January 31, 2012

Grand Juries and "The Good Wife"

Findlaw's Stephanie Rabiner examines the legal accuracy of this week's Good Wife episode here.

January 30, 2012

Rex Stout's "Justice Ends at Home"

Ross E. Davies, George Masson University School of Law; The Green Bag, has published Leg, Culp, and the Evil Judge at 2012 Green Bag Almanac and Reader 321. Here is the abstract.

Nobody could have known it at the time, but when Rex Stout’s novella Justice Ends at Home was published in 1915, it foreshadowed not only the rise of two enduringly popular fictional heroes (Nero Wolfe and Archie Goodwin), but also the fall of one enduringly objectionable actual villain (Judge Martin T. Manton of the United States Court of Appeals for the Second Circuit). Leading scholars of the work of Rex Stout agree that the two main heroic characters in Justice Ends at Home — the flabby, phlegmatic, middle-aged Simon Leg and his sharp, energetic, youthful assistant Dan Culp — prefigured the fat Nero Wolfe and svelte Archie Goodwin who made their first appearance in Stout’s 1934 novel, Fer-de-Lance. As Stout biographer John McAleer puts it, “eighteen years before Fer-de-Lance was written, Wolfe and Archie already lived nebulously in the mind of Rex Stout.” Unlike Simon Leg and Dan Culp, Judge Fraser Manton — the main villainous character in Justice Ends at Home — has passed largely unnoticed by scholars of Stout and of the law. But the fictional Judge Manton is in fact a prefiguration of the infamous real-life Judge Martin T. Manton of the U.S. Court of Appeals for the Second Circuit. The similarities go beyond the names. Indeed, the two Mantons have enough in common to support an inference that Stout based his fictional Judge Fraser Manton on the real Martin Manton, although the real Manton would not become a judge until 1916 — the year after Justice Ends at Home was published. In other words, Stout’s selection of a corrupt Judge Manton for the lead bad-guy role in Justice Ends at Home was intriguingly prescient.
Download the article from SSRN at the link.

Literary Property and Copyright

Alina Ng, Mississippi College School of Law, has published Literary Property and Copyright in volume 10 of Northwestern Journal of Technology and Intellectual Property (May 2012). Here is the abstract.


Even when the first subject matter of copyright control was literary works, the specific rights of authors who produce these works had never been clearly articulated. Copyright laws have protected a statutory right to distribute the work to the public that may be broadly owned by both author and publisher while the common-law right of property over the work, which would have protected an author’s creative interest in the work, have been dismissed by the courts as a legitimate source of law. This paper examines literary property as a form of authorial rights, which authors may potentially have over works of authorship and which is both separate and distinct from statutory copyright. By looking at publication contracts between manuscript publishers and authors such as John Milton, Ralph Waldo Emerson, Harriet Beecher Stowe, Henry Thoreau, and Oliver Wendell Holmes, this paper suggests that there are two sources of rights over literary and artistic works - one at common-law and another at statute – as evidenced by the fact that authors retained personal property rights over their work after exclusive rights to print were assigned to the publisher. Should the notion of literary property be accepted as another source of right for the author, there will be immense implications for how  scholars, jurists, and policy-makers understand and shape copyright laws. If literary property is acknowledged as separate from statutory copyright, then ownership of the work and ownership of the specific rights under §106 of the Copyright Act would entail different entitlements. The author’s role in the copyright system will be more clearly defined as ownership of literary property delineates rights owned and obligations owed by authors who produce literary works for the rest of society. Finally, this paper argues that social expectation to access creative works may be checked against the authors’ right to protect their creative personality and integrity as well as the publishers’ right to receive fair payment for the use of the work if a clear conceptual distinction between literary property and copyright is drawn.
Download the article from SSRN at the link. 

Justice Holmes and Pragmatism

Seth Vannata, Morgan State University, has published Justice Holmes at the Intersection of Philosophical and Legal Pragmatism. Here is the abstract.
Because of the prolific scholarship on legal theory by Judge Richard Posner, especially since his turn away from law and economics toward “pragmatism,” legal scholars began reading “legal pragmatism” as references to Posner’s thought alone. My present task is part of a larger process of rethinking Posner’s version of legal pragmatism. Posner’s inspiration for his turn toward pragmatism can be attributed, in large measure, to Oliver Wendell Holmes, Jr. Posner buys into three central insights of legal pragmatism, whose origins lie in the work of Holmes, anti-formalism, the prediction theory of the law, and a modicum of indeterminacy in judicial decision making. Further, Posner is a methodological pluralist, refusing to reduce the process of adjudication to any one method or approach, such as textual literalism or originalism. He takes the mask off of these judicial theories and claims that underneath each is a pragmatist. 

