Smith and Chang on Stravinsky's National Anthem

Michael L. Smith, University of Oklahoma College of Law, and Yoo Jung Chang, Quad City Symphony Orchestra, have published Stravinsky's National Anthem.

In January 1944, famed composer Igor Stravinsky was scheduled to conduct the Boston Symphony Orchestra in performing his controversial arrangement of “The Star-Spangled Banner.” Before the performance took place, the police arrived in Stravinsky’s dressing room and informed him that his arrangement violated a Massachusetts law against altering the national anthem. Faced with the prospect of a criminal violation, and with the police already removing the offending arrangement from the music stands, Stravinsky opted to conduct the traditional version of the anthem. This Article takes a deep dive into Stravinsky’s distinctive anthem arrangement, surveying its development, performance, and reception. Along the way, we dig into Massachusetts’s anthem restriction—a 1917 law that remains on the books to this day. In doing so, we address the parallels between the law’s wartime development and its wartime enforcement against Stravinsky. We argue that Stravinsky’s run-in with the police was unwarranted, both because Stravinsky’s arrangement did not violate the statute, and because the statute itself ran afoul of the First Amendment. Our historical investigation and analysis shed light on modern issues, including the phenomenon of patriotic outrage, the role of moral panic in the development and enforcement of the law, and the dangers of leaving unconstitutional zombie laws on the books.

Download the article from SSRN at the link.

Hoffheimer on Home of the Brave, Land of the Free: The Star-Spangled Banner's Contested History

Michael H. Hoffheimer, University of Mississippi School of Law, is publishing Home of the Brave, Land of the Free: The Star-Spangled Banner's Contested History in volume 2 of the Nebraska Journal of Advancing Justice (Spring 2026).

This Essay reviews the history of the composition, revision, and reception of The Star-Spangled Banner, It documents how generations of Americans have contested multiple aspects of the song that would become the national anthem from its musical sources to its title, meaning, and standards of performance. Controversies over the song's symbolic value peaked during the struggle to abolish slavery, the movement for civil rights, and protests by athletes taking the knee in response to continuing repression and abuse of African Americans. Drawing on abolitionist literature, the autobiography of Frederick Douglass, songs by Lead Belly, and speeches of Martin Luther King, Jr., the Essay shows that the phrase "land of the free" provoked emotional reactions that veered from dismissing the words as hypocritical to embracing them as aspirational.

Download the essay from SSRN at the link.

Conklin on Grandma Got Run Over By a Reindeer: An Adventure in Christmas Litigation

Michael Conklin, Texas A&M University School of Law, has published Grandma Got Run Over by a Reindeer: An Adventure in Christmas Litigation. Here is the abstract.

In 1979 a novelty Christmas song titled Grandma Got Run Over by a Reindeer was released. It recounts the fictional story of how the author’s grandmother, while inebriated, was struck and killed by Santa’s sleigh. Much less known is a follow-up song called Grandpa’s Gonna Sue the Pants Off of Santa. This song walks through the aftermath where grandma’s surviving spouse goes through the litigation process seeking compensation from Santa. The lyrics elicit discussion on numerous pressing legal issues. This Essay is a lighthearted look at what this song can teach us about the law. Though Grandpa’s litigation experience may not have brought him comfort and joy, it did gift us a sleigh full of legal insight. This Christmas season, may all your legal studies be merry and bright!

Download the essay from SSRN at the link.

Fernandez-Lopez on Turandot and the Exhaustion of Power: Ritual, Genealogy, Sacrifice, and the Twilight of Civilizations

Edgar A. Fernandez-Lopez has published Turandot and the Exhaustion of Power: Ritual, Genealogy, Sacrifice, and the Twilight of Civilizations.

This article reinterprets Puccini's Turandot not as a fairy tale of feminine cruelty overcome by erotic persistence, but as a twilight drama of exhausted civilizational power. Recovering the libretto's overlooked Tartar genealogy, it argues that Calaf belongs symbolically to the very lineage of the "King of the Tartars" implicated in Turandot's ancestral wound, so that his crossing of the riddle-threshold is recognition rather than conquest. Through textual and musical analysis, and through comparison with Gozzi's Adelma, the study reclaims Liù-not Calaf-as the opera's moral center: a figure of concealed sovereignty whose gratuitous sacrifice, a love detached from possession, dissolves the sacrificial economy sustaining the imperial order. Situating the work alongside Wagnerian twilight, Shakespearean tragedy, and the Girardian theory of sacred violence, the article reads Turandot as a meditation on how civilizations perish spiritually before they perish materially-on how ritual and law outlive the meaning they once served.

