January 31, 2008

A Novel Interpretation of the Second Amendment

The late Peter B. Junger, long a professor at Case Western Reserve Law School, offered this unusual interpretation of the Second Amendment. Here is the abstract of "The Original Plain Meaning of the Right to Bear Arms," as Case Legal Research Studies Paper 08-01.

In this article, written about twenty years ago, Professor Peter Junger developed an idiosyncratic interpretation of the Second Amendment: the right to bear arms is the right to display armorial bearings - coats of arms - and the original plain meaning of the Amendment is that the government shall not infringe upon one's right to be a lady or a gentleman. That interpretation was derived (loosely, to be sure) from a 1955 decision of the Court of Chivalry, an English court (known to Blackstone) that had been silent since 1737. Whether Professor Junger, who died in November 2006, was serious about this or not, this unfinished article is a fitting memorial to a person with an amazingly creative mind.


Download the entire paper from SSRN here.

Eli Stone, a New Lawyer Drama, Premieres Tonight on ABC

The New York Times's Gina Bellafonte reviews the new ABC lawyer drama Eli Stone here. I'll be posting my own review after I catch the premiere episode. It airs tonight at 10 p.m. EST, 9 p.m. Central time.

January 29, 2008

New Works on Conan Doyle and Sherlock Holmes

The Times Literary Supplement has a review of two new works about Arthur Conan Doyle. Dinah Birch comments on both Andrew Lycett's biography Conan Doyle: The Man Who Created Sherlock Holmes, and Jon Lellenberg, Daniel Stashower, and Charles Foley's edition of Arthur Conan Doyle: A Life in Letters.

Lycett’s capable work, Conan Doyle: The man who created Sherlock Holmes, gives a detailed picture of these multiple occupations, despite the frustration of the dispersal and destruction of significant documents after Doyle’s death. The surviving letters, newly published in the wake of what seems to have been a competitive tussle between Lycett and the editors of Arthur Conan Doyle: A Life in letters, John Lellenberg, Daniel Stashower and Charles Foley (the present executor of the literary estate), are not presented with the same scholarly expertise. Nor are they consistently stimulating in their own right, for they do not suggest that Doyle was much given to the subtleties of introspection. Mostly addressed to his mother, they are brisk, good-humoured and straightforward. What emerges, however, sometimes with unexpected force, is his search for spiritual meaning that would transcend the rationalities of his scientific education, or the orthodoxies of social custom. He abandoned his parents’ Catholic faith in early manhood, but continued to hunger for a confirmation of immortality – “infinitely the most important thing in the history of the world”. At the time that Sherlock Holmes first emerged in Doyle’s writing, he began to develop what would become a lifelong interest in spiritualism. This is more than coincidence. Holmes will have no truck with the supernatural: “This agency stands flat-footed upon the ground, and there it must remain. The world is big enough for us. No ghosts need apply”. But his omniscience often seems a little more than human. Holmes’s function, and his appeal, is to supply unfailing answers, and that sense of a constant dependability was also what Holmes wanted from his religious life. Perhaps spiritualism, with its promise of direct communication with the dead, could supply it. Doyle moved warily for years, experimenting, attending table-rapping sessions, reading reports and investigations. His stubborn materialism held him back, but he longed to be convinced that spiritualism could offer solid evidence of the survival of the spirit after death.

Read more here.

January 17, 2008

Is Interdisciplinary Legal Study a Luxury?

Over at Balkinization, Professor Brian Tamanaha (St. John's School of Law) argues that most law schools should abandon their vigorous pursuit of interdisciplinary studies in law:
[P]erhaps detailed knowledge of the social sciences—anything beyond rudimentary information every educated person should possess—is irrelevant to the practice of law.

It seems evident that one can be an excellent lawyer without knowing any of this interdisciplinary stuff, while it is not obvious that learning this will make a person a better lawyer. A stronger case can be made that this information might improve the performance of judges, but a more efficient way to deliver this benefit is to set up classes (in economics, statistics, etc.) for sitting judges—programs which now exist.

Brian contends that non-elite schools should reconsider whether they should emulate top-ranked law schools in focusing heavily on the interdisciplinary study of law:

In the non-elite law school universe--with schools almost entirely dependent upon tuition, with a majority of graduates who do not get corporate law jobs and only rarely become law professors--the interdisciplinary movement cannot be so easily justified.

