Bezanson on Performance Art

Randall P. Bezanson, University of Iowa College of Law, has published "Performing Art,", in a modified version in the forthcoming Art and Freedom of Speech (University of Illinois Press, 2008), in the Federal Communications Law Journal (April 2008), and as University of Iowa Legal Studies Research Paper 05-08. Here is the abstract.

In this modified version of a chapter in his forthcoming book, Art and Freedom of Speech, (Univ. of Illinois Press, 2008-09), Professor Bezanson begins to probe the nature of art and its relation to the first amendment free speech guarantee. The article, to appear in the Federal Communication Law Journal, uses the Karen Finley v. NEA case, and specifically discussion of Finley's performance art, to critique the Supreme Court's very approach to the Finley case and to view the issues from the perspective of art, artistic freedom, and the Supreme Court's role in fashioning constitutional protection for art as art, and not simply as cognitive speech.

Download it from SSRN here.

NBC To Offer Full Episodes Of Old Favorites

NBC will begin offering full episodes of favorite old dramas, including Kojak, Miami Vice, and the Alfred Hitchcock Hour (on NBC.com), the original Battlestar Galactica and Buck Rogers (on SciFi.com), the Alfred Hitchcock Hour and Night Gallery on ChillerTV.com and Miami Vice, Kojak and Simon and Simon and SleuthTV.com. Some overlap obviously exists; read more here.

Now I Am the Master! (And the Little League Coach) Darth Vader as Everyman

NPR's Andrea Shea seeks to deconstruct Star Wars's Darth Vader and discovers there's a touchy-feeley side to everybody's favorite tough guy. Read (and hear) more here.

Upcoming Conference at the University of Chicago Law School

Announcement of an Upcoming Conference

Emotion in Context

Exploring the Interaction between

Emotions and Legal Institutions



May 9-10, 2008


The University of Chicago Law School

1111 East 60th Street, Chicago






The design of legal institutions is based on implicit and explicit assumptions about human behavior, for example assumptions about how people individually or collectively respond to new information, assess risks, or decide whom to trust or fear, about what motivates people to forgive or to seek vengeance, or about how to promote or discourage empathy. This conference will bring together scholars working in philosophy, neuroscience, neuroeconomics, sociology, psychology, political science and other disciplines exploring the complex interaction between emotion and social structure to consider both how institutional context affects the experience and expression of emotion, and how emotion norms affect the shape and operation of legal institutions.



Confirmed participants include: Mary Anne Case, Richard Epstein, Cass Sunstein, Martha Nussbaum, Joshua Greene, Elizabeth Phelps, Kevin McCabe, John Deigh, Susan Bandes, Oliver Goodenough, Christoph Engel and Scott Anderson.





For additional information, please visit our website at http://www.law.uchicago.edu/Lawecon/events.html
or contact Susan Bandes at sbandes@uchicago.edu

or Marjorie Holme at mholme@uchicago.edu.



Admission is free but space is limited so please register if you plan to attend.





Emotions and Institutions is sponsored by the University of Chicago Law School, the Gruter Institute for Law and Behavioral Research, the DePaul University College of Law and the John M. Olin Program in Law and Economics at the University of Chicago Law School.

Some New Publications on Law and the Humanties

Here is a very selected list of recently published law review articles on law and the humanties.

Cavallaro, Rosanna, Chester Himes’s Cotton Comes to Harlem: A Reparations Parable, 19 Cardozo Stud. L. & Lit. 103 (2007).

Dinunzio, Peter, Elimor Kim, and Robert Whitman, Karl N. Llewellyn: How Icelandic Saga Literature Influence the Scholarship and Life of an American Legal Realist, 39 Conn. L. Rev. 1923 (2007).

Gearey, Adam, The Poetics of Practical Reason: Joseph Raz and Philip Larkin, 19 Cardozo Stud. L. & Lit. 377 (2007).

Halley, Michael, Breaking the Law in America, 19 Cardozo L. & Lit. 471 (2007).

Jonakait, Randolph N., Law in the Plays of Elmer Rice, 19 Cardozo Stud. L. & Lit. 401 (2007).

Kamir, Orit, To Kill a Songbird: A Community of Women, Feminist Jurisprudence, Conscientious Objection, and Revolution in A Jury of Her Peers and Contemporary Film, 19 Cardozo Stud. L & Lit. 357 (2007).

Machura, Stefan, An Analysis Scheme for Law Films, 36 U. Balt. L. Rev. 329 (2007).

Moore, Nathan, Nova Law: William S. Burroughs and the Logic of Control, 19 Cardozo Stud. L. & Lit. 435 (2007).

Pether, Penelope, Editor’s Introduction: Symposium: The New Exceptionalism: Law and Literature Since 9/11, Cardozo Stud. L. & Lit. 155 (2007).

Sarat, Austin, Fathers In Law: Violence and Reason in 12 Angry Men, 82 Chi.-Kent L. Rev. 863 (2007). Part of a Symposium.

Schulte, Martin, A Literary Study of Desires, Fantasies, and Identifications in a Corporate Law Fim: Kermit Roosevelt’s In the Shadow of the Law, 19 Cardozo L. & Lit. 533 (2007).

Thurschwell, Adam, Writing and Terror: Don Delillo on the Task of Literature After 9/11, 19 Cardozo Stud. L. & Lit. 277 (2007).

Tranter, Kieran, “Frakking Toasters” and Jurisprudences of Technology: The Exception, the Subject and Techne in Battlestar Galactica, 19 Cardozo Stud. L. & Lit. 45 (2007).

White, James Boyd, The Word and the Law, 41 Ga. L. Rev. 923 (2007). Part of a Symposium of Milner Ball.

Justice Alito On "The Sopranos"

Debra Cassens Weiss notes that Justice Alito doesn't like those Italian stereotypes revived through The Sopranos, at least, so the Trenton Times reports. Ms. Weiss says in her piece in the ABA Journal that the Associate Justice finds that a "trifecta" (Italian-Americans, New Jersey and gangsters) come together in shows like the popular HBO series. A cleaned up version of the show (that is--something that comports with FCC rules) is currently running on A&E.

Symbols and the Law

Caspar van Woensel, University of Leiden, Faculty of Law, and member of the Restitutiecommissie (Dutch Spoliation Advisory Panel), has published "Symbols and the Law", in BRAND, GOD, AND BAN: IMPROPER USE AND MONOPOLIZATION OF SIGNS WITH A HIGH SYMBOLIC VALUE, Amstelveen, Netherlands: deLex, 2007. Here is the abstract.

This paper contains a summary of the PhD study of Caspar van Woensel, which translates as Brand, God and Ban: Improper use and monopolization of signs with a high symbolic value (2007). This study is concerned with the Dutch as well as, in part, the European legal framework surrounding the improper use and monopolization of signs with a high symbolic value, or: symbols.

Central questions are: how does Dutch law look upon signs that many people regard as essential or 'sacred' in their personal lives or in society, and: does this law presently stand where it should? The book discerns between (i) national and international symbols, (ii) cultural and historical symbols, (iii) religious symbols.

