April 28, 2010

Tax Lawyers At the Movies

This post probably would have been à propos April 15, but it's still interesting. From Paul Caron's Tax Prof blog, here are "Tax Movies," courtesy of guest blogger Robert G. Nassau at Syracuse Law.

In addition to the films mentioned, I'd suggest such goodies as Catch Me If You Can (2002) (the story of impersonator Frank Abagnale, Jr.), Jean de Florette (1986), Stranger Than Fiction (2006) (an IRS auditor can suddenly hear someone narrating his life), The Main Event (1979) (tax shelter), The Widow's Might (2009) (a widow fights back against property taxes), and Billy Bathgate (1991) (tax evasion). Check out www.imdb.com for additional films on taxes and their effect on life, the universe, and everything.

April 27, 2010

Evaluating the CSI Effect

Jessica D. Gabel, Georgia State University College of Law, has published Forensiphilia: Is the Public Fascination with Forensic Science a Love Affair or a Fatal Attraction?

It is forthcoming in the New England Journal on Criminal and Civil Confinement. Here is the abstract.

In February of 2009, the National Academy of Sciences released its much anticipated diagnosis and prescription for what ails the forensic science community. The Report confirmed the low but steady noise that had been building in the criminal justice system for at least a decade: that, with the exception of DNA evidence, much of what is presented as forensic science is not really science at all. Instead, a large segment of the high-tech pageantry seen on television and now expected and employed in court would fail to clear even the lowest hurdles of stringent scientific inquiry. Nonetheless, forensic evidence is often used to demonstrate the certainty of a person’s guilt by authoritatively “matching” evidence from the crime scene or victim to the suspect. The Report sounded the alarm as to the needs of the forensic science community, raised critical concerns, and even suggested a remedy by calling for the creation of an independent agency to regulate the field of forensic science. Moreover, it came at a time of “forensiphilia” – where forensic science is itself a celebrity that captivates and enchants audiences. One year after the Report caused ripples throughout scientific and legal circles, it seems as though, in some ways, the shock has passed, numbness has set in, and progress is idle. This article will examine the evolution of forensic science on television and in the courtroom. It will evaluate whether DNA is the reliable anomaly among the forensic science disciplines. Finally, along a similar vein to the Report’s resolution to strengthen forensic science, this article will call for a strengthening in legal education aimed at fostering both an understanding of the advances in science and a skepticism towards methods that inherently lack a solid foundation in science.

Download the article from SSRN at the link.

April 26, 2010

Rights Talk in Science Fiction

Christine A. Corcos, Louisiana State University Law Center, has published Visits to a Small Planet: Rights Talk in Some Science Fiction Film and Television Series from the 1950s to the 1990s. It is forthcoming in the Stetson Law Review. Here is the abstract.

As early as the seventeenth century, authors, particularly satirists, used the travel essay as a means to examine and critique societies, including their own. If an artist’s government discouraged or banned political or social critique, he was necessarily forced to disguise his criticism as fiction - the more fanciful, the better. This practice has carried over to the genre of science fiction (SF).

While authors fictionalize many of the elements in SF to make their stories more exciting and bizarre, some elements have made a transition into popular culture because they resonate with the human popular imagination. As a result, many individuals believe that the elements actually exist. Among them are popular methods of alien transportation, such as the rocket (often pictured as the “rocket to Mars”), the flying saucer, and the alien being interested in making contact with a human, either for benign or (more often) nefarious purposes. The idea that an alien means to visit Earth in order to destroy the planet or to cause us harm is one that quickly becomes a theme in novels, films, and television beginning in the mid-twentieth century, fed by actual political and cultural events.

These ideas resonate with human imaginations or they are embraced by spiritual beliefs. Viewers’ familiarity with real life space travel, which increases plausibility as well as the maintenance of traditional SF memes, allow SF writers to use the genre’s conventions to continue to critique society.

