Category: Law and Humanities

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Radical Pragmatism

Cambridge Companion to Pragmatism 01I recently posted on SSRN a book chapter I co-authored with Professor Michael Sullivan (Emory, Philosophy).  The chapter is called Radical Pragmatism and it is in The Cambridge Companion to Pragmatism pp. 324-344 (Alan Malachowski, ed. 2013).  This is a much shortened version of an earlier essay we wrote critiquing Judge Richard Posner’s conception of pragmatism.  We have tightened the argument, and this piece makes our key points much more succinctly.  Here’s the abstract:

“[P]ragmatist theory of law is, like much pragmatist theory, essentially banal.” So wrote Thomas Grey at the dawn of pragmatism’s renaissance in legal theory. Several contemporary pragmatists, as well as a number of critics of pragmatism, view pragmatism as a thin theory, more of a method than a philosophy with substantive commitments. For example, Richard Posner, one of the leading contemporary pragmatists, asserts that “pragmatism is more a tradition, attitude, and outlook than a body of doctrine” and that it has “no inherent political valence.” Likewise, Richard Rorty contends that pragmatism “is neutral between alternative prophecies, and thus neutral between democrats and fascists.”

Under this view, pragmatism generally leads to cautious common-sense policies. It is far from radical and unsettling, for it is too lacking in substantive value commitments to be otherwise. In this book chapter, we contest this account of pragmatism and offer a thicker account. Pragmatism does indeed have a political valence. It has substantive values. And, far from being banal, it is radical at its core.

You can download the chapter on SSRN.

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ROUNDUP: Law and Humanities 06.30.14

Jessica Silbey (Suffolk Law School) and Megan Slack are publishing an important new piece , The Semiotics of Film in US Supreme Court Cases, in the forthcoming collection Law, Culture, and Visual Studies (Springer, 2014). It’s of interest to law and film scholars, entertainment lawyers, First Amendment scholars, and law and humanities folks generally. Here’s the abstract.

This chapter explores the treatment of film as a cultural object among varied legal subject matter in US Supreme Court jurisprudence. Film is significant as an object or industry well beyond its incarnation as popular media. Its role in law – even the highest level of US appellate law – is similarly varied and goes well beyond the subject of a copyright case (as a moving picture) or as an evidentiary proffer (as a video of a criminal confession). This chapter traces the discussion of film in US Supreme Court cases in order to map the wide-ranging and diverse ­relations of film to law – a semiotics of film in the high court’s jurisprudence – to decouple the notion of film with entertainment or visual truth. This chapter discerns the many ways in which the court perceives the role of film in legal disputes and social life. It also illuminates how the court imagines and reconstitutes through its decisions the evolving forms and significances of film and film spectatorship as an interactive public for film in society. As such, this project contributes to the work on the legal construction of social life, exploring how court cases constitute social reality through their legal discourse. It also speaks to film enthusiasts and critics who understand that film is much more than entertainment and is, in practice, a conduit of information and a mechanism for lived experience. Enmeshed in the fabric of society, film is political, commercial, expressive, violent, technologically sophisticated, economically valuable, uniquely persuasive, and, as these cases demonstrate, constantly evolving.

Download the full text from SSRN at the link.

law culture

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Fifty Years of “I know it when I see it.”

On June 22, 1964, Justice Potter Stewart coined the phrase “I know it when I see it” in his concurring opinion in Jacobellis v. Ohio. Fifty years later, that expression holds the distinction of being one of the few modern legal phrases to become a regularly accepted expression among educated Americans. The half-century anniversary of Jacobellis provides a fitting opportunity to ask why “I know it when I see it” has enjoyed such popularity and what lessons that phrase and its history might hold for us today.

Jacobellis reversed the conviction of an Ohio movie theater manager for showing obscene material in the form of the French film Les Amants (The Lovers), which included a sex scene at its conclusion. The court’s 6-3 decision was highly fragmented, with six opinions in total and the plurality garnering only two votes.

