Hollywood and the Rhetoric of Race

Cynthia D. Bond, The John Marshall Law School, has published Laws of Race/Laws of Representation: The Construction of Race and Law in Contemporary American Film, at 11 Texas Review of Entertainment & Sports Law 219 (2010). Here is the abstract.

Within hours of the soul-stirring and nation-lifting election of Barack Obama as president, journalists and pundits were announcing the demise of all prior notions of race in America. Even during the campaign itself, narratives of a "post-racial" America were bandied about. But the historic nature of Obama’s ascendance does not obliterate or transcend the vast history of race and racial representation in America. The representational techniques of the construction of both law and race in popular film are deeply interdependent. Both law and film are story-telling, narrative systems. Race is also a narrative system in which visual representation is key. The significance of the visual apprehension of race is deeply relevant to the legal construction of race as well. (For example, in early citizenship cases and racial “passing” cases which persisted through the latter part of the 20th century.) Since society constructs racial categories in large part by visual identification and experience, all visual media, including film, necessarily participate in the constitution of race. Thus, films do not simply depict supposedly free-standing, objective, racial categories naturalized by the dominant discourse, but instead actually participate in the creation of race. As part of standard Hollywood practice, the mainstream film audience is constructed through identification with a norm of “whiteness.” Since that audience, when viewing a law film, is actively involved in constituting the law as part of its spectatorship, it follows that mainstream films construct law from the perspective of white privilege. The consequences and effects of this cinematic construction of law are many. This article discusses three main effects: 1) the raced construction of the lawyer-hero; 2) the denial or displacement of the law’s role in constructing race and race-based discrimination; and 3) the suppression or revision of politics and political history.

Download the article from SSRN at the link.

Sonnets and Statutes

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

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

Download the paper from SSRN at the link.

An Early Taste of "The Defenders"

CBS has posted video clips of its upcoming new legal drama "The Defenders", which stars John Belushi and Jerry O'Connell, here. The show, which is set in Las Vegas, seems to have no relationship to the iconic E.G. Marshall/Robert Reed series of the early 1960s. Mr. O'Connell, you'll remember, finished up one year of law school at Southwestern this spring. Here's a description of the show from the CBS website.

THE DEFENDERS, from the executive producer of CSI: CRIME SCENE INVESTIGATION, is an irreverent new legal drama about two fiery and charismatic Las Vegas defense attorneys. Tenacious, defiant and completely engaging, they argue the law, and they follow the law, but they always keep a few tricks up their sleeves. No matter what the odds, these lawyers keep fighting for the little guy.

I listened to some of the stars' comments, including the assertions that one currently sees legal shows from the point of the view of the prosecutor. I'm not so certain of that. I think we've seen a fair number of defense lawyer shows, just in the past few seasons. Think about Boston Legal, The Practice, Just Legal, Eli Stone, The Deep End, Raising the Bar (agreed, this show features prosecutors and defense attorneys), Drop Dead Diva, The Good Wife...shall I go on? If you're curious about the number and point of view of lawyer shows, check out this roster, courtesy of Marylyn Robinson of the Tarlton (University of Texas) Law Library.

Bloomsday

Happy Bloomsday. On December 6, 1933, Judge John Woolsey ruled that James Joyce's Ulysses could be imported into the United States, since it was not, as the United States government maintained, obscene. The Second Circuit affirmed. United States v. One Book Entitled Ulysses by James Joyce, 72 F.2d 705, 706 (2d Cir. 1934).

And just in time, Apple has done a 180 on its attitude toward Robert Berry's Ulysses app. Yesterday his images were too, well, nude for the Job(s).

More on Bloomsday from the L.A. Times, Bloomsdayrun.org, the James Joyce Centre, and the New York Times.

Bibliography:

Corn-Revere, Robert, New Age Comstockery, 4 CommLaw Conspectus 173 (1996).

Ernst, Morris L., Reflections on the Ulysses Trial and Censorship, 3 James Joyce Quarterly 3-11 (Fall 1965).

Gillers, Stephen, A Tendency to Deprave and Corrupt: The Transformation of American Obscenity Law from Hicklin to Ulysses, 85 Washington University Law Review 215–96 (2007)
Pagnattaro, Marisa Anne, Carving a Literary Exception: The Standard and Ulysses, (Summer 2001).

Segall, Jeffrey, Joyce in America: Cultural Politics and the Trials of Ulysses (Berkeley: University of California Press, 1993).

Vanderham, Paul, James Joyce and Censorship: the Trials of Ulysses New York: New York University Press (1998).

Younger Irving, "Ulysses in Court: The Litigation Surrounding the First Publication of James Joyce's Novel in the United States", in Classics of the Courtroom (James W. McElhaney ed.; PEG, 1989).

DC Bar Foundation Acknowledges Laurence Fishburne For "Thurgood"

From BLT, the blog of Legal Times, a post noting that actor Laurence Fishburne got a thank you from the District of Columbia Bar Foundation for his performances of "Thurgood," a play devoted to the late Supreme Court Justice Thurgood Marshall. Here's more about Mr. Fishburne's performance, and about the play, written by George Stevens, Jr.

Law and Literary Studies Colloquium, Hong Kong University

Announcement of a Law and Literary Studies Colloquium, June 23-25, at Hong Kong University. Here's a link to the website.

Lawyers In Your Living Room

Michael Asimow, University of California, Los Angeles, School of Law, has published Lawyers in Your Living Room! Law on Television an introduction, in Lawyers in Your Living Room (Michael Asimow, ed.; ABA Press, 2009). Here is the abstract.