Download the article from SSRN at the link.

Cai on The Crime of a Show Girl: An Analysis of the Common Law Underpinnings Behind the Taylor Swift Song No Body No Crime

Xuantong Cai, Abbey Park High School, has published The Crime of a Show Girl: An analysis of the common law underpinnings behind the Taylor Swift Song No Body No Crime. Here is the abstract.

The song No Body No Crime, as the title suggests, involves the law, and where there is the law, there should be legal analysis. The song, as the title says, articulates the tension in the burden of proof required to convict a person and the doctrine of corpus delicti. Moreover, it also highlights the tension between state-enforced justice and vigilante justice as the narrator then takes the law into her own hands.

Download the article from SSRN at the link.

Hummel on Music of the Law: A Wigmorian Playlist for a Modern Era @josephhummel.bsky.social

Joseph Hummel, UNT Dallas College of Law, has published Music of the Law: A Wigmorian Playlist for a Modern Era at 59 Tulsa Law Review 301 (2024). Here is the abstract.

Within the field of law and literature, the academic study of legal songs—those being songs about lawyers, trials, the law, legal procedure, and broader issues of justice—remains relatively underdeveloped when compared with the study of legal novels, plays, and films. Given the value legal songs can provide to lawyers, this need not and should not be the case. For the lawyer, the benefits of listening to and studying legal songs are many. Legal songs can help lawyers understand the public’s perception of lawyers and the law. Listening to legal songs can also help lawyers improve their linguistic and interpretative skills. Legal songs also offer the lawyer a portal to understanding their clients and those “others” situated outside of or on the periphery of society. Lastly, legal songs can help lawyers re-engage with their “humanistic roots” and ethics. Using Dean John Henry Wigmore’s and Professor Richard Weisberg’s “lists of legal novels” as foundational and structural tools, this article endeavors to create a “Wigmorian playlist” of forty curated legal songs that, to borrow a phrase from Wigmore, no lawyer can “afford to ignore.” Using overarching criteria similar to those set out by Wigmore and Weisberg, this article catalogues and examines songs that centrally and significantly depict: (1) lawyers or other members of the legal profession; (2) trials or other legal proceedings; (3) issues of civil or criminal procedure; (4) laws and legal instruments; and (5) crimes or broader issues of law and justice that also implicate criteria (1), (2), (3), or (4). The article contains five sections. Part I is the Introduction. Part II discusses the evolution of the law and literature movement and explores its expansion through the twentieth century to include non-literary mediums, including music. Part III explores music’s connection to the law and argues that legal songs hold professional and personal value for lawyers and warrant from them engagement and analysis commensurate with the degree that lawyers might expend on legal novels, plays, and films. Part IV discusses the selection criteria for the “playlist.” Part V contains the “Wigmorian playlist.”

Download the article from SSRN at the link.

Perez on A Critical Analysis of Rap Shield Laws

Alexa Perez, Drake University Law School, is publishing A Critical Analysis of Rap Shield Laws in volume 110 of the Cornell Law Review. Here is the abstract.

For years, scholars have been sounding the alarm on "rap on trial," or the use of rap as evidence in criminal proceedings, pointing out that the fundamental characteristics of rap music make it uniquely susceptible to misinterpretation and prejudice. Scholars have also cautioned that rap on trial has the potential to chill artistic expression in violation of the First Amendment. The heavy reliance on rap lyrics in the recent RICO prosecution against rapper Young Thug has shed a renewed spotlight on the rap on trial concerns. In response to these growing concerns and a perceived gap in evidence law, state and federal legislators have proposed, and in some states enacted, statutes that seek to limit the use of rap lyrics as evidence-what this Article refers to as "rap shields." This Article provides the first critical analysis of rap shield proposals. More specifically, this Article demonstrates that rap shield laws are largely duplicative and, therefore, unnecessary from both an evidentiary and constitutional standpoint. Nevertheless, from a social justice standpoint rap shields serve important functions that may justify their enactment, such as offering guidance that increases judicial scrutiny and decreases judicial discretion. Those benefits, however, come with unintended costs-costs that may outweigh the important functions rap shields serve-including impeding defendants' right to present a defense. This Article concludes that the administration of justice may be better served and the concerns with rap on trial better addressed when the firmly rooted canons of evidence law are stringently applied rather than amended.