Let me just give three reasons why it might be a bad idea for non-elite law schools. First and foremost, as argued above, there is no evidence that it will make their students better lawyers. Second, it costs a lot of money to go interdisciplinary, and (because non-elite schools are tuition driven) this money will come out of the pockets of the students. Third, their education might suffer if their faculties emulate the elite law school trend toward hiring JD/PhDs with little or no practice experience (assuming a person with some experience in the practice of law has a bit more insight to impart to students about how to be good lawyers). . . .

The bottom line of this post: the notion that interdisciplinary studies within law schools promises to improve the practice of law is an old idea backed up by little evidence. Non-elite law schools might not be serving their students well if they get caught up in this trend.

I strongly disagree. Brian's post seems to be informed by a common set of assumptions about legal education and practice that I think are false. These assumptions involve a particular vision of what tools are necessary for law practice and of what good lawyering is all about, as well as a vision of what role legal education should play in preparing students for the practice of law.

With regard to the vision of law practice, I think that it is a common assumption that it involves learning doctrines, rules, case holdings, drafting skills, etc. While this is part of law practice, the practice of law is tremendously varied. Some students go on to become judges and policymakers. Many will work for government, for think tanks, for public interest organizations. Many might work in house at companies, where they might also be making policy. For example, one of the most rapidly growing positions is that of privacy officer -- most companies have numerous people devoted to understanding privacy law and making corporate policy with regard to privacy. In any policymaking position, knowledge of existing legal doctrine is just one part of the job. One also needs to be able to see the big picture, to make wise policy choices beyond merely complying with existing law.

Moreover, the practice of law involves many dimensions. Some students will become trial lawyers, and interdisciplinary knowledge might enhance their ability to make eloquent arguments before the jury. Literature, psychology, rhetoric, and other fields are very important for a successful career as a trial lawyer. One of the difficulties in justifying interdisciplinary legal studies is that often the materials read or studied don't have a direct bearing on practice. So if one reads Melville or Shakespeare, or reads works of behavioral economics, psychology, or sociology, the benefit isn't in terms of having authorities that one can cite in a brief or recite before a jury. But the exposure to these ideas, the process of reading and thinking about these works enhances one's general store of knowledge, one's understanding of life, and so on. This indirectly enhances one's ability to practice law. The brilliant funeral speech of Marc Antony in Shakespeare's Julius Ceasar is a wonderful display of rhetoric, and much can be learned from comparing it with Brutus's speech. Behavioral economics, psychology, and cognitive science -- the work of Daniel Kahneman and Amos Tversky, for example -- reveals how the framing of choices can have dramatic effects on what people will choose.

Brain notes that "no convincing evidence has been provided to demonstrate that 'interdisciplinary studies' will help one whit in the training or performance of lawyers." But is there a way to produce the evidence he desires? Is there a way to prove that learning history, literature, philosophy, psychology, economics, and other humanities have any value for most careers? What would be the metric by which this could be measured?

Certainly knowledge of rules and doctrine is important for law practice. But in many cases, the doctrine is unclear or is subject to interpretation and debate. It is the ability to make persuasive arguments about the doctrine that separates the great lawyers from the mundane. A good legal argument often touches upon policy implications; it examines the downstream consequences of rules, slippery slope problems, etc. A good lawyer might realize that there is a body of sociological, empirical, or psychological knowledge that supports a particular interpretation of the law. More indirectly, a lawyer steeped in a broad humanistic understanding of the law might think more creatively and might see issues and arguments that others without such an understanding would not.

Moreover, the study of interdisciplinary knowledge can have a broader indirect effect on the law. For example, the legal realists had a tremendous influence on legal practice. They changed the way many people thought about the law. They didn't do so directly. So lawyers and judges might not have been readily citing Karl Llewellyn or others as authorities for various legal propositions, but their thought did influence the way that legal arguments are made, the way that lawyers and judges understand the task of applying and interpreting the law. Although the law still struggles to integrate interdisciplinary knowledge in practice, I don't think that the project begun by the legal realists is a failure.

So I think that it is a deeply flawed assumption to see the practice of law as the mere mundane application of rules and doctrines. For the creative lawyer, steeped in literature and humanities, in social science, with an understanding of policy and a larger world view, the range of options in a case is much broader, the tools to work a case are much more numerous and vibrant. The lawyer with interdisciplinary training can often see more -- see issues and arguments that the more narrowly-focused doctrinalist won't see. I've read many a complaint and brief that could have benefited from more thoughtful framing, a more creative approach, and a knowledge of the humanities. I've seen cases where attorneys seemed to be very limited in their vision, where they they merely proffered mundane readings of rules, where they took too much as given and didn't push for more. And on the flip side, I've seen many cases where a visionary attorney has won with a new argument, a clever interpretation, a wise marshaling of facts and evidence, a novel reading of cases or application of law. Many lawyers act like mechanics, but the great ones, in my opinion, have a wisdom, judgment, and creativity that enriches everything they do.

