May 23, 2010

The Bad Boy of Sherwood Forest

From the May 21 New York Times, a consideration of the image of Robin Hood in the movies via newly released DVDs. Dave Kehr writes about prior Robin Hoods as Ridley Scott, Russell Crowe and Cate Blanchett reimagine the olde, olde story.

The website Shadows of Sherwood has links to Robin Hood in Literature. Here is information about the real and mythic Robin, from about.com and more material about the Robin Hood legend, including links to texts, from the Robin Hood Pages.

May 21, 2010

Judge Bao In Literature

Wilt Lukas Idema, Harvard University Library, has published Introduction to Judge Bao and the Rule of Law: Eight Ballad-Stories from the Period 1250-1450, in Wilt L. Idema, Judge Bao and the Rule of Law (World Scientific Publishing, 2009). Here is the abstract.
Pure, orthodox and incorruptible, Judge Bao has been serving as the preeminent embodiment of justice in China for almost a thousand years, so much so his court cases have been adapted as stories, novels and plays over the centuries. Now, for the very first time a series of eight ballad-stories on Judge Bao, dating from the period 1250-1450, are offered in a complete and annotated translation. These texts will provide the reader a reflection of the legend of Judge Bao in its earliest phase of development, with an extended introduction placing the ballad-stories in context with the development of the Judge Bao legend. These ballad-stories, in contrast to past plays dating from the same period, present abuse of power and corruption as endemic in the courts and bureaucratic service, and show Judge Bao imposing the rule of law even on the emperor.

Download the introduction from SSRN at the link.

See also Wilt L. Idema, The Pilgrimage to Taishan in the Dramatic Literature of the Thirteenth and Fourteenth Centuries 19 Chinese Literature: Essays, Articles, Reviews 23 (December 1997).

May 20, 2010

Putting Your Law School Training To Work

Along with Jim Belushi, Jerry O'Connell will star in the new legal drama, The Defenders, on CBS. Mr. O'Connell is learning whereof he speaks. In addition to having been a successful thespian for some time, he's also a law student at Southwestern Law School. Read more in this post from the ABA Journal. So, he can say, "I'm a law student, AND I play a lawyer on TV."

May 19, 2010

Race and Legal History at the University of Texas

Thomas D. Russell, University of Denver College of Law, has published ‘Keep the Negroes Out of Most Classes Where There Are a Large Number of Girls’: The Unseen Power of the Ku Klux Klan and Standardized Testing at The University of Texas, 1899-1999, as University of Denver Legal Studies Research Paper No. 10-14. Here is the abstract.

The paper’s title is a quotation from The University of Texas registrar nine days after the decision in Brown v. Board of Education. This paper examines 20th-century techniques of racial domination at The University of Texas by crosscutting two narratives.

The first narrative that the paper presents is one of the development of bureaucratic or institutional forms of racial exclusion. The paper describes the university’s efforts to limit the application of the Brown v. Board of Education.

In the immediate years after the United States Supreme Court’s decision in Brown v. Board of Education, The University of Texas developed and instituted entrance exams that university officials knew would exclude a disproportionate number of African-American applicants. Publicly, the university presented the testing as race-neutral. The university stalled post-Brown integration until the exclusionary admissions testing was in place.

An explicit concern of the university in seeking to exclude African-American students during the 1950s was a racialized sexual concern about the university’s white women.

The second narrative is the story of William Stewart Simkins, a law professor at The University of Texas from 1899 to 1929. Professor Simkins helped to organize the Ku Klux Klan in Florida at the conclusion of the American Civil War, and he advocated his Klan past to Texas students.

Like the university registrar during the 1950s, Professor Simkins was explicitly concerned with the sexual defense of white women. Relying upon the analysis of historian Grace Elizabeth Hale, the paper links Professor Simkins’s advocacy of the Klan to the early 20th-century history of lynching and white supremacist violence.

During the 1950s, the memory and history of Professor Simkins supported the university’s resistance to integration. As the university faced pressure to admit African-American students, the university’s faculty council voted to name a dormitory after the Klansman and law professor. The dormitory carries his name to the present day. During this time period, alumni also presented the law school with a portrait of Professor Simkins. Portraits and a bust of Professor Simkins occupied prominent positions within the law school through the 1990s.

