Law and Art Symposium at the Tate

At the Tate, a one day symposium on Law and Art: Ethics, Aesthetics, and Justice on March 23, 2010.

A Reaction To Malcolm Gladwell's Analysis Of Atticus Finch

Lance McMillian, John Marshall Law School (Atlanta) has published "Atticus Finch as Racial Accommodator: Answering Malcolm Gladwell's Critique." Here is the abstract.

Atticus Finch – the fictional hero of Harper Lee’s 'To Kill A Mockingbird' – is a legal icon. The legendary status of Finch is confirmed by his standing in the non-legal world of broader culture. In 2003, the renowned American Film Institute deemed Atticus the greatest movie hero of all-time. That a lawyer would be worthy of this honor is nothing short of remarkable and demonstrates that the stature of Atticus Finch has assumed mythic proportions in American culture. Atticus is not just a lawyer; he is justice in the flesh.

Enter best-selling author Malcolm Gladwell. Last year, Gladwell made waves in The New Yorker by arguing that, far from being a bright spot of racial enlightenment in a time of darkness, Atticus Finch instead made an immoral peace with the world of Jim Crow Alabama. While Gladwell is not the first to criticize the Atticus myth, he is the most culturally influential person to do so, which is an important development. The Atticus-As-Racial-Accommodator charge essentially posits that Atticus was all-too-comfortable with the racism (and racists) that surrounded him every day. Gladwell wonders: Where is the moral outrage? In response, I argue that Gladwell misdiagnoses Atticus because he neglects the important role that Finch’s Christian faith plays in who he is as a person. To understand Atticus, one must first understand Jesus and his teaching. Finch is a New Testament-style prophet whose worldview propels him to this truth: Love and understanding open doors; judgment and condemnation close them. Consequently, his quiet and gentlemanly interactions with the racists in his midst suggest neither passivity nor appeasement, as Gladwell contends. Instead, they are a form of character and strength – derived from Finch’s faith in Jesus – that imbue Atticus with moral authority in the eyes of the community. Moreover, while Gladwell rightly stresses the need of legal change in bringing equality to the South, the kind of moral change led by Finch was likewise necessary. Law is only half of the equation.

This year marks the 50th anniversary of To Kill A Mockingbird. Combined with the cultural significance of Gladwell’s recent revisionist foray, this milestone means that now is a particularly apt time to look at Atticus with fresh eyes and assess his character anew.

Symposium On Food, Culture, and the Law

From Penelope Pether, Villanova University School of Law, an announcement of a symposium on "Food, Culture and the Law," on February 26, sponsored by the University of Iowa and to be held at the Old Capitol Senate Chamber.

Higher Education: The Dumbledore Factor

From the Chronicle of Higher Education, why Dumbledore is a good administrator (but check out the comments--some folks don't agree).

Call For Papers

From Elizabeth Stockton, Southwestern University

CFP: MLA 2011 (Los Angeles, CA)

Law and Literature of the U.S. before 1900

Seeking papers that examine legal and literary discourses in the US
before 1900. Possible topics might include citizenship, ethnicity,
sexuality, imperialism, and the rhetoric of the law. Abstracts and CV
by 2 March 2010 to Elizabeth Stockton (stockton@southwestern.edu).

--

Call For Papers

From Elliott Visconti at Yale

Literary History and Constitutional Culture

For the MLA’s next conference in Los Angeles (January 2011), the Discussion Group on Law and Literature invites paper proposals that address the relationship, broadly understood, between constitutional change and literary history. Some general questions: what influence do constitutional decisions have on the path of literary history, and to what degree can such decisions or events be said to transform or deflect a literary tradition? Papers that take a theoretical approach to the question are welcome (e.g. can the literary be understood as a modality of popular constitutional interpretation?) as are papers addressed to a concrete moment/ event/watershed (e.g. LGBT literature after Lawrence v. Texas; LDS fiction in the wake of Reynolds v. United States, the literary history of slavery after Somersett’s case, African-American poetry after Brown v. Board, Franco-Islamic literature after the 2004 headscarf laws, etc.

Paper proposals from all legal and literary traditions are welcome. Please send abstract and cv to elliott.visconsi@yale.edu, by March 15 2010

Justice! He Demands Justice!

Grant Morris of the University of San Diego Law School argues that in all those lists of great legal movies one great law related movie never rates a mention. It's for that elephant in the room, Dumbo. See Grant A. Morris,

The Greatest Legal Movie of All Time: Proclaiming the Real Winner

, volume 47 of the San Diego Law Review (2010). Here's the abstract.

In August, 2008, the ABA Journal featured an article entitled: “The 25 Greatest Legal Movies.” A panel of experts, described in the article as “12 prominent lawyers who teach film or are connected to the business” selected “the best movies ever made about lawyers and the law.” This distinguished panel ranked its twenty-five top legal movies, choosing To Kill a Mockingbird as its number one legal movie. The panel also selected twenty-five films as “honorable mentions,” which were listed in alphabetical order. In my opinion, however, the real greatest legal movie of all time was not selected as the winner. It was not ranked in the top twenty-five. It was not included in the twenty-five honorable mentions so that it would rank in the top fifty. I would wager that it was not even considered by the panel as a candidate for inclusion as a “legal” movie. In this article, I discuss the movie that should have been ranked first. I compare my choice with the experts’ choice, describing similarities and differences between the two movies. In To Kill a Mockingbird, an African American man is wrongfully accused of raping a white woman. Despite the best efforts of his attorney, he is convicted of that crime. Prejudice prevails over justice. In the movie I have chosen, another victim of prejudice is able to succeed due to the best efforts of his attorney. Justice prevails over prejudice. That difference convinces me that the movie I have selected is truly the greatest legal movie of all time.

Conference Announcement

The Critical Legal Conference

From Bald de Vries and Since 1984, every first weekend in September, the Critical Legal Conference brings together critical and radical legal scholars from all over the world. It has been a phenomenal success despite its modesty. The CLC is also exactly that: a conference. No organisation, presidents and secretaries, members and subscrip­tions.
This conference is a transient community; an inoperative community always to come, lasting for three days every year, without orthodoxies, exclu­sions or stars and gets down to the business of thinking and being together. In doing so, a variety of critical schools, such as postmodernism, phenomenology, decon­struction, feminism, post-colonialism, critical race, queer theory, the ethics of otherness, the ontology of plural singularity, and the critique of bio-politics have been pioneered in these conferences, creating new and stronger links between theory and practice.
Most conferences have taken place in the UK but we have also been to South Africa, India, Ireland and Scandinavia. This is the first time, the CLC is organised in the Netherlands. It hopes to bring together different schools and approaches to critical legal scholarship at a time when collaboration and solidarity across Europe and the world is imperative.

Law in the Wilderness

Shaun Fluker, University of Calgary Faculty of Law, has published "Wilderness Narrative in Law: The View from Canada’s National Parks." Here is the abstract.

In this conference paper presented at the 2009 Association for the Study of Literature and the Environment held in Victoria, BC, I briefly examine the relationship between law and the concept of wilderness. I hope to demonstrate this relationship in two ways. First, that law provides us with a source of wilderness narrative. Although much less prosaic than other forms of literature, legal decisions tell stories about what wilderness is. Second, that ideas of wilderness can influence the enactment and application of legal rules.

Download the paper from SSRN at the link.

Ponzi For the Twenty-First Century, By Way Of Wall Street

Alessandra Stanley on "Damages" and that ripped-from-the-headlines feel as the third season premieres. Another legendary actor, Len Cariou, visits as the scammy baddie Patty Hewes (Glenn Close) has in her sights.

Roman Law's Influence On the English Legal Heritage

James Lee, University of Birmingham School of Law, has published "Confusio: Reference to Roman Law in the House of Lords and the Development of English Private Law," as 5 Roman Legal Tradition, 24-66 (2009). Here is the abstract.

This paper examines the use of Roman law by members of the House of Lords in three recent decisions: Fairchild vs. Glenhaven Funeral Services [2002] UKHL 22; Foskett vs. McKeown [2001] 1 AC 102; and OBG vs. Allan [2007] UKHL 21, The contrasting views of Professor Peter Birks and Professor Sir Basil Markesinis are considered, and it is argued that within the decisions can be seen the value of reference to Roman law.

