Forthcoming Conference on Literature and Law at John Jay College of Criminal Justice

From Andrew Majeske comes this announcement:

JOHN JAY COLLEGE OF CRIMINAL JUSTICE'S LITERATURE AND LAW CONFERENCE, FRIDAY, APRIL 11, 2008

FOR MORE INFORMATION INCLUDING REGISTRATION FORM AND HOTEL INFORMATION PLEASE GO TO http://literatureandlaw.blogspot.com.
Schedule:

8:15-9:00 Check in & Registration. Continental Breakfast.

9:00-10:15 First Set of Panels

First Panel: Justice Beyond Law, Panel Chair Bettina Carbonell, John Jay College of Criminal Justice (Room 636)

Dianna George, Carleton University, Canada, "Bear Experience: the power of ursus major in Cree life"

Brian Lockey, St. John's University, "Equitie to measure: Conscience among the Amazons in Edmund Spenser's The Faerie Queene measure":

Mina Suk, Johns Hopkins University, "Mercy's Madness: Spectatorship in St. Augustine's Confessions

Second Panel: Crime & Fiction, Panel Chair: Caroline Reitz, John Jay College of Criminal Justice, English Department (Library Classroom)

Lynn Penrod, University of Alberta, "What We Learn About Culture When We Talk About Procedure: Italian Police Procedurals and Their Place in Contemporary Italian Culture"

John Barton, University of Missouri-Kansas City, "Antebellum Crime Fiction and the Anti-Gallows Movement"

Neil C. Sargent, Carleton University (Department of Law), Ottawa, Canada "Truth, Justice and Method: The Representation of Rationality in the Fictional Worlds of Sherlock Holmes and Sam Spade"

Third Panel: Rights, Power & Resistance, Panel Chair: Allison Pease, John Jay College of Criminal Justice (Room 630)

Monica Lott, The University of Akron, "Funeral Practices of the 1930s and the Resultant Power Structures as Reflected in The Grapes of Wrath"



Chris Brown, University of Maryland, "'In the Name of Many Slaves': The Right to Petition and the Beginning of the Black Literary Tradition."

Alicia Mischa Renfroe, Middle Tennessee State University, "Leaving Justice to Chance: Gendered Justice in Edith Wharton's The Reef"

10:15-10:30 Coffee/Tea Break

10:30-11:45: Second Set of Panels/Discussions

First Panel: Law & Society, Chair: Professor Kyoo Lee, John Jay College of Criminal Justice (Room 636)

Thomas O. Beebee, Pennsylvania State University, "Can Law-and-Humanities Survive Systems Theory?"



Sinkwan Cheng, John Jay College of Criminal Justice, "Rethinking Autonomy and Heteronomy in a Global Context: Paul, Hegel, Badiou, and Confucius on the Fulfilment of the Law."



Bennett Capers, Hofstra Law School, "On Justitia, Race, Gender, and Blindness"

Second Panel: Staging the Law, Panel Chair: Margaret Tabb, John Jay College of Criminal Justice (Room 630)

Dwight Watson, Wabash College, "The Lawyer as Storyteller: Modes of Persuasion in the Courtroom and on the Stage."

Harry Keyishian, Director, Fairleigh Dickinson University Press "Shakespeare, Genre, and Punishment Theory"

Robin Stewart, University of California, Irvine, "Richard II and the English Constitution: A Literary-Legal Casebook"

Roundtable Teaching Literature and Law to Undergraduates: Methods and Objectives: Panelists: TBA (Library Classroom)

11:45-12:45: Lunch Room 610

12:45-1:00 Address by President Jeremy Travis, John Jay College of Criminal Justice, Room 630

1:00-1:30 Professor Chris Suggs, John Jay College of Criminal Justice: Introductory Remarks, Room 630

Professor Richard Weisberg, Benjamin Cardozo School of Law: Title of Talk TBA



1:30-1:45 Break



1:45-3:00 Third Set of Panels/Discussions

First Panel: Comparative Law, Panel Chair: TBA (Room 630)

Basuli Deb, Quinnipiac University, "Macaulay, Manu, and Writing Justice for Indian Women: Marital Rape in the Life Writings of Phoolan Devi"



Patrick Lenta, University of KwaZulu-Natal, South Africa, "Law, Police, Violence: Subject Formation and Resistance in Bloke Modisane's Blame"



Oluwole Coker, University of Ibadan, Nigeria , and Adesina Coker, Obafemi Awolowo University, Ile-Ife, Nigeria, "Folklore As 'Folklaw' In Yoruba Indigenous Epistemology"



Second Panel: Law, Nation & Empire, Panel Chair: Professor Chris Suggs, John Jay College of Criminal Justice (Library Classroom)



Peter Leman, University of California, Irvine, "Lex Britannica:

Empire, Positive Law, and Augusta Webster's The Sentence."



