Play Verified As Shakespeare's (And Fletcher's)

According to experts, that "literary hoax" that Alexander Pope made fun of in The Dunciad is a hoax no more. It really is by Shakespeare--well, partly by the Bard, and partly by John Fletcher, who was no slouch himself when it came to writing works for the stage. Double Falsehood, in which Shakespeare actually meets Miguel de Cervantes, the man who shares his death year (1616) and possibly his death date (April 23), depending on how one calculates it, turns out to be a play in which the Bard of Avon had a hand. The Royal Shakespeare Company will perform it in 2011, the first time in four hundred years that audiences have been able to enjoy it.

History of Spanish Copyright Law

Jhonny Antonio Pabon Cadavid has published "Approximation to the Copyright History: Normative Antecedents (Aproximación a La Historia Del Derecho De Autor: Antecedentes Normativos)," at 13 Revista La Propiedad Inmaterial 59 (2009). Here is the abstract.

The legal protection of literary and artistic works has been institutionalized since the advent of the printing press. Prior to the copyright system we know today, there was a model of administrative privileges, which was set in the public law; so therefore it turned into an institution called literary property, which is in the private law. This study goes over of the legal protection developments that intellectual works have had, considering an important variety of conditions, regarding factors of spread, changing and understanding of the law notion. Above all we study the European models, to display its subsequent move toward America in the post independence period, with emphasis on the Latin American reception inthe first half of the Nineteenth Century, with a different schemes accord to the philosophical and politics projects of the new American republics. Highlighting the participation of the Colombian José María Torres Caicedo in the formation of the Berne Convention, and the English tradition of privileges placed in Colombia, similar to the Statute of the Queen Anne in the 1710th, which remained until the late Nineteenth Century.

Download the article from SSRN at the link.

Jane Austenisms

From the Chronicle of Higher Education, a consideration of all that derivative Jane Austen literature by Amy Leal.

Teaching Storytelling In Law Schools

Nancy B. Rapoport, William S. Boyd School of Law (UNLV), has published "Where Have All the (Legal) Stories Gone?" at M/E Insights 7 (Fall 2009). Here is the abstract.

This essay examines whether law schools are doing a good job of teaching the art of storytelling to law students.

Download the article from SSRN at the link.

The Law in "Deadwood"

Michael B. Kent Jr., and Lance McMillian, Atlanta's John Marshall Law School, have published "The World of Deadwood: Property Rights and the Search for Human Identity." Here is the abstract.

The year is 1876. Gold has been discovered in the fledgling camp of Deadwood, bringing hordes of new arrivals each day seeking to strike it rich. The allure of wealth is coupled with the allure of complete autonomy. There is no law. Although part of the United States, Deadwood is unaffiliated with any existing territorial government. It is free. Or is it? From this backdrop, HBO’s highly-acclaimed drama Deadwood springs forth. Series creator David Milch is frank about his mission behind the story: to explore how order arises from chaos. The assignment and protection of property rights play central roles in this journey from anarchy to law. In the world of Deadwood, where ownership of land can be worth millions, law’s promise and law’s pitfalls are both on full display. The stakes are high; the lessons are many.

Stories are powerful teaching tools because they marry information and context. Film and television also supply a picture of law in action, marshalling the power of the visual to make law more real, less abstract. Because of its rich complexity and invocation of ancient debates over what property is and who rightly can be deemed to own it, the three-season run of Deadwood provides fertile ground for this type of interdisciplinary study. Deadwood demonstrates that the interrelationship between property and law is complex, with many moving pieces and many valid points and counterpoints. Property has both naturalist and positivist attributes, it both pre-exists and coexists with the state, it is about economic power and personal identity, it supports both an individualist and communitarian mindset. Accounting for all of these strands in a balanced way is a lot to ask of legal institutions, especially inasmuch as the strands often are in competition with one another. Deadwood suggests that, while law is certainly a component piece in the puzzle of human relations, it alone cannot do all that we ask of it. And therein may lie the ultimate lesson: Law can be a blessing, but the human condition requires more.

Summer School--Cultural Study of the Law

*Synergies: Law, Language and Culture*
The Second International Osnabrueck Graduate Summer School on the Cultural Study of the Law August 4th-August 18th http://www.blogs.uni-osnabrueck.de/lawandculture

*Invitation*

The Second International Summer School on the Cultural Study of the Law will be held from this August 4th to August 18th in Osnabrueck, Germany.
Hosted by the Institute of English and American Studies, in collaboration with the University of Copenhagen, the Birkbeck School of Law at the University of London, York University, Toronto, and the European Legal Studies Institute at the University of Osnabrueck, the summer school seeks to bring together graduate students from around the world to promote and examine the interdisciplinary study and research of law and culture.

Graduate students pursuing a PhD in the humanities and advanced students of the law who are interested in the interdependence and interaction between law and culture are invited to apply. During the two week program, students will partake in a unique experience of scholarly collaboration and exchange through workshops, public lectures, panel discussions, excursions and a final symposium. Participating faculty in this year's summer school include:

*Rosemary J. Coombe (York University, Toronto) *Helle Porsdam (University of Copenhagen) *Fiona Macmillan (Birkbeck School of Law, University of London)

with more faculty to be announced in the upcoming weeks.

The School will offer a total of four workshops for 20-25 international graduate students over a two-week period. The first workshop will be concerned with basic theories, concepts and perspectives within the emerging field of cultural legal studies, focusing specifically on the range and potential of interdisciplinary studies and approaches. The remaining three workshops will focus on key areas of critical inquiry that have been central to the dynamic development of the field and are of particular importance within an European context:

-->The relation between human rights and cultural rights

-->Historical development and current debates about culture as heritage,
property and as a resource and its legal definition and regulation (including concepts like copyright, intellectual property and authorship)

-->The cultural presence and representation of the law and the possible
emergence of a transnational legal culture


*Participant Eligibility*

Doctoral candidates in literature, the law, the arts, the humanities, and the related social sciences are invited to apply, as are advanced students pursuing a J.D. or its equivalent (such as the L.L.B). Young scholars or junior faculty members who have received a Ph.D. or corresponding degree in the last five years are also eligible. There are openings for approximately 25 students to participate in the summer school.

*Application Process*

Applicants should complete:

-->An application form, indicating preferred workshop that can be found
at: http://www.blogs.uni-osnabrueck.de/lawandculture/admission/
-->A statement of purpose no more than two pages long, describing
-->current
scholarly interests, previous research, and plans for how the Summer School would specifically further these interests and plans.

-->An up-to-date curriculum vitae.

Students interested in taking part in the Summer School should submit their applications no later than April 30, 2010. Detailed information about the school, the workshops, international faculty, admission and fees can be found at:

http://www.blogs.uni-osnabrueck.de/lawandculture

*Questions*

Questions about the Osnabrueck Summer School on the Cultural Study of the Law may be directed to any of the Summer School Coordinators:

*Devin Zuber, Coordinator for the Humanities, Faculty Contact and Institutional Cooperation

*Matt Lemieux, Coordinator for Legal Studies

*Nadja Hekal, Assistant Coordinator

Gender and Reproductive Rights Talk

Lia Alexandra Mandaglio, currently a law student at the George Washington Law School, has posted Speaking Across the Divide: A Functional Grammar Analysis of Feminist and Masculist Reproductive Rights Rhetoric in the United States on SSRN. Here is the abstract.

