Hanging Around "Hung"

If you've been wondering what the television drama Hung (HBO) is really about, the New York Times' Ginia Bellafante explains it all for you here. Watch it without shame, and deconstruct it seriously.

Roman Sumptuary Laws

Giuseppe Dari-Mattiacci, University of Amsterdam, Amsterdam Center for Law & Economics, and Centre for the Study of European Contract Law; Tinbergen Institute, and Anna E. Plisecka, University of Amsterdam, Amsterdam Center for Law & Economics, have published Luxury in Ancient Rome: Scope, Timing and Enforcement of Sumptuary Laws as Amsterdam Center for Law & Economics Working Paper No. 2010-03. Here is the abstract.

Between 182 BC and 18 BC, Roman lawmakers enacted a series of sumptuary laws regulating banquet expenditures. These regulations included a maximum for the number of guests and restrictions on specific foods; moreover, they were reiterated over time but were rarely enforced. Traditional explanations based on morals, protection of patrimonies and political competition do not fully account for the scope, timing and enforcement patterns of such laws. We advance and formalize a novel hypothesis, which is based on four elements: (1) luxury is a signal of wealth; (2) the senatorial class holding political power enacts sumptuary laws to restrict signaling when individuals coming from an emerging class (the equestrians) become wealthier than them; (3) enforcement of such laws would facilitate signaling of wealth and hence would be counterproductive; finally (4), the reiteration of these laws can be explained as an attempt to leverage on the expressive function of the law. The rise of sumptuary legislation occurred when the senatorial class lost economic power to the equestrians, its fall when they also lost political power to the princeps (and later the emperor). These points are discussed against the historical and legal background and presented formally.

Download the paper from SSRN at the link.

Robin Hood-Itry

Nicholas Adam Curott and Alexander Fink, George Mason University, have published Bandit Heroes: Social, Mythical or Rational?. Here is the abstract.

Bandits steal from their fellow men. Yet they are regularly subjects of folksongs, novels and movies. In these outlets they are presented as folk heroes despite their crimes. Sociological explanations for this phenomenon based upon the concept of the ‘social bandit’ and psychological explanations based upon myth building, have been brought forth to explain the seeming contradiction. We argue that the available approaches are misled or incomplete. We propose an alternative explanation for the bandit hero phenomenon and maintain that by acting in their self-interest bandits provide valuable services to society. The benefits that bandits generate form the foundation for their positive reception.

Download the paper from SSRN at the link.

An Economic Analysis of Immoral Contracts in Roman Law

Péter Cserne, Tilburg Law and Economics Center (TILEC), and Gergely Deli have published "Contracts and Morals: Towards an Economic Analysis of Immoral Contracts in Ancient Rome," as TILEC Discussion Paper 2009-037. Here is the abstract.

The way we nowadays think about “immoral” contracts is based on a number of assumptions. One of those assumptions concerns the relative isolation of law and extralegal standards. This view, however, is not new or even modern: to a large extent, it can be traced back to Roman law that has been both praised and condemned for this relative separation. In this paper we venture into the problematic of immoral transactions by combining historical, doctrinal and economic analysis. Focusing on cases and doctrines in ancient Roman law, our goal is to show how Roman lawyers found reasonable answers to issues which, in spite of obvious differences in economic and cultural context, can teach some lessons for modern contract law. After a brief preliminary on methodological problems of the economic analysis of legal history, we reconstruct the dynamics of how and why the term immorality (contra bones mores) became a general clause of Roman contract law in a relatively short time; discuss what kind of cases were solved with reference to this clause; and analyse how this clause shows the practical rationality of Roman lawyers. Finally we discuss some substantive and methodological insights this historical case can provide for the economic analysis of the interactions of law and morality.

Download the paper from SSRN here.

Marcus Garvey and Legal Narrative

Justin Hansford, Georgetown University Law Center, has published Jailing a Rainbow: Death by Narrative and the Marcus Garvey Case , in volume 2 of Georgetown Journal of Modern Critical Race Perspectives (2009). Here is the abstract.

The relevance of narrative in the law continues to reemerge in legal scholarship. This article uses concepts from both Critical Race Theory and Law and Economics to reassess the conviction of Marcus Garvey, the Harlem Renaissance era civil rights activist. In this case, newly discovered evidence suggests that the manipulation of Garvey's legal narrative by his opponents played a larger role in his conviction than first thought; a role decisive enough to raise concerns of unethical judicial bias and warrant possible exoneration hearings.

This paper argues that not only was Garvey unjustly convicted of mail fraud in 1923, but this injustice was also the culmination of an unholy alliance between Garvey's political rivals and Jim Crow era government officials. Together, the legal narrative they crafted contributed to Garvey's untimely death, tainted his legacy for decades, and helped to misshape the future of the 20th century struggle for racial justice.

Many scholars have noted that legal narratives often subordinate the voices of people of color. However, this study goes further, exploring how unjust legal narratives have served to warp our collective cultural and historical narrative. This larger result has had a powerful impact on the course of political events in our country. In this case, Garvey's conviction and deportation facilitated the marginalization and silencing of his philosophy of racial justice, a strategy that focused primarily on economic empowerment for people of African descent throughout the world. As a result of the silencing of this voice, nearly a century later Blacks have obtained the political and social rights favored by Garvey's rivals, but as a whole still suffer from grave economic disparities worldwide.

The federal judiciary has a storied legacy, being peopled by men and women who have defended and fought for our highest values as a nation. This case appears to be one of the sad exceptions to that rule. But most of all, it should serve as a cautionary tale to practitioners who must learn how to identify and fight the destructive use of legal narrative in contemporary contexts.

Download the article from SSRN here.