April 29, 2008
Hart Publishing Launches New Journal on Law and the Humanities
Shakespeare and Real Property
This paper explores how, in Shakespeare‘s sonnets (and in the plays), Shakespeare looks to legal tenure and the mechanics of common-law possession to explore the claim of erotic relation and erotic estrangement on the speaking self and its "self-possession." The connection between land and love that Shakespeare‘s texts deploy, charge and amplify was of some use to the common lawyers themselves. In the erotics of land law, I argue, we thus find a topic whose contours demand an approach to law and literature that respects the law‘s dynamics, as well as the sonnets‘.
Download the article here from SSRN (priced).
April 23, 2008
Law and Justice in Hamlet
The paper addresses questions of legal and political theory concerning the representations of law, sovereign power and justice within Hamlet. I explore how the play can be seen to emphasise the significance of the restraints that can be placed upon the sovereign and Hamlet himself, by natural law and justice. Applying the natural law theories of Shakespeare's contemporaries and John Finnis's modern theory of natural law in particular, I argue that Claudius is an illegitimate figurehead of state and law whose exercise of practical reason and prudentia is flawed, and that his actions cause his law to lack the moral content demanded of law worthy of that name. In part II of the paper, I assess Hamlet's unfulfilled potential as a sovereign lawmaker and consider whether his philosophical, cautious nature would have been apt for this role. In the final part of the paper, I argue that Hamlet's own actions are also open to legal and moral critique. I contend that at the end of the play, Hamlet neglects his duty to the people of Denmark since his killing of Claudius is an act of personal revenge that, at the very most, achieves a crude version of justice, rather than a public act legitimated through law.
Download the paper from SSRN here. (priced)
April 18, 2008
This paper examines the changing forms of trial narratives, between 1750 and 1930, looking in particular at the way in which these mirror changes in the form of the criminal trial and legitimate a certain understanding of the adversarial criminal trial as the pre-eminent symbol of criminal justice. Initially the primary focus is on the political function of the criminal trial and jury, but over the period the focus comes to be the on the character of the participants, and the truths that can be revealed about crime and society through the drama of the law. This process culminates in the emergence of the 'notable trial' in England and Scotland at the end of the century. Through the study of these narratives we can see how the trial was reordered and produced as a new kind of popular spectacle in the latter half of the nineteenth century.
Download the paper from SSRN here.
This essay reviews Spencer Weber Waller's recent biography of the legal realist Thurman Arnold (NYU Press 2005). Arnold's academic and popular writings during the 1930s - which not only critiqued what he saw as the foolishness and ill effects of legal formalism and political conservatism, but also recognized the symbolic authority of legal forms and conservative beliefs and the need for any reform movement to respect and appropriate them - force us to reconsider the entire project of legal biography. Arnold's life and work reveal the ways in which the forces of modernity - forces that Arnold celebrated in his work and helped unleash in the New Deal and at Arnold & Porter - call into question the rugged individual that biography requires. Arnold's critical realist project sought to uncover the historically contingent and ideological nature of the classical liberal conception of the subject who authors his own individual life; but at the same time, the culturalist side of Arnold's work explains why this conception remains necessary, given the symbolic nature of a legal system and the deeply felt needs we have in residual concepts.
Download the entire essay from SSRN here.
April 10, 2008
Papers To Be Presented at the Law & Humanities Interdisciplinary Junior Scholar Workshop
Each year we solicit papers from senior graduate students and untenured faculty on topics in law and the humanities. The submissions are then juried by two outside senior readers, and based on those reviews the conveners select seven papers and two alternates for inclusion in a conference held in June where the papers are workshopped by senior commentators in fields relevant to the papers.
