USA Network's Legal Series Return With New Episodes

USA Network's law-related series Fairly Legal returns Friday, March 16th at 9 p.m., 8 p.m. Central time. Sarah Shahi stars as Kate Reid, a lawyer turned mediator at her late father's San Francisco law firm. In addition, the pseudo-psychic detective show Psych returns this week, and the legal dramedy Suits is back this summer. Watch full episodes from its first season here.

The Norman Invasion and the Irish

Katherine Jacob, Case Western Reserve University School of Law, has published Divine Diversion: Divine Retribution as Dispute Resolution and the Norman Invasion of Ireland. Here is the abstract.

This essay reevaluates the Anglo-Norman invasion’s impact on native Irish culture by analyzing references to divine power in the medieval native Irish annals. This essay posits that native Irish society’s destabilization in the wake of the Anglo-Norman invasion may be better understood by analyzing patterns in the native Irish cultural belief in spiritual vengeance. Part I discusses divine retribution’s general cultural context, and explores its position in native Irish culture. It briefly compares saints’ roles in native Irish culture with their position in Anglo-Norman culture, and describes the Anglo-Norman incursion in Ireland and its wider impacts on native Irish society. Part II analyzes the native Irish annals and presents a process to assess variations in spiritual authority’s influence in native Irish culture. It presents statistical results, evaluates their significance in context, and contends that the Anglo-Norman arrival transformed native Irish perception of divine retribution as a legitimate form of dispute resolution. Then, it proposes a results-based model for dissecting divine retribution’s role in disputes. Part III discusses spiritual vengeance’s function in modern cross-cultural disputes. It then applies the proposed model to suggest that the way the Anglo-Normans avoided spiritual wrath in Ireland might provide a usable framework to suppress an opposition’s faith in, and utilization of, divine retribution as dispute resolution.

The full text is not available from SSRN.

Law and Tyranny

Timothy Sandefur, Pacific Legal Foundation, has published Love and Solipsism: Law and Arbitrary Rule in Classical Drama. Here is the abstract.

What distinguishes the rule of law from the lawless, arbitrary rule of brute force — which can almost interchangeably be described as tyranny or as anarchy — is that in a lawful rule the government’s coercive power operates according to principles of generality, regularity, fairness, rationality and public-orientation, whereas the arbitrary or lawless ruler wields power in the service of his (or their) own self-interest, or by mere ipse dixit. Law is to arbitrariness as reason is to mere will. In this paper, I explore the dichotomy between lawful and arbitrary rule as it has been represented in literature. I examine first the primal foundation of lawful rule, as depicted in Aeschylus’ Oresteia, in which law is generated by domesticating the use of force, through persuasion and willing union. Athena creates lawful order, not by fiat, but by marrying the Furies to “Persuasion”: the ambient coercive powers of the people — morally justified, yet dangerously personal urges for vengeance — will now be rationalized in accordance with public, logical, and articulable principles. By contrast, in Shakespeare’s Richard III, we witness the subversion and near-destruction of lawful order by a man who will tear apart the newly framed lawful order and make the state serve his own private ends. The contrast of these two dramas reveals that the tyrant is essentially a solipsist: his ultimate goal is to make the real world obey his say-so. And if law is like love, the tyrant is like the rapist: the forced surrender of intimacy is the best facsimile of love the solipsist can create; but it can never actually be love, because the two are separated by the same invisible and impenetrable boundary that separates truth from falsehood, or genuine loyalty from the rule of terror. I conclude with a look at the dissenter living in a lawless order, as depicted in two variations on the story of Antigone — the first by Sophocles and the second by Jean Anouilh. In both, the lawless, arbitrary rule is challenged in the name of law, and in each, the ruler nearly succeeds in substituting his private realm of mere words for the public realm of actual things. What emerges from this study is that the basic premise of all lawful order — the root of all secure liberty — is that there is a gap between the will of the ruler and the genuine law. Whenever such a gap exists — whenever it is meaningful to deliberate over whether the ruler’s commands are, in fact, law — the society will, to that extent, become one of lawful order and of (at least some) freedom. The link between tyranny and solipsism is that where the ruler’s will is accounted the law, there can be no genuine law, and thus no freedom. The paradox whereby tyranny is lawless is explained by the fact that tyranny is an attempt to impose by convention what does not originate in nature — and in the end, neither physical nature nor the nature of human relationships can be subjected to such bommands. The ultimate demand of the lawless ruler(s) is to substitute his (or their) word for the world — to compel the subject to love him (or them). And because that can never be accomplished, arbitrary rule is doomed to eventual collapse.