This paper applies Systemic Functional Grammar and Critical Discourse Analysis to assess the linguistic choices of feminist and masculist reproductive rights rhetoric in the United States. It explains these methodologies and provides a discursive history of the reproductive rights movement. Publications of advocacy groups and the mass media are analyzed as data of current rhetorical trends. These interpretations conclude that female-affirmative rhetoric offsets contemporary feminist efforts by marginalizing men and excluding considerations of paternity. This paper suggests that in solely emphasizing women’s procreative rights, such feminist rhetoric potentially renders women to the role of primary parental agent, reinforces traditional sex-stereotypes, and incites inter-sex antagonism.

Download the paper from SSRN at the link. Ms. Mandaglio is also the author of earlier interesting work, including Hannah More, the Conventionalist, and Mary Robinson, the Radical: Differing Feminist Perspectives on 19th Century Women's Progress, Purity and Power, 2 Lethbridge Undergraduate Research Journal (2007).

And check out this odd "6 Degrees of Kevin Bacon" sort of connection. I blogged about Hudson Taylor, the wrestler/magician elsewhere a few weeks ago, based on a piece in the Washington Post, without paying any particular attention to the name or occupation of his fiancee. As I did a search on Ms. Mandaglio's name while preparing this post to turn up what else she might have written, what other info should appear but yes--that article about Hudson Taylor, the wrestler/magician, and his fiancee, Lia Mandaglio, GW law student. Ah, magicology!

Summer Seminar Announcement

DAAD Faculty Summer Seminar
"Violence and the Law in German Cultures of Modernity"
Directed by Prof. Isabel V. Hull, Cornell University
June 14-July 23, 2010

The application deadline for this exciting seminar has been extended to March 15 because of an unfortunate oversight in the original announcement! The correct seminar dates are June 14-July 23 (not July 30).

All applications received by March 15 will be given full consideration, and electronic submissions are welcome. Completed applications should be sent directly to Prof. Isabel V. Hull, Dept. of History, 450 McGraw Hall, Cornell University, Ithaca NY 14853 or by e-mail to .

A seminar description, application instructions, and relevant forms can be found at the DAAD Website .

Conference Announcement

American University Washington College of Law’s
Program on Information Justice and Intellectual Property, Women and the Law Program, and Journal of Gender, Social Policy & the Law

present

IP/Gender: Mapping the Connections
Gender and Invention

Friday, April 16, 2010
9:00 am – 5:00 pm

Washington College of Law, Room 100
4801 Massachusetts Avenue, N.W., Washington, DC 20016

Registration: www.wcl.american.edu/secle/registration
Webcast: http://www.wcl.american.edu/pijip/webcast.cfm


Christine Haight Farley
Associate Dean and Professor of Law, Washington College of Law
Welcome
Ann Shalleck
Professor of Law and Director
Women and the Law Program
Washington College of Law & Michael Carroll
Professor of Law and Director
Program on Information Justice and Intellectual Property
Washington College of Law
Opening Remarks

GENDERED HISTORY– 9:30 AM -11:30 AM

Dr. Rayvon Fouché
Associate Professor of History
University of Illinois, Urbana-Champaign & Sharra Vostral
Associate Professor, Gender Studies and History,
University of Illinois, Urbana-Champaign
Selling Women: Lillian Gilbreth and Gendered IP
Annette I. Kahler
Director, Center for Law & Innovation, Albany Law School
Examining the Right to Exclude: Historical, Social, and Economic Perspectives on Women and Invention
Dan Burk
Chancellor’s Professor of Law, University of California, Irvine
Comments

GENDERED DOCTRINE – 11:30 AM -12:30 PM

Kara W. Swanson
Associate Professor, Earle Mack School of Law, Drexel University
Merry Widows: Egbert v. Lippman and the Corset as Patented Technology

Ann Bartow
Professor of Law, University of South Carolina School of Law
Gender, Innovation and Inventorship: Every Patent Tells a Story

Shubha Ghosh
Professor of Law, University of Wisconsin Law School
Comments

GENDERED GOALS: LUNCHEON & KEYNOTE – 12:30 PM -2:30 PM

Joshua Sarnoff
Professor of the Practice of Law, Washington College of Law
Introduction

Zorina Khan
Associate Professor of Economics, Bowdoin College
What Do Intellectual Property Rights Promote? Innovation Among Women Inventors in the 19th and 20th Centuries

GENDERED PRODUCTION– 2:30 PM -4:30 PM

Bernardita Escobar
Instituto de Políticas Públicas‐ Expansiva UDP, Santiago, Chile
Women and Science Production in Developing Countries: Chile in the 1990‐2008 Period

Dr. Shlomit Yanisky Ravid
Head of the Comparative Legal Research Center, Faculty of Law, Ono Academic College, Israel
Patents and Gender: The Exclusion of Women Inventors from IP Rights

Laurel Smith-Doerr
Associate Professor of Sociology, Boston University
Gendering Science, Gendering Ethics: The Intersecting Production of Knowledge, Gender and Ethics

Mario Biagioli
Professor of the History of Science, Harvard University
Comments

CLOSING & ADJOURNMENT

Victoria Phillips
Professor of the Practice of Law, Washington College of Law
Closing Remarks

Storytelling and Rape Law Reform

Jeannie Suk, Harvard Law School, has published "'The Look in His Eyes': The Story of State v. Rusk and Rape Reform," in Criminal Law Stories (Robert Weisberg and Donna Coker eds.; 2010). Here is the abstract.

This chapter for Criminal Law Stories (Robert Weisberg & Donna Coker eds., 2010), tells the story of State v. Rusk through the lens of rape law reform. Beginning in the 1970s, under the influence of feminism, some prevailing attitudes and expectations about sex between men and women started to change. Edward Rusk, like many guys, didn’t think he just had to stop because a girl who seemed interested said she didn’t want to have sex. He was convicted of rape at the cusp of legal transformation, when sexual behavior that had been socially commonplace was rapidly in the midst of being recast as criminal. Drawing on many interviews with lawyers, judges, and other people involved in the case, I tell the story of when and how a set of social norms of sex and dating became unacceptable. This is a story of the legal role and consequences of that social change.

Download the essay from SSRN at the link.

The Influence of Narrative In Judging

Kenworthey Bliz, Northwestern University School of Law, is publishing "We Don't Want to Hear it: Psychology, Literature and the Narrative Model of Judging," in the University of Illinois Law Review. Here is the abstract.

