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A Conference on Shakespeare and the Law

SHAKESPEARE AND THE LAW

A CONFERENCE - A CELEBRATION

University of Warwick, UK
9-11 July 2007

"I am a subject, and challenge law"
Richard II, Act II, scene III


The University of Warwick will host an international
conference on Shakespeare and the Law in association with
Warwick Law School and The Capital Centre partnership
between The University of Warwick and the Royal Shakespeare
Company. The conference will provide a unique forum for
scholarly discourse between the major humanities
disciplines of law, literature and the performing arts.


SPEAKERS:

Speakers include several leading Shakespearean scholars,
theatre practitioners and scholars in the field of law and
humanities:

Jonathan Bate, University of Warwick, Governor of the Royal
Shakespeare Company
Christian Biet, Universite de Paris-X Nanterre
Daniela Carpi, University of Verona
Gregory Doran, Associate Director
Mark Fortier, University of Guelph, Canada
Giuseppina Restivo, University of Trieste
Elizabeth Goldring, University of Warwick
Matthew Greenfield, City University of New York
Germaine Greer, Writer and broadcaster
Anselm Haverkamp & Katrin Trustedt European University,
Frankfurt
Harry Keyishian, Fairleigh Dickinson University
Desmond Manderson, McGill University, Canada
Ambreena Manji, Keele University
Michael Pennington, actor, writer, director
Erika Rackley, University of Durham
Paul Raffield, University of Warwick
Anton Schutz, Birkbeck College
B.J. Sokol & Mary Sokol, authors
Ian Ward, University of Newcastle-upon-Tyne
Richard H. Weisberg, Cardozo Law School, Yeshiva
University, NYC
Paul Yachnin, McGill University, Canada
Gary Watt, University of Warwick
Andrew Zurcher, University of Cambridge


REGISTRATION/FURTHER INFORMATION:

The conference includes a social event at Kenilworth Castle
and the launch of the journal Law and Humanities:



Early booking discounts and student discounts are
available. For further details see the conference website:

http://www.shakespearelaw.org


"Let us haste to hear it, and call the noblest to the
audience"
Hamlet, Act V, Scene II

Copyright Doctrine and Fan Fiction

Anupam Chander and Madhavi Sunder, both University of California, Davis, School of Law, have published "Everyone's a Superhero: A Cultural Theory of "Mary Sue" Fan Fiction as Fair Use," in the California Law Review. Here's the abstract.

Lieutenant Mary Sue took the helm of the Starship Enterprise, saving the ship while parrying Kirk's advances. At least she did so in the unofficial short story by Trekkie Paula Smith. Mary Sue has since come to stand for the insertion of an idealized authorial representative in a popular work. Derided as an exercise in narcissism, Mary Sue is in fact a figure of subaltern critique, challenging the stereotypes of the original. The stereotypes of popular culture insinuate themselves deeply into our lives, coloring our views on occupations and roles. From Hermione Granger-led stories, to Harry Potter in Kolkata, to Star Trek same-sex romances, Mary Sues re-imagine our cultural landscape, granting agency to those denied it in the popular mythology. Lacking the global distribution channels of traditional media, Mary Sue authors now find an alternative in the World Wide Web, which brings their work to the world.

Despite copyright law's grant of rights in derivative works to the original's owners, we argue that Mary Sues that challenge the orthodoxy of the original likely constitute fair use. The Mary Sue serves as a metonym for all derivative uses that challenge the hegemony of the original. Scholars raise three principal critiques to such unlicensed use: (1) why not write your own story rather than borrowing another's? (2) even if you must borrow, why not license it? and (3) won't recoding popular icons destabilize culture? Relying on a cultural theory that prizes voice, not just exit, as a response to hegemony, we reply to these objections here.

Download the entire Article from SSRN here.
If the fan fiction phenomenon interests you, check out Henry Jenkins' blog here.
Professor Jenkins is the author of Textual Poachers, Convergence Culture, and What Made Pistachio Nuts? Read one of his recent articles in Reason Online here.

[Cross-posted to The Seamless Web]

Revisiting Inspector Morse

Last Friday's issue of The Independent has a wonderful article about the charms of Inspector Morse, that unique character created by Colin Dexter and brought to life by the late actor John Thaw. In addition to DVDs available from BFS Entertainment, you can enjoy the Inspector in print in any of Dexter's wonderful novels, many of which are also available in audio editions. Here's a link to the PBS webpage for Morse, and here's a link to a webpage for a walking tour of Inspector Morse's city.

Here are a few discussions of the character in literature and film.

Barker, Simon, “Period” Detective Drama and the Limits of Contemporary Nostalgia: Inspector Morse and the Strange Case of a Lost England, 6(2) Critical Survey 234-42 (1994).

Brodie, J. S., The Cult of Inspector Morse: A Contemporary Phenomenon, 38 Journal of Kyoritsu Women’s Junior College 79-87 (February 1995).

Decottignies, Jean, La vie poétique de l'inspecteur Morse: Un polar mélancolique (Grenoble, France: ELLUG; 2004).

Thomas, Lyn, In Love With Inspector Morse: Feminist Subculture and Quality Television, 51 Feminist Review 1-25 (Autumn 1995).

Sparks, Richard, Inspector Morse: “The Last Enemy”, in British Television Drama in the 1980s 86-102 (George W. Brandt ed., Cambridge: Cambridge University Press, 1993).

[Cross-posted to The Seamless Web].

The Duke Lacrosse Case as Narrative

Susan Hanley Kosse, University of Louisville School of Law, has published "Race, Riches, and Reporters: Do Race and Class Impact Media Rape Narratives? An Analysis of the Duke Lacrosse Case," in the 2007 Southern Illinois University Law Review. Here is the abstract.

Focusing on the Duke rape case as a case study, this Article analyzes magazine coverage using a labeling system from a previous study of media coverage of high profile rapes to determine whether race and class shape rape narratives. Part I of this Article is a brief background about narratives generally and their importance in the law. Part II summarizes the existing research on the topic of rape narratives and media coverage of these narratives. Part III analyzes the Duke case narratives and seeks to determine empirically whether race and class played a role in the exculpation or vilification of either party. The Article concludes by comparing the past studies of rape media coverage with this new data to provide insights and conclusions about media rape coverage today.

Download the entire paper from SSRN here.

Race and the Movies

N. Jeremi Duru, Temple University School of Law, has published "Friday Night "Lite": How Deracialization in the Motion Picture Friday Night Lights Disserves the Movement to Eradicate Racial Discrimination From American Sport," in volume 25 of the Cardozo Arts & Entertainment Law Journal. Here is the abstract.

Sport has a unique power to unite. The power of sport to unite, however, has unfortunately obscured the extent to which sport is beset with the sociological ills plaguing broader society. Indeed, there exists in contemporary America a widely-held belief that sport is a utopian realm immune to the issues of race with which society in general must grapple. This article examines this idyllic picture of sport and the extent to which, through suggesting an absence of discrimination, it frustrates much needed anti-discrimination efforts in the sporting community.

Decades after the United States Supreme Court issued its 1954 desegregation mandate in Brown v. Board of Education, Odessa, Texas - home to Permian High School - continued to struggle bitterly with racial discrimination and discord, so much so that in 1982 it was placed under a federal court order to effectuate the desegregation both promised and denied nearly thirty years earlier. As this article explores, the unfortunate result was an uneasy interaction among members of different races at Permian High School and in its vaunted football program, which led to substantial racial discord and discrimination reflective of vexatious issues plaguing American sport more broadly. Although these troubling issues at the intersection of race, law, and sport dominated the 1988 Permian football team's season and inspired a Pulitzer Prize winning author's investigative chronicle, Friday Night Lights, a 2004 motion picture of the same name purporting to tell the tale of that team radically de-racializes the story. This article argues that by recasting a true but disturbing story largely about the impact of race on interscholastic athletics into a highly fictionalized and de-racialized vehicle buttressing the idyllic picture, the motion picture Friday Night Lights disserves the movement to eradicate racial discrimination from American sport.

Download the entire Article from SSRN here.

[Cross posted to The Seamless Web]

Hamlet on Trial

From the NewsHour:

Supreme Court Justice Anthony Kennedy presided over a "trial" of Hamlet in a Kennedy Center production taking place during a six-month celebration of Shakespeare in Washington, D.C.

COURTROOM ANNOUNCER: In the matter of the Crown v. Prince Hamlet...

JEFFREY BROWN: It was a trial 400 years in the making. The courtroom was actually a stage at Washington's Kennedy Center. The defendant was a fictional character: Hamlet, prince of Denmark, he of "to be or not to be."

The judge was real, but Anthony Kennedy usually hears cases as a justice on the Supreme Court. Justice Kennedy first had the idea for "The Trial of Hamlet" some 13 years ago.

