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until a century after America's first copyright statute, relying until then on the common-law principles that protected unpublished works.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.

Bandes on Movies and the Rule of Law

Susan Bandes (De Paul University Collegeo of Law) has posted We Lost It at the Movies: The Rule of Law Goes from Washington to Hollywood and Back Again, forthcoming 40 Loyola of Los Angeles L. Rev. (2007) on SSRN. From the abstract:

This essay, written as part of a symposium on popular culture and the civil justice system, examines the vast gap between legal and popular discourse on the judicial role. The legal academy generally regards as uncontroversial the proposition that judicial interpretation cannot be value-free. Yet in popular discourse, the ideal judge is someone who leaves all prior attitudes behind, simply applying the law that is "out there" and that admits to only one possible outcome. Judges perceived to deviate from this ideal are at risk of being branded "activist." Members of the lay public - a majority of them, according to a recent survey - are upset about what they perceive to be activist judges. Perhaps more disheartening, pledging fealty to this unrealistic view of the judicial role remains de rigueur in the halls of Congress. This essay explores the connection between the depiction of the judicial role in popular media such as movies and television and the very similar caricature that still holds sway in more serious non-fiction venues, like Senate confirmation hearings and political campaigns. In popular venues, the judge is generally depicted either as a neutral or invisible placeholder for a fixed and determinate rule of law, or as biased, vulgar, or downright villainous. Drawing from legal theory, narrative theory, psychology, and prior work on popular culture and media studies, I argue that the simplistic notion of judges and judging that currently dominates the discourse is inherently conservative and hegemonic, and suggest that this state of affairs poses dangers for the rule of law and the evolution of the judicial system.

Recent Book on Trials, Evidence, and Victorian Literature

A recent book edited by Jan-Melissa Schramm and Gillian Beer has been published entitled Testimony and Advocacy in Victorian Law, Literature and Theology (Cambridge, 2006).

From the book description:

This original and wide-ranging study shows how changing attitudes to evidence, trial and revelation in law and theology had a profound impact on literary narrative in the nineteenth century. Jan-Melissa Schramm, who is both a lawyer and a literary critic, argues that authors of fiction created a style of literary advocacy that both imitated, and reacted against, the example of their story-telling counterparts of the criminal Bar, and traces the ongoing debate over rules of evidence, eye-witness testimony and codes of ethical conduct that helped shape Victorian realism as a narrative form.

Lemon on Shakespeare, Law, and Rebellion

Rebecca Lemon has published the book Treason by Words: Literature, Law, And Rebellion in Shakespeare's England (Cornell, 2006).

From the book description:

Under the Tudor monarchy, English law expanded to include the category of "treason by words." Rebecca Lemon investigates this remarkable phrase both as a legal charge and as a cultural event. English citizens, she shows, expressed competing notions of treason in opposition to the growing absolutism of the monarchy. Lemon explores the complex participation of texts by John Donne, Ben Jonson, and William Shakespeare in the legal and political controversies marking the Earl of Essex’s 1601 rebellion and the 1605 Gunpowder Plot.

Lemon suggests that the articulation of diverse ideas about treason within literary and polemical texts produced increasingly fractured conceptions of the crime of treason itself. Further, literary texts, in representing issues familiar from political polemic, helped to foster more free, less ideologically rigid, responses to the crisis of treason. As a result, such works of imagination bolstered an emerging discourse on subjects’ rights. Treason by Words offers an original theory of the role of dissent and rebellion during a period of burgeoning sovereign power.

Lockey on Law and English Renaissance Literature

Brian C. Lockey, an assistant professor of English at St. John's University, has published the book Law and Empire in English Renaissance Literature (Camrbidge, 2006).

From the book description:

Early modern literature played a key role in the formation of the legal justification for imperialism. As the English colonial enterprise developed, the existing legal tradition of common law no longer solved the moral dilemmas of the new world order, in which England had become, instead of a victim of Catholic enemies, an aggressive force with its own overseas territories. Writers of romance fiction employed narrative strategies in order to resolve this difficulty and, in the process, provided a legal basis for English imperialism. Brian Lockey analyses works by such authors as Shakespeare, Spenser and Sidney in the light of these legal discourses, and uncovers new contexts for the genre of romance. Scholars of early modern literature, as well as those interested in the history of law as the British Empire emerged, will learn much from this insightful and ambitious study.

New Book on the Law in Shakespeare

There's a new book called The Law in Shakespeare (Palgrave Macmillan, 2007) edited by Constance Jordan and Karen Cunningham.

From the book description:

Focusing on a burgeoning area of interest, this new study illustrates relations between legal and theatrical discourses in a range of plays. The essays focus on four general areas of interest to establish the vital connections between early modern drama and law during this seminal period in their professionalization: legal language and its construction of social norms and realities, positive law and the status of nature; the concept of property and its contractual guarantees; and the creation of power and authority under the law.

Dolin's A Critical Introduction to Law and Literature

Kieran Dolin, Senior Lecturer in English, Communication and Cultural Studies at the University of Western Australia, has published the book A Critical Introduction to Law and Literature (Cambridge, 2007).

