ICYMI: Fatal Fictions: Crime and Investigation in Law and Literature (OUP, 2017) @OxUniPress

ICYMI: Fatal Fictions: Crime and Investigation in Law and Literature (Alison L. LaCroix, Richard H. McAdams, and Martha C. Nussbaum, eds., Oxford University Press, 2017).\ Here is a description of the book's contents from the publisher's website.

Writers of fiction have always confronted topics of crime and punishment. This age-old fascination with crime on the part of both authors and readers is not surprising, given that criminal justice touches on so many political and psychological themes essential to literature, and comes equipped with a trial process that contains its own dramatic structure. This volume explores this profound and enduring literary engagement with crime, investigation, and criminal justice. The collected essays explore three themes that connect the world of law with that of fiction. First, defining and punishing crime is one of the fundamental purposes of government, along with the protection of victims by the prevention of crime. And yet criminal punishment remains one of the most abused and terrifying forms of political power. Second, crime is intensely psychological and therefore an important subject by which a writer can develop and explore character. A third connection between criminal justice and fiction involves the inherently dramatic nature of the legal system itself, particularly the trial. Moreover, the ongoing public conversation about crime and punishment suggests that the time is ripe for collaboration between law and literature in this troubled domain. The essays in this collection span a wide array of genres, including tragic drama, science fiction, lyric poetry, autobiography, and mystery novels. The works discussed include works as old as fifth-century BCE Greek tragedy and as recent as contemporary novels, memoirs, and mystery novels. The cumulative result is arresting: there are "killer wives" and crimes against trees; a government bureaucrat who sends political adversaries to their death for treason before falling to the same fate himself; a convicted murderer who doesn't die when hanged; a psychopathogical collector whose quite sane kidnapping victim nevertheless also collects; Justice Thomas' reading and misreading of Bigger Thomas; a man who forgives his son's murderer and one who cannot forgive his wife's non-existent adultery; fictional detectives who draw on historical analysis to solve murders. These essays begin a conversation, and they illustrate the great depth and power of crime in literature.

Chapter 1. Scott Turow, On My Careers in Crime

Part I: Criminal Histories
Chapter 2. Daniel Telech, Mercy at the Areopagus: A Nietzschean account of Justice and Joy in the Eumenides
Chapter 3. Barry Wimpfheimer, Suborning Perjury: A Case Study of Narrative Precedent in Talmudic Law
Chapter 4. Alison LaCroix, A Man for All Treasons: Crimes By and Against the Tudor State in the Novels of Hilary Mantel
Chapter 5. Marina Leslie, Representing Anne Green: Historical and Literary Form, And the Scenes of the Crime in Oxford, 1651
Chapter 6. Richard Strier & Richard McAdams, Cold-Blooded and High Minded Murder: The Chapter 7. Pamela Foa, What's Love Got To Do With It? Sexual Exploitation in Measure for Measure: A Prosecutor's View


Part II: Race and Crime 
Chapter 8. Justin Driver, Justice Thomas and Bigger Thomas
Chapter 9. Martha Nussbaum, Reconciliation Without Anger: Paton's Cry, the Beloved Country

Part III: Responsibility and Violence 
Chapter 10. Saul Levmore, Kidnap, Credibility, and The Collector.
Chapter 11. Jonathan Masur, Premeditation and Responsibility in The Stranger
Chapter 12. Saira Mohamed and Melissa Murray, Walking Away: Lessons from Omelas
Chapter 13. Mark Payne, Before the Law: Imagining Crimes against Trees

Part IV: Suspicion and Investigation 
Chapter 14. Caleb Smith, Crime Scenes: Fictions of Security in the Antebellum American Borderlands 
Chapter 15. Steven Wilf, The Legal Historian as Detective 

Index

Zucca and Judge on Measure For Measure on Trial: A Shakespearean Mock Trial @Lzucca

Lorenzo Zucca, Professor of Law and Philosophy, King's College, London, and Igor Judge, Lord Judge, Visiting Professor, King's College, London, have published Measure for Measure on Trial: A Shakespearean Mock Trial, at 2017 Journal of Dispute Settlement 1 (PDF paging). Here is the abstract.

Mock trials have been a privileged way to teach law for many years. They allow to convey to the students many subtleties in the workings of the law in a way that lecturing probably never can. Among many other things, it helps pinpoint the values in tension in the real life of the law, the drama of a court room, the imaginaries at play, the social pressure and other forces bearing down on the law’s different actors. Shakespeare’s work epitomises this passion, these waves that curl the flat, cool covers of the law books.

Download the article at the link (from the publisher's website).  

Meyler on LIberal Constitutionalism and the Sovereign Pardon

Bernadette A. Meyler, Stanford Law School, is publishing Liberal Constitutionalism and the Sovereign Pardon in The Scaffold of Sovereignty: Global and Aesthetic Perspectives on the History of a Concept (Zvi Ben-Dor Benite, Stefanos Geroulanos, and Nicole Jerr, eds., New York: Columbia University Press, forthcoming). Here is the abstract.