JUSTICE ANTHONY KENNEDY, U.S. Supreme Court: Prosecution here; defense here.

JEFFREY BROWN: Recently, he approached Michael Kahn, head of the Shakespeare Theater here, about staging it as part of a six-month celebration of the bard now underway in Washington, using real-life lawyers, expert witnesses, and a jury of adults, college and high school students.

At the Supreme Court a few hours before the event, I had a chance to ask Justice Kennedy: Why try Hamlet?

JUSTICE ANTHONY KENNEDY: It seemed to be, number one, an excellent way to get young people interested in Shakespeare and to understand the value of our literary heritage.

Then, too, there are some similarities between the law and literature. We in the law seek to find order in a disordered reality; we seek to find rationality in a world that seems chaotic. And the artist does the same thing, and Hamlet's trying to do the same thing. So there's a parallel.

MSN News reports:

In Shakespeare's play, the killing of Polonius occurs shortly after Hamlet returns to Denmark for the funeral of his father, the king of Denmark. A grieving Hamlet learns that his mother has married his uncle Claudius, the new king. A ghost tells Hamlet that Claudius murdered his father, and an enraged Hamlet vows revenge.

But Hamlet's plans go awry. He stabs Polonius, the councilor to the king, after hearing a noise behind a curtain and mistakenly thinking it is Claudius eavesdropping.

The split verdict by the 12 jurors, who were selected beforehand and deliberated for about 20 minutes, was a major blow for the four lawyers who argued the case.

"No Dane is above the law," San Francisco attorney Miles Ehrlich said in opening statements. "When you pick and choose your time to kill, you are in control."

In arguing that Hamlet was not insane, Ehrlich noted that Hamlet plotted to kill Claudius and nearly did so in a chapel while Claudius was praying. Hamlet decided to wait because he didn't want to send Claudius to heaven.

Alan Stone, a Harvard University professor of law and psychiatry, testified for the prosecution that Hamlet did not have a clear mental illness. Thousands of people have studied Hamlet's thoughts, the former president of the American Psychiatric Association said, "not because he was a madman but because he was brilliant."

Hamlet's vision of a ghost was not delusional, he argued, but was likely normal for his culture.

He said Hamlet was plotting to kill.

"Many of his puns are filled with anger and rage," Stone said. "He seems to think there is an audience."

In a heated exchange with Stone, Hamlet's attorneys argued that Hamlet, who sat silently through the proceedings and refused to take the stand in his own defense, showed clear signs of insanity.

"He talks to himself a lot, like a crazy person," said lawyer Abbe Lowell, whose clients have included convicted former GOP lobbyist Jack Abramoff. "What about the soliloquies and the asides?"

But Stone rejected Lowell's claim that Hamlet's words, such as "To be or not to be?" were signs of a "suicidal funk."

Columbia University psychiatry professor Jeffrey Lieberman, testifying for the defense, said Hamlet's question "To be or not to be?" was one of history's best examples of ambivalence — a cardinal symptom of psychosis.

Lieberman said the voices Hamlet heard while suffering hallucinations were "as real as your voice is being perceived by me."

Kennedy conceived the production for the fourth time. Prior juries in Boston, Chicago and Washington have found Hamlet sane. The show was hosted by Michael Kahn, artistic director of Washington's Shakespeare Theatre Company.

The verdict?

The question of Hamlet's sanity remains unanswered after a Washington jury delivered an evenly split verdict on whether he should be held criminally responsible for the fatal stabbing of Polonius.

The Washington Post notes:

Almost every year since 1994, at least one Supreme Court justice has participated in a mock trial that uses a Shakespeare play to explore the American legal system.

Jessica Silbey on Film and Confession

Jessica Silbey, Suffolk University Law School, will publish "Criminal Performances: Film, Autobiography, and Confession," in the New Mexico Law Review. Here is the abstract.

This article questions the criminal justice emphasis on filmed confession as the superlative evidentiary proffer that promotes accuracy and minimizes unconstitutional coercion by comparing filmed confessions to autobiographical film. It suggests that analyzing filmed confessions as a kind of autobiographical film exposes helpful tensions between the law's reliance on confession as revealing the inner self and the literary and filmic conception of confession as constituting one self among many. Through a close examination of several filmed confessions along side an examination of the history of autobiographical writing and film, this article shows how filmed confessions do not reveal the truthfulness or honesty of the defendant's statement. To the contrary, close examination of filmed confessions evidences the performative aspect of all confessional acts.

Like autobiographical film subjects, filmed defendants perform their criminality, or enact their legal identity as guilty on film. Framing the confession through a film camera (as increasingly police and detectives do) stresses the qualities of confessional speech as always in the process of forming an identity, and therefore as inherently unstable and manifold. Building on an earlier article that criticizes the nationwide trend that requires the filming of criminal confessions by comparing filmed confessions to a form of documentary filmmaking, this article engages the same critique by examining filmed confessions as a form of autobiographical film. Doing so relocates the analysis of the filmed confessions from one of truthfulness and voluntariness of the spoken confession to one of advocacy and persuasion by the speaking subject. Analysis of several filmed confessions shows how filmed confessions are more akin to filmed autobiographies: performances of identity in relation to the constraints of the discursive medium (the interrogation). What we learn from the filmed confession is the limits of film and of law to reveal the truth of the crime. This critical perspective undermines the state's assertion that filmed confessions unambiguously denote the defendant's voluntary recitation of his criminal act.

Download the entire paper here from SSRN.

[Cross-posted to the Seamless Web].

International Law, Literature, and Introspection

My former colleague Christopher Blakesley, now of the University of Nevada, Las Vegas Law School, ruminates on the intersection among law, literature and self-reflection in a blogpost here at a new blog devoted to international penal law. Montaigne carried the art of self-study and introspection to a high art centuries ago; Professor Blakesley suggests that it's time to give it another go, and that literature can assist us. The blog at which he and other experts in international criminal law post is newly launched; it's called the AIDP Blog. Check it out here.

Cross-posted in slightly different format at The Seamless Web.

Paul J. Heald and Steve Allen

Paul J. Heald has published "Meeting of the Minds, Episode II: A Dark and Angry God Arises," as UGA Legal Studies Research Paper 007-06. Here is the abstract.

In 1988, Professor Heald found a lost manuscript of Steve Allen's groundbreaking television show, “A Meeting of the Minds.” In that episode, published in 6 J. of Law & Rel. 279, Oliver Wendell Holmes, Mark Kelman, Blaise Pascal, and Richard Posner discussed the nature of law. While completing renovation of a house, possibly visited by Allen, Heald recently found another manuscript jammed on top of an old water tank. The present episode reveals a lively discussion of Columbine, the death penalty, and the nature of retribution between Lucius Annaeus Seneca (4 B.C.-65 A.D.), C.S. Lewis (1898-1963), Jerry Falwell, and Milner Ball.

Download the entire paper from SSRN here.

The Shakespeare Authorship Question

Today's Washington Post contains two articles taking different sides to the question of whether Shakespeare is the true author of his works.

An article by Roger Stritmatter (vice chairman of the Shakespeare Fellowship and a professor of English at Coppin State University) rehearses the doubts as to Shakespeare's authorship:

Mark Twain quipped that every relevant fact known about the Stratford author would fit on a postcard, and another century of literary biography hasn't changed that. Shakespearean professionals begin by noting that there is a Shakespeare monument in Holy Trinity Church at Stratford and go on from there to imagine almost everything else. They have to. They have a monument without a man.

Outside the university, though, populist resistance to the author from Stratford has persisted for two centuries. Skeptics have been divided on their support for one candidate or another -- Francis Bacon, Christopher Marlowe, Queen Elizabeth I or Edward de Vere, the 17th earl of Oxford -- but we all believe that the real author was forced to conceal his identity and allow his works to be published under another man's name.

We are not just unrepentant conspiracy theorists who lie awake at night concocting unverifiable historical scenarios and contriving pseudoscientific cryptograms while ignoring the undeniable facts of Shakespeare's career. We're struck by the fact that all the speculation the biographers engage in to fill the gaps in our knowledge of Shakespeare reveals a man who contradicted the literary thumbprint of his creation in every way. Their author was a huge commercial success -- but "Hamlet" satirically inveighs against buyers and sellers of land. Their author never left England -- but 16 of the plays are set in Italy or the Mediterranean. There is no evidence that their author owned any books -- but the man who wrote Shakespeare clearly devoured all the most important books of his generation.

"Shall I set down the rest of the Conjectures which constitute [Shakespeare's] giant Biography?" Twain wrote in 1909. "It would strain the unabridged Dictionary to hold them." In 1984, Richmond Crinkley, the late director of educational programs at the Folger Shakespeare Library, acknowledged that "doubts about Shakespeare arose early. They have a simple and direct plausibility." Henry James was blunt: "I am 'sort of' haunted by the conviction that the divine William is the biggest and most successful fraud ever practiced on a patient world."

