McAdams and Corre on New Light on the Trial of Billy Budd

Richard H. McAdams, University of Chicago Law School, and Jacob Corre have published New Light on the Trial of Billy Budd as University of Chicago Public Law Working Paper No. 684. Here is the abstract.

We add to the extensive literature on Herman Melville’s Billy Budd, Sailor, with a careful inquiry into the legal questions it poses. Our ultimate position is that Captain Vere is neither clearly a hero nor clearly a villain. Instead, the novel embraces ambiguity by intentionally arming each side of the debate with considerable firepower, leaving readers with a quandary that would have been familiar to Herman Melville’s contemporaries, as it was parallel to the national debate over the 1842 case of the USS Somers, where the captain had ordered the summary execution of three suspected mutineers. In his influential writing on Billy Budd, Professor Richard Weisberg is correct to criticize what was, previous to him, an unreflective consensus valorizing Vere. However, Weisberg and his defenders are equally wrong to offer a one-sided attack on Vere, as if there were no case for his decision to summarily try and execute Billy Budd. To the contrary, the background history of the “Great Mutiny” of 1797, the narrator’s description of naval law and custom, and a careful analysis of the Somers case, all demonstrate that the case for Vere is as strong as the case against.

Download the article from SSRN at the link.

At Cardozo: An Important Discussion on the Holocaust, Genocide, and Human Rights, October 30, 2014

From the Cardozo School of Law:

"On the Implications for Contemporary Law and Legal Scholarship on Vichy and Third Reich Judicial Discourse"

Thursday, October 30, 2014, 6 - 8pm
Benjamin N. Cardozo School of Law
55 Fifth Avenue, Room 102

New York, NY 10003

Please RSVP to cardozophhr@gmail.com

On October 30th, the Holocaust, Genocide and Human Rights (HGHR) Program at Benjamin N. Cardozo School of Law presents a discussion "On the Implications for Contemporary Law and Legal Scholarship of Vichy and Third Reich Judicial Discourse." The event will begin at 6 pm at 55 Fifth Avenue, Room 102. There will be a reception in the lobby following the event.

The discussion will involve close readings of what passed for legal discourse in Vichy France and Nazi Germany, appraising its significance for today's legal scholarship, judges, and interpretive theory. Among specific developments to be discussed are a German court's recent description of circumcision in Jewish ritual as causing "severe physical injury," the relationship of law and morals generally, and the implications of Vichy's legal and academic discourse for the incipient renewal of anti-semitism in France.

The speakers are Prof. Otto Pfersmann, Prof. of Law, Paris-1, Pantheon, Sorbonne, and Prof. Richard Weisberg, Floersheimer Prof. of Constitutional Law and Founding Director, Cardozo Holocaust, Genocide and Human Rights Program. 

Please RSVP to cardozophhr@gmail.com

How They Do It Good

Richard Weisberg, Cardozo School of Law, has published Grisham vs. Solmssen as Cardozo Legal Studies Research Paper No. 411. Here is the abstract.

A close comparative analysis of the law-related works of two excellent story-tellers, one celebrated (John Grisham) and the other (Arthur G. Solmssen) even more worthy of fame.

Download the paper from SSRN at the link. 

President Proposes Richard Weisberg For Administrative Post

President Barack Obama is naming Richard H. Weisberg to the Commission for the Preservation of America’s Heritage Abroad. Professor Weisberg is the founding and current President of the Law and Humanities Institute. Below is an abbreviated biography, taken from a White House press release.

Richard H. Weisberg is the Floersheimer Professor of Constitutional Law at the Benjamin N. Cardozo School of Law, Yeshiva University.  He began his teaching and scholarly career as Assistant Professor of French and Comparative Literature at the University of Chicago, and then went on to practice and teach law. In 2009, he was awarded the Legion of Honor by the French government for his work, together with US State Department and French governmental officials, in providing restitution from France to victims of the wartime Vichy regime. A recipient of Guggenheim, ACLS, and Rockefeller Foundation fellowships, he is the author of four books including Vichy Law and the Holocaust in France; Poethics; and The Failure of the Word.  He is the founding and current president of the Law & Humanities Institute and founding and general editor of the periodical, Law and Literature.  He received his J.D. from Columbia Law School, where he was an editor of the Law Review, and his Ph.D from Cornell University.

