August 29, 2008

Steven Bochco's New Legal Drama Debuts

Some early reviews are in for Steven Bochco's new legal drama Raising the Bar. Barry Garron of the Hollywood Reporter finds the series, slated to run on TNT, looking like "it had been developed for the CW network. Most of the characters are young lawyers, either public defenders under the tutelage of mother hen Roz Whitman (Gloria Reuben) or fledgling prosecutors under the harsh, cynical thumb of Nick Balco (Currie Graham). They would appear more at home in the Ford Modeling agency waiting room than in Manhattan's gloomy courthouse corridors. As if to emphasize the point, a rotund lawyer appears in the opening scenes of the second episode and is swiftly dispatched by a fatal heart attack. His kind simply is not welcome here." Mr. Garron also seems to find the show a little worn. "Bochco and co-creator David Feige are at their best when they make the story twist and turn over unexpected legal nuances. Too often, though, plots are contrived and coincidental (how many times can Kellerman defend clients against the same prosecutor, who just happens to be his girlfriend?) and lack the wonderful surprises that are trademarks of a Bochco production." Read the entire review here.

But here's what the Wall Street Journal's Nancy DeWolf Smith has to say.
The only real angels here are the public defenders, most prominently Jerry Kellerman (the Heath Ledgerish Mark-Paul Gosselaar). Kindhearted, brave and, above all, idealistic, they are stuck with defending society's victims against the pitiless, and often unethical, prosecutors. In the first three episodes, all of the defendants are either innocents being framed or railroaded by the judge/prosecutors, or sympathetic characters struggling with major problems and facing punishment all out of proportion with their transgressions.

Typical is a case with "To Kill a Mockingbird" vibes, in which the defendant is a young black student who was lured to the home of a trashy white classmate, seduced by her and then threatened by her white boyfriend until he fought back. Even the prosecutor knows that the defendant is no criminal, but in the world of "Raising the Bar" the deeply flawed justice system must nail him to the wall.

Mr. Bochco has felt compelled to claim that the series takes no side between prosecutors and public defenders, that it gives "equal time to both points of view." Equal screen time may be accurate; yet the images that persist are of defense lawyer Jerry agonizing about his innocent, upstanding (minority) client facing the slammer for rape -- while in another office, a white-goddess prosecutor gyrates teasingly on the lap of her smarmy and cynical white boss.
Read her review here.

Finally, the New York Daily News' David Hinckley finds the show entertaining as "straight drama." He notes, "what seems to interest Bochco more, at least in this opening episode, is something about the system itself, the system that sets the unspoken rules under which Kellerman and the typically large ensemble Bochco cast are working. That "something" involves conflicts of interest, mixed loyalties and hidden agendas. In the world of "Raising the Bar," the justice system is a club where everybody knows each other, or is only one degree of separation removed. The characters freely acknowledge this, and have developed a mantra to deal with it: What happens outside the courtroom doesn't matter. Once the judge takes the bench and everyone is seated, the fact the defense attorney knows the prosecutor, or maybe has dated the prosecutor, becomes irrelevant. Justice has its own strict procedures and the outcome of a case is determined solely by the execution of those procedures. All of which, Bochco seems to suggest, is a lie....The pivotal moment that determines the ultimate outcome of the case - whether a man everyone agrees is innocent must still go to jail - revolves around a scene that's subtly filmed, but so cynical and so shockingly unprofessional it will make viewers want to wash their hands." Read his review here.

August 28, 2008

Women Lawyers on TV

Christine A. Corcos, Louisiana State University Law Center, has published "Damages: The Truth is Out There," forthcoming in Lawyers in Your Living Room, edited by Michael Asimow (ABA Press, 2008). Here is the abstract.

In this essay, part of Michael Asimow's forthcoming collection on lawyers on TV, I discuss the television show Damages and its portrayal of powerful lawyers, and whether their exercise of their power "damages" them. In particular, I examine the show's depiction of women lawyers, and whether their exercise of legal power transforms them. Do we as clients, as lawyers, and as an audience resist the vision of powerful women lawyers? Does the exercise of legal power damage women, or does it make them stronger?

Larry Friedman and Popular Culture

Jo J. Carrillo, Hastings College of the Law, has published "Links and Choices: Popular Legal Culture in the Work of Lawrence M. Friedman," in volume 17 of Southern California Interdisciplinary Law Journal (2007). Here is the abstract.