What role should law schools play in the training of lawyers? A common assumption is that preparing people for the practice of law should involve teaching them the practicalities of practice. So teach them the rules, train them in the nitty-gritty of how to litigate, make deals, etc. While this is important, I think it is a limited vision of what it means to prepare people for the practice of law. At the end of the day, nothing can truly prepare you for the practice of law except actually doing it. There's a certain wisdom that comes from experience that seasoned practitioners have and that I don't think can readily be taught in school. The best way to learn how to practice law is to do it. Clinical education and learning certain practice skills can help, but most lawyers will learn about the practice of law as they are practicing it.

So if lawyers learn some of the most important lessons about practice after they graduate from law school, then what's the purpose of law school? I believe it should be to provide students with a rich body of knowledge that they can draw upon to sharpen their thinking, open their minds to new ideas, get them to see the larger picture, help them figure out what they love about the law so they can launch their careers in the right direction, etc. These things are often difficult when one is in practice, with a desk full of heaps of paper and with the phone ringing off the hook. There often isn't the luxury of sitting back and thinking more broadly about the law. There isn't as much time to enrich one's mind with a study of the humanities and the ways they intersect the law, for example. Law school helps get one started on this endeavor. It teaches students that there are many different ways to think, it infuses them with ideas that they might not ordinarily think about unless they have time to step back from it all and ponder. The effects on their abilities as a lawyer are often indirect; they are hard to articulate and to pin down. We shouldn't demand that lawyers point to the work of Ludwig Wittgenstein, John Dewey, HLA Hart, Karl Llewellyn, Daniel Kahneman, Fyodor Dostoyevsky, or Franz Kafka and say: "I won this case because of reading this particular thinker." But are they better lawyers for having read and reflected upon great works in the humanities, for having some background in a variety of different fields of study and their applicability to law? I'd venture to say yes.

Is the value of law school for a lawyer to be working a case and be able to remember some rule she learned in a class many years ago? I think not. To find the rules, lawyers only need to crack open the law books or hop on Westlaw or Lexis. The rules, in other words, are not what training to be a lawyer is all about. The practice of law can contain a lot of drudgery, and a significant part of it is perspiration. But it is also part inspiration, and it is also an art.

All this said, I still believe that law school should teach students rules and skills. But learning rules is not what will help students become top lawyers. Learning skills in law school can be helpful, but at the end of the day, learning skills is something that lawyers learn when in practice. Skills develop over time. What law school does is plant some seeds -- it lays a foundation. It is foolish, in my mind, to think that law school can spit out lawyers who are ready to go out of the gate. Law school builds the foundation. The rest of one's legal career is when the building gets built.

So in contrast to Brian, I encourage the development of interdisciplinary studies in law. I don't see why they only need to be a luxury for the elite schools. I see interdisciplinary studies as helpful to all lawyers, and as an important part of any good legal education.

Brian Leiter is also collecting comments.

Cross-posted at Concurring Opinions.

January 15, 2008

Book Review: Harold Schechter's The Devil's Gentleman

Harold Schechter, The Devil's Gentleman: Privilege, Poison, and the Trial that Ushered in the Twentieth Century
Ballantine Books (October 2007)

Harold Schechter, an American literature professor at CUNY, has written a gripping account of the criminal trial and appeal of Roland Molineux, a case that grabbed headlines throughout the late 1890s. His book, The Devil's Gentleman: Privilege, Poison, and the Trial that Ushered in the Twentieth Century (2007) is a page-turner, and it reads almost like a novel.

Roland Molineux, the son of a revered Civil War general, was accused of an elaborate scheme of sending medicines and potions containing cyanide in order to kill two men. One was his friend whom Molineux wanted out of the picture because he was having an affair with the woman Molineux had his sights on marrying. The other was the director of an athletic club to which Molineux belonged and whom Molineux hated. The result was two murders, one of which involved an unintended victim. Oddly, anonymously sending potions or food laced with poison in the mail was an effective way to kill at that time. People apparently thought nothing of ingesting things that were sent to them anonymously. Poison was a popular murder instrument at the time, and people viewed poisoning as an especially sinister and "unmanly" way to kill. And one could readily be poisoned not through any nefarious scheme, but by the medicines at the time, some of which contained cyanide and arsenic. The cure was often more deadly than the disease.

