay takes a stand in the brewing legal academic debate over the consequences of advertising. On one side are the semiotic democratists, scholars who bemoan the ability of advertisers to take control of the meanings that they create through trademark law and other pro-business legal rules. On the other side are those who are more sanguine about the ability of consumers to rework advertising messages and point to several safety valves for free expression existing in the current advertising regulation regime. My take on this debate is that the participants have failed to address the impact of advertising on personal development. Particularly important to this discussion is the recent trend of using targeted niche marketing to appeal to particular social groups. Using social identity theory - an influential psychological theory positing that identities develop through categorization and comparison of ourselves with the social groups around us - I argue that modern advertising has a tremendous and unrecognized influence on our sense of self. My chief example of the impact of niche marketing on identity formation is the recent targeting of the gay and lesbian market. By constructing the gay market in a particular way, advertisers shrink the identity models available for individuals grappling with whether to self-categorize themselves as gay. Advertisers have forced an essentialist model of gay sexuality on consumers while painting the gay market as white, male, healthy, and affluent. At the same time, advertisers have invaded gay cultural space, co-opting gay political symbols and taking over once relatively ad-free community spaces. Meanwhile, this targeted marketing threatens to split the gay community apart by emphasizing lines of difference that are based on class and taste and socioeconomic station. All of these practices threaten the processes that psychologists using social identity theory deem crucial to developing a healthy sense of self. I suggest that the real focus in the debate over legal regulation of advertising should be not on First Amendment protections for artists and activists, but on training our minds to be more aware of advertising’s growing influence on our psyches.

Download the essay from SSRN here.

Bad Boys

Randy Cohen reviews the forthcoming Emmy show this Sunday on CBS and considers whether police dramas say anything true about the world of law enforcement.

Sports Metaphors and Analogies In Judicial Opinions

Douglas E. Abrams, University of Missouri School of Law, has published "Sports in the Courts: The Role of Sports References in Judicial Opinions," in Villanova Sports and Entertainment Law Journal (forthcoming). Here is the abstract.

In cases with no claims or defenses concerning sports, the Supreme Court and lower federal and state courts frequently publish opinions that draw analogies to the rules or terminology of sports familiar to broad segments of the American people. Sports analogies can help the court explain factual or legal points because today’s generation, including the lawyers and litigants who comprise the prime audience for written opinions, grew into adulthood amid an unprecedented saturation of professional and amateur sports in the broadcast and print media, and more recently on the Internet.

This article surveys the broad array of sports whose references now lace written judicial opinions, and then discusses the use and misuse of these references. Sports references can help courts explain and resolve complexity, but may also implicate Rule 1.3 of the Model Code of Judicial Conduct by detracting unacceptably from the prestige indispensable to the judicial role. A sports reference remains incompatible with judging when a reasonable reader would conclude that the court invoked it primarily for the judge’s personal pleasure and not to facilitate the communication of ideas.

Download the Article from SSRN here.

Law and Lawyers in Post-Colonial Literature

Renee Newman Knake, Michigan State University College of Law, has published "Beyond Atticus Finch: Lessons on Ethics and Morality from Lawyers and Judges in Postcolonial Literature," in volume 32 of Journal of the Legal Profession (2008). Here is the abstract.

The portrayal of lawyers and judges in postcolonial literature is a worthy area of study largely overlooked by the legal academy. To be sure, a significant body of academic writing has been devoted to traditional Western literary figures like Atticus Finch from Harper Lee’s TO KILL A MOCKINGBIRD. Less attention, however, has been given to the legal characters depicted in postcolonial novels such as Hamilton Motsamai from Nadine Gordimer’s THE HOUSE GUN or the magistrate from J. M. Coetzee’s WAITING FOR THE BARBARIANS. This Article examines Motsamai and the magistrate, among others, and asks what their stories offer to our collective understanding about the ethical duties and obligations of those trained in the law. The significance of their stories, at least in part, is seen in their attempts to reconcile the disconnect between the rule of law and their individual morality - a disconnect that causes many attorneys to become dissatisfied with the practice of law. Likewise, by expanding the canon of law and literature their stories offer us a new perspective through which we may better comprehend and appreciate the choices that lawyers make in the pursuit of justice. Moreover, these postcolonial novels demonstrate that insights of law, lawyering, and ethical conduct can be found beyond the standard courtroom drama.

Download the article from SSRN here.

The "House" Effect?

According to this article from MSNBC.com, some "House" viewers are taking the show too seriously, which can result in demands on physicians for unnecessary exams and tests. Sounds a little like medical students, who come down with whatever disease they're studying that week in class. That's an actual phenomenon. See here.

"Just the Facts, Ma'am"?

Kenneth D. Chestek, Indiana University School of Law, Indianapolis, has published "Judging by the Numbers: An Empirical Study of the Power of Story." Here is the abstract.

