Anniversary of the Warsaw Uprising

A friend at the University of Lodz sent this trailer for a digital film which commemorates the 60th Anniversary of the Warsaw Uprising of 1944. The Warsaw Rising Museum (English description here)commemorates the event, which began against the Soviet Army August 1, 1944 and lasted until October 2, 1944. When the Soviets finally entered the city in January 1945, over 85 percent of the city was in ruins. While the number of civilian deaths is unknown, estimates range up to 200,000. August 1 is now a Polish national holiday.

More about the film's premiere here.


Thanks to Dr. Marek Tracz-Tryniecki, University of Lodz, for alerting me to news of the film.

The Law in "Deadwood"

Rebecca Johnson, University of Victoria, Faculty of Law, has published "Living Deadwood: Imagination, Affect, and the Persistence of the Past," in volume 42 of the Suffolk University Law Review (2009). Here is the abstract.

In this article, I take inspiration from Edward Said's comments that we should look to tales about the past for insight into cultural attitudes of the present. Here, I look to the HBO series "Deadwood" to consider what it can tell us about our emotional investments in certain ways of understanding law, order, and the economy.

Download the article from SSRN at the link.

The Uses of Shakespeare in the Law Curriculum

Allen Mendenhall, West Virginia University, Temple University, and Furman University, has published Shakespeare's Place in Law-and-Literature. Here is the abstract.

Nearly every Anglo-American law school offers a course called Law-and-Literature. Nearly all of these courses assign one or more readings from Shakespeare’s oeuvre. Why study Shakespeare in law school? That is the question at the heart of these courses. Some law professors answer the question in terms of cultivating moral sensitivity, fine-tuning close-reading skills, or practicing interpretive strategies on literary rather than legal texts. Most of these professors insist on an illuminating nexus between two supposedly autonomous disciplines. The history of how Shakespeare became part of the legal canon is more complicated than these often defensive, syllabus-justifying declarations allow. This article examines the history of Shakespeare studies vis-à-vis legal education. It begins with early law-and-literature scholarship, which focused on Shakespeare’s history or biography – speculating as it did about whether Shakespeare was a lawyer or perchance received legal training – and concludes with recent law-and-literature scholarship treating Shakespeare as a source of insight for law students and lawyers alike. I submit that early law-and-literature scholarship on Shakespeare anticipated New Historicist theory and that more recent law-and-literature work, with its turn to presentism, is in lockstep with Shakespeare studies. In law-and-literature classrooms, Shakespeare is more fashionable like a hobby than scholarly like a profession; but law-and-literature scholarship on Shakespeare amounts to high-caliber work based on interdisciplinary research as well as deep engagement with legal and literary texts.

I wrap up this essay with a note about the direction of the university in general and of the law-and-literature movement in particular. I admit that my closing argument, as it were, is tendentious. It raises issues usually raised by confrontational academics and suggests remedies for what William M. Chace has called “the decline of the English Department” or what Harold Bloom has called “Groupthink” in “our obsolete academic institutions, whose long suicide since 1967 continues”. If Chace and Bloom are right about a decline in academic standards – evidence shows that they are at least right about a decline in numbers of English majors – then the fate of literary studies seems grim. Nevertheless, Chace and Bloom overlook the migration of literature professors into American law schools, a phenomenon yet to receive critical attention. Another aspect of this phenomenon is the migration of students from the humanities to professional schools. I personally have known many students who wished to go on to graduate school in the humanities but quite understandably viewed that route as impractical and went to law school instead. A positive result of this trend is that a substantial body of law students is open to the idea of law-and-literature and finds luminaries like George Anastaplo or Stanley Fish more interesting than other law professors. My final comments address the strange exodus of literary scholars into professional schools, which pay more money and arguably provide vaster audiences and readership, more generous funding opportunities, and reduced teaching loads. Perhaps more than other literary disciplines, save for cultural studies, Shakespeare studies has moved into the realm of interdisciplinarity, albeit without large contributions from scholars outside of literature departments. The law-and-literature field would have perished without the expertise of literature professors; likewise, Shakespeare studies, if it continues down the path of politics and cultural criticism, will perish without the expertise of economists, political scientists, and legal scholars, whose mostly non-Marxist perspectives, when pooled with the perspectives of literature professors, might fill out a space for interesting scholarship and redeem the interdisciplinary label. Information-sharing is especially crucial for literature scholars who, in order to examine the history of Shakespeare in American culture, have turned to practices and methods traditionally reserved for other disciplines.

