ICYMI: Dees on Great Trials and the Law in the Historical Imagination @routledgebooks

ICYMI: Russell L. Dees, University of Copenhagen, Denmark, has published Great Trials and the Law in the Historical Imagination: A Law and Humanities Approach (Routledge, 2024). Here from the publisher's website is a description of the book's contents.

Great Trials and the Law in the Historical Imagination: A Law and Humanities Approach introduces readers to the history of law and issues in historical, legal, and artistic interpretation by examining six well-known historical trials through works of art that portray them. Great Trials provides readers with an accessible, non-dogmatic introduction to the interdisciplinary ‘law and humanities’ approach to law, legal history, and legal interpretation. By examining how six famous/notorious trials in Western history have been portrayed in six major works of art, the book shows how issues of legal, historical, and artistic interpretation can become intertwined: the different ways we embed law in narrative, how we bring conscious and subconscious conceptions of history to our interpretation of law, and how aesthetic predilections and moral commitments to the law may influence our views of history. The book studies well-known depictions of the trials of Socrates, Cicero, Jesus, Thomas More, the Salem ‘witches’, and John Scopes and provides innovative analyses of those works. The epilogue examines how historical methodology and historical imagination are crucial to both our understanding of the law and our aesthetic choices through various readings of Harper Lee’s beloved character, Atticus Finch. The first book to employ a ‘law and humanities’ approach to delve into the institution of the trial, and what it means in different legal systems at different historical times, this book will appeal to academics, students and others with interests in legal history, law and popular culture and law and the humanities.

Kumar on Trial as a Tool of Colonialism: The 1858 Trial of Mughal Emperor Bahadur Shah Zafar @IFIMLawSchool

Aman Kumar, IFIM Law School, is publishing Trial as a tool of Colonialism: The 1858 Trial of Mughal Emperor Bahadur Shah Zafar in the International Criminal Law Review. Here is the abstract.

This paper brings the 1857 trial of 82 years old Mughal Emperor Bahadur Shah Zafar into the mainstream international law. It discusses the aesthetical aspects of Zafar's trial, who was tried as a British Subject, despite being the Indian sovereign. The paper argues that the trial was used a tool to colonise India. It also points out the treatment given to Zafar post his arrest, when he was displayed to the Europeans 'like a beast in a cage'. It highlights the confusing nature of the trial which was, at times, presented as an enquiry. Moreover, it tells Zafar's story from his point of view. The paper also highlights the blind-spots in the subject of international law where Zafar's trial finds no mention. It provokes readers to question their understanding of colonialism by pointing out the well-known nature of trial of Warren Hastings, but the obscurity surrounding Zafar's trial.

Download the article from SSRN at the link.

ICYMI: Banks on Civil Trials: A Film Illusion? @UMDLaw

ICYMI: Taunya Lovell Banks, University of Maryland School of Law, has published Civil Trials: A Film Illusion? Fordham Law Review, Vol. 85 (2017)in volume 85 of the Fordham Law Review (2017). Here is the abstract.

The right to trial in civil cases is enshrined in the United States Constitution and most state constitutions. Most people, laypersons and legal professionals alike, consider trials an essential component of American democracy. But real life civil trials are disappearing from the American legal landscape. Films, like books designed for consumption by the general public, are cultural documents that embody a society’s attitudes about and views of the law and the legal system. Courtroom films are the most easily recognizable and popular subset of films about law because they provide the stage for an examination of some aspect of a trial—juries, lawyers, litigants, laws or the legal process itself. Some legal commentators contend that legal films have the capacity to teach and encourage film audiences to think more critically about the legal system. But most trial films involve criminal cases. Thus this essay asks whether the distinction between criminal and civil films trials is important when determining the impact of the decline in real-life civil trials on American popular culture and courtroom films in particular.

Download the article from SSRN at the link.

Bandes and Feigenson on Virtual Trials: Necessity, Invention, and the Evolution of the Courtroom @BandesSusan @DePaulLaw @QuinnipiacU

Susan A. Bandes, DePaul College of Law, and Neal Feigenson, Quinnipiac University School of Law, are publishingV Vrtual Trials: Necessity, Invention, and the Evolution of the Courtroom in volume 69 of the Buffalo Law Review. Here is the abstract.