From the book description:

Kieran Dolin introduces the interdisciplinary study of law and literature and charts the history of the shifting relations between the two disciplines, from the open affiliation between literature and law in the sixteenth-century Inns of Court to the less visible links of contemporary culture. Each chapter is organised around a famous trial or literary-legal encounter. The wide resonance of such trials illuminates the cultural centrality of law, and the social responsiveness of literature. This book provides an accessible guide to one of the most exciting areas of interdisciplinary scholarship today.

Nables on Law, Literature, and the Civil War

Deak Nabers has published Victory of Law: The Fourteenth Amendment, the Civil War, and American Literature, 1852--1867 (J. Hopkins, 2006) .

From the book description:

In Victory of Law, Deak Nabers examines developing ideas about the nature of law as reflected in literary and political writing before, during, and after the American Civil War. Nabers traces the evolution of antislavery thought from its pre-war opposition to the constitutional order of the young nation to its ultimate elevation of the U.S. Constitution as an expression of the ideal of justice -- an ideal embodied in the Fourteenth Amendment.

Nabers shows how the intellectual history of the Fourteenth Amendment was rooted in literary sources -- including Herman Melville's Battle-Pieces, Harriet Beecher Stowe's Uncle Tom's Cabin, and William Wells Brown's Clotel -- as well as in legal texts such as Somerset v. Stewart, Dred Scott v. Sandford, and Charles Sumner's "Freedom National" address. Not only were prominent writers like Ralph Waldo Emerson and Frederick Douglass instrumental in remapping the relations between law and freedom, but figures like Sumner and John Bingham helped develop a systematic antislavery reading of the Constitution which established literary texts as sources for legal authority.

This interdisciplinary study sheds light on the transformative significance of emerging legalist and constitutionalist forms of antislavery thinking on the literature of the 1850s and 1860s and the growing centrality of aesthetic considerations to antebellum American legal theory and practice -- the historical terms in which a distinctively American cultural identity was conceived.

More on the Image of Judges in Popular Culture

Susan Bandes of DePaul University College of Law has published "We Lost It At the Movies: The Rule of Law Moves From Washington to Hollywood and Back Again," as part of a symposium in volume 40 of Loyola of Los Angeles Law Review. Here is the abstract.

This essay, written as part of a symposium on popular culture and the civil justice system, examines the vast gap between legal and popular discourse on the judicial role. The legal academy generally regards as uncontroversial the proposition that judicial interpretation cannot be value-free. Yet in popular discourse, the ideal judge is someone who leaves all prior attitudes behind, simply applying the law that is “out there” and that admits to only one possible outcome. Judges perceived to deviate from this ideal are at risk of being branded “activist.” Members of the lay public - a majority of them, according to a recent survey - are upset about what they perceive to be activist judges. Perhaps more disheartening, pledging fealty to this unrealistic view of the judicial role remains de rigueur in the halls of Congress. This essay explores the connection between the depiction of the judicial role in popular media such as movies and television and the very similar caricature that still holds sway in more serious non-fiction venues, like Senate confirmation hearings and political campaigns. In popular venues, the judge is generally depicted either as a neutral or invisible placeholder for a fixed and determinate rule of law, or as biased, vulgar, or downright villainous. Drawing from legal theory, narrative theory, psychology, and prior work on popular culture and media studies, I argue that the simplistic notion of judges and judging that currently dominates the discourse is inherently conservative and hegemonic, and suggest that this state of affairs poses dangers for the rule of law and the evolution of the judicial system.

Download the entire article from SSRN here.

Crime Noir From a French Scientist

Fred Vargas (Frédérique Audouin-Rouzeau) writes what the French call romans policiers. It started as a hobby, but her hobby has turned into best sellers. Her sleuth Chief Inspector Adamsberg features in two paperbacks currently available in translation in the U.S.: Seeking Whom He May Devour and Have Mercy On Us All. Read more here in a Globe and Mail article.

Balkin and Levinson on Law and the Humanities

Jack Balkin (Yale Law school) and Sanford Levinson (Texas Law School) have posted Law and the Humanities: An Uneasy Relationship, 18 Yale J. of Law & the Humanities 155 (2006) on SSRN. Here's the abstract:

In 1930 legal professionals like Judge Learned Hand assumed that law was either part of the humanities or deeply connected to them. By the early twenty-first century, this view no longer seems accurate, despite the fact that legal scholarship has become increasingly interdisciplinary. Instead law has moved closer to the social sciences. This essay discusses why this is so, and why the humanities exist in an uneasy relationship with law and contemporary legal scholarship.

No matter how often the legal academy embraces skills and knowledges external to law, law's professional orientation - and the fact that law is taught in professional schools where most students will not become academics - continually pulls legal scholarship back toward an internal attitude toward law and recourse to traditional legal materials. As a result, law remains far more like a divinity school - devoted to the preservation of the faith - than a department of religion - which studies various religions from multiple perspectives. To the extent that the contemporary disciplines of the humanities view law externally or in ways inconsistent with its professional orientation, they are merely tolerated in law schools rather than central to legal study. More generally, because law is a professional field, it resists colonization by other disciplines that view law externally. Instead, law co-opts the insights of other disciplines and turns them to its own uses.