From Perry Mason and The Defenders in the 1960’s to L. A. Law in the 80’s, The Practice and Ally McBeal in the 90’s, to Boston Legal, Shark, and Law & Order today, the television industry has generated an endless stream of dramatic series involving law and lawyers. As a result, most members of the public receive most of their information (and misinformation) about what lawyers and judges do and how legal institutions function from absorbing pop culture representations on television. This book features 36 chapters about legal television, both domestic and foreign, written by 40 different authors. In addition, it contains celebrity introductions by Sam Waterston and James Woods, two of the premiere actors portraying lawyers in contemporary television.
The book covers the Judge Judy phenomenon (including her foreign counterparts) as well as shows that are not primarily about lawyers but feature important lawyer characters (such as The Simpsons or The West Wing). It also contains chapters about the production of dramatic legal shows, including writing and technical advising, and about legal ethics on television. The book concentrates on the personal and professional character of the lawyers -- which runs the gamut from fearless champions of the innocent to the sort of unethical or personally dysfunctional lawyers that the public loves to hate.

The McCarthy Hearings

The New York Times reminds us that on this day in 1954, attorney Joseph Welch faced down Wisconsin Senator Joseph McCarthy. On behalf on his young colleague Fred Fisher, whom McCarthy had assailed indirectly as a Communist because he was a member of the National Lawyers Guild, Welch stormed,"[U]ntil this moment, Senator, I think I never really gauged your cruelty or your recklessness." According to the Times, he went on, "If there is a God in heaven, it [the attack on Mr. Fisher] will do neither you nor your cause any good." Members of the audience applauded Welch.

Welch later went on to be cast as the judge in Otto Preminger's film Anatomy of a Murder, opposite Jimmy Stewart as Paul Biegler, Ben Gazzara as Frederick Manion, and Lee Remick as Laura Manion. He also was a guest host on the Kraft Television Theatre and had some other hosting roles on television.

Law, Language, and the Humanities

Penelope J. Pether, Villanova University School of Law, has published "Language, in the Law and the Humanities: An Introduction", in Law and the Humanities (Sarat, Anderson & Frank eds.; Cambridge University Press, 2010).

This chapter from Sarat, Anderson and Frank's Law and the Humanities, An Introduction (Cambridge U.P., 2010), opens with a "post 9/11" clinical teaching "war story," concluding "so much for acronym, euphemism, context, signifiers, and what they signify, writing, positive law and its bureaucratic and institutional simulacra, institutional and disciplinary discourses, surprise, its absence, familiarity, shock, and outrage; and cultural stories, tropes, schemas, or plausible narratives, like the performance of both truthfulness and trauma, or what we might call their discursive construction; and the sites where law and language are evident kin. What of law and language? What does telling stories about law, including the genre of “war stories,” suggest about this aspect of the interdisciplinary field constituted by law and humanities work? After all, “‘[c]ollecting stories,’” Ewick and Silbey write, in one of a group of recent thoughtful critical studies of law and language that complicate the distinction between linguistic humanities and linguistic human science method, “and ‘having conversations’ is not the usual way of describing social science research.” More to the point, all of these aspects of the writing about law might equally be found in other sociocultural institutions and their discourses."

Beyond registering that the body of work on law and language that proceeds from the premise that language is but a medium of transmission for the substance of law has been left methodologically behind by contemporary law and language scholarship, this much might also be said: This survey of the state of contemporary humanistic Law and Language scholarship suggests four main conclusions.

The first is that much of value in this body of work involves applying linguistic humanities andor critical linguistic human sciences methodology to the work of legal institutions, discourses, and texts, and could equally be replicated in “and language” interdisciplinary work in other professions, practices of subject formation, disciplines.

Next, some of it - and the scholarship of Peter Goodrich stands out in particular here - is about the unique or distinctive relationships between law and language. That said, this chapter’s third conclusion about law and language scholarship and the praxes that might be informed by it is that much is yet to be done in the subdiscipline of scholarship concerning itself with the unique or distinctive insights that might emerge from interdisciplinary inquiries into “law” grounded in the work of influential theorists of language and discourse. A cursory sampling of such scholars working in the post- and neostructuralist language studies traditions might range from Derrida and Foucault and Irigaray to Halliday, Kress, and Threadgold to Badiou and Lacan and Kristeva. There are likewise possibilities for interdisciplinary work in law and language that might be potentiated by the development of Peircean semiotics and the linguistic philosophy of Searle and, to a lesser extent, Austin.

This in turn suggests survey’s fourth conclusion: That to the extent that there is an aspect of law and language scholarship that is presently significantly underdeveloped, it is the interrelationships among theories of language, of subject formation, and of law. Lines of inquiry exploring this question might be generated by work drawing on sources that include Husserl’s phenomenological theorization of meaning and language and its account of the communicating subject, and Bourdieu’s work on both discourse and subject formation.

The balance of this chapter is divided into six main sections that in turn map distinctive subtypes of Law and Language scholarship: “Humanism and its Supplements;” “InstrumentalPhenomenal;” “PhilosophyTheory;” “Pedagogy and Subject Formation;” “Practice;” and “Culture.” I have endeavored to select both representative and significant scholars to exemplify general arguments, with inevitable omissions.

Law and Semiotics

Anne Wagner, Université du Littoral Côte d'Opale, and Jan M. Broekman, Pennsylvania State University School of Law, have published Prospect of Legal Semiotics (Springer, forthcoming). Here is the abstract.

This book examines the progress to date in the many facets – conceptual, epistemological and methodological - of the field of legal semiotics. It reflects the fulfillment of the promise of legal semiotics when used to explore the law, its processes and interpretation. This study in Legal Semiotics brings together the theory, structure and practice of legal semiotics in an accessible style. The book introduces the concepts of legal semiotics and offers an insight in contemporary and future directions which the semiotics of law is going to take. A theoretical and practical oriented synthesis of the historical, contemporary and most recent ideas pertaining to legal semiotics, the book will be of interest to scholars and researchers in law and social sciences, as well as those who are interested in the interdisciplinary dynamics of law and semiotics.

