Conference on Law and Popular Culture

Marquette University Law School is hosting a Conference on Law and Popular Culture November 1st to celebrate the publication of Law and Popular Culture: Text, Notes, and Questions by LEXIS Publishing. The conference is being organized by David Papke, of Marquette.

Call for Papers

CFP: Literature and Law: A Celebration

April 11, 2008 (Friday)

John Jay College of Criminal Justice (CUNY) (59th Street and 10th Avenue—near Lincoln Center in Manhattan)



Conference Organizer and Contact Person: Andrew Majeske, ajmajeske@gmail.com



This conference aims to bring scholars of literature and law into an interdisciplinary setting to share the fruits of their research and scholarship. The conference celebrates the restoration of John Jay's English major with its unique literature and law emphasis.



The conference's keynote speaker is Brook Thomas, a noted literature and law scholar and Chancellor's Professor at the University of California Irvine. His most recent book, just published by UNC Press, is Civic Myths: A Law-and-Literature Approach to Citizenship.



We are in negotiations with the journal Law and Literature to publish full versions of the best of the papers presented at the conference in a special symposium issue.



A limited number of "Daily Show" or "The Colbert Report" tickets may be available (we are still working on this) for the evening before the conference (Thursday April 10 th) on a first-come, first-served basis. These shows are taped in studios only a few blocks walk from John Jay.



We invite papers dealing with any aspect of literature and law, including papers which might address some of the following:

-Convict narratives

-Treason

-Mercy and equity

-The reasonable man/person standard

-Natural, divine, and positive law

-Legal standards and presumptions

-Fictional evidence

-Proportionality and punishment

-Fairness versus equality

-Reasonable Doubt

-Lady Justice

-Blasphemy and censorship

-The legal fiction of an era



Please submit abstracts (250 words or less) to Andrew Majeske, ajmajeske@gmail.com, by Friday, January 18, 2008.

Law and Literature in U. S. Courts

John DeStefano III has published "On Literature as Legal Authority," at 49 Arizona Law Review 521 (2007). Here is the abstract.

This Note surveys the courts' use of poetry, fiction, and drama to develop substantive law. Combining premises of legal realism and literary criticism, the Note rejects the position held by Judge Posner and other critics that literature is too subjective to offer the law legitimate substantive guidance. As caselaw examples demonstrate, the subjectivity of great writing can provide judicial opinions with a unique view to the complexity of life.

Download the entire Note from SSRN here.

Independent Women in Eighteenth and Nineteenth Century English Literature

Nicola Lacey, London School of Economics, Law Department, has published "From Moll Flanders to Tess of the d'Urbervilles: Women, Automony, and Criminal Responsibility in Eighteenth and Nineteenth Century England," as LSE Legal Studies Working Paper No. 5/2007. Here is the abstract.

In the early 18th Century, Daniel Defoe found it natural to write a novel whose heroine was a sexually adventurous, socially marginal property offender. Only half a century later, this would have been next to unthinkable. In this paper, the disappearance of Moll Flanders, and her supercession in the annals of literary female offenders by heroines like Tess of the d'Urbervilles, serves as a metaphor for fundamental changes in ideas of selfhood, gender and social order in 18th and 19th Century England. Drawing on law, literature, philosophy and social history, I argue that these broad changes underpinned a radical shift in mechanisms of responsibility-attribution, with decisive implications for the criminalisation of women. I focus in particular on the question of how the treatment and understanding of female criminality was changing during the era which saw the construction of the main building blocks of the modern criminal process, and of how these understandings related in turn to broader ideas about gender, social order and individual agency.

Download the entire paper from SSRN here.

Linguistics and Law: Spanish-Language Radio, Law, and Politics

Ernesto Hernandez Lopez, Chapman School of Law, has published "Law and Popular Culture: Inter-American Explorations into Columbian Slang and Spanish Language Radio in the U.S." in volume 19 of Berkeley La Raza Journal (2007). Here is the abstract.

