March 31, 2008

Jeanne L. Schroeder, Cardozo School of Law, reviews William MacNeil's new book Lex Populi in a Cardozo Legal Studies Research Paper. Here is the abstract.
William MacNeil's book is that rarest of rarae aves - a serious legal study that is fun to read. As its name implies, the book examines 'people's law' or, more loosely, 'pop law' - law as reflected by contemporary popular culture. More precisely, MacNeil shows how popular culture can give us insights into both lay (mis)understandings of law as well as lofty jurisprudential theory.

What distinguishes this work from many law-and-literature studies is not just his choice of texts. MacNeil avoids literature and cinema in favor of mass market entertainment and cult favorites. MacNeil's point is that the scope of law cannot be confined to the legal. Following the European tradition of speculative theory, he sees law not as an autonomous field, but as an inherent and essential part of the symbolic - the social or intersubjective order that also includes language and sexuality. Law is not that which goes on in courts, but that which structures both social relationships and subjectivity.

As such, the symbolic order, which includes law, does not merely rule our trials and behavior, it inhabits our fantasies and haunts our nightmares. To know ourselves we must understand law, and vice versa. One way we can glimpse both is in the vulgar, everyday entertainments that occupy so much of our imagination and waste so much of our time.

Download the entire paper from SSRN here.

The Meaning of Rap

Andrea Dennis, University of Kentucky College of Law, has published "Poetic (In)Justice? Rap Music as Art, Life and Criminal Evidence" in volume 31 of Columbia Journal of Law and the Arts (2007). Here is the abstract.
Courts routinely admit defendant-authored rap music lyrics as substantive evidence in the adjudication of criminal cases. In doing so, courts fail to recognize that rap music lyrics are art. Rather, judges view the interpretation of rap music lyrics as a subject of common knowledge, interpret the defendant's lyrics literally, and characterize lyrics as autobiographical depictions of actual events. In making admissibility decisions, courts must give consideration to the social constraints and artistic conventions impacting the composition and interpretation of rap music lyrics. More particularly, they must understand the commercialized nature of the rap music industry, artist claims of authenticity, and the use of poetic devices such as metaphor, boasting, perspective, and narrative. Likewise, jurors must be informed of such information when tasked with evaluating the weight of such lyrical evidence. Factoring this information into the admissibility analysis reveals that courts are admitting artistic evidence masquerading as real-life events, impermissible evidence of character and propensity, and unfairly prejudicial evidence. To avoid these problems, I suggest that courts considering admission of rap music lyrics written by defendants should determine the meaning of the lyrics from the artistic perspective of the defendant-lyricist as well as permit the defense to offer judges and jurors expert testimony respecting the composition of rap music lyrics. This approach can operate within the current system of evidence rules and balances the interests of defendants, the prosecution, and society.

Download the paper from SSRN here.

March 19, 2008

Weisberg On Law and Literature

Richard Weisberg, Cardozo Law School, has published "Law and Literature as Survivor," as Cardozo Legal Studies Research Paper No. 221. Here is the abstract.
While human rights lawyers from Nuremberg on tried to respond to the evils of Hitler's Europe with cautious directness, humanistic theorists in the post-modernist modes of the post-war period resisted all generalizations, including the establishment of legal norms through international codes of law. Addressing with some admiration the Holocaust-related later works of Geoffrey H. Hartman and (with less reverence) the anti-code and largely antinomian writings of Paul de Man and Jacques Derrida, this essay places in opposition the code-identifying and code-evaluating work of Law and Literature to that of the always equivocated writings of these deconstructionists for whom every grand narrative and every attempt to base act and choice on precedent was anathema. Although Hartman's aversion to all generalization is ethically sound considering the damage caused by Hitler's blunt and conclusory rhetoric, this essay relies on work about legal discourse during the Holocaust to indicate that this aversion emerges from a mis-placed logic about how institutions managed to adjust their ingrained beliefs and practices to such grotesque pronoucements.

More skeptical perhaps of complexity for its own sake, Law and Literature studies tend to locate codes (public or private, written or unwritten) within the great stories of the law and then unabashedly to value those codes in the Nietzschean sense as good or bad, justice-serving or reactionary. Discourse confronts ethical dilemmas - including those still unresolved six decades after the Holocaust - and to speak of them through a direct language of choice that often informs the canonical narratives we study.