Download the paper from SSRN at the link.

The Lawyer As Trickster

John Denvir, University of San Francisco, School of Law, has published Guile is Good: the Lawyer as Trickster. Here is the abstract.

What is the lawyer’s genius — the talent that distinguishes us from other professions? Movies and television suggest that it is more than legal knowledge and technical skills; it is the way lawyers use creativity and cunning to outwit their adversaries. Lawyers in films and television act much like the Trickster figure in mythology and folklore. Moreover, study of the professional lives of the best real life lawyers reveals these same trickster talents. The paper argues that lawyers should embrace the trickster identity because it celebrates the valuable contributions lawyers make to the public good.

Download the paper from SSRN at the link.

Buon Compleanno, Gioachino Rossini

Google celebrates with a Rossini "leap frog doodle!" Rossini makes so many allusions to law in his operas, beginning with his first work, La Cambiale di Matrimonio (The Marriage Contract, or The Bill of Marriage) and continuing through such works as The Barber of Seville (more marriage) to his last, Guillaume Tell (William Tell).  Italian censors found this opera particularly objectionable because of its subject matter, which dealt with rebellion against the government.


Short Bibliography

Peter Goodrich, Operatic Hermeneutics:Harmony Euphantasy and Law In Rossini's Semiramis, 20 Cardozo Law Review 1649 (1998-1999).

Daniel Tritter, Dramma Giocosa, at 20 Opera Quarterly 7 (Winter 2004).

Down These Mean Streets a Camera Must Go

From Smithsonian Magazine: Ron Rosenbaum on filmmaker Errol Morris's career as a private eye.

All Those Hobbits!

In case you have been waiting for it, here is a genealogy of Lord of the Rings characters, compiled by Emil Johannson. More here at CNN's Geekout Blog.

On law in Tolkien's writings, start with W. H. Stoddard, Law and Institutions in the Shire.

Women Writers, 1500-1700

The Folger Shakespeare Library has mounted a new exhibition devoted to women writers, 1500-1700. "Shakespeare's Sisters: Voices of European Women Writers, 1500-1700" runs from February 3 to May 3, 2012. Edward Rothstein reviews it here.

Championing Beckett, Malcolm X, and Erotica

From the New York Times, two appraisals, by Douglas Martin and Charles McGrath, of the career and contributions of Barney Rosset (1922-2012), who guided Grove Press. Over the years, Mr. Rosset defended many of the titles he published, in court and in the media. The work he brought to the attention of the public included Malcolm X's autobiography, Frederick Wiseman's documentary "Titicut Follies," the work of Samuel Beckett, Henry Miller, Eric Berne's "Games People Play," and, oh yes, that Swedish entry, "I Am Curious Yellow."

They're the Greatest

From Bloomberg Law: the 10 Greatest Movie Lines (US and British films only). Comments from Legal Blog Watch here. Which are your favo(u)rites? Some of the choices:

"Here's a dime..." (The Paper Chase)
"I hate lawyers. I just work for them." (Erin Brockovich)
"You can't handle the truth!" (A Few Good Men)

What's Wrong With This Picture

The New York Times explains how the University of California, Berkeley, lost, and the Huntingdon Library gained, a wonderful piece of art by the noted sculptor Sargent Johnson, all for the want of some money and care, and oh, yes--the fact that the federal government does not control WPA art "affixed to nonfederal buildings."

The Tax Man Cometh

Assaf Likhovski, Tel Aviv University School of Law, is publishing Chasing Ghosts: On Writing Cultural Histories of Tax Law, forthcoming in the UC Irvine Law Review. Here is the abstract.

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.

Download the article from SSRN at the link.