The “narrative” model of legal judging argues that legal decision makers both do and should render judgments by assembling sensible stories out of evidence (as opposed to using Bayesian-type, linear models). This model is usually understood to demand that before one may judge a situation, one must give the parties the opportunity to tell their story in a manner that invites, or at least allows, empathy from the judger. This Article refers to this as the “inclusionary approach” to the narrative model of judging. Using psychological research in emotions and perspective-taking and the more intuitive techniques of literary criticism, this Article challenges the inclusionary narrative approach, arguing that, in practice, the law gives equal weight to an “exclusionary approach.” That is, in order to render sound, legitimate legal judgments, the law deliberately limits the sort of stories parties are allowed to tell – and does so on moral grounds, not, or at least not only, to improve the “accuracy” of the legal judgment. That is, as both a descriptive and normative matter, impoverished narratives can be better than enriched ones in leading decision makers to morally acceptable legal judgments.

Download the article from SSRN at the link.

The Supreme Court and Baseball

Ross E. Davies and Craig D. Rust, George Mason University School of Law, have published "Supreme Court Sluggers: Behind the Numbers," at Green Bag 2d 213 (Winter 2010). Here is the abstract.

Issued last fall, the Chief Justice John G. Roberts “Supreme Court Sluggers” trading card pictured on page 213 above is the first in what should be a very long series of “Sluggers” cards. The first Associate Justice card – of John Paul Stevens – will be out this spring. Others, of the sitting Justices and of their predecessors, will follow in the coming months and years. The Green Bag’s ambitions for this project are simple, if not small: (a) to develop and share comparable measurements of the work of every member of the Supreme Court since 1789; (b) to gradually expand and refine those measurements with an eye to making them as useful and interesting as possible; (c) to create informative, entertaining, and unorthodox yet respectful portraits of the Justices by first-rate artists; and (d) to present all of this material in a way that will be enjoyable for the producers, consumers, and subjects of the “Sluggers” cards. As an introduction to the “Sluggers” project, we offer here short descriptions of what went into the development of the front and back of the Chief Justice Roberts card. The front is a work of art that makes light-hearted connections between its subject and the game of baseball. The back is packed with statistics and sprinkled with quotations drawn from the subject’s judicial work.

Download the article from SSRN at the link.

The Origins Of Critical Race Theory

Richard Delgado, Seattle University School of Law, has published "Liberal McCarthyism and the Origins of Critical Race Theory," at 94 Iowa Law Review 1505 (2009). Here is the abstract.

I wrote this piece exploring some of the intellectual origins of critical race theory for a 20-year anniversary of the movement held at the University of Iowa in April, 2009. In it, I look at the role of certain prominent university officers in purging their ranks of white radicals to prepare the way, in the late sixties and early seventies, for the first large group of post-Brown minority students who were starting to arrive around that time. I show how four promising white professors, two of law, one of history, and one of criminology lost their jobs and what they did afterward. I show that they continued to teach and write about left-wing thought in the hinterlands in ways that contributed to the rise of critical race theory. As they say, it is hard to kill an idea.

Download the article from SSRN at the link.

Call For Papers

Call For Papers at the Modern Language Association, 2011

Special Session: "Literature and Rights in the Age of Enlightenment"

This panel seeks to investigate the intertwined histories of literature and rights in the long eighteenth century. How does imaginative writing in this period contribute to the development of the humanitarian sensibility and the emergence of human rights? Conversely, how do changing conceptions of rights shape novels, poems, plays, and essays? Papers on literary, philosophical, and legal formulations of natural and positive rights, and on questions concerning freedom, equality, justice, toleration, torture, cruelty, and pain are all welcome.

Send one-page abstracts to Melissa Ganz (melissa.ganz@stanford.edu) by March 8. Inquiries welcome.

Law and Art Symposium at the Tate

At the Tate, a one day symposium on Law and Art: Ethics, Aesthetics, and Justice on March 23, 2010.

A Reaction To Malcolm Gladwell's Analysis Of Atticus Finch

Lance McMillian, John Marshall Law School (Atlanta) has published "Atticus Finch as Racial Accommodator: Answering Malcolm Gladwell's Critique." Here is the abstract.

Atticus Finch – the fictional hero of Harper Lee’s 'To Kill A Mockingbird' – is a legal icon. The legendary status of Finch is confirmed by his standing in the non-legal world of broader culture. In 2003, the renowned American Film Institute deemed Atticus the greatest movie hero of all-time. That a lawyer would be worthy of this honor is nothing short of remarkable and demonstrates that the stature of Atticus Finch has assumed mythic proportions in American culture. Atticus is not just a lawyer; he is justice in the flesh.

Enter best-selling author Malcolm Gladwell. Last year, Gladwell made waves in The New Yorker by arguing that, far from being a bright spot of racial enlightenment in a time of darkness, Atticus Finch instead made an immoral peace with the world of Jim Crow Alabama. While Gladwell is not the first to criticize the Atticus myth, he is the most culturally influential person to do so, which is an important development. The Atticus-As-Racial-Accommodator charge essentially posits that Atticus was all-too-comfortable with the racism (and racists) that surrounded him every day. Gladwell wonders: Where is the moral outrage? In response, I argue that Gladwell misdiagnoses Atticus because he neglects the important role that Finch’s Christian faith plays in who he is as a person. To understand Atticus, one must first understand Jesus and his teaching. Finch is a New Testament-style prophet whose worldview propels him to this truth: Love and understanding open doors; judgment and condemnation close them. Consequently, his quiet and gentlemanly interactions with the racists in his midst suggest neither passivity nor appeasement, as Gladwell contends. Instead, they are a form of character and strength – derived from Finch’s faith in Jesus – that imbue Atticus with moral authority in the eyes of the community. Moreover, while Gladwell rightly stresses the need of legal change in bringing equality to the South, the kind of moral change led by Finch was likewise necessary. Law is only half of the equation.

This year marks the 50th anniversary of To Kill A Mockingbird. Combined with the cultural significance of Gladwell’s recent revisionist foray, this milestone means that now is a particularly apt time to look at Atticus with fresh eyes and assess his character anew.

Symposium On Food, Culture, and the Law

From Penelope Pether, Villanova University School of Law, an announcement of a symposium on "Food, Culture and the Law," on February 26, sponsored by the University of Iowa and to be held at the Old Capitol Senate Chamber.

Higher Education: The Dumbledore Factor

From the Chronicle of Higher Education, why Dumbledore is a good administrator (but check out the comments--some folks don't agree).

Call For Papers

From Elizabeth Stockton, Southwestern University

CFP: MLA 2011 (Los Angeles, CA)

Law and Literature of the U.S. before 1900

Seeking papers that examine legal and literary discourses in the US
before 1900. Possible topics might include citizenship, ethnicity,
sexuality, imperialism, and the rhetoric of the law. Abstracts and CV
by 2 March 2010 to Elizabeth Stockton (stockton@southwestern.edu).

--

Call For Papers

From Elliott Visconti at Yale

Literary History and Constitutional Culture

For the MLA’s next conference in Los Angeles (January 2011), the Discussion Group on Law and Literature invites paper proposals that address the relationship, broadly understood, between constitutional change and literary history. Some general questions: what influence do constitutional decisions have on the path of literary history, and to what degree can such decisions or events be said to transform or deflect a literary tradition? Papers that take a theoretical approach to the question are welcome (e.g. can the literary be understood as a modality of popular constitutional interpretation?) as are papers addressed to a concrete moment/ event/watershed (e.g. LGBT literature after Lawrence v. Texas; LDS fiction in the wake of Reynolds v. United States, the literary history of slavery after Somersett’s case, African-American poetry after Brown v. Board, Franco-Islamic literature after the 2004 headscarf laws, etc.

