December 28, 2008

Life, Art, and Bernie Madoff

Patricia Allen notes that life seems to have imitated art, at least in the case of the current Bernie Madoff scandal. She seeks out the commentary of a number of critics and writers, who compare it to Harley Granville-Barker's The Voysey Inheritance, which David Mamet has lately adapted. Other analogies: Anthony Trollope's The Way We Live Now, various works of Charles Dickens, and Arthur Miller's All My Sons. BTW, here's more about Mr. Madoff's scheme, and the history of such schemes.

But, does life imitate art, or do artists take what they see in life and work with it, and do we simply then recognize the analogies, as indeed we should, since artists are working with the truth about human beings?

December 17, 2008

Some Recently Published Titles In Law and Literature

A round-up of selected titles published in law and literature in the past year or so.


Almog, Shulamit, The poetics of the legal system in the digital age: contemporary challenges to traditional concepts of justice (2007).

Atkinson, Logan, and Diana Majury, Law, mystery, and the humanities: collected essays (2008).

Bertini, Fabio, "Havere a la giustitia sodisfatto" : tragedie giudiziarie di Giovan Battista Giraldi Cinzio nel ventennio conciliare (2008).

Bishop, Stephen L., Legal oppositional narrative: a case study in Cameroon (2008).

Boboc, Andreea Delia, Justice on Trial: Abuse and acculturation in late medieval English literature, 1381-1481 (Dissertation, University of Michigan, 2006).

Caspar, Timothy W., Recovering the Ancient View of Founding: a commentary on Cicero's De legibus (Dissertation, Claremont Graduate School, 2006).

Chaplin, Susan, The gothic and the rule of the law, 1764-1820 (2007).

Cormack, Bradin, A Power To Do Justice: Jurisdiction, English Literature, and the Rise of Common Law, 1509-1625 (2007).

Danovi, Remo, Tra fantasia e diritto: List of Novels (2004).

Dolin, Kieran, A Critical Introduction To Law and Literature (2007).

Edelman, Bernard, Quand les juristes inventent le réel: la fabulation juridique (2007).

Eska, Joseph F., Law, literature and society (2008).

Everingham, Anthony Samuel, Form and function in legal adjudication: legal "meaning", hermeneutics and systems theory (Master’s thesis, Monash University, 2007).

Farenga, Vincent, Citizen and Self in Ancient Greece: Individuals Performing Justice and the Law (2006).

Ferk, Janko, Recht ist ein "Prozess": über Kafkas Rechtsphilosophie (2006).

Gaakeer, A. M. P., and François Ost, Crossing borders: law, language and literature (2007).

Geonget, Stéphan, Littérature et droit, du Moyen Âge à la période baroque: le process exemplaire : actes de la journée d'études du groupe de recherches Traditions antiques et modernités de Paris VII, 29 mars 2003 (2008).

Glover, Susan, Engendering Legitimacy: Law, Property, and Early Eighteenth-Century Fiction (2006).

González Echevarría, Roberto, Amor y ley en Cervantes (2008).

Hegel, Robert E., and Katherine Carlitz, Writing and Law in Late Imperial China (2007).

Hepburn, Allan, Troubled Legacies: Narrative and Inheritance (2007).

Hofmann, Gert, Figures of law : studies in the interference of law and literature (2007).

Hutson, Lorna, The Invention of Suspicion: Law and Mimesis in Shakespeare and Renaissance Drama (2007).

Jurasinski, Stefan, Ancient privileges: Beowulf, law and the making of Germanic antiquity (2006).

Kanarek, Jane, Let the story remain with us: Biblical narrative and the formation of rabbinic law (Dissertation, University of Chicago, 2007).

Kane, Baydallaye, La justice répressive dans la littérature africaine (2006).

Kezar, Dennis, Solon and Thespis: Law and Theater in the English Renaissance (2007).

Kaul, Suzanne, Poetik der Gerechtigkei : Shakespeare-Kleist (2008).