Potter Stewart

In a short 144-word concurring opinion, Stewart wrote that he found it almost impossible to define obscenity precisely, which should only include “hard-core pornography.” His now famous line concluded the opinion:

 “But I know it when I see it, and the motion picture involved in this case is not that.”

At the time, the pithy phrase actually garnered little interest in the public sphere. Many newspapers chose instead to focus on another obscenity case decided that same day, Quantity of Books v. Kansas. Those journalists who did write about Jacobellis largely ignored “I know it when I see it” and chose to focus on the legal technicalities the case posed.

While it is difficult to pinpoint exactly when Stewart’s iconic expression became common, we can chart its growing popularity via Google’s Ngram search engine. Google Ngram measures the percentage of English language books that contain a phrase up to five words long. Because “I know it when I see it” is seven words, I ran the search for each five-letter segment of the phrase (“I know it when I;” “know it when I see;” “it when I see it.”). The graph clearly shows the steeply rising and still growing interest in Stewart’s phrase, starting slightly after 1964:

I know it when I see it Ngram

 

The Ngram search also reveals some interesting instances of similar phrases, both legal and not, pre-dating Jacobellis. Consider two examples: In an obituary for Benjamin Cardozo that ran in the Columbia, Yale and Harvard law journals in 1939, Learned Hand praised Justice Cardozo for his wisdom, writing:

“And what is wisdom — that gift of God which the great prophets of his race exalted? I do not know; like you, I know it when I see it, but I cannot tell of what it is composed.”

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ROUNDUP: Law and Humanities 06.11.14

The Association for the Study of Law, Culture, and the Humanities (ASLCH) will be holding its 18th annual meeting at Georgetown University Law Centre March 7-8, 2015.  ASLCH will be issuing its call for papers in the next few months and abstracts will be due in the fall.  Join the ASLCH listservfollow ASLCH on Facebook, or check back here for updates. Members of the organizing committee are listed here.

If you yearn for more legal drama in your life, check out some new and returning attorneys on the small screen. TNT’s  drama Murder In the First pilot episode aired on June 9, but is available for viewing here.  Murder in the First was created by Steven Bochco, and stars Kathleen Robertson and Taye Diggs. Like Bochco’s nineties drama Murder One (ABC, 1995-1996), this show focuses on one criminal case for the entire season.  CBS is offering up Reckless, which pits a glamorous female Yankee lawyer, played by Anna Wood, against a handsome South Carolina counselor, played by Cam Gigandet. Premiere: June 29 at 9, 8 Central time. Returning for a fourth season tonight at 9 p.m., 8 Central time, are Patrick J. Adams (Mike Ross) and Gabriel Macht (Harvey Spector) in the USA character-driven show Suits.  This show started out with the premise that Spector could hide the fact that his protégé (Ross), while a whiz at law, never actually went to law school. The show has undergone something of a re-calibration: Ross is now working at an investment firm. Still, the two are in contact. We’ll see how this relationship plays out. (Here, star Patrick J. Adams attempts to explain why this series about a fake lawyer seems so popular for real lawyers). The Suits webpage provides a quiz for you to determine “what kind of a lawyer [you would] be.” It’s career advice in good fun.

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ROUNDUP: Law and Humanities 05.01.2014

 

Awards season: The American Bar Association has announced the finalists for the 2014 Silver Gavel Awards for Media and the Arts. The ABA awards the Silver Gavel to those artists in film, nonfiction, fiction, and other arts who most closely meet the association’s objectives in advancing public understanding of law and the justice system. This year, the 47 members of the screening committee reviewed 169 entries, selecting 19 finalists for the Standing Committee to review. The ABA began giving out the Gavel Awards in 1958. Among the finalists: See the complete list of finalists for 2014 here. The ABA will announce winners on May 15.