Edward Plough, Purdue University, " "Shakespearean Idiots and Prerogativa Regis: A Study of the Connection Between Elizabethan Law and Shakespeare's Poetic Strategy."



Yofi Tirosh, New York University Law School, "Narratives of Law and Hard Times: How Judicial Conceptions of the Nation's Time Shape the Law."



Roundtable: Literature and Law: What Texts Should We Be Using? Panelists: TBA (English Department Conference Room – Room 1281, North Hall)



3:00-3:15 Break



3:15-4:15: Keynote Address: Professor Brook Thomas, UC Irvine, "The Legal and Literary Complexities of US Citizenship around 1900." Room 630

4:15-5:15: Reception Sponsored by the Law and Literature Journal (published by the University of California Press for the Benjamin Cardozo School of Law): Room 610

FOR MORE INFORMATION INCLUDING REGISTRATION FORM AND HOTEL INFORMATION PLEASE GO TO http://literatureandlaw.blogspot.com.

The Development of U. S. Obscenity Law

Stephen Gillers, New York University School of Law, has published "A Tendency To Deprave and Corrupt: The Transformation of American Obscenity Law From Hicklin to Ulysses II," in volume 85 of the Washington University Law Review (2007). Here is the abstract.

How is it that between 1922 and 1934, James Joyce's Ulysses, considered the greatest English language novel of the twentieth century, could not get published in the United States without risk of prosecution and jail? How did American law get its ideas about obscenity and censorship so wrong? This Article closely analyzes the facts and the reasoning, or lack of reasoning, in R. v. Hicklin, the Queen's Bench decision of 1868 whose throwaway single sentence defining obscenity was reflexively adopted by American courts and became the greatest legal impediment to artistic freedom in the United States for nearly a century. The Article traces Hicklin's influence in the United States through the first third of the twentieth century. Using archival and other sources, it then closely examines the first court test of a part of Ulysses, in New York in 1920-21, a case that might have been won, but ended in the obscenity convictions of two women who published an obscure literary magazine. Their convictions impeded publication of the book until Morris Ernst's brilliant legal strategy gave his client, Random House, confidence that it could publish Ulysses in the United States without fear of prosecution. While the district court decision in Ernst's favor is rightly applauded for freeing Ulysses, the judge's reasoning does not resemble anything we can recognize as law. It is a decision for one book only. Even Augustus Hand's opinion for the Second Circuit affirming Ernst's victory, which cousin Learned joined and which contains the seeds of modern obscenity doctrine, required some jurisprudential sleight of hand to escape unfavorable circuit and Supreme Court precedent. The story from Hicklin to Ulysses II is both riveting in itself and as legal and cultural history. But it is also a lesson about harm done when government interferes with the intellectual and personal autonomy of individuals.

Download the entire Article from SSRN here.

The Last Enemy: A New BBC Thriller

Peter Tatchell of The Guardian reviews the BBC1 series The Last Enemy, finding it a cautionary tale.

Like millions of other viewers, I was gripped last night by the latest plot twists in BBC1's thriller series The Last Enemy, which depicts the dystopian future of a complete surveillance society, where everyone is data-based, ID-carded and CCTV-monitored 24/7. It is Big Brother writ-large, with all-pervasive remote sensors, facial recognition software, iris scans, vehicle tracking and eavesdropping.

Through an integrated Total Information Awareness surveillance system, state agents can know almost everything about everyone at the tap of a keyboard: their movements, purchases, emails and phone calls - even their diet, income and house value.

Far-fetched? Only by degrees. What is really scary about The Last Enemy is that it features monitoring technologies that the government, police and intelligence services are already using or considering using.

Read the entire review here.

[Cross-posted to the Seamless Web].

Eli Stone

A Review by Michael Asimow, Professor of Law Emeritus, UCLA School of Law

In the ABC television series that bears his name, Eli Stone is a senior associate at a large San Francisco law firm. He appears to be a competent attorney and, until recently, was highly valued by the firm. He’s engaged to Taylor Weathersbee, the daughter of the senior partner. Taylor is also a lawyer at the firm. Recently, however, Stone has learned he has a brain aneurysm and his behavior has become highly erratic. He frequently has scary delusions at work, such as being drawn into WW II battles or being attacked by small planes. His acupuncturist hasn’t figured out how to cure the delusions but thinks Stone is in fact a prophet.