Ironically, law's thoroughly rhetorical nature, which strongly connects it to the traditions of the humanities, places the contemporary disciplines of the humanities at a relative disadvantage. Law uses rhetoric to establish its authority and to legitimate particular acts of political and legal power. Law's professional orientation pushes legal scholars toward prescriptivism - the demand that scholars cash out their arguments in terms of specific legal interpretations and policy proposals. These tasks push legal scholars toward technocratic forms of discourse that use the social and natural sciences more than the humanities. Whether justly or unjustly, the humanities tend to rise or fall in comparison to other disciplines to the extent that the humanities are able to help lawyers and legal scholars perform these familiar rhetorical tasks of legitimation and prescription.

Capers on Wright's Native Son

Professor I. Bennett Capers (Hofstra Law School) has posted The Trial of Bigger Thomas: Race, Gender, and Trespass, 31 NYU Review of Law and Social Change 1 (2006) on SSRN.

Abstract:

This article examines Richard Wright's Native Son - which ends with its
protagonist Bigger Thomas awaiting execution for the rape and murder of
a white woman - to offer three interrelated close readings that go
beyond the usual law-and-literature approaches. It examines the three
"real life" cases that informed Wright as he was writing Native Son -
the trial of Robert Nixon, the Scottsboro Boys case, and the prosecution
of Leopold and Loeb - and demonstrates that Native Son, more than simply
problematizing criminal justice issues, foregrounds the way in which
society and the law actively participate in the construction(s) of race
and gender, and challenges the traditional utilitarian and retributive
justifications for punishment. The article posits that the real crime
motivating Bigger's prosecution is not murder and rape, but a violation
of what the author terms the "white letter law" of "trespass."

Although the text that motivates the article is Native Son, the goal of
the article is significantly larger. Much of the criticism of the
law-and-literature movement centers around claims that it lacks
discipline and boundaries. Through its explication of Native Son, this
article redirects such thinking about law-and-literature by suggesting
that only wider landscapes, a new critical geography, will reinvigorate
the discipline.

The Pleasures of Crime Noir

Barry Hannah, a professor at the University of Mississippi, writes about the pleasures, and the importance, of crime noir, in the Oxford American. Read his essay online.

Fellowship Opportunity

CENTER FOR THE STUDY OF LAW & CULTURE FELLOWSHIP

The Center for the Study of Law and Culture at Columbia University invites applications for residential fellowships for the 2007-2008 academic year to undertake research, writing and discussion in ways that span traditional academic disciplines. The CSLC welcomes scholars from any field who are interested in spending the academic year in residence at Columbia Law School working on scholarly projects relating to the CSLC's 2007-2008 theme: Executive Power.

We aim to appoint fellows whose scholarship addresses the critical and legal implications of expanding executive power not merely from the perspective of the state—such as the Bush administration's celebrated attempt to expand executive privilege vis-à-vis the other branches of US government—but from the perspective of power more generally. Since the post-structural assault on theories of power that posited it as emanating from a concentrated source, critical theory has conceptualized power as dispersed, capillary, and simultaneously productive and repressive. What might be the ramifications on legal and critical thought and practice at the intersection of new attempts to concentrate institutionally various forms and careers of power? We invite in particular scholarship whose focus is outside the US and lies at the critical conjuncture of law and culture. Fellows will be required to present an original paper from their research and to participate in a year long colloquium on the same topic.

The Law & Culture Fellowship is available to senior graduate students and post-doctoral candidates, including untenured faculty.

Founded in the fall of 2000, the Center for the Study of Law and Culture is an initiative at Columbia Law School designed to facilitate interdisciplinary study, research and scholarship on the intersections of law and culture. Our goal is to make the CSLC an institutional site for coordinating and coalescing the important, yet dispersed, interrogations of the relationship between law and culture that are already being undertaken across disciplines at Columbia University. By promoting and providing a home for cross-disciplinary engagement and collaboration, the CSLC will enrich each of our individual projects in law and culture studies.

Fellows will receive a stipend of $30,000, an office, computer, eligibility for university housing, and full access to university libraries, computer systems and recreational facilities. Fellows will be expected to participate in CSLC activities including presentation of a paper at the Center's Colloquium Series, and assistance in organizing Center events.

Applicants should submit:
1- a curriculum vitae
2- a writing sample (in the English language, about 25 pages in length)
3- a research statement (of approximately 1,000 words) that:
- describes the proposed work during the fellowship period
- explains the project's significance to the topic of Executive Power
- sets forth its interdisciplinary nature
4- TWO letters of recommendation (if sent with application, letter should be sealed in letterhead envelope and signed over the flap by referee). If more than two are sent, it is not guaranteed that all letters will be read.

Applications must be received at our office no later than February 15, 2007. E-mail applications will be accepted. Letters of recommendation may be sent under separate cover. Incomplete applications will be immediately disqualified.