Latham, Sean, The art of scandal: modernism, libel law, and the roman à clef (2009).

Lemmens, Koen, François Jongen, Droit & littérature (2007).

Lin, Laifan, Fa lü yu ren wen=Law & humanism (2007).

Lockey, Brian, Law and Empire in English Renaissance Literature(2006).

Majeske, Andrew J., Equity in English Renaissance literature: Thomas More and Edmund Spenser(2006).

Mangham, Andrew, Violent Women and Sensation Fiction: Crime, Medicine and Victorian Popular Culture (2007).

Masson, Jean, Le droit dans la littérature française(2007).

Mathieu-Castellani, Gisèle, Le tribunal imaginaire: essai(2006).

Mautner, Menachem, Mishpat ve-tarbut (2008).

McGinnis, Reginald, Originality and Intellectual Property in the French and English Enlightenment(2008).

Méchoulan, Eric, Law and literature (2006).

Morawetz, Thomas, Literature and the law (2007).

Morgan, Brian James, Documentary culture and prophecy in Piers Plowman (Thesis (M. Litt.), University of Oxford, 2006).

Morgan, Edward M., The aesthetics of international law (2007).

Mueller-Dietz, Heinz, Recht und Kriminalität in literarischen Spiegelungen (2007).

Mukherji, Subha, Law and representation in early modern drama (2006).

Murphy, Stephen M., What if Holden Caulfield went to law school?: selected legal fiction and nonfiction (2007).

O’Brien, Ellen L., Crime in Verse: The Poetics of Murder in the Victorian Era (2008).

Oliveira, Mara Regina de, Shakespeare e a filosofia do direito: um diálogo com a tragédia Julio César (2006).

Olson, Greta, and Martin Kayman, Law, Literature, and Language (2007).

Osborough, W. N., Literature, Judges, and the Law (2008).

Pennsylvania Bar Institute, What literature tells us about lawyers & the practice of law (2008).

Plesko, Forrest Vincent, “A little information about the law": Judgments, jurisprudence, and (in)justice in William Faulkner's Snopes trilogy (Master’s thesis, University of Southern Mississippi, 2006).

Rabell, Carmen, Ficciones legales: ensayos sobre ley, retórica y narración (2007).

Reichman, Ravit, The affective life of law: legal modernism and the literary imagination (2009).

Rielly, Edward J., Murder 101: essays on the teaching of detective fiction (2009).

Ritscher, Lee A., The semiotics of rape in Renaissance English literature (2007).

Scase, Wendy, Literature and Complaint in England, 1272-1553 (2007).

Sokol, B. J., Shakespeare, law, and marriage (2006) Reprint.

Stern, Simon, Law and literature (2007).

Suzack, Cheryl, Law, literature, location: contemporary aboriginal/indigenous women's writing and the politics of identity (Dissertation, University of Alberta, 2006).

Talavera, Pedro, Derecho y literatura: el reflejo de lo jurídico (2006).

Tomain, Joseph P., Creon's ghost: law, justice, and the humanities (2009).

Van Blerk, Nicolaas Johannes, The concept of law and justice in Ancient Egypt, with specific reference to The tale of the eloquent peasant (Master’s thesis, University of South Africa, 2006).

Visconsi, Elliott, Lines of Equity: Literature and the Origins of Law in Later Stuart England (2008).

Weber, Hermann, Literatur, Recht und Musik: Tagung im Nordkolleg Rendsburg vom 16. bis 18. September 2005 (2007).

White, James Boyd, When language meets the mind: three questions (2007).

Zurcher, Andrew, Spenser's legal language: law and poetry in early modern England (2007).

Steven Pinker's The Stuff of Thought

Lorie Graham and Stephen M. McJohn, Suffolk University Law School, have published "Cognition, Law, Stories," in Minnesota Journal of Law, Science, & Technology (Winter 2009). Here is the abstract.