Based in part on James Willard Hurst's idea that markets create a social aggregate of behavior that shapes law, Lawrence M. Friedman made one of the earliest arguments for the use of popular culture in the study of law. This paper considers Friedman's social theory and places it into a broader context of scholarship on the same topic.

Download the paper from SSRN here.

August 27, 2008

Copyright Issues at an Early Law School

Angela Fernandez, University of Toronto School of Law, has published "Copying and Copyright Issues at the Litchfield Law School," as University of Toronto Legal Studies Research Paper 08-13. Here is the abstract.

The notebook method of legal education used at the famous Litchfield Law School (1774-1833) has long been a subject of intense interest among Connecticut historians, legal historians, and those interested in legal education and the legal profession. The present article, Copying and Copyright Issues at the Litchfield Law School, forthcoming in the fall 2008 volume of Connecticut History, sets the notebook method used at the School in its copying context. More specifically, it explains how the copying of lectures used to create these notebooks gave rise to the problem of rampant unauthorized reproduction, a serious threat to an institution the raison d'etre of which was the production of a set of these notebooks. The article reports on and reproduces excerpts from an 1826 letter evidencing just how dire the situation had become and the lengths to which the School's surviving proprietor, James Gould, was willing to go in order to protect the lectures, as against the sense of the students that they were ripe for reproduction. Gould registered the lectures for copyright protection in 1827 and the question is, given how strongly he felt about the matter, why he did not do it sooner. It would seem that, like the students, Gould took some time to see these notes as a proper object of copyright protection.

Download the paper from SSRN here.

August 26, 2008

Daytime TV Judges

Taunya Lovell Banks, University of Maryland School of Law, has published "Judging the Judges - Daytime Television's Integrated Reality Court Bench," in Lawyers in Your Living Room, edited by Michael Asimow, (ABA Books, 2008). Here is the abstract.

This essay looks at the integrated courtroom on daytime reality television court shows like "Judge Judy", the reasons for the persistent over representation of women and non-white male judges on these shows, why some shows are more popular than other shows, and how these shows may influence the real American legal system.
Keywords: daytime television court judges

Download the paper from SSRN here.

August 25, 2008

Call for Book Reviews: Women and the Law

Proposals Due September 25, 2008

The editors of Pace Law Review invite proposals from scholars, researchers, practitioners and professionals for contributions to a special book review issue to be published in Winter 2008. We seeks proposals for reviews of any book published in 2008, 2007 or 2006 that contributes to the understanding of women’s experiences with the law.

Pace Law School has a longstanding commitment to both the study of women and the law and the development of women as lawyers and leaders. The Pace Women’s Justice Center was founded in 1991 as the first academic legal center in the country devoted to training attorneys and others in the community about domestic violence issues. Pace is a vibrant and intellectual community that contains several nationally-recognized scholars of women’s, children’s and LGBT rights.

A law review volume devoted to books concerning women and the law promotes an ongoing discourse on women and the law, justice and feminist jurisprudence.

Please submit book review proposals of no more than 500 words by attachment to by September 25, 2008. Proposals should include (a) the intended reviewer’s name, title, institutional affiliation and contact information; (b) the title and publication date of the book proposed for review; (c) a description of the importance of the book to the general topic; and (d) any other information relevant to the book or proposed review (e.g., the proposed reviewer’s expertise or any relationship with the author). Authors are welcome, but not required, to submit a CV as well. We expect to make publication offers by October 1, 2008.

Complete manuscripts from authors of accepted proposals will be due November 1, 2008. Completed book reviews should not exceed 8,500 words.

August 22, 2008

Cybercrime in Fiction

David S. Wall, University of Leeds, has published, "Cybercrime and the Culture of Fear: Social Science Fiction(s) and the Production of Knowledge about Cybercrime," forthcoming in Information, Communication & Society. Here is the abstract.

This article builds upon my previous work (Wall, 2007 & 2008) to map out the conceptual origins of cybercrime in social science fiction and other faction genres to explore the relationship between rhetoric and reality in the production of knowledge about it. The article goes on to illustrate how the reporting of dystopic narratives about life in networked worlds shapes public reactions to technological change. Reactions which heighten the culture of fear about cybercrime, which in turn, shapes public expectations of online risk, the formation of law and the subsequent interpretation of justice. Finally, the article identifies and responds to the various mythologies that are currently circulating about cybercrime, before identifying the various tensions in the production of criminological knowledge about it that contribute to sustaining those mythologies.

Download the paper here.

Law and Literature in the Duke Curriculum

Robin L. West, Georgetown University Law Center, has published, "Literature, Culture, and Law - At Duke University," in Teaching Law and Literature, 2008. Here is the abstract.