2008 Law & Humanities Interdisciplinary Junior Scholar Workshop
Critical Acts of Recognition: Reading Law Rhetorically
University of San Francisco
Department of Communication Studies
Social Life and Civic Education in the Rio de Janeiro City Jail
Department of History
City University of New York, Queens College
A Woman’s Right to be Spanked:
Testing the Limits of Tolerance of S/M in the Socio-Legal Imaginary
University of Toronto, Faculty of Law
Respect and Resistance in Punishment Theory
University of Utah, S.J. Quinney College of Law
The Sit-ins and the Failed State Action Revolution
Christopher W. Schmidt
Visiting Scholar, American Bar Foundation; Visiting Associate Professor, Chicago-Kent College of Law (spring 2008)
Recording Artists, Work For Hire, Employment, and Appropriation
Department of Media and Communication
Divorcing family law from the nation
Visiting Assistant Professor
Georgetown Law Center
Blood Quantum and Equal Protection
Rose Cuison Villazor
Assistant. Professor of Law
SMU Dedman School of Law
Legal Development in Sudan:
Myth-making and the Collision of Rights
Mark F. Massoud
University of California, Berkeley
Katherine Franke, Columbia Law School
Ariela Gross, USC Law School and Department of History
Naomi Mezey, Georgetown University Law Center
Hilary Schor, USC Department of English and USC Law School
Clyde Spillenger, UCLA School of Law
Nomi Stolzenberg, USC Law School
Ariela Dubler, Columbia Law School
Conveners of the Law & Humanities Interdisciplinary Junior Scholar Workshop
April 9, 2008
Religious Allegory in Twelve Angry Men
Here is the abstract.
This essay, a contribution to a symposium marking the 50th anniversary of the film 12 Angry Men, shows that the film is an intricate, carefully constructed allegory of a series of stories from the Hebrew Bible and the New Testament. The essay offers some conjectures on the relation between the film's biblical subtext and its surface political themes.
Download the paper from SSRN here.
Contract and the Comedy of Errors
To address methodological and critical issues at stake in the conferral of legal historical and literary studies. The major part of the paper concerns Shakespeare's interest, in The Comedy of Errors, in contractual theory, and the problems this throws up for understanding the function of comedy; but this leads to further reflections on the way we bring legal ideas to bear on literary texts in this period.
Download the paper from SSRN here.
Shakespeare and Specific Performance
The standard form of compensation for loss at the common law is damages - a sum of money given as recompense. It is only in rare and special situations that the equitable remedy of specific performance is employed. Specific performance assumes that some particular thing is of such unique value that only the delivery of the thing itself is an adequate remedy. In this paper I use the difference between money-based damages and value-laden specific performance, taken in an expansive, somewhat metaphorical sense, to explore questions of value, loss, and recompense in the world of Shakespeare‘s plays. Like much imaginative literature - think of the first-born child in Rapunzel - Shakespeare‘s world is one in which specific values and compensation play a much larger role than does money-thus putting literature at some variance from the realities of law under capitalism. This may in part be simply because highly personalized investments make for better stories. I wish in this paper, however, to explore the complex ramifications, both wondrous and destructive, of an emotional and legal economy based so deeply in specific values and performance. Through a wide ranging survey of key moments in Shakespeare‘s plays, I will argue that Shakespeare is as much horrified as delighted by the deep ramifications of a world based in specific performance.
Download the paper from SSRN here.
Weisberg on the Merchant of Venice
This essay elaborates on several prior endeavors that explored the bonding of Portia and Shylock in the last two scenes of The Merchant of Venice. Both characters revere codes, in contradistinction to the insider male world of Venice, which easily traduces promises, oaths, and laws anytime the fluid situation so demands. Portia can do this, too; she plays both with her father's testamentary code and with the Shylock-Antonio contract. The trial scene as it progresses, however, teaches her the costs of such (comedic) playfulness. She responds with special antipathy when Antonio - asked to do mercy to Shylock - instead cruelly manipulates the Alien Statute utterly to destroy the Jew. By the time she returns to Belmont in Act V, she has learned from Shylock that the marriage code, symbolized by the ring, can indeed be honored. For this to happen in her own marriage, however, she must rid her husband and herself of the baleful mediation of Antonio.