Law, Literature and the Holocaust

Richard Weisberg, Cardozo School of Law, has published "Law and Literature as Survivor" as Cardozo Legal Studies Research Paper No. 221. Here is the abstract.

While human rights lawyers from Nuremberg on tried to respond to the evils of Hitler's Europe with cautious directness, humanistic theorists in the post-modernist modes of the post-war period resisted all generalizations, including the establishment of legal norms through international codes of law. Addressing with some admiration the Holocaust-related later works of Geoffrey H. Hartman and (with less reverence) the anti-code and largely antinomian writings of Paul de Man and Jacques Derrida, this essay places in opposition the code-identifying and code-evaluating work of Law and Literature to that of the always equivocated writings of these deconstructionists for whom every grand narrative and every attempt to base act and choice on precedent was anathema. Although Hartman's aversion to all generalization is ethically sound considering the damage caused by Hitler's blunt and conclusory rhetoric, this essay relies on work about legal discourse during the Holocaust to indicate that this aversion emerges from a mis-placed logic about how institutions managed to adjust their ingrained beliefs and practices to such grotesque pronouncements.

More skeptical perhaps of complexity for its own sake, Law and Literature studies tend to locate codes (public or private, written or unwritten) within the great stories of the law and then unabashedly to value those codes in the Nietzschean sense as good or bad, justice-serving or reactionary. Discourse confronts ethical dilemmas - including those still unresolved six decades after the Holocaust - and to speak of them through a direct language of choice that often informs the canonical narratives we study.

Download the paper from SSRN here.

Lawyer Ethics In Popular Culture

Michael Asimow, University of California, Los Angeles, School of Law, and Richard Weisberg, Yeshiva University, Cardozo School of Law, have published "When the Lawyer Knows the Client is Guilty: Client Confessions in Legal Ethics, Popular Culture, and Literature," forthcoming in the Southern University Interdisciplinary Law Journal. Here is the abstract.

This article concerns a classic puzzle in legal ethics: what should a criminal defense lawyer do when the lawyer is certain that the client is factually guilty (usually because the client confessed to the lawyer), but the client insists on an all-out defense? Legal ethicists have struggled with this problem since the Courvoisier case in 1840, but it remains unresolved. This article draws a distinction between strong and weak adversarialism and explains how these two normative positions guide a lawyer's tactical decisionmaking. The article suggests that lawyers should have discretion to choose between the strong and weak positions, depending on context and their personal conscience. Both popular culture and great literature provide interesting perspectives on the strong vs. weak adversarialism dilemma. According to numerous films, television shows and novels, the right answer to the lawyer's dilemma is no adversarialism at all. The good lawyer should betray evil clients to insure that the truth is discovered. Pop culture's no-adversarialism model is a universe few lawyers would care to inhabit but which reflects popular views on the relationship of lawyering to truth. Literature casts doubt on whether a lawyer can know with certainty whether a client is telling the truth. It presents numerous models of successful strong adversarialists and unsuccessful weak adversarialists. Few literary lawyers manage to be both skilled advocates and decent human beings.

Download the article from SSRN here.

Weisberg on the Merchant of Venice

Richard Weisberg, Cardozo Law School, has published "The Concept and Performance of "The Code" in The Merchant of Venice" as Cardozo Legal Studies Research Paper No. 229. Here is the abstract.

This essay elaborates on several prior endeavors that explored the bonding of Portia and Shylock in the last two scenes of The Merchant of Venice. Both characters revere codes, in contradistinction to the insider male world of Venice, which easily traduces promises, oaths, and laws anytime the fluid situation so demands. Portia can do this, too; she plays both with her father's testamentary code and with the Shylock-Antonio contract. The trial scene as it progresses, however, teaches her the costs of such (comedic) playfulness. She responds with special antipathy when Antonio - asked to do mercy to Shylock - instead cruelly manipulates the Alien Statute utterly to destroy the Jew. By the time she returns to Belmont in Act V, she has learned from Shylock that the marriage code, symbolized by the ring, can indeed be honored. For this to happen in her own marriage, however, she must rid her husband and herself of the baleful mediation of Antonio.