Download the paper from SSRN here.

March 13, 2008

Teaching Meaning Through Narrative

Paula L. Abrams, Lewis & Clark Law School, has published "We the People and Other Constitutional Tales: Teaching Constitutional Meaning Through Narrative," at 41 The Law Teacher 247 (2007). Here is the abstract.
The narratives associated with a landmark constitutional case, including the socio-political struggles that give rise to the dispute and the resulting litigation, are an important, and overlooked, aspect of constitutional understanding. An examination of these narratives can elucidate circumstances that have been overlooked in the formalized articulation of constitutional norms. It can provide a more nuanced understanding of the conflict, and, in some instances, an altered interpretation of doctrine. Traditional legal education typically omits any substantial consideration of the external historical events that give rise to landmark cases. The omission of these external narratives may serve to distort the doctrinal complexity of major cases. This article demonstrates the significance of narrative by examining five stories describing a significant U.S. Supreme Court case, Pierce v. Society of Sisters. These stories illuminate the impact of contextual narrative upon constitutional meaning. The paper argues that contextual narrative should be incorporated into the teaching of constitutional doctrine to ensure a more accurate understanding of constitutional meaning. The article explores various methods of teaching Pierce to demonstrate the marked difference between the highly formalized analysis typical of conventional legal education and the multi-faceted legal, political, and social comprehension gained through contextual narrative.

Download the entire article from SSRN here.

The Place of Stories

Nancy Levit and Allen K. Rostron, University of Missouri School of Law, have published "Calling for Stories," at 75 UMKC Law Review 1127 (2007). Here is the abstract.
Storytelling is a fundamental part of legal practice, teaching, and thought. Telling stories as a method of practicing law reaches back to the days of the classical Greek orators. Before legal education became an academic matter, the apprenticeship system for training lawyers consisted of mentoring and telling war stories. As the law and literature movement evolved, it sorted itself into three strands: law in literature, law as literature, and storytelling. The storytelling branch blossomed.

Over the last few decades, storytelling became a subject of enormous interest and controversy within the world of legal scholarship. Law review articles appeared in the form of stories. Law professors pointed out that legal decisions were really stories that told a dominant narrative. Critical theorists began to tell counterstories to challenge or critique the traditional canon. Some used fictional stories as a method of analytical critique; others told accounts of actual events in ways that gave voice to the experiences of outsiders.

Storytelling began to make its way into legal education in new ways. For instance, a major textbook publisher developed a new series of books that recount the stories behind landmark cases in specific subject areas to help students appreciate not only the players in major cases, but also the social context in which cases arise. Meanwhile, Scott Turow, John Grisham, and a legion of other lawyers invaded the realm of popular fiction and conquered the bestseller lists.

Legal theorists began to recognize what historians and practicing lawyers had long known and what cognitive psychologists were just discovering the extraordinary power of stories. Stories are the way people, including judges and jurors, understand situations. People recall events in story form. Stories are educative; they illuminate different perspectives and evoke empathy. Stories create bonds; their evocative details engage people in ways that sterile legal arguments do not.

The UMKC Law Review plans to devote a section of one issue each year to stories. The Law Review is interested in publishing stories about personal experiences or lessons learned in legal practice, unique clients or enlightening client interactions, or enlightening episodes in legal education. In this introductory issue of the UMKC Law Review's stories section, we have been fortunate to collect stories from some of the founding parents of the storytelling movement and some of its best contemporary practitioners.

Download the entire article from SSRN here.

March 12, 2008

Literature and Law Conference at John Jay College of Criminal Justice

John Jay College of Criminal Justice (CUNY) is holding a one day conference entitled "Literature and Law" on Friday, April 11, 2008 on its campus at 899 Tenth Avenue (between 58th and 59th Streets). The conference will celebrate the imminent restoration of John Jay's English major, which will have a unique literature and law emphasis.

The Conference's keynote speaker will be 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.

Also addressing the Conference will be Richard Weisberg, a professor at Cardozo Law School, and one of the founders of the law and literature movement.

The Conference will include eight paper panels and two round table discussions, and will end with a reception sponsored by the Law and Literature Journal. A conference schedule and registration information can be accessed here.