“The dependence of law upon the media of its transmission has long constituted a controversial open border with other disciplines. Prospects of Legal Semiotics takes a radical and expansive view of possible frameworks for addressing the signs of law in an increasingly virtual and predominantly visual epoch of global dissemination. Wagner and Broekman are especially to be commended for the imaginative and rigorous manner in which they have opened legal semiotics to a novel methodological interrogation at the same time as they have encouraged analyses that go beyond the established jurisdiction of law.”

The Use of Images and Law

Jessica M. Silbey, Suffolk University Law School, has published Evidence Verité and the Law of Film, at 31 Cardozo Law Review 1257 (2010). Here is the abstract.

This paper explores a puzzle concerning the authority of certain images that increasingly find themselves at the center of legal disputes: surveillance or “real time” film images that purport to capture an event about which there is a dispute. Increasingly, this kind of “evidence verité” is used in United States courts of law as the best evidence of what happened. Film footage of arrests, criminal confessions, photographs of crime scenes (during and after) is routinely admitted into court as evidence. It tends to overwhelm all other evidence (e.g., testimonial or documentary) and be immune to critical analysis. Why would this be so?

This paper situates this phenomenon in the current legal United States context, with a brief history of “evidence verité” and its treatment at law. It then compares side-by-side two cultural institutions, photography and law, as examples of institutions with power and influence over public and popular consciousness. How do these two institutions intersect? What patterns of influence and persuasion emerge from the partnership of photographic or filmic images and the role of law? The paper explores these questions by tracing the life of certain iconic public images in hopes that doing so will tell us something about how they came to be iconic: how their circulation and reception in the United States rendered the images meaningful beyond their textual existence. Studying the circulation and recirculation of these photograph images helps make sense of how “real time” images in culture and at law might shape our understanding of important, historic events beyond the facts these images depict.

This paper is not a paper about how we understand images as a psychological or neurological matter. It is a paper about how law and legal processes frame images and how images – especially “real time” images – frame or shape the law. The photographs the paper examines include the “Migrant Mother” from the Great Depression, the bombing of Hiroshima, the flag raising at Iwo Jima during WWII, the Times Square Kiss on VJ day, the US landing on the moon, the first in utero photographs of a human fetus, and images of torture at Abu Ghraib prison.

Download the article from SSRN at the link.

Legal Science, Legal Theory, Legal Naming

Hanoch Dagan, Tel Aviv University, Buchmann Faculty of Law, and Roy Kreitner, Radcliffe Institute for Advanced Study, Harvard University, and Tel Aviv University, Buchmann Faculty of Law, have published The Character of Legal Theory, in the Cornell Law Review. Here is the abstract.

For nearly a century legal scholars have vacillated between two strategies for dealing with the collapse of legal science as an autonomous discipline. One typical response has been to abandon the notion of a legal theory and to borrow a theoretical discipline from the social sciences or from the humanities. Another response has been to discard the idea of legal theory by highlighting the practical wisdom of lawyers and celebrating law as a craft.

Our mission in this Essay is to describe legal theory as an enterprise robust enough to justify separate naming. Legal theory focuses on the work of society's coercive normative institutions. It studies the traditions of these institutions and the craft typifying their members, while at the same time continuously challenging their outputs by demonstrating their contingency and testing their desirability. In performing the latter tasks, legal theory necessarily absorbs lessons from law’s neighboring disciplines. But at its best, legal theory is more than a sophisticated synthesis of relevant insights from these friendly neighbors, because of its pointed attention to the persistent jurisprudential questions regarding the nature of law, notably the relationship between law's normativity and its coerciveness and the implications of its institutional and structural characteristics.

Before we turn to elaborate on these features, we begin with an outline of the three other important discourses about law: law and policy; socio-historical analysis of law; and law as craft. Sketching these three genres of legal scholarship is instrumental for our task because analyzing the ways in which legal theory is different from these other modes helps us characterize legal theory.

Download the article from SSRN at the link.

Portia's Conception of Justice

Roberta Linciano, University of Salento, has published 'Is that the Law?': Portia's Mockery of Justice in The Merchant of Venice as an Italian Society for Law and Literature (ISLL) Paper Essay. Here is the abstract.

In this paper I examine the role performed by the disguised lawyer Portia during the trial Shylock vs. Antonio in Shakespeare’s The Merchant of Venice. With reference to the social, political and economic background of the Elizabethan age, I will explore Portia’s conception of justice, trying to assess if she acts as a loyal and equitable judge or as a vile impostor and investigating to what extent her conduct can be regarded as a model by modern lawyers or as a mere play upon the words.

Download the essay from SSRN at the link. (NB: The essay is in Italian).

Law and Language Scholarship

Penelope J. Pether, Villanova University School of Law, has published Language, in the Law and the Humanities: An Introduction, in Law and the Humanities (Sarat, Anderson and Frank ed.; Cambridge University Press, 2010). Here is the abstract.

This chapter from Sarat, Anderson and Frank's Law and the Humanities, An Introduction (Cambridge U.P., 2010), opens with a "post 9/11" clinical teaching "war story," concluding "so much for acronym, euphemism, context, signifiers, and what they signify, writing, positive law and its bureaucratic and institutional simulacra, institutional and disciplinary discourses, surprise, its absence, familiarity, shock, and outrage; and cultural stories, tropes, schemas, or plausible narratives, like the performance of both truthfulness and trauma, or what we might call their discursive construction; and the sites where law and language are evident kin. What of law and language? What does telling stories about law, including the genre of “war stories,” suggest about this aspect of the interdisciplinary field constituted by law and humanities work? After all, “‘[c]ollecting stories,’” Ewick and Silbey write, in one of a group of recent thoughtful critical studies of law and language that complicate the distinction between linguistic humanities and linguistic human science method, “and ‘having conversations’ is not the usual way of describing social science research.” More to the point, all of these aspects of the writing about law might equally be found in other sociocultural institutions and their discourses."