The study deals with two main groups of issues that to a large extent make up the relationship between symbols and the law: (1) questions surrounding the rules for their use, including legal responses to their improper use, and (2) questions with regard to their monopolization as trade marks.

The book discusses civil law and self regulating authorities, criminal law, freedom of expression, and intellectual property law, mainly trade mark law, but also the law on designs and copyright law. A returning aspect in this discussion is a growing and maturing cultural diversity in the Netherlands and its implications for Dutch law, minority groups and society.

Download the essay from SSRN here.

Sherwin on Law and Film

Richard K. Sherwin, New York Law School, has published "What Screen Do You Have In Mind? Contesting the Visual Context of Law and Film Studies," in STUDIES IN LAW, POLITICS AND SOCIETY, Austin Sarat, ed., Elsevier, 2008. Here is the abstract.

Law on the screen gives rise to a distinct way of doing jurisprudence. In this sense, it is incumbent upon legal scholars to discern with great care the kind of reality and the way of being that cinematic and electronic screens invite us to assume. Jurisprudence theorizes law in accordance with the cultural and cognitive meaning making tools at its disposal: story frames, character types, social scenarios, metaphors, as well as cultural and socially embedded or constructed emotional patterns, among other narratival and purely sensational elements. Law and film studies thus may be viewed as encompassing a larger concern with mind and culture. It addresses how a specific set of communication tools in a given socio-legal context polices the production, maintenance, and suppression of meaning and discrete meaning making practices. This aspect of the field implicates a rich agenda for empirical research. And by showing how it is done - how the manifold ways of habituated meaning making produce, preserve, and exclude possible worlds as well as ways of being (seeing/experiencing) - visual legal studies may also help to clear a path toward creative reconstruction. In this respect, law on the screen scholarship invites an empirical as well as an emancipatory practice, a source of knowledge as well as a call to action against false necessity.

Download the essay from SSRN here.

Talking Trash About Thrillers

In today's New York Times, Charles McGrath has a piece about writer Joan Brady, the effects of glue-sniffing on her literary career, and why so many people think detective and mystery fiction isn't "real literature." Indeed, Ms. Brady won 115,000 pounds in a settlement after a ruling that glue in the environment around her home had affected her.
Ms. Brady apparently made the claim that writing detective and mystery fiction is somehow something less than writing literature. The discussion has gone on and is likely to go on for quite a while. See Mark Larson's piece in the Guardian. Meanwhile, successful mystery and thiller writers engagingly entertain a good many of us, and I suspect have very nice vacation homes to show for it.

A Novel Interpretation of the Second Amendment

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

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

Download the entire paper from SSRN here.

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

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

New Works on Conan Doyle and Sherlock Holmes

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

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

Read more here.

Is Interdisciplinary Legal Study a Luxury?

Over at Balkinization, Professor Brian Tamanaha (St. John's School of Law) argues that most law schools should abandon their vigorous pursuit of interdisciplinary studies in law:

[P]erhaps detailed knowledge of the social sciences—anything beyond rudimentary information every educated person should possess—is irrelevant to the practice of law.
It seems evident that one can be an excellent lawyer without knowing any of this interdisciplinary stuff, while it is not obvious that learning this will make a person a better lawyer. A stronger case can be made that this information might improve the performance of judges, but a more efficient way to deliver this benefit is to set up classes (in economics, statistics, etc.) for sitting judges—programs which now exist.

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

In the non-elite law school universe--with schools almost entirely dependent upon tuition, with a majority of graduates who do not get corporate law jobs and only rarely become law professors--the interdisciplinary movement cannot be so easily justified.
Let me just give three reasons why it might be a bad idea for non-elite law schools. First and foremost, as argued above, there is no evidence that it will make their students better lawyers. Second, it costs a lot of money to go interdisciplinary, and (because non-elite schools are tuition driven) this money will come out of the pockets of the students. Third, their education might suffer if their faculties emulate the elite law school trend toward hiring JD/PhDs with little or no practice experience (assuming a person with some experience in the practice of law has a bit more insight to impart to students about how to be good lawyers). . . .
The bottom line of this post: the notion that interdisciplinary studies within law schools promises to improve the practice of law is an old idea backed up by little evidence. Non-elite law schools might not be serving their students well if they get caught up in this trend.

I strongly disagree. Brian's post seems to be informed by a common set of assumptions about legal education and practice that I think are false. These assumptions involve a particular vision of what tools are necessary for law practice and of what good lawyering is all about, as well as a vision of what role legal education should play in preparing students for the practice of law.
With regard to the vision of law practice, I think that it is a common assumption that it involves learning doctrines, rules, case holdings, drafting skills, etc. While this is part of law practice, the practice of law is tremendously varied. Some students go on to become judges and policymakers. Many will work for government, for think tanks, for public interest organizations. Many might work in house at companies, where they might also be making policy. For example, one of the most rapidly growing positions is that of privacy officer -- most companies have numerous people devoted to understanding privacy law and making corporate policy with regard to privacy. In any policymaking position, knowledge of existing legal doctrine is just one part of the job. One also needs to be able to see the big picture, to make wise policy choices beyond merely complying with existing law.
Moreover, the practice of law involves many dimensions. Some students will become trial lawyers, and interdisciplinary knowledge might enhance their ability to make eloquent arguments before the jury. Literature, psychology, rhetoric, and other fields are very important for a successful career as a trial lawyer. One of the difficulties in justifying interdisciplinary legal studies is that often the materials read or studied don't have a direct bearing on practice. So if one reads Melville or Shakespeare, or reads works of behavioral economics, psychology, or sociology, the benefit isn't in terms of having authorities that one can cite in a brief or recite before a jury. But the exposure to these ideas, the process of reading and thinking about these works enhances one's general store of knowledge, one's understanding of life, and so on. This indirectly enhances one's ability to practice law. The brilliant funeral speech of Marc Antony in Shakespeare's Julius Ceasar is a wonderful display of rhetoric, and much can be learned from comparing it with Brutus's speech. Behavioral economics, psychology, and cognitive science -- the work of Daniel Kahneman and Amos Tversky, for example -- reveals how the framing of choices can have dramatic effects on what people will choose.
Brain notes that "no convincing evidence has been provided to demonstrate that 'interdisciplinary studies' will help one whit in the training or performance of lawyers." But is there a way to produce the evidence he desires? Is there a way to prove that learning history, literature, philosophy, psychology, economics, and other humanities have any value for most careers? What would be the metric by which this could be measured?