Download the article from SSRN at the link

Sheikh on "Betty, I Won't Make Assumptions": The Narrative Jurisprudence of Taylor Swift @dsheikh726 @latrobelaw

Danish Sheikh, LaTrobe Law School, is publishing ‘Betty, I Won’t Make Assumptions’: The Narrative Jurisprudence of Taylor Swift in volume 26 of the Media and Arts Law Review. Here is the abstract.

In the early months of the pandemic, Taylor Swift released her 8th studio album. For a songwriter known for her diaristic body of work, Folklore was a notable stylistic departure. The album was marked by Swift’s attempt to incorporate other voices into her storytelling, written from the perspectives of figures both real and fictional. Amongst the most widely discussed elements of Folklore is a love triangle told over the course of three songs: ‘Cardigan’, ‘August’ and ‘Betty’. Each song is written from the vantage point of a different character, with intertextual references to the other songs filling in the gaps of the story and providing a connecting thread. In this article, I approach Folklore and its central love triangle for the jurisprudential lessons it might offer. A jurisprudent is someone who develops a persona which cares for the conduct of lawful relations. In this article, I ask what forms of training Swift might provide to those of us who care about law. In particular, I approach Swift as a narrative jurisprudent, focusing on how she goes about crafting different personae, how she attempts to take responsibility for each of these personae, how she trains herself through the act of writing other selves, and how she trains her audience to listen well. I place each of these lessons in the context of Swift’s broader oeuvre as a songwriter, while also making a case for how they teach us to better take responsibility for law.

Download the article from SSRN at the link.

Conklin on The Admissiblity of Rap Lyrics in Court: A Review of As We Speak

Michael Conklin, Angelo State University; Texas A&M School of Law, is publishing The Admissibility of Rap Lyrics in Court: A Review of As We Speak in the Journal of Law & Social Deviance. Here is the abstract.

The use of rap lyrics at trial is a timely issue given the current confluence of events, including the Young Thug trial, the Black Lives Matter movement, a growing “tough on crime” sentiment due to rising violent crime, the introduction of the Restoring Artistic Protection (RAP) Act in Congress, and societal debate about separating the artist from the art. This review provides a critical analysis of the 2024 documentary As We Speak: Rap Music on Trial, a film that advocates against the use of rap lyrics as evidence in criminal trials. The cinematography is beautiful, creating an aesthetically pleasing experience. And it is engagingly structured as a road movie with the guide, rapper Kemba, taking the viewer to Chicago, Atlanta, Los Angeles, New York City, and London to interview rappers and legal experts. This results in a powerful documentary that has received glowing reviews from both film critics and audiences. Unfortunately, while the film’s subject is certainly a legitimate topic of discussion, the film suffers from significant shortcomings. This review will analyze how the leading study regarding rap on trial is deceptively presented, misrepresentations of the topic as a free-speech issue whereby rap lyrics are “criminalized,” ineffective attempts to analogize rappers to Shakespearian actors, and claims regarding race that are contrary to the evidence.

Download the article from SSRN at the link.

Bonadio and Khan on Remix, Reuse, and Reggae: Creativity and Copyright in Jamaican Music @CityUniLondon

Enrico Bonadio, City University, London, City Law School, and Bryan Khan, University of the West Indies, have published Remix, Reuse and Reggae: Creativity and Copyright in Jamaican Music in Enrico Bonadio - Chen Zhu (eds.), Music Borrowing and Copyright Law (Enrico Bonadio and Chen Zhu eds., Hart Publishing 2023. Here is the abstract.

What makes the story of the rise of reggae music so fascinating are the circumstances in which the genre evolved. It seems to have been birthed by a cosmic alignment of the right social and cultural factors, rather than an anticipatable evolution of existing cultural institutions. Unlike neighbouring islands, which had hosted vibrant creole musical cultures since the nineteenth century, a formal music scene was not a major component of the Jamaican cultural landscape until the mid-twentieth century. And the contributions to global culture made by the Caribbean Island of Jamaica are remarkable given the country’s size. The country has birthed many musical genres which have made a mark on popular culture, including mento, ska, rocksteady, reggae, and dancehall, and these genres have in turn influenced a wide range of musical subcultures from American hip-hop to British drum and bass, and beyond. Against this broad history, this chapter explores the factors that facilitated the creative processes of Jamaican music scene, and its remarkable rise as global cultural force. Specifically, it provides a discussion on the history of Jamaican music, with a focus on the social and creative norms of remix and reuse. In doing so, the chapter features numerous examples of Jamaican songs.