An application is pending with the New York State Continuing Legal Education Board to obtain CLE Credit for this conference in the area of Ethics and Professionalism.

March 11, 2008

Precious Ramotswe, the TV Star

Alexander McCall Smith's novels are headed for the small screen. The No.1 Ladies Detective Agency will star Jill Scott as Precious Ramotswe, the thoughtful sleuth of Mr. Smith's series. Meanwhile, Mr. Smith, a former professor of medical law, is still writing. He has just finished his eighth book in the Ladies Detective Agency series,and has three other series underway: the 44 Scotland Street series, the Sunday Philosophy Club series, and the Von Igelfield Series. Visit his website here.

March 10, 2008

Journalism and Murder

The Guardian considers how journalists today present murderers, and may, with hindsight, tend to exaggerate the circumstances of their everyday lives.
Different newspapers emphasise different aspects....The Guardian, for example, ran "profiles" of Wright and Dixie. The first "lived in a world that centred around his local pub and golf club, where regulars knew him as a quiet, unassuming guy who dressed well". Dixie was known "as an ordinary guy" whose latest girlfriend recalled "a 'normal' sex life, which occasionally got 'a bit rough' but nothing more".At the other extreme, red-top papers emphasise the abnormality of a murderer. Words such as evil, monster, beast, sick, vicious, brute, and fiend are scattered randomly, as though to ward off evil spirits. Anything that might seem ordinary is given sinister connotations. The stuffed toys in the bedroom Wright shared with his partner are "bizarre"; a front door isn't just a front door but "an entry to evil". Past relationships are portrayed as dysfunctional. After Bellfield's conviction, the News of the World featured a former partner who suffered "10 years of horror", while the Sunday Mirror had his daughter recalling how he "gave her vodka to drink at 10 ... and mustard powder to eat".

The piece contrasts George Orwell's comments on murder in a 1946 essay published in News of the World with what reporters write today. A thoughtful piece.

Another "Saint" Series?

Nehst Studios is backing a new take on a television version of "The Saint", the character created by Leslie Charteris (Leslie Charles Bowyer-Yin), and first brought to life on the small screen by Roger Moore (later to inherit the mantle of ("Bond. James Bond"). Actor James Purefoy might personify The Saint (Simon Templar) this time around. Prior to tv, of course, the character appeared in a number of films, and in 1997 Val Kilmer essayed the title role. The Saint character recalls Robin Hood, taking from the rich and giving to the poor, righting wrongs and doing justice behind the scenes. However, he does so in an extremely selective fashion. And the Saint has, as the British would say, a very dodgy past, unlike Robin Hood, who in many retellings is presumed to be a nobleman, hiding his real identity from the Sheriff of Nottingham. Here's a page devoted to The Saint.

Read more here in a story from The Hollywood Reporter (registration required).

March 4, 2008

Magna Carta Back On Display In DC

The AP notes that that copy of Magna Carta previously owned by Ross Perot, and auctioned for more than $21 million last year, is back on display at the National Archives. The purchaser, David Rubenstein of the Carlyle Group, has put it on permanent loan for the nation to enjoy.

Forthcoming Conference on Literature and Law at John Jay College of Criminal Justice

From Andrew Majeske comes this announcement:



8:15-9:00 Check in & Registration. Continental Breakfast.

9:00-10:15 First Set of Panels

First Panel: Justice Beyond Law, Panel Chair Bettina Carbonell, John Jay College of Criminal Justice (Room 636)

Dianna George, Carleton University, Canada, "Bear Experience: the power of ursus major in Cree life"

Brian Lockey, St. John's University, "Equitie to measure: Conscience among the Amazons in Edmund Spenser's The Faerie Queene measure":

Mina Suk, Johns Hopkins University, "Mercy's Madness: Spectatorship in St. Augustine's Confessions

Second Panel: Crime & Fiction, Panel Chair: Caroline Reitz, John Jay College of Criminal Justice, English Department (Library Classroom)

Lynn Penrod, University of Alberta, "What We Learn About Culture When We Talk About Procedure: Italian Police Procedurals and Their Place in Contemporary Italian Culture"

John Barton, University of Missouri-Kansas City, "Antebellum Crime Fiction and the Anti-Gallows Movement"

Neil C. Sargent, Carleton University (Department of Law), Ottawa, Canada "Truth, Justice and Method: The Representation of Rationality in the Fictional Worlds of Sherlock Holmes and Sam Spade"

Third Panel: Rights, Power & Resistance, Panel Chair: Allison Pease, John Jay College of Criminal Justice (Room 630)

Monica Lott, The University of Akron, "Funeral Practices of the 1930s and the Resultant Power Structures as Reflected in The Grapes of Wrath"

Chris Brown, University of Maryland, "'In the Name of Many Slaves': The Right to Petition and the Beginning of the Black Literary Tradition."