The article compares programmatic questions from the Law and Literature movement from the 1970s to 1990s with more recent suggestions regarding the foundational questions for the Law and Culture movement. It argues that in both movements, but particularly the latter, scholars have focused on questions regarding the nature of law, culture, and interpretation, and neglected substantive jurisprudential claims regarding law sometimes found in literature and other cultural texts. It argues that this emphasis on theory over substance is unfortunate. To illustrate, the piece examines a false rape claim brought against some university athletes in Durham, North Carolina in the summer of 2006, and a novelistic depiction of sexual exploitation in Tom Wolfe's popular novel, I Am Charlotte Simmons. The novel was repeatedly invoked by commentators and bloggers when the charge was first made and widely believed, to make the case that the Duke campus was drenched in a culture tolerant of rape. The novel, then, might be sensibly understood as central to a cultural understanding of how this false rape charge was interpreted, and then came to be widely believed. Although true enough, the article argues that we miss something important, if we look at (and indict) Wolfe's novel only as a part of a cultural/legal explanation for a sex panic that resulted in a miscarriage of justice. We miss Wolfe's substantive, narrative account of sexual exploitation (not rape) and the harms, quite specific, that undesired, unwanted and unwelcome sex can occasion, on college campuses and elsewhere.

Download the paper here.

Film As Evidence

Jessica Silbey, Suffolk University Law School, has published "Cross-Examining Film," in volume 8 of the University of Maryland Law Journal of Race, Religion, Gender and Class (2008). Here is the abstract.

The Supreme Court decision in Scott v. Harris holds that a Georgia police officer did not violate a fleeing suspect's Fourth Amendment rights when he caused the suspect's car to crash. The court's decision relies almost entirely on the filmed version of the high-speed police chase taken from a "dash-cam," a video camera mounted on the dashboard of the pursuing police cruiser. The Supreme Court said that in light of the contrary stories told by the opposing parties to the lawsuit, the only story to be believed was that told by the video. In Scott v. Harris, the court fell into a dangerous and common trap of believing - to the point of enshrining in our law - that film captures reality. As Justice Breyer said in oral argument of the case seemingly flabbergasted by contrary findings below: "I see with my eyes ... what happened, what am I supposed to do?"

The Supreme Court is not the first court to fall prey to the persuasive power of film. It is typical for courts and advocates to naively treat filmic evidence as a transparent window revealing the whole truth, as a presentation of unambiguous reality. But film has a history in art as a constructed medium. As filmmakers and critics have known since the beginning of cinema, film's appearance of reality is an illusion, an illusion based on conventions of representation.

How could Mr. Scott have countered the weight of the film and its persuasive power? When faced with prejudicial filmic evidence, how does an advocate undermine the assertive nature of film and its overwhelming appearance of exposure? The advocate must cross-examine the film the way she cross-examines witnesses. Because films are assertive in nature, an advocate faced with filmic evidence must treat it the way she treats other testimonial evidence, critically and with careful scrutiny. She must cross-examine the film. This article will set forth certain examination techniques using a piece of filmic evidence (linked to the article) from a recent case as an example. By doing so, it aspires to be a teaching tool for other courts and advocates in their treatment and consideration of filmic evidence.

Download the paper here.

Librarians Are Your Friends--Do Not MAKE THEM ANGRY! has this story about a Wisconsin woman who failed to return two books in a timely fashion to her local public library, and paid no attention to its sad entreaties about their overdue status. The result: the librarians flexed their muscle, called out local law enforcement, and had her arrested and booked for failure to pay fines and overdues. No joke: this little episode cost her and her family several hundred dollars. The books? They were appropriately law-related: Janet Fitch's White Oleander and Dan Brown's Angels and Demons. The moral? Spider Robinson puts it best.

"Librarians are the secret masters of the universe. They control information. Never piss one off."

August 20, 2008

Is There a "CSI Effect"?

Donald E. Shelton, Eastern Michigan University, has published "The 'CSI Effect': Does it Really Exist?" in volume 259 of the National Institute of Justice Journal (2008). Here is the abstract.
Many attorneys, judges, and journalists have claimed that watching television programs like CSI has caused jurors to wrongfully acquit guilty defendants when no scientific evidence has been presented. This so-called effect was promptly dubbed the "CSI effect," laying much of the blame on the popular television series and its progeny. This study of 1027 jurors found that 46 percent expected to see some kind of scientific evidence in every criminal case; 22 percent expected to see DNA evidence in every criminal case; 36 percent expected to see fingerprint evidence in every criminal case; and 32 percent expected to see ballistic or other firearms laboratory evidence in every criminal case. The findings also suggested that expectations for particular types of scientific evidence seemed to be rational based on the type of case.

