Literary Appearances

Meet a new police detective, Scott Cowen of the Brick Township, NJ, police force. He's a character in James Patterson's newest novel, Cross-Fire. If he reminds you of Scott Cowen, President of Tulane University, don't urge President Cowen to sue for defamation, or false light, or infringement of his right of publicity, or any of that good stuff. Dr. Cowen paid for the privilege of appearing in the book.  A great way to raise money for your school.

Audio Files Available For Morawetz Book On Law and Literature

Now available from Wolters/Kluwer: Audio Files to accompany Thomas Morawetz's book Literature and the Law (originally published 2007). More here.

The Trial

From the New York Times, an account of the legal battle over Franz Kafka literary legacy. The parties: the National Library of Israel and the heirs of Max Brod, who handled Mr. Kafka's estate.

Camus' "The Outsider" and Criminal Punishment Theory

Emlyn Walter Cruickshank, Australian National University College of Law, has published Dialogues of Indifference: Albert Camus' 'The Outsider' and Criminal Punishment Theory , as ANU College of Law Research Paper No. 10-29. Here is the abstract.

This paper was written as an honours paper under the supervision of Dr Tony Connolly.

Upon reading Albert Camus’ 'The Outsider', the curious feeling arises that despite his indifference at having killed a man, Meursault is not the real villain of the story. The villains are those who punish him and the institution through which this punishment is administered. This feeling rests upon a strong sense of injustice – a sense that the institution of law did not treat Meursault as it could have, and certainly not as it should. Camus thereby raises genuine issue that philosophers of criminal punishment ought to be concerned with.

Camus articulates an improper and absurd administration of punishment. In so doing he gives an alternate framework with which to appraise prevailing theories of criminal punishment. My primary thesis is that those sympathetic to Camus' existentialist concern should be more inclined toward punishment justified as communicative retribution. The theories of utilitarianism and other variants of retributivism - intrinsic desert, unfair advantage and censure - are either disinterested in the behaviour of Camus' court or implicitly condone it.

Secondarily, and by necessary implication, I advocate the worth of an interdisciplinary approach to the development of jurisprudential thought generally. Building upon the Law and Literature movement, this paper impresses the value in using critical images of the law cast by existentialist literature in order to determine the theoretical framework which best justifies the existence of a legal practise and regulates the adjudicative processes through which it is administered. Further, it examples how this can be achieved.

Download the paper from SSRN at the link.

New Legal Literary Prize

The University of Alabama School of Law is launching a prize to honor the best book in legal fiction published in the year. It is named after Harper Lee, the author of the iconic To Kill a Mockingbird. The first prize will be given out next year, to the book published in 2010 that "best exemplifies the role of lawyers in society and lawyers' power to effect change."

More here.

Searching For Charlie Chan

The new book out on Charlie Chan, the fictional detective, is getting good reviews. Author Yunte Huang explores the origins, influence and meaning of Chan in Charlie Chan:
The Untold Story of the Honorable Detective and His Rendezvous with American History (Norton, 2010).

Charlie Chan was the hero of a number of murder mysteries written by Earl Derr Biggers, and brought to the screen during the 1930s by Warner Oland, Sidney Toler, and Roland Winters. Louisiana-born Mantan Moreland also starred in the Chan films as the detective's chauffeur (although Mr. Moreland was a talented actor who made a number of other movies). Charlie Chan even made it into the Saturday morning cartoon line-up.
For more about Chan see the website CharlieChan.net and the Charlie Chan Family Home.

Jill Lepore writes about the inspiration for the character in Chan, the Man: On the Trail of the Honorable Detective here for the New Yorker.

More on Asian image and portrayals on film in Gina Marchetti, Romance and the "yellow peril" : race, sex, and discursive strategies in Hollywood fiction (University of California Press, 1993).

Reasoning From Literature

Jessica M. Silbey, Suffolk University Law School, has published Introduction to Symposium: Reasoning from Literature, at 22 Yale Journal of Law and the Humanities 339 (2010). Here is the abstract.