Download the entire paper from SSRN here.
April 8, 2008
Judges Citing Literature
A comprehensive survey of over 2 million federal appellate opinions over the past 100 years reveals only 543 identifiable citations or references to works of fiction. Of these, less than half – 236 – were employed rhetorically to evoke an emotional response in the reader. This type of citation, which I’ll call a "literary" citation, occurs in only about 1 out of every 10,000 federal appellate opinions.
Todd's data is quite interesting, but I disagree with how he frames his essay and some of the conclusions he draws. Todd writes:
[A] central claim of the law and literature movement (which I'll refer to as "the Movement") is that reading fiction can provide judges with knowledge about how to solve real world problems. For example, Professor Martha Nussbaum writes that "the novel constructs a paradigm of a style of ethical reasoning … in which we get potentially universalizable concrete prescriptions by bringing a general idea of human flourishing to bear on a concrete situation." If this is true and the Movement has had a significant effect on law, one would expect to see an increase in the use of literature in judicial opinions, since judges routinely cite to works that have a direct impact on their decisionmaking. We should also expect to see works cited for the reasons the Movement wants them to be – to reveal that the fiction has evoked feelings of pity and empathy for the less fortunate and given a voice to traditionally marginalized segments of society. Neither of these things is true.
Unpacking this paragraph, I see the following claims: (1) whether the law and literature movement "has had a significant effect on law" can be assessed by instances when literature has a "direct impact" on judicial decisionmaking; (2) "central" claims of the law and literature movement are that literature makes judges more ethical or empathetic and that literature provides judges with "knowledge about how to solve real world problems"; and (3) citations will demonstrate whether literature has a "direct impact" on a judge's decisionmaking.
Let's begin with the first claim: Whether the law and literature movement "has had a significant effect on law" can be assessed by instances when literature has a "direct impact" on judicial decisionmaking.
This claim begins with an assumption that having a significant effect should be measured by having a direct impact. But it is unclear why the significant effect must be a direct impact rather than an indirect one. Reading Orwell's 1984 might help shape how judges perceive surveillance and government power. Will it directly affect their decisions? Probably not, if direct effects mean that but for reading Orwell's book, a judge inclined to decide a case one way will now decide it another way. But it might have helped shaped a judge's mindset along with other works of literature and a number of other social and cultural experiences. It might have an indirect effect. The difficulty is that looking for direct impact is far too demanding a requirement.
On to the second claim: "Central" claims of the law and literature movement are that literature makes judges more ethical or empathetic and that literature provides judges with "knowledge about how to solve real world problems"
I quarrel with the argument that a "central" claim of the law and literature movement is to make judges more empathetic or ethical, or to give them "knowledge about how to solve real world problems." I don't think that literature necessarily makes one more moral, ethical, or empathetic. Nor do I think that literature provides specific "solutions" to problems. Literature can provide a critique or commentary about the law. It can develop thinking, reasoning, and interpretive skills. It can provide insight into jurisprudential questions, and it can help people see between the lines, be more nuanced, recognize ambiguity, see different interpretations, and so on.
While there are some in the law and literature movement who have claimed that literature makes lawyers more ethical or empathetic, most have not made such claims. Todd's quote from Martha Nussbaum doesn't suggest she makes these claims. Instead, Nussbaum seems to be saying that literature can contain ethical teachings and that it embodies them in concrete situations. I agree with this. The fact that literature can illustrate an ethical prescription by embodying it in concrete situations doesn't mean that the reader will necessarily agree with the ethical prescription. Moreover, much literature is not dogmatic about any particular ethical or moral view -- it often demonstrates the ambiguities and tensions in various ideas. Literature is not the same as a philosophical or political argument. It is often more suggestive and ambiguous.
Finally, it's time to turn to the third claim that I've parsed out of Todd's essay: Citations will demonstrate whether literature has a "direct impact" on a judge's decisionmaking.