Alicia Mischa Renfroe, Middle Tennessee State University, "Leaving Justice to Chance: Gendered Justice in Edith Wharton's The Reef"

10:15-10:30 Coffee/Tea Break

10:30-11:45: Second Set of Panels/Discussions

First Panel: Law & Society, Chair: Professor Kyoo Lee, John Jay College of Criminal Justice (Room 636)

Thomas O. Beebee, Pennsylvania State University, "Can Law-and-Humanities Survive Systems Theory?"

Sinkwan Cheng, John Jay College of Criminal Justice, "Rethinking Autonomy and Heteronomy in a Global Context: Paul, Hegel, Badiou, and Confucius on the Fulfilment of the Law."

Bennett Capers, Hofstra Law School, "On Justitia, Race, Gender, and Blindness"

Second Panel: Staging the Law, Panel Chair: Margaret Tabb, John Jay College of Criminal Justice (Room 630)

Dwight Watson, Wabash College, "The Lawyer as Storyteller: Modes of Persuasion in the Courtroom and on the Stage."

Harry Keyishian, Director, Fairleigh Dickinson University Press "Shakespeare, Genre, and Punishment Theory"

Robin Stewart, University of California, Irvine, "Richard II and the English Constitution: A Literary-Legal Casebook"

Roundtable Teaching Literature and Law to Undergraduates: Methods and Objectives: Panelists: TBA (Library Classroom)

11:45-12:45: Lunch Room 610

12:45-1:00 Address by President Jeremy Travis, John Jay College of Criminal Justice, Room 630

1:00-1:30 Professor Chris Suggs, John Jay College of Criminal Justice: Introductory Remarks, Room 630

Professor Richard Weisberg, Benjamin Cardozo School of Law: Title of Talk TBA

1:30-1:45 Break

1:45-3:00 Third Set of Panels/Discussions

First Panel: Comparative Law, Panel Chair: TBA (Room 630)

Basuli Deb, Quinnipiac University, "Macaulay, Manu, and Writing Justice for Indian Women: Marital Rape in the Life Writings of Phoolan Devi"

Patrick Lenta, University of KwaZulu-Natal, South Africa, "Law, Police, Violence: Subject Formation and Resistance in Bloke Modisane's Blame"

Oluwole Coker, University of Ibadan, Nigeria , and Adesina Coker, Obafemi Awolowo University, Ile-Ife, Nigeria, "Folklore As 'Folklaw' In Yoruba Indigenous Epistemology"

Second Panel: Law, Nation & Empire, Panel Chair: Professor Chris Suggs, John Jay College of Criminal Justice (Library Classroom)

Peter Leman, University of California, Irvine, "Lex Britannica:

Empire, Positive Law, and Augusta Webster's The Sentence."

Edward Plough, Purdue University, " "Shakespearean Idiots and Prerogativa Regis: A Study of the Connection Between Elizabethan Law and Shakespeare's Poetic Strategy."

Yofi Tirosh, New York University Law School, "Narratives of Law and Hard Times: How Judicial Conceptions of the Nation's Time Shape the Law."

Roundtable: Literature and Law: What Texts Should We Be Using? Panelists: TBA (English Department Conference Room – Room 1281, North Hall)

3:00-3:15 Break

3:15-4:15: Keynote Address: Professor Brook Thomas, UC Irvine, "The Legal and Literary Complexities of US Citizenship around 1900." Room 630

4:15-5:15: Reception Sponsored by the Law and Literature Journal (published by the University of California Press for the Benjamin Cardozo School of Law): Room 610


