March 29, 2007

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].

March 22, 2007

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.

March 21, 2007

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.

March 18, 2007

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.

March 16, 2007

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.

March 6, 2007

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".

D. Michael Risinger "Boxes in Boxes: Julian Barnes, Conan Doyle, Sherlock Holmes and the Edalji Case".
Douglas Walton and Burkhard Schafer "Arthur, George and the Mystery of the Missing Motive: Towards a Theory of Evidentiary Reasoning about Motives".

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.

March 1, 2007

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.