SF authors continually use human beings as the yardstick by which to measure aliens. So, while such films and shows may seem to invite us, through the use of the alien lens, to critique human society, they actually invite us to re-examine human society from a different, albeit a human, perspective. As the genre critiques human society from two perspectives, SF is actually well suited to examine the issue of civil and human rights.

This Article examines the critique of human society’s development and use of such rights within a sampling of SF film and television programs from the 1950s to the 1990s. Part II analyzes the treatment of civil rights within the alien invasion and infiltration narratives of the time period. Part III discusses the transition from the foreign alien-invasion narrative to the domestic alien narrative and its effect on the treatment of civil rights. Part IV explores the civil rights issues represented in the friendly alien-visitor narrative of the 1960s television show My Favorite Martian. Part V examines the civil rights questions the late 1980s and early 1990s television series Alien Nation poses. Part VI analyzes the civil rights issues the 1990s television series 3rd Rock from the Sun raises.

Download the article from SSRN at the link.

Constitutional Law in the Movies

David Ray Papke, Marquette University Law School, has published Oil and Water Do Not Mix: Constitutional Law and American Popular Culture, as Marquette Law School Legal Studies Paper No. 10-09. Here is the abstract.
Why have most fictional films and television series purportedly involving constitutional issues been commercial and artistic failures? Focusing in order on “First Monday in October” (1981); “The Pelican Brief” (1993); and “The Court” and “First Monday,” two short-lived American television series from 2002, this article suggests the works fail not because of a lack of creativity but rather because of the way they were produced. In particular, the article argues the culture industry’s use of stock characters, devotion to familiar conventions, and reliance on established genres virtually preclude anything resembling meaningful constitutional deliberation and discussion. These aspects of pop cultural production are industrial imperatives, but stock characters, familiar conventions, and established genres limit the intellectual range and depth of films and television series. These limitations are especially pronounced when consideration of the Constitution is a possibility.

Download the paper from SSRN at the link.

The Eden Narratives and Law

Geoffrey P. Miller, New York University School of Law, has published The Dark Age: How the Biblical Narratives Demonstrate the Necessity for Law and Government as NYU School of Law Public Law Research Paper No. 10-18. Here is the abstract.
In earlier work I argue that the Garden of Eden story in the book of Genesis explores a basic question for political theory: why people have an obligation to obey the law. The narratives that follow describe a “Dark Age” in world history characterized by accelerating violence and ending in a catastrophic flood. These texts expand the analysis of the Eden narratives by asking whether human beings can achieve a good life in the absence of government and law. The narratives describe an experiment in which people interact strategically with one another in an environment where cooperation can generate a surplus but defection from cooperative arrangements is always possible. The message of the Dark Age texts is that, at least under the specified conditions of scarcity, self-interest, and character types, people will not achieve a good life in the absence of government and law.

Download the paper from SSRN at the link.

April 22, 2010

Call For Proposals: New Series

Vijay K. Bhatia and Anne Wagner, series editors, are very pleased to announce that Ashgate will edit a new Series entitled Law, Language and Communication. The Series welcomes proposals - both edited collections as well as single-authored monographs - emphasizing critical approached to law, language and communication, identifying and discussing issues, proposing solutions to problems, offering analyses in areas such as legal construction, interpretation, translation and de-codification.

April 21, 2010

Legal Practice and Education in Edinburgh in the Early Twentieth Century

Hector Lewis MacQueen, University of Edinburgh School of Law, has published Lawyers' Edinburgh 1908-2008, at 8 Book of the Old Edinburgh Club (new series) 27 (2010). Here is the abstract.
This paper considers the physical setting of legal practice and education in Edinburgh in 1908 and compares it to the position in 2008. It is a contribution to the centenary celebrations of the Old Edinburgh Club in 2008.

Download the paper from SSRN at the link.

