January 25, 2010

Ponzi For the Twenty-First Century, By Way Of Wall Street

Alessandra Stanley on "Damages" and that ripped-from-the-headlines feel as the third season premieres. Another legendary actor, Len Cariou, visits as the scammy baddie Patty Hewes (Glenn Close) has in her sights.

January 22, 2010

Roman Law's Influence On the English Legal Heritage

James Lee, University of Birmingham School of Law, has published "Confusio: Reference to Roman Law in the House of Lords and the Development of English Private Law," as 5 Roman Legal Tradition, 24-66 (2009). Here is the abstract.
This paper examines the use of Roman law by members of the House of Lords in three recent decisions: Fairchild vs. Glenhaven Funeral Services [2002] UKHL 22; Foskett vs. McKeown [2001] 1 AC 102; and OBG vs. Allan [2007] UKHL 21, The contrasting views of Professor Peter Birks and Professor Sir Basil Markesinis are considered, and it is argued that within the decisions can be seen the value of reference to Roman law.

Download the article from SSRN at the link.

Malcolm Gladwell and Atticus Finch

Lance McMillian, Atlanta's John Marshall Law School, has published "Atticus Finch as Racial Accommodator: Answering Malcolm Gladwell's Critique." Here is the abstract.
Atticus Finch – the fictional hero of Harper Lee’s 'To Kill A Mockingbird' – is a legal icon. The legendary status of Finch is confirmed by his standing in the non-legal world of broader culture. In 2003, the renowned American Film Institute deemed Atticus the greatest movie hero of all-time. That a lawyer would be worthy of this honor is nothing short of remarkable and demonstrates that the stature of Atticus Finch has assumed mythic proportions in American culture. Atticus is not just a lawyer; he is justice in the flesh.

Enter best-selling author Malcolm Gladwell. Last year, Gladwell made waves in The New Yorker by arguing that, far from being a bright spot of racial enlightenment in a time of darkness, Atticus Finch instead made an immoral peace with the world of Jim Crow Alabama. While Gladwell is not the first to criticize the Atticus myth, he is the most culturally influential person to do so, which is an important development. The Atticus-As-Racial-Accommodator charge essentially posits that Atticus was all-too-comfortable with the racism (and racists) that surrounded him every day. Gladwell wonders: Where is the moral outrage? In response, I argue that Gladwell misdiagnoses Atticus because he neglects the important role that Finch’s Christian faith plays in who he is as a person. To understand Atticus, one must first understand Jesus and his teaching. Finch is a New Testament-style prophet whose worldview propels him to this truth: Love and understanding open doors; judgment and condemnation close them. Consequently, his quiet and gentlemanly interactions with the racists in his midst suggest neither passivity nor appeasement, as Gladwell contends. Instead, they are a form of character and strength – derived from Finch’s faith in Jesus – that imbue Atticus with moral authority in the eyes of the community. Moreover, while Gladwell rightly stresses the need of legal change in bringing equality to the South, the kind of moral change led by Finch was likewise necessary. Law is only half of the equation.

This year marks the 50th anniversary of To Kill A Mockingbird. Combined with the cultural significance of Gladwell’s recent revisionist foray, this milestone means that now is a particularly apt time to look at Atticus with fresh eyes and assess his character anew.

Download the paper from SSRN at the link.

Extraordinary Measures

From the New York Times, a review of Harrison Ford's new film, Extraordinary Measures.

Shakespeare and Moot Court

Desmond Manderson, McGill University Faculty of Law, and Paul Yachnin have published "Shakespeare and Judgment: The Renewal of Law and Literature." It will appear as "Shakespeare Rules: Remembrance of Things Past" in volume 15 of The European Legacy (2010).
Here is the abstract.