For all categories of evidence CSI viewers generally had higher expectations than non-CSI viewers but the CSI viewers had higher expectations about scientific evidence that was more likely to be relevant. Interestingly, potential jurors' increased expectations of scientific evidence did not translate into a demand for this type of evidence as a prerequisite for finding someone guilty. Jurors were more likely to find a defendant guilty than not guilty even without scientific evidence if the victim or other witnesses testified, except in the case of rape. On the other hand, if the prosecutor relied on circumstantial evidence, the prospective jurors said they would demand some kind of scientific evidence before they would return a guilty verdict.

There was scant evidence in our survey results that CSI viewers were either more or less likely to acquit defendants without scientific evidence. Only 4 of 13 scenarios showed significant differences between viewers and non-viewers on this issue, and they were inconsistent. In the "every crime" scenario, CSI viewers were more likely to convict without scientific evidence if eyewitness testimony was available. In rape cases, CSI viewers were less likely to convict if DNA evidence was not presented.

In both the breaking-and-entering and theft scenarios, CSI viewers were more likely to convict if there was victim or other testimony, but no fingerprint evidence. Although CSI viewers had higher expectations for scientific evidence than non-CSI viewers, these expectations had little, if any, bearing on the respondents' propensity to convict.

Download the paper from SSRN here.

Cross posted to the Seamless Web.

August 19, 2008

Why Lawyers Should Read Shakespeare

Michael P. Maslanka, the managing partner of Ford & Harrison in Dallas, has this article on about why lawyers should read Shakespeare. The article begins:

Why do students still read Shakespeare? A conspiracy of finger-wagging, we-know-what's-best-for-you high school English teachers? No. It's his empathetic powers, making people see ourselves as we are -- rationalizations not permitted.

Shakespeare has much to teach lawyers. Eschewing Judge Judy, his questions are penetrating: How should judges go about judging? Does the rule of law matter? Are mercy and justice mutually exclusive, or are they complementary?

The article goes on to discuss Shakespeare's play, Measure for Measure.

August 18, 2008

Association for the Study of Law, Culture and the Humanities Invites Applications for Dissertation Award

Julien Mezey Dissertation Award

The Association for the Study of Law, Culture and the Humanities invites submissions for its 2009 Julien Mezey Dissertation Award. This annual prize is awarded to the dissertation that most promises to enrich and advance interdisciplinary scholarship at the intersection of law, culture and the humanities. The award will be presented at the Association's annual meeting in Boston, April 3-4, 2009, hosted by Suffolk University Law School.

The Association seeks the submission of outstanding work from a wide variety of perspectives, including but not limited to law and cultural studies, legal hermeneutics and rhetoric, law and literature, law and psychoanalysis, law and visual studies, legal history, and legal theory and jurisprudence. Scholars completing humanities-oriented dissertations in SJD and related programs, as well as those earning PhDs, are encouraged to submit their work. Applicants eligible for the 2009 award must have defended their dissertations successfully between September 1,
2007 and August 31, 2008. Each submission must be accompanied by a letter of support from a faculty member.

Deadline for nominations for the 2009 award: November 1, 2008. On or before that date, each member of the committee must receive by email the
following: 1) a letter of nomination that details the genesis, goal, and contribution of the dissertation; 2) a letter of support from a faculty member familiar with the work; 3) an abstract, outline, and the first chapter of the dissertation); 4) contact information for the nominee.

All materials should be sent to each of the following:

Professor Jodi Dean,
Professor James Martel, Professor Martha Umphrey,

Award finalists will be notified by December 1. At that point, they should be prepared to send a physical and electronic version of the entire dissertation to each of the committee members. The winner will be determined by early February and invited to the April meeting of the ASLCH. ASLCH will pay travel and lodging costs.

Questions should be addressed to Jodi Dean,

August 12, 2008

The "Discourse of Madness"

Ian Ward, University of Newcastle, has published "The Rochester Wives," in Law & Humanities, v. 2 (2008). Here is the abstract.
During much of the nineteenth century England was gripped by periodic 'lunacy scares'. In large part, these scares addressed a more particular concern regarding 'wrongful confinement'. There was a narrower jurisprudential concern here; one which focussed on the relative lack of legal regulation in such circumstances. As the century progressed the demand for reform of this regulatory provision grew ever louder. There was also a rather larger, essentially cultural, concern; which framed the evolving shape of a distinctive 'discourse' of madness. The purpose of this article is to examine these two concerns, and perhaps most importantly their relation. It will do so moreover through a particular investigation of the Rochester 'case'; as it found literary expression in the novels of Charlotte Bronte and Jean Rhys.