Full text not currently available on SSRN.

Yet Who Would Have Thought The Old Man To Have Had So Much Blood In Him...

And academics, their readers, and viewers to have had so much interest in the horror film. Well, apparently they do, according to this article in the Chronicle of Higher Education, which documents the continuing stream of titles on the genre. What's in the pipeline? Steffen Hantke's American Horror Film: The Genre at the Turn of the Millennium (University Press of Mississippi), Thomas Fahy's collection The Philosophy of Horror (University Press of Kentucky), Wheeler Winston Dixon's A History of Horror (Rutgers University Press) and much, much, more. To bed, to bed, to bed, with all these great tomes to read, and all these films and books to visit and re-visit.

Roman Law and European Culture

Reinhard Zimmermann, Max Planck Institute for Comparative and International Private Law, has published Roman Law and European Culture (Derecho Romano y Cultura Europea), at Revista de Derecho Privado no. 18, 5-35 (2010). Here is the abstract.

The European legal tradition takes its distinctive feature of the ius commune, which is rooted primarily in Roman law. This paper aims to establish its relationship and analyze, within that context, the most influential features of the ancient Roman law. It also describes the transformations in the perception of Roman law and finally asks the following question: How Roman is the current Roman law? How European is the European legal "tradition?"

Download the article from SSRN at the link. It is in Spanish.

Susan Sage Heinzelmann's "Riding the Black Ram" Is Published

From Stanford University Press:

Stanford University Press is pleased to announce the publication of Riding the Black Ram: Law, Literature, and Gender, by Susan Sage Heinzelman. Susan Sage Heinzelman is Associate Professor of English and Director of the Center for Women's and Gender Studies at the University of Texas at Austin.

Unruly women are not often represented in a good light. Whether historical, or fictional, disruptive women with their real or imagined excesses have long provided the material for literary and legal narratives. This probing new work analyzes a series of literary, legal, and historical texts to demonstrate the persistence of certain gender stereotypes.

In her 1820 adultery trial, Queen Caroline was depicted in a cartoon riding into the House of Lords on a black ram that had the face of her Italian lover. As this book reveals, a number of women, remembered largely for their insubordinate presence, have metaphorically "ridden the black ram" in the last 700 years. Heinzelman's historicized understanding of the relationship between law and literature reveals a disquieting pattern in the legal and literary representations of women and provides a new recognition of the significance of sexuality and gender in the way we narrate our world.

More information about this book may be found at http://www.sup.org/book.cgi?id=11686.

The publisher has sent me a copy of this book, and I will be publishing a review in the near future.

Gender, Evidence, and Language Usage

Janet Ainsworth, Seattle University School of Law, has published The Performance of Gender as Reflected in American Evidence Rules: Language, Power, and the Legal Construction of Liability as part of the proceedings of the International Gender and Language Association (Victoria University Press, 2009). Here is the abstract.

The rules of evidence both govern the admissibility of evidence in trials and determine the scope of meaning to be accorded to that evidence. This article examines two American evidence rules and suggests that both rules incorporate ‘masculine’ norms of language usage. The evidence rule defining adoptive admissions provides that, when a person is confronted with an accusation of wrong-doing and fails to assertively deny it, the allegation is deemed to be admitted through silence. This rule presumes that one’s natural reaction upon an accusation would invariably be an explicit denial, such that silence can fairly be taken as a confession. Thus, this rule privileges assertive and confrontational modes of speech - all coded as ‘masculine’ - and additionally ignores the ways in which power assymmetries impact responses to accusation. Likewise, the evidence rule construing apology as an admission of fault denigrates expression of emotional solidarity - coded as ‘feminine’ - in favor of a presumption that penalizes those who say ‘sorry’ by presuming it means ‘I’m sorry I did something wrong’ rather than ‘I’m sorry that something bad has happened to you.’ Evidence rules such as these both channel and constrain the legal interpretation of language in ways that sustain linguistic ideologies of gender and gendered hierarchies of legal power.