The list of skeptics reads like a Who's Who of the English-speaking world: Washington Irving, James Joyce, Sigmund Freud, Herman Melville, Ralph Waldo Emerson, Helen Keller, Nathaniel Hawthorne, Charlie Chaplin, Orson Welles, Malcolm X, Leslie Howard, Sir John Gielgud, Sir Derek Jacobi, Michael York, Jeremy Irons, Supreme Court Justice John Paul Stevens, and many more. And the ranks keep growing.

But modern Shakespearean studies are founded on the undeviating principle that rational authorities -- i.e. "Shakespeareans" -- do not discuss the authorship question. Beyond this, we seem to be deeply invested in a view of the Bard as a creator in our own image. Born to a comfortable middle-class existence, he evades the stark class realities of Elizabethan society and conquers the literary world through Will-power, re-creating the lives of kings, queens and courtiers simply by deploying his superabundant imagination.

Stritmatter believes that the true author was Edward de Vere:

Since 1920, when Englishman John Thomas Looney wrote "Shakespeare Identified," a clear solution to this enigma has been staring orthodox Shakespeareans in the face: Edward de Vere, the 17th earl of Oxford, a man known for his disregard of class protocols and his passionate devotion to the theater, was Cecil's ward and later his unhappy son-in-law. He was a man with the means, the opportunity and, above all, the motive to write "Hamlet." Frustrated in his political ambitions at court, he spent a lifetime selling off his vast inherited estates to pay his creditors and pursue his literary ambitions. Like the misanthropic Jaques in "As You Like It," he literally sold his own lands to see the lands of other men.

The most "Italianate" Englishman of his generation, he toured the Tuscan cities that are featured so prominently in Shakespearean plays, and built a house for himself in Venice only blocks from the Jewish ghetto. His life, in myriad ways, illumines the Shakespearean oeuvre and becomes the touchstone for grasping the meaning of many obscure passages in the plays.

An article by Stanley Wells (chairman of the Shakespeare Birthplace Trust and author of Shakespeare & Co.) argues that Shakespeare was indeed the true author:

The nonsense started around 1785. That was the year a Warwickshire clergyman fantasized that William Shakespeare of Stratford-upon-Avon was not the author of the works everyone had until then supposed he had written. In doing so, he laid the foundations of the so-called authorship question, which has grown into an immense monument to human folly.

Shakespeare by then had been dead for 159 years, and was acclaimed as the author of 37 plays, two long narrative poems, 154 sonnets and a handful of other poems. No one up to then had doubted that he wrote them; nor was there any reason to. There were numerous printed references in his lifetime and soon afterward to William Shakespeare as the author of the poems and plays acted and published as his. Most of the references were in books or manuscripts by writers whose names are known nowadays only to scholars, but it doesn't make them any less believable. . . .

Then there are Shakespeare's own published works. His full name appears on the dedications of the two long poems, in 1593 and 1594, and on their title pages. It is printed on the title pages of many of his plays from 1598 onward, on reprints of the poems (which were very popular), and on the first edition of the Sonnets, in 1609. In that book, another poem, "A Lover's Complaint," is also printed with a separate statement that William Shakespeare wrote it. And seven years after he died, his collected plays were printed in the great book called "Mr William Shakespeare's Comedies, Histories, and Tragedies," now usually referred to as the First Folio. It includes an engraved portrait of the author.

So there are many references to William Shakespeare in his lifetime and soon afterward as the man who penned the plays and poems, and there is nothing to suggest that he did not write them. People who question his authorship often say, "Ah, yes, but there's nothing to prove that he was the William Shakespeare of Stratford," and then go on to invent conspiracy theories that somehow Shakespeare (if they admit that he existed) was the pen name of writers who were so modest that they not only concealed the fact that they had written the greatest plays ever, but also were so generous as to allow an obscure actor to take all the credit. . . .

The most common arguments that Shakespeare of Stratford could not have written the works are that he is not known to have traveled overseas, that he was of relatively humble origins and that he came from a small provincial town where he could not have received a good enough education to have written the plays. The facts are that the works show no knowledge of countries that could not have been obtained from books or from conversation, that you don't have to be an aristocrat to be a great writer -- Jonson was the son of a bricklayer, Marlowe's father was a cobbler -- and that Stratford had a good grammar school whose pupils received a far more rigorous education in the classics than most university graduates today.

The debate about Shakespeare's authorship has been going on for some time, and the articles don't raise any new arguments, but they are nevertheless an interesting summary of the debate.

The Gothic and the Rule of Law

Forthcoming in May is Susan Chaplin's The Gothic and the Rule of Law, 1764-1820 from Palgrave Macmillan. It will include discussions of The Castle of Otranto, Caleb Williams, and Frankenstein, among other novels. Professor Chaplin is the author of Law, Sensibility, and the Sublime in Eighteenth-Century Women's Fiction: Speaking of Dread (Ashgate Publishing, 2004).

Reichman on Law, Literature, and Empathy

Amnon Reichman has published "Law, Literature, and Empathy: Between Withholding and Reserving Judgment." The citation is 56 Journal of Legal Education 296 (June 2006). In the same issue is Martha Nussbaum's "Reply to Amnon Reichman," at p. 320.

Julian Barnes' Arthur and George, and the Law of Evidence

The new issue of International Commentary on Evidence includes three articles dealing with Julian Barnes' new book Arthur and George. See below.

This issue of International Commentary on Evidence features two special articles on Julian Barnes' novel Arthur & George, based on the true story of Arthur Conan Doyle's involvement in the case of George Edalji, an English solicitor wrongfully convicted of horse maiming in 1903. The Edalji case raised questions about the adequacy of remedies for wrongful conviction, and was one of the reasons for creation of the English Court of Criminal Appeal. The two articles on Arthur & George invite us to think about those topics, as well as wrongful convictions and the impact of fiction on the way that we understand evidence.

The Editors "Foreword: Perspectives on Arthur Conan Doyle and Evidence".
http://www.bepress.com/ice/vol4/iss2/art2

D. Michael Risinger "Boxes in Boxes: Julian Barnes, Conan Doyle, Sherlock Holmes and the Edalji Case".
http://www.bepress.com/ice/vol4/iss2/art3
Douglas Walton and Burkhard Schafer "Arthur, George and the Mystery of the Missing Motive: Towards a Theory of Evidentiary Reasoning about Motives".
http://www.bepress.com/ice/vol4/iss2/art4

Cross posted to The Seamless Web.

Opera Performance and Intellectual Property

Zvi S. Rosen, U. S. Court System, has published, "The Twilight of the Opera Pirates: A Prehistory of the Right of Public Performance for Musical Compositions," in volume 24 of the Cardozo Arts & Entertainment Law Journal. Here is the abstract.

The exclusive right of public performance of a musical composition now brings to composers and songwriters revenue of approximately one billion dollars a year in the US alone. However, this right was not firmly established until a century after America's first copyright statute, relying until then on the common-law principles that protected unpublished works. The first effort to create this right by statute was the Ingersoll Copyright Bill, an omnibus revision in 1844 which died quickly in committee. After that 50 years passed, and in the final quarter of the nineteenth century the need for statutory protection for public performance became more and more obvious as a result of litigation, especially that surrounding the Gilbert and Sullivan operetta The Mikado. In the mid-1890s the right was once again proposed in an omnibus revision that died in committee, the Treloar Copyright Bill. Simultaneously though, this right went through Congress and was passed as part of an amendatory act which also increased penalties for all unlawful public performances (including drama). This article traces the history of these acts and the litigation in the later nineteenth century, telling a story that has heretofore not been told - the prehistory of the right of public of public performance for musical compositions.

Download the entire article from SSRN here.

The Fiction of Chester Himes

Rosanna Cavallaro, Suffolk University Law School, has published "Chester Himes' Cotton Comes to Harlem: A Reparations Parable", in volume 19 of Law and Literature. Here is the abstract.

This paper locates the fiction of Chester Himes within the literary traditions of classic and, later, hard-boiled detective fiction, and examines Himes's departures from established narrative forms in order to elucidate the legal and political ideology of race and crime that he enacts in them. I demonstrate that, in his representation of crime and punishment in his 1965 novel COTTON COMES TO HARLEM, Himes repudiates formal systems of retributive justice, while simultaneously endorsing an ad hoc regime of restitution that prefigures, by metaphorically enacting, the economic reparation of African Americans for injuries inflicted during their slave past.

Download the entire paper from SSRN here.

American Indian Literature and Law

Kristen A. Carpenter, University of Denver College of Law, has published "Contextualizing the Losses of Allotment Through Literature," in the North Dakota Law Review. Here is the abstract.