April 20, 2010

The Wire, National Security, and War

Dawinder S. Sidnu has published Wartime America and The Wire: A Response to Posner’s Post-9/11 Constitutional Framework in volume 20 of the George Mason Univesrity Civil Rights Law Journal (2009). Here is the abstract.

Pragmatists subscribe to the view that an individual’s practical experiences shape and inform an individual’s concept of the law. In Not a Suicide Pact: The Constitution in a Time of National Emergency, one of the legal community’s most admired and prolific pragmatists, Judge Richard A. Posner, presents his thoughts on how courts should resolve questions of constitutional law that implicate national security and individual rights.

As the relationship between security and liberty remains largely undefined in the post-9/11 world, Posner offers an important and timely perspective on a critical area of constitutional law. His framework is one in which security interests invariably supercede liberty interests in times of crisis. As such, according to Posner, an executive possesses significant authority to respond to national security needs in wartime and despite established rights, the judiciary should commensurately play a limited checking role on relevant executive action, profiling and discrimination of Muslims may be condoned, torture can be used to elicit information from detainees, and an executive may invoke the “law of necessity” to step outside of the “law of the Constitution.”

This essay uses an element of practical reality -- specifically themes from the acclaimed television series on law enforcement and crime, The Wire -- to challenge each of these conclusions from Not a Suicide Pact. Drawing on those themes, it argues that security and liberty are not locked in a zero sum game, that the judiciary should robustly check executive action especially in these perilous times, that profiling and discrimination of Muslims in the absence of any evidence of wrongdoing should be deemed impermissible, that torture is not only inconsistent with American legal obligations but also counterproductive to the war campaign, and finally that the executive is bound by and must not act beyond the Constitution, exigent circumstances and moral positions notwithstanding.

The essay thus suggests that the courts should give pause to the direction of constitutional law urged by Posner. Appealing to both law and practical reason, it admits that the law must be flexible in the post-9/11 era, but posits that the law and traditional constitutional norms still must guide and restrain the executive temptation to defend the nation at all costs.

Download the article from SSRN at the link.

Note also that some college instructors are using the show in courses. Here's a story from NPR.

April 19, 2010

More Sports Law in the Humanities

Douglas E. Abrams, University of Missouri School of Law, has published Sports in the Courts: The Role of Sports References in Judicial Opinions, in 15 Villanova Sports and Entertainment Law Journal (2010). Here is the abstract.
In cases with no claims or defenses concerning sports, the Supreme Court and lower federal and state courts frequently publish opinions that draw analogies to the rules or terminology of sports familiar to broad segments of the American people. Sports analogies can help the court explain factual or legal points because today’s generation, including the lawyers and litigants who comprise the prime audience for written opinions, grew into adulthood amid an unprecedented saturation of professional and amateur sports in the broadcast and print media, and more recently on the Internet.

This article surveys the broad array of sports whose references now lace written judicial opinions, and then discusses the use and misuse of these references. Sports references can help courts explain and resolve complexity, but may also implicate Rule 1.3 of the Model Code of Judicial Conduct by detracting unacceptably from the prestige indispensable to the judicial role. A sports reference remains incompatible with judging when a reasonable reader would conclude that the court invoked it primarily for the judge’s personal pleasure and not to facilitate the communication of ideas.

Download the article from SSRN at the link.

