May 26, 2008

Humor and the Law

Laura E. Little, Temple University School of Law, has published "Regulating Funny: Humor and the Law," to appear in volume 94 of the Cornell Law Review (2009). Here is the abstract.
When humor hurts people, they may press claims in court, ascribing blame and demanding redress. Courts respond by matching injuries with legal rules, and choose to insulate, tolerate, encourage, condemn or suppress the humor. Patterns emerge from this humor regulation, with courts systematically preferring some types of humor over others.

Explicit analysis of the law's regulatory effect on different types of humor is conspicuously absent in case law and legal scholarship. Non-legal theorists have, however, for centuries devoted considerable effort to defining and cataloguing humor. Philosophers, literary theorists, natural scientists, and social scientists have created a rich literature explaining how humor affects individual and group well-being. This article analyzes legal regulation of humor through the lens of that literature.

Using tools developed by humor theorists, the article explores how the law regulates humor in three doctrinal areas: contract, trademark, and employment discrimination. Across this diverse array of legal categories, the article identifies remarkable consistency in the types of humor that courts choose to regulate and the types that courts instead allow to flourish unimpeded by legal rules. The cases in all three areas regulate two types of humor with particular vigor: superiority humor and release humor. Superiority humor seeks amusement through a communication that makes one person feel successful at the expense of others. Release humor taps into repressed sources of pleasure, pressure, or anxiety, focusing on taboo or difficult topics such as sex, excretion, or death.

Courts' imposition of liability for superiority and release humor is consistent with civil law's corrective justice goals and with the specific cause of action requirements for contract, trademark, and employment discrimination. What is more surprising, however, is courts' tendency to privilege another type of humor: incongruity humor. Incongruity humor arises from the juxtaposition of two inconsistent or unrelated phenomena. Where the humor in a suit has incongruous qualities, courts tend to avoid liability, thereby placing incongruous humor beyond the law's grip.

Documenting patterns in humor regulation provides important guidance for courts, attorneys, and humorists seeking to understand and predict legal regulation. The article nevertheless seeks to accomplish more than that positive mission, and thus assesses the beneficial and potentially detrimental consequences of current humor regulation. Concluding that the law closely integrates social norms about appropriate humor, the article finds cause for both celebration and concern. The article ends by identifying three bodies of literature to assist with improving humor regulation: law and social norm theory, First Amendment literature, and the current interdisciplinary work of humor theorists.

Download the entire article from SSRN here.

May 25, 2008

Understanding Privacy

I am very happy to announce the publication of my new book, UNDERSTANDING PRIVACY (Harvard University Press, May 2008). There has been a longstanding struggle to understand what "privacy" means and why it is valuable. Professor Arthur Miller once wrote that privacy is "exasperatingly vague and evanescent." In this book, I aim to develop a clear and accessible theory of privacy, one that will provide useful guidance for law and policy. From the book jacket:
Privacy is one of the most important concepts of our time, yet it is also one of the most elusive. As rapidly changing technology makes information more and more available, scholars, activists, and policymakers have struggled to define privacy, with many conceding that the task is virtually impossible.

In this concise and lucid book, Daniel J. Solove offers a comprehensive overview of the difficulties involved in discussions of privacy and ultimately provides a provocative resolution. He argues that no single definition can be workable, but rather that there are multiple forms of privacy, related to one another by family resemblances. His theory bridges cultural differences and addresses historical changes in views on privacy. Drawing on a broad array of interdisciplinary sources, Solove sets forth a framework for understanding privacy that provides clear, practical guidance for engaging with relevant issues.

Understanding Privacy will be an essential introduction to long-standing debates and an invaluable resource for crafting laws and policies about surveillance, data mining, identity theft, state involvement in reproductive and marital decisions, and other pressing contemporary matters concerning privacy.

Here's a brief summary of Understanding Privacy. Chapter 1 (available on SSRN) introduces the basic ideas of the book. Chapter 2 builds upon my article Conceptualizing Privacy, 90 Cal. L. Rev. 1087 (2002), surveying and critiquing existing theories of privacy. Chapter 3 contains an extensive discussion (mostly new material) explaining why I chose the approach toward theorizing privacy that I did, and why I rejected many other potential alternatives. It examines how a theory of privacy should account for cultural and historical variation yet avoid being too local in perspective. This chapter also explores why a theory of privacy should avoid being too general or too contextual. I draw significantly from historical examples to illustrate my points. I also discuss why a theory of privacy shouldn't focus on the nature of the information, the individual's preferences, or reasonable expectations of privacy. Chapter 4 consists of new material discussing the value of privacy. Chapter 5 builds on my article, A Taxonomy of Privacy, 154 U. Pa. L.. Rev. 477 (2006). I've updated the taxonomy in the book, and I've added a lot of new material about how my theory of privacy interfaces not only with US law, but with the privacy law of many other countries. Finally, Chapter 6 consists of new material exploring the consequences and applications of my theory and examining the nature of privacy harms.