In this article, the Author undertakes a law and literature approach to a major Indian law problem: understanding the losses of allotment. Allotment was a mid 19th- early 20th century federal legislative program to take large tracts of land owned by Indian tribes, allocate smaller parcels to individual Indians, and sell off the rest to non-Indians. The idea was that Indians would abandon traditional patterns of subsistence to become American-style farmers, and great tracts of land would be freed up for the advance of white settlement. A key component of the federal government's larger project of assimilating Indians into mainstream society, allotment was devastating for Indian people who suffered incredible losses of land, economic livelihood, culture, and everything else that mattered. But the Supreme Court's caselaw on allotment might make you think otherwise. Indeed Lone Wolf v. Hitchcock (1903) characterizes allotment as a policy that simply changed the manner in which tribes owned their real property and did not cause any losses at all.

There are, of course, many ways to develop a fuller legal picture of the losses tribal people suffered during allotment, including historical and empirical research. But this article argues that fiction also has something to offer. Accordingly it argues that two novels by the Turtle Mountain Chippewa author Louise Erdrich can serve to contextualize the losses suffered by Indian people during allotment. While tribal people clearly lost a lot of land, Erdrich helps us understand how allotment brought about losses in socio-economic, familial, spiritual, and other realms of tribal life. And even though she is writing about fictional Ojibwe people and not the real Kiowa and Comanches involved in Lone Wolf, Erdrich raises important, relevant questions about allotment. Inspiring lawyers to contemplate these questions - completely ignored by Lone Wolf - can enhance both understanding of the case and contemporary advocacy to redress the losses of allotment today.

Download the entire article from SSRN here.

Huck Finn and the Supreme Court

Bezalel Stern, Columbia University Law School, has published "Huck Finn and the Civil Rights Cases: A Case Study in Supreme Court Influence," in the Columbia Journal of Law and the Arts. Here is the abstract.

I intend to show in this study that Mark Twain's Adventures of Huckleberry Finn was inherently shaped by, among other factors, a number of momentous decisions of the Supreme Court. These were decisions which strived to project the American society of the ante-bellum period into the post-bellum world. The decisions of the Supreme Court in the post-bellum period, coupled with a severe change in the political and social atmosphere of the late 1870s and early 1880s, combined to create an environment of severe retrogression, specifically when it came to racial integration and interactions. As this Essay will show, the Supreme Court's decisions in this series of cases, while widely believed to have been wrongly decided today, nevertheless had a great deal of influence in halting or stalling many of the advances of the Civil War, the Fourteenth Amendment and the Civil Rights Acts. Indeed, I will argue that the judicial retardation of the egalitarian movement of the nation during and immediately after the Civil War had the effect of ossifying the progression towards civil rights and civil liberties in a manner far more dramatic than the political and social anti-egalitarian forces of the time could have hoped to achieve. Additionally, and centrally for the purposes of this Essay, those judicial decisions were instrumental in the reshaping of Twain's classic text.

Download the entire paper from SSRN here.

Wilkie Collins and His Law Books

Bernadette Meyler, Cornell Law School, has published "Transparency and Textuality: Wilkie Collins' Law Books," in IN THE SECRETS OF LAW, Austin Sarat, ed., Stanford University Press, 2007. Here is the abstract.

This article takes as its starting point the priority that Anglo-American legal thought has, in recent centuries, placed upon transparency, a priority that has relied, in large part, on the notion that the law should increasingly be recorded and publicly accessible. Through his representation of trial narratives - an extremely popular quasi-literary form during the nineteenth century - as well as the work of William Blackstone in his supposedly comprehensive Commentaries on the Laws of England, nineteenth-century novelist Wilkie Collins calls into question the idea that simply disseminating textual versions of the law or the records of legal processes will be able to furnish transparent access to the law for the lay reader. One of the difficulties he identifies is that of translating the law from the printed page into action; an exchange between two of the protagonists in Armadale who flip through Blackstone to determine whether any impediments would block their marriage demonstrates some of the challenges inherent in imagining the law in action in the absence of knowledge of the legal institutions that implement it. The other obstacle to transparency that Collins represents concerns the unreliability of the accounts of the proceedings of these same legal institutions. In The Law and the Lady, Collins focuses on the trial report, a form that first took on a literary dimension with the causes celebres of pre-Revolutionary France and acquired a similar cultural place in nineteenth-century England and America, and upon which Collins himself relied in constructing the plots of his novels. Through incorporating a fictional trial report into The Law and the Lady, Collins elucidates some of the ways in which trial narratives themselves partook of a literary construction, emphasizing aspects of coherence and continuity over factual accuracy. In both cases, Collins appears to suggest a model of legal reading that does not simply treat the written law as self-executing or the report of a trial as an entirely accurate account but instead adopts a critical and active stance.

Download the entire essay here from SSRN.

SSRN Announces Two New Journals

From an announcement by the SSRN

The Social Science Research Network is pleased to announce two new SSRN abstracting journals, Law & Literature and Law & Culture.

Law & Culture is edited by Reva Siegel, Nicholas deB. Katzenbach Professor of Law and Professor of American Studies, Yale Law School along with Bruce L. Hay, Professor of Law, Harvard Law School.

Law & Culture distributes abstracts of papers and articles concerning the connections or relations between culture and law. The journal welcomes work from within any of the numerous disciplines associated with the study of culture, both in the humanities and in the social sciences, as well as legal scholarship.

The URL below will let you browse all abstracts and papers in this
journal:

http://www.ssrn.com/link/Law-Culture.html

Law & Literature is edited by Penelope Pether, Professor of Law, Villanova University School of Law.

Law & Literature abstracts distributes abstracts of working papers, forthcoming articles, and recently published articles on interdisciplinary topics or using interdisciplinary methods in Law and Literature. The journal welcomes interdisciplinary work in both the critical theoretical and humanist traditions, and scholarship on law drawing not only on English and Literary Studies, but also on Linguistics, Cultural Studies, Literary Theory, Rhetoric and Composition, Narrative Jurisprudence, and Hermeneutics.

The URL below will let you browse all abstracts and papers in
thislsnjournal:

http://www.ssrn.com/link/Law-Literature.html

HOW TO SUBSCRIBE
Subscriptions to these journals are available at no additional charge to anyone who is covered by a site license or has an individual subscription to the LSN journals. You can subscribe to one or both of these journals by clicking on the corresponding links below:

Law & Culture
http://hq.ssrn.com/jourInvite.cfm?link=Law-Culture

Law & Literature
http://hq.ssrn.com/jourInvite.cfm?link=Law-Literature

You will then be able to subscribe to additional LSN journals and/or modify your subscriptions. You will need to enable session cookies on your browser to use this link or to access our user headquarters at:
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Thurschwell on DeLillo and Literature After 9/11

Adam Thurschwell (Cleveland-Marshall College of Law) has posted on SSRN his paper, Writing and Terror: Don DeLillo on the Task of Literature After 9/11. From the abstract:

Over the past thirty years, Don DeLillo has become the novelist-laureate for our age of terror, exploring the inner life, cultural causes and symbolic significance of terrorism and terrorists of all stripes. He is therefore perhaps the ideal subject for a consideration of the status of literature after the disaster of September 11, 2001. Indeed, DeLillo himself published a moving essay shortly after 9/11 in which he posits cyber-capital and terrorism as competing world narratives and argues that "it is left to us" - writers, among others - "to create the counternarrative."

In this essay, written for a symposium on "Law and Literature After 9/11," I take a closer look at DeLillo's proposal through a reading of some of his recent novels. In the wake of his essay critics were quick to respond that DeLillo's own works portray writers whose attempted resistance is defeated by the all-consuming forces of market capitalism. I address this criticism, but devote more time to what is potentially an even more devastating obstacle for DeLillo's program, Maurice Blanchot's thesis that the act of literary writing is itself, in its essence, already "terrorist." After briefly explicating and defending Blanchot's initially implausible-sounding notion, I attempt to show how DeLillo's novels suggest the affirmative possibility of a meaningful "counternarrative" that, without refuting Blanchot's conception of literature, still offers an (ambiguously) hopeful alternative view.

New Addition to the Star Trek Literature

Antonin I. Pribetic, Osgoode Hall Law School, has published "'To Boldly Go Where No One Has (Arbitrated) Before': The Star Trek Mythos as an Heuristic Paradigm for Jurisdictional and Arbitration Issues", a short paper on the ST:TNG episode "The Ensigns of Command" and the arbitration issues it raises. Here is the abstract.

While the topic of international arbitration has failed to capture the interest of Hollywood producers or television audiences, the science fiction genre yields a serendipitous result. Using an excerpt from a Star Trek: The Next Generation episode, this brief comment analyzes the impact of law and popular culture on the issues of the rule of law, jurisdiction and international (more accurately, "intergalactic") comity within the context of bilateral and multilateral treaty obligations.