This essay reviews Steven Pinker, The Stuff of Thought (Penguin 2007), which offers insights from cognitive science just where it overlaps the most with law - how we use basic cognitive categories like intent, space, time, events and causation. The Stuff of Thought might offer insights into a broad range of issues in legal theory. Legal theory could make more use of such cognitive science concepts as chunking, recursion, and the primary qualities of an object. Other topics likewise resonate in thinking about the law: The book suggests that metaphor is an important cognitive tool, but less constraining than might be thought. Linguistic analysis of verb classes and polysemy suggests that words have surprisingly determinate meaning. Our apparent innate sense of causation (drawn from an analysis of language) sheds light on the legal treatment of causation. Lastly, The Stuff of Thought describes the role of indirect speech, whereby people convey information without revealing their state of mind - which often allows social interaction to proceed smoothly. Default rules in the law, we suggest, often play an analogous role.

The essay then explores the cognitive aspects of stories (following literary theorists like Mark Turner who have linked cognitive science with narrative theory), suggesting a recursive definition of story, and another angle to the trolley problem. Looking at the cognitive role of stories permits a fuller view of legal reasoning, learning, and remembering. This fits well with recent scholarship, such as work on origin stories, and law and genre theory.

Download the essay from SSRN here.

December 16, 2008

Law and Linguistics

Andrei Marmor, USC Gould School of Law, has published "What Does the Law Say? Semantics and Pragmatics in Statutory Language," forthcoming in Analisi e Diritto. Here is the abstract.

The content of communication in a given speech situation often goes beyond what the speaker has explicitly said. The main purpose of this essay is to explore this aspect of linguistic communication in the legal context. The paper begins with a general outline of the dividing lines between semantics and pragmatics, laying out the main distinctions that need to be employed. Next, the paper suggests that the pragmatic aspects of statutory language differ in some important ways from the pragmatics of an ordinary conversation. The paper explains some of these differences which make the understanding of legal language somewhat problematic. Finally, the paper points toward some solutions, based on the distinction between content that is semantically implicated by an utterance and content that is implicated conversationally.

Download the paper from SSRN here.

December 15, 2008

Law, Morality, and Television

MSNBC.com's Susan Young has this story about the interesting moral dilemmas that television dramas pose "for fun." But do viewers take them too seriously? What do adults and children learn from these dramatizations? Commentators trace the evolution of today's ethically complex hero, from Jim Rockford of the Rockford Files to "24"'s Jack Bauer here.

December 12, 2008

Some Personal Reflections On "To Kill a Mockingbird"

Sherrilyn Ifill, University of Maryland, School of Law, has published "To Kill a Mockingbird Perspectives," at 41 Maryland Bar Journal 54-59 (September/October 2008). Here is the abstract.

"To Kill a Mockingbird" is one of the most influential and widely acclaimed legal novels in American history. It tells the story of a small-town white lawyer who is appointed to defend a black man accused of raping a white woman in 1930s Alabama. The lawyer, Atticus Finch, is one of the great legal heroes of American fiction. The story, told from the perspective of Atticus' daughter Scout, explores race, class, gender, family and law. Most of all it is a both critical and loving account of the white South.

This article is a personal story about the influence of "To Kill a Mockingbird" on Professor Ifill, an African American civil rights lawyer and law professor. In the piece, she explores the implication of some of the fictional liberties taken by the book's author Harper Lee. Ifill also challenges her own previously uncritical view of the character of Atticus Finch. Ifill then presents the stories of some of the real-life lawyers in Maryland, black and white, who defended black men accused of violent crimes against whites in the 1930s. Professor Ifill learned of the work of these lawyers while researching her 2007 book, "On the Courthouse Lawn: Confronting the Legacy of Lynching in the 21st Century."

Download the paper from SSRN here.

