December 19, 2006

Fellowship Opportunity


The Center for the Study of Law and Culture at Columbia University invites applications for residential fellowships for the 2007-2008 academic year to undertake research, writing and discussion in ways that span traditional academic disciplines. The CSLC welcomes scholars from any field who are interested in spending the academic year in residence at Columbia Law School working on scholarly projects relating to the CSLC's 2007-2008 theme: Executive Power.

We aim to appoint fellows whose scholarship addresses the critical and legal implications of expanding executive power not merely from the perspective of the state—such as the Bush administration's celebrated attempt to expand executive privilege vis-à-vis the other branches of US government—but from the perspective of power more generally. Since the post-structural assault on theories of power that posited it as emanating from a concentrated source, critical theory has conceptualized power as dispersed, capillary, and simultaneously productive and repressive. What might be the ramifications on legal and critical thought and practice at the intersection of new attempts to concentrate institutionally various forms and careers of power? We invite in particular scholarship whose focus is outside the US and lies at the critical conjuncture of law and culture. Fellows will be required to present an original paper from their research and to participate in a year long colloquium on the same topic.

The Law & Culture Fellowship is available to senior graduate students and post-doctoral candidates, including untenured faculty.

Founded in the fall of 2000, the Center for the Study of Law and Culture is an initiative at Columbia Law School designed to facilitate interdisciplinary study, research and scholarship on the intersections of law and culture. Our goal is to make the CSLC an institutional site for coordinating and coalescing the important, yet dispersed, interrogations of the relationship between law and culture that are already being undertaken across disciplines at Columbia University. By promoting and providing a home for cross-disciplinary engagement and collaboration, the CSLC will enrich each of our individual projects in law and culture studies.

Fellows will receive a stipend of $30,000, an office, computer, eligibility for university housing, and full access to university libraries, computer systems and recreational facilities. Fellows will be expected to participate in CSLC activities including presentation of a paper at the Center's Colloquium Series, and assistance in organizing Center events.

Applicants should submit:
1- a curriculum vitae
2- a writing sample (in the English language, about 25 pages in length)
3- a research statement (of approximately 1,000 words) that:
- describes the proposed work during the fellowship period
- explains the project's significance to the topic of Executive Power
- sets forth its interdisciplinary nature
4- TWO letters of recommendation (if sent with application, letter should be sealed in letterhead envelope and signed over the flap by referee). If more than two are sent, it is not guaranteed that all letters will be read.

Applications must be received at our office no later than February 15, 2007. E-mail applications will be accepted. Letters of recommendation may be sent under separate cover. Incomplete applications will be immediately disqualified.

Direct questions and application materials to:
Center for the Study of Law and Culture
Columbia University
435 W. 116th Street
New York, N.Y. 10027

Women, people of color, non-US and independent scholars are particularly invited to apply.

December 18, 2006

The Chicago Historical Homicide Project

Leigh Buchanan Bienen, Northwestern University School of Law, has published "The Record Keepers" in volume 124 of TriQuarterly Journal (2006). Here is the abstract.
"The Record Keepers" by Leigh Buchanan Bienen describes the evolution of the Chicago Historical Homicide Project, beginning with the discovery of the preservation of a set of original police records of homicides in Chicago over the period 1870-1930, a time of enormous political, economic, and social activity. All 14,000 cases, both the original narrative case summaries and the new coded, quantitative files, are available to be downloaded at, along with contemporaneous legal documents and reports, publications and commentary on the cases and the period, and photographs from the period. The homicide cases include the names of defendants and victims, addresses, and evocative details leading to other sources. "The Record Keepers" introduces "The Violence," a Special Issue of Triquarterly (No. 124) on Law and Literature, which includes articles by law professors, poets and novelists, legal historians, humanists and others. "The Record Keepers" and the other essays reflect upon the challenges and rewards of engaging in the reconstruction and reimagination of the past, beginning with legal documents and court records.
Download the entire paper here.