Download the entire paper here.

The piece adds to the developing Star Trek bibliography that includes pieces by Jeffrey Nesteruk, Franklin and Marshall College, "A New Narrative for Corporate Law," available from SSRN and the anthology Star Trek: Visions of Law and Justice (2005), which brings together several of the more famous essays, including Paul Joseph and Sharon Carton's "The Law of the Federation."

Capers on Race and Justitia, the Symbol of Justice

Professor I. Bennett Capers has posted on SSRN an article, On Jusitita, Race, Gender, and Blindness, 12 Michigan J. of Race & Law 203 (2006):

If there is one image we associate with justice, it is of Justitia herself, blindfolded, balancing a scale in one hand, brandishing an unsheathed sword in the other. The image is so ubiquitous that we are often beyond noticing it. Late for court, late for class, or simply indifferent, we walk past it, barely glancing up.

This Essay – Justitia, Race, Gender, and Blindness – is about seeing Justitia and questioning how the image functions, both aesthetically and morally. Drawing upon law, literature, art history, and cultural studies, this Essay also problematizes Justitia. After all, what does it mean, connotatively and denotatively, for Justitia to be blind in a racialized society where color is so determinative? And conversely, what does it mean to fix a black gaze upon an image of justice that has been figured as white and female? The Essay contends that answering these questions is imperative for those of us who care about making our criminal justice system fairer, both in the way justice is meted out, and in our perception of justice.

Capers on Post-Colonial and Black Literary Theory and Legal Texts

Professor I. Bennett Capers (Hofstra Law School) has posted on SSRN the article, Reading Back, Reading Black, 35 Hofstra L. Rev. 101 (2007):

This essay builds on post-colonial theory and black literary theory to pose a pair of questions. If the reading of Western literature can be enriched by examining the great canonical texts through the lens of race, can a similar enrichment obtain from using a similar reading practice to read the law? Stanley Fish has argued that we each belong to interpretive communities, and that members of these communities are guided in their readings of texts by a common "consciousness," which produces interpretive "strategies [that] exist prior to the act of reading and therefore determine the shape of what is read." If this is true, what does it mean for the study of law to have a community of black readers?

This essay engages these questions and attempts to describe a reading practice of reading black. To illustrate the reading practice, the essay examines two cases that do not appear to be engaged in "race work" at all, The Queen v. Dudley & Stephens, and Muller v. Oregon. The essay demonstrates that far from diminishing these opinions—these grand narratives, these master texts—reading black reveals other layers, other meanings, and in the process deepens and widens our understanding not only of the holdings of these opinions, but also the how and why of them.

Jessica Silbey on Representations of Law and Justice

Jessica M. Silbey, Suffolk University Law School, has published "A History of Representations of Justice: Coincident Representations of Law and Film," in Representations of Justice, published by Peter Lang (ed. by Masson and O'Connor, 2007). Here is the abstract.

The American trial and the art of cinema share certain epistemological tendencies. Both stake claims to an authoritative form of knowledge based on the indubitable quality of observable phenomena. Both are preoccupied (sometimes to the point of self-defeat) with sustaining the authority that underlies the knowledge produced by visual perception. The American trial and art of cinema also increasingly share cultural space. Although the trial film (otherwise known as the courtroom drama) is as old as the medium of film the recent spate of popular trial films, be they fictional such as Runaway Jury or documentary such as Capturing the Friedmans, suggests more then a trend; it suggests an inherent affinity between law and film. This article investigates this affinity, the cultural space it inhabits, and its destiny in terms of the evolving filmic culture and technologies of the twenty-first century.

Download the entire paper here.

More on Jane Austen

Quiet Jane Austen seems to be of renewed interest these days. Linda Ross Meyer, Quinnipiac University School of Law, has published "Jane Austen on Persuasion and Authority" as a working paper. Here is the abstract.

Taking the novels of Jane Austen as an exploration of Joseph Raz's problem of authority in law, this paper explores whether a positivist account of authority maps onto Austen's account of human experience. While both Austen and Raz agree that the source of authority cannot itself be an exclusionary reason, Austen's novels suggest that social role and emotional connection play a bigger role in evaluating authority than Raz's account would suggest. Most notably, Austen's characterization of her heroine Fanny Price suggests that a non-positivist stance toward authority may generate more moral criticism of law than a positivist approach.

Download the entire paper from SSRN here.

Rapoport on Golding's Lord of the Flies

Professor Nancy Rapoport (University of Houston Law Center) has posted on SSRN her book chapter, Lord of the Flies (1963): The Development of Rules Within an Adolescent Culture. From the abstract:

This essay, included in the book SCREENING JUSTICE--THE CINEMA OF LAW: Significant Films of Law, Order and Social Justice (Rennard Strickland, Teree E. Foster & Tauyna Lovell Banks, eds., William S. Hein & Co. 2006), discusses the development of the law in Goldman's "Lord of the Flies" and raises the question of whether an island populated by a mix of boys and girls - or an island populated by only girls - would have developed a different law.

George Eliot and Promises

Melissa Ganz, Department of English, Yale University, has published "Binding the Will: George Eliot and the Practice of Promising," forthcoming in English Literary History. Here is the abstract.

In The Mill on the Floss (1860), Middlemarch (1871-72), and Daniel Deronda (1876), promises give rise to repeated conflicts and misunderstandings, crystallizing the tension between freedom and obligation that runs through George Eliot's work. Literary critics have long noted Eliot's interest in the nature and limits of the human will, but they have failed to examine her treatment of the practice of promising. In this essay, I analyze the use and abuse of promises in her fiction in the context of changing philosophical and legal ideas about consensual obligations. Whereas natural law thinkers such as Grotius, Pufendorf, Hobbes, and Locke insisted that promises derived their force from people's wills and intentions, in the late eighteenth and early nineteenth centuries, utilitarian philosophers such as William Paley and John Austin began to locate the source of promissory obligations in people's expectations. At about the same time, jurists formulated a new “will theory” of contract that drew heavily upon natural law philosophy; according to this theory, individual promises, wills, and intentions gave rise to contractual obligations. Judges, in fact, began to speak of a contract as a “meeting of minds.” In practice, however, they found it very difficult to uncover the intentions of contracting parties. By the middle of the nineteenth century, most judges had come to embrace an objective approach to contractual interpretation, relying upon external manifestations of intentions as did the utilitarian philosophers.

Like Paley, Austin, and Henry Sidgwick, and like a growing number of jurists in her day, Eliot embraces an expansive conception of promising: she suggests that one becomes bound by a promise whenever one knowingly excites another's expectations concerning the existence of an obligation, even though one does not intend to become bound. The willingness to abide by implicit promises and to honor the expectations that one raises in other minds is a crucial test of moral character in Eliot's fiction. However, while Eliot privileges external manifestations of intention over actual intentions in determining promissory responsibility, she remains committed to the notion that a true “meeting of minds” ought, ideally, to form the basis of agreements. As a practical matter, that is, she recognizes the difficulty of discerning others' intentions, and she shows the need to honor the reasonable expectations that one creates in other minds; but she holds out the possibility that individuals may achieve a real blending of wills and desires. In Mordecai Cohen's relationship with the eponymous hero of her final novel, she imagines such a meeting of minds, highlighting the ways in which promises can both reflect and promote understanding between people. She acknowledges, though, that such a mingling of ideas and intentions is, in the world of nineteenth-century England, limited to men.

Download the entire article from SSRN here.

Silbey on Videotaped Confessions and Documentary

Jessica M. Silbey (Suffolk Law School) has posted her article, Videotaped Confessions and the Genre of Documentary, 16 Fordham Intellectual Prop., Media & Ent. L. J. 789 (2006), on SSRN. From the abstract:

This essay begins the exploration of two contemporary and related film trends: the recent popular enthusiasm over the previously arty documentary film and the mandatory filming of custodial interrogations and confessions.

The history and criticism of documentary film, indeed contemporary movie-going, understands the documentary genre as political and social advocacy (recent examples are Michael Moore's Farenheit 9/11 and Errol Morris's Fog of War). Judges, advocates, and legislatures, however, assume that films of custodial interrogations and confessions reveal a truth and lack a distorting point of view. As this Article explains, the trend at law, although aimed at furthering venerable criminal justice principles, holds a fairly naïve view of film's indexical relationship to the lived world and abjures consideration of the contemporary trend in cinema.

Understanding the documentary as truth-revealing is a mistake, a mistake which can frustrate (if not undermine) the criminal justice goals of the legislation.

Whatever may explain the convergence of filmmaking in the precinct house and a penchant for mainstream documentary movie-going, the trends are shaping contemporary expectations about film in contradictory ways. Investigating these trends together exposes competing norms regarding film as a legal tool and as a knowledge producing discourse. It also situates the criminal justice trend in the context of a long history of filmmaking and critical spectatorship. In light of the growing use of film as a policing mechanism, better understanding of film as both an art and a legal tool is in order.

