Humor and the Law

Laura E. Little, Temple University School of Law, has published "Regulating Funny: Humor and the Law," to appear in volume 94 of the Cornell Law Review (2009). Here is the abstract.

When humor hurts people, they may press claims in court, ascribing blame and demanding redress. Courts respond by matching injuries with legal rules, and choose to insulate, tolerate, encourage, condemn or suppress the humor. Patterns emerge from this humor regulation, with courts systematically preferring some types of humor over others.

Explicit analysis of the law's regulatory effect on different types of humor is conspicuously absent in case law and legal scholarship. Non-legal theorists have, however, for centuries devoted considerable effort to defining and cataloguing humor. Philosophers, literary theorists, natural scientists, and social scientists have created a rich literature explaining how humor affects individual and group well-being. This article analyzes legal regulation of humor through the lens of that literature.

Using tools developed by humor theorists, the article explores how the law regulates humor in three doctrinal areas: contract, trademark, and employment discrimination. Across this diverse array of legal categories, the article identifies remarkable consistency in the types of humor that courts choose to regulate and the types that courts instead allow to flourish unimpeded by legal rules. The cases in all three areas regulate two types of humor with particular vigor: superiority humor and release humor. Superiority humor seeks amusement through a communication that makes one person feel successful at the expense of others. Release humor taps into repressed sources of pleasure, pressure, or anxiety, focusing on taboo or difficult topics such as sex, excretion, or death.

Courts' imposition of liability for superiority and release humor is consistent with civil law's corrective justice goals and with the specific cause of action requirements for contract, trademark, and employment discrimination. What is more surprising, however, is courts' tendency to privilege another type of humor: incongruity humor. Incongruity humor arises from the juxtaposition of two inconsistent or unrelated phenomena. Where the humor in a suit has incongruous qualities, courts tend to avoid liability, thereby placing incongruous humor beyond the law's grip.

Documenting patterns in humor regulation provides important guidance for courts, attorneys, and humorists seeking to understand and predict legal regulation. The article nevertheless seeks to accomplish more than that positive mission, and thus assesses the beneficial and potentially detrimental consequences of current humor regulation. Concluding that the law closely integrates social norms about appropriate humor, the article finds cause for both celebration and concern. The article ends by identifying three bodies of literature to assist with improving humor regulation: law and social norm theory, First Amendment literature, and the current interdisciplinary work of humor theorists.

Download the entire article from SSRN here.

Understanding Privacy

I am very happy to announce the publication of my new book, UNDERSTANDING PRIVACY (Harvard University Press, May 2008). There has been a longstanding struggle to understand what "privacy" means and why it is valuable. Professor Arthur Miller once wrote that privacy is "exasperatingly vague and evanescent." In this book, I aim to develop a clear and accessible theory of privacy, one that will provide useful guidance for law and policy. From the book jacket:

Privacy is one of the most important concepts of our time, yet it is also one of the most elusive. As rapidly changing technology makes information more and more available, scholars, activists, and policymakers have struggled to define privacy, with many conceding that the task is virtually impossible.

In this concise and lucid book, Daniel J. Solove offers a comprehensive overview of the difficulties involved in discussions of privacy and ultimately provides a provocative resolution. He argues that no single definition can be workable, but rather that there are multiple forms of privacy, related to one another by family resemblances. His theory bridges cultural differences and addresses historical changes in views on privacy. Drawing on a broad array of interdisciplinary sources, Solove sets forth a framework for understanding privacy that provides clear, practical guidance for engaging with relevant issues.

Understanding Privacy will be an essential introduction to long-standing debates and an invaluable resource for crafting laws and policies about surveillance, data mining, identity theft, state involvement in reproductive and marital decisions, and other pressing contemporary matters concerning privacy.

Here's a brief summary of Understanding Privacy. Chapter 1 (available on SSRN) introduces the basic ideas of the book. Chapter 2 builds upon my article Conceptualizing Privacy, 90 Cal. L. Rev. 1087 (2002), surveying and critiquing existing theories of privacy. Chapter 3 contains an extensive discussion (mostly new material) explaining why I chose the approach toward theorizing privacy that I did, and why I rejected many other potential alternatives. It examines how a theory of privacy should account for cultural and historical variation yet avoid being too local in perspective. This chapter also explores why a theory of privacy should avoid being too general or too contextual. I draw significantly from historical examples to illustrate my points. I also discuss why a theory of privacy shouldn't focus on the nature of the information, the individual's preferences, or reasonable expectations of privacy. Chapter 4 consists of new material discussing the value of privacy. Chapter 5 builds on my article, A Taxonomy of Privacy, 154 U. Pa. L.. Rev. 477 (2006). I've updated the taxonomy in the book, and I've added a lot of new material about how my theory of privacy interfaces not only with US law, but with the privacy law of many other countries. Finally, Chapter 6 consists of new material exploring the consequences and applications of my theory and examining the nature of privacy harms.

Understanding Privacy is much broader than The Digital Person and The Future of Reputation. Whereas these other two books examined specific privacy problems, Understanding Privacy is a general theory of privacy, and I hope it will be relevant and useful in a wide range of issues and debates.

For more information about the book, please visit its website.

Law and Gender in Shakespeare's Hamlet

New on SSRN: Carla Spivack, The Woman Will be Out: A New Look at the Law in Shakespeare's Hamlet, forthcoming from Yale Journal of Law and the Humanities. From the abstract:

Many readers have noted the abundant references to law in Shakespeare's Hamlet. Indeed, a whole sub-genre of criticism has developed around the question of whether Shakespeare's knowledge of law, as reflected in this play and others, is detailed and extensive enough to indicate legal training. These critics, however, have so far lacked scholarly backgrounds in Early Modern English literature and culture, and thus fail to connect the legal language and themes of the play to its other concerns about gender and rule. By the same token, literature scholars writing about the play have lacked backgrounds in English legal history. Bringing both perspectives to bear, I show that the play's legal allusions are closely related to its other concerns about gender, and that these themes in turn partake of changes in the broader culture, namely, the end of the forty-year reign of Elizabeth, a woman ruler, and an ensuing backlash against female political power. In sum, I will show that placing the play's legal references in context reveals that they are part of a process of ejecting the feminine from the political realm.

Joseph W. Dellapenna, Villanova University School of Law, has published "Peasants, Tanners, and Psychiatrists: Using Films To Teach Comparative Law," in International Journal of Legal Information, Vol. 36, No. 1, Spring 2008. Here is the abstract.

Films have proven to be a useful teaching tool for a course on Comparative Law. The films serve to introduce the class to the look and feel of legal proceedings from selected foreign legal systems and to illustrate particular aspects of how these legal proceedings differ from our own. The article summarizes the results of more than 10 years of experience in using films. It will be of interest to others who teach Comparative Law and also to lawyers, judges, and students who want a video means of oriented themselves to foreign legal traditions. The article discusses the limitations of such films as teaching (or orientation) tools, both in general and with regard to each particular film.

Download the paper from SSRN here.

The Amistad in Music

Today's New York Times has this feature article on Anthony Davis's opera Amistad. For more about interpretations about the Amistad, or the Amistad in the arts, see the following selected resources.

Research Guide to the Amistad Affair

Doug Linder's Famous American Trials: Amistad Page

Amistad Research Center

CBS Cancels "Shark"

The Hollywood Reporter notes that CBS has cancelled a number of shows, including the lawyer drama Shark, which stars James Woods. Read more here. Never mind: the first season is already out on DVDs.

Science, Poetry, and Law

Anita L. Allen, University of Pennsylvania Law School, has published "The Poetry of Genetics: On the Pitfalls of Popularizing Science," in Hypatia: A Journal of Feminist Philosophy (2009). Here is the abstract.

The role genetic inheritance plays in the way human beings look and behave is a question about the biology of human sexual reproduction, one that scientists connected with the Human Genome Project dashed to answer before the close of the 20th century. This is also a question about politics, and, it turns out poetry, because, as the example of Lucretius shows, poetry is an ancient tool for the popularization of science. "Popularization" is a good word for successful efforts to communicate elite science to non-scientists in non-technical languages and media. According to prominent sociobiologist E.O. Wilson, "sexual dominance is a human universal." He meant, of course that men dominate women. Like sociobiology, gene science is freighted with politics, including gender politics. Scientists have gender perspectives that may color what they "see" in nature. As the late Susan Okin Miller suggested in an unpublished paper tracing the detrimental impact of Aristotle's teleology on western thought, scientists accustomed to thinking that men naturally dominate women, might interpret genetic discoveries accordingly. Biologists have good, scientific reasons to fight the effects of bias. One must be critical of how scientists and popularizers of science, like Genome author Matt Ridley, frame truth and theory. Ridley's "battle of the sexes" metaphor and others have a doubtful place in serious explanations of science.

Download the paper from SSRN here.