The text of the essay is not available from SSRN.

Litt on From Rhyming Bars to Behind Bars: The Problematic Use of Rap Lyrics in Criminal Proceedings @LucyJLitt @UMKCLawReview

Lucy J. Litt, Harvard Law School, has published From Rhyming Bars to Behind Bars: The Problematic Use of Rap Lyrics in Criminal Proceedings at 92 UMKC L. Rev. 121 (2023). Here is the abstract.

The use of rap lyrics as evidence in criminal proceedings distorts the art form and heightens the risk of wrongful prosecutions. Rap music is complex and sophisticated; it is an art form with its own history, norms, and conventions. Like other art forms (e.g., spy novels by John le Carré; ballets by George Balanchine; the Big Apple Circus; Shakespeare’s tragedies; Marvin Hamlisch and Edward Kleban’s “A Chorus Line;” or songs by Johnny Cash), 1 it serves as a creative outlet and can be a form of critical public commentary. Rap is an art form that often distorts or exaggerates reality. Unlike other fictional art forms (e.g., murder mysteries, TV crime show scripts), however, prosecutors increasingly introduce rap lyrics as evidence in criminal proceedings, where the real-life stakes can be very high. In 1987, the Washington Court of Appeals considered, and denied, the admissibility of violent writings as evidence; however, courts did not consider the specific question of rap lyrics until the United States Court of Appeals for the Seventh Circuit heard United States v. Foster in 1991 and concluded that the rap lyrics in question were admissible as evidence against the defendant rap artist. In the years since 1991, state and federal prosecutors have continued their practice of introducing rap lyrics and rap music videos in criminal proceedings against rappers(and even sometimes their friends and fans). Scholars and commentators who focus on these practices refer to the phenomenon as “rap on trial.” The courts vary in their decisions regarding rap on trial, with most courts and prosecutors having persistently failed to grapple with the complexity of the issues presented by its use. Troublingly, in the ensuing three decades, prosecutors, judges, and others in the legal profession have not sufficiently scrutinized the reliability of rap lyrics and the constitutional issues inherent in their misuse, in spite of studies that have shown that the introduction of rap lyrics as evidence infuses a heightened likelihood of unfair prejudice into the criminal legal process. Rap is a form of creative expression that was predominantly cultivated by Black and Brown men, and it has its origins in marginalized urban areas. The art form and its creators often invoke unsupportable negative stereotypes among jurors, and even judges. Prior legal and interdisciplinary scholarship, by experts such as Professors Andrea L. Dennis and Erik Nielson, has addressed the practice of, and problems presented by, “rap on trial.” Social science scholarship, such as Stanford University Sociology Professor Forrest Stuart’s Ballad of the Bullet, has explored the culture surrounding rap music and how that culture comes into tension with racially biased law enforcement and uninformed members of the general public. The scholarship that exists in this area tends to draw upon the convergence of these issues to propose holistic approaches to proposed reforms. This paper challenges prosecutors’ use of rap lyrics (and, by extension, rap music videos) as evidence against defendants in criminal legal proceedings: this practice often violates and undermines fundamental values of the United States justice system, the rules of evidence, and the Constitution; the practice also threatens to harm defendants, their loved ones, and their communities.

Download the article from SSRN at the link.

Jewel on See[ing] That In a Small Town: Visual Rhetoric, Race, and Legal History in Tennessee @ljewel @UTKLaw

Lucy A. Jewel, University of Tennessee College of Law, is publishing See That in a Small Town: Visual Rhetoric, Race, and Legal History in Tennessee in the Georgetown Journal of Law & Modern Critical Race Perspectives (2023). Here is the abstract.

