A blog about law, the humanities, and popular culture
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This article discusses the use of arguments about “culture” in two debates about the imposition, application and abolition of income tax law: A debate about the transplantation of British income taxation to British-ruled Palestine in the early twentieth century, and a debate about tax privacy in late eighteenth-century and early nineteenth-century Britain. In both cases, “culture,” or some specific aspect of it (notions of privacy) appeared in arguments made by opponents of the tax. However, it is difficult to decide whether the use of cultural arguments in these debates simply reflected some “reality” that existed prior to these debates, whether “culture” was actively constituted in these debates to further the specific interests of the participants, or whether the cultural arguments that appeared in the debates combined reflection and constitution in some determinable way. Using legal debates to learn something about culture, the article concludes, is sometimes problematic. The article therefore suggests an additional approach to the study of law and culture, one which focuses on the rhetorical level, seeking to map the ways in which arguments about “culture” (and related terms referring to the traditional and particular), appeared in tax law debates.
What is involved in representing a lesbian in law or in literature? The premise of this Article is that the work of novelists is enough like the work of lawyers that useful insights can be drawn in at least one direction. That is, lawyers can learn how to represent lesbian clients better by studying books with lesbian characters.
Also available at Representing Women: Law, Literature and Feminism 356 (Susan Sage Heinzelman and Zipporah Batshaw Wiseman eds.; Duke University Press, 1994).
An analysis of the legal and sociological ramifications of acts of violence perpetrated by women in literature. Sophocles' “Antigone,” Susan Glaspell's modern theatrical drama “Trifles,” (later adapted into the short story, "A Jury of Her Peers"), and Scott Turow's novel Presumed Innocent provide powerful examples of how women's acts of violence are either vilified or lionized in fiction. The author then examines how the law would characterize the women's actions.The full text is not available from SSRN. This abstract has recently appeared on SSRN.
What could clones and the eponymous “Coase theorem” possibly have in common? Although the film Blade Runner, and the dystopian science fiction novel on which the film is based, pose a wide variety of deep ethical, scientific, and philosophical questions, such as the legal and moral rights of human androids and the ethics of cloning, in this paper we will focus on the life-and-death struggle between Roy Batty and Dr. Tyrell, the central conflict presented in Blade Runner, using a “Coasian” lens. We shall also address the following subsidiary puzzles posed by the film and the novel: what is the optimal lifespan of a human clone, such as the fictional Nexus-6 replicants depicted in Blade Runner? In addition, who decides what the optimal lifespan of a clone is? These queries from the world of science fiction may appear to be fanciful or esoteric, but they shall help us see Coase’s famous theorem, and the problem of conflict generally, in a new light.Download the article from SSRN at the link.
My absolute favorite bit is when Sam is in the witness box in the trial of Mr. Pickwick on a charge of breach of promise, and the trouble he causes for the other side. But Sam having supper with the posh servants of Bath is a pretty close second. Dodson and Fogg, the shifty lawyers, are pretty good too, as are the drunken medical students.Here's Mr. Ruse on Oliver Twist:
There are some lesser novels of which I am incredibly fond, Dombey and Son and Oliver Twist in particular. I love the bit when Mr. Bumble has married the matron of the workhouse, is now under her thumb, and (being accused of a crime) told that in law even though his wife may have been the main party he is the one responsible. Most people know the first line but miss the far funnier last lines.
“It was all Mrs. Bumble. She would do it,” urged Mr. Bumble; first looking round to ascertain that his partner had left the room.
“That is no excuse,” replied Mr. Brownlow. “You were present on the occasion of the destruction of these trinkets, and indeed are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction.”
“If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass — a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience.”
Laying great stress on the repetition of these two words, Mr. Bumble fixed his hat on very tight, and putting his hands in his pockets, followed his helpmate down stairs.
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The goal of this article is to examine the degree to which Puritanism influenced early American political culture. That is, how did Puritan values and practices facilitate the development of an exceptional political culture during the formative years of Massachusetts Bay? Utilizing a case-study method of analysis, this article examines the political developments in the General Court and the town of Boston during the decade 1630 to 1640. The research methods used are primarily the writings of leading Puritans, and concomitant town, church, and colonial records. The main finding is that the Puritans paid little heed to notions of democracy, theocracy, oligarchy, or British political traditions; instead, Puritan institutions and practices were based on the primary Puritan ideal of godliness. However, the formative influence of the godly ideal inadvertently reinforced democratic and republican ideals. The conclusion is that the focus on godliness provides a comprehensive and multiple explanations for the course of political developments in early Massachusetts Bay.