Celebrating the Canon

Richard Weisberg, Cardozo Law School, has published "Wigmore, and the Law and Literature Movement," as Cardozo Legal Studies Research Paper No. 177. Here is the abstract.
John Wigmore's list of Legal Novels -- really several lists compiled over the first 30 years or so of the 20th century -- helped to generate the modern embodiment of the Law and Literature movement. The bibliographical element, although of course controversial as the Law and Literature canon developed through multiple debates about what should and should not be read and discussed, proved essential in locating a group of stories that lawyers were to live with throughout their professional careers. More than bibliographical, however, Wigmore's accompanying text stressed the democratization through great literature of a legal profession otherwise prone to misunderstanding the human realities with which it was theoretically always concerned. A defined group of fictional narratives -- stories about law, lawyers, trials, statutes -- was to re-awaken in the legal reader the attachment to democratic values conveyed by literature through its acute awareness of human needs and the failure of great institutions to serve them. This essay marks the 30th anniversary of its author's update of the Wigmore list. I trace the very active debates that have informed Law and Literature since that 1976 Northwestern Law Review article, and I celebrate the expansion to foreign shores of knowledge about Wigmore, as Law and Literature proponents both home and abroad have embraced Wigmore's democratic impulse for law.
Download the entire paper here.

December 13, 2006

Are Recipes Copyrightable?

Christopher J. Buccafusco, University of Chicago Law School, discusses the question in "On the Legal Consequences of Sauces: Should Thomas Keller's Recipes be Per Se Copyrightable?" Here is the abstract.

The restaurant industry now takes in over $500 billion a year, but recent courts have been skeptical of the notion that one of its most valuable assets, original recipes, are subject to copyright protection. With more litigation looming and the contours of the debate insufficiently mapped out, this article establishes the appropriate groundwork for analyzing the copyrightability of recipes. I show that, contrary to recent appellate court opinions, recipes meet the statutory requirements for copyrightability. I argue, by analogizing to musical compositions, that written recipes work to satisfy the fixation requirement of copyright law just as musical notation does for compositions. Accordingly, the “dish” is the final work of authorship, the recipe is the fixation medium, and the various cooking techniques - braising, grilling, sous vide - are the potentially patentable processes. In order to meet copyright law's requirement of originality, though, the work must be deemed expressive. To determine whether and how recipes are expressive, I interviewed some of America's best chefs, each of whom claimed to use recipes to express various ideas and emotions.

Since there are no doctrinal limitations to recipes' copyrightability, in Part II, I offer reasons for the late recognition as protectable works. First, I consider the marginalized status of the sense of taste in the history of Western aesthetic philosophy. For many philosophers, only objects that presented themselves to the eyes and ears, such as music, painting, and literature, could be truly beautiful. Partly out of the fear that fancy foods can lead to gluttony, Western, and more specifically Anglo-American writers have often tried to limit cuisine to its fundamentally nutritive components, further isolating it from the realm of creative expression. Furthermore, the producers of cuisine have been treated no better than their products. Throughout history cooking has been the province of lowly household servants and housewives, with only a select few chefs rising to the status of artisan. Chefs rose from the ranks of obscurity far more slowly than did writers, painters, and musicians. Finally, chefs have a long history of directly copying recipes and dishes from their predecessors, suggesting that the norms of Romantic original authorship formed much later in cuisine than in other arts.

In Part III, I return to the law to consider whether the copyright monopoly should be extended to culinary creations. Chefs are not likely to take serious advantage of copyrights, as the time and money necessary for suit would rarely be worth the benefit. The chefs I interviewed were uncomfortable with the idea of owning their recipes, and they all approved of others using their recipes, subject to certain limits. Increased innovation is also unlikely as a more robust intellectual property regime would likely inhibit chefs' willingness to experiment with other chefs' dishes. Furthermore, the public domain would not see any meaningful increase, because few chefs who currently keep their recipes secret will be persuaded to publish them to obtain the limited benefits of copyright. The article concludes by arguing that formal copyright protection is not necessary for culinary creation, because a vibrant system of social norms already exists to sanction plagiarism, encourage attribution, and reward innovation. Thus, although recipes meet the formal doctrinal requirements of copyright law, an extension of the monopoly is neither necessary nor appropriate at this time.