Jason Aldean’s music video for “Try That in a Small Town” aptly illustrates the thesis of this article, which is that when it comes to racism and the law, visual rhetoric has played and still plays an outsized role. The video shows Aldean and his band performing in front of the Maury County Courthouse in Columbia, Tennessee. This is the same courthouse where, in 1918, a white mob violently lynched a young Black man. The song recounts a laundry list of dog whistle topics relating to urban crime, mentions a gun given to me by my grandfather, and then warns the audience “Well, try that in a small town.” The Country Music Network quickly took down the video after complaints that the subtext was undeniably racist and violent. Within Aldean’s video, the Maury County Courthouse stands as a warning of the lynching that occurred outside its doors and as a reminder that while the courthouse visually represents justice, that justice is not for everyone. When it comes to race, racism, and white supremacy, the United States is polarized about what we want to see and not see. Three recent Tennessee legal controversies illustrate how visual rhetoric, which carries so much persuasive power, has been deployed for evil, to staidly symbolize white supremacy, but also for good, to propel society toward racial justice and equity. The first controversy involves the display of Confederate memorabilia inside the jury deliberation room in a small Tennessee town. The second controversy illustrates how Tennessee’s heritage protection law prevents local citizens from removing Confederate monuments from public property. The third example explains how, under Tennessee’s divisive concepts acts, conservative parents censor truthful imagery depicting U.S. history regarding race. Just as Aldean’s video struck a chord nationally, the issues boiling up in Tennessee are broadly relevant because what is happening in Tennessee maps onto national jurisprudential and cultural trends. Many states have similar heritage protection acts that prevent the removal of Confederate monuments. And, many states have enacted anti-CRT, divisive concepts bills. This article will uniquely analyze these trends from a visual perspective. Drawing upon the disciplines of legal rhetoric and visual rhetoric, Part One explains the rhetorical concepts that apply to Confederate imagery in the courtroom, on the courthouse lawn, and in textbook illustrations. Part Two delves into the Confederate Jury Room cases, discussing the cases as well as interdisciplinary explanations for what these Lost Cause symbols mean historically and what they do to observers psychologically. Part Three will address Confederate monuments in Tennessee, explaining how Tennessee’s Heritage Protection Act (amended many times in a reactionary fashion) operates in a highly undemocratic fashion, preventing local citizens from exercising control over public spaces and reinforcing toxic and traumatic narratives that reinforce white supremacy and denigrate Black experiences. This Article argues that Congress should declare all Confederate monuments on public land to be a badge of slavery within the meaning of the Thirteenth Amendment. In so doing, various state heritage protection acts would be preempted by federal law, allowing local citizens to remove these statues. Finally, Part Four will address Tennessee’s anti-CRT, “divisive concepts” acts, particularly analyzing the role that visual rhetoric plays in these attempts to stifle truthful portrayals of history. This article will conclude by drawing together the threads and patterns contained within each scene.

Download the article from SSRN at the link.

Casini on Addressing the Use of Rap Lyrics as Criminal Evidence @KCEsq @QuinnipiacLaw

Kevin Casini, Qiunnipiac University School of Law, has published Addressing the Use of Rap Lyrics as Criminal Evidence. Here is the abstract.

The judicial bias against rap music is a growing contributor to systemic racism that must be ended before it causes any more damage. Whether because of personally held beliefs, latent cultural insensitivity, or a win-at-all-costs prosecutorial approach to criminal trials that promotes an appeal to those traits in jurors, prosecutors should be bound from using the Constitutionally protected speech and expression in rap lyrics as evidence against criminal defendants. At an increasing frequency, courts across the country are making it known that they have no problem using a rapper’s lyrics against them in a criminal case. This practice is particularly egregious, not only because of its chilling effect on creativity but because it is specifically targeted against rap music and rap music alone; in other words, it is a practice targeted against Black defendants. Congress now needs to enact law expressly upholding, again, freedom of expression, and preventing that expressive speech from being weaponized against the communities that rely on it to express themselves, to tell the stories of their communities, and to create, and recreate, identity.

Download the article from SSRN at the link.

Gardner on Why Law Isn't Jazz: A Response @UBSchoolofLaw @buffalolawrev

James A. Gardner, University at Buffalo Law School, has published Why Law Isn't Jazz: A Response, at 71 Buffalo Law Review The Docket D1. Here is the abstract.