April 13, 2010

The Killing of Oscar Grant

Donald F. Tibbs, Drexel University School of Law, has published Who Killed Oscar Grant?: A Legal-Eulogy of the Cultural Logic of Black Hyper-Policing in the Post-Civil Rights Era as Drexel University Earle Mack School of Law Research Paper No. 1559489. Here is the abstract.
To explain the appalling shooting death of African American Oscar Grant, on January 1, 2009, one must break free of the ‘crime and punishment’ paradigm to reckon the extra-punitive function of American policing as an instrument for the management of dispossessed and dishonored groups. This article places policing in the historical sequence of peculiar institutions that have shouldered the task of defining, confining, and controlling African American’s legal identity alongside slavery, Jim Crow, the American prison system. The recent upsurge in black violence related to policing results from the crisis of the legal system as device for caste control and the correlative need for a substitute apparatus for the containment of lower-class African Americans. In the post-Civil Rights era, the vestiges of policing black bodies alongside the rhetoric of law and order have become linked by a triple relationship of race, policing, and the law spawning a legal continuum that entraps a population of younger black men rejected by the deregulated wage-labor market. The resulting mesh not only perpetuates socioeconomic marginality and symbolically taints the black sub-proletariat, it also feeds the runaway growth of American incarceration. Perhaps more importantly, it plays a pivotal role in the remaking of ‘race’, the redefinition of the citizenry vis-à-vis the U.S. constitution, and the construction of a hyper-policed people in the post-Civil Rights era.

Download the paper from SSRN at the link.

Abraham Lincoln as a Legal Writer

Judith D. Fischer, University of Louisville School of Law, has published Abraham Lincoln as a Legal Writer. Here is the abstract.
This article draws on a recent collection of Abraham Lincoln’s legal papers as well as on secondary sources to show how Lincoln developed his genius as a writer. The article then discusses characteristics that made his writing so eloquent. It concludes that today’s lawyers might profitably emulate Lincoln’s close study of great literature as well as his clear, succinct writing style.

Download the paper from SSRN at the link.

Adrienne Davis on Star Trek and Gran Torino

Adrienne D. Davis has published Film Review: Masculinity & Interracial Intimacy in 'Star Trek' and 'Gran Torino', as Washington University School of Law Working Paper No. 10-03-07. Here is the abstract.
Race has long been a central object of political reflection. The salience of racial difference remains hotly debated, figuring in both “utopian” and “dystopian” visions of America’s political future. If race is a primary configuration of “difference” and inequality in the nation, then intimacy between the races is often construed as either a bellwether of equality and political utopia or a re-inscribing of political dominance, typically represented as sexual predation by men against women. Quite expectedly, these political fantasies and fears are often played out at the multiplex, and we can see them in stark relief in two recent films that seem to have nothing in common, Clint Eastwood’s highly acclaimed but Oscar-snubbed Gran Torino and last summer’s high-octane blockbuster, Star Trek. This film review explores how both films render conventional (white) masculinity as in crisis, threatened by alternative masculine forms. In both films this crisis of masculinity translates into a political one that threatens the values and viability of the community. In both, a carefully negotiated interracial intimacy redeems masculinity, and, in the process, the political future. While interracial intimacy is often configured as heterosexual coupling, in both films, women of color expedite interracial intimacy, but the meaningful and redemptive intimacy is homo-social, between men.

Download the paper from SSRN at the link.


Some early reviews are in on the new series devoted to post-Katrina New Orleans.

April 12, 2010

Open Access To Law and Humanities Writings Via WikiSource

Timothy K. Armstrong, University of Cincinnati College of Law, has published "Rich Texts: Wikisource as an Open Access Repository for Law and the Humanities," as University of Cincinnati Public Law Research Paper No. 10-09. Here is the abstract.
Open access to research and scholarship, although well established in the sciences, remains an emerging phenomenon in the legal academy. In recent years, a number of open access repositories have been created to permit self-archiving of legal scholarship (either within or across institutional boundaries), and faculties at some leading research institutions have adopted policies supporting open access to their work. Although existing repositories for legal scholarship represent a clear improvement over proprietary, subscription-based repositories in some ways, their architecture, and the narrowly defined missions they have elected to pursue, limit their ability to illuminate the ongoing dialogue among texts that is a defining characteristic of scholarly discourse in law and the humanities. One of the wiki-based projects operated by the nonprofit Wikimedia Foundation--the Wikisource digital library - improves upon the shortcomings of existing open access repositories by bringing source texts and commentary together in a single place, with additional contextual materials hosted on other Wikimedia Foundation sites just a click away. These features of Wikisource, if more widely adopted, may improve academic discourse by highlighting conceptual interconnections among works, fostering interdisciplinary collaboration, and reducing the competitive advantages of proprietary, closed-access legal information services.