Beyond registering that the body of work on law and language that proceeds from the premise that language is but a medium of transmission for the substance of law has been left methodologically behind by contemporary law and language scholarship, this much might also be said: This survey of the state of contemporary humanistic Law and Language scholarship suggests four main conclusions.

The first is that much of value in this body of work involves applying linguistic humanities andor critical linguistic human sciences methodology to the work of legal institutions, discourses, and texts, and could equally be replicated in “and language” interdisciplinary work in other professions, practices of subject formation, disciplines.

Next, some of it - and the scholarship of Peter Goodrich stands out in particular here - is about the unique or distinctive relationships between law and language. That said, this chapter’s third conclusion about law and language scholarship and the praxes that might be informed by it is that much is yet to be done in the subdiscipline of scholarship concerning itself with the unique or distinctive insights that might emerge from interdisciplinary inquiries into “law” grounded in the work of influential theorists of language and discourse. A cursory sampling of such scholars working in the post- and neostructuralist language studies traditions might range from Derrida and Foucault and Irigaray to Halliday, Kress, and Threadgold to Badiou and Lacan and Kristeva. There are likewise possibilities for interdisciplinary work in law and language that might be potentiated by the development of Peircean semiotics and the linguistic philosophy of Searle and, to a lesser extent, Austin.

This in turn suggests survey’s fourth conclusion: That to the extent that there is an aspect of law and language scholarship that is presently significantly underdeveloped, it is the interrelationships among theories of language, of subject formation, and of law. Lines of inquiry exploring this question might be generated by work drawing on sources that include Husserl’s phenomenological theorization of meaning and language and its account of the communicating subject, and Bourdieu’s work on both discourse and subject formation.

The balance of this chapter is divided into six main sections that in turn map distinctive subtypes of Law and Language scholarship: “Humanism and its Supplements;” “InstrumentalPhenomenal;” “PhilosophyTheory;” “Pedagogy and Subject Formation;” “Practice;” and “Culture.” I have endeavored to select both representative and significant scholars to exemplify general arguments, with inevitable omissions.

Download the chapter from SSRN at the link.

The Bad Boy of Sherwood Forest

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

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

Judge Bao In Literature

Wilt Lukas Idema, Harvard University Library, has published Introduction to Judge Bao and the Rule of Law: Eight Ballad-Stories from the Period 1250-1450, in Wilt L. Idema, Judge Bao and the Rule of Law (World Scientific Publishing, 2009). Here is the abstract.

Pure, orthodox and incorruptible, Judge Bao has been serving as the preeminent embodiment of justice in China for almost a thousand years, so much so his court cases have been adapted as stories, novels and plays over the centuries. Now, for the very first time a series of eight ballad-stories on Judge Bao, dating from the period 1250-1450, are offered in a complete and annotated translation. These texts will provide the reader a reflection of the legend of Judge Bao in its earliest phase of development, with an extended introduction placing the ballad-stories in context with the development of the Judge Bao legend. These ballad-stories, in contrast to past plays dating from the same period, present abuse of power and corruption as endemic in the courts and bureaucratic service, and show Judge Bao imposing the rule of law even on the emperor.

Download the introduction from SSRN at the link.

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

Putting Your Law School Training To Work

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

Race and Legal History at the University of Texas

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

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

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

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

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

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

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

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

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

.
Download the paper from SSRN at the link.

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

Memoirs, Authenticity, and Fraud

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

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

Law in Shakespeare's Sonnets

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

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

Download the paper from SSRN at the link.

CBS' New Legal Drama

CBS has picked up the new legal drama "Defenders," in which Jim Belushi will star as a Las Vegas attorney who fights for the "little guy."

An End To Law & Order?

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

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

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

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

For analyses of L&O, see:

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

The Alternative Cultural Narrative and Legal Education

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

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

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

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

Download the paper from SSRN at the link.

Robin Hood-Itry

Nicholas Adam Curott and Alexander Fink, George Mason University, have published Bandit Heroes: Social, Mythical or Rational?. Here is the abstract.

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

Download the paper from SSRN at the link.

A Little Light Reading

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

Art and Legal Form

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

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

Download the essay from SSRN at the link.

Montesquieu's Spirit of the Laws

Murray Bessette, Morehead State University, has published "Montesquieu on Nature and Law: A Preface to the Understanding of the Spirit of the Laws," as a Western Political Science Association 2010 Annual Meeting Paper. Here is the abstract.

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

A New Issue of Law, Culture, and the Humanities

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

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

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

TV Judges and Tort Reform

Joshua Wilson and Erin Ackerman have published "TV Judges and the Civil Law Narrative" as a Western Political Science Association 2010 Annual Meeting Paper. Here is the abstract.

This is a collaborative study examining the relationship between popular reality-based judge television shows, 'tort tales,' and the politics of tort reform. TV judge shows share or approximate many features of the tort tale described by Haltom and McCann in Distorting the Law: Politics, Media, and the Litigation Crisis. The question driving our research is whether these TV Judge shows contribute to tort tales' conservative anti-litigation message or, instead, generate counter-narratives about the civil law system. Since tort reform is constantly a political issue, this study addresses one way in which popular support for tort reform might be mobilized.

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

Chad M. Oldfather, Marquette University Law School, has published "Oral History and the Study of the Judiciary," in volume 78 of George Washington Law Review Arguendo (2010). Here is the abstract.

This essay, which is a review of William Domnarski’s “Federal Judges Revealed” (Oxford University Press, 2008), explores the usefulness of oral history as a vehicle for understanding the judiciary. “Federal Judges Revealed” presents the insights gleaned from a study of over 100 oral histories given by Article III judges, ranging across the span of the judges’ lives. The essay first explores the methodological strengths and weaknesses of oral history as a general matter, and then further develops the analysis through a review of three oral histories given by the late Seventh Circuit Judge Thomas Fairchild. The essay then turns specifically to Domnarski’s book, outlining the ways in which it contributes to our understanding of judges and the judiciary.