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 is still marginalized in legal studies as interdisciplinary, not “really law,” and lacking the core persuasive power that legal argumentation and doctrinal analysis do. This Symposium was put together to wrestle with what it means to “reason from literature” and to contest the boundaries between legal reasoning and literary logic. Jessica Silbey was the Symposium organizer and wrote the introduction to the volume, entitled “Reasoning from Literature.” Other contributors to the volume include Peter Brooks, Laura Heymann, Bernadette Meyler Carol Rose and Kenji Yoshino.

Download the article from SSRN at the link.

Shakespeare and Imperfect Justice

Roberta Linciano, University of Salento, has published Musing Upon the Imperfect Justice of Shakespeare's Measure for Measure. Here is the abstract.

Shakespeare’s Measure for Measure can be read as an inquiry into the themes of government and judgement. How do we make people obey the law? By exercising freedom or restraint? Should justice be administered with mercy or with equity? Who is the honest judge? The one who considers every situation impartially or the one who punishes in accordance with the circumstances of the case? Shakespeare shows how all the drama’s principal characters – Duke Vincentio, Angelo and Isabella – deal with such issues by delegating the role of decision-making to a third entity represented by the Deputy, the Rule and the Word, respectively. If, on the one hand, the act of attributing the burden of their personal responsibility to someone else irremediably compromises their proclaimed perfection, on the other, it triggers a process of self/other knowledge which will gradually lead them to recognize and accept the paradoxical nature of human law as well as their flaws.

What I will point out through the analysis of the final trial scene is the Bard’s belief that human justice will always live the irresolvable tension between the respect for general principles and the sensitivity towards the individual’s unique narrative. Vincentio’s unexpected and disappointing verdict is far from being a gratuitous act of forgiveness. It is an attempt to confront the “war ’twixt will and will not” (2.2.33) which is every judge’s and every man’s major challenge.

The Uses of Shakespeare in the Law Curriculum

Allen Mendenhall, West Virginia University, Temple University, and Furman University, has published Shakespeare's Place in Law-and-Literature. Here is the abstract.

Nearly every Anglo-American law school offers a course called Law-and-Literature. Nearly all of these courses assign one or more readings from Shakespeare’s oeuvre. Why study Shakespeare in law school? That is the question at the heart of these courses. Some law professors answer the question in terms of cultivating moral sensitivity, fine-tuning close-reading skills, or practicing interpretive strategies on literary rather than legal texts. Most of these professors insist on an illuminating nexus between two supposedly autonomous disciplines. The history of how Shakespeare became part of the legal canon is more complicated than these often defensive, syllabus-justifying declarations allow. This article examines the history of Shakespeare studies vis-à-vis legal education. It begins with early law-and-literature scholarship, which focused on Shakespeare’s history or biography – speculating as it did about whether Shakespeare was a lawyer or perchance received legal training – and concludes with recent law-and-literature scholarship treating Shakespeare as a source of insight for law students and lawyers alike. I submit that early law-and-literature scholarship on Shakespeare anticipated New Historicist theory and that more recent law-and-literature work, with its turn to presentism, is in lockstep with Shakespeare studies. In law-and-literature classrooms, Shakespeare is more fashionable like a hobby than scholarly like a profession; but law-and-literature scholarship on Shakespeare amounts to high-caliber work based on interdisciplinary research as well as deep engagement with legal and literary texts.