Saved By the Book

From the Times Literary Supplement, a review of Ian Donaldson's new biography of Ben Jonson. Brian Vickers looks at this interesting poet, playwright, and sometime prisoner across the centuries, noting Jonson's frequent run-ins with the law. He even stood trial for manslaughter, but managed to get off by claiming the benefit of an old law that allowed the defendant to claim the benefit of clergy (he was branded on the thumb so that he could not claim it more than once). More about benefit of clergy in the US here, in England here.  

The Next Perry Mason

Actor Robert Downey Jr. is undertaking a reboot of the Perry Mason franchise with the assistance of lawyer turned writer Marc Guggenheim ("Eli Stone"). Mr. Downey and Mr. Guggenheim will be preparing a big screen version of a Perry Mason film with an original script. Mr. Downey is likely to star as the Erle Stanley Gardner character in the Warner Brothers production. More here from the Hollywood Reporter.

Some New Books of Interest

On sports and the law:

Khan, Abraham I., Curt Flood in the Media: Baseball, Race, and the Demise of the Activist Athlete (University Press of Mississippi, 2012).

Starn, Orin, The Passion of Tiger Woods: An Anthropologist Reports on Golf, Race, and Celebrity Scandal by Orin Starn (Duke University Press, 2012).

On law and television:

Weber, Tina, Drop Dead Gorgeous: Representations of Corpses in American TV Shows (Campus Verlag: dist. University of Chicago Press, 2012).

On true crime:

Kaplan, Paul, Murder Stories: Ideological Narratives in Capital Punishment (Lexington Books, 2012).


On law and literature:

Rivlin, Elizabeth, The Aesthetics of  Service in Early Modern England (Northwestern University Press, 2012).

On law and philosophy:

Jean-Luc Nancy: Justice, Legality, and World (Benjamin Hutchens, ed., Continuum Press, 2012).

Selected from the weekly column: New Books of Interest (Chronicle of Higher Education).
NB: Access to this Chronicle column available only with subscription.

 

Law and Literature and LGBT Theory

Anne Goldstein, Western New England University School of Law, has published Law and Literature: Representing Lesbians at 1 Texas Journal of Women and the Law 301 (1992). Here is the abstract.

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).

 
Download the article from SSRN at the link. The abstract/article has recently appeared in SSRN.

Women in Law and Literature Texts

Joyce A. McCray Pearson, University of Kansas School of Law, has published The Good, Bad, or Ugly: Women in Law and Literature Text (sic)in the Online Journal of Law and Popular Culture, 2003/2004. Here is the abstract.

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.

A Museum For the Mob

Las Vegas offers a museum you can't resist. More here from the New York Times.

Law, Love and Valentine's Day

HBO is showing a documentary for Valentine's Day that truly marks the occasion: "The Loving Story" tells the drama, and the love, behind one of the more remarkable court battles of the 1960s. Richard and Mildred Loving were the interracial couple who enlisted the assistance of the federal government and the ACLU when Virginia officials told them their marriage was illegal under state law. The Supreme Court eventually struck down the statute. The documentary airs tonight.  A docudrama made in 1996, Mr. and Mrs. Loving, starred Lela Rochon and Timothy Hutton. It is available used from some dealers.

"Blade Runner" and the Coase Theorem

F. E. Guerra-Pujol, Barry University School of Law & Pontifical Catholic University of Puerto Rico, has published Clones and the Coase Theorem at 2 Journal of Law & Social Deviance 43 (2011). Here is the abstract.

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.

More Resources On Dickens and the Law

Excellent, excellent post from Rechtgeschiedenisblog Blog on Dickens and law, listing online resources and recent posts and giving some analysis. This blog is in general a great resource for legal history and related areas, such as law and literature.

Additional Dickens and law resources:

"Lesser Breeds Within the Law"--Gresham College lecture by Dr. Angus Easson
Dickens' 1842 Reading Tour--Launching the Copyright Question on Temptuous Seas--Philip V. Allingham
Dickens 2012 Website: From Law To Literature Walk

Here's a post from the Mirror of Justice on Dickens and the Catholic legal imagination.