Download the article from SSRN at the link.

Malcolm Gladwell and Atticus Finch

Lance McMillian, Atlanta's John Marshall Law School, has published "Atticus Finch as Racial Accommodator: Answering Malcolm Gladwell's Critique." Here is the abstract.

Atticus Finch – the fictional hero of Harper Lee’s 'To Kill A Mockingbird' – is a legal icon. The legendary status of Finch is confirmed by his standing in the non-legal world of broader culture. In 2003, the renowned American Film Institute deemed Atticus the greatest movie hero of all-time. That a lawyer would be worthy of this honor is nothing short of remarkable and demonstrates that the stature of Atticus Finch has assumed mythic proportions in American culture. Atticus is not just a lawyer; he is justice in the flesh.

Enter best-selling author Malcolm Gladwell. Last year, Gladwell made waves in The New Yorker by arguing that, far from being a bright spot of racial enlightenment in a time of darkness, Atticus Finch instead made an immoral peace with the world of Jim Crow Alabama. While Gladwell is not the first to criticize the Atticus myth, he is the most culturally influential person to do so, which is an important development. The Atticus-As-Racial-Accommodator charge essentially posits that Atticus was all-too-comfortable with the racism (and racists) that surrounded him every day. Gladwell wonders: Where is the moral outrage? In response, I argue that Gladwell misdiagnoses Atticus because he neglects the important role that Finch’s Christian faith plays in who he is as a person. To understand Atticus, one must first understand Jesus and his teaching. Finch is a New Testament-style prophet whose worldview propels him to this truth: Love and understanding open doors; judgment and condemnation close them. Consequently, his quiet and gentlemanly interactions with the racists in his midst suggest neither passivity nor appeasement, as Gladwell contends. Instead, they are a form of character and strength – derived from Finch’s faith in Jesus – that imbue Atticus with moral authority in the eyes of the community. Moreover, while Gladwell rightly stresses the need of legal change in bringing equality to the South, the kind of moral change led by Finch was likewise necessary. Law is only half of the equation.

This year marks the 50th anniversary of To Kill A Mockingbird. Combined with the cultural significance of Gladwell’s recent revisionist foray, this milestone means that now is a particularly apt time to look at Atticus with fresh eyes and assess his character anew.

Download the paper from SSRN at the link.

Extraordinary Measures

From the New York Times, a review of Harrison Ford's new film, Extraordinary Measures.

Shakespeare and Moot Court

Desmond Manderson, McGill University Faculty of Law, and Paul Yachnin have published "Shakespeare and Judgment: The Renewal of Law and Literature." It will appear as "Shakespeare Rules: Remembrance of Things Past" in volume 15 of The European Legacy (2010).
Here is the abstract.

Legal theorist Desmond Manderson and Shakespearean Paul Yachnin develop parallel arguments that seek to restore a public dimension of responsibility to literary studies and a private dimension of responsibility to law. Their arguments issue from their work as the creators of the Shakespeare Moot Court at McGill University, a course in which graduate English students team up with senior Law students to argue cases in “Court of Shakespeare,” where the sole Institutes, Codex, and Digest are comprised by the plays of Shakespeare. Yachnin argues that modern literary studies suffers from impermanence and isolation from real-world concerns and that it can redress these limitations — developing attributes of corrigibility, temporality, judgment, and publicity — by learning from law. Manderson finds modern legal judgment bereft of affective engagement with the subjects of law and wedded to an ideal of objectivity, regulation, and impersonality. Literature can restore to legal judgment the elements of narrative, character, context, and self-reflection. Together, the essays argue that the question of judgment, so integral to the disciplines of law and of literature, needs the renewal that an inter-disciplinary engagement provides.

Download the paper from SSRN at the link.

The History of the Legal Profession

David Sugarman, Lancaster University Law School, has published "Beyond Ignorance and Complacency: Robert Stevens’ Journey Through Lawyers and the Courts," in volume 16 of International Journal of the Legal Profession (2009). Here is the abstract.

Brian Abel-Smith and Robert Stevens’ Lawyers and the Courts (LATC), published in 1967, was the first major critical social history of the English legal system from the industrial revolution to modern times (1750-1965). It has proved matchless. It is the definitive book in the field, and its core arguments remain largely unchallenged more than forty years after its publication. Challenging the dominant traditions of doctrinal legal scholarship and lawyers’ legal history by emphasising the importance of serious empirical research on current problems, it offered a less reverential alternative to the prevailing orthodoxies of the day and asked whether England’s legal services and legal education had developed in a way that best served the public interest.

This paper examines how and why LATC came to be written, its reception and its larger significance. It addresses Robert Stevens’ intellectual trajectory, thereby, providing a window on the history of legal education and thought in England during the 1950’s and ‘60’s and the significance of the United States and Africa to those dissatisfied with England’s dominant tradition of legal formalism. It demonstrates both the coercive structures by which the legal profession sought to silence criticism of the status quo and some of the ways in which Stevens’ projects and ideas for realizing them are still important for the education of present day lawyers, scholars and law reformers.

Part One begins with a brief overview of the principal arguments and concerns of LATC. Parts Two and Three seek to historicize LATC. Part Two places Stevens in the context of the personal and intellectual influences of his formative years, 1940-65, and relevant legal-political preoccupations: including the importance of history to his thinking; his disappointment with Oxford legal education; the confines of English legal scholarship, the legal profession and legal culture; the excitement of American legal education and legal practice, in particular, his postgraduate studies at Yale Law School and his encounter with Myres McDougall (1906-1998) and post-Realism; the importance of his experience of teaching at the University of East Africa in Dar es Salaam; and the vital influence of Richard Titmuss (1907–1973) and Brian Abel-Smith (1926-1996), two pioneering British social policy researchers, leading policy advisors and chroniclers of and campaigners against social injustice. Part Three links Stevens’ work to England in the heady days of the early-mid 1960’s, a period when change, and the possibility of effecting political, cultural and social change, was “in the air”. Part Four considers LATC’s controversial reception when it was published in 1967 and seeks to clarify why it encountered fierce opposition and the intellectual tradition that LATC reflected, sustained and promoted. The concluding section briefly considers LATC’s impact on and significance for the fields of legal history and legal services.

This essay makes extensive use of interviews with Robert Stevens and archival research and is published in a special issue of the International Journal of the Legal Profession on the work of Robert Stevens, the other contributors being: Richard Abel, Tony Bradney, Fiona Cownie, Bill Felstiner, Alan Paterson and William Twining.

Download the article from SSRN at the link.

Antigone and the Law

Bonnie Honig, American Bar Foundation, has published "Antigone’s Two Laws: Greek Tragedy and the Future of Humanism," as American Bar Foundation Research Paper No. 09-05. Here is the abstract.

In Sophocles' Antigone there is one speech that attracts the ire and admiration of critics. In what Creon describes as her dirge for herself, Antigone says she would not have violated Creon’s edict against burying her brother on behalf of husband or children because she could always have others, but (with her parents dead) only her brother is irreplaceable. Humanist critics from Goethe to Jebb find the speech abhorrent while anti-humanists like Lacan admire it as a manifestation of Antigone’s monstrous desire. Both sides elide the politics of the speech, and position it as (anti)ethical. This paper argues for a political reading of the speech which is neither humanist not anti-humanist. The speech parodies, cites, and mimics Creon, Pericles, and a story from Herodotus in an effort to find a way to stage the protagonist’s concerns about the status of natal versus conjugal family relations but also the status of the dead in the democratic polis and the quality of authority relations in times of tension between the democratic polis and elites. Read contextually and intertextually, this speech, historically rejected by devotees of Sophocles’ heroine as inauthentic, is actually the key to the play and to developing further an agonistic humanism that is not exclusively ethical nor extra-political in its aspirations.

Download the paper from SSRN at the link.