December 10, 2008

Translation as Metaphor

Robert Leckey, McGill University Faculty of Law, has published "Filiation and the Translation of Legal Concepts," in Legal Engineering and Comparative Law (volume 2)(Geneva: Schulthess, 2009). Here is the abstract.

The paper argues for the use of the metaphor of translation of legal concepts in comparative law by exploring recent reforms to the law of assisted reproduction by the legislature of Quebec. It argues that lawmakers and comparative lawyers may learn from the cautions advanced for literary and legal translators by the translation literature. It argues that the Quebec instance of legislated changes in order to facilitate assisted procreation by lesbian couples shows an excessive literalism in the translation of rules applicable to "natural" procreation to assisted procreation. The legislature might constructively have looked to other parts of the existing private law, as well as to sociological accounts of intentional lesbian reproduction. Translation-as-metaphor also speaks fruitfully to comparatists: it may alert them to the losses of functionalist comparison. Specifically, the treatment of legal rules as "solutions" to a common problem elides distinctive institutional, rhetorical, and discursive differences.

Download the paper from SSRN here.

21 Grams

Bruce L. Hay, Harvard Law School, has published "The Earth Turned to Bring Us Closer," in volume 29 of Cardozo Law Review (2008). Here is the abstract.
This paper is part of a symposium issue entitled "Law and Event," whose subject is the work of the contemporary French philosopher Alain Badiou. The paper offers a reading of "21 Grams," a film that treats in narrative terms some of the central problems addressed in Badiou's work, notably the connections between love, fate, and mathematics, and the mysterious nature of the "event" in history. The paper emphasizes the film's effort to blend Greek myth and philosophy, Christian theology, and modern chaos theory.

Download the paper from SSRN here.

December 9, 2008

Religious Words, Secular Argument

Jack Lee Sammons, Mercer University School of Law, has published "A Rhetorician's View of Religious Speech in Civic Argument," at 32 Seattle University Law Review 367 (2008).
This paper examines the role of religious speech in democratic civic argument by challenging liberal methods of addressing the issue of religious speech with a more rhetorical view of civic argument. The primary issue, from this perspective, is whether or not rhetoric's own constitutive restraints are adequate to address the risks of religious speech. After a brief analysis of liberal methods, the rhetorical nature of civic argument is described, and both the risks of religious speech and the constitutive restraints are examined.

Download the article from SSRN here.

Upcoming Symposium: Women and the Law

From Suzanne Kim, Rutgers School of Law, Newark
Rutgers School of Law-Newark is pleased to be celebrating its centennial this year. To honor the law school's tradition of contributing to social justice, we are hosting a day-long symposium on Feb. 13, 2009 entitled "Rutgers School of Law-Newark Celebrates Women Reshaping American Law."

The event gathers major figures in the development of women's rights law and highlights the connections between Rutgers and that history. United States Supreme Court Justice Ruth Bader Ginsburg will deliver the keynote address. Professor Catharine MacKinnon will deliver closing remarks.

Speakers also include Professor Sarah Burns of NYU School of Law, Professor Sally Goldfarb of Rutgers School of Law-Camden, Professor Victoria Nourse of University of Wisconsin Law School, Professor Susan Deller Ross of Georgetown University Law Center, and Professor Wendy Webster Williams of Georgetown University Law Center. Yale College Professor Fred Strebeigh, author of the forthcoming book Equal: Women Reshape American Law (Norton 2009), will deliver opening remarks.

Information about scheduling and registration to come by January. In the meantime, please save the date!

