Ally McBealisms

Christine Corcos, LSU Law Center, has published "Power of Attorney." Here is the abstract.

No doubt exists that the drama/farce Ally McBeal, which ran on the Fox Television Network from 1997 to 2002, was a phenomenal success, at least during its middle years (1998-1999). It sparked numerous fan websites in several countries including one devoted to “fan fiction” (a genre in which devotees of a television series or film try their hands at writing scripts), various product spinoffs,a series spinoff (Ally, a thirty minute version that featured only vignettes, no legal drama) and even a Time magazine article that seriously considered whether Ally represents “the end of feminism. Years after the show went off the air, its influence continues. The popular prime time medical show “Grey's Anatomy” has spawned a spin-off which is already drawing fire for its emphasis on protagonists who are “lovelorn, sex-starved and prone to public displays of disaffection.” The reason, says writer Alessandra Stanley, is traceable directly to Ally McBeal, a show which emphasized a heroine who “marked a turning point in the devolution of women's roles in television comedy — the moment when competent-but flaky hardened into basket case.”

What made this thin, goofy, self-absorbed character so popular, at least before rumors and scandal about anorexia and drug use made the show more famous for off-screen shenanigans than on-screen accomplishment? Why was she so powerful a figure that a major U.S. news magazine devoted an important story to discussing her impact? I suggest that one of the major factors in Ally's rise was the fact that writer/producer David E. Kelley cast her as an attorney, the professional that everyone loves to hate, but also a woman who is, to be honest, fairly bad at her job, at least in the first three years, and arguably during her entire (fictional) career. As a woman attorney, Ally fits within the tradition of female lawyers who are either good at their jobs, or good at their relationships, but not both, and in Ally's case, neither. Further, Ally's impact is such that commentators both in the popular media and in legal academia continue to refer to her. She, and her series, have become “memes” — a character whose mention immediately sparks all sorts of associations. Kelley's willingness to test the boundaries of the law through storylines also ensures that the episodes of all the shows with which he is involved (not just Ally McBeal) retain their freshness.

Download the entire paper from SSRN here.

Call for Papers

UCLA School of Law, Columbia Law School, University of Southern California Center for Law, History & Culture, and Georgetown University Law Center invite submissions for the sixth meeting of the Law & Humanities Junior Scholar Workshop to be held at UCLA Law School in Los Angeles, CA on June 8 & 9, 2008.



PAPER COMPETITION:

The paper competition is open to untenured professors, advanced graduate students and post-doctoral scholars in law and the humanities; in addition to drawing from numerous humanistic fields, the Workshop welcomes critical, qualitative work in the social sciences. Between five and ten papers will be chosen, based on anonymous evaluation by an interdisciplinary selection committee, for presentation at the June Workshop. At the Workshop, two senior scholars will comment on each paper. Commentators and other Workshop participants will be asked to focus specifically on the strengths and weaknesses of the selected scholarly projects, with respect to subject and methodology. Moreover, the selected papers will then serve as the basis for a larger conversation among all the participants about the evolving standards by which we judge excellence and creativity in interdisciplinary scholarship, as well as about the nature of interdisciplinarity itself.



Papers should be works-in-progress between 10,000 and 15,000 words in length (including footnotes/endnotes), and must include an abstract of no more than 200 words. A dissertation chapter may be submitted but we strongly suggest that it be edited so that it stands alone as a piece of work with its own integrity. A paper that has been submitted for publication is eligible as long as it will not be in galley proofs or in print at the time of the Workshop. The selected papers will appear in a special issue of the Legal Scholarship Network; there is no other publication commitment. The Workshop will pay the travel expenses of authors whose papers are selected for presentation.



Submissions (in either Word or Wordperfect, no pdf files) will be accepted until January 8, 2008, and should be sent by e-mail to:



Center for the Study of Law and Culture

culture@law.columbia.edu



Columbia Law School

435 W. 116th Street

New York, N.Y. 10027



Please be sure to include your contact information. For more information: Manissa Maharawal, 212.854.2511 or culture@law.columbia.edu. The full text of the Call for Papers is available at: www.law.columbia.edu/center_program/law_culture.



[Cross posted to The Seamless Web; Law & Magic Blog]

The Miller Girls: Daisy and Judith

Penelope Pether, Villanova University School of Law, has published "Regarding the Miller Girls: Daisy, Judith, and the Seeming Paradox of in re Grand Jury Subpoena, Judith Miller," in 19 Law and Literature: The New Exceptionalism: Law and Literature Since 9/11 Symposium 187 (2007). Here is the abstract.

“Daisy Miller” is a story about American Exceptionalism; about the banal and tawdry tragedy that comes of having faith in it; about Daisy's (the lawyer Giovanelli's “new found land”) tragic flaw - that she is unaware of how others perceive her, or she doesn't care; or about ambiguities, or seeing things. It can be made to speak volumes about the power of perception, as about what Tayyab Mahmoud has called “[a]doption and deployment of identity.” Or about the seductive power of fictions of specifically national identity: for James critic Leslie Fiedler, “the American Girl is innocent by definition, mythically innocent; and her purity depends upon nothing she says or does....”

A contemporary American anti/heroine, Judith Miller, is likewise figured as interpretable: did she need a “freely given” “personal” waiver of confidentiality to identify her source, and when did she get one; was she a “good, honorable principled reporter” or “A Woman of Mass Destruction”; and what did New York Times Executive Editor Bill Keller's accusation of an “entanglement” with “Scooter” Libby connote?

This essay takes the intrigues generated around “the Miller Girls” as a guide to reading the stories told by, surrounding, excised from, and immanent in the 2005 decision of the United States Court of Appeals for the District of Columbia in In re Grand Jury Subpoena, Judith Miller, and explores some fictions of American Exceptionalism cultivated both by “common law constitutionalism,” and by a Federal judiciary laying down the law in the shadows cast by the “War on Terror” and the jurisdictions of expatriation.

Download the entire article from SSRN here.

Papke on Courts

David Papke, Marquette University School of Law, has published "The Impact of Popular Culture on American Perceptions of the Courts," as Marquette Law School Legal Studies Paper 07-07. Here is the abstract.

After a brief introduction defining popular culture as the commodities and experiences produced by the culture industry for mass audiences, this essay explores the impact of court-related popular culture on what Americans think of and expect from their courts. The Perry Mason effect from an earlier era and the CSI effect from the present are noted, as is scholarly work by Michael Asimow, Philip T. Dunwoody, Kimberlianne Podlas, Victoria S. Salzmann, and others. The essay concludes with suggestions for what might be done in the courthouse, the community, and the family room to control the impact of court-related popular culture on American legal consciousness.

Download the entire paper from SSRN here.

Historicizing Ronald Dworkin

Mark Walters, Queen's University Faculty of Law, has published "Hercules as Legal Humanist: Historicizing Dworkin's Jurisprudence," as Queen's University Legal Studies Research Paper 07-01. Here is the abstract.

Although H.L.A. Hart presented his legal theory "as part of the history of an idea", the theory of law developed by Hart's most famous critic, Ronald Dworkin, seems to be without a history. Dworkin does insist that his theory of law, "law-as-integrity", explains traditional common law method. But he has shown no real interest in the history of theorizing about that method, in part because he wishes to distance his own work from traditional schools of natural law. In this article, I revisit early theories of common law reasoning and show how, despite key differences, these theories share much in common with Dworkin's jurisprudence. Writers on the early-modern common law embraced insights drawn from Renaissance humanism to reach conclusions about the relationship between law and philosophy, the importance of coherence, interpretation and truth, and integrity, equality and the case-law method that foreshadow Dworkin's theory of law-as-integrity. If jurisprudence really is an aspect of normative political theory, as Dworkin suggests, then theories of law should be located within evolving traditions of political and intellectual thought. Law-as-integrity has a history to which it can lay claim, and that history is located in the humanist explanations of the early-modern common law.

Download the entire paper from SSRN here.

Law and Crime in Japanese Cinema

Federico Varese, Oxford University School of Law, has published "The Secret History of Japanese Cinema: The Yakuza Movies," as Oxford Legal Studies Research Paper 22/2006. Here is the abstract.

This article explores the interplay among economic imperatives within the entertainment business, the mafia's role in the creation of its own media image, and the production of gangster films. Taking Japan as a case study, the paper shows that, when given the chance to influence the content of gangster movies, crime bosses have portrayed themselves as benevolent patriarchs and a positive force in society, rather the anti-heroes of classic American gangster movies. In Japan, such a choice had, however, the unintended consequence of a decline in audience interest and eventually led to the demise of studio yakuza movies. Ultimately, the paper shows that that mafia control over art can lead to the death of art - something that is bad for the mafia, as well.

Download the entire paper from SSRN here.