The sources for the paper are drawn largely from primary materials of the university’s archives, including the papers of the university’s Board of Regents, Chancellor, President, and faculty committees. The author completed this research during the 1990s while a member of The University of Texas School of Law faculty
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Download the paper from SSRN at the link.

Update: Professor Russell notes coverage of the issue, and discussion of his work, in the Austin American-Statesman, here.

May 18, 2010

Memoirs, Authenticity, and Fraud

Simon Stern, University of Toronto Faculty of Law, has published Sentimental Frauds , at 36 Law & Social Inquiry (2011). Here is the abstract.

This paper examines the class action against James Frey, alleging fraud because of his falsehoods in A Million Little Pieces. Memoirs often include inaccuracies or elaborate fabrications - including demonstrably false claims about the author's background and experiences - and yet, until the suit against Frey, there had never been a lawsuit against a memoirist alleging fraud on this basis. To explore the nature of the fraud allegations in this case, I turn to the eighteenth-century sentimental novel, which similarly linked readers’ reactions to the author’s emotional authenticity. Fraud was an ongoing concern for sentimental novelists, some of whom used elaborate editorial to ploys to disavow responsibility for the text, while others populated their novels with fraudulent characters, intended as foils for the protagonist. Following a discussion of these novels, I conclude by considering the implications of the Frey case for future claims of literary fraud, and I compare this example with the suit against Laura Albert for fraud in transactions relating to her novel Sarah (1999), published under the name J.T. LeRoy.

Law in Shakespeare's Sonnets

Jeffrey G. Sherman, IIT-Chicago-Kent College of Law, has published Scorn Not the Sonnet: In Search of Shakespeare's Law. Here is the abstract.

Legal scholars love to use Shakespeare’s works as stimuli and even models for legal analysis. We write about King Lear or Measure for Measure or The Merchant of Venice but rarely about the Sonnets. Why is that? Perhaps we find the poems too obscure. Or too insipid. (One of Shakespeare’s most famous sonnets – the “Fortune and men’s eyes” one – seems at first glance to say nothing more than “When I’m feeling depressed, I think about you, and that cheers me up.”) In this article, I examine three of Shakespeare’s sonnets and illustrate how a legal scholar or law professor might use these poems as scholarly or pedagogical vehicles. These illustrations will not discuss legal issues to a point of conclusion but will simply present some legal issues as analytic opportunities offered by a close reading of the Sonnets.


Download the paper from SSRN at the link.

May 17, 2010

May 14, 2010

An End To Law & Order?

Will "Law and Order" disappear from the airwaves? Rumors are flying as NBC executives apparently discuss furiously with Dick Wolf over broadcasting a final year of the long-running drama. Keeping the veteran series for the 2010/2011 season would mean L&O would have outlasted legendary oater "Gunsmoke" (1955-1975) as longest running TV drama. Read more here in a post from James Hibberd's blog The Live Feed and here in an article from the Washington Post.

Update: It seems as if L&O has been axed. Mr. Wolf may try for a home for his flagship series on TNT at another network. He is, according to at least one source, George Carlinly angry at the cancellation.

Update to the update: It's official, according to the Hollywood Reporter. L&O has finished its run on NBC. Dick Wolf's comment: "Never complain. Never explain." L&O: SVU still airs on NBC, and L&O: Criminal Intent airs on the USA Network. Another series, Law & Order: UK, airs on the British network, ITV1.

Here's a quick look at the roll of some names that have graced the L&O roster. Meanwhile, fans can look forward to "Law & Order: Los Angeles" (aka LOLA) for the fall.

For analyses of L&O, see:

Keetley, Dawn, Law & Order, in Prime Time Law (Jarvis, Bob, and Paul Joseph, Carolina Academic Press, 1998).
Mader, Shannon, Law & Order, in Lawyers in Your Living Room 117 (Michael Asimow, ed. ABA: 2010).
Rapping, Elayne, Law and Justice as Seen on TV (NYU Press, 2003).