Certainly knowledge of rules and doctrine is important for law practice. But in many cases, the doctrine is unclear or is subject to interpretation and debate. It is the ability to make persuasive arguments about the doctrine that separates the great lawyers from the mundane. A good legal argument often touches upon policy implications; it examines the downstream consequences of rules, slippery slope problems, etc. A good lawyer might realize that there is a body of sociological, empirical, or psychological knowledge that supports a particular interpretation of the law. More indirectly, a lawyer steeped in a broad humanistic understanding of the law might think more creatively and might see issues and arguments that others without such an understanding would not.
Moreover, the study of interdisciplinary knowledge can have a broader indirect effect on the law. For example, the legal realists had a tremendous influence on legal practice. They changed the way many people thought about the law. They didn't do so directly. So lawyers and judges might not have been readily citing Karl Llewellyn or others as authorities for various legal propositions, but their thought did influence the way that legal arguments are made, the way that lawyers and judges understand the task of applying and interpreting the law. Although the law still struggles to integrate interdisciplinary knowledge in practice, I don't think that the project begun by the legal realists is a failure.
So I think that it is a deeply flawed assumption to see the practice of law as the mere mundane application of rules and doctrines. For the creative lawyer, steeped in literature and humanities, in social science, with an understanding of policy and a larger world view, the range of options in a case is much broader, the tools to work a case are much more numerous and vibrant. The lawyer with interdisciplinary training can often see more -- see issues and arguments that the more narrowly-focused doctrinalist won't see. I've read many a complaint and brief that could have benefited from more thoughtful framing, a more creative approach, and a knowledge of the humanities. I've seen cases where attorneys seemed to be very limited in their vision, where they they merely proffered mundane readings of rules, where they took too much as given and didn't push for more. And on the flip side, I've seen many cases where a visionary attorney has won with a new argument, a clever interpretation, a wise marshaling of facts and evidence, a novel reading of cases or application of law. Many lawyers act like mechanics, but the great ones, in my opinion, have a wisdom, judgment, and creativity that enriches everything they do.
What role should law schools play in the training of lawyers? A common assumption is that preparing people for the practice of law should involve teaching them the practicalities of practice. So teach them the rules, train them in the nitty-gritty of how to litigate, make deals, etc. While this is important, I think it is a limited vision of what it means to prepare people for the practice of law. At the end of the day, nothing can truly prepare you for the practice of law except actually doing it. There's a certain wisdom that comes from experience that seasoned practitioners have and that I don't think can readily be taught in school. The best way to learn how to practice law is to do it. Clinical education and learning certain practice skills can help, but most lawyers will learn about the practice of law as they are practicing it.
So if lawyers learn some of the most important lessons about practice after they graduate from law school, then what's the purpose of law school? I believe it should be to provide students with a rich body of knowledge that they can draw upon to sharpen their thinking, open their minds to new ideas, get them to see the larger picture, help them figure out what they love about the law so they can launch their careers in the right direction, etc. These things are often difficult when one is in practice, with a desk full of heaps of paper and with the phone ringing off the hook. There often isn't the luxury of sitting back and thinking more broadly about the law. There isn't as much time to enrich one's mind with a study of the humanities and the ways they intersect the law, for example. Law school helps get one started on this endeavor. It teaches students that there are many different ways to think, it infuses them with ideas that they might not ordinarily think about unless they have time to step back from it all and ponder. The effects on their abilities as a lawyer are often indirect; they are hard to articulate and to pin down. We shouldn't demand that lawyers point to the work of Ludwig Wittgenstein, John Dewey, HLA Hart, Karl Llewellyn, Daniel Kahneman, Fyodor Dostoyevsky, or Franz Kafka and say: "I won this case because of reading this particular thinker." But are they better lawyers for having read and reflected upon great works in the humanities, for having some background in a variety of different fields of study and their applicability to law? I'd venture to say yes.
Is the value of law school for a lawyer to be working a case and be able to remember some rule she learned in a class many years ago? I think not. To find the rules, lawyers only need to crack open the law books or hop on Westlaw or Lexis. The rules, in other words, are not what training to be a lawyer is all about. The practice of law can contain a lot of drudgery, and a significant part of it is perspiration. But it is also part inspiration, and it is also an art.
All this said, I still believe that law school should teach students rules and skills. But learning rules is not what will help students become top lawyers. Learning skills in law school can be helpful, but at the end of the day, learning skills is something that lawyers learn when in practice. Skills develop over time. What law school does is plant some seeds -- it lays a foundation. It is foolish, in my mind, to think that law school can spit out lawyers who are ready to go out of the gate. Law school builds the foundation. The rest of one's legal career is when the building gets built.
So in contrast to Brian, I encourage the development of interdisciplinary studies in law. I don't see why they only need to be a luxury for the elite schools. I see interdisciplinary studies as helpful to all lawyers, and as an important part of any good legal education.

Brian Leiter is also collecting comments.

Cross-posted at Concurring Opinions.

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

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

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

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

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

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

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

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

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

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

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

Cross-posted at Concurring Opinions.

Images of Justice

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

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

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

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

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

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

Download the entire paper from SSRN here.

Submission Deadline Extended for Law and Humanities Junior Scholar Workshop

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



PAPER COMPETITION:

The paper competition is open to untenured professors, advanced graduate students and post-doctoral scholars in law and the humanities; in addition to drawing from numerous humanistic fields, the Workshop welcomes critical, qualitative work in the social sciences. Between five and ten papers will be chosen, based on anonymous evaluation by an interdisciplinary selection committee, for presentation at the June Workshop. At the Workshop, two senior scholars will comment on each paper. Commentators and other Workshop participants will be asked to focus specifically on the strengths and weaknesses of the selected scholarly projects, with respect to subject and methodology. Moreover, the selected papers will then serve as the basis for a larger conversation among all the participants about the evolving standards by which we judge excellence and creativity in interdisciplinary scholarship, as well as about the nature of interdisciplinarity itself.



Papers should be works-in-progress between 10,000 and 15,000 words in length (including footnotes/endnotes), and must include an abstract of no more than 200 words. A dissertation chapter may be submitted but we strongly suggest that it be edited so that it stands alone as a piece of work with its own integrity. A paper that has been submitted for publication is eligible as long as it will not be in galley proofs or in print at the time of the Workshop. The selected papers will appear in a special issue of the Legal Scholarship Network; there is no other publication commitment. The Workshop will pay the travel expenses of authors whose papers are selected for presentation.



Submissions (in either Word or Wordperfect, no pdf files) will be accepted until January 22, 2008, and should be sent by e-mail to:



Center for the Study of Law and Culture

culture@law.columbia.edu



Columbia Law School

435 W. 116th Street

New York, N.Y. 10027



Please be sure to include your contact information. For more information: Manissa Maharawal, 212.854.2511 or culture@law.columbia.edu. The full text of the Call for Papers is available at: www.law.columbia.edu/center_program/law_culture.

The Hossack Case, Law and Literature

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

Law and Lit in the Journal of Legal Education

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

Call For Papers/Abstracts/Submissions

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

Submission Deadline: February 14, 2008

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

Web address: Email address: social@hicsocial.org

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

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

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

Submitting a Proposal:

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

Henning Mankell's New Novel

The Globe and Mail's Carl Wilson discusses Henning Mankell's new crime novel Kennedy's Brain, and his commitment to social causes. Mr. Mankell is the author of the police procedurals featuring Swedish inspector Kurt Wallander.


[Cross posted to the Seamless Web].

Rights for the Creators of Fan-Fiction and Others Involved in the Creation of Transformative Works

The new Organization for Transformative Works intends to protect "the interests of fans by providing access to and preserving the history of fanworks and fan culture in its myriad forms."