ABC's New Lawyer Drama Premieres Thursday Night

"The Deep End" premieres tomorrow night on ABC at 8 p.m., 7 Central Time. In the pilot: "Dylan is given an impossible pro-bono custody case; a 90-year-old man signs an agreement, thinking that Beth is his daughter; Liam tries to get a client to sign with the firm under false pretenses; Addy gets attention when she speaks her mind." Can you say "Disciplinary rules"? Really quickly?

Here are some early reviews: from SFGate; the New York Daily News; Are You Screening?

Charles Reade and the History of Victorian Copyright Law

Barbara Lauriat, University of Oxford Faculty of Law, has published "Charles Reade's Roles in the Drama of Victorian Dramatic Copyright," in volume 33 of the Columbia Journal of Law & the Arts (2009). Here is the abstract.

The following article describes the eccentric dramatist, novelist, journalist, and barrister Charles Reade’s direct involvement in shaping the UK law of copyright - particularly copyright in dramatic works. In addition to publishing his writings on the subject, he was active in bringing and supporting suits that led directly to changes in the law protecting dramatic works, as well as the formation of the Royal Commission on Copyright in 1875. His own questionable dealings with the works of others, however, provide a counterpoint to his zealous arguments in favor of protection, as exemplified by the story of his dramatization of Ralph the Heir, a novel written by Royal Commission member Anthony Trollope.

Download the article from SSRN at the link.

Juries and Narrative

Robin H. Conley, UCLA Department of Anthropology, and John M. Conley, University of North Carolina, Chapel Hill School of Law, have published "Stories from the Jury Room: How Jurors Use Narrative to Process Evidence," at 49 Studies in Law 25 (2009). Here is the abstract.

This paper analyzes the ways in which jurors use everyday storytelling
techniques in their deliberations. It begins by reviewing the literature on
how
jurors receive and process evidence, emphasizing narrative and
storytelling. It
then presents some new, qualitative linguistic data drawn
from actual jury
deliberations, which shed light on jurors' standards of
evidence and proof, as
well as on the persuasive tactics they use in dealing
with each other. Although
these data are limited, they provide an
interesting basis for assessing existing
ideas about jury
evidence-processing and thinking more broadly about the
strengths and
weaknesses of the jury system.

Download the Article from SSRN at the link.

A New Book on The Law and Harry Potter

New Collection: The Law and Harry Potter, edited by Jeffrey E. Thomas and Franklin G. Snyder (Carolina Academic Press, 2010). This volume considers the depiction of law and legal institutions in J. K. Rowling's Harry Potter novels. It contains more than twenty chapters by legal academics from the U.S. and abroad. The chapters are organized in five sections: Legal Traditions and Institutions, Crimes and Punishments, Harry Potter and Identity, the Wizard Economy, and Harry Potter as an Archetype. Some chapters analyze the way law and legal institutions are portrayed, and what these portrayals teach us about concepts such as morality, justice, and difference. Other chapters illustrate or analyze legal issues, such as human rights, actual innocence, and legal pedagogy. The volume is suitable for undergraduate or law school courses, and will be of interest to those Harry Potter fans who also have an interest in law and the legal profession.

A Collection on Law and Magic

New publication: Law and Magic: A Collection of Essays (Christine A. Corcos, ed., Durham: Carolina Academic Press, 2010). This collection of 24 essays explores the very rich ways in which the rule of law and the practice of magic enrich and inform each other. The authors bring both a U.S. and a comparative law perspective while examining areas such as law and religion, criminal law, intellectual property law, the law of evidence, and animal rights. Topics include alchemy in fifteenth-century England, a discussion of how a courtroom is like a magic show, stage hypnotism and the law, Scottish witchcraft trials in the eighteenth century, the question of whether stage magicians can look to intellectual property to protect their rights, tarot card readings and the First Amendment, and an analysis of whether a magician can be qualified as an expert witness under the Federal Rules of Evidence.

Law-As-Story

Palma Strand, Creighton University School of Law, has published "Law as Story: A Civic Concept of Law," at 18 Southern California Interdisciplinary Law Journal 603 (2009). Here is the abstract.

This article introduces a social constructionist civic concept of law, which emphasizes the story nature of law and the fact that as a complex social system law emerges from and is grounded in collaborative communications among citizens. In this view, if the law-story reflects the stories of a broad range of those for whom it purports to speak and acknowledges their agency in enacting it, it is more likely to be embraced by that community.

In applying the law-as-story complex social system approach to law to the doctrinal issue of political gerrymandering, the article explores the concept of voice - individuals making meaningful contributions to the law-story. In applying the approach to the doctrinal issue of race-based K-12 educational initiatives, the article illuminates the idea of resonance, the complement of voice, which captures the process of the law-story coming back to the individuals within a community.

Download the article from SSRN at the link.

A New Incarnation of Sherlock Holmes

From the New York Times, a review of the new Sherlock Holmes film, starring Robert Downey and Jude Law.

Legal Language and Its Meaning

Andrei Marmor, USC Gould School of Law, has published "Can the Law Imply More than it Says? On Some Pragmatic Aspects of Strategic Speech," as USC Law Legal Studies Paper No. 09-43. Here is the abstract.

The content of the law is often determined by what legal authorities communicate. Both lawyers and philosophers of language know very well, however, that the full content of communication in a natural language often goes beyond the meaning of the words and sentences uttered by the speaker. Semantics and syntax are essential vehicles for conveying communicative content, but the content conveyed on particular occasions of speech is often pragmatically enriched by various factors. The standard model in the pragmatics literature, however, focuses on ordinary conversations, in which the parties are presumed to engage in a cooperative exchange of information. The legal context offers an example of conversation that is strategic in nature. Part of my purpose here is to show that the pragmatics of strategic conversation has certain features that deviate from the standard model.

The first section focuses on two main instances of implied communicative content, namely, implicatures and utterance presuppositions. I argue that in both of these cases, there is an important distinction between implied content that is semantically encoded in the utterance - and therefore forms part of what the law communicatively determines - and implied content that is essentially contextual and thus much more problematic in the legal case. In the second section I focus on the idea of pragmatic commitments and their normative foundations. My main concern here is to explore the normative framework of strategic speech and ways in which it differs from ordinary conversations. Finally, I will try to explain in what sense legal speech is strategic, and demonstrate how the pragmatic aspects of strategic speech actually work in the legal context.

Download the paper from SSRN at the link.

Law and Power in "Sir Gawain and the Green Knight" and "A Man For All Seasons"

Dan E. Stigall, U. S. Army JAG Corps, has published "The Rule of Kings and the Rule of Law: Representations of Law and Power in 'Sir Gawain and the Green Knight' and 'A Man for All Seasons'." Here is the abstract.

The tension between the desires of the potentate and the 'immutable' nature of law is one that resonates in the human psyche because of the drama inherent in such a struggle. This theme gained in importance after the emergence of the modern state, which separated the notion of political authority from divine power and fundamentally altered the concept of the sovereign. This paper explores the Pearl Poet's 'Sir Gawain and the Green Knight', and Bolt's 'A Man for All Seasons' - different plays authored in different times which, nonetheless, contain common elements such as the interplay between the power of kings and a higher legal authority that seeks to bind them. It is in that struggle that both plays derive a common source of drama, but articulate very different views of the relationship between power and law.

Download the paper from SSRN at the link.

Call For Papers

From Anne Wagner, Editor, International Journal for the Semiotics of Law

We live in a world of rapid global changes, which we nonetheless seek to understand with reference to general concepts. This world of change can be described in many different ways by taking account of a variety of factors. Among these we can distinguish a specific world-wide tendency for democratization, with social, individual and political dimensions. As some have pointed out, there are very few political orders today that would not claim to be democratic.

This peculiar global trend however gives rise to questions as well as problems, the most important of which seems to concern the question whether the “democratic turn” is real or virtual. Democracy generally means government by the people. Does this then mean that any kind of government by the people can claim to be democratic, or is democracy a more limited concept? What – if any – are the normative requirements of democracy? Democracy, after all, is not simply a descriptive model of government; it is a deeply rooted preference and hence functions as normative blueprint, often expressed in founding principles. Democracy is thus a thoroughly normative model. At the same time, it is constructed and finds expression in different ways in different times and places.