Download the entire paper from SSRN here.

Weisberg On Law and Literature

Richard Weisberg, Cardozo Law School, has published "Law and Literature as Survivor," as Cardozo Legal Studies Research Paper No. 221. Here is the abstract.

While human rights lawyers from Nuremberg on tried to respond to the evils of Hitler's Europe with cautious directness, humanistic theorists in the post-modernist modes of the post-war period resisted all generalizations, including the establishment of legal norms through international codes of law. Addressing with some admiration the Holocaust-related later works of Geoffrey H. Hartman and (with less reverence) the anti-code and largely antinomian writings of Paul de Man and Jacques Derrida, this essay places in opposition the code-identifying and code-evaluating work of Law and Literature to that of the always equivocated writings of these deconstructionists for whom every grand narrative and every attempt to base act and choice on precedent was anathema. Although Hartman's aversion to all generalization is ethically sound considering the damage caused by Hitler's blunt and conclusory rhetoric, this essay relies on work about legal discourse during the Holocaust to indicate that this aversion emerges from a mis-placed logic about how institutions managed to adjust their ingrained beliefs and practices to such grotesque pronoucements.

More skeptical perhaps of complexity for its own sake, Law and Literature studies tend to locate codes (public or private, written or unwritten) within the great stories of the law and then unabashedly to value those codes in the Nietzschean sense as good or bad, justice-serving or reactionary. Discourse confronts ethical dilemmas - including those still unresolved six decades after the Holocaust - and to speak of them through a direct language of choice that often informs the canonical narratives we study.

Download the paper from SSRN here.

Literature and Law Conference at John Jay College of Criminal Justice

John Jay College of Criminal Justice (CUNY) is holding a one day conference entitled "Literature and Law" on Friday, April 11, 2008 on its campus at 899 Tenth Avenue (between 58th and 59th Streets). The conference will celebrate the imminent restoration of John Jay's English major, which will have a unique literature and law emphasis.

The Conference's keynote speaker will be Brook Thomas, a noted literature and law scholar and Chancellor's Professor at the University of California Irvine. His most recent book, just published by UNC Press, is Civic Myths: A Law-and-Literature Approach to Citizenship.

Also addressing the Conference will be Richard Weisberg, a professor at Cardozo Law School, and one of the founders of the law and literature movement.

The Conference will include eight paper panels and two round table discussions, and will end with a reception sponsored by the Law and Literature Journal. A conference schedule and registration information can be accessed here.

An application is pending with the New York State Continuing Legal Education Board to obtain CLE Credit for this conference in the area of Ethics and Professionalism.

Celebrating the Canon

Richard Weisberg, Cardozo Law School, has published "Wigmore, and the Law and Literature Movement," as Cardozo Legal Studies Research Paper No. 177. Here is the abstract.

John Wigmore's list of Legal Novels -- really several lists compiled over the first 30 years or so of the 20th century -- helped to generate the modern embodiment of the Law and Literature movement. The bibliographical element, although of course controversial as the Law and Literature canon developed through multiple debates about what should and should not be read and discussed, proved essential in locating a group of stories that lawyers were to live with throughout their professional careers. More than bibliographical, however, Wigmore's accompanying text stressed the democratization through great literature of a legal profession otherwise prone to misunderstanding the human realities with which it was theoretically always concerned. A defined group of fictional narratives -- stories about law, lawyers, trials, statutes -- was to re-awaken in the legal reader the attachment to democratic values conveyed by literature through its acute awareness of human needs and the failure of great institutions to serve them. This essay marks the 30th anniversary of its author's update of the Wigmore list. I trace the very active debates that have informed Law and Literature since that 1976 Northwestern Law Review article, and I celebrate the expansion to foreign shores of knowledge about Wigmore, as Law and Literature proponents both home and abroad have embraced Wigmore's democratic impulse for law.

Download the entire paper here.