This article argues that critical analysis of popular culture themes benefits legal scholarship by providing distinct cross-border perspectives and illuminating popular resistance efforts to hegemonic forces. This examination occurs in an Inter-American context, characterized by a south-north dynamic and migration's transnational influence. In these dynamics, there is significant popular resistance and anti-subordination to hegemonic forces. Legal scholarship often overlooks this by focusing on formal legal texts and processes. This resistance is visible within popular culture, as part of “hidden transcripts.”

This article makes two claims about popular culture's relevance, one methodological/theoretical claim and one substantive claim. First, observing how popular culture reflects societal interpretations of the law and politics greatly benefits the scholarly objectives of international research by promoting an exchange across national borders with an appreciation for different perspectives. Second, critically exploring popular culture illuminates how resistance and anti-subordination efforts often exercised by popular sectors, civil society, or Southern countries may be represented in this culture. As evidence of this, Colombian slang and Spanish radio in the U.S during 2006 immigration demonstrations are examined as two popular culture examples. This article incorporates theoretical innovations from law and popular culture scholarship, Latin American cultural studies such as Néstor García Canclini's work, James Scott's “arts of resistance” and “hidden transcripts,” and post-colonial theory.

Download the entire article from SSRN here.

Representations of Law in Ancient Athens

Adi Parush, Ben-Gurion University of the Negev, has published "The Courtroom as Theater and the Theater as Courtroom in Ancient Athens." It appears in volume 35 of the Israel Law Review (Spring 2001). Here is the abstract.

However, following a seminar I gave dealing with several philosophical-legal aspects of Greek tragedy, and an article I wrote about the relationship between the concept of guilt in Oedipus Tyrannus and the principle of strict liability in modern criminal law, I have found myself in recent years becoming increasingly interested in the unique culture which emerged in Athens during the classical period, particularly in the 5th century BCE. In order to clarify the roots of this unusual love, it is important first of all to emphasize the great significance of confrontation, contest and competition in Athenian culture, the agonal element in the culture of ancient Athens. Naturally, the parties confronting each other in a courtroom today also make an all-out effort to find ways of enlisting the sympathy of the judges who are to determine their fate, and undoubtedly they also try to influence the judges in ways reminiscent of actors in a theater performance, but I think that the theatrical element in the debates taking place in the courtrooms of classical Athens was stronger than that which typifies the debates at our trials, owing to the specific modus operandi of the Athenian legal system. Regarding this point we may thus say that the speech writers served not only as some kind of playwright, responsible for the words spoken by the parties in the courtroom, but also as director orchestrating the performance. Therefore each actor in the tragedy played several roles, and since the actors were all men, they also acted the roles of the women in the plays.

Download the entire article from SSRN here.

Do Magicians Need IP Law, or Does IP Law Need Magic?

Jacob Loshin has published "Secrets Revealed: How Magicians Protect Intellectual Property Without Law." This paper in revised form will appear as an essay in the book Law and Magic: A Collection of Essays, edited by Christine Corcos and published by Carolina Academic Press (2008). Here is the abstract.

Intellectual property scholars have begun to explore the curious dynamics of IP's negative spaces, areas in which IP law offers scant protection for innovators, but where innovation nevertheless seems to thrive. Such negative spaces pose a puzzle for the traditional theory of IP, which holds that IP law is necessary to create incentives for innovation.

This paper presents a study of one such negative space which has so far garnered some curiosity but little sustained attention - the world of performing magicians. This paper argues that idiosyncratic dynamics among magicians make traditional copyright, patent, and trade secret law ill-suited to protecting magicians' most valuable intellectual property. Yet, the paper further argues that the magic community has developed its own set of unique IP norms which effectively operate in law's absence. The paper details the structure of these informal norms that protect the creation, dissemination, and performance of magic tricks. The paper also discusses broader implications for IP theory, suggesting that a norm-based approach may offer a promising explanation for the puzzling persistence of some of IP's negative spaces.

Download the paper from SSRN here.

A Theory of Adjudication: Law as Magic

Jessie Allen, New York University School of Law, has published "A Theory of Adjudication: Law as Magic." This paper in revised form will appear as an essay in the forthcoming book Law and Magic: A Collection of Essays, edited by Christine Corcos and published by Carolina Academic Press (2008). Here is the abstract.