Paper proposals from all legal and literary traditions are welcome. Please send abstract and cv to elliott.visconsi@yale.edu, by March 15 2010

Justice! He Demands Justice!

Grant Morris of the University of San Diego Law School argues that in all those lists of great legal movies one great law related movie never rates a mention. It's for that elephant in the room, Dumbo. See Grant A. Morris,

The Greatest Legal Movie of All Time: Proclaiming the Real Winner

, volume 47 of the San Diego Law Review (2010). Here's the abstract.

In August, 2008, the ABA Journal featured an article entitled: “The 25 Greatest Legal Movies.” A panel of experts, described in the article as “12 prominent lawyers who teach film or are connected to the business” selected “the best movies ever made about lawyers and the law.” This distinguished panel ranked its twenty-five top legal movies, choosing To Kill a Mockingbird as its number one legal movie. The panel also selected twenty-five films as “honorable mentions,” which were listed in alphabetical order. In my opinion, however, the real greatest legal movie of all time was not selected as the winner. It was not ranked in the top twenty-five. It was not included in the twenty-five honorable mentions so that it would rank in the top fifty. I would wager that it was not even considered by the panel as a candidate for inclusion as a “legal” movie. In this article, I discuss the movie that should have been ranked first. I compare my choice with the experts’ choice, describing similarities and differences between the two movies. In To Kill a Mockingbird, an African American man is wrongfully accused of raping a white woman. Despite the best efforts of his attorney, he is convicted of that crime. Prejudice prevails over justice. In the movie I have chosen, another victim of prejudice is able to succeed due to the best efforts of his attorney. Justice prevails over prejudice. That difference convinces me that the movie I have selected is truly the greatest legal movie of all time.

Conference Announcement

The Critical Legal Conference

From Bald de Vries and Since 1984, every first weekend in September, the Critical Legal Conference brings together critical and radical legal scholars from all over the world. It has been a phenomenal success despite its modesty. The CLC is also exactly that: a conference. No organisation, presidents and secretaries, members and subscrip­tions.
This conference is a transient community; an inoperative community always to come, lasting for three days every year, without orthodoxies, exclu­sions or stars and gets down to the business of thinking and being together. In doing so, a variety of critical schools, such as postmodernism, phenomenology, decon­struction, feminism, post-colonialism, critical race, queer theory, the ethics of otherness, the ontology of plural singularity, and the critique of bio-politics have been pioneered in these conferences, creating new and stronger links between theory and practice.
Most conferences have taken place in the UK but we have also been to South Africa, India, Ireland and Scandinavia. This is the first time, the CLC is organised in the Netherlands. It hopes to bring together different schools and approaches to critical legal scholarship at a time when collaboration and solidarity across Europe and the world is imperative.

Law in the Wilderness

Shaun Fluker, University of Calgary Faculty of Law, has published "Wilderness Narrative in Law: The View from Canada’s National Parks." Here is the abstract.

In this conference paper presented at the 2009 Association for the Study of Literature and the Environment held in Victoria, BC, I briefly examine the relationship between law and the concept of wilderness. I hope to demonstrate this relationship in two ways. First, that law provides us with a source of wilderness narrative. Although much less prosaic than other forms of literature, legal decisions tell stories about what wilderness is. Second, that ideas of wilderness can influence the enactment and application of legal rules.

Download the paper from SSRN at the link.

Ponzi For the Twenty-First Century, By Way Of Wall Street

Alessandra Stanley on "Damages" and that ripped-from-the-headlines feel as the third season premieres. Another legendary actor, Len Cariou, visits as the scammy baddie Patty Hewes (Glenn Close) has in her sights.

Roman Law's Influence On the English Legal Heritage

James Lee, University of Birmingham School of Law, has published "Confusio: Reference to Roman Law in the House of Lords and the Development of English Private Law," as 5 Roman Legal Tradition, 24-66 (2009). Here is the abstract.

This paper examines the use of Roman law by members of the House of Lords in three recent decisions: Fairchild vs. Glenhaven Funeral Services [2002] UKHL 22; Foskett vs. McKeown [2001] 1 AC 102; and OBG vs. Allan [2007] UKHL 21, The contrasting views of Professor Peter Birks and Professor Sir Basil Markesinis are considered, and it is argued that within the decisions can be seen the value of reference to Roman law.

Download the article from SSRN at the link.

Malcolm Gladwell and Atticus Finch

Lance McMillian, Atlanta's John Marshall Law School, has published "Atticus Finch as Racial Accommodator: Answering Malcolm Gladwell's Critique." Here is the abstract.

Atticus Finch – the fictional hero of Harper Lee’s 'To Kill A Mockingbird' – is a legal icon. The legendary status of Finch is confirmed by his standing in the non-legal world of broader culture. In 2003, the renowned American Film Institute deemed Atticus the greatest movie hero of all-time. That a lawyer would be worthy of this honor is nothing short of remarkable and demonstrates that the stature of Atticus Finch has assumed mythic proportions in American culture. Atticus is not just a lawyer; he is justice in the flesh.

Enter best-selling author Malcolm Gladwell. Last year, Gladwell made waves in The New Yorker by arguing that, far from being a bright spot of racial enlightenment in a time of darkness, Atticus Finch instead made an immoral peace with the world of Jim Crow Alabama. While Gladwell is not the first to criticize the Atticus myth, he is the most culturally influential person to do so, which is an important development. The Atticus-As-Racial-Accommodator charge essentially posits that Atticus was all-too-comfortable with the racism (and racists) that surrounded him every day. Gladwell wonders: Where is the moral outrage? In response, I argue that Gladwell misdiagnoses Atticus because he neglects the important role that Finch’s Christian faith plays in who he is as a person. To understand Atticus, one must first understand Jesus and his teaching. Finch is a New Testament-style prophet whose worldview propels him to this truth: Love and understanding open doors; judgment and condemnation close them. Consequently, his quiet and gentlemanly interactions with the racists in his midst suggest neither passivity nor appeasement, as Gladwell contends. Instead, they are a form of character and strength – derived from Finch’s faith in Jesus – that imbue Atticus with moral authority in the eyes of the community. Moreover, while Gladwell rightly stresses the need of legal change in bringing equality to the South, the kind of moral change led by Finch was likewise necessary. Law is only half of the equation.

This year marks the 50th anniversary of To Kill A Mockingbird. Combined with the cultural significance of Gladwell’s recent revisionist foray, this milestone means that now is a particularly apt time to look at Atticus with fresh eyes and assess his character anew.

Download the paper from SSRN at the link.

Extraordinary Measures

From the New York Times, a review of Harrison Ford's new film, Extraordinary Measures.