Richard K. Sherwin on Popular Culture and Law

Richard K. Sherwin, Director of the Visual Persuasion Project, and Professor of Law, New York Law School, has published "Popular Culture and Law". It will appear as the introduction in the International Library of Essays in Law and Society volume for 2006. Here is the abstract.

What are the consequences when law's stories and images migrate from the courtroom to the court of public opinion and from movie, television and computer screens back to electronic monitors inside the courtroom itself? What happens when lawyers and public relations experts market notorious legal cases and controversial policy issues as if they were just another commodity? What is the appropriate relationship between law and digital culture in virtual worlds on the Internet? In addressing these cutting edge issues, the essays in this volume shed new light on the current status and future fate of law, truth and justice in our time.

Download the entire essay from SSRN here.

Indigenous Law Conference Planned at Michigan State University

News from Professor Matthew Fletcher of Michigan State University College of Law:

The Michigan State University College of Law will host its fourth Indigenous Law Conference from October 19 through October 20 of this year in East Lansing, Michigan. The welcome reception is October 18. The topic is American Indian Law and Literature. Guests include Richard Delgado, Frank Pommersheim, and Kristen Carpenter. Here's a link to the conference.

The Work of James Boyd White

Marc Roark, University of Tulsa, has published "Loneliness and the Law: Solitude, Action and Power in the Living Speech of James Boyd White." Here is the abstract.

The law is filled with empty spaces - what is not written; what is not said but meant; what is unsayable or unprintable. This article describes the spaces that such emptiness creates in both individual lawyers and in the law. The article begins by considering the elements of the legal idea: the action, needed to move the idea into consciousness, and the power conveying the idea's strength to the community. Proceeding from this framework, part one focuses on the loneliness that fosters legal ideas. Describing four types of loneliness: Indeterminacy, Resentment, Contemplation, and Exile, the article considers how these types of loneliness are revealed in the jurisprudence surrounding the African-American (Plessy v. Ferguson to Brown v. Board of Education) and the Asian American (Yick Wo and Korematsu) equality lines of cases. The article argues that the silent spaces of these opinions reveal as much as the written opinions.

Part 2 considers the action of the idea - both the movement of the idea from the consciousness to the material world, and the realization every lawyer comes to that his work is mere repetition. Focusing on the same line of cases, this part demonstrates how even the cases that suppose a positive change in the law, are repetitious in some ways of the past. The article suggests that the recognition of this repetition, is not only necessary but unavoidable for the lawyer-scholar to define himself.

Finally, Part 3 describes the power of the idea, lifting it out of the constraints of the material and into the spaces of the normative. Utilizing the description of place and space, the article captures the essence of grounding normative ideas into materiality and vice versa. The article however contains a cautionary tale in that certain ideas, when they become normative, can leave manifestations already materialized left to wither alone and with no normative identity (or an identity long passed). Utilizing the analogy of law as liturgy, the Article suggests that the silent spaces both tell us what the law is and what the law is not - revealing the true character of the material manifestation.

Download the entire paper from SSRN here.

Lawyers in Comic Books

William A. Hilyerd, University of Louisville School of Law, has published "Hi Superman, I'm a Lawyer: A Guide to Attorneys (& Other Legal Professionals) Portrayed in American Comic Books, 1910-2007". Here's the abstract.

Since comic books were first introduced in the 1930s, they have provided entertainment for children and adults alike. Most American males (and a significant portion of American females) have read comic books at some point in their lives, most when they were in grade school. In addition to providing young adults with their first glimpse of costumed heroes, comic books have also provided these same young adults with their first look at the legal profession. From the earliest days of comic books and strips through the present, attorneys have been prominently featured in American comic books.

The article begins with a discussion of the history of illustrated artwork and how that artwork evolved first into newspaper comic strips then into comic books. Next, comic strip and comic book attorneys from the early part of the 20th Century are identified and discussed. The introduction of Superman touched off the Golden Age of comic books. Part four discusses attorney characters which appeared during this Golden Age (1938-1946) and provides some background information on many of these characters. Part five discusses the decline of the reputation of comic books during the 1940s and 1950s and socio/legal attacks on comic books during the period.

By the middle of the 1950s, comic book publishers switched back to superheroes from the horror and suspense books. The switch back to superheroes brought with it a new crop of attorneys. Part six of the article identifies all of the recurring attorneys who appeared during this resurgence of interest in comic books, known as the Silver Age (1956-1969). Part seven provides discusses all of the attorney characters who appeared from 1970 through 1985. Part eight finishes the history of attorneys in comic books by identifying all of the attorneys who have had recurring roles in comic books since 1985.

Download the entire essay from SSRN here.

CFP 6th Annual Hawaii International Conference on Arts & Humanities

Call for Papers/Abstracts/Submissions

6th Annual Hawaii International Conference on Arts & Humanities

January 11 - 14, 2008

Waikiki Beach Marriott Resort & Spa, Hilton Waikiki Prince Kuhio

Honolulu Hawaii, USA

Submission Deadline: August 23, 2007

Sponsored by:

University of Louisville - Center for Sustainable Urban Neighborhoods

The Baylor Journal of Theatre and Performance

Web address: http://www.hichumanities.org
Email address: humanities@hichumanities.org

The 6th Annual Hawaii International Conference on Arts & Humanities will be held from January 11 (Friday) to January 14 (Monday), 2008 at the Waikiki Beach Marriott Resort & Spa, and the Hilton Waikiki Prince Kuhio, in Honolulu, Hawaii. The conference will provide many opportunities for academicians and professionals from arts and humanities related fields to interact with members inside and outside their own particular disciplines. Cross-disciplinary submissions with other fields are welcome.

Topic Areas (All Areas of Arts & Humanities are Invited):

*Anthropology

*American Studies

*Archeology

*Architecture

*Art

*Art History

*Dance

*English

*Ethnic Studies

*Film

*Folklore

*Geography

*Graphic Design

*History

*Landscape Architecture

*Languages

*Literature

*Linguistics

*Music

*Performing Arts

*Philosophy

*Postcolonial Identities

*Product Design

*Religion

*Second Language Studies

*Speech/Communication

*Theatre

*Visual Arts

*Other Areas of Arts and Humanities

*Cross-disciplinary areas of the above related to each other or other areas.

Submitting a Proposal:

You may now submit your paper/proposal by using our new online submission system! To use the system, and for detailed information about submitting see: http://www.hichumanities.org/cfp_artshumanities.htm

Cross posted to the Seamless Web

New Casebook on Law and Popular Culture

LEXIS/NEXIS has published a new casebook on Law and Popular Culture. The contributors are David Papke (editor), Marquette, Melissa Cole Essig, Esq., Peter Huang, Temple, Lenora Ledwon, St. Thomas, Diane Mazur, University of Florida, Carrie Menkel-Meadow, Georgetown, Philip Meyer, Vermont, Binny Miller, American University, and yours truly. From David's intro: "Law and Popular Culture is the first classroom text to examine the full range of American law-related popular culture. The text resembles a traditional casebook, but it contains relatively few cases or appellate opinions. Instead the text's fourteen chapters include discussions of various contemporary topics, numerous notes and questions, and well over one hundred excerpts from articles by leading law and popular culture scholars."

The book includes the following chapters: Studying Law and Popular Culture; Law Students, Lawyers and Legal Ethics, Clients, Witnesses, Judges, Juries, Tort Law, Criminal Law, Constitutional Law, Family Law, Business Law, International Law, and Military Law. Each chapter is organized around five films that illustrate that chapter's topic.

The title is ready for fall adoption.

Cross-posted to the Seamless Web.

Law and Lit in International Law

Ed Morgan, University of Toronto Law School, has published The Aesthetics of International Law(University of Toronto Press). Here's a description of the contents.

International law is a fundamentally modern phenomenon. Tracing its roots to the skeletal nineteenth-century pronouncements of the ‘law of nations,’ the discipline took shape in the elaborate treaty structures of the post-First World War era and in the institutions and tribunals of the post-Second World War period. International law as scholars know and study it today is a product of modernism.

In The Aesthetics of International Law, Ed Morgan engages in a literary parsing of international legal texts. In order to demonstrate how modernist aesthetics are imbued in these types of legal narratives, Morgan makes a direct comparison between international legal documents and modern (as well as some immediately pre- and post-modern) literary texts. He demonstrates how the same intellectual currents that flow through the works of authors ranging from Edgar Allen Poe to James Joyce to Vladimir Nabokov, are also present in legal doctrines ranging from the law of war to international commercial disputes to human rights.

By providing a comparative, interdisciplinary account of the modern phenomenon, this work seeks to highlight the ways in which judges, lawyers, and state representatives artfully exploit the narratives of international law. It demonstrates that just as modernist literature developed complex narrative techniques as a way of dealing with the human condition, modern international law has developed parallel argumentative techniques as a way of dealing with international political conditions.