Faith in the legitimating power of the live hearing or trial performed at the place of justice is at least as old as the Iliad. In public courtrooms, litigants appear together, evidence is presented, and decisions are openly and formally pronounced. The bedrock belief in the importance of the courtroom is rooted in common law, constitutional guarantees, and venerated tradition, as well as in folk knowledge. Courtrooms are widely believed to imbue adjudication with “a mystique of authenticity and legitimacy.” The covid-19 pandemic, however, by compelling legal systems throughout the world to turn from physical courtrooms to virtual ones, disrupts and calls into question longstanding assumptions about the conditions essential for the delivery of justice. These questions are not merely tangential – they implicate many of the core beliefs undergirding the U.S. system of justice, including the whole notion of “a day in court” as the promise of a synchronous, physically situated event with a live audience. Rather than regard virtual courts as just an unfortunate expedient, temporary or not, we use them as an occasion to reflect on the essential goals of the justice system, and to re-examine courtroom practices in light of those goals. We draw on social science to help identify what can be justified after the myths are pared away. Focusing on three interrelated aspects of traditional courts – the display and interpretation of demeanor evidence; the courtroom as a physical site of justice; and the presence of the public – we prompt a reassessment of what our legal culture should value most in courtroom adjudication and what we are willing to trade off to achieve it.

Download the article from SSRN at the link.

Janet Malcolm On Learning To Be a Witness

From the New York Review of Books: Janet Malcolm writes about the assistance Sam Chwat gave her in preparing for her appearance in the famous retrial of Masson v. Malcolm. She says in part: 

The transformation had two parts. The first was the erasure of the New Yorker image of the writer as a person who does not go around showing off how great and special he or she is. No! A trial jury is like an audience at a play that wants to be entertained. Witnesses, like stage actors, have to play to that audience if their performances are to be convincing. At the first trial I had been scarcely aware of the jury. When Morgan questioned me, I responded to him alone. Sam Chwat immediately corrected my misconception of whom to address: the jury, only the jury. As Morgan had been using me to communicate to the jury, I would need to learn how to use him to do the same.

Link to the Supreme Court ruling here.  

More about the litigation in the selected bibliography below.

Kathy Roberts Forde, How Masson v. New Yorker Has Shaped the Legal Landscape of Narrative Journalism 10 Journal of Communication Law and Policy 101 (2010).

Kathy Roberts Forde, Literary Journalism on Trial (University of Massachusetts Press, 2008).

Judith Haydel, Masson v. New Yorker Magazine (1991),

Simon-Kerr on Unmasking Demeanor @UConnLaw

Julia Ann Simon-Kerr, University of Connecticut School of Law, has published Unmasking Demeanor. Here is the abstract.

Demeanor is seen as a critical tool for assessing credibility in U.S. courtrooms. From the Confrontation Clause to the Immigration and Nationality Act to the Federal Rules of Civil Procedure to the common law of credibility, the U.S. legal system gives priority and deference to assessing demeanor in the courtroom. Evidence law instructs that we must see a witness’s whole face in order to effectively “read” demeanor. Yet, a growing number of jurisdictions will require all participants in the courtroom to wear masks covering the nose, mouth and chin in order to prevent the spread of COVID-19. This essay canvasses the legal impediments to mask-wearing by witnesses. It argues that these legal obstacles are surmountable, and that this mask-wearing moment offers a unique opportunity to reassess the role of demeanor in credibility assessments. Focusing on demeanor forces witnesses to perform credibility, a performance that does not necessarily bring us closer to the truth.

Download the article from SSRN at the link.

Podgor on A Small Slice of the Chicago Eight Trial @whitecollarprof @stetsonlaw

Ellen S. Podgor, Stetson University College of Law, is publishing A Small Slice of the Chicago Eight Trial in volume 50 of the Loyola University Chicago Law Journal (2019). Here is the abstract.