The book focuses considerably on the role that the media played in the justice system. The media in the latter half of the Nineteenth Century was rabidly sensationalistic. The rise of "Yellow Journalism" was one of the factors that prompted Samuel Warren and Louis Brandeis to write their famous article, The Right to Privacy in 1890. Yellow Journalism emerged as Joseph Pulitzer and William Randolph Hearst transformed the newspaper business, from small circulations and weak profits (sometimes even losses), to a booming success. In two years, for example, Pulitzer increased the circulation of the New York World from under 12,000 a day to 150,000 a day:

The very look of the paper underwent a radical alternation. Headlines now stretched over several columns or were splashed across the entire top of the page. And there were cartoons, caricatures, lurid illustrations, and other voyeuristic visual aids. Not only were grisly murders reported in graphic detail; they were diagrammed so that readers could picture the horrors more clearly. (p. 98)

The newspapers conducted their own investigations into criminal cases, interviewing witnesses, tracing leads, shadowing the police. In one instance, a newspaper even funded an investigation. The police needed to go through 50,000 sales slips at a pharmacy, and "they would have had an impossible time of it, since orders were full of Latin medical terms and abbreviations. Only people with pharmaceutical training could accomplish the task." The pharmaceutical supply company "couldn't afford to loan [its clerks with the requisite training] out for an indefinite period of time." Enter the media:

At that point, however, the yellow papers, with their genius for self-promotion, insinuated themselves into the proceedings. The World--which never wearied of trumpeting its own invaluable contributions to the case--offered to reimburse Smith for his clerks' time. (p. 164)

When it came to the trial, the newspapers presented it more as a play than as a real event. One newspaper "presented a summary of the case in the form of a stage play, complete with a 'Cast of Characters'; a synopsis of the 'Great Double Poisoning Drama' divided into acts and scenes." (p. 173). A different paper had its theater critic covering the trial, which drew an attack from another newspaper as stepping over the line. "The trial is dramatic but it is not a dramatic spectacle," the editorial decried. "A murder trial should not be made to wear the aspect of a public diversion." (p. 289)

The Devil's Gentleman is riveting and engaging, and it and captures a vivid slice of life at the turn of the Twentieth Century. It contains an extensive and very interesting account of police investigations, trials, and appeals at the time. The book chronicles step-by-step how the police and press pieced together the case, as well as demonstrates the impact of various courtroom strategies and evidence (there were two trials, each involving considerably different strategies and admitted evidence).

And along the way, the book contains some interesting tidbits of information. For example, Theodore Dreiser mulled over writing a novel based on the case, but abandoned the project. He found another crime which formed the basis of An American Tragedy. And the book notes that in the 1890s, "dealers in mail-order patent medicine brought in extra income by saving the correspondence they received from customers, then selling these letters to other mail-order firms." (p. 269). Selling people's personal information, it seems, was a popular pastime then, as it is now.

Cross-posted at Concurring Opinions.

January 14, 2008

Images of Justice

Judith Resnick, Yale University Law School, has published "Representing Justice: From Renaissance Iconography to Twenty-First Century Courthouses," as 151 Proceedings of the American Philosophical Society 139 (2007).


All over the globe, nations rely on a statue of a large hulking woman (sometimes named Justice, sometimes Justicia, sometimes Themis, and usually holding scales and sword) to symbolize that their justice systems have aspirations of fairness and impartiality and also to lay a claim to power. The attributes associated with this Justice image - a woman with scale, sword, and sometimes a blindfold - have a remarkable longevity, as can be seen in cartoons and advertisements, as well as in courthouses.

This Lecture provides a multi-century, cross-cultural visual narrative of both continuity and change in the use of adjudication by governments seeking to legitimate their authority to impose their law through judges. From the story of the Judgment of Solomon to the Town Halls of Siena and Amsterdam, one can find examples of adjudication, a task of governance that predates democracy. From those walls and the allegories that they represent, one can learn how adjudicatory practices contributed to democratic ideology by generating norms that decisionmakers not be corrupted by payments from one side, that their decisions be predicated on information rather than be arbitrary, and that they hear both sides (audi alterum partem).

But democracy has radically increased the demand for adjudication as it provided rights of access to all persons, now seen as equal before the law. That demand in turn has transformed the function and some of the processes of adjudication. The pattern of an expansion of adjudicatory rights is echoed around the world, as can be seen by the many countries with major new buildings of courts and the growth of transnational courts.