Cross posted to the Seamless Web.

Twelve Angry Men

Robert P. Burns, Northwestern University School of Law, has published "Twelve Angry Men: A Jury Between Fact and Norm," in the Chicago-Kent Law Review for 2007. Here is the abstract.

This short essay was written for a symposium marking the fiftieth anniversary of the classic film's appearance. With a great cast, it remains perhaps the most compelling portrayal of an American jury in action. I begin by noting eight details in Twelve Angry Men which are so obvious that their significance may be difficult to discern. I then discuss the significance of the film's being a drama, indeed, a drama about a drama. I discuss the kind of truth that a dramatic portrayal of the jury can aspire to and what it can add to social scientific accounts. Finally, I identify the six dramatic tensions that define the film's meaning.

Download the entire essay from SSRN here.

[Cross-posted to the Seamless Web].

Orwellian Language

Judith Fischer, University of Louisiville School of Law, has published "Why George Orwell's Ideas About Language Still Matter For Lawyers," at 68 Montana Law Review 129 (2007). Here is the abstract.

This article examines George Orwell's theories about language and applies them to contemporary legal discourse in the United States. It concludes that Orwell's advice about the importance of clear, plain English comports with today's accepted legal writing style. However, his warnings about deceptive language in legal and political discourse have not been well heeded. The article suggests that lawyers can assume a role in changing that.

Download the entire Article from SSRN here.

Bob Mondello's Piece on Guess Who's Coming to Dinner and the Supreme Court Case: Loving v. Virginia

National Public Radio's Bob Mondello did a feature piece June 12th devoted to the film Guess Who's Coming to Dinner as well as several other movies that explore the theme of race relations, on the anniversary of the Supreme Court case that struck down Virginia's statute against interracial marriage. The case was Loving v. Virginia (388 U.S. 1; 87 S. Ct. 1817; 18 L. Ed. 2d 1010; 1967 U.S. LEXIS 1082 (1967)). Remember that Star Trek: The Original Series broke ground in the episode "Plato's Stepchildren" with television's first interracial kiss (aired November 22, 1968).

New: Law and Magic Blog

I've started a new blog devoted to law and magic. Here's the link.

A Conference on Shakespeare and the Law

SHAKESPEARE AND THE LAW

A CONFERENCE - A CELEBRATION

University of Warwick, UK
9-11 July 2007

"I am a subject, and challenge law"
Richard II, Act II, scene III


The University of Warwick will host an international
conference on Shakespeare and the Law in association with
Warwick Law School and The Capital Centre partnership
between The University of Warwick and the Royal Shakespeare
Company. The conference will provide a unique forum for
scholarly discourse between the major humanities
disciplines of law, literature and the performing arts.


SPEAKERS:

Speakers include several leading Shakespearean scholars,
theatre practitioners and scholars in the field of law and
humanities:

Jonathan Bate, University of Warwick, Governor of the Royal
Shakespeare Company
Christian Biet, Universite de Paris-X Nanterre
Daniela Carpi, University of Verona
Gregory Doran, Associate Director
Mark Fortier, University of Guelph, Canada
Giuseppina Restivo, University of Trieste
Elizabeth Goldring, University of Warwick
Matthew Greenfield, City University of New York
Germaine Greer, Writer and broadcaster
Anselm Haverkamp & Katrin Trustedt European University,
Frankfurt
Harry Keyishian, Fairleigh Dickinson University
Desmond Manderson, McGill University, Canada
Ambreena Manji, Keele University
Michael Pennington, actor, writer, director
Erika Rackley, University of Durham
Paul Raffield, University of Warwick
Anton Schutz, Birkbeck College
B.J. Sokol & Mary Sokol, authors
Ian Ward, University of Newcastle-upon-Tyne
Richard H. Weisberg, Cardozo Law School, Yeshiva
University, NYC
Paul Yachnin, McGill University, Canada
Gary Watt, University of Warwick
Andrew Zurcher, University of Cambridge


REGISTRATION/FURTHER INFORMATION:

The conference includes a social event at Kenilworth Castle
and the launch of the journal Law and Humanities:



Early booking discounts and student discounts are
available. For further details see the conference website:

http://www.shakespearelaw.org


"Let us haste to hear it, and call the noblest to the
audience"
Hamlet, Act V, Scene II

Copyright Doctrine and Fan Fiction

Anupam Chander and Madhavi Sunder, both University of California, Davis, School of Law, have published "Everyone's a Superhero: A Cultural Theory of "Mary Sue" Fan Fiction as Fair Use," in the California Law Review. Here's the abstract.

Lieutenant Mary Sue took the helm of the Starship Enterprise, saving the ship while parrying Kirk's advances. At least she did so in the unofficial short story by Trekkie Paula Smith. Mary Sue has since come to stand for the insertion of an idealized authorial representative in a popular work. Derided as an exercise in narcissism, Mary Sue is in fact a figure of subaltern critique, challenging the stereotypes of the original. The stereotypes of popular culture insinuate themselves deeply into our lives, coloring our views on occupations and roles. From Hermione Granger-led stories, to Harry Potter in Kolkata, to Star Trek same-sex romances, Mary Sues re-imagine our cultural landscape, granting agency to those denied it in the popular mythology. Lacking the global distribution channels of traditional media, Mary Sue authors now find an alternative in the World Wide Web, which brings their work to the world.

Despite copyright law's grant of rights in derivative works to the original's owners, we argue that Mary Sues that challenge the orthodoxy of the original likely constitute fair use. The Mary Sue serves as a metonym for all derivative uses that challenge the hegemony of the original. Scholars raise three principal critiques to such unlicensed use: (1) why not write your own story rather than borrowing another's? (2) even if you must borrow, why not license it? and (3) won't recoding popular icons destabilize culture? Relying on a cultural theory that prizes voice, not just exit, as a response to hegemony, we reply to these objections here.

Download the entire Article from SSRN here.
If the fan fiction phenomenon interests you, check out Henry Jenkins' blog here.
Professor Jenkins is the author of Textual Poachers, Convergence Culture, and What Made Pistachio Nuts? Read one of his recent articles in Reason Online here.

[Cross-posted to The Seamless Web]

Revisiting Inspector Morse

Last Friday's issue of The Independent has a wonderful article about the charms of Inspector Morse, that unique character created by Colin Dexter and brought to life by the late actor John Thaw. In addition to DVDs available from BFS Entertainment, you can enjoy the Inspector in print in any of Dexter's wonderful novels, many of which are also available in audio editions. Here's a link to the PBS webpage for Morse, and here's a link to a webpage for a walking tour of Inspector Morse's city.

Here are a few discussions of the character in literature and film.

Barker, Simon, “Period” Detective Drama and the Limits of Contemporary Nostalgia: Inspector Morse and the Strange Case of a Lost England, 6(2) Critical Survey 234-42 (1994).

Brodie, J. S., The Cult of Inspector Morse: A Contemporary Phenomenon, 38 Journal of Kyoritsu Women’s Junior College 79-87 (February 1995).

Decottignies, Jean, La vie poétique de l'inspecteur Morse: Un polar mélancolique (Grenoble, France: ELLUG; 2004).

Thomas, Lyn, In Love With Inspector Morse: Feminist Subculture and Quality Television, 51 Feminist Review 1-25 (Autumn 1995).

Sparks, Richard, Inspector Morse: “The Last Enemy”, in British Television Drama in the 1980s 86-102 (George W. Brandt ed., Cambridge: Cambridge University Press, 1993).

[Cross-posted to The Seamless Web].

The Duke Lacrosse Case as Narrative

Susan Hanley Kosse, University of Louisville School of Law, has published "Race, Riches, and Reporters: Do Race and Class Impact Media Rape Narratives? An Analysis of the Duke Lacrosse Case," in the 2007 Southern Illinois University Law Review. Here is the abstract.

Focusing on the Duke rape case as a case study, this Article analyzes magazine coverage using a labeling system from a previous study of media coverage of high profile rapes to determine whether race and class shape rape narratives. Part I of this Article is a brief background about narratives generally and their importance in the law. Part II summarizes the existing research on the topic of rape narratives and media coverage of these narratives. Part III analyzes the Duke case narratives and seeks to determine empirically whether race and class played a role in the exculpation or vilification of either party. The Article concludes by comparing the past studies of rape media coverage with this new data to provide insights and conclusions about media rape coverage today.

Download the entire paper from SSRN here.

Race and the Movies

N. Jeremi Duru, Temple University School of Law, has published "Friday Night "Lite": How Deracialization in the Motion Picture Friday Night Lights Disserves the Movement to Eradicate Racial Discrimination From American Sport," in volume 25 of the Cardozo Arts & Entertainment Law Journal. Here is the abstract.