Does this mean that democracy, as a normative project, is such only for a certain section of the world and not for sections that believe in different gods, philosophies or value systems? Perhaps democratic principles are to be understood from a rational, secular value perspective (post-Weberian values) as formal frameworks that give people the possibility to fill them in with their own convictions of the preferred norms that should be obeyed in the name of equality and freedom. Does democracy not however imply a specific form of civic engagement and participation? Does democracy not also entail self-expression based on autonomy? Democracy does appear to give expression to post-traditional values which are not as yet dominant throughout the world. For this reason the further question arises as to the legal nature of a democratic political order. Are - following Sir Neil MacCormick - normative order, institutional normative order and institutional order three different kinds of order, do they overlap, or do they perhaps have the same source that keeps dividing itself into different orders?

Should morally impartial legal rules be the regarded as the most important or perhaps as the only support for peace in a pluralistic world? But then, rephrasing somewhat Ronald Dworkin’s question, we can ask how – if at all – democracy is possible here?

* * *



The 9th International Roundtable for the Semiotics of Law invites all those who are interested in problems concerning Legal Rules, Moral Norms and Democratic Principles to take part in our roundtable discussion in Poznań (Poland). The perspective adopted by participants – whether purely semiotic, legal, philosophical, sociological, cultural, sociolinguistic etc. – can be freely chosen by each participant.



We invite everyone interested in participating in The 9th International Roundtable for the Semiotics of Law to send us an abstract by the 1st of May 2010. It should be prepared in either English or French (max 300 words) and sent by e-mail to bartwoj@op.pl; karolinacern@yahoo.com; juchaczp@amu.edu.pl and to Anne Wagner at valwagnerfr@yahoo.com .



Selected papers will be published in a special annual issue of the International Journal for the Semiotics of Law (http://www.springer.com/).


Anne Wagner, Ph. D., Université du Littoral Côte d'Opale (France)

Research Professor, China University of Political Science and Law (Beijing)

http://www.semioticon.com/semiotix/semiotix13/sem-13-05-01.html

Gary Watt's Equity Stirring: The Story of Justice Beyond Law

A wonderful, densely written book that you shouldn't miss: Gary Watt's Equity Stirring: The Story of Justice Beyond Law (Hart Publishing, 2009).

Says Professor Watt in his introduction, "I start with titles, because one of the aims of this book is to explore the potential of a cultural discourse, based on equity, to resist a culture of entitlement, based on rights. The inscription of title and entitlement, but the process is fundamentally erroneous and calls for equity's correction, since a mere title can never express the whole truth."

The author plays with language and ideas throughout the work, instructing and guiding and leading us along the way in an invigorating adventure through the philosophy of law, literature, cases (e.g., the Earl of Oxford's case), the history of law, law and gender, and then "gets down to cases:" for example, Shakespeare's The Merchant of Venice. I found the extensive discussion of the many meanings of chancery (chapter 3: Chancery Script) of particular interest. Watt races from Charles Dickens to Sir Edward Coke and weaves from literature to law with astounding ease. It's a star turn, and a volume that one can re-read profitably.

Lots of footnotes, an amazing bibliography.

[NB: The publisher sent me this free copy.]

Call For Papers

Savage Thoughts: Interdisciplinarity and the Challenge of Claude Lévi-Strauss

Institute for the Public Life of Arts and Ideas McGill University, Montréal
24-26 September 2010

CALL FOR PAPERS

Claude Lévi-Strauss was one of the great interdisciplinary writers of the twentieth century whose influence has been felt far beyond his home discipline of anthropology. His inquiry illuminated the border lands between primitive and non-primitive, self and other, myth and history, human and animal, art and nature, and the dichotomies that give structure to culture. At the same time his method troubled those borders and dichotomies, through the bricolage he adopted that illuminated connections amongst literature, art, psychology, music, religion, and law.

Our call for ‘savage thoughts’ seeks out new work influenced by this inquiry and these methods, and reflections on Levi-Strauss’ legacy across the whole range of the humanities and beyond, including—

1) Recent interdisciplinary research in the reception, critique, and development, of Lévi-Strauss’ work. How have these inquiries been transformed in recent years? Are the children of Lévi-Strauss as savage as he?

2) Consideration of Lévi-Strauss’ larger intellectual influence, explicit or otherwise, right across the humanities. Perhaps there is something savage at the heart of interdisciplinary thought itself—refusing to be tamed by the intellectual borders of a discipline, it forages at will. Where has Lévi-Strauss’ method spawned such wildness and hybridity?

3) Looking beyond the academy to consider how Lévi-Strauss’ ideas have embedded themselves in the culture, values, social organization, and framework of modern society. What is the public life and impact of these ideas? In what ways has our world been altered by his mode of apprehending it?

Conference organizers invite papers that address the borderlands between a wide range of disciplines including, but not limited to Anthropology, Architecture, Art History, Communications, History, Law, Linguistics, Literature, Human Geography, Musicology, Philosophy, Psychology, Religious Studies, Semiotics, and Sociology. Proposals for single papers in English or French as well as for complete panels are welcome. In either instance, abstracts for 15-20 minute papers should be c.200 words, and accompanied by a brief (2-page) CV. Proposals for complete panels should also include a short explanation of the panel theme. Please send proposals as electronic files (in .doc, .docx, or .pdf format) to savage.thoughts@mcgill.ca no later than 15 March 2010.

Conference website: www.mcgill.ca/iplai/savagethoughts/
Conference registration will open 15 April 2010. Registration details, including fees information are on the website.

The Institute for the Public Life of Arts and Ideas at McGill University is committed to understanding how the arts (literature, painting, film, theatre, music, industrial and artistic design, architecture) and new ideas come into being in a range of settings (schools, the law courts, markets, the Web, the book trade, state institutions) and in relation to social, cultural, and institutional practices. It also strives to understand how art and ideas are able to transform the private world of the individual, the greater world of public matters, and the interactivity between the two. http://www.mcgill.ca/iplai/

AALS Section On Law and the Humanities Focuses on "Reasoning From Literature" at 2010 Conference

From Jessica Silbey, news of this year's AALS Section on Law and the Humanities
2010 AALS Conference, New Orleans

Reasoning from Literature

The “literary turn” in legal studies manifests in many ways in our legal discipline and practice. Be it with the birth of the study of law and literature in the 1980s, the growing attention to narrative theory and storytelling in the law in the 1990s, or the “cultural turn” in legal studies in the 21st century (as some scholars have called the cultural analysis of law), reasoning from literature seems commonplace. And yet it feels still marginalized in legal studies, as not “really law,” and lacking the core persuasive power that legal argumentation and doctrinal analysis do. This panel has been put together to wrestle with what it means to “reason from literature” and to contest the boundaries between legal reasoning and literary logic. Proceedings to be published in the Yale Journal of Law and Humanities, Winter 2010.


Program Chair: Jessica Silbey, Suffolk University Law School
Section Chair: David Ritchie, Mercer
Chair Elect: Angela Onwuachi-Willig, Iowa


Jessica Silbey
Associate Professor of Law
Suffolk University Law School
Boston, MA 02108
617-305-6270
jsilbey@suffolk.edu
http://www.law.suffolk.edu/faculty/directories/faculty.cfm?InstructorID=819

Matriculate At Lost U: Low Tuition, Lots of Relevance, High Fun Factor

The Chronicle of Higher Education's Wired Campus Blog has this piece about Lost University, a project of the folks over at ABC's Lost, which links the show's content to, well, the real world. Real class materials include Bluray discs of the show, and you won't get any spoilers. Rats. First semester offerings include a course on time travel by a physics prof at USC, philosophy from other USC profs, and hieroglyphics from a UCLA professor.

Here's more from the Los Angeles Times.

Nicholas Warner, who teaches the physics course, told the Chronicle,
“There used to be huge disconnect (sic) between watching television shows and academic investigation. Anything that provides channels to follow up questions is a wonderful thing.”