The Chicago Eight trial was not the typical criminal trial, in part because it occurred at a time of society’s polarization, student demonstrations, and the rise of the House Un-American Activities Committee. Charges were levied against eight defendants, who were individuals that represented leaders in a variety of movements and groups during this time. This Essay examines the opening stages of this trial from the lens of a then relatively new criminal defense attorney, Gerald Lefcourt. It looks at his experiences before Judge Julius Hoffman and highlights how strong, steadfast criminal defense attorneys can make a difference in protecting key constitutional rights and values. Although judicial independence is crucial to a system premised on due process, it is also important that lawyers and law professors stand up to misconduct and improprieties.

Download the essay from SSRN at the link.

Acevedo on Witch-Hunts and Crime Panics in America

John Felipe Acevedo, University of Alabama School of Law, has published Witch-Hunts and Crime Panics in America. Here is the abstract.

The term witch-hunt has been tossed around by media commentators, policy experts, and even presidents for years — Nixon, Clinton, and Trump each in turn. Accusations of a witch-hunt are used to signal perceived bias, procedural unfairness, and paranoia. This Article argues that drawing simplistic connections between witchcraft trials and unfairness in the criminal justice system severely hampers our understanding of both historical and contemporary events. It obscures the fact that the term witch-hunt is popularly used to describe two very different types of prosecutions that reflect distinct social and legal problems and demand distinct solutions. On the one hand, witch-hunts target individuals based on their beliefs and are exemplified by the two Red Scares of the early and mid-twentieth century and the persecution of the Quakers in seventeenth century Massachusetts Bay. These are fundamentally distinct from crime panics, which target activity that was already classified as criminal but do so in a way that reveals deep procedural deficiencies in the criminal justice system. Crime panics are exemplified by the Salem witchcraft trials and the “Satanic Panic” of the 1980s and 1990s. In contrast, the ongoing special investigation by Robert Mueller is neither a witch-hunt nor a crime panic. By bringing ongoing criminal law issues into conversation with legal history scholarship on early American witch-hunts, this article clarifies our understanding of the relationship between politics and large-scale criminal investigations, and highlights areas for future reform.

Download the article from SSRN at the link.

Kamali on Trial By Ordeal By Jury in Medieval England, Or Saints and Sinners in Literature and Law @LizPappKamali

Elizabeth Papp Kamali, Harvard Law School, is publishing Trial by Ordeal by Jury in Medieval England, or Saints and Sinners in Literature and Law in Emotion, Violence, Vengeance and Law in the Middle Ages: Essays in Honour of William Ian Miller (Kate Gilbert and Stephen D. Whites, eds., Leiden: Brill, 2018).

Using a miracle tale as a focal point, this paper illuminates the political and cultural context of York at the turn of the twelfth to thirteenth century in order to make sense of England’s rapid transition from trial by ordeal to trial by jury after 1215. More specifically, the paper highlights the possible impact of the period of papal interdict (c. 1208 – 1214), imposed by Pope Innocent III in response to King John’s intransigence over the appointment of a new archbishop of Canterbury, during this transitional period in criminal procedure. It argues that the interdict, with its suspension of liturgies, might have forced experimentation with alternative means of reaching verdicts in felony cases. The paper also suggests that juries might have been involved in the issuance of ordeal verdicts in the late ordeal period in England, in which case the shift from trial by ordeal to trial by jury may be less a moment of rupture than a transition from one form of trial using juries to another, albeit a trial form more starkly desacralized after 1215. It is the author’s hope that the paper will serve as a starting point for further research, not a decisive answer to the questions it raises, including whether England’s rapid adoption of final jury verdicts may owe something to the tussle between King John and a particularly imperial and imperious pope.

Download the essay from SSRN at the link. 

ICYMI: Trials, Edited by Martha M. Umphrey (Taylor and Francis, 2017) @tandfonline

ICYMI: Trials (Martha Merrill Umphrey, ed., Taylor and Francis, 2017).

This volume gathers a collection of the most seminal essays written by leading experts in the fields of law, and cultural studies, which address the cultural dimension of trials. Taken together, these essays conceive of trials as sites of legal performance and as critical public spaces in which the law both encounters and interacts dialogically with the culture in which it is embedded. Inquiring into the contours of that dialogic relation, these essays trace the paths of cultural stories as they circulate in and through trial settings, examine how trials emerge out of particular social and historical contexts, and suggest ways in which trials themselves, as both singular events and generic forms, circulate and signify in culture.