Sport has a unique power to unite. The power of sport to unite, however, has unfortunately obscured the extent to which sport is beset with the sociological ills plaguing broader society. Indeed, there exists in contemporary America a widely-held belief that sport is a utopian realm immune to the issues of race with which society in general must grapple. This article examines this idyllic picture of sport and the extent to which, through suggesting an absence of discrimination, it frustrates much needed anti-discrimination efforts in the sporting community.

Decades after the United States Supreme Court issued its 1954 desegregation mandate in Brown v. Board of Education, Odessa, Texas - home to Permian High School - continued to struggle bitterly with racial discrimination and discord, so much so that in 1982 it was placed under a federal court order to effectuate the desegregation both promised and denied nearly thirty years earlier. As this article explores, the unfortunate result was an uneasy interaction among members of different races at Permian High School and in its vaunted football program, which led to substantial racial discord and discrimination reflective of vexatious issues plaguing American sport more broadly. Although these troubling issues at the intersection of race, law, and sport dominated the 1988 Permian football team's season and inspired a Pulitzer Prize winning author's investigative chronicle, Friday Night Lights, a 2004 motion picture of the same name purporting to tell the tale of that team radically de-racializes the story. This article argues that by recasting a true but disturbing story largely about the impact of race on interscholastic athletics into a highly fictionalized and de-racialized vehicle buttressing the idyllic picture, the motion picture Friday Night Lights disserves the movement to eradicate racial discrimination from American sport.

Download the entire Article from SSRN here.

[Cross posted to The Seamless Web]

Hamlet on Trial

From the NewsHour:

Supreme Court Justice Anthony Kennedy presided over a "trial" of Hamlet in a Kennedy Center production taking place during a six-month celebration of Shakespeare in Washington, D.C.

COURTROOM ANNOUNCER: In the matter of the Crown v. Prince Hamlet...

JEFFREY BROWN: It was a trial 400 years in the making. The courtroom was actually a stage at Washington's Kennedy Center. The defendant was a fictional character: Hamlet, prince of Denmark, he of "to be or not to be."

The judge was real, but Anthony Kennedy usually hears cases as a justice on the Supreme Court. Justice Kennedy first had the idea for "The Trial of Hamlet" some 13 years ago.

JUSTICE ANTHONY KENNEDY, U.S. Supreme Court: Prosecution here; defense here.

JEFFREY BROWN: Recently, he approached Michael Kahn, head of the Shakespeare Theater here, about staging it as part of a six-month celebration of the bard now underway in Washington, using real-life lawyers, expert witnesses, and a jury of adults, college and high school students.

At the Supreme Court a few hours before the event, I had a chance to ask Justice Kennedy: Why try Hamlet?

JUSTICE ANTHONY KENNEDY: It seemed to be, number one, an excellent way to get young people interested in Shakespeare and to understand the value of our literary heritage.

Then, too, there are some similarities between the law and literature. We in the law seek to find order in a disordered reality; we seek to find rationality in a world that seems chaotic. And the artist does the same thing, and Hamlet's trying to do the same thing. So there's a parallel.

MSN News reports:

In Shakespeare's play, the killing of Polonius occurs shortly after Hamlet returns to Denmark for the funeral of his father, the king of Denmark. A grieving Hamlet learns that his mother has married his uncle Claudius, the new king. A ghost tells Hamlet that Claudius murdered his father, and an enraged Hamlet vows revenge.

But Hamlet's plans go awry. He stabs Polonius, the councilor to the king, after hearing a noise behind a curtain and mistakenly thinking it is Claudius eavesdropping.

The split verdict by the 12 jurors, who were selected beforehand and deliberated for about 20 minutes, was a major blow for the four lawyers who argued the case.

"No Dane is above the law," San Francisco attorney Miles Ehrlich said in opening statements. "When you pick and choose your time to kill, you are in control."

In arguing that Hamlet was not insane, Ehrlich noted that Hamlet plotted to kill Claudius and nearly did so in a chapel while Claudius was praying. Hamlet decided to wait because he didn't want to send Claudius to heaven.

Alan Stone, a Harvard University professor of law and psychiatry, testified for the prosecution that Hamlet did not have a clear mental illness. Thousands of people have studied Hamlet's thoughts, the former president of the American Psychiatric Association said, "not because he was a madman but because he was brilliant."

Hamlet's vision of a ghost was not delusional, he argued, but was likely normal for his culture.

He said Hamlet was plotting to kill.

"Many of his puns are filled with anger and rage," Stone said. "He seems to think there is an audience."

In a heated exchange with Stone, Hamlet's attorneys argued that Hamlet, who sat silently through the proceedings and refused to take the stand in his own defense, showed clear signs of insanity.

"He talks to himself a lot, like a crazy person," said lawyer Abbe Lowell, whose clients have included convicted former GOP lobbyist Jack Abramoff. "What about the soliloquies and the asides?"

But Stone rejected Lowell's claim that Hamlet's words, such as "To be or not to be?" were signs of a "suicidal funk."

Columbia University psychiatry professor Jeffrey Lieberman, testifying for the defense, said Hamlet's question "To be or not to be?" was one of history's best examples of ambivalence — a cardinal symptom of psychosis.

Lieberman said the voices Hamlet heard while suffering hallucinations were "as real as your voice is being perceived by me."

Kennedy conceived the production for the fourth time. Prior juries in Boston, Chicago and Washington have found Hamlet sane. The show was hosted by Michael Kahn, artistic director of Washington's Shakespeare Theatre Company.

The verdict?

The question of Hamlet's sanity remains unanswered after a Washington jury delivered an evenly split verdict on whether he should be held criminally responsible for the fatal stabbing of Polonius.

The Washington Post notes:

Almost every year since 1994, at least one Supreme Court justice has participated in a mock trial that uses a Shakespeare play to explore the American legal system.

Jessica Silbey on Film and Confession

Jessica Silbey, Suffolk University Law School, will publish "Criminal Performances: Film, Autobiography, and Confession," in the New Mexico Law Review. Here is the abstract.

This article questions the criminal justice emphasis on filmed confession as the superlative evidentiary proffer that promotes accuracy and minimizes unconstitutional coercion by comparing filmed confessions to autobiographical film. It suggests that analyzing filmed confessions as a kind of autobiographical film exposes helpful tensions between the law's reliance on confession as revealing the inner self and the literary and filmic conception of confession as constituting one self among many. Through a close examination of several filmed confessions along side an examination of the history of autobiographical writing and film, this article shows how filmed confessions do not reveal the truthfulness or honesty of the defendant's statement. To the contrary, close examination of filmed confessions evidences the performative aspect of all confessional acts.

Like autobiographical film subjects, filmed defendants perform their criminality, or enact their legal identity as guilty on film. Framing the confession through a film camera (as increasingly police and detectives do) stresses the qualities of confessional speech as always in the process of forming an identity, and therefore as inherently unstable and manifold. Building on an earlier article that criticizes the nationwide trend that requires the filming of criminal confessions by comparing filmed confessions to a form of documentary filmmaking, this article engages the same critique by examining filmed confessions as a form of autobiographical film. Doing so relocates the analysis of the filmed confessions from one of truthfulness and voluntariness of the spoken confession to one of advocacy and persuasion by the speaking subject. Analysis of several filmed confessions shows how filmed confessions are more akin to filmed autobiographies: performances of identity in relation to the constraints of the discursive medium (the interrogation). What we learn from the filmed confession is the limits of film and of law to reveal the truth of the crime. This critical perspective undermines the state's assertion that filmed confessions unambiguously denote the defendant's voluntary recitation of his criminal act.

Download the entire paper here from SSRN.

[Cross-posted to the Seamless Web].

International Law, Literature, and Introspection

My former colleague Christopher Blakesley, now of the University of Nevada, Las Vegas Law School, ruminates on the intersection among law, literature and self-reflection in a blogpost here at a new blog devoted to international penal law. Montaigne carried the art of self-study and introspection to a high art centuries ago; Professor Blakesley suggests that it's time to give it another go, and that literature can assist us. The blog at which he and other experts in international criminal law post is newly launched; it's called the AIDP Blog. Check it out here.

Cross-posted in slightly different format at The Seamless Web.

Paul J. Heald and Steve Allen

Paul J. Heald has published "Meeting of the Minds, Episode II: A Dark and Angry God Arises," as UGA Legal Studies Research Paper 007-06. Here is the abstract.