OK, that’s the premise. How’s the execution? In my personal opinion, the show is horrendous. The writing is clunky, the jokes aren’t funny, and the acting is terrible. Taylor looks more like a Barbie doll than a human being. I don’t believe anybody will care about Eli Taylor and his aneurysm, or any of the other characters, so the show fails to create the necessary empathy between viewers and characters. The delusion jokes (he dives under the conference table during a partners’ meeting to avoid being attacked) weren’t funny the first time around and are excruciating each time they’re repeated. (For balance, I do think the role of Eli’s secretary Patti is well written and acted, and quite funny).

I believe “Eli Stone” was inspired by the highly successful “Ally McBeal” series. If you liked Ally, you just might like “Eli Stone” because of the fantasy delusion scenes and the heavy use of contemporary music. But if you disliked “Ally McBeal” as I did, you’ll hate “Eli Stone”—both the character and the series—which has none of the winning characters, excellent acting, or overall quirkiness of the “Ally” series.

Now there’s the question of accuracy. Nobody expects a TV series or a movie about lawyers to be accurate. Pop culture is intended to entertain, amuse, and make money. The work of real lawyers is indescribably boring almost all of the time and nobody wants to see a TV show that accurately describes it. Sometimes entertainment has to trump accuracy. But there are limits. And this show transgresses them.

In the first episode, Eli switches sides in the middle of a product liability case when he realizes that the plaintiff is an old girlfriend. He represents her against his own firm, freely using the information he learned from representing the defense, and obviously without seeking the permission of the pharmaceutical company he’s been representing. The writers liked that gimmick so much they repeat it in the third show in which Eli suddenly starts representing the mother in a child custody case in which Taylor represents the father. Of course, everyone accepts these conflicts without blinking. Now if the writers asked Eli Stone to fly to the moon on gossamer wings while investigating a case, most people would say, hey, that’s really stupid. Lawyers don’t do that. And these conflicts of interest in the first and third episodes are in that category. They are so beyond anything imaginable that they are just plain stupid. And that’s without counting the second episode in which a workers’ comp case is tried to a jury.

I like lawyer pop culture, and wish I could find something favorable to say about “Eli Stone”—the show or the character—but I just can’t. I t seems pretty obvious to me that this show won’t find an audience and will vanish unmourned into that vast rubbish bin of failed and forgotten TV series. But then, I said the same thing about “Ally McBeal,” so what do I know?

Eli Stone

Several entertainment critics have already reviewed Eli Stone, ABC's new legal drama, and find it either "quirky" and original, or run of the mill, or truly awful. I vote for truly awful, for a number of reasons.

Eli Stone is an associate at a white shoe firm in San Francisco, rapidly on the way up, engaged to the boss's daughter. Everything looks great. Then he starts seeing and hearing things, and his life falls apart. In an attempt to keep control, he refuses to tell his managing partner about the problem, which turns out to be an inoperable brain aneurysm (his brother, the doctor, gives the diagnosis. If I had been the patient, much as I love and trust my brother, I would have gone for a second opinion. And then a third). The condition causes hallucinations that make it nearly impossible for him to work, causing all sorts of havoc for him and his clients, and ultimately the firm. While we are, I suppose, supposed to find his visions meaningful--he certainly does--I would be profoundly disturbed to discover that MY attorney was having visions. And I would certainly be unhappy to discover that he hadn't told his firm, and that he was continuing to practice.

First, what seems at first glance to be original about the show has actually been tried, with more success by others, including David E. Kelley. Eli, the lead character, hears voices and music (mostly George Michael's) and sees people and events that aren't there. Remember David E. Kelley's Ally McBeal? She heard and saw things that weren't there. Remember the character of Billy, Ally's old love? He suffered from a brain tumor. Remember John Cage? He loved Barry White. Put them all together and you have Eli's situation. Others have also tried the dramedy musical before Eli Stone, without much success (remember Stephen Bochco's Cop Rock?)

Eli's discovery of his brain aneurysm puts him in a quandary--how long does he have to live? He decides to re-evaluate his life. So far, so good--but the idea that the main character should re-evaluate his life and his beliefs is hardly new. Even the notion that a lawyer, a corporate lawyer (the ultimate symbol of the bad actor, and I mean that figuratively, not literally), should do so in the face of physical stress is hardly new. Think only of the film Regarding Henry.