Shakespeare and Moot Court

Desmond Manderson, McGill University Faculty of Law, and Paul Yachnin have published "Shakespeare and Judgment: The Renewal of Law and Literature." It will appear as "Shakespeare Rules: Remembrance of Things Past" in volume 15 of The European Legacy (2010).
Here is the abstract.

Legal theorist Desmond Manderson and Shakespearean Paul Yachnin develop parallel arguments that seek to restore a public dimension of responsibility to literary studies and a private dimension of responsibility to law. Their arguments issue from their work as the creators of the Shakespeare Moot Court at McGill University, a course in which graduate English students team up with senior Law students to argue cases in “Court of Shakespeare,” where the sole Institutes, Codex, and Digest are comprised by the plays of Shakespeare. Yachnin argues that modern literary studies suffers from impermanence and isolation from real-world concerns and that it can redress these limitations — developing attributes of corrigibility, temporality, judgment, and publicity — by learning from law. Manderson finds modern legal judgment bereft of affective engagement with the subjects of law and wedded to an ideal of objectivity, regulation, and impersonality. Literature can restore to legal judgment the elements of narrative, character, context, and self-reflection. Together, the essays argue that the question of judgment, so integral to the disciplines of law and of literature, needs the renewal that an inter-disciplinary engagement provides.

Download the paper from SSRN at the link.

The History of the Legal Profession

David Sugarman, Lancaster University Law School, has published "Beyond Ignorance and Complacency: Robert Stevens’ Journey Through Lawyers and the Courts," in volume 16 of International Journal of the Legal Profession (2009). Here is the abstract.

Brian Abel-Smith and Robert Stevens’ Lawyers and the Courts (LATC), published in 1967, was the first major critical social history of the English legal system from the industrial revolution to modern times (1750-1965). It has proved matchless. It is the definitive book in the field, and its core arguments remain largely unchallenged more than forty years after its publication. Challenging the dominant traditions of doctrinal legal scholarship and lawyers’ legal history by emphasising the importance of serious empirical research on current problems, it offered a less reverential alternative to the prevailing orthodoxies of the day and asked whether England’s legal services and legal education had developed in a way that best served the public interest.

This paper examines how and why LATC came to be written, its reception and its larger significance. It addresses Robert Stevens’ intellectual trajectory, thereby, providing a window on the history of legal education and thought in England during the 1950’s and ‘60’s and the significance of the United States and Africa to those dissatisfied with England’s dominant tradition of legal formalism. It demonstrates both the coercive structures by which the legal profession sought to silence criticism of the status quo and some of the ways in which Stevens’ projects and ideas for realizing them are still important for the education of present day lawyers, scholars and law reformers.

Part One begins with a brief overview of the principal arguments and concerns of LATC. Parts Two and Three seek to historicize LATC. Part Two places Stevens in the context of the personal and intellectual influences of his formative years, 1940-65, and relevant legal-political preoccupations: including the importance of history to his thinking; his disappointment with Oxford legal education; the confines of English legal scholarship, the legal profession and legal culture; the excitement of American legal education and legal practice, in particular, his postgraduate studies at Yale Law School and his encounter with Myres McDougall (1906-1998) and post-Realism; the importance of his experience of teaching at the University of East Africa in Dar es Salaam; and the vital influence of Richard Titmuss (1907–1973) and Brian Abel-Smith (1926-1996), two pioneering British social policy researchers, leading policy advisors and chroniclers of and campaigners against social injustice. Part Three links Stevens’ work to England in the heady days of the early-mid 1960’s, a period when change, and the possibility of effecting political, cultural and social change, was “in the air”. Part Four considers LATC’s controversial reception when it was published in 1967 and seeks to clarify why it encountered fierce opposition and the intellectual tradition that LATC reflected, sustained and promoted. The concluding section briefly considers LATC’s impact on and significance for the fields of legal history and legal services.

This essay makes extensive use of interviews with Robert Stevens and archival research and is published in a special issue of the International Journal of the Legal Profession on the work of Robert Stevens, the other contributors being: Richard Abel, Tony Bradney, Fiona Cownie, Bill Felstiner, Alan Paterson and William Twining.

Download the article from SSRN at the link.

Antigone and the Law

Bonnie Honig, American Bar Foundation, has published "Antigone’s Two Laws: Greek Tragedy and the Future of Humanism," as American Bar Foundation Research Paper No. 09-05. Here is the abstract.

In Sophocles' Antigone there is one speech that attracts the ire and admiration of critics. In what Creon describes as her dirge for herself, Antigone says she would not have violated Creon’s edict against burying her brother on behalf of husband or children because she could always have others, but (with her parents dead) only her brother is irreplaceable. Humanist critics from Goethe to Jebb find the speech abhorrent while anti-humanists like Lacan admire it as a manifestation of Antigone’s monstrous desire. Both sides elide the politics of the speech, and position it as (anti)ethical. This paper argues for a political reading of the speech which is neither humanist not anti-humanist. The speech parodies, cites, and mimics Creon, Pericles, and a story from Herodotus in an effort to find a way to stage the protagonist’s concerns about the status of natal versus conjugal family relations but also the status of the dead in the democratic polis and the quality of authority relations in times of tension between the democratic polis and elites. Read contextually and intertextually, this speech, historically rejected by devotees of Sophocles’ heroine as inauthentic, is actually the key to the play and to developing further an agonistic humanism that is not exclusively ethical nor extra-political in its aspirations.

Download the paper from SSRN at the link.

ABC's New Lawyer Drama Premieres Thursday Night

"The Deep End" premieres tomorrow night on ABC at 8 p.m., 7 Central Time. In the pilot: "Dylan is given an impossible pro-bono custody case; a 90-year-old man signs an agreement, thinking that Beth is his daughter; Liam tries to get a client to sign with the firm under false pretenses; Addy gets attention when she speaks her mind." Can you say "Disciplinary rules"? Really quickly?

Here are some early reviews: from SFGate; the New York Daily News; Are You Screening?

Charles Reade and the History of Victorian Copyright Law

Barbara Lauriat, University of Oxford Faculty of Law, has published "Charles Reade's Roles in the Drama of Victorian Dramatic Copyright," in volume 33 of the Columbia Journal of Law & the Arts (2009). Here is the abstract.

The following article describes the eccentric dramatist, novelist, journalist, and barrister Charles Reade’s direct involvement in shaping the UK law of copyright - particularly copyright in dramatic works. In addition to publishing his writings on the subject, he was active in bringing and supporting suits that led directly to changes in the law protecting dramatic works, as well as the formation of the Royal Commission on Copyright in 1875. His own questionable dealings with the works of others, however, provide a counterpoint to his zealous arguments in favor of protection, as exemplified by the story of his dramatization of Ralph the Heir, a novel written by Royal Commission member Anthony Trollope.

Download the article from SSRN at the link.

Juries and Narrative

Robin H. Conley, UCLA Department of Anthropology, and John M. Conley, University of North Carolina, Chapel Hill School of Law, have published "Stories from the Jury Room: How Jurors Use Narrative to Process Evidence," at 49 Studies in Law 25 (2009). Here is the abstract.