 

Curtain going up: The Elevator Repair Service will be performing Arguendo,  a play based on the landmark case Barnes v. Glen Theatre (501 U.S. 560 (1991)) at the International Festival of Arts & Ideas, New Haven, CT, from June 18-22. Here’s part of the syllabus for the case:

Respondents, two Indiana establishments wishing to provide totally nude  dancing as entertainment and individual dancers employed at those  establishments, brought suit in the District Court to enjoin enforcement  of the state public indecency law  —  which requires respondent dancers to  wear pasties and a G-string  —  asserting that the law’s prohibition against  total nudity in public places violates the First Amendment. The court  held that the nude dancing involved here was not expressive conduct.   The Court of Appeals reversed, ruling that nonobscene nude dancing  performed for entertainment is protected expression, and that the statute was an improper infringement of that activity because its purpose  was to prevent the message of eroticism and sexuality conveyed by the  dancers.

The play “[uses] verbatim oral arguments and breathtaking projections by celebrated visual artist Ben Rubin [and] introduces us to the Justices—who try to get to the bottom of this First Amendment puzzle—and the attorneys on both sides who gamely try to keep up.” The play closed recently at the Woolly Mammoth Theatre in DC.

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Gabriel Garcia Marquez’s Chronicle of a Death Foretold

Garcia Marquez - Chronicle of a Death ForetoldI am deeply saddened by the passing of Gabriel Garcia Marquez, one of the world’s best contemporary authors. His magical realist style brims with life and zest — and his descriptions are unique and unforgettable. His most famous work is the magisterial One Hundred Years of Solitude, but my personal favorite is Chronicle of a Death Foretold.

I teach this great work in my law and literature class. It is a novella about a murder and its legal consequences that takes place in a small town. What is amazing about the book is that it is quite short — it is really just a long short story — yet unlike most works of its length, it focuses on not just the microcosm of one character but the macrocosm of an entire town, with an enormous array of characters. So much is packed into this short work, and I marvel at how each time I read it I discover interesting new details. The novella reminds me of a Breugel painting, a canvas filled with so much detail, so many interesting things going on.

Chronicle of a Death Foretold begins with one of Garcia Marquez’s signature openings, so gripping and enriched with unexpected details that it is impossible to stop reading:

On the day they were going to kill him, Santiago Nasar got up at five-thirty in the morning to wait for the boat the bishop was coming on. He’d dreamed he was going through a grove of timber trees where a gentle drizzle was falling, and for an instant he was happy in his dream, but when he awoke he felt completely spattered with bird shit.

The book is written by a narrator 27 years after the murder, pieced together by various interviews, memories, and documents. Chronicling memories that have faded, stories that diverge and contradict each other, the narrator writes in part like an investigative journalist piecing together an expose and in part like a detective investigating a crime. The narrative isn’t told in a linear way but in various fragments that are pasted together like a collage.

We know who will be murdered on the first page, and we find out the culprits very early on. And yet, Chronicle of a Death Foretold is a murder mystery. What it shows, as the narrator recreates the final days of Santiago Nasar’s life, is how each and every character played a role in the murder. Some were indifferent, some were too absorbed in their own pursuits to pay much attention, some were vindictive, with hidden malice, and some just didn’t take things seriously. So many are to blame, yet most played but a small part, and others who played larger roles acted in part based on societal pressures.

But beyond the individual characters, the ultimate indictment is against the town itself and its norms. This is a collective crime. We see how norms of race, class, and gender all combine to create a bitter stew, how many characters feel trapped by traditions and beliefs that lead them to act in unsavory ways. The indictment is thorough — the individuals and the very fabric of their society all interact to produce this tragedy.

I teach this work in my law and literature class to show how puny a force the law can be, and how the law can be too myopic in its focus. The law in this story fails to address the roots of what happened; it just focuses on a few branches and ignores most of the tree.

I marvel at this work every time I read it — the beauty of the prose, the vividness of the description, the brevity of the story that has enough detail for a book ten times as long, and the ability to capture a whole town and its culture and values in so many dimensions — without becoming too abstract or didactic.