But Posner’s central position, to which the present article is a propadeutic to a more substantial criticism, is that academic philosophy and philosophical pragmatism in particular have no role to play in legal pragmatism as it manifests itself in the process of adjudication or in the process of legal scholarship. Since the legal theory Posner thinks useless is so infected by philosophy, legal theory, according to Posner is not relevant to the law either. If legal theory is not relevant to the law, legal institutions seem intellectually impoverished, ignoring the storehouse of wisdom in philosophy and depriving law of the intelligence necessary for social growth. Posner’s polemical stance has not gone unnoticed in the world of jurisprudence and legal theory. But the result has been that legal scholars have now begun to associate legal pragmatism with Posner’s seeming anti-theory. Thus, an important element in rethinking Posner’s version of legal pragmatism is presenting a defense of Holmes as a philosophical pragmatist and a pragmatist in the tradition of his contemporary, Charles Sanders Peirce. Such is my present task. Holmes’s scholarship resides at the intersection of philosophical and legal pragmatism, where Posner imagines that these roads run parallel to each other and therefore do not intersect.

The central position I advance here is that Holmes’s historical legal scholarship and several of his judicial arguments evince the pragmatic sensibility of C.S. Peirce. Holmes puts to work several elements of Peirce’s pragmatism: (1) that we must infer knowledge internal to the mind by external signs; (2) that the best method to fix our beliefs and settle our doubts relies on a communal inquiry as opposed to authoritarian dictates; (3) that the meaning of a concept, such as law, is found in the effects of its enactment; (4) that falliblism, liberalism, and skepticism of absolute truth are the proper norms to deter dogmatism and authoritarianism; (5) that the reality of values and ideals are found in their functional effects; and (6) that the norms, principles, standards, and rules, which guide the process of judicial inquiry, are generated by the facts of the case, as opposed to being a priori principles (versus natural law theory) and as opposed to lacking any reality at all, (versus nominalism). Peirce offered us the idea that to understand the meaning of a concept, we must look to its practical effects. I offer the idea that if we want to know the meaning of pragmatism itself, we should look to its practical effects in the scholarship and judicial decisions of Oliver Wendell Holmes, Jr.
Download the paper from SSRN at the link.

January 25, 2012

Dickens On Design

Here, from The Guardian.

Digital Messing Around

In his column in the January 23rd New York Times, Stanley Fish suggests that parsing humanities texts using computers may be fun, but it can also lead us to find more than we were looking for.

January 18, 2012

Musings On Bob Dylan and the Law From Another Blog

Great post on Bob Dylan and the law here at Nightly Song.

CBS Orders Pilots for New Legal Shows

CBS has ordered pilots for two new projects, an updated version of Sherlock Holmes, set in New York City, and a new legal drama. According to the Hollywood Reporter, the Sherlock Holmes show, right now titled Elementary, will be written by Robert Doherty, and produced by Sarah Timberman and Carl Doherty. The legal show,  Baby Big Shot, is a project from Dana Calvo, Kevin Falls, and Jamie Tarses. Calvo was involved with the legal drama Franklin & Bash. More here from the Chicago Tribune.

January 16, 2012

Calling Inspector Lewis

Professor Steven Rawlings, an astrophysicist working on the Square Kilometer Array located at Oxford, died Wednesday night. His colleague, Professor Devinder Sivia, has been arrested by the police, but is now out on bail. Professor's Rawlings widow has said she does not believe Professor Sivia is involved in her husband's death.

The New York Times notes that this story has all the makings of a Colin Dexter Inspector Morse novel. An Inspector Lewis episode actually centers on astronomers and murders (Dark Matter), as do episodes of Murder She Wrote (Harbinger of Death) and Psych (From the Earth to Starbucks).

January 15, 2012

How Did Pablo Neruda Die?

Allegations are surfacing that celebrated poet Pablo Neruda (1904-1973) did not die of natural causes, but was murdered. Attorney Eduardo Contreras, a friend of Mr. Neruda's, and Manual Araya, the man who was the poet's bodyguard, say they believe that the poet was poisoned at the clinic at which he was recovering from surgery in 1973. Mr. Contreras would like to have Mr. Neruda's body exhumed and examined. A judge has also ordered an investigation into the death of former President Sergei Frei, who died at the same clinic. More here in a story from MSNBC.