I wrap up this essay with a note about the direction of the university in general and of the law-and-literature movement in particular. I admit that my closing argument, as it were, is tendentious. It raises issues usually raised by confrontational academics and suggests remedies for what William M. Chace has called “the decline of the English Department” or what Harold Bloom has called “Groupthink” in “our obsolete academic institutions, whose long suicide since 1967 continues”. If Chace and Bloom are right about a decline in academic standards – evidence shows that they are at least right about a decline in numbers of English majors – then the fate of literary studies seems grim. Nevertheless, Chace and Bloom overlook the migration of literature professors into American law schools, a phenomenon yet to receive critical attention. Another aspect of this phenomenon is the migration of students from the humanities to professional schools. I personally have known many students who wished to go on to graduate school in the humanities but quite understandably viewed that route as impractical and went to law school instead. A positive result of this trend is that a substantial body of law students is open to the idea of law-and-literature and finds luminaries like George Anastaplo or Stanley Fish more interesting than other law professors. My final comments address the strange exodus of literary scholars into professional schools, which pay more money and arguably provide vaster audiences and readership, more generous funding opportunities, and reduced teaching loads. Perhaps more than other literary disciplines, save for cultural studies, Shakespeare studies has moved into the realm of interdisciplinarity, albeit without large contributions from scholars outside of literature departments. The law-and-literature field would have perished without the expertise of literature professors; likewise, Shakespeare studies, if it continues down the path of politics and cultural criticism, will perish without the expertise of economists, political scientists, and legal scholars, whose mostly non-Marxist perspectives, when pooled with the perspectives of literature professors, might fill out a space for interesting scholarship and redeem the interdisciplinary label. Information-sharing is especially crucial for literature scholars who, in order to examine the history of Shakespeare in American culture, have turned to practices and methods traditionally reserved for other disciplines.

Full text not currently available on SSRN.

Yet Who Would Have Thought The Old Man To Have Had So Much Blood In Him...

And academics, their readers, and viewers to have had so much interest in the horror film. Well, apparently they do, according to this article in the Chronicle of Higher Education, which documents the continuing stream of titles on the genre. What's in the pipeline? Steffen Hantke's American Horror Film: The Genre at the Turn of the Millennium (University Press of Mississippi), Thomas Fahy's collection The Philosophy of Horror (University Press of Kentucky), Wheeler Winston Dixon's A History of Horror (Rutgers University Press) and much, much, more. To bed, to bed, to bed, with all these great tomes to read, and all these films and books to visit and re-visit.

Susan Sage Heinzelmann's "Riding the Black Ram" Is Published

From Stanford University Press:

Stanford University Press is pleased to announce the publication of Riding the Black Ram: Law, Literature, and Gender, by Susan Sage Heinzelman. Susan Sage Heinzelman is Associate Professor of English and Director of the Center for Women's and Gender Studies at the University of Texas at Austin.

Unruly women are not often represented in a good light. Whether historical, or fictional, disruptive women with their real or imagined excesses have long provided the material for literary and legal narratives. This probing new work analyzes a series of literary, legal, and historical texts to demonstrate the persistence of certain gender stereotypes.

In her 1820 adultery trial, Queen Caroline was depicted in a cartoon riding into the House of Lords on a black ram that had the face of her Italian lover. As this book reveals, a number of women, remembered largely for their insubordinate presence, have metaphorically "ridden the black ram" in the last 700 years. Heinzelman's historicized understanding of the relationship between law and literature reveals a disquieting pattern in the legal and literary representations of women and provides a new recognition of the significance of sexuality and gender in the way we narrate our world.

More information about this book may be found at http://www.sup.org/book.cgi?id=11686.

The publisher has sent me a copy of this book, and I will be publishing a review in the near future.

Literature, Sexuality, and Law

Timothy Stewart-Winter, Yale University, and Simon Stern, Faculty of Law, University of Toronto, have published Picturing Same-Sex Marriage in the Antebellum United States: The Union of 'Two Most Excellent Men' in Longstreet's 'A Sage Conversation', at 19 Journal of the History of Sexuality 197-222(May 2010). Here is the abstract.

