December 30, 2010

New Titles From Hart Publishing; Twenty Percent Discount For Readers Of This Blog!

Two new titles of interest from Hart Publishing:

Steve Greenfield, Guy Osborn, and Peter Robson, Film and the Law: The Cinema of Justice
Pub Date: Oct 2010; 9781841137254; Pbk; 392pp; £30 / €39 / US$30 / CDN$30

Paul Raffield, Shakespeare's Imaginary Constitution: Late Elizabethan Politics and the Theatre of Law

Pub Date: Oct 2010; 9781841139210; Hbk; 256pp; £50 / €65 / US$70 / CDN$70

Readers of the Law and Humanities Blog qualify for this DISCOUNT OFFER

Hart Publishing is delighted to offer these titles at 20% discount. To receive the discount please quote reference ‘LHBLOG’ when placing your order. If you are ordering online then please quote the reference in the special instructions field. The discount will not show up on your order confirmation but will be applied when your order is processed. All enquires should be directed to Hart Publishing Tel: 01865 517530; E-mail:; Website:

December 20, 2010

Law and the Multiverse Scores With New York Times

The blog Law and the Multiverse is featured in the New York Times.

Categorizing the Informant

Michael Rich, Elon University School of Law, has published A Snitch, Not a Hero: Philosophical Lessons of Loyalty and Disloyalty in the World of Criminal Informants, as Elon University Law Legal Studies Research Paper No. 2010-11. Here is the abstract.

Without informants, policing as we know it would grind to a halt. In the arenas of drug enforcement and the battle against organized crime, the majority of prosecutions hinge on confidential informants, and informants are increasingly central in white collar crime prosecutions and anti-terrorism investigations. Yet society, to put it bluntly, hates informants. The epithets used to describe them – “snitch,” “rat,” “weasel” – suggest the reason: the informant, by assisting the police, is guilty of betrayal. But identifying the reason for society’s disdain raises more questions than it answers. For instance, are all informants disloyal, or are only some? Are there governing principles that explain which informants are deemed to be disloyal? To whom are informants disloyal? What import does informant disloyalty have beyond the social stigma that informants bear? And these questions matter because betrayal, in the words of George Fletcher, is “one of the basic sins of our civilization.” Yet, they have largely escaped the attention of legal scholars.

This Article remedies this oversight first by discussing the role of informants through the lens of the observations that philosophers have made about loyalty and disloyalty. The discussion reveals that loyalty and disloyalty are social constructs of normative expectations arising out of special relationships between individuals and other individuals or groups. And when an individual breaches these normative expectations, she commits disloyalty or betrayal. The Article applies these observations about loyalty and disloyalty to three informant situations. The first is the “typical” case of an accomplice-informant who assists police in apprehending and prosecuting her partners in crime. The second is that of communities with particularized norms against cooperating with the police, as exemplified by the “Stop Snitching” movement that has made significant headway in high-crime communities. The third situation is that of informants in “mainstream” society. The loyalty analysis of these three situations reveals interesting insights into why police have trouble obtaining civilian cooperation in high-crime communities and the limits of civilian identification with police objective in mainstream society. Finally, the Article considers these insights in light of existing scholarship about the relationship between civilian perceptions of police and willingness to cooperate. This consideration leads to a handful of policy proposals to enhance civilian cooperation with law enforcement and ultimately to the recognition that some level of reticence to cooperate with police, particularly in marginalized communities, is both inevitable and desirable.
Download the paper from SSRN at the link.

December 16, 2010

Representing Justice: A New Book on the Theme

New book on Representing Justice by Judith Resnick and Dennis Curtis, published by Yale University Press. Pricey but beautiful. Review here from the New York Times. Website here.

December 14, 2010

Court Citation of Foreign Legal Opinions

Martin Gelter, Fordham University School of Law and the European Corporate Governance Institute, has published Language, Legal Origins, and Culture before the Courts: Cross‐Citations between Supreme Courts in Europe as Fordham Law Legal Studies Research Paper No. 1719183. Here is the abstract.

Should courts consider cases from other jurisdictions? The use of foreign law precedent has sparked considerable debate in the United States, and this question is also controversially discussed in Europe. In this paper and within the larger research project from which it has developed, we study the dialogue between different European supreme courts quantitatively. Using legal databases in Austria, Belgium, England and Wales, France, Germany, Ireland, Italy, the Netherlands, Spain, and Switzerland, we have hand-collected a dataset of transnational citations between the highest courts of these countries, in total searching 636,172 decisions decided between 2000 and 2007. In the present paper we show that citation of foreign law by supreme courts is not an isolated phenomenon in Europe, but happens on a regular basis. We found 1,426 instances in which these courts have cited the supreme courts of the other nine countries. The majority (1,077) of these citations have been made for purely comparative reasons. We also undertook regression analysis in order to understand the differences between the cross-citations. Whether such citations take place and in what quantity depends on the particular legal culture and its relationship to others. Austria and Ireland, which stand in an asymmetric relationship with Germany and England respectively, seem to be particularly receptive to foreign influence on their legal systems. But even controlling for these outliers, we have been able to identify that the population of the cited country and a low level of corruption, native languages and language skills, legal origins and families, and cultural and political factors all matter for which courts are likely to be cited. More specifically, knowledge of the language of the cited court appears to be a more important factor driving cross-citations than legal traditions, culture or politics. Thus, to facilitate a transnational market of legal ideas, it can be suggested that courts should strive to make their decisions available in languages that possible readers understand.
Download the paper from SSRN at the link.