Direct questions and application materials to:
Center for the Study of Law and Culture
Columbia University
435 W. 116th Street
New York, N.Y. 10027
USA
culture@law.columbia.edu

Women, people of color, non-US and independent scholars are particularly invited to apply.

The Chicago Historical Homicide Project

Leigh Buchanan Bienen, Northwestern University School of Law, has published "The Record Keepers" in volume 124 of TriQuarterly Journal (2006). Here is the abstract.

"The Record Keepers" by Leigh Buchanan Bienen describes the evolution of the Chicago Historical Homicide Project, beginning with the discovery of the preservation of a set of original police records of homicides in Chicago over the period 1870-1930, a time of enormous political, economic, and social activity. All 14,000 cases, both the original narrative case summaries and the new coded, quantitative files, are available to be downloaded at homicide.northwestern.edu, along with contemporaneous legal documents and reports, publications and commentary on the cases and the period, and photographs from the period. The homicide cases include the names of defendants and victims, addresses, and evocative details leading to other sources. "The Record Keepers" introduces "The Violence," a Special Issue of Triquarterly (No. 124) on Law and Literature, which includes articles by law professors, poets and novelists, legal historians, humanists and others. "The Record Keepers" and the other essays reflect upon the challenges and rewards of engaging in the reconstruction and reimagination of the past, beginning with legal documents and court records.

Download the entire paper here.

Celebrating the Canon

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

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

Download the entire paper here.

Are Recipes Copyrightable?

Christopher J. Buccafusco, University of Chicago Law School, discusses the question in "On the Legal Consequences of Sauces: Should Thomas Keller's Recipes be Per Se Copyrightable?" Here is the abstract.

The restaurant industry now takes in over $500 billion a year, but recent courts have been skeptical of the notion that one of its most valuable assets, original recipes, are subject to copyright protection. With more litigation looming and the contours of the debate insufficiently mapped out, this article establishes the appropriate groundwork for analyzing the copyrightability of recipes. I show that, contrary to recent appellate court opinions, recipes meet the statutory requirements for copyrightability. I argue, by analogizing to musical compositions, that written recipes work to satisfy the fixation requirement of copyright law just as musical notation does for compositions. Accordingly, the “dish” is the final work of authorship, the recipe is the fixation medium, and the various cooking techniques - braising, grilling, sous vide - are the potentially patentable processes. In order to meet copyright law's requirement of originality, though, the work must be deemed expressive. To determine whether and how recipes are expressive, I interviewed some of America's best chefs, each of whom claimed to use recipes to express various ideas and emotions.

Since there are no doctrinal limitations to recipes' copyrightability, in Part II, I offer reasons for the late recognition as protectable works. First, I consider the marginalized status of the sense of taste in the history of Western aesthetic philosophy. For many philosophers, only objects that presented themselves to the eyes and ears, such as music, painting, and literature, could be truly beautiful. Partly out of the fear that fancy foods can lead to gluttony, Western, and more specifically Anglo-American writers have often tried to limit cuisine to its fundamentally nutritive components, further isolating it from the realm of creative expression. Furthermore, the producers of cuisine have been treated no better than their products. Throughout history cooking has been the province of lowly household servants and housewives, with only a select few chefs rising to the status of artisan. Chefs rose from the ranks of obscurity far more slowly than did writers, painters, and musicians. Finally, chefs have a long history of directly copying recipes and dishes from their predecessors, suggesting that the norms of Romantic original authorship formed much later in cuisine than in other arts.

In Part III, I return to the law to consider whether the copyright monopoly should be extended to culinary creations. Chefs are not likely to take serious advantage of copyrights, as the time and money necessary for suit would rarely be worth the benefit. The chefs I interviewed were uncomfortable with the idea of owning their recipes, and they all approved of others using their recipes, subject to certain limits. Increased innovation is also unlikely as a more robust intellectual property regime would likely inhibit chefs' willingness to experiment with other chefs' dishes. Furthermore, the public domain would not see any meaningful increase, because few chefs who currently keep their recipes secret will be persuaded to publish them to obtain the limited benefits of copyright. The article concludes by arguing that formal copyright protection is not necessary for culinary creation, because a vibrant system of social norms already exists to sanction plagiarism, encourage attribution, and reward innovation. Thus, although recipes meet the formal doctrinal requirements of copyright law, an extension of the monopoly is neither necessary nor appropriate at this time.

Download the entire paper from SSRN here.

Rap Lyrics and Murder Trials

Prosecutors are attempting to show that rap lyrics constitute a confession in the trial of Ronell Wilson for the murder of officers James V. Nemorin and Rodney J. Andrews over three years ago. It is not a novel argument, as this article from the New York Times shows. For more about rap lyrics, see this extremely selected bibliography.

Babb, Tracie Nicole, Rap Music’s Transformation in a Postmodern World (Dissertation, Howard University, 2005).

Best, Steven, and Douglas Kellner, Rap, Black Rage, and Racial Difference, 2 Enculturation (no pagination) (Spring 1999).

Fischoff, Stuart P., Gangsta Rap and a Murder in Bakersfield. Previously published as 29 Journal of Applied Social Psychology 795 (1999).