Here's a link to the contents page.  Essays include Milner S. Ball, The Play's the Thing: An Unscientific Reflection on Courts Under the Rubric of Theater, Robert P. Burns, The Lawfulness of  the American Trial, Randy Hertz and Anthony G. Amsterdam, An Analysis of Closing Arguments to a Jury, Richard K. Sherwin, Law Frames: Historical Truth and Narrative Necessity in a Criminal Case, Austin Sara, Speaking of Death: Narratives of Violence in Capital Trials, Kim Lane Scheppele, Just the Facts, Ma'am: Sexualized Violence, Evidentiary Habits, and the Revision of Truth, Nancy West and Jennifer L. Mnookin, Theaters of Proof: Visual Evidence and the Law in Call Northside 777, Lawrence Douglas, Film as Witness: Screening Nazi Concentration Camps Before the Nuremberg Tribunal, William Finnegan, A Reporter at Large, Robert A. Ferguson, Story and Transcription in the Trial of John Brown, Paul Schiff Berman, Rats, Pigs, and Statues on Trial: The Creation of Cultural Narratives in the Prosecution of Animals and Inanimate Objects, Stephane Leman-Langlois, Constructing a Common Language: The Function of Nuremberg in the Problematization of Postapartheid Justice, David Lipset, "The Trial": 1 A Parody of the Law Amid the Mockery of Men in Post-Colonial Papua New Guinea, Shoshana Felman, Forms of Judicial Blindness, or the Evidence of What Cannot Be Seen: Traumatic Narratives and Legal Repetitions in the O. J. Simpson Case and in Tolstoy's The Kreutzer Sonata. 

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ICYMI: Pritikin on Whether Law and Literature Can Be Practical @concordlaw

ICYMI: Martin H. Pritikin, Concord Law School, has published Can Law and Literature Be Practical? The Crucible and the Federal Rules of Evidence at 115 West Virginia Law Review 687 (2012).

Counter-intuitively, one of the best ways to learn the practice-oriented topic of evidence may be by studying a work of fiction — specifically, Arthur Miller’s The Crucible, which dramatizes the 17th century Salem witch trials. The play puts the reader in the position of legal advocate, and invites strategic analysis of evidentiary issues. A close analysis of the dialogue presents an opportunity to explore both the doctrinal nuances of and policy considerations underlying the most important topics covered by the Federal Rules of Evidence, including relevance, character evidence and impeachment, opinion testimony, hearsay, and the mode and order of interrogation.

Download the article from SSRN at the link.

Howlin on Maamtransna: The Trial of Miles Joyce in 1882 @N_Howlin

Niamh Howlin, Sutherland School of Law, University College Dublin, has published Maamtrasna: The Trial of Myles Joyce in 1882 as UCD Working Papers in Law, Criminology, & Socio-Legal Studies Research Papers No. 1817. Here is the abstract.

At Maamtrasna, County Galway, five members of the Joyce family were brutally killed in August 1882. The initial victims were John Joyce his mother, Margaret Joyce, his wife, Bridget Joyce, his daughter, Margaret Joyce (also known as Peggy). John’s son, Michael Joyce, died of his injuries the following day. The sole survivor of the attack was Patsy Joyce, John’s youngest son, aged around nine or ten years. Myles Joyce was convicted in November 1882 of murdering his cousin, Margaret Joyce. He was one of ten men arrested. Two of these men, Anthony Philbin and Thomas Casey, later testified against the others. Five pleaded guilty and received prison sentences; these were Michael Casey, Martin Joyce (Myles’s brother), Patrick Joyce (another brother of Myles), Tom Joyce (Patrick’s son) and John Casey. Three men, Myles Joyce, Patrick Joyce and Patrick Casey were tried, convicted and hanged. Given the number of victims, accused persons and accusers, and the remote, tight-knit nature of the area, it is unsurprising that there were various relationships between the main protagonists. They were neighbours, cousins, brothers, fathers and sons, many of whom shared the same names and surnames. Myles Joyce’s death sentence was executed at Galway Gaol in December 1882. Right up until the point of death Myles protested his innocence, and is now widely accepted as having been innocent of the offence. Two other men who were hanged alongside Myles, (Patrick Joyce and Patrick Casey), claimed responsibility for the murders before they were executed. Both emphasised Myles Joyce’s innocence. The question for this paper is whether the circumstances Myles’s conviction were inconsistent with the legal standards of the period.