Download the paper from SSRN at the link.

Literature, Sexuality, and Law

Timothy Stewart-Winter, Yale University, and Simon Stern, Faculty of Law, University of Toronto, have published Picturing Same-Sex Marriage in the Antebellum United States: The Union of 'Two Most Excellent Men' in Longstreet's 'A Sage Conversation', at 19 Journal of the History of Sexuality 197-222(May 2010). Here is the abstract.

Augustus Baldwin Longstreet’s short story “A Sage Conversation” appears, at first glance, to be an astonishingly modern tale. It assembles an elaborate social tableau that has at its center “George Scott and David Snow; two most excellent men, who became so much attached to each other that they actually got married” and “raised a lovely parcel of children.” The story appeared in Longstreet’s 1835 collection Georgia Scenes, Characters, Incidents &c. in the First Half Century of the Republic, an early contribution to the tradition of American humor. This collection was reprinted more than twenty times before the end of the century, and has been an object of ongoing fascination for literary critics. However, critics have overlooked the question of how to situate “A Sage Conversation” in relation to the history of sexuality. We interpret “A Sage Conversation” as an artifact of a profoundly different moment from our own in the long, intersecting histories of marriage and sexuality in the United States. To that end, we contextualize the story, from a literary perspective, in relation to the traditions of the tall tale and the narrative of domestic life, and from a social and legal perspective, in relation to nineteenth-century American thought about same-sex sexuality, gender roles, and restrictions on marriage.

Download the article from SSRN at the link.

Racial Representation in Film

Cynthia D. Bond, 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.

Native Americans in Popular Culture and the Law

andré douglas pond cummings, University of Iowa College of Law, University of Utah College of Law, and West Virginia University College of Law, has published A Shifting Wind?: Media Stereotyping of American Indians and the Law. Here is the abstract.

An accurate historical narrative of the treatment imposed upon American Indians at the hands of the United States Government reveals a sordid tale. The portrayal and stereotyping of North America’s indigenous civilizations by the United States’ popular media emulates this foul history. The U.S. legal system’s contemptuous judicial decrees and legal policies promulgated for more than two centuries testifies to the Government’s and the popular media’s hostility and historical abuse toward American Indians. Unfortunately for historical (and modern) purveyors, each of these abhorrent deeds is memorialized for the world to read and see in innumerable broken treaties, motion pictures, literary works and judicial reporters.

In recent decades, historians and scholars, both American Indian and non-native alike have skillfully documented the deceitful trail of broken promises and near annihilation. In addition, the popular U.S. media and the U.S. legal system have intersected curiously over the years in connection with a tag-team treatment of and discrimination against American Indians. The media, including print advertising, newspapers, literary works, television, online sources and motion pictures, seems to have borrowed historical stereotypical characterizations from the judiciary and U.S. government policies, and vice versa, simultaneously portraying American Indians as ferocious and savage yet simple and helpless. Proven instances of governmental abuse and discrimination, hostile portrayal and stereotyping by the media and contemptible judicial decrees are innumerable.

In very recent years, there is some evidence that the winds are shifting. Slowly and steadily, segments of the mass media seem to be trending toward a more honest historical account of U.S. history, and the portrayal of American Indians is becoming more reflective of reality and humanity. In the past decade, encouraging signs that the wind is shifting have signaled a potential sea change in the way that American Indians are presented to the United States public through the media and the law.

That said, favorite American Indian stereotypes and comfortable discriminations die hard. As the law and media stumble forward awkwardly, attempting to get it right, an assortment of U.S. contingencies, including professional sports franchises and American Universities, cling desperately to time-worn typecasts and hostile imagery.