Download the entire paper from SSRN here.

December 12, 2006

Rap Lyrics and Murder Trials

Prosecutors are attempting to show that rap lyrics constitute a confession in the trial of Ronell Wilson for the murder of officers James V. Nemorin and Rodney J. Andrews over three years ago. It is not a novel argument, as this article from the New York Times shows. For more about rap lyrics, see this extremely selected bibliography.
Babb, Tracie Nicole, Rap Music’s Transformation in a Postmodern World (Dissertation, Howard University, 2005).

Best, Steven, and Douglas Kellner, Rap, Black Rage, and Racial Difference, 2 Enculturation (no pagination) (Spring 1999).

Fischoff, Stuart P., Gangsta Rap and a Murder in Bakersfield. Previously published as 29 Journal of Applied Social Psychology 795 (1999).

Hendershott, Heidi A., School of Rap: The Politics and Pedagogies of Rap Music (Dissertation, Pennsylvania State University, 2004).

Koloze, Jeff, Abortion and Rap Music: A Literary Study of the Lyrics of Representative Rap Songs, in Life and Learning, XIII: Proceedings of the Thirteenth University Faculty for Life Conference (Washington, DC, 2004).

Krohn, Franklin B., and Frances L. Suazo, Contemporary Urban Music: Controversial Messages in Hip-Hop and Rap Lyrics, 52 ETC: A Review of General Semantics 139 (1995).

Lanier, Douglas, Minstrelsy, Jazz, Rap: Shakespeare, African-American Music, and Cultural Legitimation, 1 Borrowers and Lenders: The Journal of Shakespeare and Appropriation (no pagination) (Spring 2005).

Loza, Steven, Milo Alvarez, Josefina Santiago and Charles Moore, Los Angeles Gangsta Rap and the Aesthetics of Violence, 10 Selected Reports in Ethnomusicology 149 (1994).

Peterson, Jerry, The Police in the Blues, Freedom Songs, and Rap, 3 The Mid-Atlantic Almanac 109 (1994).

Quinn, Eithne, “Who’s the Mack?” The Perfomativity and Politics of the Pimp Figure in Gangsta Rap, 34 Journal of American Studies 115 (2000).

Quinn, Michael, “Never Shoulda Been Let Out of the Penitentiary”: Gangsta Rap and the Struggle Over Racial Identity, 34 Cultural Critique 65 (1996).

Rose, Patricia Lorraine, Black Noise: Rap Music and Black Cultural Resistance in Contemporary American Popular Culture (Dissertation, Brown University, 1993).

Rose-Robinson, Sia, A Qualitative Analysis of Hardcore and Gangsta Rap Lyrics: 1985-1995 (Dissertation, Howard University, 1995)

Rosen, Ralph M. and Donald R. Marks, Comedies of Transgression in Gangsta Rap and Ancient Classical Poetry, 30 New Literary History 897 (1999).

Rosenthal, Debra J., ‘Hoods and the Woods: Rap Music as Environmental Literature, 39 Journal of Popular Culture 661 (2006).

December 8, 2006

The Music of Various Spheres

Ian Gallacher, Syracuse University College of Law, has published "Conducting the Constitution: Justice Scalia, Textualism, and the Eroica Symphony." Here is the abstract.
This article examines the three principle Constitutional interpretative approaches and compares them to similar interpretative doctrines used by musicians. In particular, it examines the theoretical underpinnings of Justice Scalia's "textualist" philosophy by trying to predict what results would obtain from application of that philosophy to a performance of the first movement of Beethoven's "Eroica" symphony.