Download the article from SSRN at the link.

Narrative and Metaphor in the Law, Edited by Michael Hanne and Robert Weisberg, Due in 2018 From Cambridge University Press @Stanford @AucklandUni

Forthcoming from Cambridge University Press in 2018: Narrative and Metaphor in the Law, edited by Michael Hanne, University of Auckland, and Robert Weisberg, Stanford University. Here is a description of the book's contents.

It has long been recognized that court trials, both criminal and civil, in the common law system, operate around pairs of competing narratives told by opposing advocates. In recent years, however, it has increasingly been argued that narrative flows in many directions and through every form of legal theory and practice. Interest in the part played by metaphor in the law, including metaphors for the law, and for many standard concepts in legal practice, has also been strong, though research under the metaphor banner has been much more fragmentary. In this book, for the first time, a distinguished group of legal scholars, collaborating with specialists from cognitive theory, journalism, rhetoric, social psychology, criminology, and legal activism, explore how narrative and metaphor are both vital to the legal process. Together, they examine topics including concepts of law, legal persuasion, human rights law, gender in the law, innovations in legal thinking, legal activism, creative work around the law, and public debate around crime and punishment.

Takes the form of nine conversations between pairs of eminent scholars in different disciplines

Opens up discussion for the first time of the joint roles of narrative and metaphor in the law

Topics include legal persuasion, gender in the law, judicial opinions and public debate around crime and punishment

Includes contributions by Michael Hanne, Robert Weisberg, Greta Olson, Lawrence Rosen, Michael R. Smith, Raymond W. Gibbs, Simon Stern, Peter Brooks, Linda L. Berger, Kathryn M. Stanchi, Roberto H. Potter, Dahlia Lithwick, L. David Ritchie, Katherine Young, Bernadette Meyler, Lawrence Joseph, Meredith Wallis, Mari Matsuda.

Lizzie Borden's Back...With a Vengeance

The Guardian takes a look at the enduring interest with Lizzie Borden and the events of August 4, 1892, as new popular culture entries, including a film, a novel, and a musical focus on the enigmatic Massachusetts woman who may have been the U.S.'s ultimate daddy's girl. More here.

Wilson @richardawilson7 on Propaganda and History in International Criminal Trials

Richard Ashby Wilson, University of Connecticut School of Law, is publishing Propaganda and History in International Criminal Trials in the Journal of International Criminal Justice (2016). Here is the abstract.

In the course of prosecuting crimes against humanity, international criminal tribunals from the International Military Tribunal (IMT) at Nuremberg to the International Criminal Court (ICC) have provided accounts of the origins and causes of mass atrocities. Their historical narratives exhibit a common feature that has not been remarked upon, and that is the central role they assign to political propaganda in explaining popular participation in mass crimes. Judges have invoked propaganda to answer one of the most vexing questions at international criminal tribunals: why neighbor turned against neighbor and committed extreme acts of collective violence in contexts characterized by long periods of co-existence. This article evaluates the evidence for claims regarding the role of propaganda and concludes that eyewitness evidence for the causal role of propaganda is often slender and unconvincing. Insiders and material perpetrators more often than not repudiate their original testimony amid allegations of intimidation and bribery. At times, judges have balked at expert evidence on propaganda and refused to recognize it as germane to a criminal trial. Given the relative paucity of evidence for a directly causal role, why has propaganda become one of the overarching narratives that international courts employ to explain atrocities during armed conflicts? How does the model of causation customarily used in criminal law shape the kind of histories that international courts write? In answering these questions, the article refers to the unique model of causation used in criminal law, the apolitical nature of propaganda as an historical explanation, and the moral expressivist function of criminal courts.

Download the article from SSRN at the link.