Tax Lawyers At the Movies

This post probably would have been à propos April 15, but it's still interesting. From Paul Caron's Tax Prof blog, here are "Tax Movies," courtesy of guest blogger Robert G. Nassau at Syracuse Law.

In addition to the films mentioned, I'd suggest such goodies as Catch Me If You Can (2002) (the story of impersonator Frank Abagnale, Jr.), Jean de Florette (1986), Stranger Than Fiction (2006) (an IRS auditor can suddenly hear someone narrating his life), The Main Event (1979) (tax shelter), The Widow's Might (2009) (a widow fights back against property taxes), and Billy Bathgate (1991) (tax evasion). Check out www.imdb.com for additional films on taxes and their effect on life, the universe, and everything.

Evaluating the CSI Effect

Jessica D. Gabel, Georgia State University College of Law, has published Forensiphilia: Is the Public Fascination with Forensic Science a Love Affair or a Fatal Attraction?

It is forthcoming in the New England Journal on Criminal and Civil Confinement. Here is the abstract.

In February of 2009, the National Academy of Sciences released its much anticipated diagnosis and prescription for what ails the forensic science community. The Report confirmed the low but steady noise that had been building in the criminal justice system for at least a decade: that, with the exception of DNA evidence, much of what is presented as forensic science is not really science at all. Instead, a large segment of the high-tech pageantry seen on television and now expected and employed in court would fail to clear even the lowest hurdles of stringent scientific inquiry. Nonetheless, forensic evidence is often used to demonstrate the certainty of a person’s guilt by authoritatively “matching” evidence from the crime scene or victim to the suspect. The Report sounded the alarm as to the needs of the forensic science community, raised critical concerns, and even suggested a remedy by calling for the creation of an independent agency to regulate the field of forensic science. Moreover, it came at a time of “forensiphilia” – where forensic science is itself a celebrity that captivates and enchants audiences. One year after the Report caused ripples throughout scientific and legal circles, it seems as though, in some ways, the shock has passed, numbness has set in, and progress is idle. This article will examine the evolution of forensic science on television and in the courtroom. It will evaluate whether DNA is the reliable anomaly among the forensic science disciplines. Finally, along a similar vein to the Report’s resolution to strengthen forensic science, this article will call for a strengthening in legal education aimed at fostering both an understanding of the advances in science and a skepticism towards methods that inherently lack a solid foundation in science.

Download the article from SSRN at the link.

Rights Talk in Science Fiction

Christine A. Corcos, Louisiana State University Law Center, has published Visits to a Small Planet: Rights Talk in Some Science Fiction Film and Television Series from the 1950s to the 1990s. It is forthcoming in the Stetson Law Review. Here is the abstract.

As early as the seventeenth century, authors, particularly satirists, used the travel essay as a means to examine and critique societies, including their own. If an artist’s government discouraged or banned political or social critique, he was necessarily forced to disguise his criticism as fiction - the more fanciful, the better. This practice has carried over to the genre of science fiction (SF).

While authors fictionalize many of the elements in SF to make their stories more exciting and bizarre, some elements have made a transition into popular culture because they resonate with the human popular imagination. As a result, many individuals believe that the elements actually exist. Among them are popular methods of alien transportation, such as the rocket (often pictured as the “rocket to Mars”), the flying saucer, and the alien being interested in making contact with a human, either for benign or (more often) nefarious purposes. The idea that an alien means to visit Earth in order to destroy the planet or to cause us harm is one that quickly becomes a theme in novels, films, and television beginning in the mid-twentieth century, fed by actual political and cultural events.

These ideas resonate with human imaginations or they are embraced by spiritual beliefs. Viewers’ familiarity with real life space travel, which increases plausibility as well as the maintenance of traditional SF memes, allow SF writers to use the genre’s conventions to continue to critique society.

SF authors continually use human beings as the yardstick by which to measure aliens. So, while such films and shows may seem to invite us, through the use of the alien lens, to critique human society, they actually invite us to re-examine human society from a different, albeit a human, perspective. As the genre critiques human society from two perspectives, SF is actually well suited to examine the issue of civil and human rights.

This Article examines the critique of human society’s development and use of such rights within a sampling of SF film and television programs from the 1950s to the 1990s. Part II analyzes the treatment of civil rights within the alien invasion and infiltration narratives of the time period. Part III discusses the transition from the foreign alien-invasion narrative to the domestic alien narrative and its effect on the treatment of civil rights. Part IV explores the civil rights issues represented in the friendly alien-visitor narrative of the 1960s television show My Favorite Martian. Part V examines the civil rights questions the late 1980s and early 1990s television series Alien Nation poses. Part VI analyzes the civil rights issues the 1990s television series 3rd Rock from the Sun raises.

Download the article from SSRN at the link.

Constitutional Law in the Movies

David Ray Papke, Marquette University Law School, has published Oil and Water Do Not Mix: Constitutional Law and American Popular Culture, as Marquette Law School Legal Studies Paper No. 10-09. Here is the abstract.

Why have most fictional films and television series purportedly involving constitutional issues been commercial and artistic failures? Focusing in order on “First Monday in October” (1981); “The Pelican Brief” (1993); and “The Court” and “First Monday,” two short-lived American television series from 2002, this article suggests the works fail not because of a lack of creativity but rather because of the way they were produced. In particular, the article argues the culture industry’s use of stock characters, devotion to familiar conventions, and reliance on established genres virtually preclude anything resembling meaningful constitutional deliberation and discussion. These aspects of pop cultural production are industrial imperatives, but stock characters, familiar conventions, and established genres limit the intellectual range and depth of films and television series. These limitations are especially pronounced when consideration of the Constitution is a possibility.