This paper analyzes the ways in which jurors use everyday storytelling
techniques in their deliberations. It begins by reviewing the literature on
how
jurors receive and process evidence, emphasizing narrative and
storytelling. It
then presents some new, qualitative linguistic data drawn
from actual jury
deliberations, which shed light on jurors' standards of
evidence and proof, as
well as on the persuasive tactics they use in dealing
with each other. Although
these data are limited, they provide an
interesting basis for assessing existing
ideas about jury
evidence-processing and thinking more broadly about the
strengths and
weaknesses of the jury system.

Download the Article from SSRN at the link.

A New Book on The Law and Harry Potter

New Collection: The Law and Harry Potter, edited by Jeffrey E. Thomas and Franklin G. Snyder (Carolina Academic Press, 2010). This volume considers the depiction of law and legal institutions in J. K. Rowling's Harry Potter novels. It contains more than twenty chapters by legal academics from the U.S. and abroad. The chapters are organized in five sections: Legal Traditions and Institutions, Crimes and Punishments, Harry Potter and Identity, the Wizard Economy, and Harry Potter as an Archetype. Some chapters analyze the way law and legal institutions are portrayed, and what these portrayals teach us about concepts such as morality, justice, and difference. Other chapters illustrate or analyze legal issues, such as human rights, actual innocence, and legal pedagogy. The volume is suitable for undergraduate or law school courses, and will be of interest to those Harry Potter fans who also have an interest in law and the legal profession.

A Collection on Law and Magic

New publication: Law and Magic: A Collection of Essays (Christine A. Corcos, ed., Durham: Carolina Academic Press, 2010). This collection of 24 essays explores the very rich ways in which the rule of law and the practice of magic enrich and inform each other. The authors bring both a U.S. and a comparative law perspective while examining areas such as law and religion, criminal law, intellectual property law, the law of evidence, and animal rights. Topics include alchemy in fifteenth-century England, a discussion of how a courtroom is like a magic show, stage hypnotism and the law, Scottish witchcraft trials in the eighteenth century, the question of whether stage magicians can look to intellectual property to protect their rights, tarot card readings and the First Amendment, and an analysis of whether a magician can be qualified as an expert witness under the Federal Rules of Evidence.

Law-As-Story

Palma Strand, Creighton University School of Law, has published "Law as Story: A Civic Concept of Law," at 18 Southern California Interdisciplinary Law Journal 603 (2009). Here is the abstract.

This article introduces a social constructionist civic concept of law, which emphasizes the story nature of law and the fact that as a complex social system law emerges from and is grounded in collaborative communications among citizens. In this view, if the law-story reflects the stories of a broad range of those for whom it purports to speak and acknowledges their agency in enacting it, it is more likely to be embraced by that community.

In applying the law-as-story complex social system approach to law to the doctrinal issue of political gerrymandering, the article explores the concept of voice - individuals making meaningful contributions to the law-story. In applying the approach to the doctrinal issue of race-based K-12 educational initiatives, the article illuminates the idea of resonance, the complement of voice, which captures the process of the law-story coming back to the individuals within a community.

Download the article from SSRN at the link.

A New Incarnation of Sherlock Holmes

From the New York Times, a review of the new Sherlock Holmes film, starring Robert Downey and Jude Law.

Legal Language and Its Meaning

Andrei Marmor, USC Gould School of Law, has published "Can the Law Imply More than it Says? On Some Pragmatic Aspects of Strategic Speech," as USC Law Legal Studies Paper No. 09-43. Here is the abstract.

The content of the law is often determined by what legal authorities communicate. Both lawyers and philosophers of language know very well, however, that the full content of communication in a natural language often goes beyond the meaning of the words and sentences uttered by the speaker. Semantics and syntax are essential vehicles for conveying communicative content, but the content conveyed on particular occasions of speech is often pragmatically enriched by various factors. The standard model in the pragmatics literature, however, focuses on ordinary conversations, in which the parties are presumed to engage in a cooperative exchange of information. The legal context offers an example of conversation that is strategic in nature. Part of my purpose here is to show that the pragmatics of strategic conversation has certain features that deviate from the standard model.

The first section focuses on two main instances of implied communicative content, namely, implicatures and utterance presuppositions. I argue that in both of these cases, there is an important distinction between implied content that is semantically encoded in the utterance - and therefore forms part of what the law communicatively determines - and implied content that is essentially contextual and thus much more problematic in the legal case. In the second section I focus on the idea of pragmatic commitments and their normative foundations. My main concern here is to explore the normative framework of strategic speech and ways in which it differs from ordinary conversations. Finally, I will try to explain in what sense legal speech is strategic, and demonstrate how the pragmatic aspects of strategic speech actually work in the legal context.

Download the paper from SSRN at the link.

Law and Power in "Sir Gawain and the Green Knight" and "A Man For All Seasons"

Dan E. Stigall, U. S. Army JAG Corps, has published "The Rule of Kings and the Rule of Law: Representations of Law and Power in 'Sir Gawain and the Green Knight' and 'A Man for All Seasons'." Here is the abstract.

The tension between the desires of the potentate and the 'immutable' nature of law is one that resonates in the human psyche because of the drama inherent in such a struggle. This theme gained in importance after the emergence of the modern state, which separated the notion of political authority from divine power and fundamentally altered the concept of the sovereign. This paper explores the Pearl Poet's 'Sir Gawain and the Green Knight', and Bolt's 'A Man for All Seasons' - different plays authored in different times which, nonetheless, contain common elements such as the interplay between the power of kings and a higher legal authority that seeks to bind them. It is in that struggle that both plays derive a common source of drama, but articulate very different views of the relationship between power and law.

Download the paper from SSRN at the link.

Call For Papers

From Anne Wagner, Editor, International Journal for the Semiotics of Law

We live in a world of rapid global changes, which we nonetheless seek to understand with reference to general concepts. This world of change can be described in many different ways by taking account of a variety of factors. Among these we can distinguish a specific world-wide tendency for democratization, with social, individual and political dimensions. As some have pointed out, there are very few political orders today that would not claim to be democratic.

This peculiar global trend however gives rise to questions as well as problems, the most important of which seems to concern the question whether the “democratic turn” is real or virtual. Democracy generally means government by the people. Does this then mean that any kind of government by the people can claim to be democratic, or is democracy a more limited concept? What – if any – are the normative requirements of democracy? Democracy, after all, is not simply a descriptive model of government; it is a deeply rooted preference and hence functions as normative blueprint, often expressed in founding principles. Democracy is thus a thoroughly normative model. At the same time, it is constructed and finds expression in different ways in different times and places.

Does this mean that democracy, as a normative project, is such only for a certain section of the world and not for sections that believe in different gods, philosophies or value systems? Perhaps democratic principles are to be understood from a rational, secular value perspective (post-Weberian values) as formal frameworks that give people the possibility to fill them in with their own convictions of the preferred norms that should be obeyed in the name of equality and freedom. Does democracy not however imply a specific form of civic engagement and participation? Does democracy not also entail self-expression based on autonomy? Democracy does appear to give expression to post-traditional values which are not as yet dominant throughout the world. For this reason the further question arises as to the legal nature of a democratic political order. Are - following Sir Neil MacCormick - normative order, institutional normative order and institutional order three different kinds of order, do they overlap, or do they perhaps have the same source that keeps dividing itself into different orders?