In 1988, Professor Heald found a lost manuscript of Steve Allen's groundbreaking television show, “A Meeting of the Minds.” In that episode, published in 6 J. of Law & Rel. 279, Oliver Wendell Holmes, Mark Kelman, Blaise Pascal, and Richard Posner discussed the nature of law. While completing renovation of a house, possibly visited by Allen, Heald recently found another manuscript jammed on top of an old water tank. The present episode reveals a lively discussion of Columbine, the death penalty, and the nature of retribution between Lucius Annaeus Seneca (4 B.C.-65 A.D.), C.S. Lewis (1898-1963), Jerry Falwell, and Milner Ball.

Download the entire paper from SSRN here.

The Shakespeare Authorship Question

Today's Washington Post contains two articles taking different sides to the question of whether Shakespeare is the true author of his works.

An article by Roger Stritmatter (vice chairman of the Shakespeare Fellowship and a professor of English at Coppin State University) rehearses the doubts as to Shakespeare's authorship:

Mark Twain quipped that every relevant fact known about the Stratford author would fit on a postcard, and another century of literary biography hasn't changed that. Shakespearean professionals begin by noting that there is a Shakespeare monument in Holy Trinity Church at Stratford and go on from there to imagine almost everything else. They have to. They have a monument without a man.

Outside the university, though, populist resistance to the author from Stratford has persisted for two centuries. Skeptics have been divided on their support for one candidate or another -- Francis Bacon, Christopher Marlowe, Queen Elizabeth I or Edward de Vere, the 17th earl of Oxford -- but we all believe that the real author was forced to conceal his identity and allow his works to be published under another man's name.

We are not just unrepentant conspiracy theorists who lie awake at night concocting unverifiable historical scenarios and contriving pseudoscientific cryptograms while ignoring the undeniable facts of Shakespeare's career. We're struck by the fact that all the speculation the biographers engage in to fill the gaps in our knowledge of Shakespeare reveals a man who contradicted the literary thumbprint of his creation in every way. Their author was a huge commercial success -- but "Hamlet" satirically inveighs against buyers and sellers of land. Their author never left England -- but 16 of the plays are set in Italy or the Mediterranean. There is no evidence that their author owned any books -- but the man who wrote Shakespeare clearly devoured all the most important books of his generation.

"Shall I set down the rest of the Conjectures which constitute [Shakespeare's] giant Biography?" Twain wrote in 1909. "It would strain the unabridged Dictionary to hold them." In 1984, Richmond Crinkley, the late director of educational programs at the Folger Shakespeare Library, acknowledged that "doubts about Shakespeare arose early. They have a simple and direct plausibility." Henry James was blunt: "I am 'sort of' haunted by the conviction that the divine William is the biggest and most successful fraud ever practiced on a patient world."

The list of skeptics reads like a Who's Who of the English-speaking world: Washington Irving, James Joyce, Sigmund Freud, Herman Melville, Ralph Waldo Emerson, Helen Keller, Nathaniel Hawthorne, Charlie Chaplin, Orson Welles, Malcolm X, Leslie Howard, Sir John Gielgud, Sir Derek Jacobi, Michael York, Jeremy Irons, Supreme Court Justice John Paul Stevens, and many more. And the ranks keep growing.

But modern Shakespearean studies are founded on the undeviating principle that rational authorities -- i.e. "Shakespeareans" -- do not discuss the authorship question. Beyond this, we seem to be deeply invested in a view of the Bard as a creator in our own image. Born to a comfortable middle-class existence, he evades the stark class realities of Elizabethan society and conquers the literary world through Will-power, re-creating the lives of kings, queens and courtiers simply by deploying his superabundant imagination.

Stritmatter believes that the true author was Edward de Vere:

Since 1920, when Englishman John Thomas Looney wrote "Shakespeare Identified," a clear solution to this enigma has been staring orthodox Shakespeareans in the face: Edward de Vere, the 17th earl of Oxford, a man known for his disregard of class protocols and his passionate devotion to the theater, was Cecil's ward and later his unhappy son-in-law. He was a man with the means, the opportunity and, above all, the motive to write "Hamlet." Frustrated in his political ambitions at court, he spent a lifetime selling off his vast inherited estates to pay his creditors and pursue his literary ambitions. Like the misanthropic Jaques in "As You Like It," he literally sold his own lands to see the lands of other men.

The most "Italianate" Englishman of his generation, he toured the Tuscan cities that are featured so prominently in Shakespearean plays, and built a house for himself in Venice only blocks from the Jewish ghetto. His life, in myriad ways, illumines the Shakespearean oeuvre and becomes the touchstone for grasping the meaning of many obscure passages in the plays.

An article by Stanley Wells (chairman of the Shakespeare Birthplace Trust and author of Shakespeare & Co.) argues that Shakespeare was indeed the true author:

The nonsense started around 1785. That was the year a Warwickshire clergyman fantasized that William Shakespeare of Stratford-upon-Avon was not the author of the works everyone had until then supposed he had written. In doing so, he laid the foundations of the so-called authorship question, which has grown into an immense monument to human folly.

Shakespeare by then had been dead for 159 years, and was acclaimed as the author of 37 plays, two long narrative poems, 154 sonnets and a handful of other poems. No one up to then had doubted that he wrote them; nor was there any reason to. There were numerous printed references in his lifetime and soon afterward to William Shakespeare as the author of the poems and plays acted and published as his. Most of the references were in books or manuscripts by writers whose names are known nowadays only to scholars, but it doesn't make them any less believable. . . .

Then there are Shakespeare's own published works. His full name appears on the dedications of the two long poems, in 1593 and 1594, and on their title pages. It is printed on the title pages of many of his plays from 1598 onward, on reprints of the poems (which were very popular), and on the first edition of the Sonnets, in 1609. In that book, another poem, "A Lover's Complaint," is also printed with a separate statement that William Shakespeare wrote it. And seven years after he died, his collected plays were printed in the great book called "Mr William Shakespeare's Comedies, Histories, and Tragedies," now usually referred to as the First Folio. It includes an engraved portrait of the author.

So there are many references to William Shakespeare in his lifetime and soon afterward as the man who penned the plays and poems, and there is nothing to suggest that he did not write them. People who question his authorship often say, "Ah, yes, but there's nothing to prove that he was the William Shakespeare of Stratford," and then go on to invent conspiracy theories that somehow Shakespeare (if they admit that he existed) was the pen name of writers who were so modest that they not only concealed the fact that they had written the greatest plays ever, but also were so generous as to allow an obscure actor to take all the credit. . . .

The most common arguments that Shakespeare of Stratford could not have written the works are that he is not known to have traveled overseas, that he was of relatively humble origins and that he came from a small provincial town where he could not have received a good enough education to have written the plays. The facts are that the works show no knowledge of countries that could not have been obtained from books or from conversation, that you don't have to be an aristocrat to be a great writer -- Jonson was the son of a bricklayer, Marlowe's father was a cobbler -- and that Stratford had a good grammar school whose pupils received a far more rigorous education in the classics than most university graduates today.

The debate about Shakespeare's authorship has been going on for some time, and the articles don't raise any new arguments, but they are nevertheless an interesting summary of the debate.

The Gothic and the Rule of Law

Forthcoming in May is Susan Chaplin's The Gothic and the Rule of Law, 1764-1820 from Palgrave Macmillan. It will include discussions of The Castle of Otranto, Caleb Williams, and Frankenstein, among other novels. Professor Chaplin is the author of Law, Sensibility, and the Sublime in Eighteenth-Century Women's Fiction: Speaking of Dread (Ashgate Publishing, 2004).

Reichman on Law, Literature, and Empathy

Amnon Reichman has published "Law, Literature, and Empathy: Between Withholding and Reserving Judgment." The citation is 56 Journal of Legal Education 296 (June 2006). In the same issue is Martha Nussbaum's "Reply to Amnon Reichman," at p. 320.

Julian Barnes' Arthur and George, and the Law of Evidence

The new issue of International Commentary on Evidence includes three articles dealing with Julian Barnes' new book Arthur and George. See below.

This issue of International Commentary on Evidence features two special articles on Julian Barnes' novel Arthur & George, based on the true story of Arthur Conan Doyle's involvement in the case of George Edalji, an English solicitor wrongfully convicted of horse maiming in 1903. The Edalji case raised questions about the adequacy of remedies for wrongful conviction, and was one of the reasons for creation of the English Court of Criminal Appeal. The two articles on Arthur & George invite us to think about those topics, as well as wrongful convictions and the impact of fiction on the way that we understand evidence.

The Editors "Foreword: Perspectives on Arthur Conan Doyle and Evidence".
http://www.bepress.com/ice/vol4/iss2/art2

D. Michael Risinger "Boxes in Boxes: Julian Barnes, Conan Doyle, Sherlock Holmes and the Edalji Case".
http://www.bepress.com/ice/vol4/iss2/art3
Douglas Walton and Burkhard Schafer "Arthur, George and the Mystery of the Missing Motive: Towards a Theory of Evidentiary Reasoning about Motives".
http://www.bepress.com/ice/vol4/iss2/art4

Cross posted to The Seamless Web.