Here's its mission statement:

We envision a future in which all fannish works are recognized as legal and transformative and are accepted as a legitimate creative activity. We are proactive and innovative in protecting and defending our work from commercial exploitation and legal challenge. We preserve our fannish economy, values, and creative expression by protecting and nurturing our fellow fans, our work, our commentary, our history, and our identity while providing the broadest possible access to fannish activity for all fans.

Here are its values:

We value transformative fanworks and the innovative communities from which they have arisen, including media, real person fiction, anime, comics, music and vidding.
We value our identity as a predominantly female community with a rich history of creativity and commentary.
We value our volunteer-based infrastructure and the fannish gift economy that recognizes and celebrates worth in myriad and diverse activities.
We value making fannish activities as accessible as possible to all those who wish to participate.
We value infinite diversity in infinite combinations. We value all fans engaged in transformative work: fans of any race, gender, culture, sexual identity, or ability. We value the unhindered cross-pollination and exchange of fannish ideas and cultures while seeking to avoid the homogenization or centralization of fandom.

Read more in a blogpost from the Chronicle of Higher Education.

Bibliography:

Matthew Hills, Fan Cultures (2002)

Henry Jenkins, Textual Poachers (1992)

Professor Dave Hoffman Interviews Author Pat Rothfuss

Over at Concurring Opinions, where I blog a lot, my co-blogger Dave Hoffman has an interesting interview with fantasy fiction writer Pat Rothfuss. Dave questions Rothfuss about the legal issues in his book, The Name of the Wind.

It's Coming From Inside the House

According to the Chronicle of Higher Education, Professor F. Miguel Valenti, on the faculty at Arizona State University, believes 1) that students should see films as a whole, not in little snippets, and 2) that the film Friday the 13th has a great deal to answer for, stylistically speaking. In a recent interview (subscription may be required) Professor Valenti explains that "slasher films" like "Friday" and movies it has inspired encourage filmmakers to pump up the volume instead of emphasizing narrative and character development. He demonstrates what he means in his classes, and he tries to show his students the potential outcomes: unreasoning copycat killings such as the violence committed by young people who do not see what is on the screen as fantasy, parody, or exaggeration. Mr. Valenti, a graduate of Yale Law School,has written a text called More Than a Movie: Ethics in Entertainment (Westview Press, 2000).

Jeffrey R. Young, Notes From Academe: Ethics Meets Freddy Krueger, December 7, 2007.

See also Carol J. Clover, Men, Women, and Chain Saws: Gender in the Modern Horror Film (Princeton University Press, 1992).

Books Published in Law and Literature, 2007

Here's a roundup of some titles published in law and literature in the past year. This list is by no means comprehensive.

Cantarella, Eva, and Lorenzo Gagliardi, eds., Diritto e teatro in Grecia e a Roma (Milano: LED, 2007).

Chaplin, Susan, The Gothic and the Rule of Law, 1764-1820 (New York: Palgrave Macmillan, 2007).

Cooke, Jason Scott, Ideological Transference in the Barbary Capitivity Literature of Post-Revolutionary America (Master’s thesis, Old Dominion University, 2007).

DeLombard, Jeannine Marie, Slavery on Trial: Law, Abolitionism, and Print Culture (Chapel Hill: University of North Carolina, 2007).

Dolin, Kieran, A Critical Introduction to Law and Literature (Cambridge: Cambridge University Press, 2007).

Hanawalt, Barbara and Anna A. Grotans, eds., Living Dangerously: On the Margins in Medieval and Early Modern Europe (Notre Dame: University of Notre Dame Press, 2007).

Hepburn, Allan, ed., Troubled Legacies; Narrative and Inheritance (Toronto: University of Toronto Press, 2007).

Hegel, Robert E., and Katherine Carlitz,eds., Writing and Law in Late Imperial China: Crime, Conflict, and Judgment (Seattle: University of Washington Press, 2007).

Hofmann, Gert, Figures of Law: Studies in the Interference of Law and Literature (Tuebingen: Francke, 2007).

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

Jordan, Constance, and Karen Cunningham,eds., The Law in Shakespeare (Basingstoke and New York: Palgrave Macmillan, 2007). Essays by various contributors.

Kezar, Dennis, ed., Solon and Thespis: Law and Theater in the English Renaissance (Notre Dame: University of Notre Dame Press, 2007). Essays by various contributors.

King, Lovalerie, Race, Theft, and Ethics: Property Matters in African American Literature (Baton Rouge: Louisiana State University, 2007).

Litscher, Lee A., The Semiotics of Rape in Renaissance English Literature (New York: Peter Lang, 2007).

Macpherson, Heidi Slettedahl, Courting Failure: Women and the Law in Twentieth-Century Literature (Akron, OH: University of Akron Press, 2007).

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

Marcus, Sharon, Between Women: Friendship, Desire, and Marriage in Victorian England (Princeton: Princeton University Press, 2007).

Morawetz, Thomas, Literature and the Law (Frederick, MD: Aspen Publishers, 2007).

Rabell, Carmen, Ficciones Legales: Ensayos sobre ley, retórica y narración (San Juan, Puerto Rico:Maitén III, 2007).

Renaud, Gilles, Les Misérables on Sentencing: Valjean, Fantine, Javert and the Bishop Debate the Principles (Melbourne: Sandstone Academic Press, 2007).

Sanders, Mark, Ambiguities of Witnessing: Law and Literature in the Time of a Truth Commission (Stanford: Stanford University Press, 2007).

Scase, Wendy, Literature and Complaint in England, 1272-1553 (Oxford: Oxford University Press, 2007).

Sobota, Jan, and Jarmila Sobota, I, Robot: Three Laws of Robotics (Loket, Czech Republic: 2007).

Thomas, Brook, Civic Myths: A Law-and-Literature Approch to Citizenship (Chapel Hill: University of North Carolina Press, 2007).

Zurcher, Andrew, Spenser’s Legal Language: Law and Poetry in Early Modern England (Woodbridge: Boydell & Brewer, 2007).

Left-Wing Ideology and the U.S. Novel

Walter J. Kendall, John Marshall Law School, has published "Law and Norms in Left-Wing Novels of the U. S. Mid-Twentieth Century." Here is the abstract.

Each of the major law-based structuring or ordering systems of society - markets, regulation, litigation, and democracy - should work as a path to a good and just society. However, the scholarship of the last half of the 20th century establishes that none work the way they should; each is blocked by a wall with doors locked to working people. In such circumstances most people either make an everyday life for themselves through consumption, especially of small systems that do work, like DVDs and microwave ovens; or lose themselves in big ideological fundamentalisms, like religion and tribalism. Some few look for a key to open the door; fewer determine to scale the wall; fewer still to knock them down.

The University of Illinois has recently reissued 12 novels in a series entitled The Radical Novel Reconsidered, edited by Alan Wald of the University of Michigan. This paper will briefly summarize the fictional situation in which protagonists find themselves in each novel. It will look at the law as it is represented in the books. How is it perceived by the characters? Does it help or hinder them in their pursuit of the good life? What are its functions? Is the law autonomous or is it dependent on or determined by other social, cultural, or economic forces?