The legal academy has a fetish over citations. Because it is so fun and easy to play around with Westlaw, we can now readily do studies about citations. This data is quite interesting, but it is tempting to make too much of it.
What exactly does the lack of citations to literature mean? First, even if a literary work had a "direct impact" on a judge's decision, I doubt in many cases the judge would admit this. Judges often read and rely on law review articles they never cite. Judges might be informed by history, philosophy, sociology, economics, etc. and might not cite to such works. What would we think of the judge who writes: "For the reasons stated in Dickens' works, I hereby conclude that this case should be decided in favor of the 'little guy'"? Does a judge who is heavily influenced by a particular philosophy need to cite to specific philosophical works? So a judge influenced by Rawls might never cite to Rawls. Judge Richard Posner is influenced by pragmatism, yet he doesn't cite to works by William James or John Dewey in every opinion in which he employs pragmatic ideas. The bottom line is this: Cites don't necessarily prove influence or impact, or the lack thereof. They show how many times something has been cited to. People often read much more into cites than they should.
The influence of literature is quite indirect. It provides ideas and fodder for thought. But rarely does it have a direct bearing on any particular case. It doesn't hold any particular authority over the judge. It's not precedent. It doesn't provide a syllogistic argument or complete analysis of a particular problem. But it still might be influential. A judge might reason, interpret, think, and perceive things differently for having read certain works of literature. There's no easy way to measure this.
So that ends my critique, but on the positive side, I did find some really interesting facts in Todd's article:
* "In the Seventh Circuit, Judges Posner and Easterbrook combined for nearly all citations to fiction, and over 80 percent of all references to George Orwell."
* "On the Supreme Court, Justices Brennan and Douglas accounted for most references to Orwell. Judges have favorite authors or themes, and they cite to them again and again."
* [O]f the 110 Supreme Court justices who have served, only 21 have ever cited to the authors or works in this survey. The leading Supreme Court fiction citers are Justices Douglas, Stevens, Brennan, and Rehnquist, each of whom has cited to fiction around five times. These four justices account for almost 50 percent of all Supreme Court citations to fiction."
* "About half of all citations are about the law’s delay, the definition of legal terms, and the role of courts in our system, not about generating empathy for litigants."
* The most frequently cited authors are "George Orwell (61 citations); William Shakespeare (35); Franz Kafka (34); John Milton (20); Homer, Chaucer, and Oscar Wilde (14 each)."
* "[J]ustices appointed by Democrats or with an otherwise liberal voting record made almost 80 percent of all literary citations."
* "In the Supreme Court, nearly three-quarters of literary citations are in dissenting or concurring opinions (63 percent in dissenting; 27 percent in majority; and 10 percent in concurring). In the circuit courts, by contrast, the reverse is largely true, with about 64 percent in majority opinions and 36 percent in dissenting and concurring opinions."
I'm pleased to see Orwell and Kafka as being among the most-cited literary works. I once wrote about how conceptions of information privacy and computer databases are framed in terms of Orwell and how they might better be framed in terms of Kafka.
Cross-posted at Concurring Opinions.
April 4, 2008
Resources For a Sad Anniversary
Any Day Now (Lifetime, 1998-2002). Features Lorraine Toussaint as a lawyer who gives up her big city practice to continue her father's work in Birmingham, Alabama.
Boston Legal (ABC, 2005---). Kerry Washington played associate Chelina Hall (2005-2006).
The Cosby Show (1984-1992)(currently in reruns on various stations). Claire Huxtable is an attorney married to a successful OB-GYN; they raise five lively children, one of whom (Sonia) also becomes an attorney, in this successful series.
First Years (2001). Sydney Tamiia Poitier is one of the first year associates at a big law firm.
Cosby (1996-2000)(currently in reruns on various stations). Cosby is Hilton Jacobs, Phylicia Rashad returns as his wife Ruth, and T'Keyah "Crystal" Keymah is their daughter Erica Lucas, who gets a law degree but decides her heart is in being a chef.