Law in the Tempest

Karin Trustedt, European University Viadrina Frankfurt (Oder), has published "The Tragedy of Law in Shakespeare," in Law & Humanities, volume 1. Here is the abstract.

This paper focuses on the status of law in regard to nature and art in Shakespeare‘s late play "The Tempest." The inscription of law into nature as it can be seen in King Lear‘s trial to legitimize sovereignty with nature, leads to crisis and the suspension of law. Rather than being natural, it points to an "outlaw" dimension of law internal to sovereignty, a dimension that also plays a central role in other Shakespearean tragedies. This "tragedy of law" suffers a sea-change "into something rich and strange" in the Shakespearean romance "The Tempest." While Shakespeare‘s late plays do take up the setting of tragedy, they, with their artistic turn towards a special kind of comedy, play on possibilities of life, promise and forgiveness beyond the tragical patterns of law.

Download the paper from SSRN here(priced).

Logic in Twelve Angry Men

I came across this essay by Joel Warren Lidz on logic and argument in the film "Twelve Angry Men." It originally appeared in the journal Teaching Philosophy.

Mildred Jeter Loving Dies

Mildred Loving, one of the parties in the landmark case Loving v. Virginia, has passed away. NPR has this audio story. Timothy Hutton and Lela Jeter starred in a made-for-television movie that dramatized the case, which made it to the Supreme Court in 1967. The film is available on DVD.

"You're out of order! You're out of order! The whole trial is out of order!"

In a recent "Boston Legal" episode, Alan Shore (James Spader) excoriates the "Supreme Court" (played by lookalikes) for drifting away from "civil rights and liberties" to protectors of "pro-business". Read more in a Legal Times interview with producer/writer David E. Kelley here (registration may be required). The blogosphere has reacted: see Crooks and Liars; Blogcritics Magazine; On the Record.

Law & Politics Book Review on Law & Literature

Law & Politics Book Review has recently published an issue with short book reviews of many great works of literature with legal and political themes. The issue is available online here.

Here is the table of contents:

Introduction. . . . pp. 288-290.

Abbey, Edward. THE MONKEY WRENCH GANG. Reviewed by Darren Botello-Samson, Department of Social Sciences, Pittsburg State University. . . . pp.290-293.

Asimov, Isaac. I, ROBOT. Reviewed by Susan M. Behuniak, Department of Political Science, Le Moyne College. . . . pp.294-297.

Atwood, Margaret. THE HANDMAID’S TALE. Reviewed by Kathleen A. Cameron, Justice Studies, Social Sciences Department, Pittsburg State University. . . . pp.298-301.

Campbell, Bebe Moore. YOUR BLUES AIN’T LIKE MINE. Reviewed by Angela Mae Kupenda, Mississippi College School of Law. . . . pp.303-305.

Camus, Albert. THE STRANGER. Reviewed by David S. Mann, Department of Political Science, College of Charleston. . . . pp.306-309.

Carofiglio, Gianrico. INVOLUNTARY WITNESS. Reviewed by Christoph Konrath, Parliamentary Administration, Austrian Parliament. . . . pp.310-312.

Dickens, Charles. BLEAK HOUSE. Reviewed by R. B. Bernstein, Distinguished Adjunct Professor of Law, New York Law School. . . . pp.313-316.

Drury, Allen. ADVISE AND CONSENT. Reviewed by Trevor Parry-Giles, Department of Communication, University of Maryland. . . . pp.317-320.

Grisham, John. A TIME TO KILL. Reviewed by Laura J. Hatcher, Department of Political Science and Women’s Studies Program, Southern Illinois University at Carbondale. . . . pp.321-324.

Guterson, David. SNOW FALLING ON CEDARS. Reviewed by Margaret S. Hrezo, Department of Political Science, Radford University. . . . pp.325-327.

Huxley, Aldous. BRAVE NEW WORLD. Reviewed by Tracy Lightcap, Department of Political Science, LaGrange College. . . . pp.328-331.

Kafka, Franz. THE TRIAL. Reviewed by Adelaide H. Villmoare, Department of Political Science, Vassar College. . . . pp.332-334.

Lee, Harper. TO KILL A MOCKINGBIRD. Reviewed by Richard A. Glenn, Department of Government and Political Affairs, Millersville University, Pennsylvania. . . . pp.335-339.

McEwan, Ian. SATURDAY. Reviewed by Lynne S. Viti, Writing Program, Wellesley College. . . . pp.340-343.

Melville, Herman. BILLY BUDD, SAILOR. Reviewed by Stephen A. Simon, Department of Political Science, University of Richmond. . . . pp.244-247.

Motley, Willard. KNOCK ON ANY DOOR. Reviewed by Walter J. Kendall, III, The John Marshall Law School. . . . pp.348-350.

Rowling, J.K. HARRY POTTER AND THE ORDER OF THE PHOENIX. Reviewed by Bruce Peabody, Department of Social Sciences and History, Fairleigh Dickinson University. . . . pp.351-355.

Stevenson, Robert Louis. THE STRANGE CASE OF DR. JEKYLL AND MR. HYDE. Reviewed by Simon Stern, Faculty of Law and Department of English, University of Toronto. . . . pp.356-359.

Twain, Mark. PUDD’NHEAD WILSON AND THOSE EXTRAORDINARY TWINS. Reviewed by Christopher P. Banks, Department of Political Science, Kent State University. . . . pp.360-364.

Vonnegut, Kurt, Jr. CAT’S CRADLE. Reviewed by Stephen McDougal, Department of Political Science/Public Administration, University of Wisconsin-La Crosse. . . . pp.365-369.

Warren, Robert Penn. ALL THE KING’S MEN. Reviewed by Susan McWilliams, Department of Politics, Pomona College. . . . pp.370-372.

Wolfe, Tom. THE BONFIRE OF THE VANITIES. Reviewed by David Schultz, Graduate School of Management, Hamline University. . . . pp.373-375.

Hart Publishing Launches New Journal on Law and the Humanities

Here's the website for the new journal Law and the Humanities. The journal is peer-reviewed, appears twice a year and costs 90 pounds per year.

Shakespeare and Real Property

Bradin Cormack has published "Strange Love, Or, Holding Lands," in volume 1 of Law & Humanities (2007). Here is the abstract.

This paper explores how, in Shakespeare‘s sonnets (and in the plays), Shakespeare looks to legal tenure and the mechanics of common-law possession to explore the claim of erotic relation and erotic estrangement on the speaking self and its "self-possession." The connection between land and love that Shakespeare‘s texts deploy, charge and amplify was of some use to the common lawyers themselves. In the erotics of land law, I argue, we thus find a topic whose contours demand an approach to law and literature that respects the law‘s dynamics, as well as the sonnets‘.

Download the article here from SSRN (priced).

Law and Justice in Hamlet

Suzanne Ost, University of Central Lancashire, Lancashire Law School, has published "`But Is This Law?' The Nature of Law, Sovereign Power and Justice in Hamlet," in volume 1 of Law & Humanities (2007). Here is the abstract.

The paper addresses questions of legal and political theory concerning the representations of law, sovereign power and justice within Hamlet. I explore how the play can be seen to emphasise the significance of the restraints that can be placed upon the sovereign and Hamlet himself, by natural law and justice. Applying the natural law theories of Shakespeare's contemporaries and John Finnis's modern theory of natural law in particular, I argue that Claudius is an illegitimate figurehead of state and law whose exercise of practical reason and prudentia is flawed, and that his actions cause his law to lack the moral content demanded of law worthy of that name. In part II of the paper, I assess Hamlet's unfulfilled potential as a sovereign lawmaker and consider whether his philosophical, cautious nature would have been apt for this role. In the final part of the paper, I argue that Hamlet's own actions are also open to legal and moral critique. I contend that at the end of the play, Hamlet neglects his duty to the people of Denmark since his killing of Claudius is an act of personal revenge that, at the very most, achieves a crude version of justice, rather than a public act legitimated through law.

Download the paper from SSRN here. (priced)

Trial Narratives

Lindsay Farmer, University of Glasgow Faculty of Law and Financial Studies, has published "`With All the Impressiveness and Substantial Value of Truth': Notable Trials and Criminal Justice, 1750-1930", in volume 1 of Law & Humanities (2007). Here is the abstract.

This paper examines the changing forms of trial narratives, between 1750 and 1930, looking in particular at the way in which these mirror changes in the form of the criminal trial and legitimate a certain understanding of the adversarial criminal trial as the pre-eminent symbol of criminal justice. Initially the primary focus is on the political function of the criminal trial and jury, but over the period the focus comes to be the on the character of the participants, and the truths that can be revealed about crime and society through the drama of the law. This process culminates in the emergence of the 'notable trial' in England and Scotland at the end of the century. Through the study of these narratives we can see how the trial was reordered and produced as a new kind of popular spectacle in the latter half of the nineteenth century.

Download the paper from SSRN here.