Hendershott, Heidi A., School of Rap: The Politics and Pedagogies of Rap Music (Dissertation, Pennsylvania State University, 2004).

Koloze, Jeff, Abortion and Rap Music: A Literary Study of the Lyrics of Representative Rap Songs, in Life and Learning, XIII: Proceedings of the Thirteenth University Faculty for Life Conference (Washington, DC, 2004).

Krohn, Franklin B., and Frances L. Suazo, Contemporary Urban Music: Controversial Messages in Hip-Hop and Rap Lyrics, 52 ETC: A Review of General Semantics 139 (1995).

Lanier, Douglas, Minstrelsy, Jazz, Rap: Shakespeare, African-American Music, and Cultural Legitimation, 1 Borrowers and Lenders: The Journal of Shakespeare and Appropriation (no pagination) (Spring 2005).

Loza, Steven, Milo Alvarez, Josefina Santiago and Charles Moore, Los Angeles Gangsta Rap and the Aesthetics of Violence, 10 Selected Reports in Ethnomusicology 149 (1994).

Peterson, Jerry, The Police in the Blues, Freedom Songs, and Rap, 3 The Mid-Atlantic Almanac 109 (1994).

Quinn, Eithne, “Who’s the Mack?” The Perfomativity and Politics of the Pimp Figure in Gangsta Rap, 34 Journal of American Studies 115 (2000).

Quinn, Michael, “Never Shoulda Been Let Out of the Penitentiary”: Gangsta Rap and the Struggle Over Racial Identity, 34 Cultural Critique 65 (1996).

Rose, Patricia Lorraine, Black Noise: Rap Music and Black Cultural Resistance in Contemporary American Popular Culture (Dissertation, Brown University, 1993).

Rose-Robinson, Sia, A Qualitative Analysis of Hardcore and Gangsta Rap Lyrics: 1985-1995 (Dissertation, Howard University, 1995)

Rosen, Ralph M. and Donald R. Marks, Comedies of Transgression in Gangsta Rap and Ancient Classical Poetry, 30 New Literary History 897 (1999).

Rosenthal, Debra J., ‘Hoods and the Woods: Rap Music as Environmental Literature, 39 Journal of Popular Culture 661 (2006).

The Music of Various Spheres

Ian Gallacher, Syracuse University College of Law, has published "Conducting the Constitution: Justice Scalia, Textualism, and the Eroica Symphony." Here is the abstract.

This article examines the three principle Constitutional interpretative approaches and compares them to similar interpretative doctrines used by musicians. In particular, it examines the theoretical underpinnings of Justice Scalia's "textualist" philosophy by trying to predict what results would obtain from application of that philosophy to a performance of the first movement of Beethoven's "Eroica" symphony.

The article does not declare the foundation of a new genre of legal hermeneutics, nor does it seek to announce a comprehensive interpretative framework that can solve problems of Constitutional or statutory interpretation. Rather, the article explores some fundamental principles of legal textual interpretation while, at the same time, avoiding the aggressive rhetoric and contentious social issues that can obscure the debate over textualism, the viability of a "Living Constitution" and the use of extra-textual information to aid in determining textual meaning.

Download the entire paper from SSRN here.

A Look at the Rhetoric of a Nineteenth Century Trial Narrative

John T. Parry, Lewis & Clark College Law School and Andrea L. Hibbard, Lewis & Clark College, have published "Law, Seduction, and the Sentimental Heroine: The Case of Amelia Norman," in American Literature, Vol. 78, No. 325, 2006. Here is the abstract.

This article examines the notorious mid-nineteenth-century American trial of Amelia Norman, who was acquitted - very much against the weight of the evidence - of attempting to kill the man who seduced her. In particular, we explore the role in the trial and its aftermath of the affective energies and cultural expectations set in motion by best-selling American sentimental novels like Hannah Foster's "The Coquette" and Susanna Rowson's "Charlotte Temple."

In Norman's case, once newspapers, defense lawyers, and reformers such as Lydia Maria Child recast the defendant as a sentimental heroine, the trial became about seduction, not attempted murder. The sentimental emplotment of Norman's life marshaled a powerful set of emotional responses and moral judgments on her behalf. For example, Norman claimed insanity. And since sentimental heroines are supposed to go mad when they are seduced and abandoned, the jury was prepared to interpret her symptoms according to her lawyers' very strategy for establishing her innocence. Ultimately, however, Norman embodied the plight of the sentimental heroine at the same time that she contested her fictional counterpart's fate. In this way, her trial spectacularized the disparity which the sentimental novel conjures up and displaces but never resolves.

Going further, the common law theory of coverture, which severely limited the legal personhood of married women, has received a great deal of scholarly attention. Cases like Norman's remind us that unmarried women were also subject to draconian constraints on their legal personhood. The tort of seduction is a key example. Legal historians trace the development of the seduction tort from its common-law origins, when men's property interest in women's bodies formed the basis of the cause of action, to 1851, when Field Code authors (including Norman's lawyer, David Graham) persuaded several states to grant seduced women standing to bring their own cause of action. Consequently, courts were forced to reckon with the seduced woman as a moral agent capable of consenting to sex. As trials like Norman's demonstrate, sentimental novels helped lay the groundwork for this shift in the law by elucidating a subjectivity for the seduced woman.