In a recent article, Professor William Buzbee argues that “a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation.” I argue here, from the perspective of someone who is both a lawyer and a jazz pianist, that jazz improvisation and law are best thought of as distinct practices, and that the analogy obscures more than it reveals. Both law and jazz demand that their practitioners make choices within disciplinary constraints, but the disciplinary boundaries of jazz impose far fewer constraints on its practitioners than the boundaries of legal practice. As a result, lawyers who try to incorporate techniques of jazz improvisation into their legal practice will likely be making a disciplinary mistake, and risk practicing law badly to the extent they do so. On the other hand, the fact that jazz musicians operate under fewer professional constraints does not mean that their work is any more creative or original than the work of lawyers, or that jazz’s loftiest artistic aspirations entitle it to be held in higher regard. The deflating truth is that what jazz improvisation principally shares with the practice of law is not so much the inherent possibility of disciplinary creativity, but the quotidian reality of professional drudgery. Most jazz, like most law, is plodding and mediocre, and the intentional production of novelty is exceedingly rare in both practices. In the end, I argue, criticisms of law and judicial decisions are best and most usefully launched from within the relevant disciplinary practice, not from the perspective of other disciplines.

Download the article from SSRN at the link.

Link to William W. Buzbee, Jazz Improvisation and the Law: Constrained Choice, Sequence, and Strategic Movement Within Rules, 2023 Ill. L. Rev. 151 (2023).

Abrams on Writing It Right: References to Beatles Songs in Advocacy and Judicial Opinions

Douglas E. Abrams, University of Missouri School of Law, has published Writing It Right: References to Beatles Songs in Advocacy and Judicial Opinions at 79 Journal of the Missouri Bar 172 (July-August 2023). Here is the abstract.

This article surveys the indelible mark that the Beatles (Paul McCartney, John Lennon, George Harrison, and Ringo Starr) continue to leave on courts in the United States more than half a century after the quartet burst onto the American scene. By highlighting references to Beatles songs in state and federal judicial opinions, this article continues a theme that I have presented in several prior “Writing It Right” articles. The theme begins in some courts, which in recent years often accent their written opinions’ substantive or procedural rulings with references citing or quoting well-known cultural markers from sports, popular entertainment, or literature.

Download the article from SSRN at the link.

Sunstein on Fame and the Canon: Lessons from Connie Converse (with Notes on Liberalism) @CassSunstein @Harvard_Law @Kennedy_School

Cass Sunstein, Harvard Law School; Harvard University, Kennedy School, has published Fame and the Canon: Lessons From Connie Converse (with Notes on Liberalism). Here is the abstract.

Connie Converse, a folksinger from the 1950s, is sometimes described as “the first singer-songwriter.” Her tale raises enduring questions about opportunity, what is lost and what is found, and the role of serendipity and luck. It also offers lessons about canon formation and reformation. It even has something to say about the foundations of liberalism.

Download the essay from SSRN at the link.

Kerr on When To Admit Art as Evidence @PKUSTL @WUSTL

Andrew Jensen Kerr, Peking University School of Transnational Law, is publishing When To Admit Art as Evidence in the Washington University Law Review Online. Here is the abstract.

Jeffery Lamar Williams, better known as Young Thug, is the latest high-profile rapper to have his rap “lyrics” potentially entered into evidence as part of a criminal trial. Young Thug himself faces several racketeering, drugs and weapons-related charges. The rap clique he co-founded, Young Slime Life (“YSL”), has been branded by Atlanta District Attorney Fani Willis as a street gang, whose affiliate members together face well over 60 separate criminal charges, ranging from car hijacking to aggravated assault and murder. The case is sprawling. As is Young Thug’s vast catalog, from which the District Attorney intends to isolate some snippets of vocalizations as evidence of YSL’s alleged gang-like ambitions. In this Article, I suggest why this is problematic. But given the practical reality facing Young Thug, I offer a compromise position that comports with how the Constitution thinks about art and evidence law, and that also does justice to Young Thug’s innovative form of music. In the first line of this abstract, I place “lyrics” in quotation marks not to express skepticism towards rap as a genre, but to question whether a form of music as daringly sonic as Young Thug’s can be legibly reduced to the supposed text that undergirds it. I argue, consistent with my prior work on constitutional art speech, that it cannot. Here I make the limited claim that in keeping with evidence rules like Ga. Code § 24-4-403 (whether probative value of evidence is substantially outweighed by the danger of unfair prejudice) that District Attorney Willis may enter tracks like “Eww” (2014) or “Slime Shit” (2018) into trial as she intends to do later this year, but only in their original audio form, in full (not as parsed snippets) and without subtitles or lyric sheets. As a corollary claim, I argue that the court need not invite experts (whether police or “rap scholars”) to try to make sense of Young Thug’s music. It doesn’t need any explanation. Like most all popular music, its only measure is whether it is enjoyable for an audience.