Augustus Baldwin Longstreet’s short story “A Sage Conversation” appears, at first glance, to be an astonishingly modern tale. It assembles an elaborate social tableau that has at its center “George Scott and David Snow; two most excellent men, who became so much attached to each other that they actually got married” and “raised a lovely parcel of children.” The story appeared in Longstreet’s 1835 collection Georgia Scenes, Characters, Incidents &c. in the First Half Century of the Republic, an early contribution to the tradition of American humor. This collection was reprinted more than twenty times before the end of the century, and has been an object of ongoing fascination for literary critics. However, critics have overlooked the question of how to situate “A Sage Conversation” in relation to the history of sexuality. We interpret “A Sage Conversation” as an artifact of a profoundly different moment from our own in the long, intersecting histories of marriage and sexuality in the United States. To that end, we contextualize the story, from a literary perspective, in relation to the traditions of the tall tale and the narrative of domestic life, and from a social and legal perspective, in relation to nineteenth-century American thought about same-sex sexuality, gender roles, and restrictions on marriage.

Download the article from SSRN at the link.

Some Recent Publications In Law and Literature

Some recent publications in law and literature:

Conter, Claude, Justitiabilität und Rechtmässigkeit : Verrechtlichungsprozesse von Literatur und Film in der Moderne (Rodopi, 2010).

Conter, Claude, Literatur und Recht im Vormärz (Aisthesis, 2010).

Darnton, Robert, The Devil in the Holy Water, or the Art of Slander From Louis XIV to Napoleon (University of Pennsylvania Press, 2010).

Frank, Catherine, Law, literature, and the transmission of culture in England, 1837-1925 (Ashgate, 2010).

Greinger, Bernhard, and Barbara Thums, Recht und Literatur : interdisziplinäre Bezüge (Winter, 2010).

Harris, Edward Monroe, and Delfim Leão, Law and drama in ancient Greece (Duckworth, 2010).

Heinzelman, Susan Sage, Riding the Black Ram: Law, Literature and Gender (Stanford, 2010).

Kertzer, Jonathan, Poetic Justice and Legal Fictions: Studies in Literary Justice (Cambridge University Press, 2010).

Krueger, Christine L., Reading for the Law: British Literary History and Gender Advocacy (University of Virginia Press, 2010).

Macpherson, Sandra, Harm’s Way: Tragic Responsibility and the Novel From (Johns Hopkins University Press, 2010).

Raffield, Paul, Shakespeare's imaginary constitution : late Elizabethan politics and the theatre of law (Hart, 2010).

Ronner, Amy D., Law, Literature, and Therapeutic Jurisprudence (Carolina Academic Press, 2010).

Thompson, Carlyle Van, Black Outlaws: Race, Law, and Male Subjectivity in African American Literature and Culture (Peter Lang, 2010).

The Consequences of Imagery

Gregory Scott Parks, District of Columbia Court of Appeals, and Danielle C. Heard, Stanford University School of Humanities & Sciences, have published 'Assassinate the Nigger Apes' [1]: Obama, Implicit Imagery, and the Dire Consequences of Racist Jokes . Here is the abstract.

In 1994, Congress passed legislation stating that Presidents elected to office after January 1, 1997, would no longer receive lifetime Secret Service protection. Such legislation was unremarkable until the first Black President - Barack Obama - was elected. From the outset of his campaign until today, and likely beyond, President Obama has received unprecedented death threats. These threats, we argue, are at least in part tied to critics and commentators’ use of symbols, pictures, and words to characterize the Obama as a primate, in various forms - including cartoonist Sean Delonas’ controversial New York Post cartoon. Against this backdrop and looking to history, cultural critique, federal case law, as well as cognitive and social psychology, we explore how the use of seemingly harmless imagery may still be racially-laden and evoke violence against its object.

[1] Morgan v. McDonough, 540 F.2d 527, 531 (1st Cir.1976) (holding in a school desegregation case, that White students harassed Black students by chanting "assassinate the nigger apes"); see also infra notes 99 to 103 and accompanying text.

Download the paper from SSRN at the link.

Performer of the Narcocorrido Murdered

Mexican singer Sergio Vega, known as El Shaka, was assassinated last Saturday. Mr. Vega was known for his performances of the songs known as "narcocorridos" or drug ballads. Notes the Urban Dictionary, "Literally translated it [narcocorrido] means "drug ballad", though not all narcocorridos are about drugs. Corridos have long described the poor and destitute, bandits and other criminals, as well as illegal immigrants to the United States, but the focus is on drug smugglers. Narcocorridos often refer to particular people, events, and specific dates that tell a story."