The article is priced.

August 7, 2008

Film and Historical Narrative

Daphne Barazk-Erez, Tel Aviv University, has published "The Law of Historical Films: in the aftermath of Jenin Jenin," at 16 Southern California Interdisciplinary Law Journal, 495(2007). Here is the abstract.

Filmmaking and the narration of history have been engaged in a complex relationship ever since the early days of filmmaking. Many films tell stories unfolding in previous times or about actual historical events, and their narration of history is often criticized as inaccurate, fictitious, or even intentionally misleading. When a highly publicized film suggests a controversial narrative of a certain chapter in history, a debate usually follows in the public arena, be it as part of the ongoing intellectual discourse or even in a political context. At times, however, the public debate is translated into legal terms. The article focuses on the difficulties confronting the attempt to apply legal regulation to historical films argued to be false—either by using private law causes of action, such as defamation and infringement of privacy, or by recourse to administrative censorship powers. The recent and highly controversial film Jenin, Jenin by the Israeli-Palestinian actor and filmmaker Muhammad Bakri, which professed to tell the story of residents of the Jenin refugee camp during an Israeli military operation, is used as a case study. In general, the courts insist on avoiding decisions on historical facts even when dealing with serious arguments about distortions in specific films. The article supports this judicial policy on the grounds that courts and governments should refrain from restraining freedom of speech based on arguments of truth and falsity. Yet, it also points to the inevitable disadvantages of this viewpoint given that the marketplace of ideas, particularly in the debate around realistic film making, is controlled by actors who have the power to shape collective memory.

Download the paper from bepress Legal Repository here.

August 6, 2008

Batman and George W. Bush

Andrew Klavan writes in the Wall Street Journal that Batman, at least as he is portrayed in the new film The Dark Knight, and George W. Bush have a lot in common. "There seems to me no question that the Batman film "The Dark Knight," currently breaking every box office record in history, is at some level a paean of praise to the fortitude and moral courage that has been shown by George W. Bush in this time of terror and war. Like W, Batman is vilified and despised for confronting terrorists in the only terms they understand. Like W, Batman sometimes has to push the boundaries of civil rights to deal with an emergency, certain that he will re-establish those boundaries when the emergency is past." This contention has caused comment in the blogosphere. See reaction at, Verum Serum, and Thompson on Hollywood, among other sites. Interesting.

Cross-posted to The Seamless Web.

August 1, 2008

The Uses of Narrative

Doron Menashe, University of Haifa, Research Authority, and Hamutal Esther Shamash, have published "Pass These Sirens By: Further Thoughts on Narrative and Admissibility Rules, " in International Commentary on Evidence, Vol. 5, No. 1, 2007.
Here is the abstract.

Fact finders assess the relative plausibility of stories presented by comparing them to narratives which have gained general acceptance, some of which are hegemonic narratives. In doing so, they run the risk of choosing a narrative that does not accurately represent the historic truth of events in suit, as a narrative with which to compare the stories offered by parties. Once fact finders choose an inappropriate narrative, they may commit the narrative fallacy and choose to grant increased weight to evidence that coheres with the inappropriate narrative, and to disregard evidence that does not, rather than discard the narrative when subsequent evidence tends to show that it is inappropriate. Admission of prejudicial evidence may trigger the use of inappropriate narratives that are hegemonic, or at least prejudicial, leading to inaccurate fact finding. Seen in that light, despite arguments to the contrary made by Robert Burns and by Ronald Allen, further relaxation of admissibility rules towards a free proof system would be undesirable.

Download the entire paper from SSRN here.

Law in Eighteenth Century English Literature

Rebecca Probert, University of Warwick School of Law, has published "Examining Law Through the Lens of Literature: The Formation of Marriage in Eighteenth-Century England," in the journal Law & Humanities (forthcoming). Here is the abstract.

This article examines what eighteenth-century novels and plays can tell us about the formation of marriage both before and after the Clandestine Marriages Act of 1753. It shows how the practices and, perhaps more crucially, the assumptions, of fictional characters were consistent with legal sources of the time, and that such primary sources fundamentally undermine many modern analyses of the making of marriage.

The entire text is available through subscription.