Call For Papers: Law as Literature Discussion Group

Professor Andrew Majeske has sent out this Call for Papers for the Modern Language Association Meeting 2007 Law as Literature Discussion Group. The meeting is in Chicago, December 27-30.

Here's the description.

Gendered Justice: The gendered treatment in literature of law/equity/justice: What is the theoretical/political/social significance of such treatments? Is gender neutrality/equality depicted as possible? Desirable? Problematic? Agenda-driven? 250-500wd abstract by 15mar. Andrew Majeske, ajmajeske@gmail.com

Burning Man Now a Burning Issue

John Law, who with two friends launched the "Burning Man" celebrations years ago is now suing them to place the "Burning Man" trademark in the public domain. He claims that Larry Harvey and Michael Mikel have violated an agreement the three signed ten years ago after Law left the Burning Man organization. Read more here. Read coverage on the Laughing Squid Blog here.

Forthcoming Conference on "Law and the Emotions: New Directions in Scholarship" at UC Berkeley

For those considering attending the conference "Law and the Emotions: New Directions in Scholarship," at UC Berkeley in early February, there is still room to register and the special conference rate for the hotel is available until January 16th. Here is the conference website, followed by the announcement.

Law and the Emotions: New Directions in Scholarship

U.C. Berkeley Law School (Boalt Hall), February 8th and 9th, 2007.

Sponsored by Boalt Hall Law School, DePaul Law School, The Gruter Institute for Law and Behavioral Research, The Vanderbilt Law School Law and Human Behavior Program, and The U.C. Berkeley Center for the Study of Law and Society.

Recent work in the still-emerging field of law and emotion has moved well beyond the initial debates about reason and emotion, into diverse and exciting areas of interdisciplinary study. Some scholars have continued the investigations, in philosophy and psychology, for example, that helped establish the field. Others are doing important new work in other disciplines, including cognitive neuroscience, evolutionary biology, and the sociology of emotion. Early focal points, such as criminal law and courtroom practice, have been supplemented by a much broader range of inquiry. However, scholars pursuing these nascent directions often have little exposure to work in related areas. This conference aims to facilitate the interdisciplinary connections and collaborations that are vital for the continued development of the field.

The conference will commence on Thursday, February 8th at 4 PM and end on Friday, February 9th at 5 PM. Panels include:

Law, the Mind Sciences, and Emotions. This panel will view emotion and its implications for law through the lens of neuroscience, cognitive and social psychology, and behavioral biology.

Law and Emotion in Action. This panel will explore emotions as affective responses developed in institutional and collective contexts, and institutions (such as the jury, the workplace, and the social welfare system) as entities that both shape and are shaped by emotion.

Theorizing Law and the Emotions. This will be a roundtable devoted to reflections on the varied ways in which law is capable of engaging the emotions, for example, by acting on emotions, moderating or channeling them, scripting them, or helping them come into being.

New Directions in Scholarship on Law and the Emotions. This panel will consist of a series of short presentations showcasing exciting new approaches to the analysis of law and emotion.

Keynote Speakers: Arlie Hochschild and Dacher Keltner
Confirmed speakers: Kathy Abrams, Susan Bandes, Jeremy Blumenthal, Devon Carbado, Cheshire Calhoun, Laurel Fletcher, Angela Harris, Oliver Goodenough, Peter Huang, Owen Jones, Dan Kahan, Hila Keren, Sharon Krause, Terry Maroney, Elizabeth Phelps, Jeffrey Rachlinski, Carol Sanger, Susan Silbey, Elizabeth V. Spelman, and Robin West.

Organizers: Kathy Abrams (Boalt Hall Law School); Susan Bandes (DePaul Law School); Hila Keren (Hebrew University of Jerusalem Law School) and Terry Maroney (Vanderbilt Law School).

To register and for further information visit http://www.law.berkeley.edu/institutes/csls/lawemotion_conference

or contact Debra Krauss at dkrauss@law.berkeley.edu

Turner on Nietzsche, Foucault, and Scalia

William Turner (Emory Law School) has posted his paper, Nietzsche, Foucault, Scalia, on SSRN. From the abstract:

This paper explores the narrative strategies of majority and dissenting opinions in Lawrence v. Texas, Romer v. Evans, and Bowers v. Hardwick, all major lesbian/gay civil rights decisions. It demonstrates that the story of U.S. history - increasing protection for individual rights, or decreasing respect for moral and constitutional tradition - explains as much about the legal outcome as the doctrinal arguments that the opinions contain. In particular, it places these opinions into a discussion about the relationship between narrative and identity, individual and national. From this perspective, Justice Antonin Scalia shares with French philosopher Michel Foucault the belief that narrative is closely related to identity, with the important difference that Foucault celebrates the fragility of this connection while Scalia deplores it.

Long on Law and Music Lyrics

Alex B. Long (Oklahoma City University School of Law) has posted [Insert Song Lyrics Here]: The Uses and Misuses of Popular Music Lyrics In Legal Writing, forthcoming 64 Wash. & Lee L. Rev. (2007) on SSRN. From the abstract:

Legal writers frequently utilize the lyrics of popular music artists to help advance a particular theme or argument in legal writing. And if the music we listen to says something about us as individuals, then the music we, the legal profession as a whole, write about may something about who we are as a profession. A study of citations to popular artists in law journals reveals that, not surprisingly, Bob Dylan is the most popular artist in legal scholarship. The list of names of the other artists rounding out the Top Ten essentially reads like a Who's Who of baby boomer favorites. Often, attorneys use the lyrics of popular music in fairly predictable ways in their writing, sometimes with adverse impact on the persuasiveness of the argument they are advancing. However, if one digs deeper, one can find numerous instances in which legal writers incorporate the lyrics of popular music into their writing in more creative ways.

Bandes on Movies and the Rule of Law

Susan Bandes (De Paul University Collegeo of Law) has posted We Lost It at the Movies: The Rule of Law Goes from Washington to Hollywood and Back Again, forthcoming 40 Loyola of Los Angeles L. Rev. (2007) on SSRN. From the abstract:

This essay, written as part of a symposium on popular culture and the civil justice system, examines the vast gap between legal and popular discourse on the judicial role. The legal academy generally regards as uncontroversial the proposition that judicial interpretation cannot be value-free. Yet in popular discourse, the ideal judge is someone who leaves all prior attitudes behind, simply applying the law that is "out there" and that admits to only one possible outcome. Judges perceived to deviate from this ideal are at risk of being branded "activist." Members of the lay public - a majority of them, according to a recent survey - are upset about what they perceive to be activist judges. Perhaps more disheartening, pledging fealty to this unrealistic view of the judicial role remains de rigueur in the halls of Congress. This essay explores the connection between the depiction of the judicial role in popular media such as movies and television and the very similar caricature that still holds sway in more serious non-fiction venues, like Senate confirmation hearings and political campaigns. In popular venues, the judge is generally depicted either as a neutral or invisible placeholder for a fixed and determinate rule of law, or as biased, vulgar, or downright villainous. Drawing from legal theory, narrative theory, psychology, and prior work on popular culture and media studies, I argue that the simplistic notion of judges and judging that currently dominates the discourse is inherently conservative and hegemonic, and suggest that this state of affairs poses dangers for the rule of law and the evolution of the judicial system.

Recent Book on Trials, Evidence, and Victorian Literature

A recent book edited by Jan-Melissa Schramm and Gillian Beer has been published entitled Testimony and Advocacy in Victorian Law, Literature and Theology (Cambridge, 2006).

From the book description:

This original and wide-ranging study shows how changing attitudes to evidence, trial and revelation in law and theology had a profound impact on literary narrative in the nineteenth century. Jan-Melissa Schramm, who is both a lawyer and a literary critic, argues that authors of fiction created a style of literary advocacy that both imitated, and reacted against, the example of their story-telling counterparts of the criminal Bar, and traces the ongoing debate over rules of evidence, eye-witness testimony and codes of ethical conduct that helped shape Victorian realism as a narrative form.

Lemon on Shakespeare, Law, and Rebellion

Rebecca Lemon has published the book Treason by Words: Literature, Law, And Rebellion in Shakespeare's England (Cornell, 2006).

From the book description:

Under the Tudor monarchy, English law expanded to include the category of "treason by words." Rebecca Lemon investigates this remarkable phrase both as a legal charge and as a cultural event. English citizens, she shows, expressed competing notions of treason in opposition to the growing absolutism of the monarchy. Lemon explores the complex participation of texts by John Donne, Ben Jonson, and William Shakespeare in the legal and political controversies marking the Earl of Essex’s 1601 rebellion and the 1605 Gunpowder Plot.