If you haven’t read this book, I strongly recommend it to you. It is gripping, challenging, fascinating, and insightful. It is a true masterpiece, and can be read in just an afternoon. Often overshadowed by Garcia Marquez’s great novels — One Hundred Years of Solitude and Love in the Time of CholeraChronicle of a Death Foretold, despite its brevity, is as rich and sweeping.

Cross-posted at LinkedIn

[If] you read some fantasy, the magic is omnipresent. In Harry Potter the magic is omnipresent, a primarily magic universe. They got magic for everything there. Every time you turn around there’s a new magic thing that’s popping up. A magic hat or a magic sword or a spell to solve something. Because magic is so omnipresent, you don’t have to [resort] to mundane ways to…solve a murder mystery. “Who murdered Joe? Well we’ll just give him the truth spell and he’ll tell us who murdered Joe,” or “We’ll just cast this other spell and open the veil of time and we’ll be able to see who murdered Joe.” If those options exist then it’s very difficult to write a traditional John Grisham type novel or a detective novel or anything that depends on evidence and all that because there are all these magical ways of getting it.

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Lawyers in Westeros

An uncomfortable chair in a modern partner's office?

An uncomfortable chair in a modern partner’s office?

This is Part 2 of the interview I did with George R. R. Martin in  2007.  For background and part 1, click here.  For the audio file, click here.

 HOFFMAN: Are there lawyers in your books that are just in the wings off stage that haven’t yet appeared?

MARTIN: That’s an interesting question. I hadn’t really considered that until I started reading those links that you sent me. There are certainly laws but are there special classes of advocates who make their living by interpreting those laws? My inclination is probably not because the laws my books are administered by lords. In some ways it’s government as much for men than law. We like to say our government in the United States is a government of laws not men. In some ways the Seven Kingdoms I think is the reverse. There is basis of a law but also a lot depends on who is interpreting it and who is sitting in the Lord’s seat, who is sitting on the Iron Throne and how they settle these disputes.

HOFFMAN: Well those are ultimate questions but I think in two places one could have imagine lawyers and one of them again will be this church trial because there were church lawyers in the ecclesiastical church system there were lawyers who specialized in canon law. And the second one was at least twice I can think of in the books there’re trials by combat. And I don’t really know what the other alternative would be but I assume would be trial by jury – the path that Tyrion did not choose both times. And I was thinking –

MARTIN: Well he does choose in the first…in the second…second of his two trials, he is being tried – it’s not by jury – it’s by lord. There’s no jury of his peers, no twelve people that are randomly picked but there are three lords sitting on his case and hearing the evidence.

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ROUNDUP: Law and Humanities 04.01.14

Welcome to the first Law and Humanities ROUNDUP post. Here are some items I hope you will find of interest.

LSA

The Law and Society Association (LSA) Meeting, one of the most important conferences in the area of Law and Humanities, takes place May 29-June 1 in friendly Minneapolis, Minnesota. This year’s theme centers on the role of law and legal institutions in sustaining, creating, interrogating, and ameliorating inequalities. The 2014 Program invites participants to explore and consider three questions:

  • How can Law and Society scholarship contribute to unearthing and understanding inequalities?
  • How can Law and Society scholarship contribute to the critical interrogation of discourses of equality and inequality and help to reveal what is at stake in these concepts?
  • What impact can we expect these scholarly contributions to have on the persistence of these inequalities and on public discourse about them?

You can check out the preliminary program, register, and find hotel information here. Early registration ends April 15 (with 50 percent refunds available through that date. You cannot obtain any refunds after April 15).

If  you have always thought about writing legal fiction, check out this announcement from Alafair Burke at Hofstra Law.  Professor Burke, who writes the Ellie Hatcher novels, along with two other best-selling lawyer authors, Lee Child (who writes the Jack Reacher thrillers) and Marcia Clark (author of the Rachel Knight series) will be judges of a crime fiction competition being offered by Hofstra Law and Mulholland Books. The rules are simple, and include this one: Your story must feature a lawyer as a main character. Read the rest of the rules here. Deadline for entries is May 1, 2014.