Opera Performance and Intellectual Property

Zvi S. Rosen, U. S. Court System, has published, "The Twilight of the Opera Pirates: A Prehistory of the Right of Public Performance for Musical Compositions," in volume 24 of the Cardozo Arts & Entertainment Law Journal. Here is the abstract.

The exclusive right of public performance of a musical composition now brings to composers and songwriters revenue of approximately one billion dollars a year in the US alone. However, this right was not firmly established until a century after America's first copyright statute, relying until then on the common-law principles that protected unpublished works. The first effort to create this right by statute was the Ingersoll Copyright Bill, an omnibus revision in 1844 which died quickly in committee. After that 50 years passed, and in the final quarter of the nineteenth century the need for statutory protection for public performance became more and more obvious as a result of litigation, especially that surrounding the Gilbert and Sullivan operetta The Mikado. In the mid-1890s the right was once again proposed in an omnibus revision that died in committee, the Treloar Copyright Bill. Simultaneously though, this right went through Congress and was passed as part of an amendatory act which also increased penalties for all unlawful public performances (including drama). This article traces the history of these acts and the litigation in the later nineteenth century, telling a story that has heretofore not been told - the prehistory of the right of public of public performance for musical compositions.

Download the entire article from SSRN here.

The Fiction of Chester Himes

Rosanna Cavallaro, Suffolk University Law School, has published "Chester Himes' Cotton Comes to Harlem: A Reparations Parable", in volume 19 of Law and Literature. Here is the abstract.

This paper locates the fiction of Chester Himes within the literary traditions of classic and, later, hard-boiled detective fiction, and examines Himes's departures from established narrative forms in order to elucidate the legal and political ideology of race and crime that he enacts in them. I demonstrate that, in his representation of crime and punishment in his 1965 novel COTTON COMES TO HARLEM, Himes repudiates formal systems of retributive justice, while simultaneously endorsing an ad hoc regime of restitution that prefigures, by metaphorically enacting, the economic reparation of African Americans for injuries inflicted during their slave past.

Download the entire paper from SSRN here.

American Indian Literature and Law

Kristen A. Carpenter, University of Denver College of Law, has published "Contextualizing the Losses of Allotment Through Literature," in the North Dakota Law Review. Here is the abstract.

In this article, the Author undertakes a law and literature approach to a major Indian law problem: understanding the losses of allotment. Allotment was a mid 19th- early 20th century federal legislative program to take large tracts of land owned by Indian tribes, allocate smaller parcels to individual Indians, and sell off the rest to non-Indians. The idea was that Indians would abandon traditional patterns of subsistence to become American-style farmers, and great tracts of land would be freed up for the advance of white settlement. A key component of the federal government's larger project of assimilating Indians into mainstream society, allotment was devastating for Indian people who suffered incredible losses of land, economic livelihood, culture, and everything else that mattered. But the Supreme Court's caselaw on allotment might make you think otherwise. Indeed Lone Wolf v. Hitchcock (1903) characterizes allotment as a policy that simply changed the manner in which tribes owned their real property and did not cause any losses at all.

There are, of course, many ways to develop a fuller legal picture of the losses tribal people suffered during allotment, including historical and empirical research. But this article argues that fiction also has something to offer. Accordingly it argues that two novels by the Turtle Mountain Chippewa author Louise Erdrich can serve to contextualize the losses suffered by Indian people during allotment. While tribal people clearly lost a lot of land, Erdrich helps us understand how allotment brought about losses in socio-economic, familial, spiritual, and other realms of tribal life. And even though she is writing about fictional Ojibwe people and not the real Kiowa and Comanches involved in Lone Wolf, Erdrich raises important, relevant questions about allotment. Inspiring lawyers to contemplate these questions - completely ignored by Lone Wolf - can enhance both understanding of the case and contemporary advocacy to redress the losses of allotment today.

Download the entire article from SSRN here.

Huck Finn and the Supreme Court

Bezalel Stern, Columbia University Law School, has published "Huck Finn and the Civil Rights Cases: A Case Study in Supreme Court Influence," in the Columbia Journal of Law and the Arts. Here is the abstract.

I intend to show in this study that Mark Twain's Adventures of Huckleberry Finn was inherently shaped by, among other factors, a number of momentous decisions of the Supreme Court. These were decisions which strived to project the American society of the ante-bellum period into the post-bellum world. The decisions of the Supreme Court in the post-bellum period, coupled with a severe change in the political and social atmosphere of the late 1870s and early 1880s, combined to create an environment of severe retrogression, specifically when it came to racial integration and interactions. As this Essay will show, the Supreme Court's decisions in this series of cases, while widely believed to have been wrongly decided today, nevertheless had a great deal of influence in halting or stalling many of the advances of the Civil War, the Fourteenth Amendment and the Civil Rights Acts. Indeed, I will argue that the judicial retardation of the egalitarian movement of the nation during and immediately after the Civil War had the effect of ossifying the progression towards civil rights and civil liberties in a manner far more dramatic than the political and social anti-egalitarian forces of the time could have hoped to achieve. Additionally, and centrally for the purposes of this Essay, those judicial decisions were instrumental in the reshaping of Twain's classic text.

Download the entire paper from SSRN here.

Wilkie Collins and His Law Books

Bernadette Meyler, Cornell Law School, has published "Transparency and Textuality: Wilkie Collins' Law Books," in IN THE SECRETS OF LAW, Austin Sarat, ed., Stanford University Press, 2007. Here is the abstract.

This article takes as its starting point the priority that Anglo-American legal thought has, in recent centuries, placed upon transparency, a priority that has relied, in large part, on the notion that the law should increasingly be recorded and publicly accessible. Through his representation of trial narratives - an extremely popular quasi-literary form during the nineteenth century - as well as the work of William Blackstone in his supposedly comprehensive Commentaries on the Laws of England, nineteenth-century novelist Wilkie Collins calls into question the idea that simply disseminating textual versions of the law or the records of legal processes will be able to furnish transparent access to the law for the lay reader. One of the difficulties he identifies is that of translating the law from the printed page into action; an exchange between two of the protagonists in Armadale who flip through Blackstone to determine whether any impediments would block their marriage demonstrates some of the challenges inherent in imagining the law in action in the absence of knowledge of the legal institutions that implement it. The other obstacle to transparency that Collins represents concerns the unreliability of the accounts of the proceedings of these same legal institutions. In The Law and the Lady, Collins focuses on the trial report, a form that first took on a literary dimension with the causes celebres of pre-Revolutionary France and acquired a similar cultural place in nineteenth-century England and America, and upon which Collins himself relied in constructing the plots of his novels. Through incorporating a fictional trial report into The Law and the Lady, Collins elucidates some of the ways in which trial narratives themselves partook of a literary construction, emphasizing aspects of coherence and continuity over factual accuracy. In both cases, Collins appears to suggest a model of legal reading that does not simply treat the written law as self-executing or the report of a trial as an entirely accurate account but instead adopts a critical and active stance.

Download the entire essay here from SSRN.

SSRN Announces Two New Journals

From an announcement by the SSRN

The Social Science Research Network is pleased to announce two new SSRN abstracting journals, Law & Literature and Law & Culture.

Law & Culture is edited by Reva Siegel, Nicholas deB. Katzenbach Professor of Law and Professor of American Studies, Yale Law School along with Bruce L. Hay, Professor of Law, Harvard Law School.

Law & Culture distributes abstracts of papers and articles concerning the connections or relations between culture and law. The journal welcomes work from within any of the numerous disciplines associated with the study of culture, both in the humanities and in the social sciences, as well as legal scholarship.

The URL below will let you browse all abstracts and papers in this
journal:

http://www.ssrn.com/link/Law-Culture.html

Law & Literature is edited by Penelope Pether, Professor of Law, Villanova University School of Law.

Law & Literature abstracts distributes abstracts of working papers, forthcoming articles, and recently published articles on interdisciplinary topics or using interdisciplinary methods in Law and Literature. The journal welcomes interdisciplinary work in both the critical theoretical and humanist traditions, and scholarship on law drawing not only on English and Literary Studies, but also on Linguistics, Cultural Studies, Literary Theory, Rhetoric and Composition, Narrative Jurisprudence, and Hermeneutics.