For more about narcocorridos, see among other titles Elijah Wald's book Narcocorrido: A Journey Into the World of Drugs, Guns, and Guerrillas, Sam Quinones' True Tales From Another Mexico (University of New Mexico Press, 2001), Mark Cameron Edberg, El Narcotraficante: Narcocorridos and the Construction of a Cultural Persona on the US-Mexican Border (University of Texas Press, 2004), Tracy Arwari, The Narcocorrido: A Musical Subculture In Translation (Georgetown University Press, 2003), Rubén Tinajero Medina and María del Rosario Hernández Iznaga, El narcocorrido: tradición o mercado? (Universidad Autonóma de Chihuahua, 2004) and John McDowell, Poetry and Violence: The Ballad Tradition of Mexico's Costa Chica (University of Illinois, 2000).

Tolstoy and Spanish Law

José Calvo González has published El alma y la ley. Tolstói entre juristas. España (1890-1928)(Sevilla: Comunicación Social Ediciones y Publicaciones (2010)(Colección Historia y Presente, nº 5). More information from the website, where you can also read an excerpt from the first chapter, "Tolstoi y la cultura literaria del Derecho en Espana (1890-1928)" (Tolstoy and legal literary culture in Spain (1890-1928).

The author is Professor of the theory and philosophy of law at the University of Malaga and Judge at the Tribunal Superior de Justicia of Andalucia.

A Clockwork Orange

Daniel Albahary has published A Legal Analysis of Stanley Kubrick’s ‘A Clockwork Orange’ and What it Means to Modern America. Here is the abstract.

Stanley Kubrick’s 1971 film adaptation of Anthony Burgess’s 1962 novel, “A Clockwork Orange,” is a shocking and fascinating film. Upon its initial release, it was rated “X” in the United States before it being re-edited to obtain an “R” rating. Beyond its cinematic worth the intense violence and misogyny it embodies and suggests, however, the film reveals much about the then and now contemporary attitudes towards criminal punishment prevailing in western democracies. Law professor Robert Batey claims that the film provides a vehicle “for students to examine fundamental aspects of criminal law.” Taken to the next level, the film also reminds us of the many international and domestic legal questions provoked with respect to human subject experimentation and the creation of the Nuremberg Code following the Nazi atrocities of the Second World War, the Belmont Report in the United States following the notorious Tuskegee experiments, as well as the infamous MKUltra program sanctioned by the Central Intelligence Agency (CIA). The film remains, in some sense, timeless for these reasons. But it is even more significant because the Kafkaesque and dystopian prophecy of the future it portends may be extant in modern day America. The film is consumed by themes of maintaining law and order, reducing criminality, and identifying appropriate forms of punishment for criminal violence and deviant behavior. On a deeper level, the film questions the roles of society and government in creating the social and legal realities in which we live.

“A Clockwork Orange” thus may not only be Kubrick’s quixotic fantasy of violence and brutal misogyny but more the ideological suggestion of a pseudo-fascistic incarcerative police state that may one day arise in America and other Western democracies in response to violent criminal or deviant behavior, or perhaps even with the aim of “brain-washing.” Although mostly the work of English authors such as Anthony Burgess, George Orwell, and Alan Moore, the idea of a reemerging fascist state that dubiously imprisons and variously tortures its citizens is not unimaginable in the eyes of Americans such as Naomi Wolf.

Echoing this possibility, “A Clockwork Orange” is a surreal, often uncomfortable portrayal of a once respectable society in social and legal decay. The film presents a frightening picture of a society where violence has begun to tighten its stranglehold on the populace. While a sturdy police and authoritarian state presence exists to combat the persistent violence, society is on the brink of total chaos as hooligans ruthlessly threaten law and order. The central themes and events of the film illustrate the film’s continued relevance to contemporary issues including the desire to combat youth violence, the desire for social, moral, and legal order, the desire for justice, the desire to prevent cruel and unusual punishment, as the well as the desire to meet the goals of retribution and rehabilitation in criminal punishment.