April 11, 2010

Murder On a Train

ABEBOOKS.COM offers a list of "Murder on the Literary Express: Ten Top Train Thrillers." I've rearranged the list alphabetically by author below.

Agatha Christie, 4:50 From Paddington.
Agatha Christie, Murder on the Orient Express.
Dick Francis, The Edge.
John Godey, The Taking of Pelham One Two Three.
Graham Greene, Stamboul Train.
Patricia Highsmith, Strangers On a Train.
Christopher Isherwood, Mr. Norris Changes Trains.
Andrew Martin, Necropolis Railway.
Ethel Lina White, The Wheel Spins.
Emile Zola, La Bete Humaine.

4:50 from Paddington s also known as What Mrs. McGillicuddy Saw. Murder on the Orient Express has been filmed several times, notably in an all-star version 1974 version with Albert Finney as Hercule Poirot and Lauren Bacall, Jacqueline Bisset, Ingrid Bergman, Sean Connery, Vanessa Redgrave, John Gielgud and other luminaries as the usual suspects, and Richard Widmark as the victim. Alfred Hitchcock turned White's The Wheel Turns into The Lady Vanishes in 1938 with a screenplay by Sidney Gilliat; in 1979 Anthony Page filmed it again; the screenplay was by George Axelrod. Patricia Highsmith's Strangers on a Train is also a favorite with filmmakers. Raymond Chandler and Czenzi Ormonde wrote the screenplay for the 1951 Hitchcock version; word is 2011 may see a remake. Danny DeVito and Billy Crystal starred in the 1987 film Throw Momma From the Train , a comedy (!)version of the 1951 film.

The Director of the South Coast Railroad Museum, located in the colorful little town of Goleta, California, offers his own page of railroad-themed movies here.

April 9, 2010

Examining Antigone

Ruthann Robson, City University of New York, CUNY School of Law, has published "Democracy and Antigone," in volume 39 of the Stetson Law Review (2010). Here is the abstract.
This essay explores democracy, sexuality, gender and legal practices using the frameworks of law and literature. Law and Literature as an enterprise is commonly said to have two distinct strands. One strand focuses upon an artistic product and elaborates the legal themes within it. The other strand focuses upon a legal product, such as a notable United States Supreme Court opinion, and examines its artistry, including its rhetorical or cinematic qualities. This essay explores both strands as well as the territory where the two strands meet.

This essay’s artistic focus is the mythical and literary figure of Antigone. In addition to the standard Sophocles’ version, this essay explores Antigone in the works of French playwright Jean Anouilh, Nigerian playwright Femi Osofisan, and South African playwright Athol Fugard.

This essay’s legal focus is several cases interpreting the meaning of mythical and Greek words. A court in Athens Greece decided a claim about the permissible usage of the term "lesbian," the United States Supreme Court has interpreted the term “Olympics, ” and trademark litigation has considered the term “dyke.”

The confluence of these two strands of literature and law involve further explorations of Sappho as a poet and historical figure, of Derrida’s work on democracy and brotherhood, and of the meaning of “sisterhood” in feminist and legal texts.

Download the Article from SSRN at the link.

April 6, 2010

Raising the Bar DVDs

For Raising the Bar fans, DVDs of the first season are out, and the second season DVDs will be available May 11th.

An Originalist Interpretation of the Ninth Amendment

Louis Michael Seidman, Georgetown University Law Center, has published "Our Unsettled Ninth Amendment: An Essay on Unenumerated Rights and the Impossibility of Textualism," as Georgetown Public Law Research Paper No. 10-11. Here is the abstract.
The Ninth Amendment - our resident anarchic and sarcastic "constitutional jester" - mocks the effort of scholars and judges alike to tame and normalize constitutional law. It is not as if the stern disciplinarians haven't tried. We now have two generations worth of painstaking, erudite, and occasionally brilliant scholarship that attempts to rein it in. Yet the amendment stubbornly resists control. It stands as a paradoxical, textual monument to the impossibility of textualism, an entrenched, settled instantiation of the inevitability of unsettlement. If it did not exist, constitutional skeptics would have had to invent it.