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This Article will provide, for the first time, a comprehensive account of the writ of habeas corpus in Georgia not primarily focused on use of the writ as a postconviction remedy. The Article covers the 132-year period stretching from 1733, when the Georgia colony was established, to 1865, when the Confederate States of America was finally defeated and the American Civil War came to a close.
The parish of Neithrop, now a suburb of Banbury, was known in the nineteenth century as a place ‘inhabited by the poor and persons of bad character’ and, according to the demographer Peter Laslett, was an area ‘notorious’ for non-marital arrangements. Drawn to investigate further by the tragic story of Susan Owen, allegedly murdered by the man she was living, ‘Badger’ Willson, and by the suggestion that five out of a row of eight houses were inhabited by cohabiting couples, I discovered a very different picture. Not only did it turn out that neither of these specific claims was true, but the high rate of marriage among Neithrop couples also cast doubt on the widespread assumption that cohabitation was common among the Victorian poor.Download the paper from SSRN at the link.
In The Pedagogy of Violence, I develop a legal theory of the ways in which human beings teach each other to be violent. I am responding to the “contagion of violence” theory advocated by legal theorists such as Colin Loftin and Dr. Jeffrey Fagan, who argue that violence is akin to a contagious disease. Using disease as their paradigm, Loftin and Fagan contend that courts and political institutions should address the problem of violence through what they call the “epidemiological” approach; that is, they say that violence should be addressed as a public health problem. Though I do not take issue with the data-collection and public education strategies that they advocate, I argue against other aspects of this approach. Namely, I believe that the “contagion” metaphor dangerously dehumanizes violent offenders by characterizing them as “vectors” of parasitic disease. This language may pave the way for dangerous social policy. Moreover, the contagion metaphor has the unfortunate effect of obscuring the personal histories and emotions of violent actors, which may lead to myopic legal redresses that fail to get at the roots of the violence problem in our society – for example, poverty and despair, alienation and grief.Download the article from SSRN at the link.
Thus, I argue that we should reconceptualize the process of violence transmissions as a “teaching lesson;” in other words, that we acknowledge that we teach each other, via a very specific pedagogy, how to be violent. In attending to the particulars of this pedagogy, we may better unearth the emotional, economic, and moral dimensions of violence transmissions, which can only lead to better, more tailored strategies of legal redress.
In A Pedagogy of Violence, I note that several interdisciplinary jurisprudential methods can be used to study this pedagogy – for example, the therapeutic justice, law and economics, and law and sociology approaches. I add to this list, advancing a legal-literary study of violence transmissions, since literature on violence is devoted to tracing the emotional triggers that spur people to violence. In A Pedagogy of Violence, I offer an analysis of Nobel Laureate Elfriede Jelinek’s novel The Piano Teacher, which gives a detailed study of the ways in which violence spreads from one person to another. Using the lessons learned from this novel, I then circle back to my critique of the “contagion” approach of Loftin and Fagan. In particular, I critique the decision N.A.A.C.P. v. Acusport, 271 F. Supp. 2d 435 (2003), where the N.A.A.C.P. attempted to get damages from a gun manufacturer for its negligent dissemination of guns in inner city neighborhoods. The court’s reliance on the contagion metaphor, in lieu of a “teaching lesson” approach, I maintain, obscured the ways in which violence was transmitted, and prevented the N.A.A.C.P. from obtaining deserved relief.
The Victorian banking system was plagued by regular bank failures due to fraud or mismanagement exacerbated by grossly misleading information. In the opinion of informed contemporaries, many banks that did not fail were weakened by fraud. I look at data on the frequency and magnitude of fraud, and show that while it was a minor part of a healthy financial system it was substantially more than fraud in the UK or US in the 20th century; excepting the period after 1878 (the last 23 years of Queen Victoria's 63 year reign), there was the equivalent of Madoff-scale scandal or greater every decade. I develop a simple model that explains why rational agents might, under limited monitoring, engage in fraud to cover short-term losses in a bank.Download the paper from SSRN at the link.
This article considers the place of the thirteenth-century book known as Bracton in the early-modern common law. Using methods from the history of reading, it examines both the uses made of Bracton and the evidence to be found in the surviving copies of the first printed edition. It addresses the impediments to the use of Bracton, the printing of the first edition, the text’s readership and its place in the early-modern common-law canon.Download the article at the link.
The second half of the article identifies topics and material in Bracton which seem to have been of particular interest. Bracton was a recognized source for criminal law and there is some evidence of impact on the law of evidence, servitudes and a little for contract law. An examination of the early-modern law of treason shows that Bracton had an important role in changing the concept of treason from a crime against the monarch to something like the much broader classical crimen laesae maiestatis. The article demonstrates that legal historians should be concerned to identify not only what lawyers read, but how they read it.