Theorists as diametrically opposed as Carl Schmitt and Immanuel Kant conceive of the pardon as an exception to the normal operation of law and associate that exception with the figure of the sovereign. This should not be surprising to those familiar with early modern political theory, which generally construed the pardon as one of the sovereign’s most significant powers. Those setting up the foundations for liberal constitutionalism, like Kant, failed to generate a new account of pardoning that would render it an important component of either the rule of law or democracy rather than a relic of monarchical sovereignty. Hence the pardon seems to fit more naturally into the anti-liberal Schmittian account of politics than into the contemporary U.S. constitutional order. As this essay contends, such a result was not inevitable; an alternative, non-sovereign conception of pardoning that appeared in early modern drama presented another possible basis for the act, one that was never implemented within politics. Kant associates pardoning with a particular kind of staging of the splendor of the king’s majesty, one trumped only by the horror of the spectacle of revolutionary and counter-revolutionary violence. This theatrical version of the pardon scene as affirming the height of the sovereign above the people — a version that manifests itself in the spectacular finales of early modern plays such as Shakespeare’s Measure for Measure — is countered by another kind of drama, in which forgiveness comes from a stranger or a friend, and is passed among citizens to reconstitute the state. The article concludes by analyzing an example of one such play, The Laws of Candy, and the path offered by its non-sovereign staging of pardoning.

Download the essay from SSRN at the link.

Measure For Measure and the Nature of Justice

Mark Lawson discusses the enduring importance of Shakespeare's Measure for Measure here for the Guardian. He notes,

Not all observers, it’s true, see the play as universal. At the matinee I attended of the Globe production, a large school party was visibly and audibly bemused by the tenacity of Isabella’s defence of her virginity, which includes rebuking her brother, when he wonders if she couldn’t just do this one thing to save his life, with the startling argument: “Is’t not a kind of incest to take life / From thine own sister’s shame?”

But the character’s willingness to be martyr for chastity – and Angelo’s moral crackdown, backed by capital punishment – would seem less quaint to the Tea Party wing of the Republicans, at the Vatican, or in countries and cultures subject to Islamic sharia law. And so the conflict in the Vienna of the play between sexual licentiousness and censoriousness has an obvious contemporary topicality, while the play’s broader exploration of the nature of justice is perennially relevant: at the Globe, the production is part of a season under the umbrella theme of “Justice & Mercy.”

Shakespeare and Imperfect Justice

Roberta Linciano, University of Salento, has published Musing Upon the Imperfect Justice of Shakespeare's Measure for Measure. Here is the abstract.

Shakespeare’s Measure for Measure can be read as an inquiry into the themes of government and judgement. How do we make people obey the law? By exercising freedom or restraint? Should justice be administered with mercy or with equity? Who is the honest judge? The one who considers every situation impartially or the one who punishes in accordance with the circumstances of the case? Shakespeare shows how all the drama’s principal characters – Duke Vincentio, Angelo and Isabella – deal with such issues by delegating the role of decision-making to a third entity represented by the Deputy, the Rule and the Word, respectively. If, on the one hand, the act of attributing the burden of their personal responsibility to someone else irremediably compromises their proclaimed perfection, on the other, it triggers a process of self/other knowledge which will gradually lead them to recognize and accept the paradoxical nature of human law as well as their flaws.

What I will point out through the analysis of the final trial scene is the Bard’s belief that human justice will always live the irresolvable tension between the respect for general principles and the sensitivity towards the individual’s unique narrative. Vincentio’s unexpected and disappointing verdict is far from being a gratuitous act of forgiveness. It is an attempt to confront the “war ’twixt will and will not” (2.2.33) which is every judge’s and every man’s major challenge.

Justice in "Measure For Measure"

John V. Orth, University of North Carolina, Chapel Hill, School of Law, has published "'The Golden Metwand': The Measure of Justice in Shakespeare's Measure for Measure," in the Adelaide Law Review. Here is the abstract.

Measure for Measure, one of Shakespeare's problem plays, is a dark comedy depicting Duke Vincentio's effort to restore respect for the law after a period of lax enforcement. Peopled with a wide variety of law-enforcers and law-breakers, the play implicates numerous legal issues and has consequently attracted the attention of lawyers and judges. In the eighteenth century Sir William Blackstone contributed notes on the play, while in the twentieth century judges have quoted from it in their judicial opinions. Like all good legal dramas, Measure for Measure ends with a trial scene, but - as we would expect from Shakespeare - one with an unusual twist. When charges of corruption are brought against Angelo, the deputy appointed to enforce the law, the Duke orders an immediate trial: Come, cousin Angelo / In this I'll be impartial; be you judge / Of your own cause. When the deputy's guilt is disclosed, the Duke commands that he suffer the punishment he intended for others - measure for measure, putting the Bible-conscious play-goer in mind of the passage: Judge not, that ye be not judged. / For with what judgement ye judge, ye shall be judged, and with what measure ye mete, it shall be measured to you againe. By ordering Angelo to be the judge of his own cause, the Duke is inviting the deputy to measure out his own punishment. And Shakespeare is forcing us all to confront the difficulty of doing earthly justice.

Download the article from SSRN here.

Why Lawyers Should Read Shakespeare

Michael P. Maslanka, the managing partner of Ford & Harrison in Dallas, has this article on Law.com about why lawyers should read Shakespeare. The article begins:

Why do students still read Shakespeare? A conspiracy of finger-wagging, we-know-what's-best-for-you high school English teachers? No. It's his empathetic powers, making people see ourselves as we are -- rationalizations not permitted.

Shakespeare has much to teach lawyers. Eschewing Judge Judy, his questions are penetrating: How should judges go about judging? Does the rule of law matter? Are mercy and justice mutually exclusive, or are they complementary?

The article goes on to discuss Shakespeare's play, Measure for Measure.