January 13, 2012

Scotland's Judiciary and the Development of Article III


James E. Pfander and Daniel D. Birk, Northwestern University School of Law, have published Article III and the Scottish Enlightenment, which is forthcoming in the Harvard Law Review. Here is the abstract.

Historically-minded scholars and jurists invariably turn to English law and precedents in attempting to recapture the legal world of the framers. Blackstone’s famous Commentaries on the Laws of England offer a convenient reference for moderns looking backwards. Yet the generation that framed the Constitution often relied on other sources, including Scottish law and legal institutions. Indeed, the Scottish judicial system provided an important, but overlooked, model for the framing of Article III. Unlike the English system of overlapping original jurisdiction, the Scottish judiciary featured a hierarchical, appellate-style judiciary, with one supreme court sitting at the top and an array of inferior courts of original jurisdiction down below. What’s more, the Scottish judiciary operated within a constitutional framework - the so-called Acts of Union that combined England and Scotland into Great Britain in 1707 - that protected the role of the supreme court from legislative re-modeling.

This Article explores the influence of the Scottish judiciary on the language and structure of Article III. Scotland provided a model for a single “supream” court and multiple inferior courts, and it defined inferior courts as subordinate to, and subject to the supervisory oversight of, the sole supreme court. Moreover, the Acts of Union entrenched this hierarchical judicial system by limiting Parliament to “regulations” for the better administration of justice. Practice under this precursor to Article III’s Exceptions and Regulations Clause establishes that a supreme court’s supervisory authority over inferior courts would survive restrictions on its as-of-right appellate jurisdiction. The Scottish model thus provides important historical support for the scholarly claim that unity, supremacy, and inferiority in Article III operate as textual and structural limits on Congress’s jurisdiction-stripping authority.

Download the article from SSRN at the link. 

Judicial History In Medieval and Early Modern England


Edward Peter Stringham, Fayetteville State University School of Business and Economics, and Todd J. Zywicki, George Mason University School of Law, have published Rivalry and Superior Dispatch: An Analysis of Competing Courts in Medieval and Early Modern England as George Mason University Law & Economics Research Paper No. 10-57. Here is the abstract.

In most areas, economists look to competition to align incentives, but not so with courts. Many believe that competition enables plaintiff forum shopping, but Adam Smith praised rivalry among courts. This article describes the courts when the common law developed. In many areas of law, courts were monopolized and imposed decisions on unwilling participants. In other areas, however, large degrees of competition and consent were present. In many areas, local, hundred, manorial, county, ecclesiastical, law merchant, chancery, and common law courts competed for customers. When parties had a choice, courts needed to provide a forum that was ex ante value maximizing.

Download the paper from SSRN at the link. 

January 12, 2012

Domestic Abuse and the Courts in the Nineteenth Century

Jerome J. Nadelhaft, University of Maine, has published 'For Every Wrong There is a Remedy': Changing Law and Fleeing Wives in Nineteenth-Century America. Here is the abstract.


Wife abuse was much in the public eye in the nineteenth century. Throughout the century a large but unknown number of wives sought to preserve their lives by abandoning their homes. It was never easy, but at least some were not themselves abandoned by the courts, which dealt with the many issues raised: for example, whether relatives and neighbors were allowed to assist them and even encourage them to flee. Fortunately, the American Revolution inspired a judicial belief that problems could be solved. Equity courts flourished and the chancellors who presided felt comfortable acting where the law was silent. More and more over the course of the century, and over a widening area, chancellors and common law judges could be heard to denounce both wife abuse and the abusers. By the end of the century, they had come to reject any notion that a wife’s provocation justified or excused abuse, that one who was not without fault forfeited her right to be free from violence, that staying with an abuser was condonation. Through judicial activism, some wives found safety and support.


Download the paper from SSRN at the link.

January 10, 2012

The Best Fictional Detectives

The Guardian offers its top ten fictional sleuths here. What? No Hercule Poirot? It gives one furiously to think.

January 9, 2012

There Once Was a Law Prof Named Norman

Norman Otto Stockmeyer, Cooley Law School, has published Enhancing Caselaw Instruction with Online Limericks, in volume 19 of The Law Teacher (Fall 2012). Here is the abstract.