Download the paper from SSRN at the link.

The Eden Narratives and Law

Geoffrey P. Miller, New York University School of Law, has published The Dark Age: How the Biblical Narratives Demonstrate the Necessity for Law and Government as NYU School of Law Public Law Research Paper No. 10-18. Here is the abstract.

In earlier work I argue that the Garden of Eden story in the book of Genesis explores a basic question for political theory: why people have an obligation to obey the law. The narratives that follow describe a “Dark Age” in world history characterized by accelerating violence and ending in a catastrophic flood. These texts expand the analysis of the Eden narratives by asking whether human beings can achieve a good life in the absence of government and law. The narratives describe an experiment in which people interact strategically with one another in an environment where cooperation can generate a surplus but defection from cooperative arrangements is always possible. The message of the Dark Age texts is that, at least under the specified conditions of scarcity, self-interest, and character types, people will not achieve a good life in the absence of government and law.

Download the paper from SSRN at the link.

Call For Proposals: New Series

Vijay K. Bhatia and Anne Wagner, series editors, are very pleased to announce that Ashgate will edit a new Series entitled Law, Language and Communication. The Series welcomes proposals - both edited collections as well as single-authored monographs - emphasizing critical approached to law, language and communication, identifying and discussing issues, proposing solutions to problems, offering analyses in areas such as legal construction, interpretation, translation and de-codification.

Legal Practice and Education in Edinburgh in the Early Twentieth Century

Hector Lewis MacQueen, University of Edinburgh School of Law, has published Lawyers' Edinburgh 1908-2008, at 8 Book of the Old Edinburgh Club (new series) 27 (2010). Here is the abstract.

This paper considers the physical setting of legal practice and education in Edinburgh in 1908 and compares it to the position in 2008. It is a contribution to the centenary celebrations of the Old Edinburgh Club in 2008.

Download the paper from SSRN at the link.

The Wire, National Security, and War

Dawinder S. Sidnu has published Wartime America and The Wire: A Response to Posner’s Post-9/11 Constitutional Framework in volume 20 of the George Mason Univesrity Civil Rights Law Journal (2009). Here is the abstract.

Pragmatists subscribe to the view that an individual’s practical experiences shape and inform an individual’s concept of the law. In Not a Suicide Pact: The Constitution in a Time of National Emergency, one of the legal community’s most admired and prolific pragmatists, Judge Richard A. Posner, presents his thoughts on how courts should resolve questions of constitutional law that implicate national security and individual rights.

As the relationship between security and liberty remains largely undefined in the post-9/11 world, Posner offers an important and timely perspective on a critical area of constitutional law. His framework is one in which security interests invariably supercede liberty interests in times of crisis. As such, according to Posner, an executive possesses significant authority to respond to national security needs in wartime and despite established rights, the judiciary should commensurately play a limited checking role on relevant executive action, profiling and discrimination of Muslims may be condoned, torture can be used to elicit information from detainees, and an executive may invoke the “law of necessity” to step outside of the “law of the Constitution.”

This essay uses an element of practical reality -- specifically themes from the acclaimed television series on law enforcement and crime, The Wire -- to challenge each of these conclusions from Not a Suicide Pact. Drawing on those themes, it argues that security and liberty are not locked in a zero sum game, that the judiciary should robustly check executive action especially in these perilous times, that profiling and discrimination of Muslims in the absence of any evidence of wrongdoing should be deemed impermissible, that torture is not only inconsistent with American legal obligations but also counterproductive to the war campaign, and finally that the executive is bound by and must not act beyond the Constitution, exigent circumstances and moral positions notwithstanding.

The essay thus suggests that the courts should give pause to the direction of constitutional law urged by Posner. Appealing to both law and practical reason, it admits that the law must be flexible in the post-9/11 era, but posits that the law and traditional constitutional norms still must guide and restrain the executive temptation to defend the nation at all costs.

Download the article from SSRN at the link.

Note also that some college instructors are using the show in courses. Here's a story from NPR.

More Sports Law in the Humanities

Douglas E. Abrams, University of Missouri School of Law, has published Sports in the Courts: The Role of Sports References in Judicial Opinions, in 15 Villanova Sports and Entertainment Law Journal (2010). Here is the abstract.

In cases with no claims or defenses concerning sports, the Supreme Court and lower federal and state courts frequently publish opinions that draw analogies to the rules or terminology of sports familiar to broad segments of the American people. Sports analogies can help the court explain factual or legal points because today’s generation, including the lawyers and litigants who comprise the prime audience for written opinions, grew into adulthood amid an unprecedented saturation of professional and amateur sports in the broadcast and print media, and more recently on the Internet.

This article surveys the broad array of sports whose references now lace written judicial opinions, and then discusses the use and misuse of these references. Sports references can help courts explain and resolve complexity, but may also implicate Rule 1.3 of the Model Code of Judicial Conduct by detracting unacceptably from the prestige indispensable to the judicial role. A sports reference remains incompatible with judging when a reasonable reader would conclude that the court invoked it primarily for the judge’s personal pleasure and not to facilitate the communication of ideas.

Download the article from SSRN at the link.

The Killing of Oscar Grant

Donald F. Tibbs, Drexel University School of Law, has published Who Killed Oscar Grant?: A Legal-Eulogy of the Cultural Logic of Black Hyper-Policing in the Post-Civil Rights Era as Drexel University Earle Mack School of Law Research Paper No. 1559489. Here is the abstract.