The recent debate about whether 'empathy' is a desirable trait in Supreme Court Justices begs a more fundamental question: are appellate court judges in fact persuaded by appeals to pathos? This article attempts to answer that question by reporting the results of an empirical study the author conducted that investigates whether narrative reasoning, or 'stories,' are persuasive to appellate judges. It is the first rigorous study to ever confront this issue directly. The article first describes how the author wrote four test briefs, two on each side of a hypothetical lawsuit. One brief on each side was written as a 'pure logic' brief, while the other brief on each side made the same logical argument but also included a great deal more context and interesting, but legally irrelevant, background details to tell a more complete story. Groups of appellate judges, law clerks, appellate court staff attorneys, practicing lawyers and law professors were then asked to read two briefs on a randomly-assigned side of the case (either Petitioner or Respondent), and then report which of the two briefs was more persuasive.

The key findings of the study were that appellate judges, along with most other groups, indeed found the 'story' briefs more persuasive. The exception was the law clerk group, which found the logic and the story briefs equally persuasive. The author then speculates as to why the clerks reacted differently, and considers the implications of this finding on law school curricula.

Download the paper from SSRN here.

Brief Writing As Story Telling

Helen A. Anderson, University of Washington School of Law, has published "Stories about Storytelling: 100 Years of Brief Writing Advice." Here is the abstract.

This essay looks at examples of brief writing advice from the early to mid-twentieth century. Although criticism of verbosity and disorganization has been a consistent part of such advice to this day, there are also important changes over time. First, the modern brief is a relatively recent invention, not an ancient legal tradition. Briefs were originally just what the name suggests: short abstracts of the legal argument to be fully developed orally. During the twentieth century the importance of briefs and oral argument reversed - now the brief is the primary means of persuasion while the oral argument presents the abstracted highlights. Second, the debate about the relative importance of reason and emotion, logos and pathos, or law and storytelling, is an old one, and likely to continue. At the beginning of the twentieth century, brief writers were told to avoid emotional or narrative appeals and present only the logical legal argument. But in the wake of legal realism a few decades later, lawyers were told to craft their arguments like artists and novelists. Today, we appear to be in a period where the importance of narrative is enjoying increased recognition once more. The wisest advisors, however, have always urged the use of both logic and narrative in an attempt to persuade.

Download the paper from SSRN here.

A Conference On Law and Love

From Professor Linda Meyer, Quinnipiac Law School

We invite you to join us for a one-day conference on Law and Love, to be held at Quinnipiac Law School on Saturday, October 3, 2009.
While some of the most significant and provocative interdisciplinary legal scholarship over the last two decades has emphasized the constitutive relation between law and violence, with this conference we hope to engender a new engagement with questions that may be said to be repressed in the concerted focus on the law-violence dyad. Speakers will include Jennifer Brown (Law, Quinnipiac), Marianne Constable (Rhetoric, UC-Berkeley), Jennifer Culbert (Political Science, Johns Hopkins), Anne Dailey (Law, University of Connecticut), Tom Dumm (Political Science, Amherst College), Jon Goldberg-Hiller (Political Science, University of Hawaii), Susan Sage Heinzelman (English, University of Texas-Austin), James Martel (Political Science, San Francisco State University), Naomi Mezey (Law, Georgetown), and Nomi Stolzenberg (Law, University of Southern California).
The conference will convene in the Faculty Commons at Quinnipiac Law School from 9 am to 6 pm. Parking is available in the Visitor's Lot next to the law school. To RSVP, or for more information, please contact Prof. Linda Meyer (Linda.Meyer@quinnipiac.edu) or Prof. Martha Umphrey (mmumphrey@amherst.edu).

Idris Elba Will Star In New BBC1 Crime Drama

The Wire's Idris Elba will star in a new crime drama written by Neil Cross for BBC1. Mr. Cross describes the series, called Luther, as "an intense psychological thriller which examines not only human depravity but the complex nature of love...." The series "will turn the crime genre drama on its head," by revealing the killer at the beginning of the episode, says the BBC. Really? I thought Columbo became famous for that twist a while ago.

Lawyers, Lawyers, Everywhere

Elizabeth Chamblee Burch, Florida State University College of Law, has published "There's a Pennoyer in My Foyer: Civil Procedure According to Dr. Seuss." Here is the abstract.

This is what it purports to be: a Seussian take on civil procedure. It’s a short, fun essay that covers (1) the iron triangle of civil procedure - the role of lawyers, judges, and juries, and (2) prominent civil procedure doctrines, such as personal jurisdiction, Erie, pleading, discovery, joinder, and preclusion.

Download the paper from SSRN here.

Chocolat and Mediation

If you missed it, check out Jennifer L. Schulz's Confectionery and Conflict
Resolution? What Chocolat Reveals about Mediation, Negotiation Journal, July 2006, at 251. Here's the abstract.

A close analysis of the film Chocolat discloses a new metaphor for the
mediator — the mediator as cook. The use of this metaphor throughout
the film suggests new insights about mediator style and practice.
Specifically, the mediator–protagonist in Chocolat demonstrates that:
(1) mediations need not be voluntary to be sound, (2) non-neutral,
directive, evaluative mediators can be effective if they individualize
their approaches to each disputant and dispute, and (3) effective
approaches to mediation celebrate emotion and pleasure, contrary to
many conflict resolution theorists who write about the importance of
emotions, but do not privilege them in practice.