So many of the supporting characters are cliches. The pretty girlfriend lawyer, even though she seems to be quite nice, is a standard--and she actually dumps him in an early episode when she discovers he's ill. Nasty. The flaky female first year associate is a cliche. When is Hollywood going to forego giving us a choice between capable female lawyers who cannot commit to both relationships and successful careers or idiot female lawyers, by the way? The smart-aleck but capable black female secretary (Loretta Devine, who is wasted in the role) is overdone. The Chinese acupuncturist who isn't really all that Chinese (educated at UC Berkeley and with a fake accent, solely for the cultural tourists)--overdone, and insulting. Even Eli's family is a cliche. He has a brother, who is a physician, and who indulges in his own conflicts of interests (and lies) by certifying Eli as fit for work. Oh dear.

Eli's aneurysm is the McGuffin that sends him out on his intellectual and emotional makeover. After a talk with Dr. Chin, the acupuncurist, he "discovers" that he might be a prophet, singled out to bring hope to the people by taking on the important cases, the ones that matter to the little people. During the discussion he objects that he doesn't believe in God, and Dr. Chin responds, "Sure you do--you believe in right and wrong," in other words, in the natural world, and in people, and in justice. Finally--something vaguely original. By this I mean the outing of Eli. He's a non-believer. Non-believers are not exactly thick on the ground on television these days, and haven't ever been easy to find. I think the last one was Ted Danson's Becker. Of course, the idea is that atheism ultimately is bad, since it's linked with corporate greed. This is something the writers should work on, but probably will not. Equating atheism, and corporate lawyering, and White Shoe law firms, is a cheap shot. Over and over, we get the message from these writers that only spirituality can save Eli, or indeed, anyone, from evil (read "lawyering"). One must believe in something, else one is Bad.

The scripts only get worse. As he gets religion, and discovers he's a prophet, Eli switches sides and represents the downtrodden, regardless of the fact that he's usually conflicted out of such representation. He manages--magically--to win these cases, proving, I suppose, that with right, and the right dose of goodness, on your side, you can win against the bad guys. This may be the message that the viewing audience wants to see and hear these days. It is by no means accurate, and it gives the impression that the "right thinking" lawyer who hear choirs singing but fails to understand the Model Rules does his client a big favor. Eli, whose ongoing conversion should show him the way, does nothing but lie about his health and his motives--to his supervisor, to his girlfriend, to his clients, and to himself. In this week's episode, he's being reported to the disciplinary commission, and none too soon.

I would have thought that this dreadful series would have been cancelled after the second week, but it's still on. I think it's because of the underlying message of religion and redemption. This show is not really about reclaiming the law. It's about reclaiming life. For people who need that message, Eli Stone should serve nicely. For the rest of us, it's back to Boston Legal, and maybe, Shark.

More On Fan Fiction

Jacqueline Lai Chung, William and Mary School of Law, has published "Drawing Idea From Expression: Creating a Legal Space For Culturally Appropriated Literary Characters," in volume 49 of the William and Mary Law Review. Here is the abstract.

This paper examines the influx of secondary creativity involving culturally iconic literary characters (i.e. Harry Potter fan-fiction) and considers whether, and how, copyright law should account for the unauthorized appropriation of these protected literary characters. Traditionally, the courts have held that characters are independently copyrightable if they meet one of two tests: the distinct delineation test espoused by Learned Hand in the Seventh Circuit opinion, Nichols v. Universal Pictures Corporation (1930), or the story being told test put forward by the Ninth Circuit in Warner Brothers Pictures v. Columbia Broadcasting System (1954). These existing standards for character protection focus on the rights and the entitlements of the original author. This paper argues that copyright law should do more to focus on the creative rights of readers, who often seek to employ iconic characters as tools for cultural dialogue and artistic expression. This shift towards readers' rights may require more than just the expansion of fair use principles over a greater number of secondary uses. What is required, more fundamentally, is a re-conceptualizing of the idea of protectibility in the first place. Certain iconic characters, because they are imbued with so much cultural meaning, are no longer singularly-owned forms of authorial expression; they have become, instead, collectively-owned concepts - tools for expression - in a society constantly engaged in creative dialogue. Hence, on the idea/expression continuum that allows copyright protection for expressions but not ideas, culturally-appropriated characters should fall more appropriately into the realm of the unprotected idea, and in this way, allow greater freedom for secondary uses.