March 3, 2008

The Development of U. S. Obscenity Law

Stephen Gillers, New York University School of Law, has published "A Tendency To Deprave and Corrupt: The Transformation of American Obscenity Law From Hicklin to Ulysses II," in volume 85 of the Washington University Law Review (2007). Here is the abstract.
How is it that between 1922 and 1934, James Joyce's Ulysses, considered the greatest English language novel of the twentieth century, could not get published in the United States without risk of prosecution and jail? How did American law get its ideas about obscenity and censorship so wrong? This Article closely analyzes the facts and the reasoning, or lack of reasoning, in R. v. Hicklin, the Queen's Bench decision of 1868 whose throwaway single sentence defining obscenity was reflexively adopted by American courts and became the greatest legal impediment to artistic freedom in the United States for nearly a century. The Article traces Hicklin's influence in the United States through the first third of the twentieth century. Using archival and other sources, it then closely examines the first court test of a part of Ulysses, in New York in 1920-21, a case that might have been won, but ended in the obscenity convictions of two women who published an obscure literary magazine. Their convictions impeded publication of the book until Morris Ernst's brilliant legal strategy gave his client, Random House, confidence that it could publish Ulysses in the United States without fear of prosecution. While the district court decision in Ernst's favor is rightly applauded for freeing Ulysses, the judge's reasoning does not resemble anything we can recognize as law. It is a decision for one book only. Even Augustus Hand's opinion for the Second Circuit affirming Ernst's victory, which cousin Learned joined and which contains the seeds of modern obscenity doctrine, required some jurisprudential sleight of hand to escape unfavorable circuit and Supreme Court precedent. The story from Hicklin to Ulysses II is both riveting in itself and as legal and cultural history. But it is also a lesson about harm done when government interferes with the intellectual and personal autonomy of individuals.

Download the entire Article from SSRN here.

The Last Enemy: A New BBC Thriller

Peter Tatchell of The Guardian reviews the BBC1 series The Last Enemy, finding it a cautionary tale.
Like millions of other viewers, I was gripped last night by the latest plot twists in BBC1's thriller series The Last Enemy, which depicts the dystopian future of a complete surveillance society, where everyone is data-based, ID-carded and CCTV-monitored 24/7. It is Big Brother writ-large, with all-pervasive remote sensors, facial recognition software, iris scans, vehicle tracking and eavesdropping.

Through an integrated Total Information Awareness surveillance system, state agents can know almost everything about everyone at the tap of a keyboard: their movements, purchases, emails and phone calls - even their diet, income and house value.

Far-fetched? Only by degrees. What is really scary about The Last Enemy is that it features monitoring technologies that the government, police and intelligence services are already using or considering using.

Read the entire review here.

[Cross-posted to the Seamless Web].

Eli Stone

A Review by Michael Asimow, Professor of Law Emeritus, UCLA School of Law

In the ABC television series that bears his name, Eli Stone is a senior associate at a large San Francisco law firm. He appears to be a competent attorney and, until recently, was highly valued by the firm. He’s engaged to Taylor Weathersbee, the daughter of the senior partner. Taylor is also a lawyer at the firm. Recently, however, Stone has learned he has a brain aneurysm and his behavior has become highly erratic. He frequently has scary delusions at work, such as being drawn into WW II battles or being attacked by small planes. His acupuncturist hasn’t figured out how to cure the delusions but thinks Stone is in fact a prophet.

OK, that’s the premise. How’s the execution? In my personal opinion, the show is horrendous. The writing is clunky, the jokes aren’t funny, and the acting is terrible. Taylor looks more like a Barbie doll than a human being. I don’t believe anybody will care about Eli Taylor and his aneurysm, or any of the other characters, so the show fails to create the necessary empathy between viewers and characters. The delusion jokes (he dives under the conference table during a partners’ meeting to avoid being attacked) weren’t funny the first time around and are excruciating each time they’re repeated. (For balance, I do think the role of Eli’s secretary Patti is well written and acted, and quite funny).

I believe “Eli Stone” was inspired by the highly successful “Ally McBeal” series. If you liked Ally, you just might like “Eli Stone” because of the fantasy delusion scenes and the heavy use of contemporary music. But if you disliked “Ally McBeal” as I did, you’ll hate “Eli Stone”—both the character and the series—which has none of the winning characters, excellent acting, or overall quirkiness of the “Ally” series.