May 11, 2010

The Alternative Cultural Narrative and Legal Education

Brennan P. Breeland has published I Am Jack's Radical Self-Degradation: A Pedagogical Argument for the Inclusion of the Indigenous Narrative in the Postmodern Legal Education. Here is the abstract.

An American legal education begins with a first-year curriculum which is largely uniform across the spectrum of institutions: Contracts, Torts, Constitutional Law, Property, Civil Procedure, and the like are considered the requisite basis for the continued study of law. In the course of learning the basic precepts underpinning these areas of law, first-year law students are exposed not only to the majority rules and those which govern the jurisdictions which contain the law school itself, but also minority rules and important lines of alternative reasoning, because incorporating these alternative analyses is critical to providing future practitioners of the law the proper tools with which to practice. It goes without saying that the value gained from exposure to the minority rules is not insignificant, but this is not the end of the discussion of legal pedagogy and the best way to educate legal thinkers.

In analyzing legal pedagogy, it is important to determine not only the quality of the instruction, but what it is that is being taught. Of equal importance is the converse – an analysis of what is not being taught. The typical legal education does not usually incorporate an understanding of the nature of the law as a narrative, and further, it reinforces the silencing of alternative cultural narratives, or story-based understandings of legal concepts, in favor of the “color-blind” jurisprudence and pedagogy that is only color-blind in that it only sees white (i.e., non-colored) western narratives as viable. This article explores the value of incorporating native narratives into the traditional legal education, in a manner similar to the study of the common law of other jurisdictions for the purpose of learning basic concepts of law.

The article proposes the inclusion of the indigenous narrative in the baseline legal education by including cases from tribal courts in the case method of legal study, and considers this proposal through the lens of Lacanian psychoanalytic theory, specifically as illustrated by David Fincher’s film adaptation of Chuck Palahniuk’s novel Fight Club.


Download the paper from SSRN at the link.

May 7, 2010

Robin Hood-Itry

Nicholas Adam Curott and Alexander Fink, George Mason University, have published Bandit Heroes: Social, Mythical or Rational?. Here is the abstract.
Bandits steal from their fellow men. Yet they are regularly subjects of folksongs, novels and movies. In these outlets they are presented as folk heroes despite their crimes. Sociological explanations for this phenomenon based upon the concept of the ‘social bandit’ and psychological explanations based upon myth building, have been brought forth to explain the seeming contradiction. We argue that the available approaches are misled or incomplete. We propose an alternative explanation for the bandit hero phenomenon and maintain that by acting in their self-interest bandits provide valuable services to society. The benefits that bandits generate form the foundation for their positive reception.


Download the paper from SSRN at the link.

May 6, 2010

A Little Light Reading

End of exam grading (or maybe just lazy mid-spring reading): from Malcolm Gladwell, in the New Yorker, musings on the story of a man who never was, via a review of a new book on the subject, Ben Macintyre's Operation Mincemeat; buckle that swash! with Allan Massie, as he considers the real value of historical fiction in a piece for Standpoint. Survey the battle between print and ebook with Ken Auletta (again for the New Yorker)--do we value electronic less than paper? I wonder if that's the mindset that creates so much piracy (ah! back to swashbuckling). Then check out a new evaluation of the young Alexis de Tocqueville's discovery of a young United States--a review of Leo Damrosch's Tocqueville's Discovery of America by Sean Wilentz for The American Prospect.

Art and Legal Form

Andreas Philippopoulos-Mihalopoulos, The Westminster International Law and Theory Centre, University of Westminster,has published Repetition: Deleuze and Kierkegaard on Law, Justice and Art, in Law and Art (Oren Ben-Dor, ed; London: Routledge, 2010). Here is the abstract.

In the final stage of his career, Giorgio de Chirico produced an interminable series of almost identical paintings that copied and only partly developed his successful early metaphysical period style. This was less of a performance and more of an income-generating exercise based on the high demand for his metaphysical paintings, especially the ones of the Piazza d’Italia. Still, the practice amounted to the production of what de Chirico called ‘extremely exact variations’. This poses questions on whether repetition is capable of generating difference. From this perspective, I compare de Chirico’s obsessive repetition with the normative repetition in law. The text considers the edifice of the law as the repeating practice of normative production and questions whether this can be repetition in the sense of producing difference. In such an edifice, awnings of justice can be observed, artfully posited against the horizon, as awnings capturing spaces of transcendence. This connection between the edifice and the horizon is described here as the awnings of justice. The argument is substantiated through a discussion on Kierkegaard and Deleuze’s theories of repetition.