Portrait of a Lady

Patricia Cohen explains how the famous portrait of Mary Todd Lincoln, which has hung in the Lincoln Presdential Library and Museum in Springfield, Illinois, for decades, has been determined to be not of Mrs. Lincoln but of an unknown woman. Barry Bauman, the conservator who pieced together the history of the altered portrait, says the man behind it and its story is Lew Bloom, who sold the entire package to Lincoln's graddaughter.  The Lincoln Library will announce the findings on April 26th, the anniversary of the death of John Wilkes Booth.

Shylock Today

Stephen Marche reviews a new production of The Merchant of Venice at the Globe Theater (London) and discusses Shylock's eternal meaning in today's politically charged atmosphere.

Forensics in the Media

Found recently while searching the net:

Michael J. Watkins, Forensics in the Media; Have attorneys reacted to the growing popularity of forensic crime dramas? (Florida State University, 2004).

The Law Is a Ass--a Idiot

Michael Ruse writes about his favorite Dickens novels here.  He lists The Pickwick Papers, David Copperfield, Bleak House, and Our Mutual Friend, and notes Dickens' amazing ability to write about the experiences of children.  He also notes the prevalence of law in Dickens' works: here he is on The Pickwick Papers:

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.

Conference Proceedings: Visualizing Law in the Digital Age

Proceedings for the recent Visualizing Law in the Digital Age Symposium are available here.

Puritanism and Jurisprudence

Peter Mazzacano, Osgoode Hall School, York University, has published Puritanism, Godliness, and Political Development in Boston and the General Court (1630-1640) at 12 The Journal Jurisprudence 599 (2011). Here is the abstract.

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.

Download the article from SSRN at the link.

New LSE Summer School Course in Cyberlaw

Exciting news:

You can now apply for the brand new LSE Summer School Course in Cyberlaw.

You get to spend three weeks in London (during the 2012 Olympic Games) being taught Cyberlaw by myself.

At the end of it (if you take the exam) you will get an LSE Summer School certificate in Cyberlaw.

The Prospectus entry is here.

General information about the 2012 Summer School is here.

You can apply to the 2012 Summer School here.

Some basic information about the Cyberlaw course:

It will run from 23 July -9 August 2012. All lectures will be given by myself. There will be 36 hours of lectures split into 12 lecture hours per week. You will have three hours of lectures per day for four days then a day off. You will also have 12 hours of tutorial classes taken by a first rate class teacher - one hour per day for four days per week. At the end will be two hour exam which will qualify you to receive the LSE Certificate in Cyberlaw. 

The course will look at issues such as IP protection in Cyberspace (copyright infringement, trade mark infringement, Peer-to-Peer, Google etc.); Speech issues (defamation, free expression, transparency, injunctions (including AMP)); e-commerce (payment, contracting domain names) and privacy (data security, data protection etc.).

I will also be arranging for guest speakers such as Matthew Richardson to come along and talk about their experiences of Cyberlaw.

A detailed outline of the programme is here.

The session two courses are likely to be very popular with the Olympics on. I would advise applying early. If you have any questions please get in touch with me, my contact details are available here.

A Short Update on AMP v Person's Unknown

Since the decision in AMP came out I have received many messages telling me the approach will never work. Some of these have come directly to me via email, some have been posted on this site while others were posted on news reports of the case. One such example was posted on the Daily Mail Report:

Never heard of the Streisand effect then? Attempts to remove or ban online content inevitably leads to further interest and publication.I expect those images will go viral by the end of the week now that everyone knows about them. 

Well that didn't happen and neither did any of the other things suggested by the naysayers. The only blip we seem to have had to date in enforcing the order is that some wag decided to post a link to identifying information on AMP via the Daily Telegraph comments section on the story (now removed obviously) where actually another wag wrote "You don't need to publish the lady's name, because we know already. It's Ms. Canute."

Well happily so far the naysayers have been proven wrong. The pictures have not gone viral - a quick search of all the key search engines and social network sites reveals this. There has been (as we predicted) no Streisand effect. This confirms predictions I made in my book The Regulation of Cyberspace, that the online community function as a network and that regulation is likely to be effective when the community perceives that regulation or control as fair and justified. As AMP is perceived mostly as a victim, most people want the order to succeed. This may be contrasted with celebrities such as Barbara Streisand who seek to control unreasonably through a misapplication of the law (see also CTB).