Produced almost 40 years ago, “A Clockwork Orange,” as an expression of political culture, still resonates in contemporary American society. The themes and events present in the film presciently serve as indicia of the social, political and legal reality the nation may find itself in if the government does not cease to circumvent the rule of law in some cases, does not continue to zealously protect the natural and constitutional rights of citizens, and alter its current practice of incarcerating increasing numbers of prisoners in others.

The paper performs a legal analysis of the film and explore the relevancy it has for modern day America. While some issues may remain unresolved, it adopts a normative view of the law and, mirroring the central events of the film, analyzes the retributivist nature of juvenile punishment, the importance of preventing cruel and unusual punishment, and the legal status of the forced administration of psychotropic drugs to prisoners.

The author has not provided the full text, or an indication of where it is available. Interested persons might try emailing him.

Sonnets and Statutes

Jeffrey G. Sherman, Illinois Institute of Technology, Chicago-Kent School of Law, has published Scorn Not the Sonnet: In Search of Shakespeare's Law. Here is the abstract.

Legal scholars love to use Shakespeare’s works as stimuli and even models for legal analysis. We write about King Lear or Measure for Measure or The Merchant of Venice but rarely about the Sonnets. Why is that? Perhaps we find the poems too obscure. Or too insipid. (One of Shakespeare’s most famous sonnets – the “Fortune and men’s eyes” one – seems at first glance to say nothing more than “When I’m feeling depressed, I think about you, and that cheers me up.”) In this article, I examine three of Shakespeare’s sonnets and illustrate how a legal scholar or law professor might use these poems as scholarly or pedagogical vehicles. These illustrations will not discuss legal issues to a point of conclusion but will simply present some legal issues as analytic opportunities offered by a close reading of the Sonnets.

Download the paper from SSRN at the link.

Bloomsday

Happy Bloomsday. On December 6, 1933, Judge John Woolsey ruled that James Joyce's Ulysses could be imported into the United States, since it was not, as the United States government maintained, obscene. The Second Circuit affirmed. United States v. One Book Entitled Ulysses by James Joyce, 72 F.2d 705, 706 (2d Cir. 1934).

And just in time, Apple has done a 180 on its attitude toward Robert Berry's Ulysses app. Yesterday his images were too, well, nude for the Job(s).

More on Bloomsday from the L.A. Times, Bloomsdayrun.org, the James Joyce Centre, and the New York Times.

Bibliography:

Corn-Revere, Robert, New Age Comstockery, 4 CommLaw Conspectus 173 (1996).

Ernst, Morris L., Reflections on the Ulysses Trial and Censorship, 3 James Joyce Quarterly 3-11 (Fall 1965).

Gillers, Stephen, A Tendency to Deprave and Corrupt: The Transformation of American Obscenity Law from Hicklin to Ulysses, 85 Washington University Law Review 215–96 (2007)
Pagnattaro, Marisa Anne, Carving a Literary Exception: The Standard and Ulysses, (Summer 2001).

Segall, Jeffrey, Joyce in America: Cultural Politics and the Trials of Ulysses (Berkeley: University of California Press, 1993).

Vanderham, Paul, James Joyce and Censorship: the Trials of Ulysses New York: New York University Press (1998).

Younger Irving, "Ulysses in Court: The Litigation Surrounding the First Publication of James Joyce's Novel in the United States", in Classics of the Courtroom (James W. McElhaney ed.; PEG, 1989).

DC Bar Foundation Acknowledges Laurence Fishburne For "Thurgood"

From BLT, the blog of Legal Times, a post noting that actor Laurence Fishburne got a thank you from the District of Columbia Bar Foundation for his performances of "Thurgood," a play devoted to the late Supreme Court Justice Thurgood Marshall. Here's more about Mr. Fishburne's performance, and about the play, written by George Stevens, Jr.