Legal Biography

Mark Fenster, University of Florida School of Law, has published "The Folklore of Legal Biography," at 105 Michigan Law Review 1265 (2007). Here is the abstract.

This essay reviews Spencer Weber Waller's recent biography of the legal realist Thurman Arnold (NYU Press 2005). Arnold's academic and popular writings during the 1930s - which not only critiqued what he saw as the foolishness and ill effects of legal formalism and political conservatism, but also recognized the symbolic authority of legal forms and conservative beliefs and the need for any reform movement to respect and appropriate them - force us to reconsider the entire project of legal biography. Arnold's life and work reveal the ways in which the forces of modernity - forces that Arnold celebrated in his work and helped unleash in the New Deal and at Arnold & Porter - call into question the rugged individual that biography requires. Arnold's critical realist project sought to uncover the historically contingent and ideological nature of the classical liberal conception of the subject who authors his own individual life; but at the same time, the culturalist side of Arnold's work explains why this conception remains necessary, given the symbolic nature of a legal system and the deeply felt needs we have in residual concepts.

Download the entire essay from SSRN here.

Papers To Be Presented at the Law & Humanities Interdisciplinary Junior Scholar Workshop

Here's news from the conveners of the 2008 Law & Humanities Junior Scholar Interdisciplinary Writing Competition, Katherine Franke, Ariela Gross, Naomi Mezey, Hilary Schor, Clyde Spillenger, Nomi Stolzenberg, and Ariela Dubler.

Each year we solicit papers from senior graduate students and untenured faculty on topics in law and the humanities. The submissions are then juried by two outside senior readers, and based on those reviews the conveners select seven papers and two alternates for inclusion in a conference held in June where the papers are workshopped by senior commentators in fields relevant to the papers.

2008 Law & Humanities Interdisciplinary Junior Scholar Workshop

Critical Acts of Recognition: Reading Law Rhetorically
Sarah Burgess
Assistant Professor
University of San Francisco
Department of Communication Studies

Social Life and Civic Education in the Rio de Janeiro City Jail
Amy Chazkel
Assistant Professor
Department of History
City University of New York, Queens College

A Woman’s Right to be Spanked:
Testing the Limits of Tolerance of S/M in the Socio-Legal Imaginary
Ummni Khan
Doctoral Candidate
University of Toronto, Faculty of Law

Respect and Resistance in Punishment Theory
Alice Ristroph
Associate Professor
University of Utah, S.J. Quinney College of Law

The Sit-ins and the Failed State Action Revolution
Christopher W. Schmidt
Visiting Scholar, American Bar Foundation; Visiting Associate Professor, Chicago-Kent College of Law (spring 2008)

Recording Artists, Work For Hire, Employment, and Appropriation
Matt Stahl
Assistant Professor
Department of Media and Communication
Muhlenberg College

Divorcing family law from the nation
Philomila Tsoukala
Visiting Assistant Professor
Georgetown Law Center

Alternates:

Blood Quantum and Equal Protection
Rose Cuison Villazor
Assistant. Professor of Law
SMU Dedman School of Law

Legal Development in Sudan:
Myth-making and the Collision of Rights
Mark F. Massoud
Ph.D. Candidate
University of California, Berkeley



--------------------------------------------------------------------------------

Katherine Franke, Columbia Law School
Ariela Gross, USC Law School and Department of History
Naomi Mezey, Georgetown University Law Center
Hilary Schor, USC Department of English and USC Law School
Clyde Spillenger, UCLA School of Law
Nomi Stolzenberg, USC Law School
Ariela Dubler, Columbia Law School

Conveners of the Law & Humanities Interdisciplinary Junior Scholar Workshop

Religious Allegory in Twelve Angry Men

Bruce L. Hay, Harvard Law School, has published "Charades: Religious Allegory in 12 Angry Men," in volume 82 of the Chicago-Kent Law Review (2007) as part of a symposium marking the 50th anniversary of the film 12 Angry Men.

Here is the abstract.

This essay, a contribution to a symposium marking the 50th anniversary of the film 12 Angry Men, shows that the film is an intricate, carefully constructed allegory of a series of stories from the Hebrew Bible and the New Testament. The essay offers some conjectures on the relation between the film's biblical subtext and its surface political themes.

Download the paper from SSRN here.

Contract and the Comedy of Errors

Andrew Zurcher, Queen's College, Cambridge, has published "Consideration, Contract, and the End of the Comedy of Errors, in volume 1 of Law & Humanities (2007). Here is the abstract.

To address methodological and critical issues at stake in the conferral of legal historical and literary studies. The major part of the paper concerns Shakespeare's interest, in The Comedy of Errors, in contractual theory, and the problems this throws up for understanding the function of comedy; but this leads to further reflections on the way we bring legal ideas to bear on literary texts in this period.

Download the paper from SSRN here.

Shakespeare and Specific Performance

Mark Fortier, University of Guelph, has published "Shakespeare and Specific Performance," in volume 1 of Law & Humanities. Here is the abstract.

The standard form of compensation for loss at the common law is damages - a sum of money given as recompense. It is only in rare and special situations that the equitable remedy of specific performance is employed. Specific performance assumes that some particular thing is of such unique value that only the delivery of the thing itself is an adequate remedy. In this paper I use the difference between money-based damages and value-laden specific performance, taken in an expansive, somewhat metaphorical sense, to explore questions of value, loss, and recompense in the world of Shakespeare‘s plays. Like much imaginative literature - think of the first-born child in Rapunzel - Shakespeare‘s world is one in which specific values and compensation play a much larger role than does money-thus putting literature at some variance from the realities of law under capitalism. This may in part be simply because highly personalized investments make for better stories. I wish in this paper, however, to explore the complex ramifications, both wondrous and destructive, of an emotional and legal economy based so deeply in specific values and performance. Through a wide ranging survey of key moments in Shakespeare‘s plays, I will argue that Shakespeare is as much horrified as delighted by the deep ramifications of a world based in specific performance.

Download the paper from SSRN here.

Weisberg on the Merchant of Venice

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

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

Download the entire paper from SSRN here.

Judges Citing Literature

Professor Todd Henderson (U. Chicago Law School) has posted an interesting article on SSRN, Citing Fiction, 11 Green Bag 2d 171 (2008). He provides many illuminating facts about judges citing literary works:

A comprehensive survey of over 2 million federal appellate opinions over the past 100 years reveals only 543 identifiable citations or references to works of fiction. Of these, less than half – 236 – were employed rhetorically to evoke an emotional response in the reader. This type of citation, which I’ll call a "literary" citation, occurs in only about 1 out of every 10,000 federal appellate opinions.

Todd's data is quite interesting, but I disagree with how he frames his essay and some of the conclusions he draws. Todd writes:

[A] central claim of the law and literature movement (which I'll refer to as "the Movement") is that reading fiction can provide judges with knowledge about how to solve real world problems. For example, Professor Martha Nussbaum writes that "the novel constructs a paradigm of a style of ethical reasoning … in which we get potentially universalizable concrete prescriptions by bringing a general idea of human flourishing to bear on a concrete situation." If this is true and the Movement has had a significant effect on law, one would expect to see an increase in the use of literature in judicial opinions, since judges routinely cite to works that have a direct impact on their decisionmaking. We should also expect to see works cited for the reasons the Movement wants them to be – to reveal that the fiction has evoked feelings of pity and empathy for the less fortunate and given a voice to traditionally marginalized segments of society. Neither of these things is true.

Unpacking this paragraph, I see the following claims: (1) whether the law and literature movement "has had a significant effect on law" can be assessed by instances when literature has a "direct impact" on judicial decisionmaking; (2) "central" claims of the law and literature movement are that literature makes judges more ethical or empathetic and that literature provides judges with "knowledge about how to solve real world problems"; and (3) citations will demonstrate whether literature has a "direct impact" on a judge's decisionmaking.

Let's begin with the first claim: Whether the law and literature movement "has had a significant effect on law" can be assessed by instances when literature has a "direct impact" on judicial decisionmaking.

This claim begins with an assumption that having a significant effect should be measured by having a direct impact. But it is unclear why the significant effect must be a direct impact rather than an indirect one. Reading Orwell's 1984 might help shape how judges perceive surveillance and government power. Will it directly affect their decisions? Probably not, if direct effects mean that but for reading Orwell's book, a judge inclined to decide a case one way will now decide it another way. But it might have helped shaped a judge's mindset along with other works of literature and a number of other social and cultural experiences. It might have an indirect effect. The difficulty is that looking for direct impact is far too demanding a requirement.

On to the second claim: "Central" claims of the law and literature movement are that literature makes judges more ethical or empathetic and that literature provides judges with "knowledge about how to solve real world problems"

I quarrel with the argument that a "central" claim of the law and literature movement is to make judges more empathetic or ethical, or to give them "knowledge about how to solve real world problems." I don't think that literature necessarily makes one more moral, ethical, or empathetic. Nor do I think that literature provides specific "solutions" to problems. Literature can provide a critique or commentary about the law. It can develop thinking, reasoning, and interpretive skills. It can provide insight into jurisprudential questions, and it can help people see between the lines, be more nuanced, recognize ambiguity, see different interpretations, and so on.