Lerner on The Troublesome Inheritance of Americans in Magna Carta and Trial by Jury

Renee Lettow Lerner, George Washington University Law School, has published The Troublesome Inheritance of Americans in Magna Carta and Trial by Jury at Magna Carta and its Modern Legacy 77-98 (Robert Hazell and James Melton eds., Cambridge University Press 2015). Here is the abstract.

Many Americans insisted on their traditional rights as Englishmen in the conflict with Britain before and after declaring independence. Magna Carta — particularly the provisions concerning the “law of the land” and “judgment of his peers” — embodied fundamental rights of Englishmen that American revolutionaries were willing to fight to protect. As Edward Coke had found more than a century before, American revolutionaries understood that invoking such an ancient document inspired resistance to authority. Americans cherished Magna Carta most because of its association with jury trial. Juries had proved useful to Americans in their conflict with Britain. Colonial American juries had nullified the law of seditious libel, customs taxes, and debts to British merchants. It was no wonder Americans held the jury in high esteem, at least until they had to run their own governments. Americans filled their constitutions, both federal and state, with rights to jury trial. Several American states even included translations of provisions from Magna Carta in their constitutions, enshrining the “judgment of his peers.” Once Americans had achieved independence and formed the new republics, judges faced the task of interpreting these thirteenth-century provisions as eighteenth- and nineteenth-century law. American judges quoted Blackstone and historical treatises. Through the nineteenth century, however, American enthusiasm for juries waned. The much-repeated phrases from Magna Carta became a flimsy screen, masking the steady decline of jury power.

Download the essay from SSRN at the link.

Literary Trials

New from Bloomsbury:

Literary Trials: Exceptio Artis and Theories of Literature in Court (Ralf Gruettemeier, ed., 2016).

Here is a description of the contents from the publisher's website.

From the 19th century onwards, famous literary trials have caught the attention of readers, academics and the public at large. Indeed it is striking that more often than not, it was the texts of renowned writers that were dealt with by the courts, as for example Gustave Flaubert's Madame Bovary and Charles Baudelaire's Les Fleurs du Mal in France, James Joyce's Ulysses and Henry Miller's Tropic of Cancer in the US, D.H. Lawrence's Lady Chatterley's Lover in Great-Britain, up to the more recent trials on Klaus Mann's Mephisto and Maxim Biller's novel Esra in Germany.

By bringing together international leading experts, Literary Trials represents the first step towards a systematic discussion of literary trials on a global scale. Beginning by first reassessing some of the most famous of these trials, it also analyses less well-known but significant literary trials. Special attention is paid to recent developments in the relationship between literature and judicature, pointing towards an increasing role for libel and defamation in the societal demarcation of what literature is, and is not, allowed to do.

 

rom the 19th century onwards, famous literary trials have caught the attention of readers, academics and the public at large. Indeed it is striking that more often than not, it was the texts of renowned writers that were dealt with by the courts, as for example Gustave Flaubert's Madame Bovary and Charles Baudelaire's Les Fleurs du Mal in France, James Joyce's Ulysses and Henry Miller's Tropic of Cancer in the US, D.H. Lawrence's Lady Chatterley's Lover in Great-Britain, up to the more recent trials on Klaus Mann's Mephisto and Maxim Biller's novel Esra in Germany.

By bringing together international leading experts, Literary Trials represents the first step towards a systematic discussion of literary trials on a global scale. Beginning by first reassessing some of the most famous of these trials, it also analyses less well-known but significant literary trials. Special attention is paid to recent developments in the relationship between literature and judicature, pointing towards an increasing role for libel and defamation in the societal demarcation of what literature is, and is not, allowed to do. -

Sarma on Walter White, Legal Narrative, and the Death Penalty

Bidiah Sarma, University of California (Berkeley) School of Law and the Justice Center's Capital Appeals Project, is publishing Why We Would Spare Walter White: Breaking Bad and the True Power of Mitigation in volume 45 of the New Mexico Law Review (2015). Here is the abstract.