Now, Professor Warner is right--building bridges between the two cultures is indeed a wonderful thing. But I think academics have been building those bridges for a while now. College courses (and graduate school courses) integrating popular culture and everything else, including law, have been around for a while now, as have books about tv shows and films in which academics study the impact of popular culture (think about all those books about the meaning of Star Trek). I think the "disconnect" vanished into a black hole some time ago. What's different about this enterprise (ha!) is that it's a joint project between the show and academia.

Juries and Narrative

John M. Conley, University of North Carolina, Chapel Hill, School of Law, and Robin H. Conley, UCLA Department of Anthropology, have published "Stories from the Jury Room: How Jurors Use Narrative to Process Evidence," at 49 Studies in Law, Politics, & Society 25 (2009). Here is the abstract.

This paper analyzes the ways in which jurors use everyday storytelling techniques in their deliberations. It begins by reviewing the literature on how jurors receive and process evidence, emphasizing narrative and storytelling. It then presents some new, qualitative linguistic data drawn from actual jury deliberations, which shed light on jurors' standards of evidence and proof, as well as on the persuasive tactics they use in dealing with each other. Although these data are limited, they provide an interesting basis for assessing existing ideas about jury evidence-processing and thinking more broadly about the strengths and weaknesses of the jury system.

Download the article at the link.

More Law and Baseball

And it's back.

Aaron Zelinksy, Yale Law School, is publishing "The Justice as Commissioner: Benching the Judge-Umpire Analogy," in Yale Law Journal Online. Here's the abstract.

Chief Justice Roberts has repeatedly compared the role of a Supreme Court Justice to that of a baseball umpire, and this analogy has assumed a prominent place in the contemporary debate over the appropriate role of a Supreme Court Justice. This paper traces the history of the judge-umpire analogy since its first judicial invocation in 1886, finding that it was originally intended for trial court judges. Moreover, courts historically invoked the analogy as an illustrative foil to be rejected because of the umpire’s passivity. In place of the judge-umpire analogy, this paper propose that the appropriate analog for a Justice of the Supreme Court is the Commissioner of Major League Baseball. Both Supreme Court Justices and Major League Baseball Commissioners fulfill four critical characteristics which separate them from trial court judges and umpires: they provide interpretive guidance to subordinates, undertake extended deliberation, take countermajoritarian action, and wield substantial rule-making power.

Download the article from SSRN at the link.

Law and Baseball

Ross E. Davies, George Mason University School of Law, has published "It’s No Game: The Practice and Process of the Law in Baseball, and Vice Versa," in Seton Hall Journal of Sports and Entertainment (forthcoming). Here is the abstract.

It is a commonplace that the relationship between baseball and the law is a long and close one. But, first, is it true? And, second, if it is, just how long and how close? Strangely, given the large amount of good work produced by able scholars of baseball and the law, concrete answers to these basic questions are not readily available. This article is a first step toward filling that gap. It is a sketch of the length, breadth, and depth of the relationship between baseball and the law. (In order to tell a less-than-interminable tale, this article mostly tilts back and forth between recent years – evidence of the vibrancy of the baseball-law relationship today – and the late 19th and early 20th centuries – evidence that it has been vibrant for a long time – and deals only sketchily even with those periods. This should not be taken to mean that the baseball-law relationship was any less interesting at other times, or that there isn’t much more to be said about all times.) As should be clear by the end of this article, the answer to the first question is an emphatic and certain “Yes”: baseball and the law are close and have been for a long time. The answer to the second question, however, is an equally emphatic but far less certain “Very”: while there surely are both unrecognized extents and unmarked limits to the law-baseball relationship, we cannot define them without a fuller inventory and chronology – an old-fashioned digest – of the thousands upon thousands of events that make up the history of baseball and the law. Perhaps this article can serve as the kernel of such a project.

[I don't normally blog articles about law and baseball, but I'm branching out].

Tax and Shakespeare

Ellen P. Aprill, Loyola Law School (Los Angeles, has published "A Tax Lawyer's Interpretation of Shakespeare," at 13 ABA Section of Taxation News Quarterly 13 (Fall 2009). Here is the abstract.

Shakespeare has been quoted and invoked in numerous contexts, but, inexplicably, the insights his immortal words bring to tax law have been ignored. This short and lighthearted piece begins to fill that gap. Expanding on my remarks in accepting the 2009 Dana Latham Memorial Award from the Los Angeles County Bar Association Taxation Section, I discuss quotations from Shakespeare’s plays that illuminate important tax doctrines.

Download the paper from SSRN at the link.

Aprill. What an auspicious name for a tax professor.

Law in "Titus Andronicus"

Paul Raffield, University of Warwick School of Law, has published "'Terras Astraea reliquit’: Titus Andronicus and the Loss of Justice," in Shakespeare and the Law (Paul Raffield and Gary Watt eds.; Hart 2008) at 203-220). Here is the abstract.

This paper considers the constitutional and political significance of Shakespeare’s Titus Andronicus, in the context of fin-de-siècle Elizabethan rule, during which period the jurisdiction of the prerogative courts threatened to supersede that of the courts of common law. I examine juristic belief in the existence of an unwritten law, superior in authority to imperial edict: a theme which resonates throughout Titus, but which also underscores The Reports of Sir Edward Coke, which he was compiling in the 1590s. I analyse also the symbolic importance of ancient Rome to the development in England of a body of literature that might loosely be termed republican. The story of the destruction of Troy and its re-emergence in London as Troynovant is a literary device that was employed by Elizabethan writers as a means of establishing the ancient credentials of the English state and English common law.

Download the essay from SSRN at the link.

Contract Law in the Comedy of Errors

Paul Raffield, University of Warwick School of Law, has published "The Comedy of Errors and the Meaning of Contract," in Shakespeare's Imaginary Constitution: Late Elizabethan Politics and the Theatre of Law (3 Law and Humanities (2009)). Here is the abstract.

This article examines the theme of contract and its symbolic connotations of societas or fellowship, in the context of Shakespeare’s The Comedy of Errors and its performance on 28 December at the Gray’s Inn revels of Christmas 1594. Central to the argument is the extraordinary advancement of contract law in Elizabethan England, and in particular the significance of the promise to the status of binding bilateral agreements. In particular, the analysis considers the promotion of assumpsit at the expense of actions for debt in relation to a society (and a legal profession) whose mores were heavily influenced by humanist notions of the individual conscience, which simultaneously bound the subject of law into an ethical association with his fellow citizens and freed him (at least putatively) from the constraints of immutable, ancient law. The Comedy of Errors provides a perceptive critique of a society which is bound together only by the market, having abandoned or mislaid the true bonds of friendship and love, through which a just community may be recognised.

Download the article from SSRN at the link.

Religious Leaders and Constitutional Law

John M. Kang, St. Thomas University School of Law, has published "Appeal to Heaven: On the Religious Origins of the Constitutional Right of Revolution," at 18 William & Mary Bill of Rights 281 (2009). Here is the abstract.

This Article explores the religious origins of the right to alter or abolish government. I show in Part I that the right was widely accepted among the American colonies as expressed through their constitutions and, later, the federal constitution. In Part II, I usher the reader back in time and across the continent to seventeenth century England. There, I introduce two men who would have abhorred everything about American constitutional democracy - King James I and the philosopher Sir Robert Filmer. Both men, prominent in their respective domains of authority, devoted themselves to the governing axiom that kings were bequeathed a right by God to absolute rule. Part III sketches the seventeenth century arguments of two other Englishmen, also prominent--the philosophers John Locke and Algernon Sidney - who challenged James and Filmer. Locke and Sidney argued that God had never sanctioned the divine right of kings and instead had justified the people’s right to overthrow tyrants.