While there are some in the law and literature movement who have claimed that literature makes lawyers more ethical or empathetic, most have not made such claims. Todd's quote from Martha Nussbaum doesn't suggest she makes these claims. Instead, Nussbaum seems to be saying that literature can contain ethical teachings and that it embodies them in concrete situations. I agree with this. The fact that literature can illustrate an ethical prescription by embodying it in concrete situations doesn't mean that the reader will necessarily agree with the ethical prescription. Moreover, much literature is not dogmatic about any particular ethical or moral view -- it often demonstrates the ambiguities and tensions in various ideas. Literature is not the same as a philosophical or political argument. It is often more suggestive and ambiguous.

Finally, it's time to turn to the third claim that I've parsed out of Todd's essay: Citations will demonstrate whether literature has a "direct impact" on a judge's decisionmaking.

The legal academy has a fetish over citations. Because it is so fun and easy to play around with Westlaw, we can now readily do studies about citations. This data is quite interesting, but it is tempting to make too much of it.

What exactly does the lack of citations to literature mean? First, even if a literary work had a "direct impact" on a judge's decision, I doubt in many cases the judge would admit this. Judges often read and rely on law review articles they never cite. Judges might be informed by history, philosophy, sociology, economics, etc. and might not cite to such works. What would we think of the judge who writes: "For the reasons stated in Dickens' works, I hereby conclude that this case should be decided in favor of the 'little guy'"? Does a judge who is heavily influenced by a particular philosophy need to cite to specific philosophical works? So a judge influenced by Rawls might never cite to Rawls. Judge Richard Posner is influenced by pragmatism, yet he doesn't cite to works by William James or John Dewey in every opinion in which he employs pragmatic ideas. The bottom line is this: Cites don't necessarily prove influence or impact, or the lack thereof. They show how many times something has been cited to. People often read much more into cites than they should.

The influence of literature is quite indirect. It provides ideas and fodder for thought. But rarely does it have a direct bearing on any particular case. It doesn't hold any particular authority over the judge. It's not precedent. It doesn't provide a syllogistic argument or complete analysis of a particular problem. But it still might be influential. A judge might reason, interpret, think, and perceive things differently for having read certain works of literature. There's no easy way to measure this.

So that ends my critique, but on the positive side, I did find some really interesting facts in Todd's article:

* "In the Seventh Circuit, Judges Posner and Easterbrook combined for nearly all citations to fiction, and over 80 percent of all references to George Orwell."

* "On the Supreme Court, Justices Brennan and Douglas accounted for most references to Orwell. Judges have favorite authors or themes, and they cite to them again and again."

* [O]f the 110 Supreme Court justices who have served, only 21 have ever cited to the authors or works in this survey. The leading Supreme Court fiction citers are Justices Douglas, Stevens, Brennan, and Rehnquist, each of whom has cited to fiction around five times. These four justices account for almost 50 percent of all Supreme Court citations to fiction."

* "About half of all citations are about the law’s delay, the definition of legal terms, and the role of courts in our system, not about generating empathy for litigants."

* The most frequently cited authors are "George Orwell (61 citations); William Shakespeare (35); Franz Kafka (34); John Milton (20); Homer, Chaucer, and Oscar Wilde (14 each)."

* "[J]ustices appointed by Democrats or with an otherwise liberal voting record made almost 80 percent of all literary citations."

* "In the Supreme Court, nearly three-quarters of literary citations are in dissenting or concurring opinions (63 percent in dissenting; 27 percent in majority; and 10 percent in concurring). In the circuit courts, by contrast, the reverse is largely true, with about 64 percent in majority opinions and 36 percent in dissenting and concurring opinions."

I'm pleased to see Orwell and Kafka as being among the most-cited literary works. I once wrote about how conceptions of information privacy and computer databases are framed in terms of Orwell and how they might better be framed in terms of Kafka.

Cross-posted at Concurring Opinions.

Resources For a Sad Anniversary

Dr. Martin Luther King, Jr. died forty years ago today, a sad, sad anniversary. The presence of minority characters on screen is finally increasing, but is still so infrequent that one has a reasonable chance of counting the number of black or Hispanic or Asian lawyers, for example. Here's a partial listing of black tv lawyers over the past few years.

Any Day Now (Lifetime, 1998-2002). Features Lorraine Toussaint as a lawyer who gives up her big city practice to continue her father's work in Birmingham, Alabama.

Boston Legal (ABC, 2005---). Kerry Washington played associate Chelina Hall (2005-2006).

The Cosby Show (1984-1992)(currently in reruns on various stations). Claire Huxtable is an attorney married to a successful OB-GYN; they raise five lively children, one of whom (Sonia) also becomes an attorney, in this successful series.

First Years (2001). Sydney Tamiia Poitier is one of the first year associates at a big law firm.

Cosby (1996-2000)(currently in reruns on various stations). Cosby is Hilton Jacobs, Phylicia Rashad returns as his wife Ruth, and T'Keyah "Crystal" Keymah is their daughter Erica Lucas, who gets a law degree but decides her heart is in being a chef.

For the People (2002-2003) Lifetime TV's television series starring Debbi Morgan as the newly elected District Attorney of Los Angeles.

Kevin Hill (UPN, 2004). Taye Diggs as a New York metrosexual lawyer in a boutique firm headed by Jessie Grey (Michael Michele).

Soul Food (2000-2004). Showtime series based on the television movie of the same name (1997). Features a family of three daughters, one of whom is an attorney.

Sparks (1996-1998). Female attorney joins a brother-brother law firm.

Sweet Justice (1994-1995). Cecily Tyson is partnered with Melissa Gilbert in this series.

Will &  Grace (1998-2006). The late Gregory Hines played the role of Ben Doucette (1999-200), the head of a high-powered law firm, who hires Will Truman.

In addition, Judging Amy (CBS). Episode: Thursday's Child. Kathyrine Dora Brown is Zola Knox, an aggressive African-American attorney filing a class action lawsuit who wants Bruce to join the class. Good scene between her and star Amy Brenneman in a courthouse corridor.

Here's a listing of films with civil rights themes.

The American Experience (1993). Based on Richard Kluger's book Simple Justice, this film follows the attempt to desegregate the public schools in the U. S. south. Also called Simple Justice.

Amistad (1997). Dramatization of the 1839 case against African Americans who mutiny aboard a slave ship (40 U.S. 518 (1841)).

Assault at West Point (1994). Dramatization of the trumped up court martial of a black cadet.

Birth of a Nation (1915). Extremely controversial film made by D. W. Griffith, purporting to tell the story of the South after the Civil War. Stars Lillian Gish.

Black Like Me (1964). Film version of the 1959 book by John Howard Griffin, a white man, about his travels as a black in the racially segregated America of the 1950s. The book had a tremendous impact on civil rights thinking in the 1960s.

Bojangles (TVM 2001). Gregory Hines as the legendary dancer, William "Bojangles" Robinson.

Boycott (TVM 2001). Docudrama based on the Montgomery bus boycott. Compare with The Long Walk Home.

Chiefs (1983 TV miniseries). Three generations of police search for a serial killer in a Southern town.

The Color of Courage (TVM 1999). Dramatizes the civil rights case of Sipes v. McGhee. Features Roger R. Cross as Thurgood Marshall.

Common Ground (TV 1990). Based on the book by Anthony Lucas about desegregation in Boston

Dangerous Evidence (TV 1999). Lynn Whitfield is a civil rights activist who investigates the wrongful conviction of a Marine for rape.

Devil in a Blue Dress (1995). Based on the Walter Mosley novel.

4 Little Girls (1997). Spike Lee's documentary about the bombing of a Birmingham church that resulted in the deaths of four small girls.

The Ghosts of Mississippi (1996). Features James Woods as Byron de la Beckwith, the murderer of civil rights activist Medger Evers.

Gone wIth the Wind (1939). Stars Vivien Leigh, Clark Gable, Leslie Howard, Olivia de Havilland, directed by Victor Fleming in the famous adaptation of the Margaret Mitchell novel. In 2001 Houghton Mifflin fought a successful battle to publish a parody, Alice Randall's The Wind Done Gone.

Good Neighbor Sam (1964). The probate judge is African-American; unfortunately www.imdb.com does not give the name of the actor.

Good Night Sweet Wife: A Murder in Boston (1990). Docudrama based on the murder of a pregnant white lawyer by her husband; the husband blamed a non-existent black man, sparking racial hatred and near riots before he confessed and committed suicide.

Howard Beach: Making a Case for Murder (1989). Docudrama about a racial killing stars Daniel J. Travanti as the prosecutor who tracked down and convicted white teenagers who beat a black man to death in Howard Beach. Also called: In the Line of Duty.