Should morally impartial legal rules be the regarded as the most important or perhaps as the only support for peace in a pluralistic world? But then, rephrasing somewhat Ronald Dworkin’s question, we can ask how – if at all – democracy is possible here?

* * *



The 9th International Roundtable for the Semiotics of Law invites all those who are interested in problems concerning Legal Rules, Moral Norms and Democratic Principles to take part in our roundtable discussion in Poznań (Poland). The perspective adopted by participants – whether purely semiotic, legal, philosophical, sociological, cultural, sociolinguistic etc. – can be freely chosen by each participant.



We invite everyone interested in participating in The 9th International Roundtable for the Semiotics of Law to send us an abstract by the 1st of May 2010. It should be prepared in either English or French (max 300 words) and sent by e-mail to bartwoj@op.pl; karolinacern@yahoo.com; juchaczp@amu.edu.pl and to Anne Wagner at valwagnerfr@yahoo.com .



Selected papers will be published in a special annual issue of the International Journal for the Semiotics of Law (http://www.springer.com/).


Anne Wagner, Ph. D., Université du Littoral Côte d'Opale (France)

Research Professor, China University of Political Science and Law (Beijing)

http://www.semioticon.com/semiotix/semiotix13/sem-13-05-01.html

Gary Watt's Equity Stirring: The Story of Justice Beyond Law

A wonderful, densely written book that you shouldn't miss: Gary Watt's Equity Stirring: The Story of Justice Beyond Law (Hart Publishing, 2009).

Says Professor Watt in his introduction, "I start with titles, because one of the aims of this book is to explore the potential of a cultural discourse, based on equity, to resist a culture of entitlement, based on rights. The inscription of title and entitlement, but the process is fundamentally erroneous and calls for equity's correction, since a mere title can never express the whole truth."

The author plays with language and ideas throughout the work, instructing and guiding and leading us along the way in an invigorating adventure through the philosophy of law, literature, cases (e.g., the Earl of Oxford's case), the history of law, law and gender, and then "gets down to cases:" for example, Shakespeare's The Merchant of Venice. I found the extensive discussion of the many meanings of chancery (chapter 3: Chancery Script) of particular interest. Watt races from Charles Dickens to Sir Edward Coke and weaves from literature to law with astounding ease. It's a star turn, and a volume that one can re-read profitably.

Lots of footnotes, an amazing bibliography.

[NB: The publisher sent me this free copy.]

Call For Papers

Savage Thoughts: Interdisciplinarity and the Challenge of Claude Lévi-Strauss

Institute for the Public Life of Arts and Ideas McGill University, Montréal
24-26 September 2010

CALL FOR PAPERS

Claude Lévi-Strauss was one of the great interdisciplinary writers of the twentieth century whose influence has been felt far beyond his home discipline of anthropology. His inquiry illuminated the border lands between primitive and non-primitive, self and other, myth and history, human and animal, art and nature, and the dichotomies that give structure to culture. At the same time his method troubled those borders and dichotomies, through the bricolage he adopted that illuminated connections amongst literature, art, psychology, music, religion, and law.

Our call for ‘savage thoughts’ seeks out new work influenced by this inquiry and these methods, and reflections on Levi-Strauss’ legacy across the whole range of the humanities and beyond, including—

1) Recent interdisciplinary research in the reception, critique, and development, of Lévi-Strauss’ work. How have these inquiries been transformed in recent years? Are the children of Lévi-Strauss as savage as he?

2) Consideration of Lévi-Strauss’ larger intellectual influence, explicit or otherwise, right across the humanities. Perhaps there is something savage at the heart of interdisciplinary thought itself—refusing to be tamed by the intellectual borders of a discipline, it forages at will. Where has Lévi-Strauss’ method spawned such wildness and hybridity?

3) Looking beyond the academy to consider how Lévi-Strauss’ ideas have embedded themselves in the culture, values, social organization, and framework of modern society. What is the public life and impact of these ideas? In what ways has our world been altered by his mode of apprehending it?

Conference organizers invite papers that address the borderlands between a wide range of disciplines including, but not limited to Anthropology, Architecture, Art History, Communications, History, Law, Linguistics, Literature, Human Geography, Musicology, Philosophy, Psychology, Religious Studies, Semiotics, and Sociology. Proposals for single papers in English or French as well as for complete panels are welcome. In either instance, abstracts for 15-20 minute papers should be c.200 words, and accompanied by a brief (2-page) CV. Proposals for complete panels should also include a short explanation of the panel theme. Please send proposals as electronic files (in .doc, .docx, or .pdf format) to savage.thoughts@mcgill.ca no later than 15 March 2010.

Conference website: www.mcgill.ca/iplai/savagethoughts/
Conference registration will open 15 April 2010. Registration details, including fees information are on the website.

The Institute for the Public Life of Arts and Ideas at McGill University is committed to understanding how the arts (literature, painting, film, theatre, music, industrial and artistic design, architecture) and new ideas come into being in a range of settings (schools, the law courts, markets, the Web, the book trade, state institutions) and in relation to social, cultural, and institutional practices. It also strives to understand how art and ideas are able to transform the private world of the individual, the greater world of public matters, and the interactivity between the two. http://www.mcgill.ca/iplai/

AALS Section On Law and the Humanities Focuses on "Reasoning From Literature" at 2010 Conference

From Jessica Silbey, news of this year's AALS Section on Law and the Humanities
2010 AALS Conference, New Orleans

Reasoning from Literature

The “literary turn” in legal studies manifests in many ways in our legal discipline and practice. Be it with the birth of the study of law and literature in the 1980s, the growing attention to narrative theory and storytelling in the law in the 1990s, or the “cultural turn” in legal studies in the 21st century (as some scholars have called the cultural analysis of law), reasoning from literature seems commonplace. And yet it feels still marginalized in legal studies, as not “really law,” and lacking the core persuasive power that legal argumentation and doctrinal analysis do. This panel has been put together to wrestle with what it means to “reason from literature” and to contest the boundaries between legal reasoning and literary logic. Proceedings to be published in the Yale Journal of Law and Humanities, Winter 2010.


Program Chair: Jessica Silbey, Suffolk University Law School
Section Chair: David Ritchie, Mercer
Chair Elect: Angela Onwuachi-Willig, Iowa


Jessica Silbey
Associate Professor of Law
Suffolk University Law School
Boston, MA 02108
617-305-6270
jsilbey@suffolk.edu
http://www.law.suffolk.edu/faculty/directories/faculty.cfm?InstructorID=819

Matriculate At Lost U: Low Tuition, Lots of Relevance, High Fun Factor

The Chronicle of Higher Education's Wired Campus Blog has this piece about Lost University, a project of the folks over at ABC's Lost, which links the show's content to, well, the real world. Real class materials include Bluray discs of the show, and you won't get any spoilers. Rats. First semester offerings include a course on time travel by a physics prof at USC, philosophy from other USC profs, and hieroglyphics from a UCLA professor.