This article takes a new approach to the problem of legal rationality. In the 1920s and 1930s the Legal Realists criticized judicial decisions as “magic solving words” and “word ritual.” Though the Realist critique continues to shape American jurisprudence, the legal magic they observed has never been seriously explored. Here, drawing on anthropological studies of magic and ritual, I reconsider the irrational legal techniques the Realists exposed. My thesis is that the Realists were right that law works like magic, but wrong about how magic works. That is, they were right that adjudication makes use of a particular combination of techniques – enacting performances, heightened formality, transformative analogy, performativity, temporal play – that is also found in ritual magic. But they were wrong that those techniques necessarily preclude rational decisionmaking. Drawing on the insights of field anthropology, I theorize legal magic as an authentic mode of legal practice. After considering the different aspects of legal magic and the Realists' critique, I propose three potential roles for legal magic: as a way to imbue official legal decisions with the affective moral force of lived experience, as an institutional practice that may enhance judicial impartiality, and as a method for symbolically reversing otherwise irreparable injuries. I hope that my reanalysis of legal magic can provide a new perspective on the relationship of law and reason, illuminate undertheorized aspects of law and contribute to a more concrete and nuanced understanding of adjudication's social role.

Download the paper from SSRN here.

Linguistics and Trademark Law

Graeme B. Dinwoodie, Chicago-Kent College of Law, has published "What Linguistics Can Do for Trademark Law," in INTERDISCIPLINARY PERSPECTIVES ON TRADE MARKS, J. Ginsburg, L. Bently, J. Davis, eds., Cambridge University Press, 2007. Here is the abstract.

This contribution to an inter-disciplinary book on Trademarks and Brands responds to the work of Alan Durant, a linguist who (in his chapter of the book) provides legal scholars with both a rich understanding of how linguists view terms that are part of the basic argot of trademark law and a potentially vital explanation of the different social functions that word marks might serve. The Response explains why linguistics should matter to trademark law, but also why trademark law might on occasion ignore the precise reality of consumer understanding as might be provided by linguistics. I suggest that, while trademark law should not become beholden to linguistics, the lessons of Durant's linguistic analysis are to some extent already accommodated in the practice of trademark law, and could be important guides in the further development of a number of legal principles. In particular, I explain how trademark law does in large part take into consideration Durant's observation that legal analysis would comport more with the reality of how words function if it focused on marks as they are used. The Chapter also argues that Durant's exploration of the concepts of “distinctiveness” and “descriptiveness”, as understood by lawyers and linguists, respectively, should reinforce important lessons for legal scholars about the complex policy prescriptions embodied in those concepts. Finally, I argue that particular insights developed by Durant from the field of linguistics may prove valuable in illuminating several points of contention in contemporary trademark law. In particular, Durant stresses that determining whether a defendant's use has evoked the source-identifying aspect of plaintiff's mark, as opposed to the descriptive properties of that term, can only be done by analyzing the “discourse 'setting' in which interpretations are constructed.” Thus, although the type of use should be relevant to assessing infringement, any analysis of use type must be highly contextualized. This insight should inform the choice of doctrinal vehicles by which trademark law establishes limits on the scope of protection.

Download the paper from SSRN here.

Fletcher on Faulkner and "Red Leaves"

Matthew L.M. Fletcher (Michigan St. Univ. College of Law) has posted his new paper, Red Leaves and the Dirty Ground: The Cannibalism of Law and Economics, on SSRN. From the abstract:

William Faulkner's short story, Red Leaves, is a classic tale of cannibal, slave-and-plantation-owning Indians in the antebellum South. These Indians were figments of Faulkner's imagination that he used as a literary tool to critique the South -- and perhaps America. But Red Leaves is also a tale of economic theory, with these fictional Indians making a serious effort (in a fantastical setting) to analyze slavery and cannibalism from an economic perspective. My paper, prepared for the 4th Annual Indigenous Law Conference at Michigan State University College of Law, argues that Faulkner's stark portrayal of Indian people offers both a means of reconsidering Indian affairs policy and critiquing the emerging use of the law and economics method of study to analyze and even decide Indian law cases.