To explain the appalling shooting death of African American Oscar Grant, on January 1, 2009, one must break free of the ‘crime and punishment’ paradigm to reckon the extra-punitive function of American policing as an instrument for the management of dispossessed and dishonored groups. This article places policing in the historical sequence of peculiar institutions that have shouldered the task of defining, confining, and controlling African American’s legal identity alongside slavery, Jim Crow, the American prison system. The recent upsurge in black violence related to policing results from the crisis of the legal system as device for caste control and the correlative need for a substitute apparatus for the containment of lower-class African Americans. In the post-Civil Rights era, the vestiges of policing black bodies alongside the rhetoric of law and order have become linked by a triple relationship of race, policing, and the law spawning a legal continuum that entraps a population of younger black men rejected by the deregulated wage-labor market. The resulting mesh not only perpetuates socioeconomic marginality and symbolically taints the black sub-proletariat, it also feeds the runaway growth of American incarceration. Perhaps more importantly, it plays a pivotal role in the remaking of ‘race’, the redefinition of the citizenry vis-à-vis the U.S. constitution, and the construction of a hyper-policed people in the post-Civil Rights era.

Download the paper from SSRN at the link.

Abraham Lincoln as a Legal Writer

Judith D. Fischer, University of Louisville School of Law, has published Abraham Lincoln as a Legal Writer. Here is the abstract.

This article draws on a recent collection of Abraham Lincoln’s legal papers as well as on secondary sources to show how Lincoln developed his genius as a writer. The article then discusses characteristics that made his writing so eloquent. It concludes that today’s lawyers might profitably emulate Lincoln’s close study of great literature as well as his clear, succinct writing style.

Download the paper from SSRN at the link.

Adrienne Davis on Star Trek and Gran Torino

Adrienne D. Davis has published Film Review: Masculinity & Interracial Intimacy in 'Star Trek' and 'Gran Torino', as Washington University School of Law Working Paper No. 10-03-07. Here is the abstract.

Race has long been a central object of political reflection. The salience of racial difference remains hotly debated, figuring in both “utopian” and “dystopian” visions of America’s political future. If race is a primary configuration of “difference” and inequality in the nation, then intimacy between the races is often construed as either a bellwether of equality and political utopia or a re-inscribing of political dominance, typically represented as sexual predation by men against women. Quite expectedly, these political fantasies and fears are often played out at the multiplex, and we can see them in stark relief in two recent films that seem to have nothing in common, Clint Eastwood’s highly acclaimed but Oscar-snubbed Gran Torino and last summer’s high-octane blockbuster, Star Trek. This film review explores how both films render conventional (white) masculinity as in crisis, threatened by alternative masculine forms. In both films this crisis of masculinity translates into a political one that threatens the values and viability of the community. In both, a carefully negotiated interracial intimacy redeems masculinity, and, in the process, the political future. While interracial intimacy is often configured as heterosexual coupling, in both films, women of color expedite interracial intimacy, but the meaningful and redemptive intimacy is homo-social, between men.

Download the paper from SSRN at the link.

Treme

Some early reviews are in on the new series devoted to post-Katrina New Orleans.

Open Access To Law and Humanities Writings Via WikiSource

Timothy K. Armstrong, University of Cincinnati College of Law, has published "Rich Texts: Wikisource as an Open Access Repository for Law and the Humanities," as University of Cincinnati Public Law Research Paper No. 10-09. Here is the abstract.

Open access to research and scholarship, although well established in the sciences, remains an emerging phenomenon in the legal academy. In recent years, a number of open access repositories have been created to permit self-archiving of legal scholarship (either within or across institutional boundaries), and faculties at some leading research institutions have adopted policies supporting open access to their work. Although existing repositories for legal scholarship represent a clear improvement over proprietary, subscription-based repositories in some ways, their architecture, and the narrowly defined missions they have elected to pursue, limit their ability to illuminate the ongoing dialogue among texts that is a defining characteristic of scholarly discourse in law and the humanities. One of the wiki-based projects operated by the nonprofit Wikimedia Foundation--the Wikisource digital library - improves upon the shortcomings of existing open access repositories by bringing source texts and commentary together in a single place, with additional contextual materials hosted on other Wikimedia Foundation sites just a click away. These features of Wikisource, if more widely adopted, may improve academic discourse by highlighting conceptual interconnections among works, fostering interdisciplinary collaboration, and reducing the competitive advantages of proprietary, closed-access legal information services.

Murder On a Train

ABEBOOKS.COM offers a list of "Murder on the Literary Express: Ten Top Train Thrillers." I've rearranged the list alphabetically by author below.

Agatha Christie, 4:50 From Paddington.
Agatha Christie, Murder on the Orient Express.
Dick Francis, The Edge.
John Godey, The Taking of Pelham One Two Three.
Graham Greene, Stamboul Train.
Patricia Highsmith, Strangers On a Train.
Christopher Isherwood, Mr. Norris Changes Trains.
Andrew Martin, Necropolis Railway.
Ethel Lina White, The Wheel Spins.
Emile Zola, La Bete Humaine.

4:50 from Paddington s also known as What Mrs. McGillicuddy Saw. Murder on the Orient Express has been filmed several times, notably in an all-star version 1974 version with Albert Finney as Hercule Poirot and Lauren Bacall, Jacqueline Bisset, Ingrid Bergman, Sean Connery, Vanessa Redgrave, John Gielgud and other luminaries as the usual suspects, and Richard Widmark as the victim. Alfred Hitchcock turned White's The Wheel Turns into The Lady Vanishes in 1938 with a screenplay by Sidney Gilliat; in 1979 Anthony Page filmed it again; the screenplay was by George Axelrod. Patricia Highsmith's Strangers on a Train is also a favorite with filmmakers. Raymond Chandler and Czenzi Ormonde wrote the screenplay for the 1951 Hitchcock version; word is 2011 may see a remake. Danny DeVito and Billy Crystal starred in the 1987 film Throw Momma From the Train , a comedy (!)version of the 1951 film.

The Director of the South Coast Railroad Museum, located in the colorful little town of Goleta, California, offers his own page of railroad-themed movies here.