Now there’s the question of accuracy. Nobody expects a TV series or a movie about lawyers to be accurate. Pop culture is intended to entertain, amuse, and make money. The work of real lawyers is indescribably boring almost all of the time and nobody wants to see a TV show that accurately describes it. Sometimes entertainment has to trump accuracy. But there are limits. And this show transgresses them.

In the first episode, Eli switches sides in the middle of a product liability case when he realizes that the plaintiff is an old girlfriend. He represents her against his own firm, freely using the information he learned from representing the defense, and obviously without seeking the permission of the pharmaceutical company he’s been representing. The writers liked that gimmick so much they repeat it in the third show in which Eli suddenly starts representing the mother in a child custody case in which Taylor represents the father. Of course, everyone accepts these conflicts without blinking. Now if the writers asked Eli Stone to fly to the moon on gossamer wings while investigating a case, most people would say, hey, that’s really stupid. Lawyers don’t do that. And these conflicts of interest in the first and third episodes are in that category. They are so beyond anything imaginable that they are just plain stupid. And that’s without counting the second episode in which a workers’ comp case is tried to a jury.

I like lawyer pop culture, and wish I could find something favorable to say about “Eli Stone”—the show or the character—but I just can’t. I t seems pretty obvious to me that this show won’t find an audience and will vanish unmourned into that vast rubbish bin of failed and forgotten TV series. But then, I said the same thing about “Ally McBeal,” so what do I know?

Eli Stone

Several entertainment critics have already reviewed Eli Stone, ABC's new legal drama, and find it either "quirky" and original, or run of the mill, or truly awful. I vote for truly awful, for a number of reasons.

Eli Stone is an associate at a white shoe firm in San Francisco, rapidly on the way up, engaged to the boss's daughter. Everything looks great. Then he starts seeing and hearing things, and his life falls apart. In an attempt to keep control, he refuses to tell his managing partner about the problem, which turns out to be an inoperable brain aneurysm (his brother, the doctor, gives the diagnosis. If I had been the patient, much as I love and trust my brother, I would have gone for a second opinion. And then a third). The condition causes hallucinations that make it nearly impossible for him to work, causing all sorts of havoc for him and his clients, and ultimately the firm. While we are, I suppose, supposed to find his visions meaningful--he certainly does--I would be profoundly disturbed to discover that MY attorney was having visions. And I would certainly be unhappy to discover that he hadn't told his firm, and that he was continuing to practice.

First, what seems at first glance to be original about the show has actually been tried, with more success by others, including David E. Kelley. Eli, the lead character, hears voices and music (mostly George Michael's) and sees people and events that aren't there. Remember David E. Kelley's Ally McBeal? She heard and saw things that weren't there. Remember the character of Billy, Ally's old love? He suffered from a brain tumor. Remember John Cage? He loved Barry White. Put them all together and you have Eli's situation. Others have also tried the dramedy musical before Eli Stone, without much success (remember Stephen Bochco's Cop Rock?)

Eli's discovery of his brain aneurysm puts him in a quandary--how long does he have to live? He decides to re-evaluate his life. So far, so good--but the idea that the main character should re-evaluate his life and his beliefs is hardly new. Even the notion that a lawyer, a corporate lawyer (the ultimate symbol of the bad actor, and I mean that figuratively, not literally), should do so in the face of physical stress is hardly new. Think only of the film Regarding Henry.

So many of the supporting characters are cliches. The pretty girlfriend lawyer, even though she seems to be quite nice, is a standard--and she actually dumps him in an early episode when she discovers he's ill. Nasty. The flaky female first year associate is a cliche. When is Hollywood going to forego giving us a choice between capable female lawyers who cannot commit to both relationships and successful careers or idiot female lawyers, by the way? The smart-aleck but capable black female secretary (Loretta Devine, who is wasted in the role) is overdone. The Chinese acupuncturist who isn't really all that Chinese (educated at UC Berkeley and with a fake accent, solely for the cultural tourists)--overdone, and insulting. Even Eli's family is a cliche. He has a brother, who is a physician, and who indulges in his own conflicts of interests (and lies) by certifying Eli as fit for work. Oh dear.