Download the essay from SSRN at the link.

Montesquieu's Spirit of the Laws

Murray Bessette, Morehead State University, has published "Montesquieu on Nature and Law: A Preface to the Understanding of the Spirit of the Laws," as a Western Political Science Association 2010 Annual Meeting Paper. Here is the abstract.
While the title of Montesquieu's greatest oeuvre, The Spirit of the Laws, identifies the subject of the work, it nevertheless remains obscure. Many presume to know what law is. The title, however, will prompt most readers to ask: What is the spirit of the laws? Insofar as the title implies the existence of a relation between spirit and law, it also implies that knowledge of what both spirit and law are is a necessary precursor to understanding it. Montesquieu's choice of title, then, should lead any reader who ponders it to raise three philosophic questions: What is law? What is spirit? And, what is their relation? The reader sensitive to the distinction in which philosophy is said to originate - that between nature and law - sees the question of nature lurking in the others. That nature is a foremost concern of the work is hinted at by Montesquieu's use of the word and its derivatives in the book and chapter headings. Thus, to the three questions above is added a fourth: What is nature? The following essay is an attempt to sketch Montesquieu's answers to these four questions as he presents them in both the preface and the first book of The Spirit of the Laws.

A New Issue of Law, Culture, and the Humanities

The new issue of Law, Culture, and the Humanities is out. It includes:

Charles Barbour, Sovereign Times; Acts of Creation
James R. Martel, Can There Be Politics Without Sovereignty? Arendt, Derrida and the Question of Sovereign Inevitability
Jill Stauffer, Equality and Equivocation: Saving Sovereignty From Itself
Oscar Guardiola-Rivera, What Comes After Sovereignty?
Joseph Jenkins, Dead Hand Rising: Dialectics Beyond Last Wills in The Merchant of Venice and The Tempest
Sharon Cowan, The Elvis We Deserve: The Social Regulation of Sex/Gender and Sexuality Through Cultural Representations of "The King"
Jinee Lokaneeta, A Rose By Another Name: Legal Definitions, Sanitized Terms, and Imagery of Torture in 24
Eugene Garver, Spinoza on Constitutional Interpretation

and Book Reviews by Darien Shanske, Robert Nichols, Elizabeth I. Pirnie, Sara Murphy, and Manas Ray

May 4, 2010

TV Judges and Tort Reform

Joshua Wilson and Erin Ackerman have published "TV Judges and the Civil Law Narrative" as a Western Political Science Association 2010 Annual Meeting Paper. Here is the abstract.
This is a collaborative study examining the relationship between popular reality-based judge television shows, 'tort tales,' and the politics of tort reform. TV judge shows share or approximate many features of the tort tale described by Haltom and McCann in Distorting the Law: Politics, Media, and the Litigation Crisis. The question driving our research is whether these TV Judge shows contribute to tort tales' conservative anti-litigation message or, instead, generate counter-narratives about the civil law system. Since tort reform is constantly a political issue, this study addresses one way in which popular support for tort reform might be mobilized.

May 3, 2010

A Review of William Domnarski's "Federal Judges Revealed"

Chad M. Oldfather, Marquette University Law School, has published "Oral History and the Study of the Judiciary," in volume 78 of George Washington Law Review Arguendo (2010). Here is the abstract.
This essay, which is a review of William Domnarski’s “Federal Judges Revealed” (Oxford University Press, 2008), explores the usefulness of oral history as a vehicle for understanding the judiciary. “Federal Judges Revealed” presents the insights gleaned from a study of over 100 oral histories given by Article III judges, ranging across the span of the judges’ lives. The essay first explores the methodological strengths and weaknesses of oral history as a general matter, and then further develops the analysis through a review of three oral histories given by the late Seventh Circuit Judge Thomas Fairchild. The essay then turns specifically to Domnarski’s book, outlining the ways in which it contributes to our understanding of judges and the judiciary.