Nobody could have known it at the time, but when Rex Stout’s novella Justice Ends at Home was published in 1915, it foreshadowed not only the rise of two enduringly popular fictional heroes (Nero Wolfe and Archie Goodwin), but also the fall of one enduringly objectionable actual villain (Judge Martin T. Manton of the United States Court of Appeals for the Second Circuit). Leading scholars of the work of Rex Stout agree that the two main heroic characters in Justice Ends at Home — the flabby, phlegmatic, middle-aged Simon Leg and his sharp, energetic, youthful assistant Dan Culp — prefigured the fat Nero Wolfe and svelte Archie Goodwin who made their first appearance in Stout’s 1934 novel, Fer-de-Lance. As Stout biographer John McAleer puts it, “eighteen years before Fer-de-Lance was written, Wolfe and Archie already lived nebulously in the mind of Rex Stout.” Unlike Simon Leg and Dan Culp, Judge Fraser Manton — the main villainous character in Justice Ends at Home — has passed largely unnoticed by scholars of Stout and of the law. But the fictional Judge Manton is in fact a prefiguration of the infamous real-life Judge Martin T. Manton of the U.S. Court of Appeals for the Second Circuit. The similarities go beyond the names. Indeed, the two Mantons have enough in common to support an inference that Stout based his fictional Judge Fraser Manton on the real Martin Manton, although the real Manton would not become a judge until 1916 — the year after Justice Ends at Home was published. In other words, Stout’s selection of a corrupt Judge Manton for the lead bad-guy role in Justice Ends at Home was intriguingly prescient.
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Even when the first subject matter of copyright control was literary works, the specific rights of authors who produce these works had never been clearly articulated. Copyright laws have protected a statutory right to distribute the work to the public that may be broadly owned by both author and publisher while the common-law right of property over the work, which would have protected an author’s creative interest in the work, have been dismissed by the courts as a legitimate source of law. This paper examines literary property as a form of authorial rights, which authors may potentially have over works of authorship and which is both separate and distinct from statutory copyright. By looking at publication contracts between manuscript publishers and authors such as John Milton, Ralph Waldo Emerson, Harriet Beecher Stowe, Henry Thoreau, and Oliver Wendell Holmes, this paper suggests that there are two sources of rights over literary and artistic works - one at common-law and another at statute – as evidenced by the fact that authors retained personal property rights over their work after exclusive rights to print were assigned to the publisher. Should the notion of literary property be accepted as another source of right for the author, there will be immense implications for how scholars, jurists, and policy-makers understand and shape copyright laws. If literary property is acknowledged as separate from statutory copyright, then ownership of the work and ownership of the specific rights under §106 of the Copyright Act would entail different entitlements. The author’s role in the copyright system will be more clearly defined as ownership of literary property delineates rights owned and obligations owed by authors who produce literary works for the rest of society. Finally, this paper argues that social expectation to access creative works may be checked against the authors’ right to protect their creative personality and integrity as well as the publishers’ right to receive fair payment for the use of the work if a clear conceptual distinction between literary property and copyright is drawn.Download the article from SSRN at the link.
Because of the prolific scholarship on legal theory by Judge Richard Posner, especially since his turn away from law and economics toward “pragmatism,” legal scholars began reading “legal pragmatism” as references to Posner’s thought alone. My present task is part of a larger process of rethinking Posner’s version of legal pragmatism. Posner’s inspiration for his turn toward pragmatism can be attributed, in large measure, to Oliver Wendell Holmes, Jr. Posner buys into three central insights of legal pragmatism, whose origins lie in the work of Holmes, anti-formalism, the prediction theory of the law, and a modicum of indeterminacy in judicial decision making. Further, Posner is a methodological pluralist, refusing to reduce the process of adjudication to any one method or approach, such as textual literalism or originalism. He takes the mask off of these judicial theories and claims that underneath each is a pragmatist.Download the paper from SSRN at the link.
But Posner’s central position, to which the present article is a propadeutic to a more substantial criticism, is that academic philosophy and philosophical pragmatism in particular have no role to play in legal pragmatism as it manifests itself in the process of adjudication or in the process of legal scholarship. Since the legal theory Posner thinks useless is so infected by philosophy, legal theory, according to Posner is not relevant to the law either. If legal theory is not relevant to the law, legal institutions seem intellectually impoverished, ignoring the storehouse of wisdom in philosophy and depriving law of the intelligence necessary for social growth. Posner’s polemical stance has not gone unnoticed in the world of jurisprudence and legal theory. But the result has been that legal scholars have now begun to associate legal pragmatism with Posner’s seeming anti-theory. Thus, an important element in rethinking Posner’s version of legal pragmatism is presenting a defense of Holmes as a philosophical pragmatist and a pragmatist in the tradition of his contemporary, Charles Sanders Peirce. Such is my present task. Holmes’s scholarship resides at the intersection of philosophical and legal pragmatism, where Posner imagines that these roads run parallel to each other and therefore do not intersect.