Download the paper from SSRN here.

Call for Papers: Writing the Midwest

Call for papers for panels on law and literature in the Midwest at “Writing the Midwest: A Symposium of Scholars, Creative Writers, and Filmmakers,” the annual meeting of the Society for the Study of Midwestern Literature, May 8-10, 2008 at Michigan State University in East Lansing, Michigan.

Papers focusing on the novels of Robert Traver (John Voelker) and Scott Turow are especially welcome, but any studies of law and literature on Midwestern authors or works with Midwestern settings are invited. Please see the symposium website for further information.

Contact person: Professor James Seaton, seaton@msu.edu. Paper proposals, which may be brief one-paragraph statements, should be sent to Professor Seaton before January 1, 2008.

Law in the Plays of Elmer Rice

Randolph Jonakait, New York Law School, has published "Law in the Plays of Elmer Rice," at 19 Law and Literature 401 (2007). Here is the abstract.

While novels, short stories, television shows, movies, and classic dramas are often analyzed for insights into the law, modern plays are seldom similarly examined. The plays of Elmer Rice, however, should be discussed by those interested in our legal system. Rice, although now largely forgotten, was a leading playwright of the last century. He was a law school graduate, and his work often incorporated legal themes. His plays provide provocative commentaries about the law and raise dilemmas about justice and ethics that resonate today. This essay explores the interplay between plays and the law by examining the life and work of Elmer Rice.

Download the paper from SSRN here.

Here's more on Rice: a webpage devoted to him.

From my bibliography An International Guide to Law and Literature:

Allison, James D., A Study of Some Concepts of Social Justice in the Published Plays of Elmer Rice (Dissertation, 1953).
Berhringer, Fred Dayton, The Political Theatre of Elmer Rice, 1930-1943 (Dissertation, 1980).
Brown, Jared Allen, The Theatrical Development of Social Themes in Selected Plays by Elmer Rice (Dissertation, 1967).
Dorsey, John T., The Courtroom Scene in Four Plays of Elmer Rice, 1 Journal of the College of International Relations (Japan) 221 (Feb. 1980).
Durham, Frank, Elmer Rice (1970).
Evans, Timothy Joe, Elmer Rice and the Letter of the Law (Master's thesis, 1974).
Farris, Hudell McCelvey, Elmer Rice: Law and Justice (Master's thesis, 1973).
Hogan, Robert Goode, The Independence of Elmer Rice (1965).
Napieralski, Edmund Anthony, Elmer Rice: A Critical Evaluationa of His Full-Length Published Plays (Dissertation, 1967).
Palmieri, Anthony F. R., Elmer Rice, a Playwright's Vision of America (Dissertation, 1974).
Palmieri, Anthony F. R., Elmer Rice (1980).
Usigli, Rodolfo, Conversaciones y encuentros (1974). Includes an interview with Elmer Rice.
Weaver, Richard Alden, The Dramaturgy of Elmer Rice (Dissertation, 1973).

Penelope Pether on Australian Law and Literature

Penelope Pether, Villanova University School of Law, has published "The Prose and the Passion," as 66(3) On Crime and the Law of 2007. It is also Villanova/Public Policy Research Paper 07-20. Here is the abstract.

This essay takes the late Robert Cover's insight that “No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning,” and thus that “For every constitution there is an epic” as the starting point for a reading of Australian legal and literary texts about the relationship of the nation and “outsiders,” as between constitutional subjects and texts. Ranging from “legal faction” texts Evil Angels (about the “Dingo Baby” case) and Dark Victory (about the Tampa incident) and The Castle, Rob Sitch's filmic satire on the Australian takings clause and the landmark Native Title Decision Mabo v. Queensland, No 2, to the recent High Court cases Al Kateb, Behrooz, Re Woolley, and Ruhan, it offers a critical account of recent Australian constitutional jurisprudence regarding asylum seekers and “sexually violent predators.” The essay argues that this recent High Court jurisprudence offers a radically circumscribed reading of Chapter III judicial power (analogous to Article III judicial power in the U.S. Constitutional context), and offers comparative constitutional law perspectives on problems in U.S. Constitutional hermeneutics.

Download the paper from SSRN here.

The Beeb and Microwaved Shakespeare

The BBC offers the productions (I use the word loosely) of the Reduced Shakespeare Company, a group that distills the Bard's plays to their essences. King Lear merits fifteen seconds, Othello turns into rap, and Macbeth, according to the group, was originally recorded on eight-track back in the sixteenth century. Good fun, if you need a diversion from grading exams.

Using Film to Teach Legal Writing: The Case of Dogville

Elyse Pepper, St. John's University School of Law, has published "The Case for "Thinking Like a Filmmaker": Using Lars von Trier's Dogville as a Model For Writing a Statement of Facts," as St. John's Legal Studies Research Paper No. 07-0083. It will also be published in the Journal of the Legal Writing Institute. Here is the abstract.

Notwithstanding the consensus that cases are won on facts - not law, scant attention is paid to persuasive fact writing in the law school curriculum. At best, we instruct students to ?tell a story,? and provide them with a few organizational guidelines. The result is one newly-minted class of lawyers after another who struggle to enlighten the court about ?what happened? to the parties in the case at bar. This article considers how movies can help law students make the connection between storytelling and legal outcomes. Not only do the films that captivate us as an audience address the themes we must communicate as advocates, but the narrative, structure, and style of a film can serve as a model for conveying a story to the court. Using Lars von Trier's 2003 film, Dogville, the article explores the philosophy and process of crafting a series of events into a persuasive statement of facts. Examining the film's storytelling techniques, and borrowing many of them, allows the advocate to build a convincing narrative that promotes the logical reasoning advanced in the brief's argument section.

Download the entire paper from SSRN here.

Legal Times notes that this year's Shakespeare Theatre Company's mock trial presented the spectacle of Theodore Olsen, former solicitor general of the United States, and now with the firm of Gibson, Dunn, & Crutcher, defending President Edward Plantagenet, Jr. against impeachment charges brought by the House of Representatives. Acting as counsel for the House was Deputy Solicitor General Michael Dreeben. Among the judges for the trial was Supreme Court Justice Ruth Bader Ginsberg. Here's more about the trial from the company's website. The trial was based on Christopher Marlowe's Edward II.

In past years the STC has put on mock trials involving Hamlet.

Erik Jensen, Case Western Reserve Law School, has published "Law School Attire: A Call for a Uniform Uniform Code." It is forthcoming in the Oklahoma City University Law Review and is available as Case Legal Studies Research Paper 07-30. Here is the abstract.

Law professors dress scruffily, and we need to do something about that.

[Yes. That's it.]

Download the entire Article from SSRN here.


Professor Jensen is the creator (instigator?) of the school of buffalo law jurisprudence. See Wheir's the Beef? Buffalo Law and Taxation and A Call for a New Buffalo Law Scholarship, 38 University of Kansas Law Review 433 (1990).