The URL below will let you browse all abstracts and papers in
thislsnjournal:

http://www.ssrn.com/link/Law-Literature.html

HOW TO SUBSCRIBE
Subscriptions to these journals are available at no additional charge to anyone who is covered by a site license or has an individual subscription to the LSN journals. You can subscribe to one or both of these journals by clicking on the corresponding links below:

Law & Culture
http://hq.ssrn.com/jourInvite.cfm?link=Law-Culture

Law & Literature
http://hq.ssrn.com/jourInvite.cfm?link=Law-Literature

You will then be able to subscribe to additional LSN journals and/or modify your subscriptions. You will need to enable session cookies on your browser to use this link or to access our user headquarters at:
http://hq.ssrn.com. If you have questions or problems with this process, please email UserSupport@SSRN.com or call 877-SSRNHelp (toll free 877.777.6435). Outside of the United States, call 00+1+585+4428170.

Thurschwell on DeLillo and Literature After 9/11

Adam Thurschwell (Cleveland-Marshall College of Law) has posted on SSRN his paper, Writing and Terror: Don DeLillo on the Task of Literature After 9/11. From the abstract:

Over the past thirty years, Don DeLillo has become the novelist-laureate for our age of terror, exploring the inner life, cultural causes and symbolic significance of terrorism and terrorists of all stripes. He is therefore perhaps the ideal subject for a consideration of the status of literature after the disaster of September 11, 2001. Indeed, DeLillo himself published a moving essay shortly after 9/11 in which he posits cyber-capital and terrorism as competing world narratives and argues that "it is left to us" - writers, among others - "to create the counternarrative."

In this essay, written for a symposium on "Law and Literature After 9/11," I take a closer look at DeLillo's proposal through a reading of some of his recent novels. In the wake of his essay critics were quick to respond that DeLillo's own works portray writers whose attempted resistance is defeated by the all-consuming forces of market capitalism. I address this criticism, but devote more time to what is potentially an even more devastating obstacle for DeLillo's program, Maurice Blanchot's thesis that the act of literary writing is itself, in its essence, already "terrorist." After briefly explicating and defending Blanchot's initially implausible-sounding notion, I attempt to show how DeLillo's novels suggest the affirmative possibility of a meaningful "counternarrative" that, without refuting Blanchot's conception of literature, still offers an (ambiguously) hopeful alternative view.

New Addition to the Star Trek Literature

Antonin I. Pribetic, Osgoode Hall Law School, has published "'To Boldly Go Where No One Has (Arbitrated) Before': The Star Trek Mythos as an Heuristic Paradigm for Jurisdictional and Arbitration Issues", a short paper on the ST:TNG episode "The Ensigns of Command" and the arbitration issues it raises. Here is the abstract.

While the topic of international arbitration has failed to capture the interest of Hollywood producers or television audiences, the science fiction genre yields a serendipitous result. Using an excerpt from a Star Trek: The Next Generation episode, this brief comment analyzes the impact of law and popular culture on the issues of the rule of law, jurisdiction and international (more accurately, "intergalactic") comity within the context of bilateral and multilateral treaty obligations.

Download the entire paper here.

The piece adds to the developing Star Trek bibliography that includes pieces by Jeffrey Nesteruk, Franklin and Marshall College, "A New Narrative for Corporate Law," available from SSRN and the anthology Star Trek: Visions of Law and Justice (2005), which brings together several of the more famous essays, including Paul Joseph and Sharon Carton's "The Law of the Federation."

Capers on Race and Justitia, the Symbol of Justice

Professor I. Bennett Capers has posted on SSRN an article, On Jusitita, Race, Gender, and Blindness, 12 Michigan J. of Race & Law 203 (2006):

If there is one image we associate with justice, it is of Justitia herself, blindfolded, balancing a scale in one hand, brandishing an unsheathed sword in the other. The image is so ubiquitous that we are often beyond noticing it. Late for court, late for class, or simply indifferent, we walk past it, barely glancing up.

This Essay – Justitia, Race, Gender, and Blindness – is about seeing Justitia and questioning how the image functions, both aesthetically and morally. Drawing upon law, literature, art history, and cultural studies, this Essay also problematizes Justitia. After all, what does it mean, connotatively and denotatively, for Justitia to be blind in a racialized society where color is so determinative? And conversely, what does it mean to fix a black gaze upon an image of justice that has been figured as white and female? The Essay contends that answering these questions is imperative for those of us who care about making our criminal justice system fairer, both in the way justice is meted out, and in our perception of justice.

Capers on Post-Colonial and Black Literary Theory and Legal Texts

Professor I. Bennett Capers (Hofstra Law School) has posted on SSRN the article, Reading Back, Reading Black, 35 Hofstra L. Rev. 101 (2007):

This essay builds on post-colonial theory and black literary theory to pose a pair of questions. If the reading of Western literature can be enriched by examining the great canonical texts through the lens of race, can a similar enrichment obtain from using a similar reading practice to read the law? Stanley Fish has argued that we each belong to interpretive communities, and that members of these communities are guided in their readings of texts by a common "consciousness," which produces interpretive "strategies [that] exist prior to the act of reading and therefore determine the shape of what is read." If this is true, what does it mean for the study of law to have a community of black readers?

This essay engages these questions and attempts to describe a reading practice of reading black. To illustrate the reading practice, the essay examines two cases that do not appear to be engaged in "race work" at all, The Queen v. Dudley & Stephens, and Muller v. Oregon. The essay demonstrates that far from diminishing these opinions—these grand narratives, these master texts—reading black reveals other layers, other meanings, and in the process deepens and widens our understanding not only of the holdings of these opinions, but also the how and why of them.

Jessica Silbey on Representations of Law and Justice

Jessica M. Silbey, Suffolk University Law School, has published "A History of Representations of Justice: Coincident Representations of Law and Film," in Representations of Justice, published by Peter Lang (ed. by Masson and O'Connor, 2007). Here is the abstract.

The American trial and the art of cinema share certain epistemological tendencies. Both stake claims to an authoritative form of knowledge based on the indubitable quality of observable phenomena. Both are preoccupied (sometimes to the point of self-defeat) with sustaining the authority that underlies the knowledge produced by visual perception. The American trial and art of cinema also increasingly share cultural space. Although the trial film (otherwise known as the courtroom drama) is as old as the medium of film the recent spate of popular trial films, be they fictional such as Runaway Jury or documentary such as Capturing the Friedmans, suggests more then a trend; it suggests an inherent affinity between law and film. This article investigates this affinity, the cultural space it inhabits, and its destiny in terms of the evolving filmic culture and technologies of the twenty-first century.

Download the entire paper here.

More on Jane Austen

Quiet Jane Austen seems to be of renewed interest these days. Linda Ross Meyer, Quinnipiac University School of Law, has published "Jane Austen on Persuasion and Authority" as a working paper. Here is the abstract.

Taking the novels of Jane Austen as an exploration of Joseph Raz's problem of authority in law, this paper explores whether a positivist account of authority maps onto Austen's account of human experience. While both Austen and Raz agree that the source of authority cannot itself be an exclusionary reason, Austen's novels suggest that social role and emotional connection play a bigger role in evaluating authority than Raz's account would suggest. Most notably, Austen's characterization of her heroine Fanny Price suggests that a non-positivist stance toward authority may generate more moral criticism of law than a positivist approach.

Download the entire paper from SSRN here.

Rapoport on Golding's Lord of the Flies

Professor Nancy Rapoport (University of Houston Law Center) has posted on SSRN her book chapter, Lord of the Flies (1963): The Development of Rules Within an Adolescent Culture. From the abstract:

This essay, included in the book SCREENING JUSTICE--THE CINEMA OF LAW: Significant Films of Law, Order and Social Justice (Rennard Strickland, Teree E. Foster & Tauyna Lovell Banks, eds., William S. Hein & Co. 2006), discusses the development of the law in Goldman's "Lord of the Flies" and raises the question of whether an island populated by a mix of boys and girls - or an island populated by only girls - would have developed a different law.

George Eliot and Promises

Melissa Ganz, Department of English, Yale University, has published "Binding the Will: George Eliot and the Practice of Promising," forthcoming in English Literary History. Here is the abstract.

In The Mill on the Floss (1860), Middlemarch (1871-72), and Daniel Deronda (1876), promises give rise to repeated conflicts and misunderstandings, crystallizing the tension between freedom and obligation that runs through George Eliot's work. Literary critics have long noted Eliot's interest in the nature and limits of the human will, but they have failed to examine her treatment of the practice of promising. In this essay, I analyze the use and abuse of promises in her fiction in the context of changing philosophical and legal ideas about consensual obligations. Whereas natural law thinkers such as Grotius, Pufendorf, Hobbes, and Locke insisted that promises derived their force from people's wills and intentions, in the late eighteenth and early nineteenth centuries, utilitarian philosophers such as William Paley and John Austin began to locate the source of promissory obligations in people's expectations. At about the same time, jurists formulated a new “will theory” of contract that drew heavily upon natural law philosophy; according to this theory, individual promises, wills, and intentions gave rise to contractual obligations. Judges, in fact, began to speak of a contract as a “meeting of minds.” In practice, however, they found it very difficult to uncover the intentions of contracting parties. By the middle of the nineteenth century, most judges had come to embrace an objective approach to contractual interpretation, relying upon external manifestations of intentions as did the utilitarian philosophers.

