October 30, 2009

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.

October 29, 2009

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.

October 27, 2009

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.

October 26, 2009

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.

October 23, 2009

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.

October 22, 2009

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.

October 21, 2009

Call For Papers: Comparative Law 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.


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

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

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.


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

October 16, 2009

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).

October 15, 2009

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.

October 14, 2009

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.

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

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.

October 13, 2009

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.

October 8, 2009

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.

October 1, 2009

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.