Here's more from the Los Angeles Times.

Nicholas Warner, who teaches the physics course, told the Chronicle,
“There used to be huge disconnect (sic) between watching television shows and academic investigation. Anything that provides channels to follow up questions is a wonderful thing.”

Now, Professor Warner is right--building bridges between the two cultures is indeed a wonderful thing. But I think academics have been building those bridges for a while now. College courses (and graduate school courses) integrating popular culture and everything else, including law, have been around for a while now, as have books about tv shows and films in which academics study the impact of popular culture (think about all those books about the meaning of Star Trek). I think the "disconnect" vanished into a black hole some time ago. What's different about this enterprise (ha!) is that it's a joint project between the show and academia.

Juries and Narrative

John M. Conley, University of North Carolina, Chapel Hill, School of Law, and Robin H. Conley, UCLA Department of Anthropology, have published "Stories from the Jury Room: How Jurors Use Narrative to Process Evidence," at 49 Studies in Law, Politics, & Society 25 (2009). Here is the abstract.

This paper analyzes the ways in which jurors use everyday storytelling techniques in their deliberations. It begins by reviewing the literature on how jurors receive and process evidence, emphasizing narrative and storytelling. It then presents some new, qualitative linguistic data drawn from actual jury deliberations, which shed light on jurors' standards of evidence and proof, as well as on the persuasive tactics they use in dealing with each other. Although these data are limited, they provide an interesting basis for assessing existing ideas about jury evidence-processing and thinking more broadly about the strengths and weaknesses of the jury system.

Download the article at the link.

More Law and Baseball

And it's back.

Aaron Zelinksy, Yale Law School, is publishing "The Justice as Commissioner: Benching the Judge-Umpire Analogy," in Yale Law Journal Online. Here's the abstract.

Chief Justice Roberts has repeatedly compared the role of a Supreme Court Justice to that of a baseball umpire, and this analogy has assumed a prominent place in the contemporary debate over the appropriate role of a Supreme Court Justice. This paper traces the history of the judge-umpire analogy since its first judicial invocation in 1886, finding that it was originally intended for trial court judges. Moreover, courts historically invoked the analogy as an illustrative foil to be rejected because of the umpire’s passivity. In place of the judge-umpire analogy, this paper propose that the appropriate analog for a Justice of the Supreme Court is the Commissioner of Major League Baseball. Both Supreme Court Justices and Major League Baseball Commissioners fulfill four critical characteristics which separate them from trial court judges and umpires: they provide interpretive guidance to subordinates, undertake extended deliberation, take countermajoritarian action, and wield substantial rule-making power.

Download the article from SSRN at the link.

Law and Baseball

Ross E. Davies, George Mason University School of Law, has published "It’s No Game: The Practice and Process of the Law in Baseball, and Vice Versa," in Seton Hall Journal of Sports and Entertainment (forthcoming). Here is the abstract.

It is a commonplace that the relationship between baseball and the law is a long and close one. But, first, is it true? And, second, if it is, just how long and how close? Strangely, given the large amount of good work produced by able scholars of baseball and the law, concrete answers to these basic questions are not readily available. This article is a first step toward filling that gap. It is a sketch of the length, breadth, and depth of the relationship between baseball and the law. (In order to tell a less-than-interminable tale, this article mostly tilts back and forth between recent years – evidence of the vibrancy of the baseball-law relationship today – and the late 19th and early 20th centuries – evidence that it has been vibrant for a long time – and deals only sketchily even with those periods. This should not be taken to mean that the baseball-law relationship was any less interesting at other times, or that there isn’t much more to be said about all times.) As should be clear by the end of this article, the answer to the first question is an emphatic and certain “Yes”: baseball and the law are close and have been for a long time. The answer to the second question, however, is an equally emphatic but far less certain “Very”: while there surely are both unrecognized extents and unmarked limits to the law-baseball relationship, we cannot define them without a fuller inventory and chronology – an old-fashioned digest – of the thousands upon thousands of events that make up the history of baseball and the law. Perhaps this article can serve as the kernel of such a project.

[I don't normally blog articles about law and baseball, but I'm branching out].

Tax and Shakespeare

Ellen P. Aprill, Loyola Law School (Los Angeles, has published "A Tax Lawyer's Interpretation of Shakespeare," at 13 ABA Section of Taxation News Quarterly 13 (Fall 2009). Here is the abstract.

Shakespeare has been quoted and invoked in numerous contexts, but, inexplicably, the insights his immortal words bring to tax law have been ignored. This short and lighthearted piece begins to fill that gap. Expanding on my remarks in accepting the 2009 Dana Latham Memorial Award from the Los Angeles County Bar Association Taxation Section, I discuss quotations from Shakespeare’s plays that illuminate important tax doctrines.

Download the paper from SSRN at the link.

Aprill. What an auspicious name for a tax professor.

Law in "Titus Andronicus"

Paul Raffield, University of Warwick School of Law, has published "'Terras Astraea reliquit’: Titus Andronicus and the Loss of Justice," in Shakespeare and the Law (Paul Raffield and Gary Watt eds.; Hart 2008) at 203-220). Here is the abstract.

This paper considers the constitutional and political significance of Shakespeare’s Titus Andronicus, in the context of fin-de-siècle Elizabethan rule, during which period the jurisdiction of the prerogative courts threatened to supersede that of the courts of common law. I examine juristic belief in the existence of an unwritten law, superior in authority to imperial edict: a theme which resonates throughout Titus, but which also underscores The Reports of Sir Edward Coke, which he was compiling in the 1590s. I analyse also the symbolic importance of ancient Rome to the development in England of a body of literature that might loosely be termed republican. The story of the destruction of Troy and its re-emergence in London as Troynovant is a literary device that was employed by Elizabethan writers as a means of establishing the ancient credentials of the English state and English common law.

Download the essay from SSRN at the link.

Contract Law in the Comedy of Errors

Paul Raffield, University of Warwick School of Law, has published "The Comedy of Errors and the Meaning of Contract," in Shakespeare's Imaginary Constitution: Late Elizabethan Politics and the Theatre of Law (3 Law and Humanities (2009)). Here is the abstract.

This article examines the theme of contract and its symbolic connotations of societas or fellowship, in the context of Shakespeare’s The Comedy of Errors and its performance on 28 December at the Gray’s Inn revels of Christmas 1594. Central to the argument is the extraordinary advancement of contract law in Elizabethan England, and in particular the significance of the promise to the status of binding bilateral agreements. In particular, the analysis considers the promotion of assumpsit at the expense of actions for debt in relation to a society (and a legal profession) whose mores were heavily influenced by humanist notions of the individual conscience, which simultaneously bound the subject of law into an ethical association with his fellow citizens and freed him (at least putatively) from the constraints of immutable, ancient law. The Comedy of Errors provides a perceptive critique of a society which is bound together only by the market, having abandoned or mislaid the true bonds of friendship and love, through which a just community may be recognised.

Download the article from SSRN at the link.