The article does not declare the foundation of a new genre of legal hermeneutics, nor does it seek to announce a comprehensive interpretative framework that can solve problems of Constitutional or statutory interpretation. Rather, the article explores some fundamental principles of legal textual interpretation while, at the same time, avoiding the aggressive rhetoric and contentious social issues that can obscure the debate over textualism, the viability of a "Living Constitution" and the use of extra-textual information to aid in determining textual meaning.
Download the entire paper from SSRN here.

A Look at the Rhetoric of a Nineteenth Century Trial Narrative

John T. Parry, Lewis & Clark College Law School and Andrea L. Hibbard, Lewis & Clark College, have published "Law, Seduction, and the Sentimental Heroine: The Case of Amelia Norman," in American Literature, Vol. 78, No. 325, 2006. Here is the abstract.
This article examines the notorious mid-nineteenth-century American trial of Amelia Norman, who was acquitted - very much against the weight of the evidence - of attempting to kill the man who seduced her. In particular, we explore the role in the trial and its aftermath of the affective energies and cultural expectations set in motion by best-selling American sentimental novels like Hannah Foster's "The Coquette" and Susanna Rowson's "Charlotte Temple."

In Norman's case, once newspapers, defense lawyers, and reformers such as Lydia Maria Child recast the defendant as a sentimental heroine, the trial became about seduction, not attempted murder. The sentimental emplotment of Norman's life marshaled a powerful set of emotional responses and moral judgments on her behalf. For example, Norman claimed insanity. And since sentimental heroines are supposed to go mad when they are seduced and abandoned, the jury was prepared to interpret her symptoms according to her lawyers' very strategy for establishing her innocence. Ultimately, however, Norman embodied the plight of the sentimental heroine at the same time that she contested her fictional counterpart's fate. In this way, her trial spectacularized the disparity which the sentimental novel conjures up and displaces but never resolves.

Going further, the common law theory of coverture, which severely limited the legal personhood of married women, has received a great deal of scholarly attention. Cases like Norman's remind us that unmarried women were also subject to draconian constraints on their legal personhood. The tort of seduction is a key example. Legal historians trace the development of the seduction tort from its common-law origins, when men's property interest in women's bodies formed the basis of the cause of action, to 1851, when Field Code authors (including Norman's lawyer, David Graham) persuaded several states to grant seduced women standing to bring their own cause of action. Consequently, courts were forced to reckon with the seduced woman as a moral agent capable of consenting to sex. As trials like Norman's demonstrate, sentimental novels helped lay the groundwork for this shift in the law by elucidating a subjectivity for the seduced woman.

Yet the doctrinal implications of Norman's precedent-setting trial had a second, more ambiguous strain. Other women facing similar charges used the same legal strategy to gain acquittals in a substantial number of cases. Indeed, Norman's sentimental strategy proved so powerful that men on trial for killing their wives' seducers appropriated it to bring their own stories before juries and to reinforce male sexual norms through the so-called honor defense. In the end, then, Norman's trial fostered legal reform, but it also suggested - as Lydia Maria Child's fictionalization of the case in "Rosenglory" recognized - that only sustained and multifaceted efforts to change cultural as well as legal norms could improve the sexual status of women.

In addition to its legal, literary, and historical insights that it provides, we also intend this article to contribute to debates on the nature of scholarship in law and literature. Scholars such as Wai Chee Dimock have argued for a focus on the historical and historically shifting relations between law and literature - a view we endorse. Where we differ from Dimock is in our diversion of attention away from abstract ideas of law laid out by treatise writers and philosophers in favor of law experienced and manipulated by individuals. So, too, we are interested less in representations of concepts such as justice in legal and literary texts than we are in the ways in which literature (broadly conceived) can create provisional and fragile opportunities for concrete instantiations of justice and even generate legal change (for good or ill). We would argue that to the extent legal change motivates rather than simply mirrors cultural change, it needs literature to be effective. This project, then, responds to Gregg Crane's call for attention to the complex and slippery historical interactions of law and literature that shape and are shaped by an ever changing cultural idiom of justice. The extended story of Amelia Norman, in short, not only constitutes a case study in the inescapable interaction between the overlapping and interdependent discourses of law and literature, but also reveals the literary and legal consequences of that interaction.
Download the entire paper from SSRN here.