Papke on 12 Angry Men

David Ray Papke, Marquette University Law School, has published "12 Angry Men Is Not an Archetype," in the Marquette University Law School Legal Studies Paper 07-08. Here is the abstract.

Fifty years after its initial release, 12 Angry Men (1957) remains an important cinematic and political work. But alas, 12 Angry Men is fundamentally atypical as a pop cultural portrayal of the jury. In the standard portrayal individual jurors do not come alive as characters. They are seen in the courtroom rather than in the deliberation room. And, most importantly, the jury does not emerge as a symbol for the larger democratic process and concomitant rule of law. Assuming that popular culture indirectly indicates the public's attitudes and expectations, the flat, uninspiring portrayal of juries in contemporary American popular culture may indicate the public's abandonment of the idea that juries are important manifestations of popular sovereignty.

Download the entire paper from SSRN here.

The Future of Reputation: Gossip, Rumor, and Privacy on the Internet

I'm very excited to announce that my new book, The Future of Reputation: Gossip, Rumor, and Privacy, is now hot off the presses! Copies are now in stock and available on Amazon.com and Barnes & Noble's website. Copies will hit bookstores in a few weeks.

From the book jacket:

Teeming with chatrooms, online discussion groups, and blogs, the Internet offers previously unimagined opportunities for personal expression and communication. But there’s a dark side to the story. A trail of information fragments about us is forever preserved on the Internet, instantly available in a Google search. A permanent chronicle of our private lives—often of dubious reliability and sometimes totally false—will follow us wherever we go, accessible to friends, strangers, dates, employers, neighbors, relatives, and anyone else who cares to look. This engrossing book, brimming with amazing examples of gossip, slander, and rumor on the Internet, explores the profound implications of the online collision between free speech and privacy.

Daniel Solove, an authority on information privacy law, offers a fascinating account of how the Internet is transforming gossip, the way we shame others, and our ability to protect our own reputations. Focusing on blogs, Internet communities, cybermobs, and other current trends, he shows that, ironically, the unconstrained flow of information on the Internet may impede opportunities for self-development and freedom. Long-standing notions of privacy need review, the author contends: unless we establish a balance between privacy and free speech, we may discover that the freedom of the Internet makes us less free.

For quite some time, I've been thinking about the issue of how to balance the privacy and free speech issues involved with blogging and social networking sites. In the book, I do my best to propose some solutions, but my primary goal is to spark debate and discussion. I'm aiming to reach as broad an audience as possible and to make the book lively yet educational. I hope I've achieved these goals.

The book discusses wide-ranging and eclectic topics —social networks, tipping points, psychology, norms, colonial shaming punishments, literature, privacy and defamation law, the rise of the newspaper, the history of dueling, and traders in the Mediterranean during the eleventh century. Of course, given my love of literature, I quote a lot from various literary works.

I welcome any feedback. Please let me know what you think of the book, as I'd be very interested in your thoughts.

A Blog Devoted to Harry Potter

HogswartsProfessor.com is a blog devoted to Harry Potter. Check it out here.

Law and Literature in the Undergraduate Curriculum

Robin Lister, University of Bradford, presents a case for teaching Law and Literature in the undergraduate curriculum, in "Law and Literature and the LLB: An Apology for Poetry in the Undergraduate Law Curriculum." It was presented at the Learning in Law Annual Conference, UK Centre for Legal Education, University of Warwick, January 2007. Here is the abstract.

A survey of UK law schools suggests that only 'three or four' offer Law and Literature as an optional subject on their Qualifying Law Degrees (Harris & Beinart, 2005). This number seems surprisingly low, given the proliferation of Law and Literature literature since the emergence of this distinctive approach to thinking about law in the US in the 1970s, the widespread availability of Law and Literature courses in US law schools, and the advocacy of Law and Literature studies on law degrees by a number of UK academics throughout the 1990s (for example, Lee, 1990; Aristodemou, 1993; Ward, 1993; Bradney, 2000).

Download the entire paper from SSRN here.

Cross posted to The Seamless Web.