The Hurricane (1999). Denzel Washington plays Rubin "Hurricane" Carter, the prize fighter framed for murder.

In the Heat of the Night (1967). This powerful drama features Sidney Poitier and Rod Steiger and was one of the first feature films to confront the relationship of racism and police corruption. Followed by They Call Me MISTER Tibbs!

The Inspectors (TVM 1998); The Inspectors: A Shred of Evidence (TVM 2000). Louis Gossett Jr. is a U. S. postal inspector, Claire Riley his love interest as attorney Catherine Hughes.

Judge Horton and the Scottsboro Boys (TVM 1976). Based on the famous rape case; engendered its own lawsuit. Street v. NBC; 645 F 2d 1227 (1981).

Just Cause (1995). A law professor takes on the case of a young African American accused of murder.

King (TV miniseries 1978). Features Paul Winfield as King and Cecily Tyson as Coretta Scott King.

A Lesson Before Dying (TVM 1999). Based on the Ernest Gaines novel.

The Long Walk Home (1990). Powerful dramatization of the Montgomery bus boycott. Compare with Boycott.

Losing Isaiah (1995). Courtroom drama about the custody battle over an African American boy.

Malcolm X (1992). Dramatization of the life of the civil rights leader.

The Mighty Quinn (1989). Set in the West Indies, but features Denzel Washington as a police officer with professional and personal problems.

Mississippi Burning (1988). Based on the lives and deaths of civil rights workers who came to Mississippi to register black voters in the 1960s. Based on the killings of Viola Liuzzo and her companions.

Mrs. and Mrs. Loving (TVM 1996). Well done dramatization of the case Loving v. Virginia (388 U.S. 1 1967) which finally struck down laws against interracial marriage.

Murder in Harlem (1935). A lawyer helps his girlfriend prove her brother is innocent of murder.

Murder in Mississippi (TVM 1990). Dramatization of the deaths of three civil rights workers in 1963. Compare with Mississippi Burning and The Ghosts of Mississippi.

Native Son (1986). Based on the Richard Wright novel.

The Organization (1971). A third Virgil Tibbs movie, starring Sidney Poitier.

Roots (1977 TV miniseries). Dramatization of Alex Haley's book.

Separate But Equal (TV miniseries, 1991). Sidney Poitier is a determined Thurgood Marshall in this dramatization of the events leading up the Brown v. Board of Education decision.

Selma, Lord, Selma (TVM 1999). Dramatization of the Selma to Montgomery march led by Martin Luther King, Jr.

Simple Justice. See The American Experience.

They Call Me MISTER Tibbs! (1970). Sequel to In the Heat of the Night, also starring Sidney Poitier.

To Kill a Mockingbird (1962). Based on the Harper Lee novel. Story of a Southern lawyer defending a black man accused of raping a white woman.

The Tuskegee Airmen (TVM 1995). Dramatization of the attempts to integrate the Air Force during the Second World War.

A Time to Kill (1996). Based on the John Grisham novel about a black man avenging the rape of his daughter.

White Lie (TVM 1991). Gregory Hines as a son investigating the lynching of his father for the alleged rape of a white woman.

Who Killed Martin Luther King? (TVM 1992). Documentary about the assassination.

More resources at Black History Month Bibliography and Bibliography of African-American Detectives (which I'm planning to update in my copious free time).

Law Blog Focuses on International Law and Film

New blog that you might have missed: International Law and Films, part of the International Institute for Law and Justice of the New York University School of Law.

Property Law in The Lord of the Rings

Jacob Kaufman discusses property law in J. R. R. Tolkien's Lord of the Rings in a post here on the blog Law is Cool. See also these follow up posts here at the Volokh Conspiracy.

[Thanks to Professor Troy Hinrichs, California Baptist University, for the cite].

Researchers might also be interested in:

Stoddard, William H., Law and Institutions in the Shire, 18 Mythlore 4-8 (Autumn 1992). This article is listed in my bibliography An International Guide to Law and Literature Studies (2000).

Harry Potter, College Student

Patrick Lee, a freshman at Yale, writes for CNNU about Potter-themed courses at universities and colleges around the United States here.

Filmmaker Jules Dassin Dies

Filmmaker Jules Dassin has died at the age of 96. Mr. Dassin was born in the US, where he began his career in the Yiddish theater. He made one of his most famous films, the noir classic The Naked City, in 1948. He eventually left the US for France after the House UnAmerican Activities hearings began and he fell under suspicion. He married his second wife, actress Melina Mercouri, there.

Among Mr. Dassin's other law related films are Rififi and Never On Sunday. He is survived by a daughter, actress Julie Dassin. His son, singer Joe Dassin, died in 1980. Read and hear more about Mr. Dassin here from NPR, here from Agence France Presse and here from the Los Angeles Times.

Jeanne L. Schroeder, Cardozo School of Law, reviews William MacNeil's new book Lex Populi in a Cardozo Legal Studies Research Paper. Here is the abstract.

William MacNeil's book is that rarest of rarae aves - a serious legal study that is fun to read. As its name implies, the book examines 'people's law' or, more loosely, 'pop law' - law as reflected by contemporary popular culture. More precisely, MacNeil shows how popular culture can give us insights into both lay (mis)understandings of law as well as lofty jurisprudential theory.

What distinguishes this work from many law-and-literature studies is not just his choice of texts. MacNeil avoids literature and cinema in favor of mass market entertainment and cult favorites. MacNeil's point is that the scope of law cannot be confined to the legal. Following the European tradition of speculative theory, he sees law not as an autonomous field, but as an inherent and essential part of the symbolic - the social or intersubjective order that also includes language and sexuality. Law is not that which goes on in courts, but that which structures both social relationships and subjectivity.

As such, the symbolic order, which includes law, does not merely rule our trials and behavior, it inhabits our fantasies and haunts our nightmares. To know ourselves we must understand law, and vice versa. One way we can glimpse both is in the vulgar, everyday entertainments that occupy so much of our imagination and waste so much of our time.

Download the entire paper from SSRN here.

The Meaning of Rap

Andrea Dennis, University of Kentucky College of Law, has published "Poetic (In)Justice? Rap Music as Art, Life and Criminal Evidence" in volume 31 of Columbia Journal of Law and the Arts (2007). Here is the abstract.

Courts routinely admit defendant-authored rap music lyrics as substantive evidence in the adjudication of criminal cases. In doing so, courts fail to recognize that rap music lyrics are art. Rather, judges view the interpretation of rap music lyrics as a subject of common knowledge, interpret the defendant's lyrics literally, and characterize lyrics as autobiographical depictions of actual events. In making admissibility decisions, courts must give consideration to the social constraints and artistic conventions impacting the composition and interpretation of rap music lyrics. More particularly, they must understand the commercialized nature of the rap music industry, artist claims of authenticity, and the use of poetic devices such as metaphor, boasting, perspective, and narrative. Likewise, jurors must be informed of such information when tasked with evaluating the weight of such lyrical evidence. Factoring this information into the admissibility analysis reveals that courts are admitting artistic evidence masquerading as real-life events, impermissible evidence of character and propensity, and unfairly prejudicial evidence. To avoid these problems, I suggest that courts considering admission of rap music lyrics written by defendants should determine the meaning of the lyrics from the artistic perspective of the defendant-lyricist as well as permit the defense to offer judges and jurors expert testimony respecting the composition of rap music lyrics. This approach can operate within the current system of evidence rules and balances the interests of defendants, the prosecution, and society.

Download the paper from SSRN here.

Weisberg On Law and Literature

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

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

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

Download the paper from SSRN here.

Teaching Meaning Through Narrative

Paula L. Abrams, Lewis & Clark Law School, has published "We the People and Other Constitutional Tales: Teaching Constitutional Meaning Through Narrative," at 41 The Law Teacher 247 (2007). Here is the abstract.

The narratives associated with a landmark constitutional case, including the socio-political struggles that give rise to the dispute and the resulting litigation, are an important, and overlooked, aspect of constitutional understanding. An examination of these narratives can elucidate circumstances that have been overlooked in the formalized articulation of constitutional norms. It can provide a more nuanced understanding of the conflict, and, in some instances, an altered interpretation of doctrine. Traditional legal education typically omits any substantial consideration of the external historical events that give rise to landmark cases. The omission of these external narratives may serve to distort the doctrinal complexity of major cases. This article demonstrates the significance of narrative by examining five stories describing a significant U.S. Supreme Court case, Pierce v. Society of Sisters. These stories illuminate the impact of contextual narrative upon constitutional meaning. The paper argues that contextual narrative should be incorporated into the teaching of constitutional doctrine to ensure a more accurate understanding of constitutional meaning. The article explores various methods of teaching Pierce to demonstrate the marked difference between the highly formalized analysis typical of conventional legal education and the multi-faceted legal, political, and social comprehension gained through contextual narrative.