What if Walter White had been captured by the federal authorities? Considering that he committed the murders of many individuals and orchestrated many more in the course of building and running his global meth trade, the prosecution would be able to seek the ultimate punishment against him. But, would a jury give him the death penalty? Walt’s gripping journey stirred within viewers a range of complex emotions, but even those revolted by his actions must concede that it is extraordinarily difficult to envision a random collection of twelve people unanimously agreeing that he deserves a state-sanctioned execution. Indeed, it seems that many of us actually rooted for Walt throughout the series, even when we struggled to understand why. This Essay explores the answer to the question of why we would spare Walter White from the death penalty. Its exploration underscores the critical importance of “mitigation” — a capacious term that refers to evidence introduced by capital defense lawyers to persuade jurors to hand down something less harsh than a death sentence. Breaking Bad, through its masterful construction of its core narrative, situated us to empathize with Walt, to view him as someone we could understand, to feel about him the way we might feel about a friend or colleague or neighbor. Whether we argued vociferously in online forums that his actions were nearly always justified or simply watched with a suppressed but distinct hope that he might emerge as a partially redeemed man, many of us never condemned Walt. We did not want him to die an undignified death at someone else’s hands. In fact, we were relieved that death came to him on his own terms. And, if he had been captured, we would not have sent him to the death chamber. Knowing Walt — understanding his “mitigation” — bent us towards mercy. To start, this Essay explains how a capital trial unfolds and sets out the factors that jurors must take into account when they decide whether to choose death for a convicted capital defendant. After establishing the basic framework for the death-determination in Part I, this Essay focuses on Walter White’s hypothetical penalty phase in Part II. It describes both the “aggravating” evidence the prosecution would use to persuade jurors that death is the appropriate punishment and the “mitigating” evidence the defense would use to persuade jurors that a sentence less than death is appropriate. Part II concludes with an explanation of why a jury likely would not sentence Walter White to die. Part III steps back to identify distinct conclusions that we could draw from viewers’ prevailing willingness to ride with Walt until the end. It concludes that it would be unwise to dismiss Walt as a fictitious outlier. Rather than ask ourselves what makes Walt’s particular case for mercy special, we should ask ourselves how the show managed to make him so real. Breaking Bad’s storytelling proved so powerful that the show’s writers were themselves amazed that viewers continued to stand by Walt’s side through it all. If we would spare Walter White, surely we would spare many others facing capital punishment. But to get there, we need to do more than hear that they have struggles and triumphs of their own; we need to walk with them on their journeys. We must feel like we did when the last episode of Breaking Bad began — wondering exactly how things will end, but unwilling to bring that end by our hands.

Download the article from SSRN at the link.

Coulson on Legal Oratory in the Processus Sathanae

Doug Coulson, Department of English, Carnegie Mellon University, has published The Devil's Advocate and Legal Oratory in the Processus Sathanae at 33 Rhetorica: A Journal of the History of Rhetoric 409 (2015). Here is the abstract.

Modern readers have been baffled by the combination of legal, dramatic, and theological elements in the 14th century Processus Sathanae, a mock trial drama in which the devil’s advocate and the Virgin Mary employ various Roman law concepts in a courtroom debate regarding the devil’s claim that he was wrongfully dispossessed of humanity. This article examines the Processus Sathanae along with an early source of the drama in a Marcionite creation dialogue and argues that by foregrounding equitable and emotional appeals the drama taught late medieval law students important lessons regarding legal oratory during a crucial period in the development of European jurisprudence. 

Download the article from SSRN at the link.

Murray on Law, Literature, and Courtroom Proceedings

Yxta Maya Murray, Loyola (Los Angeles) Law School, is publishing The Tyranny of Small Things in the Michigan Journal of Race & Law. Here is the abstract.

This legal-literary essay recounts a day I spent watching criminal sentencings in an Alhambra, California courthouse, emphasizing the sometimes quotidian, sometimes despairing, imports of those proceedings. I take leave of the courthouse marshaling arguments that resemble those of other scholars who tackle state overcriminalization and selective enforcement. My original addition exists in the granular attention I pay to the moment-by-moment effects of a sometimes baffling state power on poor and minority people. In this approach, I align myself with advocates of the law and literature school of thought who believe that the study (or, in this case, practice) of literature will aid the aims of justice by disclosing buried yet critical human experience and emotions.

Download the article from SSRN at the link.