Understanding Privacy is much broader than The Digital Person and The Future of Reputation. Whereas these other two books examined specific privacy problems, Understanding Privacy is a general theory of privacy, and I hope it will be relevant and useful in a wide range of issues and debates.

For more information about the book, please visit its website.

Law and Gender in Shakespeare's Hamlet

New on SSRN: Carla Spivack, The Woman Will be Out: A New Look at the Law in Shakespeare's Hamlet, forthcoming from Yale Journal of Law and the Humanities. From the abstract:
Many readers have noted the abundant references to law in Shakespeare's Hamlet. Indeed, a whole sub-genre of criticism has developed around the question of whether Shakespeare's knowledge of law, as reflected in this play and others, is detailed and extensive enough to indicate legal training. These critics, however, have so far lacked scholarly backgrounds in Early Modern English literature and culture, and thus fail to connect the legal language and themes of the play to its other concerns about gender and rule. By the same token, literature scholars writing about the play have lacked backgrounds in English legal history. Bringing both perspectives to bear, I show that the play's legal allusions are closely related to its other concerns about gender, and that these themes in turn partake of changes in the broader culture, namely, the end of the forty-year reign of Elizabeth, a woman ruler, and an ensuing backlash against female political power. In sum, I will show that placing the play's legal references in context reveals that they are part of a process of ejecting the feminine from the political realm.

May 24, 2008

Joseph W. Dellapenna, Villanova University School of Law, has published "Peasants, Tanners, and Psychiatrists: Using Films To Teach Comparative Law," in International Journal of Legal Information, Vol. 36, No. 1, Spring 2008. Here is the abstract.

Films have proven to be a useful teaching tool for a course on Comparative Law. The films serve to introduce the class to the look and feel of legal proceedings from selected foreign legal systems and to illustrate particular aspects of how these legal proceedings differ from our own. The article summarizes the results of more than 10 years of experience in using films. It will be of interest to others who teach Comparative Law and also to lawyers, judges, and students who want a video means of oriented themselves to foreign legal traditions. The article discusses the limitations of such films as teaching (or orientation) tools, both in general and with regard to each particular film.

Download the paper from SSRN here.

The Amistad in Music

Today's New York Times has this feature article on Anthony Davis's opera Amistad. For more about interpretations about the Amistad, or the Amistad in the arts, see the following selected resources.

Research Guide to the Amistad Affair

Doug Linder's Famous American Trials: Amistad Page

Amistad Research Center

May 14, 2008

CBS Cancels "Shark"

The Hollywood Reporter notes that CBS has cancelled a number of shows, including the lawyer drama Shark, which stars James Woods. Read more here. Never mind: the first season is already out on DVDs.

May 8, 2008

Science, Poetry, and Law

Anita L. Allen, University of Pennsylvania Law School, has published "The Poetry of Genetics: On the Pitfalls of Popularizing Science," in Hypatia: A Journal of Feminist Philosophy (2009). Here is the abstract.
The role genetic inheritance plays in the way human beings look and behave is a question about the biology of human sexual reproduction, one that scientists connected with the Human Genome Project dashed to answer before the close of the 20th century. This is also a question about politics, and, it turns out poetry, because, as the example of Lucretius shows, poetry is an ancient tool for the popularization of science. "Popularization" is a good word for successful efforts to communicate elite science to non-scientists in non-technical languages and media. According to prominent sociobiologist E.O. Wilson, "sexual dominance is a human universal." He meant, of course that men dominate women. Like sociobiology, gene science is freighted with politics, including gender politics. Scientists have gender perspectives that may color what they "see" in nature. As the late Susan Okin Miller suggested in an unpublished paper tracing the detrimental impact of Aristotle's teleology on western thought, scientists accustomed to thinking that men naturally dominate women, might interpret genetic discoveries accordingly. Biologists have good, scientific reasons to fight the effects of bias. One must be critical of how scientists and popularizers of science, like Genome author Matt Ridley, frame truth and theory. Ridley's "battle of the sexes" metaphor and others have a doubtful place in serious explanations of science.

Download the paper from SSRN here.

May 7, 2008

Law in the Tempest

Karin Trustedt, European University Viadrina Frankfurt (Oder), has published "The Tragedy of Law in Shakespeare," in Law & Humanities, volume 1. Here is the abstract.
This paper focuses on the status of law in regard to nature and art in Shakespeare‘s late play "The Tempest." The inscription of law into nature as it can be seen in King Lear‘s trial to legitimize sovereignty with nature, leads to crisis and the suspension of law. Rather than being natural, it points to an "outlaw" dimension of law internal to sovereignty, a dimension that also plays a central role in other Shakespearean tragedies. This "tragedy of law" suffers a sea-change "into something rich and strange" in the Shakespearean romance "The Tempest." While Shakespeare‘s late plays do take up the setting of tragedy, they, with their artistic turn towards a special kind of comedy, play on possibilities of life, promise and forgiveness beyond the tragical patterns of law.

Download the paper from SSRN here(priced).