The arguments of Locke and Sidney will, as I show in subsequent sections, influence the American clergy who supported war against Britain and the right of revolution in general. Indeed, the development of this connection will occupy me for the remainder of the Article, but, in Part IV, I take a brief respite to summarize the historical circumstances that severely hampered governmental control over religion in colonial America and thus provided partially autonomous spaces for people to reflect on religion, including in ways that would inform their right to alter or abolish government. I illustrate in Part V how several prominent American clergymen, following Locke and Sidney, rejected as impossible the divine and supposedly infallible status of rulers. God, the clergy insisted, was the only one who could claim such infallibility; the clergy warned that rulers would do well to devote themselves to the people’s well being, not the former’s aggrandizement. In Part VI, I argue that, again echoing Locke and Sidney, a prominent group of American clergymen insisted that, contrary to the anti-democratic jeers of monarchists, God had given people the capacity for reason which enabled them to make meaningful decisions about their political future. I conclude in Part VII by illustrating how the federal and state constitutions following the American Revolution sought to protect conditions for the faithful to contemplate the religious meaning of the right to alter or abolish government.

Download the article at the link.

Law and Art

A couple of articles on law and the art by the New York Times' Adam Liptak: here on Daniel Moore and here on Donald Johnson, serving three life terms for murder.

Singing About Species

Charles Darwin has his own minstrel. The Scientist's Victoria Stern writes about Philadelphia entertainer Brett Keyser, who sings about Mr. Darwin's accomplishments, both on the street and in a one-man show called "Darwinii: The Comeuppance of Man." Read more here (subscription; free).

Meanwhile, former child star and current creation science activist Kirk Cameron is engaged in a new project: handing out copies of The Origin of Species on college campuses, but he and his colleagues don't exactly want university students to come to Darwin. These copies of Mr. Darwin's seminal work have a new introduction that seeks to show why it's flawed. According to recent media reports,

The 50 page introduction that Cameron helped pen includes passages that link Darwins work with Nazi eugenics and overall mysogyny.

"You can see where [Hitler] clearly takes Darwin's ideas to some of their logical conclusions and compares certain races of people to lower evolutionary life forms," Cameron told People. "If you take Darwin's theory and extend it to its logical end, it can be used to justify all number of very horrendous things.

But Mr. Cameron may not be getting through. Said one student, "I don't think they are accomplishing what they set out to do. All these people are getting a free 'Origin of Species.' If they read the book they'll see through (the introduction)...". Read more here in a Christian Science Monitor article.

The Right of Publicity and "Crime of the Century" Cases

Edward Larson, Pepperdine University School of Law, has published "Murder Will Out: Rethinking the Right of Publicity Through One Classic Case," in volume 26 Rutgers Law Review (2009). Here is the abstract.

In this forthcoming article, the author uses the protracted legal battles over the right of publicity stemming from the lasting celebrity created by the so-called “crime of the century” to propose a legal test for applying the right of publicity generally. These legal battles were fought during the 1960s over the right of celebrity slayer Nathan Leopold to control the use of his name and personality in a novel, movie, and stage play. After conflicting lower court decisions that had a chilling effect on writers and publishers, the case was eventually decided against Leopold. The author agrees with this result but argues that, because there has been a tendency to decide such disputes on a case-by-case basis, similar uncertainty continues to arise in analogous cases. He proposes a clear test, easily understood by both creators and users of celebrity personality, which would balance the interests of the parties and bring added predictability to this area of the law.

Download the article from SSRN at the link.

It's a Wonderful Life, Mr. Scrooge, and Other Tales From La La Land

Larry E. Ribstein, University of Illinois College of Law, has published "How Movies Created the Financial Crisis", in the Michigan State Law Review for Winter 2009. Here is the abstract.

Narrative makes sense out of reality and can forcefully persuade listeners to a particular point of view. Artists in general have a narrative of business which springs from their belief that at least some aspects of business are antithetical to art. Filmmakers add to this a resentment of the constraints capital places on their art. Film is particularly persuasive because of its vivid images and because of the consistency of filmmakers’ anti-capitalist perspective on business. Filmmakers’ negative portrayal of capitalists has helped to prepare the public to believe that capitalists - and not government, economic cycles, greedy people or business generally - caused the financial crisis. This will help the public accept a regulatory agenda built on this premise, specifically including the regulation of hedge funds.

Download the Article from SSRN at the link.

Law, Humanities and the Medical Curriculum

Jennifer Bard, Texas Tech University School of Law, Thomas William Mayo, Southern Methodist School of Law, and Stacey A. Tovino, Drake University School of Law have published "Three Ways of Looking at a Health Law and Literature Class," in volume 1 of Drexel Law Review (Summer 2009). Here is the abstract.

The authors of this Article participated in a panel at the American Society of Law, Ethics & Medicine Conference in 2008 that discussed the use of literary materials in law school to teach medical ethics (and related matters) in a law school setting. Each author comes at the topic from a different perspective based on his or her own experience and background. This Article and the panel on which it was based reflect views on how literature can play a valuable role in helping law students, as well as medical students, understand important legal and ethical issues and concepts in health law and bioethics.

In Part I, Stacey Tovino introduces the parallel fields of “literature and medicine” and “law and literature” and identifies several common approaches to the use of literature, literary non-fiction, and illness narratives in medical and law school curricula. Tovino places current coursework in Law, Literature, and Medicine in its proper historical and pedagogical context.

In Part II, Tom Mayo describes the Law, Literature, and Medicine seminar he offers to third-year law students at Southern Methodist University’s Dedman School of Law and fourth-year medical students at The University of Texas Southwestern Medical School. Mayo examines the features of his course that make it effective, suggests literature that may be used by health law professors who do not have the opportunity to teach a seminar devoted to literature, and comments on the ongoing medical humanities debate.

In Part III, Jennifer Bard describes the Law, Medicine, and Literature course she offered for the first time at Texas Tech University School of Law during the Spring 2008 semester. Bard examines the texts and films she assigned to build a working knowledge of medicine and science and the literature she selected to immerse her students in medico-legal situations with which they were unfamiliar.

Download the article from SSRN at the link.

LCCHP Announces Winners of Annual Student Writing Competition

From the Lawyers' Committee for Cultural Heritage Preservation (LCCHP)

The Lawyers’ Committee for Cultural Heritage Preservation (LCCHP) is pleased to announce the winners of its 2009 annual student writing competition, sponsored by Andrews Kurth LLP. The first-place winner is Amelia Sargent of Stanford University Law School for a paper entitled “New Jurisdictional Tools for Displaced Cultural Property in Russia: From ‘Twice Saved’ to ‘Twice Taken’”. The second-place winner is Melanie Greer of DePaul University College of Law for her paper entitled “Deaccessioning: A Necessary Evil?”. An honorable mention went to “The Limits of the Law: The Impact of the 1970 UNESCO Convention on the Trade in Illicit Cambodian Antiquities”, by Terressa Davis of the University of Georgia.
Both winning papers will be published in the 2010 Yearbook of Cultural Property Law. The finalist paper, “Complying with NAGPRA’s Pesticide Provision: A Best Practice Guide” by Lydia Grunstra of American University Washington College of Law will also be published in the next issue of the Yearbook.
Due to the generosity of Andrews Kurth’s DC office, the first-place winner will receive an award of $1000 and the second-place winner will receive an award of $500. This is the fifth annual LCCHP competition, and it attracted twenty-six entries from nineteen law schools, the largest numbers of entries and law schools represented in any prior competition. We also want to thank this year’s writing competition selection committee, chaired by Sherry Hutt, and including Ricardo St. Hilaire, Lucille Roussin and Gillian Bearns.
For the third year, LCCHP is pleased to partner with Andrews Kurth in offering this competition as a means of expanding the teaching of cultural heritage preservation law in U.S. law schools. LCCHP is a nonprofit organization of lawyers, law students and interested members of the public who have joined together to promote the preservation and protection of cultural heritage resources in the United States and internationally through education and advocacy.
About LCCHP
The Lawyers’ Committee for Cultural Heritage Preservation is an organization of lawyers, professors, and like-minded friends who have joined together to promote the preservation and protection of cultural heritage resources in the United States and internationally through education, outreach and advocacy. Cultural heritage law is a growing legal field, as our society comes to appreciate the important symbolic, historical, and emotional role that cultural heritage plays in our lives. Cultural heritage law encompasses several disparate areas, including the protection of archaeological sites, preservation of historic structures and the built environment, preservation of and respect for both tangible and intangible indigenous cultures, international market in art works and antiquities, and recovery of stolen art works. Please visit the LCCHP web site at www.culturalheritagelaw.org for more information and watch the site and your email for the upcoming announcement of the 2010 student writing competition.
About Andrews Kurth LLP
For more than a century, Andrews Kurth LLP has built its practice on the belief that "straight talk is good business." Real answers, clear vision and mutual respect define the firm's relationships with clients, colleagues, communities and employees. The firm has represented government and quasi-governmental institutions, museums, churches, foundations, families and private individuals from around the globe on the legal aspects of art and antiquities recovery in U.S. courts. With more than 400 lawyers and offices in Austin, Beijing, Dallas, Houston, London, Los Angeles, New York, The Woodlands and Washington, DC, Andrews Kurth represents a wide array of clients in all areas of business law.?More information about the firm’s art and cultural property practice may be found online at:
www.andrewskurth.com/industries-artantiquities.html

Translation, Comparative Law, and Localism

P. G. Monateri, University of Turin School of Law has published "'Cunning Passages': Traductology, Comparison and Ideology in the Law and Language Story." Here is the abstract.