Droit Moral, IP, and the World of Harry Potter

Gary Pulsinelli, University of Tennessee College of Law, has published "Harry Potter and the (Re)Order of the Artists: Are We Muggles Or Goblins?"
Here is the abstract.

In Harry Potter and the Deathly Hallows, author J.K. Rowling attributes to goblins a very interesting view of ownership rights in artistic works. According to Rowling, goblins believe that the maker of an artistic object maintain an ongoing ownership interest in that object even after it is sold, and is entitled to get it back when the purchaser dies. While this view may strike some as rather odd when it is applied to tangible property in the “muggle” world, it actually has some very interesting parallels to the legal treatment of intangible property, particularly in the areas of intellectual property and moral rights. Because of the way these parallels have been developing and growing, we seem to be becoming more goblinish in our willingness to recognize ongoing rights in artistic objects, including allowing the artist to collect a commission on subsequent resale of the work. Practical and social considerations suggest that we are unlikely to go as far as recognizing a permanent personal right in the creator that lets him or her reclaim such an object after a sale or other transfer is made. However, we are moving closer to recognizing some forms of the collective right that the goblins actually seem to demand, a cultural moral right in important cultural objects that enables the descendants of that culture as a group to demand the return of the object. Thus, we muggles may not be as far from the goblins as we may have at first believed.

Download the entire paper from SSRN here.

Singing Law School Professor

Today's NPR Morning Edition has a story about Mark Pettit, the singing Contracts Professor of Boston University Law School. According to reporter Tovia Smith, Professor Pettit really spices up the classroom with student-provided parodies of standards like Michael Jackson's "Beat It" and Britney Spears' "[You're] Not That Innocent." Read the story here.

So, does Professor Pettit's IP Law colleague discuss the use of these parodies in his/her class? Or would that spoil the fun? [Yes, probably].

[Cross-posted to The Seamless Web].

Arthur Conan Doyle as Sherlock Holmes: The Slater Case

Lindsay Farmer, University of Glasgow, has published "Arthur and Oscar (and Sherlock): The Reconstructive Trial and the 'Hermeneutics of Suspicion'" in the International Commentary on Evidence, volume 5, article 4. Here is the abstract.

Sir Arthur Conan Doyle made a significant contribution to the campaign to free Oscar Slater, wrongly convicted of murder in 1909, and imprisoned for eighteen and a half years. This paper examines the trial of Oscar Slater in the light of the argument made by the historian Carlo Ginzburg that the nineteenth century saw the development of a new evidential paradigm as exemplified by the method of Conan Doyle's creation Sherlock Holmes. This is discussed in the context of the development of the `reconstructive' trial in the late nineteenth-century, by looking at changes in the types of evidence admitted to trials, at the changes in the law of evidence and at the relation between the detective and legal counsel. It argues that, like detective fiction, the trial was structured around a `hermeneutics of suspicion' that was institutionalised in certain features of the reconstructive trial. This encouraged jurors and other observers to distrust appearances and to make judgments based on their interpretation of the evidence and the appearance of the accused. Ironically, this contributed to the miscarriage of justice in the case of Oscar Slater that Conan Doyle later sought to challenge by use of the same method.

Download the entire article from the Berkeley Electronic Press here.

Super Size Me

Regina Austin, University of Pennsylvania Law School, has published "'Super Size Me' and the Conundrum of Race/Ethnicity, Gender, and Class for the Contemporary Law-Genre Documentary Filmmaker," at 40 Loyola of Los Angeles Law Review 683 (2007). Here is the abstract.

According to director Morgan Spurlock, the idea for "Super Size Me", the hugely popular documentary that explored the health impact of fast food, originated from a news report about "Pelman v. McDonald's", one of the fast food obesity cases. Over the course of his month-long McDonald's binge, Spurlock became the literal embodiment of fast-food's ill-effects on the seemingly generic American adult physique. Spurlock's take on the subject, however, ignores the circumstances that contributed to the overweight conditions of the "Pelman" plaintiffs who were two black adolescent females who ate their fast food in the Bronx. One of them was homeless during the relevant time period.

The paper discusses what the circumstances of the "Pelman" plaintiffs might have been, including the incidence of obesity and overweight and related diseases in minority populations, the correlation between obesity and food insecurity, the significance of fast food restaurants in poor urban minority communities, the relationship between fast food and soul food, race-specific cultural attitudes regarding women's weight, and race/ethnicity-related restraints on leisure. To be sure, based on past experience, a white male filmmaker like Spurlock might have found it difficult to tackle these subjects (especially in a film that is otherwise lighthearted and humorous) without encountering substantial criticism. Furthermore, most of the factors are irrelevant to the law of products liability, which pays little attention to inequities in the demographic distribution of risk. However, allowing generally disempowered subjects like the "Pelman" plaintiffs an opportunity to reveal their reflexivity about their situations is one way of combating disapproval and prompting deeper analysis of a social problem; Spurlock's television series "30 Days" is a fine example of that. Alternatively, filmmakers like Spurlock might display more reflexivity or critical self-assessment about their techniques for bringing only part of a complex issue to the screen . . . on the screen itself.

Download the entire Article from SSRN here.

Conference on Law and Popular Culture

Marquette University Law School is hosting a Conference on Law and Popular Culture November 1st to celebrate the publication of Law and Popular Culture: Text, Notes, and Questions by LEXIS Publishing. The conference is being organized by David Papke, of Marquette.

Call for Papers

CFP: Literature and Law: A Celebration

April 11, 2008 (Friday)

John Jay College of Criminal Justice (CUNY) (59th Street and 10th Avenue—near Lincoln Center in Manhattan)



Conference Organizer and Contact Person: Andrew Majeske, ajmajeske@gmail.com



This conference aims to bring scholars of literature and law into an interdisciplinary setting to share the fruits of their research and scholarship. The conference celebrates the restoration of John Jay's English major with its unique literature and law emphasis.



The conference's keynote speaker is Brook Thomas, a noted literature and law scholar and Chancellor's Professor at the University of California Irvine. His most recent book, just published by UNC Press, is Civic Myths: A Law-and-Literature Approach to Citizenship.



We are in negotiations with the journal Law and Literature to publish full versions of the best of the papers presented at the conference in a special symposium issue.



A limited number of "Daily Show" or "The Colbert Report" tickets may be available (we are still working on this) for the evening before the conference (Thursday April 10 th) on a first-come, first-served basis. These shows are taped in studios only a few blocks walk from John Jay.



We invite papers dealing with any aspect of literature and law, including papers which might address some of the following:

-Convict narratives

-Treason

-Mercy and equity

-The reasonable man/person standard

-Natural, divine, and positive law

-Legal standards and presumptions

-Fictional evidence

-Proportionality and punishment

-Fairness versus equality

-Reasonable Doubt

-Lady Justice

-Blasphemy and censorship

-The legal fiction of an era



Please submit abstracts (250 words or less) to Andrew Majeske, ajmajeske@gmail.com, by Friday, January 18, 2008.

Law and Literature in U. S. Courts

John DeStefano III has published "On Literature as Legal Authority," at 49 Arizona Law Review 521 (2007). Here is the abstract.