Download the entire article from SSRN here.

The Place of Stories

Nancy Levit and Allen K. Rostron, University of Missouri School of Law, have published "Calling for Stories," at 75 UMKC Law Review 1127 (2007). Here is the abstract.

Storytelling is a fundamental part of legal practice, teaching, and thought. Telling stories as a method of practicing law reaches back to the days of the classical Greek orators. Before legal education became an academic matter, the apprenticeship system for training lawyers consisted of mentoring and telling war stories. As the law and literature movement evolved, it sorted itself into three strands: law in literature, law as literature, and storytelling. The storytelling branch blossomed.

Over the last few decades, storytelling became a subject of enormous interest and controversy within the world of legal scholarship. Law review articles appeared in the form of stories. Law professors pointed out that legal decisions were really stories that told a dominant narrative. Critical theorists began to tell counterstories to challenge or critique the traditional canon. Some used fictional stories as a method of analytical critique; others told accounts of actual events in ways that gave voice to the experiences of outsiders.

Storytelling began to make its way into legal education in new ways. For instance, a major textbook publisher developed a new series of books that recount the stories behind landmark cases in specific subject areas to help students appreciate not only the players in major cases, but also the social context in which cases arise. Meanwhile, Scott Turow, John Grisham, and a legion of other lawyers invaded the realm of popular fiction and conquered the bestseller lists.

Legal theorists began to recognize what historians and practicing lawyers had long known and what cognitive psychologists were just discovering the extraordinary power of stories. Stories are the way people, including judges and jurors, understand situations. People recall events in story form. Stories are educative; they illuminate different perspectives and evoke empathy. Stories create bonds; their evocative details engage people in ways that sterile legal arguments do not.

The UMKC Law Review plans to devote a section of one issue each year to stories. The Law Review is interested in publishing stories about personal experiences or lessons learned in legal practice, unique clients or enlightening client interactions, or enlightening episodes in legal education. In this introductory issue of the UMKC Law Review's stories section, we have been fortunate to collect stories from some of the founding parents of the storytelling movement and some of its best contemporary practitioners.

Download the entire article from SSRN here.

Literature and Law Conference at John Jay College of Criminal Justice

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

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

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

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

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

Precious Ramotswe, the TV Star

Alexander McCall Smith's novels are headed for the small screen. The No.1 Ladies Detective Agency will star Jill Scott as Precious Ramotswe, the thoughtful sleuth of Mr. Smith's series. Meanwhile, Mr. Smith, a former professor of medical law, is still writing. He has just finished his eighth book in the Ladies Detective Agency series,and has three other series underway: the 44 Scotland Street series, the Sunday Philosophy Club series, and the Von Igelfield Series. Visit his website here.

Journalism and Murder

The Guardian considers how journalists today present murderers, and may, with hindsight, tend to exaggerate the circumstances of their everyday lives.

Different newspapers emphasise different aspects....The Guardian, for example, ran "profiles" of Wright and Dixie. The first "lived in a world that centred around his local pub and golf club, where regulars knew him as a quiet, unassuming guy who dressed well". Dixie was known "as an ordinary guy" whose latest girlfriend recalled "a 'normal' sex life, which occasionally got 'a bit rough' but nothing more".At the other extreme, red-top papers emphasise the abnormality of a murderer. Words such as evil, monster, beast, sick, vicious, brute, and fiend are scattered randomly, as though to ward off evil spirits. Anything that might seem ordinary is given sinister connotations. The stuffed toys in the bedroom Wright shared with his partner are "bizarre"; a front door isn't just a front door but "an entry to evil". Past relationships are portrayed as dysfunctional. After Bellfield's conviction, the News of the World featured a former partner who suffered "10 years of horror", while the Sunday Mirror had his daughter recalling how he "gave her vodka to drink at 10 ... and mustard powder to eat".

The piece contrasts George Orwell's comments on murder in a 1946 essay published in News of the World with what reporters write today. A thoughtful piece.

Another "Saint" Series?

Nehst Studios is backing a new take on a television version of "The Saint", the character created by Leslie Charteris (Leslie Charles Bowyer-Yin), and first brought to life on the small screen by Roger Moore (later to inherit the mantle of ("Bond. James Bond"). Actor James Purefoy might personify The Saint (Simon Templar) this time around. Prior to tv, of course, the character appeared in a number of films, and in 1997 Val Kilmer essayed the title role. The Saint character recalls Robin Hood, taking from the rich and giving to the poor, righting wrongs and doing justice behind the scenes. However, he does so in an extremely selective fashion. And the Saint has, as the British would say, a very dodgy past, unlike Robin Hood, who in many retellings is presumed to be a nobleman, hiding his real identity from the Sheriff of Nottingham. Here's a page devoted to The Saint.

Read more here in a story from The Hollywood Reporter (registration required).

Magna Carta Back On Display In DC

The AP notes that that copy of Magna Carta previously owned by Ross Perot, and auctioned for more than $21 million last year, is back on display at the National Archives. The purchaser, David Rubenstein of the Carlyle Group, has put it on permanent loan for the nation to enjoy.

Forthcoming Conference on Literature and Law at John Jay College of Criminal Justice

From Andrew Majeske comes this announcement:

JOHN JAY COLLEGE OF CRIMINAL JUSTICE'S LITERATURE AND LAW CONFERENCE, FRIDAY, APRIL 11, 2008

FOR MORE INFORMATION INCLUDING REGISTRATION FORM AND HOTEL INFORMATION PLEASE GO TO http://literatureandlaw.blogspot.com.
Schedule:

8:15-9:00 Check in & Registration. Continental Breakfast.

9:00-10:15 First Set of Panels

First Panel: Justice Beyond Law, Panel Chair Bettina Carbonell, John Jay College of Criminal Justice (Room 636)

Dianna George, Carleton University, Canada, "Bear Experience: the power of ursus major in Cree life"

Brian Lockey, St. John's University, "Equitie to measure: Conscience among the Amazons in Edmund Spenser's The Faerie Queene measure":

Mina Suk, Johns Hopkins University, "Mercy's Madness: Spectatorship in St. Augustine's Confessions

Second Panel: Crime & Fiction, Panel Chair: Caroline Reitz, John Jay College of Criminal Justice, English Department (Library Classroom)

Lynn Penrod, University of Alberta, "What We Learn About Culture When We Talk About Procedure: Italian Police Procedurals and Their Place in Contemporary Italian Culture"

John Barton, University of Missouri-Kansas City, "Antebellum Crime Fiction and the Anti-Gallows Movement"

Neil C. Sargent, Carleton University (Department of Law), Ottawa, Canada "Truth, Justice and Method: The Representation of Rationality in the Fictional Worlds of Sherlock Holmes and Sam Spade"

Third Panel: Rights, Power & Resistance, Panel Chair: Allison Pease, John Jay College of Criminal Justice (Room 630)

Monica Lott, The University of Akron, "Funeral Practices of the 1930s and the Resultant Power Structures as Reflected in The Grapes of Wrath"



Chris Brown, University of Maryland, "'In the Name of Many Slaves': The Right to Petition and the Beginning of the Black Literary Tradition."

Alicia Mischa Renfroe, Middle Tennessee State University, "Leaving Justice to Chance: Gendered Justice in Edith Wharton's The Reef"

10:15-10:30 Coffee/Tea Break

10:30-11:45: Second Set of Panels/Discussions

First Panel: Law & Society, Chair: Professor Kyoo Lee, John Jay College of Criminal Justice (Room 636)

Thomas O. Beebee, Pennsylvania State University, "Can Law-and-Humanities Survive Systems Theory?"



Sinkwan Cheng, John Jay College of Criminal Justice, "Rethinking Autonomy and Heteronomy in a Global Context: Paul, Hegel, Badiou, and Confucius on the Fulfilment of the Law."



Bennett Capers, Hofstra Law School, "On Justitia, Race, Gender, and Blindness"

Second Panel: Staging the Law, Panel Chair: Margaret Tabb, John Jay College of Criminal Justice (Room 630)

Dwight Watson, Wabash College, "The Lawyer as Storyteller: Modes of Persuasion in the Courtroom and on the Stage."