My standpoint in this paper is that in affording the subject of Law and Language we face a mass of “local issues”, and “local puzzles”, but that we still lack a theory to grasp with the bulk of the matter. Al this becomes peculiarly embarrassing in the age of development of “English-only” movements, and facing the rise of a rather new and framed field of studies like “traductology” that would of course, but do not actually, interplay with comparaison especially in the field of Law. In my paper I just try to look around the package of some received ideas, in order to clean the blackboard before trying to build up something newer. Thus in the first section I cope with two prevailing theories: 1.) the theory of the language as a “social glue”, which is dominant and emerging from the present American political debate; 2.) the theory of the “analogy” between Law and Language as spontaneously ordered complex phenomena; then in a second section I try to trace back these ideas in the time of the “Birth of Comparativism” in the early 19th century. In so doing i deal with: 1.) the birth of Indo-European Family in Comparative Linguistics, and, 2.) the birth of Legal Comparativism within the context of the German Legal Historicism, in the same span of time. Finally I try to show how all these conceptions are nested details of a more general consciousness with broad political implications in terms of projects of governance. Then according to my views neither language studies nor traductology can be treated as pure subject deprived of a strong political commitment. Both are field where “choices for candor” are not at hand.

Download the paper at the link.

Reza Banakar, University of Westminster School of Law, has published "In Search of Heimat: A Note on Franz Kafka’s Concept of Law," in volume 22 of Law and Literature (Summer 2010). Here is the abstract.

Are Franz Kafka’s descriptions of law and legality a figment of his imagination or do they go beyond his obsessive probing of his neurosis, reflecting issues which also engaged the social and legal theorists of the time? Does Kafka’s conception of law offer anything new in respect to law, justice and bureaucracy, which was not explored by his contemporaries or by later legal scholars? This paper uses Kafka’s office writings as a starting point for re-examining the images of law, bureaucracy, hierarchy and authority in his fiction; images which are traditionally treated as metaphors for things other than law. It will argue that the legal images in Kafka’s fiction are worthy of examination, not only because of their bewildering, enigmatic, bizarre, profane and alienating effects, or because of the deeper theological or existential meaning they suggest, but also as a particular concept of law and legality which operates paradoxically as an integral part of the human condition under modernity. To explore this point Kafka’s conception of law is placed in the context of his overall writing as a search for Heimat which takes us beyond the instrumental understanding of law advocated by various schools of legal positivism and allows us to grasp law as a form of experience.

Download from SSRN at the link.

Positions Open

ASSISTANT PROFESSOR OF LAW and SOCIETY JOB DESCRIPTION: Successful candidates will be expected to teach courses in each of the following categories: (1) Introduction to Law and Society and/or Introduction to Law and Justice, (2) Comparative Legal Systems, American Legal History, Contemporary Issues in Law and Society, and/or Legal Rhetoric, (3) Directed Readings and Thesis Supervision and (4) electives of the major. Rank and salary based on qualifications and experience. REQUIREMENTS: Ph.D. required by start date in social science area relevant to the study and teaching of socio-legal phenomena including, but not limited to anthropology, area studies, communications/media, criminology, economics, gender/women's studies, geography, history, interdisciplinary studies, linguistics, philosophy, psychology, political science, sexuality, social work or sociology, etc.; and J.D. with practical experience strongly recommended. Scholarship (or promise thereof) on critical socio-legal theory involving race, gender, class and/or similar categories of inequality required. Inquiries may be directed to Dr. Aaron R.S. Lorenz, Search Committee Chair, School of Social Science and Human Services. To request accommodations, call (201) 684-7732.


All applications must be completed online at: http://www.ramapojobs.com Attach resume, cover letter, statement of teaching philosophy, research interests and a list of three references to your completed application. Since its beginning, Ramapo College has had an intercultural/international mission. Please tell us how your background, interest and experience can contribute to this mission, as well as to the specific position for which you are applying. Review of applications will begin immediately and continue until the positions are filled. Positions offer excellent state benefits. Applications will not be accepted by mail or email. Ramapo College Of New Jersey RAMAPO COLLEGE OF NEW JERSEY 505 Ramapo Valley Road, Mahwah, NJ 07430 Ramapo College is a member of the Council of Public Liberal Arts Colleges (COPLAC), a national alliance of leading liberal arts colleges in the public sector. EEO/AFFIRMATIVE ACTION.

Conference on Legal Fictions in Early Cultures, UCI

From Robin S. Stewart, Department of English, University of California, Irvine, Information on the Webcast of the UCI Graduate Student Conference "Legal Fictions in Early Cultures"

Here's the link to the online version of the conference:

http://www.humanities.uci.edu/earlycultures/news/Legal_Fictions.phpAnd for those who like to do podcasts on their I-pods, here's a link to the mp3 files of all the panels (just scroll down to files posted on November 13 & 14 to find them):

http://replay.nacs.uci.edu/public/fall2009/?P=*.mp3



Information on the Panels and Presenters:

The Group for the Study of Early Cultures at the University of California, Irvine presents its Second Annual Graduate Student Conference:

"Legal Fictions in Early Cultures"
With a key-note address by Laurie Shannon, Associate Professor of English and the Wender Lewis Teaching and Research Professor, Northwestern University

Co-sponsored by the Humanities Center, the Center in Law, Society and Culture, the Department of English, and the UCI Chancellor's Fellows Program.

“…fictions are to law what fraud is to trade.” –Jeremy Bentham

This conference explores the intersection between the practice of law and other forms of extra-legal thought (including literary, theological, artistic or social) and the figural extension of both to cultural expression. Graduate students from various departments (including Classics, Comparative Literature, Drama, English, German, History, Spanish, and Rhetoric) at UCI and from across the country presented papers exploring the concept of "legal fiction" in historical periods ranging from antiquity to the early 19th century.

Organized by Robin S. Stewart (UCI Department of English), C.J. Gordon (UCI Department of Comparative Literature), and Alex Perkins (UCI Department of Classics)

November 13, 2009

Panel 1: Illegal Fictions

CJ Gordon, UC Irvine (Comparative Literature), “Bread God, Blood God:
Mandatory Fictions in Late Medieval Eucharistic Piety”

Nicolette Bruner, University of Michigan (English), “False Prophets:
Justice, Law, and Prescience in Njáls Saga"

Jennifer Nelson, Yale University (Art History), “Salvation History on
Trial: Visual and Legal Representation in Bellaert’s Belial of 1484”


Panel 2: Writing Jurisdictions

K-Sue Park, UC Berkeley (Rhetoric), “On Law, the Legal Document and
Legitimacy: Revisiting the Requerimiento”

Paul Johnson, UC Irvine (Spanish), "The Legal and Literary Status (es) of the Early Modern Spanish Captive”

Macy Todd, NYU (English), "Verdicts North and South: Irish Law in Spenser and Carleton"


Keynote Address

Laurie Shannon, Northwestern University, "In the Beginning: Genesis, Animal Entitlement, and the Legal Fiction of Human Authority in Early Modernity"


Panel 3: Fictiones Legales

Éloïse Lemay, University of Western Ontario (Classics), “Quantum interrx nobis!”