December 10, 2010

New Books Of Interest

Joe B. Fulton, The Reconstruction of Mark Twain: How a Confederate Bushwacker Became the Lincoln of Our Literature (Louisiana State University Press, 2010).

Gregory J. Hampton, Changing Bodies in the Fiction of Octavia Butler: Slaves, Aliens, Vampires (Lexington Books, 2010).

Tyrone Kirchengast, The Criminal Trial in Law and Discourse (Palgrave Macmillan, 2010).

Richard Terry, The Plagiarism Allegation in English Literature From Butler to Sterne (Palgrave Macmillan, 2010).

Taking "Harry Potter" Seriously

A book by Shira Wolosky on the meaning of Harry Potter. From the Chronicle of Higher Education.

December 8, 2010

Empathy In "To Kill a Mockingbird"

Katie Rose Guest Pryal, University of North Carolina, Chapel Hill, has published Walking in Another’s Skin: Failure of Empathy in to Kill a Mockingbird , in Harper Lee's To Kill a Mockingbird: New Essays, Chapter 12 (Michael J. Meyer ed., The Scarecrow Press, UK, 2010). Here is the abstract.

Empathy - how it is discussed and deployed by both the characters in TKAM and by the author, Lee - is a useful lens to view the depictions of racial injustice in the novel, because empathy is the moral fulcrum on which the narrative turns. In this essay, I argue that To Kill a Mockingbird fails to aptly demonstrate the practice of cross-racial empathy. As a consequence, readers cannot empathize with the (largely silent) black characters of the novel. In order to examine the concept of empathy, I have developed a critical framework derived from rhetorician Kenneth Burke's theory of identification and then used this framework to examine some ways in which empathy manifests itself in our legal system, manifestations that help reveal the failings of TKAM.
Download the essay from SSRN at the link.

December 6, 2010

Brundage On the Image of Lawyers In Medieval Literature

I ran across this piece today; it dates from 2002, so some of you may be familiar with it already. I think it's extremely interesting. It's by James A. Brundage, the distinguished medievalist and cultural historian. In this piece he addresses medieval attitudes toward lawyers, tracing influences back to the Romans. He says in part,

I propose to examine in this paper the faults that medieval writers found with the lawyers they encountered during the high Middle Ages (by which I mean the two centuries between about 1150 and 1350) and to venture some suggestions about the reasons for them.
Before I do that, however, I shall lay the foundation for my remarks by saying something about the treatment of the legal profession in classical Roman literature. This seems appropriate for two reasons: first, medieval lawyers drew much of their law from Roman sources. In the process they modeled many...of their ideas about the ways in which lawyers ought to behave upon the prescriptions for professional conduct that they found in those sources. Second, medieval writers adopted many...of the criticisms of the legal profession that they found in classical Latin literary sources, to which they added new ones of their own.
James A. Brundage, Vultures, Whores, and Hypocrites: Images of Lawyers in Medieval Literature, 1 Roman Legal Tradition 56 (2002).  Highly recommended.

December 3, 2010

The Scottish Enlightment's Influence on the Drafting of Article III

James E. Pfander and Daniel D. Birk, both of Northwestern University School of Law, are publishing Article III and the Scottish Enlightenment, forthcoming in the Harvard Law Review. Here is the abstract.
Historically-minded scholars and jurists invariably turn to English law and precedents in attempting to recapture the legal world of the framers. Blackstone’s famous Commentaries on the Laws of England offer a convenient reference for moderns looking backwards. Yet the generation that framed the Constitution often relied on other sources, including Scottish law and legal institutions. Indeed, the Scottish judicial system provided an important, but overlooked, model for the framing of Article III. Unlike the English system of overlapping original jurisdiction, the Scottish judiciary featured a hierarchical, appellate-style judiciary, with one supreme court sitting at the top and an array of inferior courts of original jurisdiction down below. What’s more, the Scottish judiciary operated within a constitutional framework - the so-called Acts of Union that combined England and Scotland into Great Britain in 1707 - that protected the role of the supreme court from legislative re-modeling.

This Article explores the influence of the Scottish judiciary on the language and structure of Article III. Scotland provided a model for a single “supream” court and multiple inferior courts, and it defined inferior courts as subordinate to, and subject to the supervisory oversight of, the sole supreme court. Moreover, the Acts of Union entrenched this hierarchical judicial system by limiting Parliament to “regulations” for the better administration of justice. Practice under this precursor to Article III’s Exceptions and Regulations Clause establishes that a supreme court’s supervisory authority over inferior courts would survive restrictions on its as-of-right appellate jurisdiction. The Scottish model thus provides important historical support for the scholarly claim that unity, supremacy, and inferiority in Article III operate as textual and structural limits on Congress’s jurisdiction-stripping authority.
Download the article from SSRN at the link.