While a veritable candelabra of options exist when attempting to describe the shameful historical treatment of American Indians, the following three brief snapshots will be presented to capture the essence of that treatment and to contemplate any further change in the curious intersection between the media and the law. The three snapshots will include a glimpse of the historical United States Government treatment of American Indians, followed by a look at the traditional stereotyping of American Indians by U.S. mass media and finally a brief examination of a few of the historically offensive judicial decrees handed down by federal judges. Thereafter an examination of the connection between the modern media and the law will be undertaken to assess whether a sea change is truly upon us.

Download the paper from SSRN at the link.

Roman Sumptuary Laws

Giuseppe Dari-Mattiacci, University of Amsterdam, Amsterdam Center for Law & Economics, and Centre for the Study of European Contract Law; Tinbergen Institute, and Anna E. Plisecka, University of Amsterdam, Amsterdam Center for Law & Economics, have published Luxury in Ancient Rome: Scope, Timing and Enforcement of Sumptuary Laws as Amsterdam Center for Law & Economics Working Paper No. 2010-03. Here is the abstract.

Between 182 BC and 18 BC, Roman lawmakers enacted a series of sumptuary laws regulating banquet expenditures. These regulations included a maximum for the number of guests and restrictions on specific foods; moreover, they were reiterated over time but were rarely enforced. Traditional explanations based on morals, protection of patrimonies and political competition do not fully account for the scope, timing and enforcement patterns of such laws. We advance and formalize a novel hypothesis, which is based on four elements: (1) luxury is a signal of wealth; (2) the senatorial class holding political power enacts sumptuary laws to restrict signaling when individuals coming from an emerging class (the equestrians) become wealthier than them; (3) enforcement of such laws would facilitate signaling of wealth and hence would be counterproductive; finally (4), the reiteration of these laws can be explained as an attempt to leverage on the expressive function of the law. The rise of sumptuary legislation occurred when the senatorial class lost economic power to the equestrians, its fall when they also lost political power to the princeps (and later the emperor). These points are discussed against the historical and legal background and presented formally.

Download the paper from SSRN at the link.

The Legal History of Citizenship

Elizabeth F. Cohen, Syracuse University, has published Jus Tempus in the Magna Carta: The Sovereignty of Time in Modern Politics and Citizenship , in PS: Political Science and Politics (2010). Here is the abstract.

A genealogy of early modern British subjecthood reveals that law based on dates and temporal durations - what I will call collectively jus tempus - creates sovereign boundaries as powerful as territorial borders or bloodlines. This concept has myriad implications for how citizenship comes to be institutionalized in modern politics. In this article, I briefly outline one route through which jus tempus became a constitutive principle within the Anglo-American tradition of citizenship and how this concept works with other principles of membership to create subtle gradations of political status beyond the binary of subject and alien. I illustrate two main points about jus tempus: first, how specific dates create sovereign boundaries among people and second, how durational time takes on an abstract value in politics that allows certain kinds of attributes, actions, and relationships to be translated into rights-bearing political statuses. I conclude with some remarks about how, once established, the principle of jus tempus is applied in a diverse array of political contexts.

Download the article from SSRN at the link.

A Legal Analysis of "A Clockwork Orange"

Daniel Albahary has published A Legal Analysis of Stanley Kubrick’s ‘A Clockwork Orange’ and What it Means to Modern America. Here is the abstract.