Examining Antigone

Ruthann Robson, City University of New York, CUNY School of Law, has published "Democracy and Antigone," in volume 39 of the Stetson Law Review (2010). Here is the abstract.

This essay explores democracy, sexuality, gender and legal practices using the frameworks of law and literature. Law and Literature as an enterprise is commonly said to have two distinct strands. One strand focuses upon an artistic product and elaborates the legal themes within it. The other strand focuses upon a legal product, such as a notable United States Supreme Court opinion, and examines its artistry, including its rhetorical or cinematic qualities. This essay explores both strands as well as the territory where the two strands meet.

This essay’s artistic focus is the mythical and literary figure of Antigone. In addition to the standard Sophocles’ version, this essay explores Antigone in the works of French playwright Jean Anouilh, Nigerian playwright Femi Osofisan, and South African playwright Athol Fugard.

This essay’s legal focus is several cases interpreting the meaning of mythical and Greek words. A court in Athens Greece decided a claim about the permissible usage of the term "lesbian," the United States Supreme Court has interpreted the term “Olympics, ” and trademark litigation has considered the term “dyke.”

The confluence of these two strands of literature and law involve further explorations of Sappho as a poet and historical figure, of Derrida’s work on democracy and brotherhood, and of the meaning of “sisterhood” in feminist and legal texts.

Download the Article from SSRN at the link.

Raising the Bar DVDs

For Raising the Bar fans, DVDs of the first season are out, and the second season DVDs will be available May 11th.

An Originalist Interpretation of the Ninth Amendment

Louis Michael Seidman, Georgetown University Law Center, has published "Our Unsettled Ninth Amendment: An Essay on Unenumerated Rights and the Impossibility of Textualism," as Georgetown Public Law Research Paper No. 10-11. Here is the abstract.

The Ninth Amendment - our resident anarchic and sarcastic "constitutional jester" - mocks the effort of scholars and judges alike to tame and normalize constitutional law. It is not as if the stern disciplinarians haven't tried. We now have two generations worth of painstaking, erudite, and occasionally brilliant scholarship that attempts to rein it in. Yet the amendment stubbornly resists control. It stands as a paradoxical, textual monument to the impossibility of textualism, an entrenched, settled instantiation of the inevitability of unsettlement. If it did not exist, constitutional skeptics would have had to invent it.

This essay has two parts. In Part I, I present a new and, I hope, persuasive, originalist account of the Ninth Amendment. My claim is that the Amendment deliberately leaves unsettled the status of unenumerated rights. Because of the Ninth Amendment, the Constitution does not "deny" or "disparage" these rights, but neither does it embrace or imply them. The amendment puts off to another day a final reckoning of the extent to which we are bound by constitutional text.

Although I use originalist methodology in Part I, I do not want to be understood as embracing originalism. Instead, this Part is an exercise in internal critique. As Part II explains, the Ninth Amendment states a truth that we would have to deal with whether or not it was part of the original text: No matter how comprehensive, no text can control the force of ideas and commitments that lie outside the text. This simple truth leaves the status of liberal constitutionalism permanently and inevitably unsettled. The day of final reckoning will never arrive.

Download the paper from SSRN at the link.

USA May Offer New Legal Series Next Season

The USA network is nurturing some new shows for next season, including a new legal drama, A Legal Mind, from Aaron Korsh, whose last attempt, The Deep End, sank fairly quickly. A Legal Mind features a "twenty-something" and a corporate lawyer. Well, USA is the home of Psych, which is clever, and Monk, which I loved, as well as Burn Notice, which is MacGyver with a Kafka-esque twist, so I'm anxious to see what A Legal Mind offers us. Could be great.

Symposium On Copyright In Culture

The University of Maryland is hosting UMUC’s Center for Intellectual Property to Host 2010 Symposium on Sustaining Culture in Copyright

WHAT: University of Maryland University College’s (UMUC) Center for Intellectual Property (CIP) will host a three-day workshop, June 22–24, 2010, entitled, “Sustaining Culture in Copyright.” With an influx of new videos, music and textual works, the 2010 symposium will explore better ways to balance the needs of cultural innovation with the rights of owners of creative works.

Peter Jaszi, professor of law, Washington College of Law, American University; and William Patry, senior copyright counsel, Google, Inc., will serve as keynote speakers. Other panel discussions will cover a variety of topics related to copyright, including social media, P2P filesharing, broadband and net neutrality.

For a full list of sessions, topics and speakers, visit www.umuc.edu/cip2010

UMUC’s CIP provides education, research and resources for the higher education community on copyright, academic integrity, and the emerging digital environment.

WHEN: Tuesday, June 22–Thursday, June 24, 2010

WHERE: Walter E. Washington Convention Center
801 Mount Vernon Place, N.W.
Washington, D.C. 20001

REGISTRATION: To register, visit www.umuc.edu/cip2010 or call 240-684-2803

COST:
Symposium Registration: (Early Rate) $240 (Member) / $300 (Non-member)
Daily Rate: $200 (Member) / $250 (Non-member)
Pre-Symposium Seminars:
(Choice of one, June 22) $100 (Member) / $135 (Non-member)
About University of Maryland University College
University of Maryland University College, headquartered in Adelphi, Maryland, is the largest public university in the United States, serving 90,000 students and offering 130 undergraduate and graduate programs online and on-site. In addition, UMUC is one of the largest public providers of online higher education in the nation. UMUC boasts a 60-year history of service to the military and currently enrolls an estimated 50,000 military service members, veterans, and their family members each year. The university offers face-to-face instruction at 21 locations throughout Maryland and educational services in 27 countries and more than 150 locations worldwide, including the Middle East. UMUC is accredited by the Commission on Higher Education of the Middle States Association of Colleges and Schools and is a constituent institution of the University System of Maryland, an agency of the State of Maryland.