June 24, 2009

Intellectual Property and the Meaning of Culture

Katya Assaf III has published "The Dilution of Culture and the Law of Trademarks" in volume 49 of IDEA: The Journal of Law and Technology (2008). Here is the abstract.

The cultural meaning of a trademark is built up by creating associative links between the mark and various positive cultural signs such as freedom, youth and happiness. This article argues that these links are reciprocal. That is, while the trademark begins to carry some of the meaning of the cultural signs it has been linked to, these cultural signs also absorb some of the meaning of the mark. This article develops a semiotic model, which helps to analyze the flow of meaning from non-commercial cultural signs into trademarks and from trademarks into other contexts. It argues that, by protecting the cultural meaning of trademarks, the legal system encourages the commercialization of culture and reinforces the dominance of consumer culture in our society.

Download the article from SSRN here.

June 18, 2009

Online Archive of British Newspapers Now Available

The British Library is making available an important archive of nineteenth century papers at British Newspapers 1800-1900. Read more here.

New From Susan Jacoby

A book on the Alger Hiss case: Alger Hiss and the Battle for History (Yale University Press, 2009).

Enabling "Tagging" and Other Art Forms

Randall P. Bezanson, University of Iowa College of Law, and Andrew Finkelman have published "Trespassory Art," in volume 43 of the University of Michigan Journal of Reform (2010). Here is the abstract.

The history of art is replete with examples of artists who have broken from existing conventions and genres, redefining the meaning of art and its function in society. Our interest is in emerging forms of art that trespass - occupy space, place, and time as part of their aesthetic identity. These new forms of art, which we call trespassory art, are creatures of a movement that seeks to appropriate cultural norms and cultural signals, reinterpreting them to create new meaning. Marcel DuChamp produced such a result when, in the early twentieth century, he took a urinal, signed his name to it, titled it Fountain, and called it art.

Whether they employ 21st century technologies, such as lasers, or painting, sculpture and mosaic, music, theatre, or merely the human body, these new artists share one thing in common. Integral to their art is the physical invasion of space, the trespass, often challenging our conventional ideas of location, time, ownership, and artistic expression. Their art requires not only borrowing the intellectual assets of others, but their physical assets. This is trespassory art - art that redefines and reinterprets space - art that gives new meaning to a park bench, to a billboard, to a wall, to space itself.

Our purpose is to propose a modified regime in the law of trespass to make room for the many new forms of art with which we are concerned - art that is locationally dependent or site specific. We begin by briefly describing and characterizing these often-new artistic forms. This provides a jumping off point for addressing the basic question this article seeks to address - should the law accommodate these new types of art, and if so, to what degree? We first turn to the law of trespass, with particular focus on real property, both public and private, but also with an eye to personal and intellectual property. We conclude that adjusting trespass remedies for artistic trespass through a set of common law privileges would better balance the competing interests of owners and artists than do current trespass rules. We then turn to a set of constitutional issues and conclude that our common law proposal is consistent with, and in some ways perhaps required by, the First Amendment. Finally, we summarize our proposal and then revisit the value of trespassory art as art in our creative culture.

Download the article from SSRN here.

Privacy and the Limits of History

Neil M. Richards, Washington University School of Law, has published "Privacy and the Limits of History," in volume 21 of the Yale Journal of Law and the Humanities (2009). Here is the abstract.

A short review essay of Lawrence Friedman's "Guarding Life's Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy" (Stanford Press 2007). The essay argues that Friedman tells a nuanced and compelling story of the rise and fall of the "Victorian Compromise," a series of interlocking legal doctrines protecting the reputations of elites around the turn of the twentieth century. "Dark Secrets" undeniably advances our understanding of both the genesis of privacy law and the relationships between law and culture in the Gilded Age. As a work of legal history, it is an instant classic - a must-read for anyone interested in privacy law. But although Dark Secrets is first-rate legal history, it is less successful in its latter chapters when Friedman shifts his focus from the past to the present. The limits of Friedman's social criticism raise important questions about the ability of history alone to provide answers to social problems in our modern, networked information society.

Download the essay from SSRN here.

June 17, 2009

Who Set the Fire?

Cokesbury College, a small Methodist institution in Maryland, burned to the ground in December 1795, and the cause was probably arson. But who set the fire, and why? Until now, no one had uncovered a plausible explanation. But a senior majoring in history and anthropology, Bonnie J. McCubbin, did the kind of digging around that gets applause, and has come up with interesting results. Read more in a Chronicle of Higher Education story here (registration may be required).