Stanley Kubrick’s 1971 film adaptation of Anthony Burgess’s 1962 novel, “A Clockwork Orange,” is a shocking and fascinating film. Upon its initial release, it was rated “X” in the United States before it being re-edited to obtain an “R” rating. Beyond its cinematic worth the intense violence and misogyny it embodies and suggests, however, the film reveals much about the then and now contemporary attitudes towards criminal punishment prevailing in western democracies. Law professor Robert Batey claims that the film provides a vehicle “for students to examine fundamental aspects of criminal law.” Taken to the next level, the film also reminds us of the many international and domestic legal questions provoked with respect to human subject experimentation and the creation of the Nuremberg Code following the Nazi atrocities of the Second World War, the Belmont Report in the United States following the notorious Tuskegee experiments, as well as the infamous MKUltra program sanctioned by the Central Intelligence Agency (CIA). The film remains, in some sense, timeless for these reasons. But it is even more significant because the Kafkaesque and dystopian prophecy of the future it portends may be extant in modern day America. The film is consumed by themes of maintaining law and order, reducing criminality, and identifying appropriate forms of punishment for criminal violence and deviant behavior. On a deeper level, the film questions the roles of society and government in creating the social and legal realities in which we live.

“A Clockwork Orange” thus may not only be Kubrick’s quixotic fantasy of violence and brutal misogyny but more the ideological suggestion of a pseudo-fascistic incarcerative police state that may one day arise in America and other Western democracies in response to violent criminal or deviant behavior, or perhaps even with the aim of “brain-washing.” Although mostly the work of English authors such as Anthony Burgess, George Orwell, and Alan Moore, the idea of a reemerging fascist state that dubiously imprisons and variously tortures its citizens is not unimaginable in the eyes of Americans such as Naomi Wolf.

Echoing this possibility, “A Clockwork Orange” is a surreal, often uncomfortable portrayal of a once respectable society in social and legal decay. The film presents a frightening picture of a society where violence has begun to tighten its stranglehold on the populace. While a sturdy police and authoritarian state presence exists to combat the persistent violence, society is on the brink of total chaos as hooligans ruthlessly threaten law and order. The central themes and events of the film illustrate the film’s continued relevance to contemporary issues including the desire to combat youth violence, the desire for social, moral, and legal order, the desire for justice, the desire to prevent cruel and unusual punishment, as the well as the desire to meet the goals of retribution and rehabilitation in criminal punishment.

Produced almost 40 years ago, “A Clockwork Orange,” as an expression of political culture, still resonates in contemporary American society. The themes and events present in the film presciently serve as indicia of the social, political and legal reality the nation may find itself in if the government does not cease to circumvent the rule of law in some cases, does not continue to zealously protect the natural and constitutional rights of citizens, and alter its current practice of incarcerating increasing numbers of prisoners in others.

The paper performs a legal analysis of the film and explore the relevancy it has for modern day America. While some issues may remain unresolved, it adopts a normative view of the law and, mirroring the central events of the film, analyzes the retributivist nature of juvenile punishment, the importance of preventing cruel and unusual punishment, and the legal status of the forced administration of psychotropic drugs to prisoners.

The full text is not available on SSRN.

Some Recent Publications In Law and Literature

Some recent publications in law and literature:

Conter, Claude, Justitiabilität und Rechtmässigkeit : Verrechtlichungsprozesse von Literatur und Film in der Moderne (Rodopi, 2010).

Conter, Claude, Literatur und Recht im Vormärz (Aisthesis, 2010).

Darnton, Robert, The Devil in the Holy Water, or the Art of Slander From Louis XIV to Napoleon (University of Pennsylvania Press, 2010).

Frank, Catherine, Law, literature, and the transmission of culture in England, 1837-1925 (Ashgate, 2010).

Greinger, Bernhard, and Barbara Thums, Recht und Literatur : interdisziplinäre Bezüge (Winter, 2010).

Harris, Edward Monroe, and Delfim Leão, Law and drama in ancient Greece (Duckworth, 2010).

Heinzelman, Susan Sage, Riding the Black Ram: Law, Literature and Gender (Stanford, 2010).

Kertzer, Jonathan, Poetic Justice and Legal Fictions: Studies in Literary Justice (Cambridge University Press, 2010).

Krueger, Christine L., Reading for the Law: British Literary History and Gender Advocacy (University of Virginia Press, 2010).

Macpherson, Sandra, Harm’s Way: Tragic Responsibility and the Novel From (Johns Hopkins University Press, 2010).