Lemon suggests that the articulation of diverse ideas about treason within literary and polemical texts produced increasingly fractured conceptions of the crime of treason itself. Further, literary texts, in representing issues familiar from political polemic, helped to foster more free, less ideologically rigid, responses to the crisis of treason. As a result, such works of imagination bolstered an emerging discourse on subjects’ rights. Treason by Words offers an original theory of the role of dissent and rebellion during a period of burgeoning sovereign power.

Lockey on Law and English Renaissance Literature

Brian C. Lockey, an assistant professor of English at St. John's University, has published the book Law and Empire in English Renaissance Literature (Camrbidge, 2006).

From the book description:

Early modern literature played a key role in the formation of the legal justification for imperialism. As the English colonial enterprise developed, the existing legal tradition of common law no longer solved the moral dilemmas of the new world order, in which England had become, instead of a victim of Catholic enemies, an aggressive force with its own overseas territories. Writers of romance fiction employed narrative strategies in order to resolve this difficulty and, in the process, provided a legal basis for English imperialism. Brian Lockey analyses works by such authors as Shakespeare, Spenser and Sidney in the light of these legal discourses, and uncovers new contexts for the genre of romance. Scholars of early modern literature, as well as those interested in the history of law as the British Empire emerged, will learn much from this insightful and ambitious study.

New Book on the Law in Shakespeare

There's a new book called The Law in Shakespeare (Palgrave Macmillan, 2007) edited by Constance Jordan and Karen Cunningham.

From the book description:

Focusing on a burgeoning area of interest, this new study illustrates relations between legal and theatrical discourses in a range of plays. The essays focus on four general areas of interest to establish the vital connections between early modern drama and law during this seminal period in their professionalization: legal language and its construction of social norms and realities, positive law and the status of nature; the concept of property and its contractual guarantees; and the creation of power and authority under the law.

Dolin's A Critical Introduction to Law and Literature

Kieran Dolin, Senior Lecturer in English, Communication and Cultural Studies at the University of Western Australia, has published the book A Critical Introduction to Law and Literature (Cambridge, 2007).

From the book description:

Kieran Dolin introduces the interdisciplinary study of law and literature and charts the history of the shifting relations between the two disciplines, from the open affiliation between literature and law in the sixteenth-century Inns of Court to the less visible links of contemporary culture. Each chapter is organised around a famous trial or literary-legal encounter. The wide resonance of such trials illuminates the cultural centrality of law, and the social responsiveness of literature. This book provides an accessible guide to one of the most exciting areas of interdisciplinary scholarship today.

Nables on Law, Literature, and the Civil War

Deak Nabers has published Victory of Law: The Fourteenth Amendment, the Civil War, and American Literature, 1852--1867 (J. Hopkins, 2006) .

From the book description:

In Victory of Law, Deak Nabers examines developing ideas about the nature of law as reflected in literary and political writing before, during, and after the American Civil War. Nabers traces the evolution of antislavery thought from its pre-war opposition to the constitutional order of the young nation to its ultimate elevation of the U.S. Constitution as an expression of the ideal of justice -- an ideal embodied in the Fourteenth Amendment.

Nabers shows how the intellectual history of the Fourteenth Amendment was rooted in literary sources -- including Herman Melville's Battle-Pieces, Harriet Beecher Stowe's Uncle Tom's Cabin, and William Wells Brown's Clotel -- as well as in legal texts such as Somerset v. Stewart, Dred Scott v. Sandford, and Charles Sumner's "Freedom National" address. Not only were prominent writers like Ralph Waldo Emerson and Frederick Douglass instrumental in remapping the relations between law and freedom, but figures like Sumner and John Bingham helped develop a systematic antislavery reading of the Constitution which established literary texts as sources for legal authority.

This interdisciplinary study sheds light on the transformative significance of emerging legalist and constitutionalist forms of antislavery thinking on the literature of the 1850s and 1860s and the growing centrality of aesthetic considerations to antebellum American legal theory and practice -- the historical terms in which a distinctively American cultural identity was conceived.

More on the Image of Judges in Popular Culture

Susan Bandes of DePaul University College of Law has published "We Lost It At the Movies: The Rule of Law Moves From Washington to Hollywood and Back Again," as part of a symposium in volume 40 of Loyola of Los Angeles Law Review. Here is the abstract.

This essay, written as part of a symposium on popular culture and the civil justice system, examines the vast gap between legal and popular discourse on the judicial role. The legal academy generally regards as uncontroversial the proposition that judicial interpretation cannot be value-free. Yet in popular discourse, the ideal judge is someone who leaves all prior attitudes behind, simply applying the law that is “out there” and that admits to only one possible outcome. Judges perceived to deviate from this ideal are at risk of being branded “activist.” Members of the lay public - a majority of them, according to a recent survey - are upset about what they perceive to be activist judges. Perhaps more disheartening, pledging fealty to this unrealistic view of the judicial role remains de rigueur in the halls of Congress. This essay explores the connection between the depiction of the judicial role in popular media such as movies and television and the very similar caricature that still holds sway in more serious non-fiction venues, like Senate confirmation hearings and political campaigns. In popular venues, the judge is generally depicted either as a neutral or invisible placeholder for a fixed and determinate rule of law, or as biased, vulgar, or downright villainous. Drawing from legal theory, narrative theory, psychology, and prior work on popular culture and media studies, I argue that the simplistic notion of judges and judging that currently dominates the discourse is inherently conservative and hegemonic, and suggest that this state of affairs poses dangers for the rule of law and the evolution of the judicial system.

Download the entire article from SSRN here.

Crime Noir From a French Scientist

Fred Vargas (Frédérique Audouin-Rouzeau) writes what the French call romans policiers. It started as a hobby, but her hobby has turned into best sellers. Her sleuth Chief Inspector Adamsberg features in two paperbacks currently available in translation in the U.S.: Seeking Whom He May Devour and Have Mercy On Us All. Read more here in a Globe and Mail article.

Balkin and Levinson on Law and the Humanities

Jack Balkin (Yale Law school) and Sanford Levinson (Texas Law School) have posted Law and the Humanities: An Uneasy Relationship, 18 Yale J. of Law & the Humanities 155 (2006) on SSRN. Here's the abstract:

In 1930 legal professionals like Judge Learned Hand assumed that law was either part of the humanities or deeply connected to them. By the early twenty-first century, this view no longer seems accurate, despite the fact that legal scholarship has become increasingly interdisciplinary. Instead law has moved closer to the social sciences. This essay discusses why this is so, and why the humanities exist in an uneasy relationship with law and contemporary legal scholarship.

No matter how often the legal academy embraces skills and knowledges external to law, law's professional orientation - and the fact that law is taught in professional schools where most students will not become academics - continually pulls legal scholarship back toward an internal attitude toward law and recourse to traditional legal materials. As a result, law remains far more like a divinity school - devoted to the preservation of the faith - than a department of religion - which studies various religions from multiple perspectives. To the extent that the contemporary disciplines of the humanities view law externally or in ways inconsistent with its professional orientation, they are merely tolerated in law schools rather than central to legal study. More generally, because law is a professional field, it resists colonization by other disciplines that view law externally. Instead, law co-opts the insights of other disciplines and turns them to its own uses.

Ironically, law's thoroughly rhetorical nature, which strongly connects it to the traditions of the humanities, places the contemporary disciplines of the humanities at a relative disadvantage. Law uses rhetoric to establish its authority and to legitimate particular acts of political and legal power. Law's professional orientation pushes legal scholars toward prescriptivism - the demand that scholars cash out their arguments in terms of specific legal interpretations and policy proposals. These tasks push legal scholars toward technocratic forms of discourse that use the social and natural sciences more than the humanities. Whether justly or unjustly, the humanities tend to rise or fall in comparison to other disciplines to the extent that the humanities are able to help lawyers and legal scholars perform these familiar rhetorical tasks of legitimation and prescription.

Capers on Wright's Native Son

Professor I. Bennett Capers (Hofstra Law School) has posted The Trial of Bigger Thomas: Race, Gender, and Trespass, 31 NYU Review of Law and Social Change 1 (2006) on SSRN.

Abstract:

This article examines Richard Wright's Native Son - which ends with its
protagonist Bigger Thomas awaiting execution for the rape and murder of
a white woman - to offer three interrelated close readings that go
beyond the usual law-and-literature approaches. It examines the three
"real life" cases that informed Wright as he was writing Native Son -
the trial of Robert Nixon, the Scottsboro Boys case, and the prosecution
of Leopold and Loeb - and demonstrates that Native Son, more than simply
problematizing criminal justice issues, foregrounds the way in which
society and the law actively participate in the construction(s) of race
and gender, and challenges the traditional utilitarian and retributive
justifications for punishment. The article posits that the real crime
motivating Bigger's prosecution is not murder and rape, but a violation
of what the author terms the "white letter law" of "trespass."

