January 29, 2007

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.

January 23, 2007

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.

January 19, 2007

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.

January 17, 2007

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.

January 15, 2007

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

January 12, 2007

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.

January 11, 2007

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.

January 8, 2007

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.

January 7, 2007

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.

January 5, 2007

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.