Raffield, Paul, Shakespeare's imaginary constitution : late Elizabethan politics and the theatre of law (Hart, 2010).

Ronner, Amy D., Law, Literature, and Therapeutic Jurisprudence (Carolina Academic Press, 2010).

Thompson, Carlyle Van, Black Outlaws: Race, Law, and Male Subjectivity in African American Literature and Culture (Peter Lang, 2010).

The Consequences of Imagery

Gregory Scott Parks, District of Columbia Court of Appeals, and Danielle C. Heard, Stanford University School of Humanities & Sciences, have published 'Assassinate the Nigger Apes' [1]: Obama, Implicit Imagery, and the Dire Consequences of Racist Jokes . Here is the abstract.

In 1994, Congress passed legislation stating that Presidents elected to office after January 1, 1997, would no longer receive lifetime Secret Service protection. Such legislation was unremarkable until the first Black President - Barack Obama - was elected. From the outset of his campaign until today, and likely beyond, President Obama has received unprecedented death threats. These threats, we argue, are at least in part tied to critics and commentators’ use of symbols, pictures, and words to characterize the Obama as a primate, in various forms - including cartoonist Sean Delonas’ controversial New York Post cartoon. Against this backdrop and looking to history, cultural critique, federal case law, as well as cognitive and social psychology, we explore how the use of seemingly harmless imagery may still be racially-laden and evoke violence against its object.

[1] Morgan v. McDonough, 540 F.2d 527, 531 (1st Cir.1976) (holding in a school desegregation case, that White students harassed Black students by chanting "assassinate the nigger apes"); see also infra notes 99 to 103 and accompanying text.

Download the paper from SSRN at the link.

Play That Funky Music, Your Honor

New York's Committee on Judicial Ethics says that Acting Supreme Court Judge Matthew D'Emic can play with his band after hours if potential parties aren't likely to appear before him, so Judge D'Emic, and other judges are free to rock to house, saying, ""The judge who wishes to pursue part-time employment as a solo musician may do so only occasionally, for a fee, for family, friends, neighbors and others who are unlikely to appear in the judge's court."

As it turns out, ethics committees in other states have examined this problem as well, coming to essentially the same conclusion. So the only worry Judge D'Emic has now is whether to rename his band. He seems have rejected current suggestions: (Rock-n-Robes, L.L. Cool Judge and The Electric Chairs). What about "Conflict of Interest"? ("No Conflict of Interest" just sounds too long). "Sidebar"? "Inadmissible"? "Judicial Conference"?

Performer of the Narcocorrido Murdered

Mexican singer Sergio Vega, known as El Shaka, was assassinated last Saturday. Mr. Vega was known for his performances of the songs known as "narcocorridos" or drug ballads. Notes the Urban Dictionary, "Literally translated it [narcocorrido] means "drug ballad", though not all narcocorridos are about drugs. Corridos have long described the poor and destitute, bandits and other criminals, as well as illegal immigrants to the United States, but the focus is on drug smugglers. Narcocorridos often refer to particular people, events, and specific dates that tell a story."

For more about narcocorridos, see among other titles Elijah Wald's book Narcocorrido: A Journey Into the World of Drugs, Guns, and Guerrillas, Sam Quinones' True Tales From Another Mexico (University of New Mexico Press, 2001), Mark Cameron Edberg, El Narcotraficante: Narcocorridos and the Construction of a Cultural Persona on the US-Mexican Border (University of Texas Press, 2004), Tracy Arwari, The Narcocorrido: A Musical Subculture In Translation (Georgetown University Press, 2003), Rubén Tinajero Medina and María del Rosario Hernández Iznaga, El narcocorrido: tradición o mercado? (Universidad Autonóma de Chihuahua, 2004) and John McDowell, Poetry and Violence: The Ballad Tradition of Mexico's Costa Chica (University of Illinois, 2000).

Rear Window

Michael Ruse stands up for the Hitchcock classic Rear Window here.