The central position I advance here is that Holmes’s historical legal scholarship and several of his judicial arguments evince the pragmatic sensibility of C.S. Peirce. Holmes puts to work several elements of Peirce’s pragmatism: (1) that we must infer knowledge internal to the mind by external signs; (2) that the best method to fix our beliefs and settle our doubts relies on a communal inquiry as opposed to authoritarian dictates; (3) that the meaning of a concept, such as law, is found in the effects of its enactment; (4) that falliblism, liberalism, and skepticism of absolute truth are the proper norms to deter dogmatism and authoritarianism; (5) that the reality of values and ideals are found in their functional effects; and (6) that the norms, principles, standards, and rules, which guide the process of judicial inquiry, are generated by the facts of the case, as opposed to being a priori principles (versus natural law theory) and as opposed to lacking any reality at all, (versus nominalism). Peirce offered us the idea that to understand the meaning of a concept, we must look to its practical effects. I offer the idea that if we want to know the meaning of pragmatism itself, we should look to its practical effects in the scholarship and judicial decisions of Oliver Wendell Holmes, Jr.
Historically-minded scholars and jurists invariably turn to English law and precedents in attempting to recapture the legal world of the framers. Blackstone’s famous Commentaries on the Laws of England offer a convenient reference for moderns looking backwards. Yet the generation that framed the Constitution often relied on other sources, including Scottish law and legal institutions. Indeed, the Scottish judicial system provided an important, but overlooked, model for the framing of Article III. Unlike the English system of overlapping original jurisdiction, the Scottish judiciary featured a hierarchical, appellate-style judiciary, with one supreme court sitting at the top and an array of inferior courts of original jurisdiction down below. What’s more, the Scottish judiciary operated within a constitutional framework - the so-called Acts of Union that combined England and Scotland into Great Britain in 1707 - that protected the role of the supreme court from legislative re-modeling.
This Article explores the influence of the Scottish judiciary on the language and structure of Article III. Scotland provided a model for a single “supream” court and multiple inferior courts, and it defined inferior courts as subordinate to, and subject to the supervisory oversight of, the sole supreme court. Moreover, the Acts of Union entrenched this hierarchical judicial system by limiting Parliament to “regulations” for the better administration of justice. Practice under this precursor to Article III’s Exceptions and Regulations Clause establishes that a supreme court’s supervisory authority over inferior courts would survive restrictions on its as-of-right appellate jurisdiction. The Scottish model thus provides important historical support for the scholarly claim that unity, supremacy, and inferiority in Article III operate as textual and structural limits on Congress’s jurisdiction-stripping authority.
In most areas, economists look to competition to align incentives, but not so with courts. Many believe that competition enables plaintiff forum shopping, but Adam Smith praised rivalry among courts. This article describes the courts when the common law developed. In many areas of law, courts were monopolized and imposed decisions on unwilling participants. In other areas, however, large degrees of competition and consent were present. In many areas, local, hundred, manorial, county, ecclesiastical, law merchant, chancery, and common law courts competed for customers. When parties had a choice, courts needed to provide a forum that was ex ante value maximizing.
Wife abuse was much in the public eye in the nineteenth century. Throughout the century a large but unknown number of wives sought to preserve their lives by abandoning their homes. It was never easy, but at least some were not themselves abandoned by the courts, which dealt with the many issues raised: for example, whether relatives and neighbors were allowed to assist them and even encourage them to flee. Fortunately, the American Revolution inspired a judicial belief that problems could be solved. Equity courts flourished and the chancellors who presided felt comfortable acting where the law was silent. More and more over the course of the century, and over a widening area, chancellors and common law judges could be heard to denounce both wife abuse and the abusers. By the end of the century, they had come to reject any notion that a wife’s provocation justified or excused abuse, that one who was not without fault forfeited her right to be free from violence, that staying with an abuser was condonation. Through judicial activism, some wives found safety and support.
Quoting from online exchanges with his students, the author explains and illustrates how he uses case-related limericks to supplement classroom instruction in his first-year Contracts course. His TWEN discussion forum, dubbed “Poetic Justice,” encourages students to get turned on to the poetic side of contract law as they attempt to formulate legal rules derived from leading cases.Download the paper from SSRN at the link.
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