December 5, 2008

Call For Papers

Reinforcing and Resisting Feminist Representations: Spaces, Voices and Identities
The 12th Annual Louisiana State University Women's and Gender Studies Conference
March 5 - 6, 2009
Louisiana State University
Baton Rouge, Louisiana

Call for Proposals

The theme of this year’s conference, Reinforcing and Resisting Feminist Representations: Spaces, Voices and Identities, addresses the role that women’s and gender studies scholarship has played in challenging, rethinking and expanding repressive and limiting understandings of feminism, gender expression, and identity in the traditional disciplines and society. We invite proposals that broadly address issues of representations of women and gender in innovative and interdisciplinary ways. Possible topics include: representations of gender in popular culture; gender, sexuality, activism and politics; intersections of queer theory, transgender studies and feminisms; global feminisms; women’s autobiography; feminist research methods; the role of interdisciplinary research and pedagogy; and feminist articulations of intersectionality. We also welcome proposals that do not directly address the theme, but which are relevant to WGS scholarship as well as alternative formats such as academic or documentary films and performances. Pre-formed panels are especially encouraged.

Abstracts of 250 words (for individual papers) and 750 words (for pre-formed panels) are due Tuesday January 20th to wgsconference@gmail.com. All submissions should include the following information: Name; Department/Program; University; Title of Presentation; Required Technology
More information can be found here: http://www.lsu.edu/wgs/conference.html
Keynote Speaker
Janet L. Miller, Professor of English Education (Teachers College, Columbia University) and 2008 American Educational Research Association Curriculum Studies Lifetime Achievement Award recipient will present this year’s keynote address. Dr. Miller’s research focuses on feminist curriculum theorizing, constructions of teachers' identities in collaboration and school reform efforts, and issues of representation, especially in autobiographical and biographical forms. Dr. Miller served as Vice-President (1997-1999) and Secretary (1990-1992) for AERA Division B (Curriculum Studies). She was Managing Editor of The Journal of Curriculum Theorizing (JCT) from 1978 through 1998 and was Chair of JCT’s Bergamo Curriculum Theorizing Conferences during that time frame. She also was elected President of the American Association for the Advancement of Curriculum Studies (AAACS) for two consecutive terms (2001- 2007). Dr. Miller is the author of Creating Spaces and Finding Voices: Teachers Collaborating for Empowerment (SUNY Press), Sounds of Silence Breaking: Women, Autobiography, Curriculum (Peter Lang), and Co-Editor, with William C. Ayers, of A Light in Dark Times: Maxine Greene and the Unfinished Conversation.

Intellectual Property and Rhetoric

Patricia Louise Loughlan, University of Sydney Faculty of Law, has published "'You Wouldn't Steal a Car': Intellectual Property and the Language of Theft," at 29 European Intellectual Property Review 401 (2007). Here is the abstract.
It is actually quite easy to tell a good guy from a bad guy when one of the guys is being called a thief. He is the bad guy. It is in fact quite hard to think of a thief as any sort of good guy at all once you have begun thinking about him, even just impressionistically, as a thief.

This paper will scrutinise and consider the legitimacy of the pervasive rhetorical use of the language of 'theft' in intellectual property discourse. That language, comprised of words like 'theft', 'thief', 'stealing' 'burglar's tools' and occasionally even 'robbery,' is increasingly employed to describe the unauthorised use of intellectual property, so that new social meanings become attached to acts such as the digital transfer of a musical file or a film:

YOU WOULDN'T STEAL A CAR
YOU WOULDN'T STEAL A HANDBAG
YOU WOULDN'T STEAL A TELEVISION
YOU WOULDN'T STEAL A DVD
DOWNLOADING PIRATED FILMS IS STEALING
STEALING IS AGAINST THE LAW

Download the paper from SSRN here.