Have we succeeded in removing the images from BitTorrent though? Well I've received a text from Matthew Richardson which reads

You will be pleased to hear that I think as of Monday morning we will have purged all of AMP's pictures from readily available websites...A great result I think. 

So as we stand it seems we have been broadly successful. There is a problem with digital goods in that there are surely still many copies of the pictures available in the hard drives of people who made copies before the order. AMP will have to live with this knowledge. What she won't have to put up with is the continued dissemination of the pictures. At least that's how things stand now.

Weegee's Works

James Polchin on the photographer Weegee (Arthur Fellig) and his images of crime, currently on view in a retrospective, Weegee: Murder Is My Business, at the International Center of Photography, New York through September 2.

Hunny Bun?

From the Smithsonian Magazine, a reassessment of Attila the Hun that suggests that he wasn't, well, all that bad. Maybe he just needed a good press agent.

Habeas Corpus In Georgia

Donald E. Wilkes, Jr., University of Georgia Law School, has published From Oglethorpe to the Overthrow of the Confederacy: Habeas Corpus in Georgia, 1733-1865 at 45 Georgia Law Review 1015 (2011). Here is the abstract.

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.

Download the article from SSRN at the link.

Law, Crime, and the Victorian Poor

Rebecaa Probert, University of Warwick School of Law, has published ‘A Banbury Story: Cohabitation and Marriage Among the Victorian Poor in Notorious Neithrop’ as Warwick School of Law Research Paper No. 2012/01. Here is the abstract.

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.

Happy Birthday, Charles Dickens

Google honors Charles Dickens today, with a Google Doodle devoted to him. The celebrated writer was born 200 years ago today, February 7, 1812. Below: a short and highly selective bibliography on Dickens and the law.


Markey, Maureen E., Mr. Tulkinghorn as a Successful Literary Lawyer, 14 St. Thomas L. Rev. 689 (2002).

McChrystal, Michael K., At the Foot of the Master: What Charles Dickens Got Right About What Lawyers Do Wrong, 78 Or. L. Rev. 393 (1999).

Osborn, John J., Bleak House: Narratives in Literature and Law School, 52 N.Y.L. Sch. L. Rev. 339 (2007).

Schramm, Jan-Melissa, Dickens and the Law, in A Companion to Charles Dickens 277-293 (David Paroissien, ed., Wiley, 2008).

Wertheim, Larry M., Dickens’ Lesser Lawyers, 46 S. D. L. Rev. 695 (2001).


See also

Corcos, Christine A., An International Guide to Law and Literature Studies (Hein, 2000). Sections on Dickens and his works.

Papke, David R., Law and Literature: A Comment and Bibliography of Secondary Works, 73 Law Libr. J. 421 (1980). Section on Dickens.

(Dan) Solove's Law and Humanities Institute Bibliography About Specific Writers: Dickens Page

A Death In the Dark

After they extinguished the flames, firefighters found the body of Anthony Horton, a subway artist, and the co-author of Pitch Black. More here from the New York Times, here from NBC New York.

The Science of "Breaking Bad"

Ugly bags of mostly water strike again. On NPR, here.

Law and Violence

Yxta Maya Murray, Loyola Law School, Los Angelos, has published The Pedagogy of Violence at 20 Southern California Interdisciplinary Law Journal 537 (2011). Here is the abstract.

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.

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.

Download the article from SSRN at the link.

Victorian Banking

Geoffrey Williams, Rutgers, The State University of New Jersey, has published Trust But Verify: Fraud in Victorian Banking and Its Diminishment. Here is the abstract.

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.

Bracton's Application In the Common Law

Ian Williams, Faculty of Laws, University College London, has published A Medieval Book and Early-Modern Law: Bracton's Authority and Application in the Common Law C.1550-1640 at 79 Tijdschrift voor Rechtsgeschiedenis/Legal History Review 47 (2011). Here is the abstract.

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.



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.

Download the article at the link.