Harry Keyishian, Director, Fairleigh Dickinson University Press "Shakespeare, Genre, and Punishment Theory"

Robin Stewart, University of California, Irvine, "Richard II and the English Constitution: A Literary-Legal Casebook"

Roundtable Teaching Literature and Law to Undergraduates: Methods and Objectives: Panelists: TBA (Library Classroom)

11:45-12:45: Lunch Room 610

12:45-1:00 Address by President Jeremy Travis, John Jay College of Criminal Justice, Room 630

1:00-1:30 Professor Chris Suggs, John Jay College of Criminal Justice: Introductory Remarks, Room 630

Professor Richard Weisberg, Benjamin Cardozo School of Law: Title of Talk TBA



1:30-1:45 Break



1:45-3:00 Third Set of Panels/Discussions

First Panel: Comparative Law, Panel Chair: TBA (Room 630)

Basuli Deb, Quinnipiac University, "Macaulay, Manu, and Writing Justice for Indian Women: Marital Rape in the Life Writings of Phoolan Devi"



Patrick Lenta, University of KwaZulu-Natal, South Africa, "Law, Police, Violence: Subject Formation and Resistance in Bloke Modisane's Blame"



Oluwole Coker, University of Ibadan, Nigeria , and Adesina Coker, Obafemi Awolowo University, Ile-Ife, Nigeria, "Folklore As 'Folklaw' In Yoruba Indigenous Epistemology"



Second Panel: Law, Nation & Empire, Panel Chair: Professor Chris Suggs, John Jay College of Criminal Justice (Library Classroom)



Peter Leman, University of California, Irvine, "Lex Britannica:

Empire, Positive Law, and Augusta Webster's The Sentence."



Edward Plough, Purdue University, " "Shakespearean Idiots and Prerogativa Regis: A Study of the Connection Between Elizabethan Law and Shakespeare's Poetic Strategy."



Yofi Tirosh, New York University Law School, "Narratives of Law and Hard Times: How Judicial Conceptions of the Nation's Time Shape the Law."



Roundtable: Literature and Law: What Texts Should We Be Using? Panelists: TBA (English Department Conference Room – Room 1281, North Hall)



3:00-3:15 Break



3:15-4:15: Keynote Address: Professor Brook Thomas, UC Irvine, "The Legal and Literary Complexities of US Citizenship around 1900." Room 630

4:15-5:15: Reception Sponsored by the Law and Literature Journal (published by the University of California Press for the Benjamin Cardozo School of Law): Room 610

FOR MORE INFORMATION INCLUDING REGISTRATION FORM AND HOTEL INFORMATION PLEASE GO TO http://literatureandlaw.blogspot.com.

The Development of U. S. Obscenity Law

Stephen Gillers, New York University School of Law, has published "A Tendency To Deprave and Corrupt: The Transformation of American Obscenity Law From Hicklin to Ulysses II," in volume 85 of the Washington University Law Review (2007). Here is the abstract.

How is it that between 1922 and 1934, James Joyce's Ulysses, considered the greatest English language novel of the twentieth century, could not get published in the United States without risk of prosecution and jail? How did American law get its ideas about obscenity and censorship so wrong? This Article closely analyzes the facts and the reasoning, or lack of reasoning, in R. v. Hicklin, the Queen's Bench decision of 1868 whose throwaway single sentence defining obscenity was reflexively adopted by American courts and became the greatest legal impediment to artistic freedom in the United States for nearly a century. The Article traces Hicklin's influence in the United States through the first third of the twentieth century. Using archival and other sources, it then closely examines the first court test of a part of Ulysses, in New York in 1920-21, a case that might have been won, but ended in the obscenity convictions of two women who published an obscure literary magazine. Their convictions impeded publication of the book until Morris Ernst's brilliant legal strategy gave his client, Random House, confidence that it could publish Ulysses in the United States without fear of prosecution. While the district court decision in Ernst's favor is rightly applauded for freeing Ulysses, the judge's reasoning does not resemble anything we can recognize as law. It is a decision for one book only. Even Augustus Hand's opinion for the Second Circuit affirming Ernst's victory, which cousin Learned joined and which contains the seeds of modern obscenity doctrine, required some jurisprudential sleight of hand to escape unfavorable circuit and Supreme Court precedent. The story from Hicklin to Ulysses II is both riveting in itself and as legal and cultural history. But it is also a lesson about harm done when government interferes with the intellectual and personal autonomy of individuals.

Download the entire Article from SSRN here.

The Last Enemy: A New BBC Thriller

Peter Tatchell of The Guardian reviews the BBC1 series The Last Enemy, finding it a cautionary tale.

Like millions of other viewers, I was gripped last night by the latest plot twists in BBC1's thriller series The Last Enemy, which depicts the dystopian future of a complete surveillance society, where everyone is data-based, ID-carded and CCTV-monitored 24/7. It is Big Brother writ-large, with all-pervasive remote sensors, facial recognition software, iris scans, vehicle tracking and eavesdropping.

Through an integrated Total Information Awareness surveillance system, state agents can know almost everything about everyone at the tap of a keyboard: their movements, purchases, emails and phone calls - even their diet, income and house value.

Far-fetched? Only by degrees. What is really scary about The Last Enemy is that it features monitoring technologies that the government, police and intelligence services are already using or considering using.

Read the entire review here.

[Cross-posted to the Seamless Web].

Eli Stone

A Review by Michael Asimow, Professor of Law Emeritus, UCLA School of Law

In the ABC television series that bears his name, Eli Stone is a senior associate at a large San Francisco law firm. He appears to be a competent attorney and, until recently, was highly valued by the firm. He’s engaged to Taylor Weathersbee, the daughter of the senior partner. Taylor is also a lawyer at the firm. Recently, however, Stone has learned he has a brain aneurysm and his behavior has become highly erratic. He frequently has scary delusions at work, such as being drawn into WW II battles or being attacked by small planes. His acupuncturist hasn’t figured out how to cure the delusions but thinks Stone is in fact a prophet.

OK, that’s the premise. How’s the execution? In my personal opinion, the show is horrendous. The writing is clunky, the jokes aren’t funny, and the acting is terrible. Taylor looks more like a Barbie doll than a human being. I don’t believe anybody will care about Eli Taylor and his aneurysm, or any of the other characters, so the show fails to create the necessary empathy between viewers and characters. The delusion jokes (he dives under the conference table during a partners’ meeting to avoid being attacked) weren’t funny the first time around and are excruciating each time they’re repeated. (For balance, I do think the role of Eli’s secretary Patti is well written and acted, and quite funny).

I believe “Eli Stone” was inspired by the highly successful “Ally McBeal” series. If you liked Ally, you just might like “Eli Stone” because of the fantasy delusion scenes and the heavy use of contemporary music. But if you disliked “Ally McBeal” as I did, you’ll hate “Eli Stone”—both the character and the series—which has none of the winning characters, excellent acting, or overall quirkiness of the “Ally” series.

Now there’s the question of accuracy. Nobody expects a TV series or a movie about lawyers to be accurate. Pop culture is intended to entertain, amuse, and make money. The work of real lawyers is indescribably boring almost all of the time and nobody wants to see a TV show that accurately describes it. Sometimes entertainment has to trump accuracy. But there are limits. And this show transgresses them.

In the first episode, Eli switches sides in the middle of a product liability case when he realizes that the plaintiff is an old girlfriend. He represents her against his own firm, freely using the information he learned from representing the defense, and obviously without seeking the permission of the pharmaceutical company he’s been representing. The writers liked that gimmick so much they repeat it in the third show in which Eli suddenly starts representing the mother in a child custody case in which Taylor represents the father. Of course, everyone accepts these conflicts without blinking. Now if the writers asked Eli Stone to fly to the moon on gossamer wings while investigating a case, most people would say, hey, that’s really stupid. Lawyers don’t do that. And these conflicts of interest in the first and third episodes are in that category. They are so beyond anything imaginable that they are just plain stupid. And that’s without counting the second episode in which a workers’ comp case is tried to a jury.

I like lawyer pop culture, and wish I could find something favorable to say about “Eli Stone”—the show or the character—but I just can’t. I t seems pretty obvious to me that this show won’t find an audience and will vanish unmourned into that vast rubbish bin of failed and forgotten TV series. But then, I said the same thing about “Ally McBeal,” so what do I know?

Eli Stone

Several entertainment critics have already reviewed Eli Stone, ABC's new legal drama, and find it either "quirky" and original, or run of the mill, or truly awful. I vote for truly awful, for a number of reasons.

Eli Stone is an associate at a white shoe firm in San Francisco, rapidly on the way up, engaged to the boss's daughter. Everything looks great. Then he starts seeing and hearing things, and his life falls apart. In an attempt to keep control, he refuses to tell his managing partner about the problem, which turns out to be an inoperable brain aneurysm (his brother, the doctor, gives the diagnosis. If I had been the patient, much as I love and trust my brother, I would have gone for a second opinion. And then a third). The condition causes hallucinations that make it nearly impossible for him to work, causing all sorts of havoc for him and his clients, and ultimately the firm. While we are, I suppose, supposed to find his visions meaningful--he certainly does--I would be profoundly disturbed to discover that MY attorney was having visions. And I would certainly be unhappy to discover that he hadn't told his firm, and that he was continuing to practice.