Download the paper from SSRN here.

Meanwhile, J. K. Rowling and Warner Brothers are suing Steven Van Ark and his publisher over the Harry Potter Lexicon, a book based on Mr. Van Ark's website, claiming copyright infringement. Ms. Rowling plans to release her own Potterpedia in future. Mr. Van Ark's position is that Ms. Rowling cannot claim to own all works that mention her characters or works. That would bring literary criticism or commentary to a halt. Read more here.

Who's Your Daddy? Jefferson On Trial

William Hyland has published "A Civil Action: Sally Hemings v. Thomas Jefferson," in volume 31 of the American Journal of Trial Advocacy (2007). Here is the abstract.

Allegations that Thomas Jefferson had an affair and fathered at least one child with slave Sally Hemings have been discussed for two centuries. In this Article, the authors summarize a "mock" trial defense of Jefferson, concluding that the allegations are unproved by the greater weight of the evidence.

Download the article from SSRN here.

Joseph Slaughter, Associate Professor of English and Comparative Literature at Columbia University, has published Human Rights Inc.: The World Novel, Narrative Form, and International Law (Fordham University Press, 2007). Here's a description from the publisher's catalog.

In this timely study of the historical, ideological, and formal interdependencies of the novel and human rights, Joseph Slaughter demonstrates that the twentieth-century rise of “world literature” and international human rights law are related phenomena.
Slaughter argues that international law shares with the modern novel a particular conception of the human individual. The Bildungsroman, the novel of coming of age, fills out this image, offering a conceptual vocabulary, a humanist social vision, and a narrative grammar for what the Universal Declaration of Human Rights and early literary theorists both call “the free and full development of the human personality.”

Revising our received understanding of the relationship between law and literature, Slaughter suggests that this narrative form has acted as a cultural surrogate for the weak executive authority of international law, naturalizing the assumptions and conditions that make human rights appear commonsensical. As a kind of novelistic correlative to human rights law, the Bildungsroman has thus been doing some of the sociocultural work of enforcement that the law cannot do for itself.

This analysis of the cultural work of law and of the social work of literature challenges traditional Eurocentric histories of both international law and the dissemination of the novel. Taking his point of departure in Goethe’s Wilhelm Meister, Slaughter focuses on recent postcolonial versions of the coming-of-age story to show how the promise of human rights becomes legible in narrative and how the novel and the law are complicit in contemporary projects of globalization: in colonialism, neoimperalism, humanitarianism, and the spread of multinational consumer capitalism.

Slaughter raises important practical and ethical questions that we must confront in advocating for human rights and reading world literature—imperatives that, today more than ever, are intertwined.

Literature in the Health Law Curriculum

We missed this interesting piece when it first appeared, but we're trying to make amends now. Stacey A. Tovino, Hamline University School of Law, published "Incorporating Literature Into a Health Law Curriculum" at 9 MSU Journal of Medicine and Law 213 (2005). Here is the abstract.

Literature has had a long relationship with medicine through literary images of disease, literary images of physicians and other healers, works of literature by physician-writers, and the use of literature as a method of active or passive healing. Literature also has had a long relationship with the law through literary images of various legal processes, lawyers, and judges, works of literature by lawyer-writers, and the use of literature as therapy. How can the field of law and literature inform the study of health law? And how can the field of literature and medicine help the field of law and literature in this regard? This article shows how the descriptive, contextual, and narrative qualities of literature, literary nonfiction, and illness narratives can be used to enhance traditional case law, statutory, and regulatory approaches to teaching health law. Examples are drawn from Samuel Shem's The House of God, Aleksandr Solzhenitsyn's Cancer Ward, George Eliot's Middlemarch, and Anne Fadiman's The Spirit Catches You and You Fall Down.

Download the article from SSRN here.

For more resources on integrating law, medicine, and the humanities see the webpage for Tom Mayo's course here at Southern Methodist University School of Law and some materials that I have at my website on Law and the Humanities, for example, here.

New Museum on Crime and Punishment To Open Soon

Tony Mauro of Legal Times writes of a new museum which may soon be opening in Washington, D.C., devoted to "Crime and Punishment". The National Museum of Crime and Punishment, the brainchild of attorney John Morgan, will reside at 575 7th St. N.W. Mr. Morgan and his partner John Walsh, known to tv viewers as the host of "America's Most Wanted", will fill the venue with interesting exhibits and onsite broadcasts from the show. Read more here (registration required, free).