Tolstoy and Spanish Law

José Calvo González has published El alma y la ley. Tolstói entre juristas. España (1890-1928)(Sevilla: Comunicación Social Ediciones y Publicaciones (2010)(Colección Historia y Presente, nº 5). More information from the website, where you can also read an excerpt from the first chapter, "Tolstoi y la cultura literaria del Derecho en Espana (1890-1928)" (Tolstoy and legal literary culture in Spain (1890-1928).

The author is Professor of the theory and philosophy of law at the University of Malaga and Judge at the Tribunal Superior de Justicia of Andalucia.

A Clockwork Orange

Daniel Albahary has published A Legal Analysis of Stanley Kubrick’s ‘A Clockwork Orange’ and What it Means to Modern America. Here is the abstract.

Stanley Kubrick’s 1971 film adaptation of Anthony Burgess’s 1962 novel, “A Clockwork Orange,” is a shocking and fascinating film. Upon its initial release, it was rated “X” in the United States before it being re-edited to obtain an “R” rating. Beyond its cinematic worth the intense violence and misogyny it embodies and suggests, however, the film reveals much about the then and now contemporary attitudes towards criminal punishment prevailing in western democracies. Law professor Robert Batey claims that the film provides a vehicle “for students to examine fundamental aspects of criminal law.” Taken to the next level, the film also reminds us of the many international and domestic legal questions provoked with respect to human subject experimentation and the creation of the Nuremberg Code following the Nazi atrocities of the Second World War, the Belmont Report in the United States following the notorious Tuskegee experiments, as well as the infamous MKUltra program sanctioned by the Central Intelligence Agency (CIA). The film remains, in some sense, timeless for these reasons. But it is even more significant because the Kafkaesque and dystopian prophecy of the future it portends may be extant in modern day America. The film is consumed by themes of maintaining law and order, reducing criminality, and identifying appropriate forms of punishment for criminal violence and deviant behavior. On a deeper level, the film questions the roles of society and government in creating the social and legal realities in which we live.

“A Clockwork Orange” thus may not only be Kubrick’s quixotic fantasy of violence and brutal misogyny but more the ideological suggestion of a pseudo-fascistic incarcerative police state that may one day arise in America and other Western democracies in response to violent criminal or deviant behavior, or perhaps even with the aim of “brain-washing.” Although mostly the work of English authors such as Anthony Burgess, George Orwell, and Alan Moore, the idea of a reemerging fascist state that dubiously imprisons and variously tortures its citizens is not unimaginable in the eyes of Americans such as Naomi Wolf.

Echoing this possibility, “A Clockwork Orange” is a surreal, often uncomfortable portrayal of a once respectable society in social and legal decay. The film presents a frightening picture of a society where violence has begun to tighten its stranglehold on the populace. While a sturdy police and authoritarian state presence exists to combat the persistent violence, society is on the brink of total chaos as hooligans ruthlessly threaten law and order. The central themes and events of the film illustrate the film’s continued relevance to contemporary issues including the desire to combat youth violence, the desire for social, moral, and legal order, the desire for justice, the desire to prevent cruel and unusual punishment, as the well as the desire to meet the goals of retribution and rehabilitation in criminal punishment.

Produced almost 40 years ago, “A Clockwork Orange,” as an expression of political culture, still resonates in contemporary American society. The themes and events present in the film presciently serve as indicia of the social, political and legal reality the nation may find itself in if the government does not cease to circumvent the rule of law in some cases, does not continue to zealously protect the natural and constitutional rights of citizens, and alter its current practice of incarcerating increasing numbers of prisoners in others.

The paper performs a legal analysis of the film and explore the relevancy it has for modern day America. While some issues may remain unresolved, it adopts a normative view of the law and, mirroring the central events of the film, analyzes the retributivist nature of juvenile punishment, the importance of preventing cruel and unusual punishment, and the legal status of the forced administration of psychotropic drugs to prisoners.

The author has not provided the full text, or an indication of where it is available. Interested persons might try emailing him.

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.