This Lecture thus also maps the challenges that democracy poses for adjudication. The responses to the growth in demand has resulted in a shift of many decisions to alternative forms of decisionmaking that limit public access to adjudication. In the United States federal system, for example, fewer than two of one hundred civil cases start a trial. Further, administrative adjudication is increasingly important, as tens of thousands of hearings are held annually in federal agencies dealing with federal benefits, employment discrimination, veterans and immigration. But these proceedings are not readily accessible to street traffic.

By reviewing the pictorial history of adjudicatory processes, we raise the question of the future trajectory of adjudication. Even as new courthouses are built around the world, the opportunities for persons to use them may be narrowing. Moreover, the didactic messages conveyed are often more celebratory than reflective of the obligations, under democracy to make accessible justice and to respond to injustice. With rare exceptions (such as the Constitutional Court of South Africa), the iconography of justice has not yet come to reflect the infusion of norms that democracy brings to adjudication.


Download the entire paper from SSRN here.

January 11, 2008

Submission Deadline Extended for Law and Humanities Junior Scholar Workshop

UCLA School of Law, Columbia Law School, University of Southern California Center for Law, History & Culture, and Georgetown University Law Center invite submissions for the sixth meeting of the Law & Humanities Junior Scholar Workshop to be held at UCLA Law School in Los Angeles, CA on June 8 & 9, 2008.



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, the Workshop 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 as 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 22, 2008, 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: Manissa Maharawal, 212.854.2511 or culture@law.columbia.edu. The full text of the Call for Papers is available at: www.law.columbia.edu/center_program/law_culture.

January 10, 2008

The Hossack Case, Law and Literature

Margaret Raymond reviews Patricia L. Bryan and Thomas Wolf, Midnight Assassin: A Murder in America's Heartland, published by Algonquin Books (2005), at 57 J. Legal Educ. 293 (2007). In it she compares the book, which is legal history, and which details the real life murder of John Hossack, and the subsequent trial of his wife Margaret, and the fictionalization of the case by Susan Glaspell in her works Trifles and A Jury of Her Peers. Ms. Bryan has also written another study of the Hossack murder case, Stories in Fiction and Fact: Susan Glaspell's A Jury of Her Peers and the 1901 Murder Trial of Margaret Hossack, 49 Stan. L. Rev. 1293 (1997). Professor Raymond also suggests pedagogical uses for the Hossack story and Glaspell works in various law school settings.

January 8, 2008

Law and Lit in the Journal of Legal Education

The current issue of the Journal of Legal Education includes two articles of interest: Amnon Reichman, "Law, Literature, and Empathy: Between Withholding and Reserving Judgment," 56 J. Legal Educ. 296 (June 2006) and Martha Nussbaum, "Reply to Amnon Reichman," 56 J. Legal Educ. 320 (June 2006).

January 4, 2008

Call For Papers/Abstracts/Submissions

Call for Papers/Abstracts/Submissions
7th Annual Hawaii International Conference on Social Sciences May 29 - June 1, 2008 Waikiki Beach Marriott Resort & Spa, Honolulu Hawaii, USA

Submission Deadline: February 14, 2008

Co-Sponsored by:
University of Louisville - Center for Sustainable Urban Neighborhoods

Web address: Email address: social@hicsocial.org

The 7th Annual Hawaii International Conference on Social Sciences will be held from May 29 (Thursday) to June 1 (Sunday), 2008 at the Waikiki Beach Marriott Resort & Spa in Honolulu, Hawaii. The conference will provide many opportunities for academicians and professionals from social sciences related fields to interact with members inside and outside their own particular disciplines.

Topic Areas (All Areas of Social Sciences are Invited):

*Anthropology
*Area Studies (African, American, Asian, European, Hispanic, Islamic, Jewish, Middle Eastern, Russian, and all other cultural and ethnic studies) *Communication *Economics *Education *Energy Alternatives *Ethnic Studies/International Studies *Geography *History *International Relations *Journalism *New Urbanism *Political Science *Preservation and Green Urbanism *Psychology *Public Administration *Social Work *Sociology *Sustainable Development *Sustainable Urban Neighborhoods *Urban and Regional Planning *Women’s studies *Other Areas of Social Science *Cross-disciplinary areas of the above related to each other or other areas

Submitting a Proposal:

You may now submit your paper/proposal by using our new online submission system! To use the system, and for detailed information about submitting
see here