Although the text that motivates the article is Native Son, the goal of
the article is significantly larger. Much of the criticism of the
law-and-literature movement centers around claims that it lacks
discipline and boundaries. Through its explication of Native Son, this
article redirects such thinking about law-and-literature by suggesting
that only wider landscapes, a new critical geography, will reinvigorate
the discipline.

The Pleasures of Crime Noir

Barry Hannah, a professor at the University of Mississippi, writes about the pleasures, and the importance, of crime noir, in the Oxford American. Read his essay online.

Fellowship Opportunity

CENTER FOR THE STUDY OF LAW & CULTURE FELLOWSHIP

The Center for the Study of Law and Culture at Columbia University invites applications for residential fellowships for the 2007-2008 academic year to undertake research, writing and discussion in ways that span traditional academic disciplines. The CSLC welcomes scholars from any field who are interested in spending the academic year in residence at Columbia Law School working on scholarly projects relating to the CSLC's 2007-2008 theme: Executive Power.

We aim to appoint fellows whose scholarship addresses the critical and legal implications of expanding executive power not merely from the perspective of the state—such as the Bush administration's celebrated attempt to expand executive privilege vis-à-vis the other branches of US government—but from the perspective of power more generally. Since the post-structural assault on theories of power that posited it as emanating from a concentrated source, critical theory has conceptualized power as dispersed, capillary, and simultaneously productive and repressive. What might be the ramifications on legal and critical thought and practice at the intersection of new attempts to concentrate institutionally various forms and careers of power? We invite in particular scholarship whose focus is outside the US and lies at the critical conjuncture of law and culture. Fellows will be required to present an original paper from their research and to participate in a year long colloquium on the same topic.

The Law & Culture Fellowship is available to senior graduate students and post-doctoral candidates, including untenured faculty.

Founded in the fall of 2000, the Center for the Study of Law and Culture is an initiative at Columbia Law School designed to facilitate interdisciplinary study, research and scholarship on the intersections of law and culture. Our goal is to make the CSLC an institutional site for coordinating and coalescing the important, yet dispersed, interrogations of the relationship between law and culture that are already being undertaken across disciplines at Columbia University. By promoting and providing a home for cross-disciplinary engagement and collaboration, the CSLC will enrich each of our individual projects in law and culture studies.

Fellows will receive a stipend of $30,000, an office, computer, eligibility for university housing, and full access to university libraries, computer systems and recreational facilities. Fellows will be expected to participate in CSLC activities including presentation of a paper at the Center's Colloquium Series, and assistance in organizing Center events.

Applicants should submit:
1- a curriculum vitae
2- a writing sample (in the English language, about 25 pages in length)
3- a research statement (of approximately 1,000 words) that:
- describes the proposed work during the fellowship period
- explains the project's significance to the topic of Executive Power
- sets forth its interdisciplinary nature
4- TWO letters of recommendation (if sent with application, letter should be sealed in letterhead envelope and signed over the flap by referee). If more than two are sent, it is not guaranteed that all letters will be read.

Applications must be received at our office no later than February 15, 2007. E-mail applications will be accepted. Letters of recommendation may be sent under separate cover. Incomplete applications will be immediately disqualified.

Direct questions and application materials to:
Center for the Study of Law and Culture
Columbia University
435 W. 116th Street
New York, N.Y. 10027
USA
culture@law.columbia.edu

Women, people of color, non-US and independent scholars are particularly invited to apply.

The Chicago Historical Homicide Project

Leigh Buchanan Bienen, Northwestern University School of Law, has published "The Record Keepers" in volume 124 of TriQuarterly Journal (2006). Here is the abstract.

"The Record Keepers" by Leigh Buchanan Bienen describes the evolution of the Chicago Historical Homicide Project, beginning with the discovery of the preservation of a set of original police records of homicides in Chicago over the period 1870-1930, a time of enormous political, economic, and social activity. All 14,000 cases, both the original narrative case summaries and the new coded, quantitative files, are available to be downloaded at homicide.northwestern.edu, along with contemporaneous legal documents and reports, publications and commentary on the cases and the period, and photographs from the period. The homicide cases include the names of defendants and victims, addresses, and evocative details leading to other sources. "The Record Keepers" introduces "The Violence," a Special Issue of Triquarterly (No. 124) on Law and Literature, which includes articles by law professors, poets and novelists, legal historians, humanists and others. "The Record Keepers" and the other essays reflect upon the challenges and rewards of engaging in the reconstruction and reimagination of the past, beginning with legal documents and court records.

Download the entire paper here.

Celebrating the Canon

Richard Weisberg, Cardozo Law School, has published "Wigmore, and the Law and Literature Movement," as Cardozo Legal Studies Research Paper No. 177. Here is the abstract.

John Wigmore's list of Legal Novels -- really several lists compiled over the first 30 years or so of the 20th century -- helped to generate the modern embodiment of the Law and Literature movement. The bibliographical element, although of course controversial as the Law and Literature canon developed through multiple debates about what should and should not be read and discussed, proved essential in locating a group of stories that lawyers were to live with throughout their professional careers. More than bibliographical, however, Wigmore's accompanying text stressed the democratization through great literature of a legal profession otherwise prone to misunderstanding the human realities with which it was theoretically always concerned. A defined group of fictional narratives -- stories about law, lawyers, trials, statutes -- was to re-awaken in the legal reader the attachment to democratic values conveyed by literature through its acute awareness of human needs and the failure of great institutions to serve them. This essay marks the 30th anniversary of its author's update of the Wigmore list. I trace the very active debates that have informed Law and Literature since that 1976 Northwestern Law Review article, and I celebrate the expansion to foreign shores of knowledge about Wigmore, as Law and Literature proponents both home and abroad have embraced Wigmore's democratic impulse for law.

Download the entire paper here.

Are Recipes Copyrightable?

Christopher J. Buccafusco, University of Chicago Law School, discusses the question in "On the Legal Consequences of Sauces: Should Thomas Keller's Recipes be Per Se Copyrightable?" Here is the abstract.

The restaurant industry now takes in over $500 billion a year, but recent courts have been skeptical of the notion that one of its most valuable assets, original recipes, are subject to copyright protection. With more litigation looming and the contours of the debate insufficiently mapped out, this article establishes the appropriate groundwork for analyzing the copyrightability of recipes. I show that, contrary to recent appellate court opinions, recipes meet the statutory requirements for copyrightability. I argue, by analogizing to musical compositions, that written recipes work to satisfy the fixation requirement of copyright law just as musical notation does for compositions. Accordingly, the “dish” is the final work of authorship, the recipe is the fixation medium, and the various cooking techniques - braising, grilling, sous vide - are the potentially patentable processes. In order to meet copyright law's requirement of originality, though, the work must be deemed expressive. To determine whether and how recipes are expressive, I interviewed some of America's best chefs, each of whom claimed to use recipes to express various ideas and emotions.

Since there are no doctrinal limitations to recipes' copyrightability, in Part II, I offer reasons for the late recognition as protectable works. First, I consider the marginalized status of the sense of taste in the history of Western aesthetic philosophy. For many philosophers, only objects that presented themselves to the eyes and ears, such as music, painting, and literature, could be truly beautiful. Partly out of the fear that fancy foods can lead to gluttony, Western, and more specifically Anglo-American writers have often tried to limit cuisine to its fundamentally nutritive components, further isolating it from the realm of creative expression. Furthermore, the producers of cuisine have been treated no better than their products. Throughout history cooking has been the province of lowly household servants and housewives, with only a select few chefs rising to the status of artisan. Chefs rose from the ranks of obscurity far more slowly than did writers, painters, and musicians. Finally, chefs have a long history of directly copying recipes and dishes from their predecessors, suggesting that the norms of Romantic original authorship formed much later in cuisine than in other arts.

In Part III, I return to the law to consider whether the copyright monopoly should be extended to culinary creations. Chefs are not likely to take serious advantage of copyrights, as the time and money necessary for suit would rarely be worth the benefit. The chefs I interviewed were uncomfortable with the idea of owning their recipes, and they all approved of others using their recipes, subject to certain limits. Increased innovation is also unlikely as a more robust intellectual property regime would likely inhibit chefs' willingness to experiment with other chefs' dishes. Furthermore, the public domain would not see any meaningful increase, because few chefs who currently keep their recipes secret will be persuaded to publish them to obtain the limited benefits of copyright. The article concludes by arguing that formal copyright protection is not necessary for culinary creation, because a vibrant system of social norms already exists to sanction plagiarism, encourage attribution, and reward innovation. Thus, although recipes meet the formal doctrinal requirements of copyright law, an extension of the monopoly is neither necessary nor appropriate at this time.

Download the entire paper from SSRN here.