Eli's aneurysm is the McGuffin that sends him out on his intellectual and emotional makeover. After a talk with Dr. Chin, the acupuncurist, he "discovers" that he might be a prophet, singled out to bring hope to the people by taking on the important cases, the ones that matter to the little people. During the discussion he objects that he doesn't believe in God, and Dr. Chin responds, "Sure you do--you believe in right and wrong," in other words, in the natural world, and in people, and in justice. Finally--something vaguely original. By this I mean the outing of Eli. He's a non-believer. Non-believers are not exactly thick on the ground on television these days, and haven't ever been easy to find. I think the last one was Ted Danson's Becker. Of course, the idea is that atheism ultimately is bad, since it's linked with corporate greed. This is something the writers should work on, but probably will not. Equating atheism, and corporate lawyering, and White Shoe law firms, is a cheap shot. Over and over, we get the message from these writers that only spirituality can save Eli, or indeed, anyone, from evil (read "lawyering"). One must believe in something, else one is Bad.

The scripts only get worse. As he gets religion, and discovers he's a prophet, Eli switches sides and represents the downtrodden, regardless of the fact that he's usually conflicted out of such representation. He manages--magically--to win these cases, proving, I suppose, that with right, and the right dose of goodness, on your side, you can win against the bad guys. This may be the message that the viewing audience wants to see and hear these days. It is by no means accurate, and it gives the impression that the "right thinking" lawyer who hear choirs singing but fails to understand the Model Rules does his client a big favor. Eli, whose ongoing conversion should show him the way, does nothing but lie about his health and his motives--to his supervisor, to his girlfriend, to his clients, and to himself. In this week's episode, he's being reported to the disciplinary commission, and none too soon.

I would have thought that this dreadful series would have been cancelled after the second week, but it's still on. I think it's because of the underlying message of religion and redemption. This show is not really about reclaiming the law. It's about reclaiming life. For people who need that message, Eli Stone should serve nicely. For the rest of us, it's back to Boston Legal, and maybe, Shark.

More On Fan Fiction

Jacqueline Lai Chung, William and Mary School of Law, has published "Drawing Idea From Expression: Creating a Legal Space For Culturally Appropriated Literary Characters," in volume 49 of the William and Mary Law Review. Here is the abstract.
This paper examines the influx of secondary creativity involving culturally iconic literary characters (i.e. Harry Potter fan-fiction) and considers whether, and how, copyright law should account for the unauthorized appropriation of these protected literary characters. Traditionally, the courts have held that characters are independently copyrightable if they meet one of two tests: the distinct delineation test espoused by Learned Hand in the Seventh Circuit opinion, Nichols v. Universal Pictures Corporation (1930), or the story being told test put forward by the Ninth Circuit in Warner Brothers Pictures v. Columbia Broadcasting System (1954). These existing standards for character protection focus on the rights and the entitlements of the original author. This paper argues that copyright law should do more to focus on the creative rights of readers, who often seek to employ iconic characters as tools for cultural dialogue and artistic expression. This shift towards readers' rights may require more than just the expansion of fair use principles over a greater number of secondary uses. What is required, more fundamentally, is a re-conceptualizing of the idea of protectibility in the first place. Certain iconic characters, because they are imbued with so much cultural meaning, are no longer singularly-owned forms of authorial expression; they have become, instead, collectively-owned concepts - tools for expression - in a society constantly engaged in creative dialogue. Hence, on the idea/expression continuum that allows copyright protection for expressions but not ideas, culturally-appropriated characters should fall more appropriately into the realm of the unprotected idea, and in this way, allow greater freedom for secondary uses.

Download the paper from SSRN here.

Meanwhile, J. K. Rowling and Warner Brothers are suing Steven Van Ark and his publisher over the Harry Potter Lexicon, a book based on Mr. Van Ark's website, claiming copyright infringement. Ms. Rowling plans to release her own Potterpedia in future. Mr. Van Ark's position is that Ms. Rowling cannot claim to own all works that mention her characters or works. That would bring literary criticism or commentary to a halt. Read more here.

Who's Your Daddy? Jefferson On Trial

William Hyland has published "A Civil Action: Sally Hemings v. Thomas Jefferson," in volume 31 of the American Journal of Trial Advocacy (2007). Here is the abstract.
Allegations that Thomas Jefferson had an affair and fathered at least one child with slave Sally Hemings have been discussed for two centuries. In this Article, the authors summarize a "mock" trial defense of Jefferson, concluding that the allegations are unproved by the greater weight of the evidence.

Download the article from SSRN here.