Yet the doctrinal implications of Norman's precedent-setting trial had a second, more ambiguous strain. Other women facing similar charges used the same legal strategy to gain acquittals in a substantial number of cases. Indeed, Norman's sentimental strategy proved so powerful that men on trial for killing their wives' seducers appropriated it to bring their own stories before juries and to reinforce male sexual norms through the so-called honor defense. In the end, then, Norman's trial fostered legal reform, but it also suggested - as Lydia Maria Child's fictionalization of the case in "Rosenglory" recognized - that only sustained and multifaceted efforts to change cultural as well as legal norms could improve the sexual status of women.

In addition to its legal, literary, and historical insights that it provides, we also intend this article to contribute to debates on the nature of scholarship in law and literature. Scholars such as Wai Chee Dimock have argued for a focus on the historical and historically shifting relations between law and literature - a view we endorse. Where we differ from Dimock is in our diversion of attention away from abstract ideas of law laid out by treatise writers and philosophers in favor of law experienced and manipulated by individuals. So, too, we are interested less in representations of concepts such as justice in legal and literary texts than we are in the ways in which literature (broadly conceived) can create provisional and fragile opportunities for concrete instantiations of justice and even generate legal change (for good or ill). We would argue that to the extent legal change motivates rather than simply mirrors cultural change, it needs literature to be effective. This project, then, responds to Gregg Crane's call for attention to the complex and slippery historical interactions of law and literature that shape and are shaped by an ever changing cultural idiom of justice. The extended story of Amelia Norman, in short, not only constitutes a case study in the inescapable interaction between the overlapping and interdependent discourses of law and literature, but also reveals the literary and legal consequences of that interaction.

Download the entire paper from SSRN here.

Robert M. Ireland mentions Amelia Norman's trial in his article "Privately Funded Prosecution of Crime in the Nineteenth Century United States."

Dang! Those Pesky Guilty Clients Again

Michael Asimow, UCLA Law School, and Richard Weisberg, Cardozo Law School, have published "When the Lawyer Knows the Client is Guilty: David Mellinkoff's 'The Conscience of a Lawyer', Legal Ethics, Literature, and Popular Culture," as UCLA School of Law Research Paper 06-44. Here is the abstract.

David Mellinkoff's 1973 book 'The Conscience of a Lawyer' concerned a classic puzzle in legal ethics: what should a criminal defense lawyer do when the lawyer is certain that the client is factually guilty, but the client insists on an all-out defense? Mellinkoff focused on the Courvoisier case, a notorious English trial in 1840 in which defense counsel's tactics created an enormous public scandal. Legal ethicists have struggled with these issues ever since that time and they remain unresolved. This article draws a distinction between strong and weak adversarialism and explains how these two normative positions guide a lawyer's tactical decisionmaking in the certainly-guilty client situation. The article suggests that lawyers should have discretion to choose between the strong and weak positions, depending on context and their personal conscience. Both popular culture and great literature provide surprisingly interesting perspectives on the strong vs. weak adversarialism dilemma. Literature casts doubt on whether a lawyer can ever know with the requisite certainty whether a client is guilty. It presents numerous models of successful strong adversarialists and unsuccessful weak adversarialists. Few literary lawyers manage to be both skilled advocates and decent human beings. American popular culture, on the other hand, presents an emphatic answer to the question of what a lawyer with a certainly guilty client should do. According to pop culture, the lawyer's job is to betray the client to make sure the guilty criminal is convicted, dishonored, or killed. Pop culture's no-adversarialism model is a universe few lawyers would care to inhabit but which reflects popular views on the relationship of lawyering to truth.

Download the entire paper from SSRN here.

Michael Asimow on the Image of the Adversarial System in Popular Culture

Michael Asimow, UCLA School of Law, has published "Popular Culture and the Adversarial System" in volume 2007 of the Loyola of Los Angeles Law Review. Here is the abstract.

This article addresses a puzzle: lawyers are the most distrusted and despised of all American professions, whereas the public has a much higher opinion of judges. Yet Americans believe strongly in the adversary system in which all the important procedural decisions during civil or criminal trials are made by lawyers. Even though people crave a justice system that discovers what really happened, they accept one that delivers only trial truth and procedural justice, not factual truth or substantive justice. This article explores various reasons why people might favor the adversary system despite their distrust of lawyers and their craving for truth, such as a belief in personal autonomy, a distrust of government officials, and a lack of knowledge about alternatives. However, the article suggests another possible reason: the influence of popular cultural portrayals of the trial process. Dating back to the days of history's greatest teacher of trial tactics - Perry Mason - media consumers have been taught that the adversary system delivers the truth. We can count on a great lawyer's cross-examination to reveal the identity of the real killer. Even though we hate and distrust lawyers, we want a good one by our side when we're in trouble or an aggressive one prosecuting the crooks. Countless films and television shows since Perry Mason's day have conveyed the same basic message, although in more sophisticated form. According to “cultivation theory,” people often extract information and form opinions based on fictitious stories told by pop culture media. Perhaps we derive our bone-deep belief in the adversary system from Perry Mason and the other great lawyers we've watched over the years.