June 16, 2009

Non-Profits and Self-Regulation: A Case Study

Edward Balleisen, Duke University, Department of History, has published "Private Cops on the Fraud Beat: The Limits of American Business Self-Regulation, 1895–1932." Here is the abstract.

From the late 1890s through the 1920s, a new set of nonprofit, business-funded organizations spearheaded an American campaign against commercial duplicity. These new organizations shaped the legal terrain of fraud, built massive public-education campaigns, and created a private law-enforcement capacity to rival that of the federal government. Largely born out of a desire among business elites to fend off proposals for extensive regulatory oversight of commercial speech, the antifraud crusade grew into a social movement that was influenced by prevailing ideas about social hygiene and emerging techniques of private governance. This initiative highlighted some enduring strengths of business self-regulation, such as agility in responding to regulatory problems; it also revealed a weakness, which was the tendency to overlook deceptive marketing when practiced by firms that were members of the business establishment.

Download the paper from SSRN here.

The Influence of Cicero

Mortimer Newlin Stead Sellers, University of Baltimore School of Law, has published "The Influence on Marcus Tullius Cicero on Modern Legal and Political Ideas," in Ciceroniana, the Atti of Colloquium Tullianum Anni (2008). Here is the abstract.

Marcus Tullius Cicero is the father of modern law and politics. Cicero's influence was significant throughout subsequent European history, but never so much nor so directly as in the emergence of modernity and in the development of modern law and constitutional government. The early moderns became faithful apostles of Cicero's thought and ideals because their world and political circumstances were in many ways closer to those of Cicero than to those of any intervening centuries. The influence of Cicero's legal and political ideas on the modern world illustrates the decisive importance that the study of history can have on legal innovation and social change. The modern world would not have developed where it did, when it did, nor as it did were it not for the life and writings of Marcus Tullius Cicero.

Download the essay from SSRN here.

June 15, 2009

Call for Papers

From the International Journal for the Semiotics of Law, announcement of a Call for Papers for a Special Issue. Submit abstracts to the editors of the special issue,
Jan Engberg Aarhus School of Business, Aarhus University: je@asb.dk

Kirsten Wølch Rasmussen, Aarhus School of Business, Aarhus University: kwr@asb.dk


This is an invitation for a special issue of the International Journal for the Semiotics of Law. The issue should comprise papers on the cognitive or knowledge oriented aspects of the socially-situated process of constructing meaning from legal sources (statutes, contracts, …) that legal specialists perform when engaging in legal argumentation (for example when writing judgements or law review articles). Contributions based on empirical research into the actual cognitive processes of legal experts are especially welcome, as well as other types of scientifically based papers on the relations between meaning making through legal argumentation and cognitive or knowledge oriented factors like knowledge structures, metaphors, or individual knowledge bases, just to mention a few examples.

Only original and unpublished articles will be considered. The refereeing process follows the normal double blind review process of the International Journal for the Semiotics of Law.

Date of submission to the editors (Abstracts): 1 August 2009.

Outcome for authors: 1 September 2009

Date of submission (Full papers): To be submitted by 30 October 2009.

Final version of papers: To be submitted by 15 February 2010.

Editors of the special issue:

Jan Engberg Aarhus School of Business, Aarhus University: je@asb.dk

Kirsten Wølch Rasmussen, Aarhus School of Business, Aarhus University: kwr@asb.dk

Length of preliminary abstract: approx. 750 words + bibliography.

Language: English or French

We expect to accept up to 6 papers for publication in the special issue.

Manuscript length: up to 10.000 words

Language of manuscripts: English or French

Title Page: on a separate page include the name of the author; Title of the article; Affiliation and e-mail addresses of the author.

Abstract: Please provide an abstract of 100 to 150 words. The abstract should not contain any undefined abbreviations or unspecified references.

Acknowledgements: Acknowledgments of people, grants, funds, etc. should be placed in a separate section before the reference list/bibliography. The names of funding organizations should be written in full.

Text format: Justified double space 12 Point Times New Roman font; Justified double space 10 Point Times New Roman for quotes of more than 40 words to be set out from the text by a line above and below; Footnotes justified double space 10 Point Times New Roman [to be used sparingly].
No extra line between paragraphs.
Indent paragraphs by 1 cm from the margin except for the first paragraph of each section.