First, what seems at first glance to be original about the show has actually been tried, with more success by others, including David E. Kelley. Eli, the lead character, hears voices and music (mostly George Michael's) and sees people and events that aren't there. Remember David E. Kelley's Ally McBeal? She heard and saw things that weren't there. Remember the character of Billy, Ally's old love? He suffered from a brain tumor. Remember John Cage? He loved Barry White. Put them all together and you have Eli's situation. Others have also tried the dramedy musical before Eli Stone, without much success (remember Stephen Bochco's Cop Rock?)

Eli's discovery of his brain aneurysm puts him in a quandary--how long does he have to live? He decides to re-evaluate his life. So far, so good--but the idea that the main character should re-evaluate his life and his beliefs is hardly new. Even the notion that a lawyer, a corporate lawyer (the ultimate symbol of the bad actor, and I mean that figuratively, not literally), should do so in the face of physical stress is hardly new. Think only of the film Regarding Henry.

So many of the supporting characters are cliches. The pretty girlfriend lawyer, even though she seems to be quite nice, is a standard--and she actually dumps him in an early episode when she discovers he's ill. Nasty. The flaky female first year associate is a cliche. When is Hollywood going to forego giving us a choice between capable female lawyers who cannot commit to both relationships and successful careers or idiot female lawyers, by the way? The smart-aleck but capable black female secretary (Loretta Devine, who is wasted in the role) is overdone. The Chinese acupuncturist who isn't really all that Chinese (educated at UC Berkeley and with a fake accent, solely for the cultural tourists)--overdone, and insulting. Even Eli's family is a cliche. He has a brother, who is a physician, and who indulges in his own conflicts of interests (and lies) by certifying Eli as fit for work. Oh dear.

Eli's aneurysm is the McGuffin that sends him out on his intellectual and emotional makeover. After a talk with Dr. Chin, the acupuncurist, he "discovers" that he might be a prophet, singled out to bring hope to the people by taking on the important cases, the ones that matter to the little people. During the discussion he objects that he doesn't believe in God, and Dr. Chin responds, "Sure you do--you believe in right and wrong," in other words, in the natural world, and in people, and in justice. Finally--something vaguely original. By this I mean the outing of Eli. He's a non-believer. Non-believers are not exactly thick on the ground on television these days, and haven't ever been easy to find. I think the last one was Ted Danson's Becker. Of course, the idea is that atheism ultimately is bad, since it's linked with corporate greed. This is something the writers should work on, but probably will not. Equating atheism, and corporate lawyering, and White Shoe law firms, is a cheap shot. Over and over, we get the message from these writers that only spirituality can save Eli, or indeed, anyone, from evil (read "lawyering"). One must believe in something, else one is Bad.

The scripts only get worse. As he gets religion, and discovers he's a prophet, Eli switches sides and represents the downtrodden, regardless of the fact that he's usually conflicted out of such representation. He manages--magically--to win these cases, proving, I suppose, that with right, and the right dose of goodness, on your side, you can win against the bad guys. This may be the message that the viewing audience wants to see and hear these days. It is by no means accurate, and it gives the impression that the "right thinking" lawyer who hear choirs singing but fails to understand the Model Rules does his client a big favor. Eli, whose ongoing conversion should show him the way, does nothing but lie about his health and his motives--to his supervisor, to his girlfriend, to his clients, and to himself. In this week's episode, he's being reported to the disciplinary commission, and none too soon.

I would have thought that this dreadful series would have been cancelled after the second week, but it's still on. I think it's because of the underlying message of religion and redemption. This show is not really about reclaiming the law. It's about reclaiming life. For people who need that message, Eli Stone should serve nicely. For the rest of us, it's back to Boston Legal, and maybe, Shark.

More On Fan Fiction

Jacqueline Lai Chung, William and Mary School of Law, has published "Drawing Idea From Expression: Creating a Legal Space For Culturally Appropriated Literary Characters," in volume 49 of the William and Mary Law Review. Here is the abstract.

This paper examines the influx of secondary creativity involving culturally iconic literary characters (i.e. Harry Potter fan-fiction) and considers whether, and how, copyright law should account for the unauthorized appropriation of these protected literary characters. Traditionally, the courts have held that characters are independently copyrightable if they meet one of two tests: the distinct delineation test espoused by Learned Hand in the Seventh Circuit opinion, Nichols v. Universal Pictures Corporation (1930), or the story being told test put forward by the Ninth Circuit in Warner Brothers Pictures v. Columbia Broadcasting System (1954). These existing standards for character protection focus on the rights and the entitlements of the original author. This paper argues that copyright law should do more to focus on the creative rights of readers, who often seek to employ iconic characters as tools for cultural dialogue and artistic expression. This shift towards readers' rights may require more than just the expansion of fair use principles over a greater number of secondary uses. What is required, more fundamentally, is a re-conceptualizing of the idea of protectibility in the first place. Certain iconic characters, because they are imbued with so much cultural meaning, are no longer singularly-owned forms of authorial expression; they have become, instead, collectively-owned concepts - tools for expression - in a society constantly engaged in creative dialogue. Hence, on the idea/expression continuum that allows copyright protection for expressions but not ideas, culturally-appropriated characters should fall more appropriately into the realm of the unprotected idea, and in this way, allow greater freedom for secondary uses.

Download the paper from SSRN here.

Meanwhile, J. K. Rowling and Warner Brothers are suing Steven Van Ark and his publisher over the Harry Potter Lexicon, a book based on Mr. Van Ark's website, claiming copyright infringement. Ms. Rowling plans to release her own Potterpedia in future. Mr. Van Ark's position is that Ms. Rowling cannot claim to own all works that mention her characters or works. That would bring literary criticism or commentary to a halt. Read more here.

Who's Your Daddy? Jefferson On Trial

William Hyland has published "A Civil Action: Sally Hemings v. Thomas Jefferson," in volume 31 of the American Journal of Trial Advocacy (2007). Here is the abstract.

Allegations that Thomas Jefferson had an affair and fathered at least one child with slave Sally Hemings have been discussed for two centuries. In this Article, the authors summarize a "mock" trial defense of Jefferson, concluding that the allegations are unproved by the greater weight of the evidence.

Download the article from SSRN here.

Joseph Slaughter, Associate Professor of English and Comparative Literature at Columbia University, has published Human Rights Inc.: The World Novel, Narrative Form, and International Law (Fordham University Press, 2007). Here's a description from the publisher's catalog.

In this timely study of the historical, ideological, and formal interdependencies of the novel and human rights, Joseph Slaughter demonstrates that the twentieth-century rise of “world literature” and international human rights law are related phenomena.
Slaughter argues that international law shares with the modern novel a particular conception of the human individual. The Bildungsroman, the novel of coming of age, fills out this image, offering a conceptual vocabulary, a humanist social vision, and a narrative grammar for what the Universal Declaration of Human Rights and early literary theorists both call “the free and full development of the human personality.”

Revising our received understanding of the relationship between law and literature, Slaughter suggests that this narrative form has acted as a cultural surrogate for the weak executive authority of international law, naturalizing the assumptions and conditions that make human rights appear commonsensical. As a kind of novelistic correlative to human rights law, the Bildungsroman has thus been doing some of the sociocultural work of enforcement that the law cannot do for itself.

This analysis of the cultural work of law and of the social work of literature challenges traditional Eurocentric histories of both international law and the dissemination of the novel. Taking his point of departure in Goethe’s Wilhelm Meister, Slaughter focuses on recent postcolonial versions of the coming-of-age story to show how the promise of human rights becomes legible in narrative and how the novel and the law are complicit in contemporary projects of globalization: in colonialism, neoimperalism, humanitarianism, and the spread of multinational consumer capitalism.

Slaughter raises important practical and ethical questions that we must confront in advocating for human rights and reading world literature—imperatives that, today more than ever, are intertwined.

Literature in the Health Law Curriculum

We missed this interesting piece when it first appeared, but we're trying to make amends now. Stacey A. Tovino, Hamline University School of Law, published "Incorporating Literature Into a Health Law Curriculum" at 9 MSU Journal of Medicine and Law 213 (2005). Here is the abstract.

Literature has had a long relationship with medicine through literary images of disease, literary images of physicians and other healers, works of literature by physician-writers, and the use of literature as a method of active or passive healing. Literature also has had a long relationship with the law through literary images of various legal processes, lawyers, and judges, works of literature by lawyer-writers, and the use of literature as therapy. How can the field of law and literature inform the study of health law? And how can the field of literature and medicine help the field of law and literature in this regard? This article shows how the descriptive, contextual, and narrative qualities of literature, literary nonfiction, and illness narratives can be used to enhance traditional case law, statutory, and regulatory approaches to teaching health law. Examples are drawn from Samuel Shem's The House of God, Aleksandr Solzhenitsyn's Cancer Ward, George Eliot's Middlemarch, and Anne Fadiman's The Spirit Catches You and You Fall Down.

Download the article from SSRN here.

For more resources on integrating law, medicine, and the humanities see the webpage for Tom Mayo's course here at Southern Methodist University School of Law and some materials that I have at my website on Law and the Humanities, for example, here.