Michael W. Heil, Columbia University (History), "The Uses of the Placitum in the Late Tenth Century: the Example of Cremona"

Alex Perkins, UC Irvine (Classics), “Citizens of God: Early Christian Identity and the Ethereal Boundaries of Augustine’s Civitas Dei”


Panel 4: Women, Men, and the Law in Early Modern England

Laura Nowocin, Miami University (English), "My will shall be to me instead of law”: Silence, Excess, and the Female Petitioner in the Seventeenth-Century Court Masque

Josh Pearson, Kansas State University (English), “The Husband’s Office”:
The Doubling of Domestic and Civil Power in A Comedy of Errors

Lisa M. Barksdale-Shaw, Michigan State University (English), “But now her price is fall’n”: Devalued Brides, Disappearing Dowries, and the Legal Economies of Marriage in Shakespeare’s Lear

Daniel Bergen, Marquette University (English), "The Female Ungoverned: The Case of Thomas Crowther vs. Elizabeth Moorfoote"


November 14, 2009

Panel 5: Narrative and Adjudication

Nicole Wright, Yale University (English), “The consciousness of being half-caught in the act”: Self-awareness, culpability and “legal dignity”
in Walter Scott’s later novel

Jeff Wilson, UC Irvine (English), “Straightening Out the Tudor Myth:
Politics, Law, and the Modern Audience of the Shakespearean History Play”


Panel 6: Legal Alchemy

Jenny Liou, UC Irvine (English), "Not Betraying but Translating: Treason and the Legal Fictions of Restoration Science"

Jackie Way, UC Irvine (English), "The Magical Nature of the Law in Eliza Haywood’s Adventures of Eovaai"

Dan Keegan, UC Irvine (Drama), “Of A Montebank: The Poison Effect in Hamlet"

Anannya Dasgupta, Rutgers University (English), “I’ll bring thee rogue within the statute of sorcery”: Vagrancy, Witchcraft and Secular Law in Ben Jonson’s The Alchemist


Panel 7: The Medieval Legal Character

Patrick Blong, UC Irvine (English), “The Word: Providence and Law in the Towneley Cycle”

Jonathan Fine, UC Irvine (German), “Judge as Figure/Judge as Function: The Role of Judgment in Late Medieval German Literature”

Elizabeth Strakhov, University of Pennsylvania (Comparative Literature), "Historical Fiction and the Practice of Rhetoric: Chaucer's Man of Law"

Legal Fictions

Nancy J. Knauer, Temple University School of Law, has published Legal Fictions and Juristic Truth, in volume 22 of St. Thomas Law Review (2010). Here is the abstract.

The classic legal fiction is a curious artifice of legal reasoning. In a discipline primarily concerned with issues of fact and responsibility, the notion of a legal fiction should seem an anathema or, at the very least, an ill-suited means to promote a just result. However, the deployment of a patently false statement as a necessary component of a legal rule is a widely practiced and accepted mode of legal analysis. In rem forfeiture proceedings rest on the fiction that the inanimate object was bad. Attractive nuisance re-imagines the child trespasser as an invitee. A host of doctrines bearing the term "constructive" in their titles adopt an "as if" rationalization that deems something to have occurred despite the fact that it did not (e.g., constructive notice, constructive eviction, and constructive discharge).

Legal commentators writing in the diverse fields of law and literature, tax policy, and empirical legal studies have taken a renewed interest in legal fictions, including Fuller’s influential work from the 1930s. They have applied the label "legal fiction" to an eclectic group of legal rules, including slavery, the doctrine of discovery, the tax code, and empirically erroneous legal presumptions (i.e., discredited legal regimes, complex statutory schemes, and empirical legal errors). These newly identified legal fictions do not satisfy Fuller’s classic definition of a legal fiction because they are neither acknowledged to be false nor demonstrably false. The enduring conundrum presented by the classic legal fiction is that it retains its utility despite its falsity, similar to false statements used in science and mathematics in order to advance a proof or hypothesis.

Any discussion of fiction necessarily invokes a concept of reality against which the fiction can be measured. Thus, before we can speak intelligibly of fictions, we must first be able to identify truth. Does it make any sense to refer to slavery as a fiction when it was, in fact, a legal system that brutalized millions? Is the choice of a tax base "false" simply because it is statutorily prescribed? Certain legal rules, such as those governing eye witness testimony, explicitly incorporate statements of fact that are readily verifiable by reference to real world events. Slavery and the doctrine of discovery encompass abstract concepts, such as liberty, autonomy and sovereignty that are not provable in any conventional sense of the term. They stand as juristic truths independent from questions of empirical proof.

Fuller cautioned that a legal fiction becomes dangerous when it is believed for then the fiction can approximate a lie, but there is also danger when the force of its constitutive power is ignored. When this occurs, the label of fiction works a denial and removes from memory important lessons regarding the law and the fragility of the human experience

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The Significance of the Charles River Bridge Case

Alfred S. Konefsky, University at Buffalo Law School, SUNY, has published "Simon Greenleaf, Boston Elites and the Social Meaning and Construction of the Charles River Bridge Case," in Transformations in American Law: Essays in Honor of Morton J. Horowitz (sic), vol. II (Daniel Hamilton & Alfred Brophy, eds. Harvard University Press, forthcoming). Here is the abstract.

This essay examines the complexity of the social and cultural forces in antebellum Boston that led to the framing and resolution of the legal and constitutional issues in the Charles River Bridge Case. Though often viewed as a clash between models of economic development, the lines of conflict in the case in reality were first honed in pamphlet wars in the early Jacksonian turmoil of the 1820s focusing on other often overlooked contemporaneous Boston free bridge disputes and the birth of a free bridge political party. Boston elites were pejoratively termed “aristocrats” for their support of the Charles River Bridge franchise and accused of defending the creation of exclusive and monopolistic privilege and property through government grant, while proponents of a new competing - and ultimately free - bridge were castigated as “agrarians” and accused of forcibly taking property in order to equalize its distribution in the face of a state-sanctioned privilege. The driving force of the dispute, therefore, turned out to be the acute social anxiety and stress of Boston’s investors and commercial elites. No one better signifies the contours of the struggle than Simon Greenleaf, recently arrived in Cambridge as a law professor at Harvard. Greenleaf, as one of the lawyers for the competing Warren Bridge, stood in opposition to the established Charles River Bridge interests and was responsible for shaping the legal arguments that ultimately prevailed. For that sin, he was pilloried in the public press and ostracized in the community. Greenleaf’s unhappy experience then becomes a metaphor of sorts, allowing us to appreciate how understanding a social environment can assist us in cracking the code of legal arguments, particularly in this instance early Contract Clause and Takings jurisprudence. In the process of examining this historical episode, we might wish to consider under what conditions legal history might be entitled to call itself a form of social history and to speculate whether the critical question for legal historians interrogating these events is not whether law matters, but rather of what matter law is made.

Download the abstract from SSRN here.

Law, Text, Terror

Ian Ward, University of Newcastle upon Tyne, Faculty of Law, has published Law, Text, Terror, forthcoming from Cambridge University Press. Here is the abstract.

The relationship between law and terrorism has re-emerged recently as a pressing issue in contemporary jurisprudence. Terrorism appears to take law to its limit, whilst the demands of counter-terrorism hold the cause of justice in contempt. At this point the case for engaging alternative intellectual approaches and resources is compelling. Ian Ward argues that through a closer appreciation of the ethical and aesthetical dimensions of terror, as well as the historical, political and cultural, we can better comprehend modern expressions and experiences of terrorism. For this reason, alongside juristic responses to modern expressions of terrorism, Law, Text, Terror examines a variety of supplementary literary texts as well as alternative intellectual approaches; from the drama of Euripides and Shakespeare, to the rhetoric and poetry of Burke and Shelley, the literary feminisms of Lessing and Rame, and the narrative existentialism of Conrad, Coetzee, Dostoevsky and DeLillo.