For the People (2002-2003) Lifetime TV's television series starring Debbi Morgan as the newly elected District Attorney of Los Angeles.
Kevin Hill (UPN, 2004). Taye Diggs as a New York metrosexual lawyer in a boutique firm headed by Jessie Grey (Michael Michele).
Soul Food (2000-2004). Showtime series based on the television movie of the same name (1997). Features a family of three daughters, one of whom is an attorney.
Sparks (1996-1998). Female attorney joins a brother-brother law firm.
Sweet Justice (1994-1995). Cecily Tyson is partnered with Melissa Gilbert in this series.
Will & Grace (1998-2006). The late Gregory Hines played the role of Ben Doucette (1999-200), the head of a high-powered law firm, who hires Will Truman.
In addition, Judging Amy (CBS). Episode: Thursday's Child. Kathyrine Dora Brown is Zola Knox, an aggressive African-American attorney filing a class action lawsuit who wants Bruce to join the class. Good scene between her and star Amy Brenneman in a courthouse corridor.
Here's a listing of films with civil rights themes.
The American Experience (1993). Based on Richard Kluger's book Simple Justice, this film follows the attempt to desegregate the public schools in the U. S. south. Also called Simple Justice.
Amistad (1997). Dramatization of the 1839 case against African Americans who mutiny aboard a slave ship (40 U.S. 518 (1841)).
Assault at West Point (1994). Dramatization of the trumped up court martial of a black cadet.
Birth of a Nation (1915). Extremely controversial film made by D. W. Griffith, purporting to tell the story of the South after the Civil War. Stars Lillian Gish.
Black Like Me (1964). Film version of the 1959 book by John Howard Griffin, a white man, about his travels as a black in the racially segregated America of the 1950s. The book had a tremendous impact on civil rights thinking in the 1960s.
Bojangles (TVM 2001). Gregory Hines as the legendary dancer, William "Bojangles" Robinson.
Boycott (TVM 2001). Docudrama based on the Montgomery bus boycott. Compare with The Long Walk Home.
Chiefs (1983 TV miniseries). Three generations of police search for a serial killer in a Southern town.
The Color of Courage (TVM 1999). Dramatizes the civil rights case of Sipes v. McGhee. Features Roger R. Cross as Thurgood Marshall.
Common Ground (TV 1990). Based on the book by Anthony Lucas about desegregation in Boston
Dangerous Evidence (TV 1999). Lynn Whitfield is a civil rights activist who investigates the wrongful conviction of a Marine for rape.
Devil in a Blue Dress (1995). Based on the Walter Mosley novel.
4 Little Girls (1997). Spike Lee's documentary about the bombing of a Birmingham church that resulted in the deaths of four small girls.
The Ghosts of Mississippi (1996). Features James Woods as Byron de la Beckwith, the murderer of civil rights activist Medger Evers.
Gone wIth the Wind (1939). Stars Vivien Leigh, Clark Gable, Leslie Howard, Olivia de Havilland, directed by Victor Fleming in the famous adaptation of the Margaret Mitchell novel. In 2001 Houghton Mifflin fought a successful battle to publish a parody, Alice Randall's The Wind Done Gone.
Good Neighbor Sam (1964). The probate judge is African-American; unfortunately www.imdb.com does not give the name of the actor.
Good Night Sweet Wife: A Murder in Boston (1990). Docudrama based on the murder of a pregnant white lawyer by her husband; the husband blamed a non-existent black man, sparking racial hatred and near riots before he confessed and committed suicide.
Howard Beach: Making a Case for Murder (1989). Docudrama about a racial killing stars Daniel J. Travanti as the prosecutor who tracked down and convicted white teenagers who beat a black man to death in Howard Beach. Also called: In the Line of Duty.
The Hurricane (1999). Denzel Washington plays Rubin "Hurricane" Carter, the prize fighter framed for murder.