This Note surveys the courts' use of poetry, fiction, and drama to develop substantive law. Combining premises of legal realism and literary criticism, the Note rejects the position held by Judge Posner and other critics that literature is too subjective to offer the law legitimate substantive guidance. As caselaw examples demonstrate, the subjectivity of great writing can provide judicial opinions with a unique view to the complexity of life.

Download the entire Note from SSRN here.

Independent Women in Eighteenth and Nineteenth Century English Literature

Nicola Lacey, London School of Economics, Law Department, has published "From Moll Flanders to Tess of the d'Urbervilles: Women, Automony, and Criminal Responsibility in Eighteenth and Nineteenth Century England," as LSE Legal Studies Working Paper No. 5/2007. Here is the abstract.

In the early 18th Century, Daniel Defoe found it natural to write a novel whose heroine was a sexually adventurous, socially marginal property offender. Only half a century later, this would have been next to unthinkable. In this paper, the disappearance of Moll Flanders, and her supercession in the annals of literary female offenders by heroines like Tess of the d'Urbervilles, serves as a metaphor for fundamental changes in ideas of selfhood, gender and social order in 18th and 19th Century England. Drawing on law, literature, philosophy and social history, I argue that these broad changes underpinned a radical shift in mechanisms of responsibility-attribution, with decisive implications for the criminalisation of women. I focus in particular on the question of how the treatment and understanding of female criminality was changing during the era which saw the construction of the main building blocks of the modern criminal process, and of how these understandings related in turn to broader ideas about gender, social order and individual agency.

Download the entire paper from SSRN here.

Linguistics and Law: Spanish-Language Radio, Law, and Politics

Ernesto Hernandez Lopez, Chapman School of Law, has published "Law and Popular Culture: Inter-American Explorations into Columbian Slang and Spanish Language Radio in the U.S." in volume 19 of Berkeley La Raza Journal (2007). Here is the abstract.

This article argues that critical analysis of popular culture themes benefits legal scholarship by providing distinct cross-border perspectives and illuminating popular resistance efforts to hegemonic forces. This examination occurs in an Inter-American context, characterized by a south-north dynamic and migration's transnational influence. In these dynamics, there is significant popular resistance and anti-subordination to hegemonic forces. Legal scholarship often overlooks this by focusing on formal legal texts and processes. This resistance is visible within popular culture, as part of “hidden transcripts.”

This article makes two claims about popular culture's relevance, one methodological/theoretical claim and one substantive claim. First, observing how popular culture reflects societal interpretations of the law and politics greatly benefits the scholarly objectives of international research by promoting an exchange across national borders with an appreciation for different perspectives. Second, critically exploring popular culture illuminates how resistance and anti-subordination efforts often exercised by popular sectors, civil society, or Southern countries may be represented in this culture. As evidence of this, Colombian slang and Spanish radio in the U.S during 2006 immigration demonstrations are examined as two popular culture examples. This article incorporates theoretical innovations from law and popular culture scholarship, Latin American cultural studies such as Néstor García Canclini's work, James Scott's “arts of resistance” and “hidden transcripts,” and post-colonial theory.

Download the entire article from SSRN here.

Representations of Law in Ancient Athens

Adi Parush, Ben-Gurion University of the Negev, has published "The Courtroom as Theater and the Theater as Courtroom in Ancient Athens." It appears in volume 35 of the Israel Law Review (Spring 2001). Here is the abstract.

However, following a seminar I gave dealing with several philosophical-legal aspects of Greek tragedy, and an article I wrote about the relationship between the concept of guilt in Oedipus Tyrannus and the principle of strict liability in modern criminal law, I have found myself in recent years becoming increasingly interested in the unique culture which emerged in Athens during the classical period, particularly in the 5th century BCE. In order to clarify the roots of this unusual love, it is important first of all to emphasize the great significance of confrontation, contest and competition in Athenian culture, the agonal element in the culture of ancient Athens. Naturally, the parties confronting each other in a courtroom today also make an all-out effort to find ways of enlisting the sympathy of the judges who are to determine their fate, and undoubtedly they also try to influence the judges in ways reminiscent of actors in a theater performance, but I think that the theatrical element in the debates taking place in the courtrooms of classical Athens was stronger than that which typifies the debates at our trials, owing to the specific modus operandi of the Athenian legal system. Regarding this point we may thus say that the speech writers served not only as some kind of playwright, responsible for the words spoken by the parties in the courtroom, but also as director orchestrating the performance. Therefore each actor in the tragedy played several roles, and since the actors were all men, they also acted the roles of the women in the plays.

Download the entire article from SSRN here.

Do Magicians Need IP Law, or Does IP Law Need Magic?

Jacob Loshin has published "Secrets Revealed: How Magicians Protect Intellectual Property Without Law." This paper in revised form will appear as an essay in the book Law and Magic: A Collection of Essays, edited by Christine Corcos and published by Carolina Academic Press (2008). Here is the abstract.

Intellectual property scholars have begun to explore the curious dynamics of IP's negative spaces, areas in which IP law offers scant protection for innovators, but where innovation nevertheless seems to thrive. Such negative spaces pose a puzzle for the traditional theory of IP, which holds that IP law is necessary to create incentives for innovation.

This paper presents a study of one such negative space which has so far garnered some curiosity but little sustained attention - the world of performing magicians. This paper argues that idiosyncratic dynamics among magicians make traditional copyright, patent, and trade secret law ill-suited to protecting magicians' most valuable intellectual property. Yet, the paper further argues that the magic community has developed its own set of unique IP norms which effectively operate in law's absence. The paper details the structure of these informal norms that protect the creation, dissemination, and performance of magic tricks. The paper also discusses broader implications for IP theory, suggesting that a norm-based approach may offer a promising explanation for the puzzling persistence of some of IP's negative spaces.

Download the paper from SSRN here.

A Theory of Adjudication: Law as Magic

Jessie Allen, New York University School of Law, has published "A Theory of Adjudication: Law as Magic." This paper in revised form will appear as an essay in the forthcoming book Law and Magic: A Collection of Essays, edited by Christine Corcos and published by Carolina Academic Press (2008). Here is the abstract.

This article takes a new approach to the problem of legal rationality. In the 1920s and 1930s the Legal Realists criticized judicial decisions as “magic solving words” and “word ritual.” Though the Realist critique continues to shape American jurisprudence, the legal magic they observed has never been seriously explored. Here, drawing on anthropological studies of magic and ritual, I reconsider the irrational legal techniques the Realists exposed. My thesis is that the Realists were right that law works like magic, but wrong about how magic works. That is, they were right that adjudication makes use of a particular combination of techniques – enacting performances, heightened formality, transformative analogy, performativity, temporal play – that is also found in ritual magic. But they were wrong that those techniques necessarily preclude rational decisionmaking. Drawing on the insights of field anthropology, I theorize legal magic as an authentic mode of legal practice. After considering the different aspects of legal magic and the Realists' critique, I propose three potential roles for legal magic: as a way to imbue official legal decisions with the affective moral force of lived experience, as an institutional practice that may enhance judicial impartiality, and as a method for symbolically reversing otherwise irreparable injuries. I hope that my reanalysis of legal magic can provide a new perspective on the relationship of law and reason, illuminate undertheorized aspects of law and contribute to a more concrete and nuanced understanding of adjudication's social role.