Business Law and Narrative

Michigan State University College of Law is hosting a symposium on business law and film called the Business Law and Narrative Symposium. The symposium takes place in East Lansing on September 11. Here's a description.

Narratives are stories.

Narratives both reflect and influence society, from the broadest popular cultural viewpoints down to the private communications between individuals. This dynamic process begins with the narrator, whose technique and viewpoint influence how the story is told. A successful narrative influences the viewpoint of the audience, modifying public perceptions of the subject. These changing public perceptions in turn influence the viewpoint of future narrators. Through this dynamic narrative process, public viewpoints evolve, leading to changes in the cultural, political, and legal landscapes.

Business narratives include the stories told within the legal profession, as well as those communicated to the general public through a vast array of media, including news, books, movies, and the Internet. Recent business narratives include the Bernard Madoff scam, the auto industry woes, bank bailouts, and the subprime mortgage crisis. From Enron and Martha Stewart to the current crises, new villains emerge, forever changing public perceptions of business and the corporate world.

A symposium at the Michigan State University College of Law invites general treatment of the question of how narrative influences the cultural and political understanding of business and how narrative might–or might not–play a role in corporate law.

Recent events bring to the fore a call on narrative as a means of interpreting what has happened, with possibilities for simple explanations that attempt a narrative form. Distinguished corporate law experts and scholars in history, literature, and narrative will present their papers and discuss the challenges narrators face in creating an accessible, widely shared account of business culture, corporate law, or financial events, given the complexity of business and the abstract nature of the corporation. Do such business narratives supply a widely shared consensus comparable to large narrative understandings of other social enterprises? Do cases or scholarship deploy narrative materials? If so, how might they be evaluated as narrative? Does literature constitute a source of insight that informs the social understanding of business realities and personalities? How does gender influence narrative?

MSU Law Professor Mae Kuykendall organized the symposium to further explore the intersection of business law and narrative, as discussed in her 2007 article, "No Imagination: The Marginal Role of Narrative in Corporate Law." Distinguished corporate law experts and scholars in history, literature, and narrative will gather to address these questions on September 11, 2009, at the Michigan State University College of Law. The Michigan State Law Review will publish the papers presented in what promises to be a trenchant discussion of an important topic. We invite you to join us for our discussion of business law and narrative.

Here's a link to the program.

Law In Willy Wonka

Jeanne C. Fromer, Fordham Law School, has published "Trade Secrecy in Willy Wonka's Chocolate Factory," in The Law and Theory of Trade Secrecy: A Handbook of Contemporary Research (Rochelle C. Dreyfuss and Katherine J. Strandburg eds.; Edward Elgar Publishing, 2010). Here is the abstract.

Roald Dahl’s "Charlie and the Chocolate Factory" is well-known as a dark fantasy in which five children win a visit to a whimsical candy company. Less conspicuous is the legal issue of trade secrecy driving the novel’s plot. Secrecy is not indigenous to fictional representations of the candy industry, but is widespread throughout its real-world confectionary counterparts of today and yesteryear. An investigation of the need for secrecy in this commercial sphere raises fundamental questions about the role of legal protection for misappropriations of secrets when actual secrecy seems to be paramount and about the relationship between trade secrecy and patent law.

Download the essay from SSRN here.

The Culinary and Contract Law

Marjorie Florestal, McGeorge School of Law, has published "Is a Burrito a Sandwich? Exploring Race, Class and Culture in Contracts," in volume 14 of the Michigan Journal of Race and Law (Fall 2008). Here is the abstract.

A superior court in Worcester, Massachusetts, recently determined that a burrito is not a sandwich. Surprisingly, the decision sparked a firestorm of media attention. Worcester, Massachusetts, is hardly the pinnacle of the culinary arts - so why all the interest in the musings of one lone judge on the nature of burritos and sandwiches? Closer inspection revealed the allure of this otherwise peculiar case: Potentially thousands of dollars turned on the interpretation of a single word in a single clause of a commercial contract. Judge Locke based his decision on 'common sense' and a single definition of sandwich - 'two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.' The only barrier to the burrito's entry into the sacred realm of sandwiches is an additional piece of bread? What about the one-slice, open-face sandwich? Or the club sandwich, typically served as a double-decker with three pieces of bread? What about wraps? The court's definition lacked subtlety, complexity or nuance; it was rigid, not allowing for the possibility of change and evolution. It was a decision couched in the 'primitive formalism' Judge Cardozo derided nearly ninety years ago when he said '[t]he law has outgrown its primitive stage of formalism when the precise word was a sovereign talisman, and every slip was fatal. It takes a broader view today.' Does it? Despite the title of this piece, my goal is not to determine with any legal, scientific or culinary specificity whether a burrito is a sandwich. Rather, I explore what lies beneath the 'primitive formalism' or somewhat smug determination of the court that common sense answers the question for us. I suggest Judge Locke's gut-level understanding that burritos are not sandwiches actually masks an unconscious bias. I explore this bias by examining the determination of this case and the impact of race, class and culture on contract principles.

Download the article from SSRN here.