In the Heat of the Night (1967). This powerful drama features Sidney Poitier and Rod Steiger and was one of the first feature films to confront the relationship of racism and police corruption. Followed by They Call Me MISTER Tibbs!
The Inspectors (TVM 1998); The Inspectors: A Shred of Evidence (TVM 2000). Louis Gossett Jr. is a U. S. postal inspector, Claire Riley his love interest as attorney Catherine Hughes.
Judge Horton and the Scottsboro Boys (TVM 1976). Based on the famous rape case; engendered its own lawsuit. Street v. NBC; 645 F 2d 1227 (1981).
Just Cause (1995). A law professor takes on the case of a young African American accused of murder.
King (TV miniseries 1978). Features Paul Winfield as King and Cecily Tyson as Coretta Scott King.
A Lesson Before Dying (TVM 1999). Based on the Ernest Gaines novel.
The Long Walk Home (1990). Powerful dramatization of the Montgomery bus boycott. Compare with Boycott.
Losing Isaiah (1995). Courtroom drama about the custody battle over an African American boy.
Malcolm X (1992). Dramatization of the life of the civil rights leader.
The Mighty Quinn (1989). Set in the West Indies, but features Denzel Washington as a police officer with professional and personal problems.
Mississippi Burning (1988). Based on the lives and deaths of civil rights workers who came to Mississippi to register black voters in the 1960s. Based on the killings of Viola Liuzzo and her companions.
Mrs. and Mrs. Loving (TVM 1996). Well done dramatization of the case Loving v. Virginia (388 U.S. 1 1967) which finally struck down laws against interracial marriage.
Murder in Harlem (1935). A lawyer helps his girlfriend prove her brother is innocent of murder.
Murder in Mississippi (TVM 1990). Dramatization of the deaths of three civil rights workers in 1963. Compare with Mississippi Burning and The Ghosts of Mississippi.
Native Son (1986). Based on the Richard Wright novel.
The Organization (1971). A third Virgil Tibbs movie, starring Sidney Poitier.
Roots (1977 TV miniseries). Dramatization of Alex Haley's book.
Separate But Equal (TV miniseries, 1991). Sidney Poitier is a determined Thurgood Marshall in this dramatization of the events leading up the Brown v. Board of Education decision.
Selma, Lord, Selma (TVM 1999). Dramatization of the Selma to Montgomery march led by Martin Luther King, Jr.
Simple Justice. See The American Experience.
They Call Me MISTER Tibbs! (1970). Sequel to In the Heat of the Night, also starring Sidney Poitier.
To Kill a Mockingbird (1962). Based on the Harper Lee novel. Story of a Southern lawyer defending a black man accused of raping a white woman.
The Tuskegee Airmen (TVM 1995). Dramatization of the attempts to integrate the Air Force during the Second World War.
A Time to Kill (1996). Based on the John Grisham novel about a black man avenging the rape of his daughter.
White Lie (TVM 1991). Gregory Hines as a son investigating the lynching of his father for the alleged rape of a white woman.
Who Killed Martin Luther King? (TVM 1992). Documentary about the assassination.
More resources at Black History Month Bibliography and Bibliography of African-American Detectives (which I'm planning to update in my copious free time).
Law Blog Focuses on International Law and Film
April 3, 2008
Property Law in The Lord of the Rings
[Thanks to Professor Troy Hinrichs, California Baptist University, for the cite].
Researchers might also be interested in:
Stoddard, William H., Law and Institutions in the Shire, 18 Mythlore 4-8 (Autumn 1992). This article is listed in my bibliography An International Guide to Law and Literature Studies (2000).
April 2, 2008
Harry Potter, College Student
April 1, 2008
Filmmaker Jules Dassin Dies
Among Mr. Dassin's other law related films are Rififi and Never On Sunday. He is survived by a daughter, actress Julie Dassin. His son, singer Joe Dassin, died in 1980. Read and hear more about Mr. Dassin here from NPR, here from Agence France Presse and here from the Los Angeles Times.