Legal theorist Desmond Manderson and Shakespearean Paul Yachnin develop parallel arguments that seek to restore a public dimension of responsibility to literary studies and a private dimension of responsibility to law. Their arguments issue from their work as the creators of the Shakespeare Moot Court at McGill University, a course in which graduate English students team up with senior Law students to argue cases in “Court of Shakespeare,” where the sole Institutes, Codex, and Digest are comprised by the plays of Shakespeare. Yachnin argues that modern literary studies suffers from impermanence and isolation from real-world concerns and that it can redress these limitations — developing attributes of corrigibility, temporality, judgment, and publicity — by learning from law. Manderson finds modern legal judgment bereft of affective engagement with the subjects of law and wedded to an ideal of objectivity, regulation, and impersonality. Literature can restore to legal judgment the elements of narrative, character, context, and self-reflection. Together, the essays argue that the question of judgment, so integral to the disciplines of law and of literature, needs the renewal that an inter-disciplinary engagement provides.

Download the paper from SSRN at the link.

January 20, 2010

The History of the Legal Profession

David Sugarman, Lancaster University Law School, has published "Beyond Ignorance and Complacency: Robert Stevens’ Journey Through Lawyers and the Courts," in volume 16 of International Journal of the Legal Profession (2009). Here is the abstract.
Brian Abel-Smith and Robert Stevens’ Lawyers and the Courts (LATC), published in 1967, was the first major critical social history of the English legal system from the industrial revolution to modern times (1750-1965). It has proved matchless. It is the definitive book in the field, and its core arguments remain largely unchallenged more than forty years after its publication. Challenging the dominant traditions of doctrinal legal scholarship and lawyers’ legal history by emphasising the importance of serious empirical research on current problems, it offered a less reverential alternative to the prevailing orthodoxies of the day and asked whether England’s legal services and legal education had developed in a way that best served the public interest.

This paper examines how and why LATC came to be written, its reception and its larger significance. It addresses Robert Stevens’ intellectual trajectory, thereby, providing a window on the history of legal education and thought in England during the 1950’s and ‘60’s and the significance of the United States and Africa to those dissatisfied with England’s dominant tradition of legal formalism. It demonstrates both the coercive structures by which the legal profession sought to silence criticism of the status quo and some of the ways in which Stevens’ projects and ideas for realizing them are still important for the education of present day lawyers, scholars and law reformers.

Part One begins with a brief overview of the principal arguments and concerns of LATC. Parts Two and Three seek to historicize LATC. Part Two places Stevens in the context of the personal and intellectual influences of his formative years, 1940-65, and relevant legal-political preoccupations: including the importance of history to his thinking; his disappointment with Oxford legal education; the confines of English legal scholarship, the legal profession and legal culture; the excitement of American legal education and legal practice, in particular, his postgraduate studies at Yale Law School and his encounter with Myres McDougall (1906-1998) and post-Realism; the importance of his experience of teaching at the University of East Africa in Dar es Salaam; and the vital influence of Richard Titmuss (1907–1973) and Brian Abel-Smith (1926-1996), two pioneering British social policy researchers, leading policy advisors and chroniclers of and campaigners against social injustice. Part Three links Stevens’ work to England in the heady days of the early-mid 1960’s, a period when change, and the possibility of effecting political, cultural and social change, was “in the air”. Part Four considers LATC’s controversial reception when it was published in 1967 and seeks to clarify why it encountered fierce opposition and the intellectual tradition that LATC reflected, sustained and promoted. The concluding section briefly considers LATC’s impact on and significance for the fields of legal history and legal services.

This essay makes extensive use of interviews with Robert Stevens and archival research and is published in a special issue of the International Journal of the Legal Profession on the work of Robert Stevens, the other contributors being: Richard Abel, Tony Bradney, Fiona Cownie, Bill Felstiner, Alan Paterson and William Twining.

Download the article from SSRN at the link.