This essay has two parts. In Part I, I present a new and, I hope, persuasive, originalist account of the Ninth Amendment. My claim is that the Amendment deliberately leaves unsettled the status of unenumerated rights. Because of the Ninth Amendment, the Constitution does not "deny" or "disparage" these rights, but neither does it embrace or imply them. The amendment puts off to another day a final reckoning of the extent to which we are bound by constitutional text.

Although I use originalist methodology in Part I, I do not want to be understood as embracing originalism. Instead, this Part is an exercise in internal critique. As Part II explains, the Ninth Amendment states a truth that we would have to deal with whether or not it was part of the original text: No matter how comprehensive, no text can control the force of ideas and commitments that lie outside the text. This simple truth leaves the status of liberal constitutionalism permanently and inevitably unsettled. The day of final reckoning will never arrive.

Download the paper from SSRN at the link.

USA May Offer New Legal Series Next Season

The USA network is nurturing some new shows for next season, including a new legal drama, A Legal Mind, from Aaron Korsh, whose last attempt, The Deep End, sank fairly quickly. A Legal Mind features a "twenty-something" and a corporate lawyer. Well, USA is the home of Psych, which is clever, and Monk, which I loved, as well as Burn Notice, which is MacGyver with a Kafka-esque twist, so I'm anxious to see what A Legal Mind offers us. Could be great.

Symposium On Copyright In Culture

The University of Maryland is hosting UMUC’s Center for Intellectual Property to Host 2010 Symposium on Sustaining Culture in Copyright

WHAT: University of Maryland University College’s (UMUC) Center for Intellectual Property (CIP) will host a three-day workshop, June 22–24, 2010, entitled, “Sustaining Culture in Copyright.” With an influx of new videos, music and textual works, the 2010 symposium will explore better ways to balance the needs of cultural innovation with the rights of owners of creative works.

Peter Jaszi, professor of law, Washington College of Law, American University; and William Patry, senior copyright counsel, Google, Inc., will serve as keynote speakers. Other panel discussions will cover a variety of topics related to copyright, including social media, P2P filesharing, broadband and net neutrality.

For a full list of sessions, topics and speakers, visit www.umuc.edu/cip2010

UMUC’s CIP provides education, research and resources for the higher education community on copyright, academic integrity, and the emerging digital environment.

WHEN: Tuesday, June 22–Thursday, June 24, 2010

WHERE: Walter E. Washington Convention Center
801 Mount Vernon Place, N.W.
Washington, D.C. 20001

REGISTRATION: To register, visit www.umuc.edu/cip2010 or call 240-684-2803

Symposium Registration: (Early Rate) $240 (Member) / $300 (Non-member)
Daily Rate: $200 (Member) / $250 (Non-member)
Pre-Symposium Seminars:
(Choice of one, June 22) $100 (Member) / $135 (Non-member)
About University of Maryland University College
University of Maryland University College, headquartered in Adelphi, Maryland, is the largest public university in the United States, serving 90,000 students and offering 130 undergraduate and graduate programs online and on-site. In addition, UMUC is one of the largest public providers of online higher education in the nation. UMUC boasts a 60-year history of service to the military and currently enrolls an estimated 50,000 military service members, veterans, and their family members each year. The university offers face-to-face instruction at 21 locations throughout Maryland and educational services in 27 countries and more than 150 locations worldwide, including the Middle East. UMUC is accredited by the Commission on Higher Education of the Middle States Association of Colleges and Schools and is a constituent institution of the University System of Maryland, an agency of the State of Maryland.