Like Paley, Austin, and Henry Sidgwick, and like a growing number of jurists in her day, Eliot embraces an expansive conception of promising: she suggests that one becomes bound by a promise whenever one knowingly excites another's expectations concerning the existence of an obligation, even though one does not intend to become bound. The willingness to abide by implicit promises and to honor the expectations that one raises in other minds is a crucial test of moral character in Eliot's fiction. However, while Eliot privileges external manifestations of intention over actual intentions in determining promissory responsibility, she remains committed to the notion that a true “meeting of minds” ought, ideally, to form the basis of agreements. As a practical matter, that is, she recognizes the difficulty of discerning others' intentions, and she shows the need to honor the reasonable expectations that one creates in other minds; but she holds out the possibility that individuals may achieve a real blending of wills and desires. In Mordecai Cohen's relationship with the eponymous hero of her final novel, she imagines such a meeting of minds, highlighting the ways in which promises can both reflect and promote understanding between people. She acknowledges, though, that such a mingling of ideas and intentions is, in the world of nineteenth-century England, limited to men.

Download the entire article from SSRN here.

Silbey on Videotaped Confessions and Documentary

Jessica M. Silbey (Suffolk Law School) has posted her article, Videotaped Confessions and the Genre of Documentary, 16 Fordham Intellectual Prop., Media & Ent. L. J. 789 (2006), on SSRN. From the abstract:

This essay begins the exploration of two contemporary and related film trends: the recent popular enthusiasm over the previously arty documentary film and the mandatory filming of custodial interrogations and confessions.

The history and criticism of documentary film, indeed contemporary movie-going, understands the documentary genre as political and social advocacy (recent examples are Michael Moore's Farenheit 9/11 and Errol Morris's Fog of War). Judges, advocates, and legislatures, however, assume that films of custodial interrogations and confessions reveal a truth and lack a distorting point of view. As this Article explains, the trend at law, although aimed at furthering venerable criminal justice principles, holds a fairly naïve view of film's indexical relationship to the lived world and abjures consideration of the contemporary trend in cinema.

Understanding the documentary as truth-revealing is a mistake, a mistake which can frustrate (if not undermine) the criminal justice goals of the legislation.

Whatever may explain the convergence of filmmaking in the precinct house and a penchant for mainstream documentary movie-going, the trends are shaping contemporary expectations about film in contradictory ways. Investigating these trends together exposes competing norms regarding film as a legal tool and as a knowledge producing discourse. It also situates the criminal justice trend in the context of a long history of filmmaking and critical spectatorship. In light of the growing use of film as a policing mechanism, better understanding of film as both an art and a legal tool is in order.

Call For Papers: Law as Literature Discussion Group

Professor Andrew Majeske has sent out this Call for Papers for the Modern Language Association Meeting 2007 Law as Literature Discussion Group. The meeting is in Chicago, December 27-30.

Here's the description.

Gendered Justice: The gendered treatment in literature of law/equity/justice: What is the theoretical/political/social significance of such treatments? Is gender neutrality/equality depicted as possible? Desirable? Problematic? Agenda-driven? 250-500wd abstract by 15mar. Andrew Majeske, ajmajeske@gmail.com

Burning Man Now a Burning Issue

John Law, who with two friends launched the "Burning Man" celebrations years ago is now suing them to place the "Burning Man" trademark in the public domain. He claims that Larry Harvey and Michael Mikel have violated an agreement the three signed ten years ago after Law left the Burning Man organization. Read more here. Read coverage on the Laughing Squid Blog here.

Forthcoming Conference on "Law and the Emotions: New Directions in Scholarship" at UC Berkeley

For those considering attending the conference "Law and the Emotions: New Directions in Scholarship," at UC Berkeley in early February, there is still room to register and the special conference rate for the hotel is available until January 16th. Here is the conference website, followed by the announcement.

Law and the Emotions: New Directions in Scholarship

U.C. Berkeley Law School (Boalt Hall), February 8th and 9th, 2007.

Sponsored by Boalt Hall Law School, DePaul Law School, The Gruter Institute for Law and Behavioral Research, The Vanderbilt Law School Law and Human Behavior Program, and The U.C. Berkeley Center for the Study of Law and Society.

Recent work in the still-emerging field of law and emotion has moved well beyond the initial debates about reason and emotion, into diverse and exciting areas of interdisciplinary study. Some scholars have continued the investigations, in philosophy and psychology, for example, that helped establish the field. Others are doing important new work in other disciplines, including cognitive neuroscience, evolutionary biology, and the sociology of emotion. Early focal points, such as criminal law and courtroom practice, have been supplemented by a much broader range of inquiry. However, scholars pursuing these nascent directions often have little exposure to work in related areas. This conference aims to facilitate the interdisciplinary connections and collaborations that are vital for the continued development of the field.

The conference will commence on Thursday, February 8th at 4 PM and end on Friday, February 9th at 5 PM. Panels include:

Law, the Mind Sciences, and Emotions. This panel will view emotion and its implications for law through the lens of neuroscience, cognitive and social psychology, and behavioral biology.

Law and Emotion in Action. This panel will explore emotions as affective responses developed in institutional and collective contexts, and institutions (such as the jury, the workplace, and the social welfare system) as entities that both shape and are shaped by emotion.

Theorizing Law and the Emotions. This will be a roundtable devoted to reflections on the varied ways in which law is capable of engaging the emotions, for example, by acting on emotions, moderating or channeling them, scripting them, or helping them come into being.

New Directions in Scholarship on Law and the Emotions. This panel will consist of a series of short presentations showcasing exciting new approaches to the analysis of law and emotion.

Keynote Speakers: Arlie Hochschild and Dacher Keltner
Confirmed speakers: Kathy Abrams, Susan Bandes, Jeremy Blumenthal, Devon Carbado, Cheshire Calhoun, Laurel Fletcher, Angela Harris, Oliver Goodenough, Peter Huang, Owen Jones, Dan Kahan, Hila Keren, Sharon Krause, Terry Maroney, Elizabeth Phelps, Jeffrey Rachlinski, Carol Sanger, Susan Silbey, Elizabeth V. Spelman, and Robin West.

Organizers: Kathy Abrams (Boalt Hall Law School); Susan Bandes (DePaul Law School); Hila Keren (Hebrew University of Jerusalem Law School) and Terry Maroney (Vanderbilt Law School).

To register and for further information visit http://www.law.berkeley.edu/institutes/csls/lawemotion_conference

or contact Debra Krauss at dkrauss@law.berkeley.edu

Turner on Nietzsche, Foucault, and Scalia

William Turner (Emory Law School) has posted his paper, Nietzsche, Foucault, Scalia, on SSRN. From the abstract:

This paper explores the narrative strategies of majority and dissenting opinions in Lawrence v. Texas, Romer v. Evans, and Bowers v. Hardwick, all major lesbian/gay civil rights decisions. It demonstrates that the story of U.S. history - increasing protection for individual rights, or decreasing respect for moral and constitutional tradition - explains as much about the legal outcome as the doctrinal arguments that the opinions contain. In particular, it places these opinions into a discussion about the relationship between narrative and identity, individual and national. From this perspective, Justice Antonin Scalia shares with French philosopher Michel Foucault the belief that narrative is closely related to identity, with the important difference that Foucault celebrates the fragility of this connection while Scalia deplores it.

Long on Law and Music Lyrics

Alex B. Long (Oklahoma City University School of Law) has posted [Insert Song Lyrics Here]: The Uses and Misuses of Popular Music Lyrics In Legal Writing, forthcoming 64 Wash. & Lee L. Rev. (2007) on SSRN. From the abstract:

Legal writers frequently utilize the lyrics of popular music artists to help advance a particular theme or argument in legal writing. And if the music we listen to says something about us as individuals, then the music we, the legal profession as a whole, write about may something about who we are as a profession. A study of citations to popular artists in law journals reveals that, not surprisingly, Bob Dylan is the most popular artist in legal scholarship. The list of names of the other artists rounding out the Top Ten essentially reads like a Who's Who of baby boomer favorites. Often, attorneys use the lyrics of popular music in fairly predictable ways in their writing, sometimes with adverse impact on the persuasiveness of the argument they are advancing. However, if one digs deeper, one can find numerous instances in which legal writers incorporate the lyrics of popular music into their writing in more creative ways.