Antigone and the Law

Bonnie Honig, American Bar Foundation, has published "Antigone’s Two Laws: Greek Tragedy and the Future of Humanism," as American Bar Foundation Research Paper No. 09-05. Here is the abstract.
In Sophocles' Antigone there is one speech that attracts the ire and admiration of critics. In what Creon describes as her dirge for herself, Antigone says she would not have violated Creon’s edict against burying her brother on behalf of husband or children because she could always have others, but (with her parents dead) only her brother is irreplaceable. Humanist critics from Goethe to Jebb find the speech abhorrent while anti-humanists like Lacan admire it as a manifestation of Antigone’s monstrous desire. Both sides elide the politics of the speech, and position it as (anti)ethical. This paper argues for a political reading of the speech which is neither humanist not anti-humanist. The speech parodies, cites, and mimics Creon, Pericles, and a story from Herodotus in an effort to find a way to stage the protagonist’s concerns about the status of natal versus conjugal family relations but also the status of the dead in the democratic polis and the quality of authority relations in times of tension between the democratic polis and elites. Read contextually and intertextually, this speech, historically rejected by devotees of Sophocles’ heroine as inauthentic, is actually the key to the play and to developing further an agonistic humanism that is not exclusively ethical nor extra-political in its aspirations.

Download the paper from SSRN at the link.

ABC's New Lawyer Drama Premieres Thursday Night

"The Deep End" premieres tomorrow night on ABC at 8 p.m., 7 Central Time. In the pilot: "Dylan is given an impossible pro-bono custody case; a 90-year-old man signs an agreement, thinking that Beth is his daughter; Liam tries to get a client to sign with the firm under false pretenses; Addy gets attention when she speaks her mind." Can you say "Disciplinary rules"? Really quickly?

Here are some early reviews: from SFGate; the New York Daily News; Are You Screening?

Charles Reade and the History of Victorian Copyright Law

Barbara Lauriat, University of Oxford Faculty of Law, has published "Charles Reade's Roles in the Drama of Victorian Dramatic Copyright," in volume 33 of the Columbia Journal of Law & the Arts (2009). Here is the abstract.
The following article describes the eccentric dramatist, novelist, journalist, and barrister Charles Reade’s direct involvement in shaping the UK law of copyright - particularly copyright in dramatic works. In addition to publishing his writings on the subject, he was active in bringing and supporting suits that led directly to changes in the law protecting dramatic works, as well as the formation of the Royal Commission on Copyright in 1875. His own questionable dealings with the works of others, however, provide a counterpoint to his zealous arguments in favor of protection, as exemplified by the story of his dramatization of Ralph the Heir, a novel written by Royal Commission member Anthony Trollope.

Download the article from SSRN at the link.

January 18, 2010

Juries and Narrative

Robin H. Conley, UCLA Department of Anthropology, and John M. Conley, University of North Carolina, Chapel Hill School of Law, have published "Stories from the Jury Room: How Jurors Use Narrative to Process Evidence," at 49 Studies in Law 25 (2009). Here is the abstract.

This paper analyzes the ways in which jurors use everyday storytelling
techniques in their deliberations. It begins by reviewing the literature on
jurors receive and process evidence, emphasizing narrative and
storytelling. It
then presents some new, qualitative linguistic data drawn
from actual jury
deliberations, which shed light on jurors' standards of
evidence and proof, as
well as on the persuasive tactics they use in dealing
with each other. Although
these data are limited, they provide an
interesting basis for assessing existing
ideas about jury
evidence-processing and thinking more broadly about the
strengths and
weaknesses of the jury system.

Download the Article from SSRN at the link.

January 15, 2010

A New Book on The Law and Harry Potter

New Collection: The Law and Harry Potter, edited by Jeffrey E. Thomas and Franklin G. Snyder (Carolina Academic Press, 2010). This volume considers the depiction of law and legal institutions in J. K. Rowling's Harry Potter novels. It contains more than twenty chapters by legal academics from the U.S. and abroad. The chapters are organized in five sections: Legal Traditions and Institutions, Crimes and Punishments, Harry Potter and Identity, the Wizard Economy, and Harry Potter as an Archetype. Some chapters analyze the way law and legal institutions are portrayed, and what these portrayals teach us about concepts such as morality, justice, and difference. Other chapters illustrate or analyze legal issues, such as human rights, actual innocence, and legal pedagogy. The volume is suitable for undergraduate or law school courses, and will be of interest to those Harry Potter fans who also have an interest in law and the legal profession.