May 5, 2008

Logic in Twelve Angry Men

I came across this essay by Joel Warren Lidz on logic and argument in the film "Twelve Angry Men." It originally appeared in the journal Teaching Philosophy.

Mildred Jeter Loving Dies

Mildred Loving, one of the parties in the landmark case Loving v. Virginia, has passed away. NPR has this audio story. Timothy Hutton and Lela Jeter starred in a made-for-television movie that dramatized the case, which made it to the Supreme Court in 1967. The film is available on DVD.

"You're out of order! You're out of order! The whole trial is out of order!"

In a recent "Boston Legal" episode, Alan Shore (James Spader) excoriates the "Supreme Court" (played by lookalikes) for drifting away from "civil rights and liberties" to protectors of "pro-business". Read more in a Legal Times interview with producer/writer David E. Kelley here (registration may be required). The blogosphere has reacted: see Crooks and Liars; Blogcritics Magazine; On the Record.

May 1, 2008

Law & Politics Book Review on Law & Literature

Law & Politics Book Review has recently published an issue with short book reviews of many great works of literature with legal and political themes. The issue is available online here.

Here is the table of contents:

Introduction. . . . pp. 288-290.

Abbey, Edward. THE MONKEY WRENCH GANG. Reviewed by Darren Botello-Samson, Department of Social Sciences, Pittsburg State University. . . . pp.290-293.

Asimov, Isaac. I, ROBOT. Reviewed by Susan M. Behuniak, Department of Political Science, Le Moyne College. . . . pp.294-297.

Atwood, Margaret. THE HANDMAID’S TALE. Reviewed by Kathleen A. Cameron, Justice Studies, Social Sciences Department, Pittsburg State University. . . . pp.298-301.

Campbell, Bebe Moore. YOUR BLUES AIN’T LIKE MINE. Reviewed by Angela Mae Kupenda, Mississippi College School of Law. . . . pp.303-305.

Camus, Albert. THE STRANGER. Reviewed by David S. Mann, Department of Political Science, College of Charleston. . . . pp.306-309.

Carofiglio, Gianrico. INVOLUNTARY WITNESS. Reviewed by Christoph Konrath, Parliamentary Administration, Austrian Parliament. . . . pp.310-312.

Dickens, Charles. BLEAK HOUSE. Reviewed by R. B. Bernstein, Distinguished Adjunct Professor of Law, New York Law School. . . . pp.313-316.

Drury, Allen. ADVISE AND CONSENT. Reviewed by Trevor Parry-Giles, Department of Communication, University of Maryland. . . . pp.317-320.

Grisham, John. A TIME TO KILL. Reviewed by Laura J. Hatcher, Department of Political Science and Women’s Studies Program, Southern Illinois University at Carbondale. . . . pp.321-324.

Guterson, David. SNOW FALLING ON CEDARS. Reviewed by Margaret S. Hrezo, Department of Political Science, Radford University. . . . pp.325-327.

Huxley, Aldous. BRAVE NEW WORLD. Reviewed by Tracy Lightcap, Department of Political Science, LaGrange College. . . . pp.328-331.

Kafka, Franz. THE TRIAL. Reviewed by Adelaide H. Villmoare, Department of Political Science, Vassar College. . . . pp.332-334.

Lee, Harper. TO KILL A MOCKINGBIRD. Reviewed by Richard A. Glenn, Department of Government and Political Affairs, Millersville University, Pennsylvania. . . . pp.335-339.

McEwan, Ian. SATURDAY. Reviewed by Lynne S. Viti, Writing Program, Wellesley College. . . . pp.340-343.

Melville, Herman. BILLY BUDD, SAILOR. Reviewed by Stephen A. Simon, Department of Political Science, University of Richmond. . . . pp.244-247.

Motley, Willard. KNOCK ON ANY DOOR. Reviewed by Walter J. Kendall, III, The John Marshall Law School. . . . pp.348-350.

Rowling, J.K. HARRY POTTER AND THE ORDER OF THE PHOENIX. Reviewed by Bruce Peabody, Department of Social Sciences and History, Fairleigh Dickinson University. . . . pp.351-355.

Stevenson, Robert Louis. THE STRANGE CASE OF DR. JEKYLL AND MR. HYDE. Reviewed by Simon Stern, Faculty of Law and Department of English, University of Toronto. . . . pp.356-359.

Twain, Mark. PUDD’NHEAD WILSON AND THOSE EXTRAORDINARY TWINS. Reviewed by Christopher P. Banks, Department of Political Science, Kent State University. . . . pp.360-364.

Vonnegut, Kurt, Jr. CAT’S CRADLE. Reviewed by Stephen McDougal, Department of Political Science/Public Administration, University of Wisconsin-La Crosse. . . . pp.365-369.

Warren, Robert Penn. ALL THE KING’S MEN. Reviewed by Susan McWilliams, Department of Politics, Pomona College. . . . pp.370-372.

Wolfe, Tom. THE BONFIRE OF THE VANITIES. Reviewed by David Schultz, Graduate School of Management, Hamline University. . . . pp.373-375.