Download the paper from SSRN here.

Linguistics and Trademark Law

Graeme B. Dinwoodie, Chicago-Kent College of Law, has published "What Linguistics Can Do for Trademark Law," in INTERDISCIPLINARY PERSPECTIVES ON TRADE MARKS, J. Ginsburg, L. Bently, J. Davis, eds., Cambridge University Press, 2007. Here is the abstract.

This contribution to an inter-disciplinary book on Trademarks and Brands responds to the work of Alan Durant, a linguist who (in his chapter of the book) provides legal scholars with both a rich understanding of how linguists view terms that are part of the basic argot of trademark law and a potentially vital explanation of the different social functions that word marks might serve. The Response explains why linguistics should matter to trademark law, but also why trademark law might on occasion ignore the precise reality of consumer understanding as might be provided by linguistics. I suggest that, while trademark law should not become beholden to linguistics, the lessons of Durant's linguistic analysis are to some extent already accommodated in the practice of trademark law, and could be important guides in the further development of a number of legal principles. In particular, I explain how trademark law does in large part take into consideration Durant's observation that legal analysis would comport more with the reality of how words function if it focused on marks as they are used. The Chapter also argues that Durant's exploration of the concepts of “distinctiveness” and “descriptiveness”, as understood by lawyers and linguists, respectively, should reinforce important lessons for legal scholars about the complex policy prescriptions embodied in those concepts. Finally, I argue that particular insights developed by Durant from the field of linguistics may prove valuable in illuminating several points of contention in contemporary trademark law. In particular, Durant stresses that determining whether a defendant's use has evoked the source-identifying aspect of plaintiff's mark, as opposed to the descriptive properties of that term, can only be done by analyzing the “discourse 'setting' in which interpretations are constructed.” Thus, although the type of use should be relevant to assessing infringement, any analysis of use type must be highly contextualized. This insight should inform the choice of doctrinal vehicles by which trademark law establishes limits on the scope of protection.

Download the paper from SSRN here.

Fletcher on Faulkner and "Red Leaves"

Matthew L.M. Fletcher (Michigan St. Univ. College of Law) has posted his new paper, Red Leaves and the Dirty Ground: The Cannibalism of Law and Economics, on SSRN. From the abstract:

William Faulkner's short story, Red Leaves, is a classic tale of cannibal, slave-and-plantation-owning Indians in the antebellum South. These Indians were figments of Faulkner's imagination that he used as a literary tool to critique the South -- and perhaps America. But Red Leaves is also a tale of economic theory, with these fictional Indians making a serious effort (in a fantastical setting) to analyze slavery and cannibalism from an economic perspective. My paper, prepared for the 4th Annual Indigenous Law Conference at Michigan State University College of Law, argues that Faulkner's stark portrayal of Indian people offers both a means of reconsidering Indian affairs policy and critiquing the emerging use of the law and economics method of study to analyze and even decide Indian law cases.

Papke on 12 Angry Men

David Ray Papke, Marquette University Law School, has published "12 Angry Men Is Not an Archetype," in the Marquette University Law School Legal Studies Paper 07-08. Here is the abstract.

Fifty years after its initial release, 12 Angry Men (1957) remains an important cinematic and political work. But alas, 12 Angry Men is fundamentally atypical as a pop cultural portrayal of the jury. In the standard portrayal individual jurors do not come alive as characters. They are seen in the courtroom rather than in the deliberation room. And, most importantly, the jury does not emerge as a symbol for the larger democratic process and concomitant rule of law. Assuming that popular culture indirectly indicates the public's attitudes and expectations, the flat, uninspiring portrayal of juries in contemporary American popular culture may indicate the public's abandonment of the idea that juries are important manifestations of popular sovereignty.

Download the entire paper from SSRN here.

The Future of Reputation: Gossip, Rumor, and Privacy on the Internet

I'm very excited to announce that my new book, The Future of Reputation: Gossip, Rumor, and Privacy, is now hot off the presses! Copies are now in stock and available on Amazon.com and Barnes & Noble's website. Copies will hit bookstores in a few weeks.

From the book jacket:

Teeming with chatrooms, online discussion groups, and blogs, the Internet offers previously unimagined opportunities for personal expression and communication. But there’s a dark side to the story. A trail of information fragments about us is forever preserved on the Internet, instantly available in a Google search. A permanent chronicle of our private lives—often of dubious reliability and sometimes totally false—will follow us wherever we go, accessible to friends, strangers, dates, employers, neighbors, relatives, and anyone else who cares to look. This engrossing book, brimming with amazing examples of gossip, slander, and rumor on the Internet, explores the profound implications of the online collision between free speech and privacy.

Daniel Solove, an authority on information privacy law, offers a fascinating account of how the Internet is transforming gossip, the way we shame others, and our ability to protect our own reputations. Focusing on blogs, Internet communities, cybermobs, and other current trends, he shows that, ironically, the unconstrained flow of information on the Internet may impede opportunities for self-development and freedom. Long-standing notions of privacy need review, the author contends: unless we establish a balance between privacy and free speech, we may discover that the freedom of the Internet makes us less free.

For quite some time, I've been thinking about the issue of how to balance the privacy and free speech issues involved with blogging and social networking sites. In the book, I do my best to propose some solutions, but my primary goal is to spark debate and discussion. I'm aiming to reach as broad an audience as possible and to make the book lively yet educational. I hope I've achieved these goals.

The book discusses wide-ranging and eclectic topics —social networks, tipping points, psychology, norms, colonial shaming punishments, literature, privacy and defamation law, the rise of the newspaper, the history of dueling, and traders in the Mediterranean during the eleventh century. Of course, given my love of literature, I quote a lot from various literary works.

I welcome any feedback. Please let me know what you think of the book, as I'd be very interested in your thoughts.

A Blog Devoted to Harry Potter

HogswartsProfessor.com is a blog devoted to Harry Potter. Check it out here.

Law and Literature in the Undergraduate Curriculum

Robin Lister, University of Bradford, presents a case for teaching Law and Literature in the undergraduate curriculum, in "Law and Literature and the LLB: An Apology for Poetry in the Undergraduate Law Curriculum." It was presented at the Learning in Law Annual Conference, UK Centre for Legal Education, University of Warwick, January 2007. Here is the abstract.

A survey of UK law schools suggests that only 'three or four' offer Law and Literature as an optional subject on their Qualifying Law Degrees (Harris & Beinart, 2005). This number seems surprisingly low, given the proliferation of Law and Literature literature since the emergence of this distinctive approach to thinking about law in the US in the 1970s, the widespread availability of Law and Literature courses in US law schools, and the advocacy of Law and Literature studies on law degrees by a number of UK academics throughout the 1990s (for example, Lee, 1990; Aristodemou, 1993; Ward, 1993; Bradney, 2000).

Download the entire paper from SSRN here.

Cross posted to The Seamless Web.