A Collection on Law and Magic

New publication: Law and Magic: A Collection of Essays (Christine A. Corcos, ed., Durham: Carolina Academic Press, 2010). This collection of 24 essays explores the very rich ways in which the rule of law and the practice of magic enrich and inform each other. The authors bring both a U.S. and a comparative law perspective while examining areas such as law and religion, criminal law, intellectual property law, the law of evidence, and animal rights. Topics include alchemy in fifteenth-century England, a discussion of how a courtroom is like a magic show, stage hypnotism and the law, Scottish witchcraft trials in the eighteenth century, the question of whether stage magicians can look to intellectual property to protect their rights, tarot card readings and the First Amendment, and an analysis of whether a magician can be qualified as an expert witness under the Federal Rules of Evidence.

January 12, 2010


Palma Strand, Creighton University School of Law, has published "Law as Story: A Civic Concept of Law," at 18 Southern California Interdisciplinary Law Journal 603 (2009). Here is the abstract.
This article introduces a social constructionist civic concept of law, which emphasizes the story nature of law and the fact that as a complex social system law emerges from and is grounded in collaborative communications among citizens. In this view, if the law-story reflects the stories of a broad range of those for whom it purports to speak and acknowledges their agency in enacting it, it is more likely to be embraced by that community.

In applying the law-as-story complex social system approach to law to the doctrinal issue of political gerrymandering, the article explores the concept of voice - individuals making meaningful contributions to the law-story. In applying the approach to the doctrinal issue of race-based K-12 educational initiatives, the article illuminates the idea of resonance, the complement of voice, which captures the process of the law-story coming back to the individuals within a community.

Download the article from SSRN at the link.

January 6, 2010

January 4, 2010

Legal Language and Its Meaning

Andrei Marmor, USC Gould School of Law, has published "Can the Law Imply More than it Says? On Some Pragmatic Aspects of Strategic Speech," as USC Law Legal Studies Paper No. 09-43. Here is the abstract.

The content of the law is often determined by what legal authorities communicate. Both lawyers and philosophers of language know very well, however, that the full content of communication in a natural language often goes beyond the meaning of the words and sentences uttered by the speaker. Semantics and syntax are essential vehicles for conveying communicative content, but the content conveyed on particular occasions of speech is often pragmatically enriched by various factors. The standard model in the pragmatics literature, however, focuses on ordinary conversations, in which the parties are presumed to engage in a cooperative exchange of information. The legal context offers an example of conversation that is strategic in nature. Part of my purpose here is to show that the pragmatics of strategic conversation has certain features that deviate from the standard model.

The first section focuses on two main instances of implied communicative content, namely, implicatures and utterance presuppositions. I argue that in both of these cases, there is an important distinction between implied content that is semantically encoded in the utterance - and therefore forms part of what the law communicatively determines - and implied content that is essentially contextual and thus much more problematic in the legal case. In the second section I focus on the idea of pragmatic commitments and their normative foundations. My main concern here is to explore the normative framework of strategic speech and ways in which it differs from ordinary conversations. Finally, I will try to explain in what sense legal speech is strategic, and demonstrate how the pragmatic aspects of strategic speech actually work in the legal context.

Download the paper from SSRN at the link.

Law and Power in "Sir Gawain and the Green Knight" and "A Man For All Seasons"

Dan E. Stigall, U. S. Army JAG Corps, has published "The Rule of Kings and the Rule of Law: Representations of Law and Power in 'Sir Gawain and the Green Knight' and 'A Man for All Seasons'." Here is the abstract.
The tension between the desires of the potentate and the 'immutable' nature of law is one that resonates in the human psyche because of the drama inherent in such a struggle. This theme gained in importance after the emergence of the modern state, which separated the notion of political authority from divine power and fundamentally altered the concept of the sovereign. This paper explores the Pearl Poet's 'Sir Gawain and the Green Knight', and Bolt's 'A Man for All Seasons' - different plays authored in different times which, nonetheless, contain common elements such as the interplay between the power of kings and a higher legal authority that seeks to bind them. It is in that struggle that both plays derive a common source of drama, but articulate very different views of the relationship between power and law.

Download the paper from SSRN at the link.