Quoting from online exchanges with his students, the author explains and illustrates how he uses case-related limericks to supplement classroom instruction in his first-year Contracts course. His TWEN discussion forum, dubbed “Poetic Justice,” encourages students to get turned on to the poetic side of contract law as they attempt to formulate legal rules derived from leading cases.
Download the paper from SSRN at the link. 

January 8, 2012

January 7, 2012

Legal Verse

Marquette Law School student Gabriel Houghton muses about law and poetry at the Marquette University Law School Faculty blog here.

Charles Addams

The Google Doodle today, January 7, 2012, honors "graveyard guru" Charles Addams, father of the Addams family, who came into living rooms first through print in the New Yorker and then via television--John Astin as Gomez Addams, Carolyn Jones as Morticia, Jackie Coogan as Uncle Fester (Frump), and Ted Cassidy as Lurch, the butler. The wonderfully scary but ultimately well-intentioned family lives off some kind of stash--a lucky thing, because Gomez, who is after all an attorney, doesn't seem to have any clients. In the 1990s, Raul Julia and Angelica Huston starred in a couple of Addams Family films. More here from PC Magazine and here from the Washington Post. Check out Morticia's Morgue here.

January 6, 2012

Saint Joan

She told the heir to a throne her voices led her to him, and to defend her country and her religion. She dressed as a man and scared the pants off the English. Burned as a witch, she's revered as a saint. Kathryn Harrison discusses Joan of Arc's mystique, six hundred years on.

January 2, 2012

PBS: Show It the Money

PBS reacts to a loss of federal funding after the debt ceiling crisis and the economic downturn generally by creating a more assertive ad campaign that features its popular series Downton Abbey and Sherlock. By doing so it tries to lure viewers who often tune in to HBO or Showtime. More here from the New York Times.

January 1, 2012

Downton Abbey Returns For a Second Season

Season 2 of the series Downton Abbey premieres on January 8 on PBS. As you'll recall, the last episode of season 1 ended with news of the formal declaration of war between Great Britain and Germany, announced at Lord and Lady Crawley's garden party. This popular new series stars Maggie Smith, Dan Stevens, and Elizabeth McGovern and touches on many law-related issues, including an entail (Lord Crawley's daughters cannot inherit his title), women's rights, clashes between the "haves" and the "have-nots", illustrated most clearly by the attitudes of some of the servants working for Lord and Lady Crawley who resent their "downstairs" positions and by the fiery rhetoric of some of the politicians who visit the local  town.

Check out The First World War Poetry Digital Archive and the UK's National Archives website for more on the First World War.

I Say Coca, You Think...

Coca doesn't just mean the plant from which cocaine is derived, and its many associations, or the name of a gifted comedienne, any longer. Spelled COCA, it stands for Corpus of Contemporary American English, a database which tracks new and emerging meanings for English language words. Did The Mentalist's Agent Lisbon just mention that she has requested a "bolo" for some suspect? What is a "bolo," anyway? Search COCA, and discover it's a "be on the lookout" alert (or notice) for a car or suspect as well as a kind of tie. "Be on the lookout" makes more sense in the context of "The Mentalist"'s episode. COCA lets you search for phrases and related words as well. I searched the two word phrase "Socratic method" and got 39 hits; the system gave me context, dates, and classification (about 20 words, academic, popular, or fictional, 1990s-today). Results are laid out in columns and the screen can look a little cluttered, but that's not fatal. Guided tour here.

Another database for emerging words is Wordnik, which presents new terms in their unvarnished glory. Wordnik uses many new sources, such as blogs and Twitter, to find its candidates. When I searched "bolo," I got the usual definitions of "bolo tie." When I capitalized "BOLO," I got "be on the lookout" as a definition. Having to know enough about terminology and searching to try capitalizing the word may be a drawback of this database, since users may not always capitalize the word when they write it, nor may searchers capitalize when they search for the term. When I searched "socratic method," the system found a limited number of hits, but suggested "socratic method" as a phrase. I re-ran the search and found many more hits.

The system also offers alternatives for a search, when it doesn't find many hits. Other features: "random word" and "word of the day." The database is set up differently from COCA. It resembles more precisely a traditional print dictionary: definition on the left and examples on the right. Results are easy to read.

More here from the New York Times about both Wordnik and COCA, and online dictionaries in general.