Robert M. Ireland mentions Amelia Norman's trial in his article "Privately Funded Prosecution of Crime in the Nineteenth Century United States."

December 6, 2006

Dang! Those Pesky Guilty Clients Again

Michael Asimow, UCLA Law School, and Richard Weisberg, Cardozo Law School, have published "When the Lawyer Knows the Client is Guilty: David Mellinkoff's 'The Conscience of a Lawyer', Legal Ethics, Literature, and Popular Culture," as UCLA School of Law Research Paper 06-44. Here is the abstract.
David Mellinkoff's 1973 book 'The Conscience of a Lawyer' concerned a classic puzzle in legal ethics: what should a criminal defense lawyer do when the lawyer is certain that the client is factually guilty, but the client insists on an all-out defense? Mellinkoff focused on the Courvoisier case, a notorious English trial in 1840 in which defense counsel's tactics created an enormous public scandal. Legal ethicists have struggled with these issues ever since that time and they remain unresolved. This article draws a distinction between strong and weak adversarialism and explains how these two normative positions guide a lawyer's tactical decisionmaking in the certainly-guilty client situation. The article suggests that lawyers should have discretion to choose between the strong and weak positions, depending on context and their personal conscience. Both popular culture and great literature provide surprisingly interesting perspectives on the strong vs. weak adversarialism dilemma. Literature casts doubt on whether a lawyer can ever know with the requisite certainty whether a client is guilty. It presents numerous models of successful strong adversarialists and unsuccessful weak adversarialists. Few literary lawyers manage to be both skilled advocates and decent human beings. American popular culture, on the other hand, presents an emphatic answer to the question of what a lawyer with a certainly guilty client should do. According to pop culture, the lawyer's job is to betray the client to make sure the guilty criminal is convicted, dishonored, or killed. Pop culture's no-adversarialism model is a universe few lawyers would care to inhabit but which reflects popular views on the relationship of lawyering to truth.

Download the entire paper from SSRN here.

December 1, 2006

Michael Asimow on the Image of the Adversarial System in Popular Culture

Michael Asimow, UCLA School of Law, has published "Popular Culture and the Adversarial System" in volume 2007 of the Loyola of Los Angeles Law Review. Here is the abstract.
This article addresses a puzzle: lawyers are the most distrusted and despised of all American professions, whereas the public has a much higher opinion of judges. Yet Americans believe strongly in the adversary system in which all the important procedural decisions during civil or criminal trials are made by lawyers. Even though people crave a justice system that discovers what really happened, they accept one that delivers only trial truth and procedural justice, not factual truth or substantive justice. This article explores various reasons why people might favor the adversary system despite their distrust of lawyers and their craving for truth, such as a belief in personal autonomy, a distrust of government officials, and a lack of knowledge about alternatives. However, the article suggests another possible reason: the influence of popular cultural portrayals of the trial process. Dating back to the days of history's greatest teacher of trial tactics - Perry Mason - media consumers have been taught that the adversary system delivers the truth. We can count on a great lawyer's cross-examination to reveal the identity of the real killer. Even though we hate and distrust lawyers, we want a good one by our side when we're in trouble or an aggressive one prosecuting the crooks. Countless films and television shows since Perry Mason's day have conveyed the same basic message, although in more sophisticated form. According to “cultivation theory,” people often extract information and form opinions based on fictitious stories told by pop culture media. Perhaps we derive our bone-deep belief in the adversary system from Perry Mason and the other great lawyers we've watched over the years.
Download the entire paper from SSRN here.

Cross posted to the Seamless Web.