Download the entire paper from SSRN here.

Cross posted to the Seamless Web.

What's Available in Law and the Humanities

I've updated my list of formal courses available in Law and the Humanities. It's available on my website here.

Images of Imprisonment

Jamie Bennett has published "The Good, the Bad, and the Ugly: The Media in Prison Films," at Howard Journal of Criminal Justice, Vol. 45, No. 2, pp. 97-115 (May 2006). Here is the abstract.

Generally, people have low levels of exposure to prisons through personal experience and therefore the media plays an important role in informing beliefs and actions. In particular prison films are an important and extensive form of media depiction. However, media depiction of crime and imprisonment has been criticised on ethical, political and social grounds. This article explores how prison films have depicted the relationship between the media, crime and punishment. It argues that this is a significant and integrated part of the prison film genre. It also argues that these representations are important both as a narrative device and in making the media a focus of pressure for reform.

Nicole Rafter also has some discussion of the prison film in chapter six of the second edition of her book Shots in the Mirror: Crime Films and Society (Oxford, 2006).

[Cross-posted to The Seamless Web]

Rashomon and Thinking About Criminal Law

Denis J. Brion, Washington and Lee University, has published "Pluralism: Rashomon and Contested Conceptions of Criminality" as Washington & Lee Legal Studies Paper No. 2006-11. Here is the abstract.

The 1951 Akira Kurosawa film, Rashomon, is famous for depicting four often radically different reports of a violent incident that took place in a grove of trees in twelfth century Japan, the reports of the three participants in the incident and of the one witness to it. By considering this seemingly puzzling depiction in light of advances being made in the field of cognitive science, each of these conflicting reports can be understood as being based on one of the four fundamental ways in which the human mind can place events in a cognitive frame and thereby provide the structure for individual human consciousness. In his 1978 text, Rethinking Criminal Law, George Fletcher provided a trenchant description of his thesis that “the criminal law is a polycentric body of principles”, bringing to light four fundamental ways in which the judiciary, by way of resolving particular disputes, determines the criminality of particular acts. Again, these four fundamental modes of determining criminality can be understood as being based on the four cognitive frames available for the structuring of consciousness. Because this polycentric nature can be identified across the various substantive areas of the law, this understanding provides a way of addressing the possibilities for developing a substantive jurisprudence of the law.

Download the entire paper from SSRN here.

"Picturing Justice", Web's First US Online Law and Film Journal, Ceases Publication

"Picturing Justice", the web's US first online law and film journal, has ceased publication. Several of its webeditors have been seeking a new home for it but so far have had no success. Meanwhile, PJ's archives remain available for its interested and faithful readers and we hope, for new generations of interested people to discover.

What Is It Like To Be Like That: New Paper in Law and Literature

Rob Atkinson, Jr., Florida State University School of Law, has published "What Is It Like to Be Like That?: The Progress of Law and Literature's 'Other' Project" as Florida State University College of Law's Public Research Paper No. 218. Here is the abstract.

A central interest of the modern law and literature movement has been how literature can show lawyers what it is like to be different from what they are - in a word, "other". This essay examines the course of that "other" project through three critical phases: the taxonomic, which purported to give lawyers an external account of others, the better to serve their own clients; the empathetic, which has tried to give lawyers an internal account of others, the better to enable lawyers to improve the lot of those others; and the exemplary, which holds up models of how lawyers themselves might be more firmly and effectively committed to the commonweal, particularly the good of others less well off. It argues that the law and literature movement should embrace this last phase of the "other" project, placing it at the center of the movement's mission and Plato's Republic at the core of its canon.

Download the entire paper from SSRN here.

Chronological Bibliography of Law & Literature Scholarship

With the help of Sam Weisberg, I have created a chronological bibliography of law and literature scholarship from 1982-present. It is certainly not 100% complete, as there are limits to Westlaw searching, but it hopefully will be useful.

It is available here.

Does Reading Literature Give You More Empathy?

The British Psychological Society reports the results of a new study on the effects of reading literature:

The more fiction a person reads, the more empathy they have and the better they perform on tests of social understanding and awareness. By contrast, reading more non-fiction, fact-based books shows the opposite association. That’s according to Raymond Mar and colleagues who say their finding could have implications for educating children and adults about understanding others.

Finding out how much people read is always difficult because it’s socially desirable for people to report that they read a lot. Mar and colleagues avoided this by asking 94 participants to identify the names of fiction and non-fiction authors embedded in a long list of names that also included non-authors. Prior research has shown this test correlates well with how much people actually read. Among the authors listed were Matt Ridley, Naomi Wolf (non-fiction), Toni Morrison and PD James (fiction).

The more authors of fiction that a participant recognised, the higher they tended to score on measures of social awareness and tests of empathy – for example being able to recognise a person’s emotions from a picture showing their eyes only, or being able to take another person’s perspective. Recognising more non-fiction authors showed the opposite association.