Legal and Political Themes in Battlestar Galactica

Over at Concurring Opinions, Dave Hoffman, Deven Desai, and I interview Ron Moore and David Eick, creators, producers, and writers of the hit television show Battlestar Galactica.

Battlestar Galactica chronicles the struggle for survival of a small band of humans who escaped a devastating genocidal attack by intelligent robots called cylons. The humans created the cylons for use as slaves. The cylons rebelled and a war erupted between the humans and cylons. But a truce was reached, and the cylons disappeared. But forty years later, the cylons launched a massive surprise attack, destroying the human society (called the Twelve Colonies) with nuclear missiles. Only a small group of humans aboard spaceships survived. The show depicts the humans’ difficult fight for survival and the tough choices they must make along the way. The cylons have developed technology to allow them to take human form, and some of the humans within the group of survivors are really cylons.

The show is heavily influenced by modern events, especially terrorism, war, and torture. In a time of emergency, how should we balance security and liberty? How do we deal with enemies who may be burrowed in among us? How does a society decimated in a war reconstitute its political, economic, and legal systems?

Our interview explores the legal, political, economic, and social ideas raised by the show.

From our post:

Our interview is structured in three parts. Part I, available in two files (see the end of this post to download), focuses on the issues of legal systems and morality. It examines the lawyers and trials in the show. It also examines how torture is depicted, as well as how the humans must balance civil liberties and security.

Part II examines politics and commerce. It explores how the cylon attack affected the humans' political system, and it examines how commerce works in the fleet.

Part III examines issues related to cylons, such as the humans' treatment of cylons, how robots should be treated by the law, how the cylons govern themselves politically. Additionally, Part III will explore the religious issues involved in the show.

Click here to listen to the audio files.

Looking Back at Silkwood

Kelly Lynn Anders, Washburn University School of Law, has published "Reviewing Silkwood at Twenty-Five: The Reel Impact on Environmental Policy," in volume 49 of South Texas Law Review (2007). Here is the abstract.

The year 2008 will mark the twenty-fifth anniversary of the release of the film Silkwood, which depicted the events surrounding the apparent plutonium contamination and mysterious death of Kerr-McGee employee Karen Silkwood. The film featured the facts leading up to the case, but many would argue that the resulting lawsuit involved a legal battle worthy of a sequel. The Kerr-McGee Corporation may no longer exist, but the former company continues to impact our concepts of environmental policy, whistleblower protection, and damages awards through case law. This essay provides a comparative analysis of the case and its depiction in film and follows with a summary of how both continue to impact environmental policy.

Download the article from SSRN here.

Daniel Defoe and the Written Constitution

Bernadette A. Meyler, Cornell University School of Law, has published "Daniel Defoe and the Written Constitution." Here is the abstract.

Today, as constitutionalism spreads around the globe, it is embodied de rigueur in written documents. Even places that sustained polities for centuries without a written constitution have begun to succumb to the lure of writtenness. America, we think, spawned this worldwide force, inaugurating a radically new form of political organization when it adopted the U.S. Constitution as its foundational text. Yet the notion of the written constitution had, in fact, received an earlier imprimatur from the pen of Daniel Defoe, English novelist, political pamphleteer, and secret agent. Plying his trades in the early eighteenth century, Defoe, now known largely as the author of Robinson Crusoe, in a number of disparate literary and political guises advocated the development of written documents setting forth the basic principles of a governmental order and restraining the power of legislative majorities. Just as the individualist ethos of Robinson Crusoe grabbed the American imaginary from the mid-eighteenth-century onwards, a conception of written constitutionalism similar to the one promulgated by Crusoe's author took root on American soil.

My article elaborates the contours of written constitutionalism that Defoe outlined and demonstrates the close alignment of some of Defoe's arguments with the scholarship of today, an alignment that suggests the persistence of a number of the mythic ideals of written constitutionalism that Defoe elaborated in the early eighteenth century. Methodologically, the article illuminates the importance of looking to the emerging genre of the novel as well as other widely read forms -- rather than focusing exclusively on more traditional historical sources -- to discern the construction of a popular imaginary at the time of the Founding. At the same time, however, the article argues that the differences between the account of written constitutionalism that emerges out of Defoe's works and the claims made for written constitutionalism by Chief Justice Marshall in Marbury v. Madison and legal academics today illuminate the contingency of what writing may mean for constitutionalism and demonstrate the ways in which the mythic entailment's of writing are sometimes precisely that -- myths.

Download the paper from SSRN here.

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.