Citation style:

In the article itself, number links appear to the bibliography, for example: [2, p. 182], [4, p. 93; 1, p. 55] or [5; 6; 8]

The References should be listed at the end of the article in the order in which the references appear in the text of the article, for example:

Derrida, Jacques. 1992. Given Time: I. Counterfeit Money. Chicago and London: University of Chicago Press.
Derrida, Jacques. 2002. Acts of Religion, ed Gil Anidjar. New York and London: Routledge.
Derrida, Jacques. 1994. Specters of Marx: The State of Debt, the Work of Mourning, and The New International, translated by Peggy Kamuf. New York and London: Routledge.
Bennington, Geoffrey and Jacques Derrida. 1993. Derridabase/Circumfession. Chicago and London: University of Chicago Press.
Marrati. Paola Marrati. 2005. Genesis and Trace: Derrida Reading Husserl and Heidegger. Stanford, California: Stanford University Press.

The International Journal for the Semiotics of Law (2008) 21(2) can usefully be consulted as a guide.

References/Bibliography: The list of references should only include works that are cited in the text and that have been published or accepted for publication.

Footnotes: Footnotes are numbered consecutively and should be placed after the punctuation

June 11, 2009

Getting Published

The manager of the acquisitions department for the University of Michigan Press suggests that women authors need to "get more aggressive" about approaching presses with their manuscripts and she offers suggestions on just how to do that. Read Ellen Bauerle's essay on getting your work in front of acquisitive eyes here.

Assessing the Law and Literature Movement

Paul J. Heald, University of Georgia Law School, has published "The Death of Law and Literature," as UGA Legal Studies Research Paper No. 09-006. Here is the abstract.
Thirty years after the publication of James B. White's iconic THE LEGAL IMAGINATION, Law & Literature scholarship has gained no traction in the practice of law. This essay, prompted by a session of teaching Ariel Dorfman's DEATH AND THE MAIDEN to federal judges, explains why our scholarship has no impact, but fiction itself is very influential.

Download the paper from SSRN here.

June 9, 2009

A New Book On Lawyers and Television

Newly published: Lawyers in Your Living Room! Law on Television (Michael Asimow, ed., Chicago: ABA, 2009).

Actors Sam Waterston (I'll Fly Away) and James Woods (Shark) have contributed forewords to this new collection of essays on lawyers, law shows and the craft of writing legal dramas and comedies. Other authors include Carrie Menkel-Meadow, Michael Asimow, Nancy S. Marder, Francis (Mike) Nevins, Bob Jarvis, Kimberlianne Podlas, Taunya Banks, and from across the pond, Steve Greenfield, Guy Osborn, and Peter Robson, and covers such shows as The Defenders, Rumpole of the Bailey, Shark, Law & Order, Matlock, daytime "judge" shows, and foreign legal shows. A great gift for Father's Day, graduation, entering first years....(Full disclosure: I have a piece in the book as well). The entire work (more than 400 pages) is ably edited by Michael Asimow.

Salinger Sues Over a Sequel

Ron Rosenbaum comments for Slate on the J. D. Salinger lawsuit over 60 Years Later: Coming Through the Rye here.

More On the Norms of Comedy

Jennifer E. Rothman, Loyola of Los Angeles Law School, has published "Custom, Comedy and the Value of Dissent," at 95 Virginia Law School In Brief 19 (2009). Here is the
In this essay, I comment on Dotan Oliar and Christopher Sprigman's article, There's No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, 94 Va. L. Rev. 1787 (2008). Their study of the quasi-intellectual property norms in the stand-up comedy world provides yet another compelling example of the phenomenon that I have explored in which the governing intellectual property regime takes a backseat to social norms and other industry customs that dominate the lived experiences of many in creative fields. The microcosm of stand-up comedy reinforces my concern that customs are being used to expand IP law both inside and outside the courtroom. This response to Oliar & Sprigman rejects the suggestion that the existence of social norms challenges the incentive rationale for copyright law. I also conclude that the norms that have developed in the stand-up community are not worthy of judicial or legislative deference and suggest some ways that comics and the courts can disrupt the restrictive norms that Oliar and Sprigman identify.

Download the essay from SSRN here.

June 8, 2009

Word Play

Cartalk.com promoted a great new website last Saturday, Craig Damrauer's More New Math, which is word play for those of us who prefer not to return to those thrilling days of yesterday when 1 plus 2 equals something other than 3 (don't ask me, I never did get it). Among Mr. Damrauer's funnies: DEADLINE = IT COULD BE BETTER - FINDING THAT OUT (for all of us with a law review article due somewhere this week). Another one: EXONERATION = BEYOND A REASONABLE DOUBT + REASONABLE DOUBT. I think that one could also be ACQUITTAL, but never mind.