Download the article from SSRN at the link.

Buzbee on Jazz Improvisation and the Law: Constrained Choice, Sequence, and Strategic Movement Within Rules @GeorgetownLaw @UIllLRev

William W. Buzbee, Georgetown University Law Center, is publishing Jazz Improvisation and the Law: Constrained Choice, Sequence, and Strategic Movement Within Rules in the University of Illinois Law Review. Here is the abstract.

This Article argues that a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation. This exploration illuminates a middle ground between rule of law aspirations emphasizing stability and determinate meanings and contrasting claims that the untenable alternative is pervasive discretionary or politicized law. In both the law and jazz improvisation settings, the work involves constraining rules, others’ unpredictable actions, and strategic choosing with attention to where a collective creation is going. One expects change and creativity in improvisation, but the many analogous characteristics of law illuminate why change and choice are the norm in law too. Rarely is law just about ferreting out some isolated, clear, but abstruse legal command. In jazz and legal settings, relative assessments of strength are more commonly apt than are expectations of a single correct answer or simple binary right-versus-wrong determinations. There is a world of difference between claims that law simply provides determinate answers, versus claims that law constrains and guides what remain choices. Much as jazz improvisers must be highly sensitive to the surrounding constrained choices of others, legal analysis of context and consequences of legal choices, with substantial attention to others’ roles and competence, should always be part of legal actions. This different way of thinking about law’s nature helps illuminate and critique both major methodological legal divides, enduring jurisprudential debates, and several cutting-edge case studies. Those case studies include standing law’s transformation, including the 2021 TransUnion standing decision, ongoing battles over what waters are protected by the Clean Water Act, debates over textualist methodology’s claims of constraint, and increasing judicial reliance on the “major questions doctrine” with shifts away from the familiar deferential Chevron framework. Improvising musicians must ensure their choices musically fit with governing forms, practices, and others’ choices. Similarly, the Article closes by illuminating why, to further rule of law values and check power abuses, legal actors should always assess the consequential congruence of their tenable choices with surrounding law, giving substantial weight to statutory policies and linked effects analysis by agencies.

Download the article from SSRN at the link.

ICYMI: Murray on The Legal Gaze and Women's Bodies @murrayyxta @LoyolaLawSchool @ColumbiaJGL

ICYMI: Yxta Maya Murray, Loyola Law School, has published 'We Just Looked at Them as Ordinary People Like We Were:' The Legal Gaze and Women's Bodies at 32 Columbia Journal of Gender and Law 252 (2017). Here is the abstract.

This article analyzes the struggles of two female musicians who were caught in the criminal justice system because they revealed their bodies. Using archival research and personal interviews, I tell the story of punk rocker Wendy O. Williams’ 1981-1984 obscenity and police brutality court battles. I also relay the life of Lorien Bourne, a disabled and lesbian rock-n-roller who was charged with disorderly conduct in Bowling Green, Ohio in 2006. I examine how legal actors, including courts and jurors, viewed Williams and Bourne using classed, ableist, sexist, and homophobic optics. In so doing, I extend my previous work on legal “gazes,” or what I have called the legal practice of “peering.” I end the article by looking to the women’s art and lives as correctives to oppressive manners of legal seeing.

Download the article from SSRN at the link.

Ramshaw on The Song and Silence of the Sirens: Attunement to the "Other" in Law and Music @translat_improv

Sara Ramshaw, University of Victoria Faculty of Law, is publishing The Song and Silence of the Sirens: Attunement to the ‘Other’ in Law and Music in Law and the Senses: HEAR. Here is the abstract.

Employing Homer’s story of Odysseus and the Sirens, and Kafka’s and Blanchot’s reinterpretations, this text explores ‘attunement’ as an imperfect listening that tunes its ear to the inaudible and unknowable ‘other’; resisting attempts to fully control or make selective our listening, and thereby inviting justice to be done. Compared to Kafka’s law, understood as a relentless and unceasing ‘droning noise’, the origin of which is unlocatable, justice as attunement is read here through a Derridean deconstruction of law and musical improvisation to suggest that, instead of endeavoring to harness and control the sonic like Odysseus did, it should be permitted to sing – ‘throats rising and falling, … breasts lifting, … lips half-parted’ – in the place between song and silence, where listening is always a listening-with.

Download the article from SSRN at the link.