The researchers surmised that reading fiction could improve people’s social awareness via at least two routes – by exposing them to concrete social knowledge concerning the way people behave, and by allowing them to practise inferring people’s intentions and monitoring people’s relationships. Non-fiction readers, by contrast, “fail to simulate such experiences, and may accrue a social deficit in social skills as a result of removing themselves from the actual social world”.

However, a weakness of the study is that the direction of causation has not been established – it might simply be that more empathic people prefer reading novels.

The study is by R.A. Mar, K. Oatley, J. Hirsh, J. dela Paz, & J.B. Peterson, Bookworms Versus Nerds: Exposure to Fiction Versus Non-fiction, Divergent Associations with Social Ability, and the Simulation of Fictional Social Worlds, 40 Journal of Research in Personality 694-712 (2006). It is available here, but for a fee.

Hat tip: Ilya Somin.

Even More Harry Potter

Ruth Anne Robbins, Rutgers University School of Law, Camden, has published "Harry Potter, Ruby Slippers, and Merlin: Telling the Client's Story Using the Characters and Paradigm of the Archetypal Hero's Journey," in volume 29 of Seattle University Law Review (2006). Here is the abstract.

This article focuses on the relationship of mythology and folklore heroes to everyday lawyering decisions regarding case theory when the audience is a judge or panel of judges rather than a jury. It proposes the thesis that because people respond - instinctively and intuitively - to certain recurring story patterns and character archetypes, lawyers should systematically and deliberately integrate into their storytelling the larger picture of their clients' goals by subtly portraying their individual clients as heroes on a particular life path. This strategy is not merely a device to make the story more interesting but provides a scaffold to influence the judge at the unconscious level by providing a metaphor for universal themes of struggle and growth.

Download the entire paper here.

Crossposted to The Seamless Web.

Call For Proposals: Storytelling Conference in London Next July

A call for proposals for a conference entitled "Once Upon a Legal Time: developing the skills of storytelling in law" to be held at City University  London, UK from July 18 through July 20 of 2007 is going out. Here is a further description of the conference, provided by Ruth-Anne Robbbins, of Rutgers University School of Law, Camden.

Mastery of legal skills – legal analysis, writing, research and clinical skills – has long been part of American legal education. At present, most American law schools have full-time faculty who specialize in teaching in one or more of these areas. Correspondingly in the United States, there has been increasing focus on the importance of studying narrative from the practical standpoint. In recent years, academics from other common law system countries including the UK and Australia, have demonstrated an interest in developing similar legal skills education in their countries. For that reason, this conference seeks to foster collaboration and dialogue about teaching storytelling and other skills to students and practitioners in law.

This conference does not look to impose aspects of American legal education on other common law legal education systems. Rather, it seeks to explore both the role of narrative in legal practice, and curricular strategies that will prepare students to use story and narrative as they enter the practice of law. The conference seeks to bring together academics, practitioners and judges for this purpose.

Potential topics on the role of narrative in the practice of law may include:
-using storytelling in litigation;
-telling stories to clients; -the process of creating compelling legal stories as part of best practices;
-examining current models used to teach storytelling skills in education and/or practice;
-narrative in judicial opinions;
-narrative and negotiation;
-the place of storytelling in legal reasoning;
-storytelling in the legislative process;
-the difference between stories and narratives and which one is better for clients;
-whether storytelling models differ according to legal systems;
-the ethical limits of storytelling.

The conference will include 45-60 minute presentations as well as roundtable discussions. Proposals may indicate a preference for format. We also encourage people to present works in progress.
The deadline for submissions is November 27, 2006. Please submit a several paragraph description of the presentation discussing the goals for the presentation and the methodologies. All submissions should be sent, preferably electronically, to either:

Professor Steve Johansen
tvj@lclark.edu
Lewis and Clark Northwestern School of Law
10015 S.W. Terwilliger Blvd.
Portland, OR 97219
USA


Dr. Erika Rackley
erika.rackley@durham.ac.uk
Department of Law
Durham University
50 North Bailey
Durham * DH1 3ET
UK


Again, the deadline for proposal submissions is November 27, 2006.

When and Where: The conference will take place from Wednesday, July 18 (opening reception) to Friday, July 20, 2007 at City University Inns of Court Law School in London, UK. The Law School is in the historic Gray’s Inn, one of London’s four Inns of Court in existence since the 16th century. The building itself is steeped in royal history.

Costs to Participants: Because travel costs will be high for non-U.K. participants, we hope to keep conference fees low. We anticipate conference fee to be approximately $300.

Housing: We have reserved blocks of rooms at the Grange Holborn (GBP 195/night), and at the Clarendon Hotel (GBP 139/night). Both hotels are within easy walking distance of Gray’s Inn, the conference site, and are also within walking distance of many popular sites in London including the British Museum, Old Bailey, Trafalgar Square and Covent Garden. For more details about both hotels visit the Grange website: http://www.grangehotels.com.

The sponsors of the Conference are the City University, London, and the Legal Writing Institute. Please contact Professor Johansen, Professor Rackley, or Professor Robbins for more information.

Cross posted to the Seamless Web.