Rhetoric and Reparations

Lolita Buckner Inniss, Cleveland-Marshall School of Law, has published "A Critical Legal Rhetoric Approach to 'In Re African-American Slave Descendants Litigation'," as Cleveland-Marshall Legal Studies Paper No. 8-155. Here is the abstract.
In this paper I apply critical legal rhetoric to the judicial opinion rendered in response to the Defendants' Motion to Dismiss Plaintiffs' Second Amended and Consolidated Complaint in 'In Re African American Slave Descendants', a case concerning the efforts of a group of modern-day descendants of enslaved African-Americans to obtain redress for the harms of slavery. The chief methodological framework for performing critical legal rhetorical analysis comes from the work of Marouf Hasian, Jr. particularly his schema for analysis which he calls substantive units in critical legal rhetoric. Critical legal rhetoric is a potent tool for exposing the way in which the public ideologies of society and the private ideologies of jurists, legislators and other legal actors are manifested in legal and law-like pronouncements. After introducing this case, I briefly tracing the evolution and meaning of the term rhetoric and examine the relationship between rhetoric and law. I next explore the connection between rhetoric and ideology, which is crystallized in the form of the ideograph and its use as a tool of what is known as critical rhetoric. Finally, I show how critical legal rhetoric is achieved by bringing critical rhetoric to law, and thereafter apply critical legal rhetoric to the case of 'In Re African American Slave Descendants'.

Download the paper from SSRN here.

December 4, 2008

December 2, 2008

Some Gift Suggestions For the Non-Denominational Holidays

Don't know what to give for the holidays? Pierre Bayard's Sherlock Holmes Was Wrong: Reopening the Case of the Hound of the Baskervilles, newly translated into English by Charlotte Mandell, is now available. In this "revisionist view" of the classic Conan Doyle novel, French critic argues that the iconic detective didn't know what he was doing half the time. Monsieur Bayard is the author of How To Talk About Books You Haven't Read, and Who Killed Roger Ackroyd: The Mystery Behind the Agatha Christie Mystery.

Now available on DVD: Perry Mason: Season 3, volume 2; The Sopranos: The Complete Series; volume 1 of cult hit Pushing Daises, and both seasons of a little known series Dead Like Me, which came and went quickly, but starred Mandy Patinkin, who heads up a group of "reapers" in charge of leading the recently dead across the line that separates the living from those who have departed this life. I highly recommend Dead Like Me and Pushing Daisies, which has a similar theme (crossing the line between life and death), for their wit and thoughtful consideration of the issues that touch us all. Pushing Daisies is, however, more explicitly law-related, since it's about solving crime.

The Unemployed Philosopher's Guild offers a number of interesting and amusing items, including a disappearing civil liberties mug (pour in hot liquid and watch parts of the Bill of Rights vanish) and a Democratic Dream mug (same instructions; all of the U.S. turns a Democratic blue). The site also offers religious items, but be warned--you'll need to bring your sense of humor with you.

Language, Literature, and Constitutional Theories

Ian C. Bartrum, Yale Law School & Vermont Law School, has published "Metaphors and Modalities: Meditations on Bobbitt's Theory of the Constitution," in 17 William & Mary Bill of Rights Journal (2008). Here is the abstract.

This article builds on Philip Bobbitt's remarkable work in constitutional theory, which posits a practice-based constitution based in six accepted "modalities" of argument. I attempt to supplement Bobbitt's theory - which has a static and exclusive quality to it - with an account of interpretive evolution based in Max Black's interaction theory of metaphors. I suggest that we can (and do) create constitutional metaphors by deliberately overlapping Bobbitt's modalities of argument, and that through these creative acts we can grow the practice of American constitutionalism. I then present case studies of this metaphoric process at work in three fields of constitutional practice: from constitutional theory I take Akhil Reed Amar's theory of "intratextualism"; from constitutional advocacy I select Louis Brandeis brief in Muller v. Oregon; and from constitutional judging I look to the Supreme Court's decision in Brown v. Board of Education. I conclude that the concept of modal metaphors offers practitioners a principled and grammatical way to create new constitutional meanings and resolve constitutional dilemmas.


Download the article from SSRN here.

Rhetoric in Child Custody Decision Making

Linda L. Berger, Mercer University School of Law, has published "How Embedded Knowledge Structures Affect Judicial Decision Making: An Analysis of Metaphor, Narrative, and Imagination in Child Custody Disputes." Here is the abstract.