Women and the First Amendment

Amy M. Adler, New York University, School of Law, has published "Medusa: A Glimpse of the Woman in First Amendment Law," forthcoming in the Yale Journal of Law and the Humanities. Here is the abstract.
In this Article, I attempt to solve a First Amendment puzzle by turning to a surprising source. Here is the First Amendment puzzle: why would the Supreme Court offer robust First Amendment protection to non-obscene pornographic film, while relegating live erotic dance, far less sexually explicit, to the very "perimeter" of First Amendment protection? I suggest that one way to understand this puzzle can be found in the ancient myth of Medusa, the monster Freud interpreted as standing for the castrated female genitals. A direct confrontation with Medusa's stare was deadly. But Perseus slayed Medusa by outsmarting her: he looked at her only in the reflection of his shield, thereby transforming her into the passive object of his gaze. I interpret Perseus's shield as a precursor of pornographic film. In my view, live erotic performance, in which the dancer interacts with the audience and claims her own role as a First Amendment speaker, conjures up some of the threat of the unmediated stare of Medusa. In contrast, pornographic film, like Perseus's shield, tames the monstrous threat of the woman's direct stare. Thus, I read the Court's puzzling distinction as bound up in anxieties about castration, the female gaze, and the possibility of female agency and speech that the gaze symbolizes. Ultimately, my goal in this article is to show how longstanding, indeed mythic, cultural assumptions about gender, sexuality and representation penetrate the Court's doctrinal analysis.

Download the Article from SSRN here.

June 3, 2009

Judge Sotomayor and Nancy Drew

Supreme Court nominee Sonia Sotomayer discussed Nancy Drew with Senator Barbara Mikulski (D-Md). Both apparently remember the titian-haired eighteen-year-old detective from River Heights fondly, as do a lot of us. I had nearly all the Nancy Drew books, and read and re-read them avidly, although as I got older, I also read the Hardy Boys, which I liked for the mysteries (I thought the female characters were pretty useless though).

For more on Nancy and her influence, see

Sherrie A. Inness, Nancy Drew and Company: Culture, Gender, and Girls’ Series (1997).

Glenwood H. Irons, Feminism in Women’s Detective Fiction (1995).

Bobbie Ann Mason, The Girl Sleuth (1995).

Melanie Rehak, Girl sleuth : Nancy Drew and the women who created her (2005).

See also

The History of Nancy Drew

The Nancy Drew television series (1977-1978), starring Pamela Sue Martin, is currently available on DVD. The film, starring Emma Roberts, is also available, as are the films starring Bonita Granville, made in the 1930s.

How Much Do a Judge's Words Affect a Juror's Verdict?

Christopher Terranova, New York University School of Law, has published Loaded Words in the Courtroom. Here is the abstract.

A few judges recently have banned words like victim from their courtroom, concerned that the defendant will be prejudiced. However, some commentators believe that such steps are counterproductive and have no basis in empirical literature. In addition, some states, like New Jersey, continue to use the word victim in their model jury instructions for crimes in which consent is a defense (e.g., sexual assault). In this paper, I examine the existing psychology literature regarding loaded words, finding that loaded words like "victim" can bias individual jurors in some criminal cases. If judges use the word in situations in which jurors may think the judge is referring to the person allegedly injured, the jurors may be more likely to find the defendant guilty, at least before deliberation with other jurors. In addition, I describe a web experiment that I conducted to determine whether jurors were more likely to find the defendant guilty when the complaining witness was described as a victim than a complainant in the judge's closing instructions. Participants in the experiment were shown a video of a simulated sexual assault trial, which concluded with a judge reading the New Jersey model instructions mentioning the word victim about ten times (participants in the control group saw a video in which the judge used the word complainant).

Download the paper from SSRN here.

Textbook Cover Images and Law

Sarah Beresford, University of Lancaster, has published Judging a Book by its Cover The Deployment (and) Unsettling of Familial Images on Family Law Textbook Covers , forthcoming in the Griffith Law Review. Here is the abstract.

An individual's legal identity can be constituted by a multitude of often-complex notions, and is not necessarily of their own construction. Legal discourse has a significant role to play in the construction of an individual's legal identity and can apply to gender identity as much as any other. This construction can occur not just through what is written or said, but also by and through the image(s) of law. The image presented to the viewer is prescriptive in both its nature and operation. This paper deliberately chooses a medium which is often omitted from analysis - the front cover of an undergraduate textbook - and offers a 'reading' of some of the images that are selected to adorn certain text family law textbooks. It argues that the cover can be read as visual rhetoric as powerful and as constitutive of legal identity as the written words within the book. If left unchallenged, law's cultural prejudices are often shielded from critical examination, leaving the operation of 'power' and 'truth' within discourse to continue uncritiqued and unquestioned.

Download the article from SSRN here.

Comedy Is Easy, Dying Is Hard

Actor Mike Doyle explains how to die effectively on camera.