Fishman on A Random Stroll Amongst Anthony Trollope's Lawyers @HaubLawatPace

James Fishman, Pace University School of Law, has published A Random Stroll Amongst Anthony Trollope’s Lawyers. Here is the abstract.

Anthony Trollope (1815-1882) resides in the pantheon of nineteenth century English literature. Overcoming a miserable childhood, he became an official with the post office and is credited with introducing the familiar red mailbox. While working full time in his postal position until 1867, he still managed to publish 47 novels, travel books, biographies, short stories, collections of essays, and articles on various topics. Trollope has been described as the novelist of the ordinary for his realistic description of English society. Law and legal issues flow through Trollope’s fiction. The legal system held a special importance to him as the skeleton upholding the social and political framework of the country. Over one hundred lawyers appear in his work and eleven of his novels feature trials or hearings. The law intrigued and exasperated him. Along with the lawyers and legal issues he depicts are ideas of the law and legal system that are part of elaborate philosophical and jurisprudential traditions, which he recognized. This article examines Trollope’s changing attitude toward lawyers. It describes the structure of the Bar in terms of class, status and reputation. Trollope believed the legal system should ensure justice, and those who labored in the law should be the vehicle of that pursuit. Justice for Trollope was the meting out of rewards and punishments as the consequence of a right or wrong decision. However, the law, as he depicted it, was often an impediment to this process, and lawyers were unreliable guides. Initially Trollope portrayed lawyers critically as caricatures as evinced by such names as Alwinde, O’Blather, Slow & Bidewhile, Haphazard, and Chaffanbrass. He was outraged that barristers (lawyers who appear in court) put loyalty to their clients ahead of the search for truth and justice. The adversary system was flawed as the enactment of laws in accord with the laws of nature assumes an inbuilt moral compass in humans that contains self-evident truths of right and wrong. Trollope felt there was no reason why a right-minded person could not intuitively recognize the truth, so criminal law’s adversary system was unnecessary. The legal system sought not the discovery of the truth but was more interested in aiding the guilty defendant to escape punishment. Another grievance was that cross examination in a trial submitted honest witnesses to torture and distracted them from testifying as to the truth. As he matured as a writer and achieved success, Trollope’s understanding and appreciation of the legal profession changed. He met and become friends with leaders of the Bar, and they influenced his descriptions of lawyers, who became realistic and often admirable human beings. Beyond the legal problems of its characters, Trollope’s later novels incorporated the social, political, and jurisprudential issues of the times and engaged the Victorian legal culture in a broader sense of history, traditions, continuity and change. Trollope’s attention to the faults of the adversary system had its source in principles of natural law, which posited that God-given universal axioms of right and wrong gave individual guidance or a map for reaching the right result in a legal controversy. Natural law principles were challenged during the Victorian era by positivist notions that law is what the statute books say, and legislators enact. These divisions lurk in the background of his later portraits of lawyers and the legal system. In his later period Trollope created a realistic characterization of the legal profession at the time that offered universal insights into human nature.

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Miniter on Cather's My Antonia and Legal Thought in the Late Nineteenth Century @CreightonLawRev

Paulette C. Miniter has published Willa Cather's My Antonia and Legal Thought in the Late Nineteenth Century at 51 Creighton Law Review 119 (2017). Here is the abstract.

In the 1918 novel My Ántonia, Willa Cather offered an unusual portrait of the American experience. Cather’s method was to present a central female character through the eyes of a male narrator. The narrator, Jim Burden, is a Harvard-educated lawyer in New York for “one of the great Western railways.” Ántonia Shimerda is a friend from his childhood in Nebraska during the waning days of the frontier. Jim tells the story of how Ántonia, the daughter of poor Bohemian homesteaders, survives the suicide of her father and the disgrace of being an unwed mother to build a life on the land and thus bear out the “pioneer ideal.” Despite their disparate social statuses and divergent life paths, Jim sees Ántonia as the utmost symbol of “the country” and “conditions” of his youth.

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Newman on the Legality of the Agreement in The Merchant of Venice @WFULawSchool

Joel S. Newman, Wake Forest University School of Law, has published If Shylock Had a Lawyer at 7 Wake Forest J. L. & Pol'y S. S. 21 (2016). Here is the abstract.

In Shakespeare’s “Merchant of Venice,” the “pound of flesh” agreement was notarized. Presumably, pursuant to European custom, the notary would have drafted the agreement. Had the events of the play taken place today, any notary who drafted such an agreement would be in violation of Italian law. Had Shylock consulted a modern American lawyer, drafting the agreement, or even agreeing to the representation in the first place, would have been a violation of the ABA Model Rules of Professional Conduct.

Download the article from SSRN at the link.