We live in a time of radically changing conceptions of family and of the relationships possible between children and parents. Though undergoing "a sea-change," family law remains tethered to culturally embedded stories and symbols. While so bound, family law will fail to serve individual families and a society whose family structures diverge sharply by education, race, class, and income.

This article advances a critical rhetorical analysis of the interaction of metaphor and narrative within the specific context of child custody disputes. Its goal is to begin to examine how these embedded knowledge structures affect judicial decision making generally; more specifically, the article's aim is to help advocates make room for difference and diversity in the lives of families.

The rhetorical analysis indicates that the best interests of the child standard fails to explain child custody outcomes, and it suggests that the cognitive setting for custody disputes - cluttered with outmoded metaphors, simplistic images, and unexamined narratives - interferes with the ability of judges to attend to complex and radical transformations of parent and child relationships. The article proposes that practicing lawyers and scholars use rhetorical analysis first to uncover the symbols and stories that affect judicial decision making and then to construct arguments that may overcome deeply rooted constraints, help individual clients, and persuade policy makers.

Download the paper from SSRN here.

Legal Language

Andre Marmor, USC Gould School of Law, has published "The Pragmatics of Legal Language," as USC Law Legal Studies Paper No. 08-11. Here is the abstract.

In most standard cases, the content of the law is tantamount to the content that is communicated by the relevant legal authority. It has been long noticed by linguists and philosophers of language, however, that the content of linguistic communication is not always fully determined by the meaning of the words and sentences uttered. Semantics and syntax are essential vehicles for conveying communicative content, but the content conveyed is very often pragmatically enriched by other factors. My purpose in this essay is to explore some of the pragmatic aspects of understanding what the law communicates. I argue that in some respects the pragmatics of legal language is unique, sometimes uniquely problematic. Exploring those problems forms one of the aims of this essay. But I suggest that we can do more than that: by drawing on the distinctions between the various pragmatic aspects of language use, we should be able to offer some generalizations about types of pragmatic enrichment that could be taken to form, or not to form, part of what is actually determined by legal expressions.

Download the paper from SSRN here.

Law, Philosophy, and the Rhetorical Tradition

Francis Joseph Mootz III, UNLV School of Law, has published "The Irrelevance of Contemporary Academic Philosophy for Law: Recovering the Rhetorical Tradition," in On Philosophy in American Law (F. J. Mootz III, ed.; Cambridge University Press, 2009). Here is the abstract.


This short paper will appear in a volume of original essays, On Philosophy in American Law (Francis J. Mootz III ed., Cambridge Univ. Press forthcoming 2009). I argue that the undeniable rift between philosophy and law is more than a simple dichotomy of theory and practice. Instead, the sharp distinction between philosophy and law occurred when both disciplines built insular guilds that employed distinctive vocabularies to distinguish themselves from rhetoric, and it is by returning to their roots in rhetoric that philosophy and law might find their common ground in the elucidation of rhetorical knowledge.

Download the paper from SSRN here.

James Boyd White On the Links Among Law, Thought, and Language

James Boyd White, University of Michigan Law School, has published "Establishing Relations Between Law and Other Forms of Thought and Language," 1 Erasmus Law Review (2008). Here is the abstract.

The law does not, and could not, exist in an intellectual or linguistic vacuum. No one believes that the law is or should be impervious to other languages, other bodies of knowledge. In this sense the argument about the 'autonomy' of law is an empty one: law cannot be, should not be, perfectly autonomous, unconnected with any other system of thought and expression; yet it plainly has it own identity as a discourse, it own intellectual and linguistic habits, which it is our task as lawyers to understand and develop. It follows that an essential topic of legal thought is the proper relation between law and other forms of thought and expression - a topic that is important, difficult and full of interest. In this paper, Professor White compares three ways in which the law is related to other fields: translation (as in the use of expert testimony), disciplinary imperialism (as in law and economics), and comparison of modes of thought and expression (as in law and literature).

Download the article from SSRN here.