UCLA English professor Eric Jager has published another interesting title: Blood Royal: A True Tale of Crime and Detection in Medieval Paris (Little, Brown), available in hardcover, audio, and ebook formats.  Here’s the description of the book from the publisher’s website.

A riveting true story of murder and detection in 15th-century Paris, by one of the most brilliant medievalists of his generation. On a chilly November night in 1407, Louis of Orleans was murdered by a band of masked men. The crime stunned and paralyzed France since Louis had often ruled in place of his brother King Charles, who had gone mad. As panic seized Paris, an investigation began. In charge was the Provost of Paris, Guillaume de Tignonville, the city’s chief law enforcement officer–and one of history’s first detectives. As de Tignonville began to investigate, he realized that his hunt for the truth was much more dangerous than he ever could have imagined. A rich portrait of a distant world, BLOOD ROYAL is a gripping story of conspiracy, crime and an increasingly desperate hunt for the truth. And in Guillaume de Tignonville, we have an unforgettable detective for the ages, a classic gumshoe for a cobblestoned era.

Dr. Jager’s previous book, The Last Duel, about trial by combat in medieval France, (in this case, over whether a noblewoman’s claim that she had been raped was true), was nominated for the Crime Writers’ Association Gold Dagger Award and adapted for a BBC documentary in 2008.

 

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Trust is What Makes an Expectation of Privacy Reasonable

A few weeks ago, I defined trust as a favorable expectations as to the behavior of others. It refers to a behavior that reduces uncertainty about others to levels that us to function alongside them. This is a sociological definition; it refers directly to interpersonal interaction. But how does trust develop between persons? And is that trust sufficiently reasonable to merit society’s and the state’s protection. What follows is part of an ongoing process of developing the theory of privacy-as-trust. It is by no means a final project just yet. I look forward to your comments.

Among intimates, trust may emerge over time as the product of an iterative exchange; this type of trust is relatively simple to understand and generally considered reasonable. Therefore, I will spend little time proving the reasonableness of trust among intimates.

But social scientists have found that trust among strangers can be just as strong and lasting as trust among intimates, even without the option of a repeated game. Trust among strangers emerges from two social bases—sharing a stigmatizing identity and sharing trustworthy friends. When these social elements are part of the context of a sharing incident among relative strangers, that context should be considered trustworthy and, thus, a reasonable place for sharing.

Traditionally, social scientists argued that trust developed rationally over time as part of an ongoing process of engagement with another: if a interacts with b over t=0 to t=99 and b acts in a trustworthy manner during those interactions, a is in a better position to predict that b will act trustworthy at t=100 than if a were basing its prediction for t=10 on interactions between t=0 and t=9. This prediction process is based on past behavior and assumes the trustor’s rationality as a predictor. Given those assumptions, it seems relatively easy to trust people with whom we interact often.

But trust also develops among strangers, none of whom have the benefit of repeated interaction to make fully informed and completely rational decisions about others. In fact, a decision to trust is never wholly rational, it is a probability determination; “trust begins where knowledge ends,” as Niklas Luhmann said. What’s more, trust not only develops earlier than the probability model would suggest; in certain circumstances, trust is also strong early on, something that would seem impossible under a probability approach to trust. Sometimes, that early trust among strangers is the result of a cue of expertise, a medical or law degree, for example. But trust among lay strangers cannot be based on expertise or repeated interaction, and yet, sociologists have observed that such trust is quite common.

I argue that reasonable trust among strangers emerges when one of two things happen: when (1) strangers share a stigmatizing social identity or (2) share a strong interpersonal network. In a sense, we transfer the trust we have in others that are very similar to a stranger to the stranger himself or use the stranger’s friends as a cue to his trustworthiness. Sociologists call this a transference process whereby we take information about a known entity and extend it to an unknown entity. That is why trust via accreditation works: we transfer the trust we have in a degree from Harvard Law School, which we know, to one of its graduates, whom we do not. But transference can also work among persons. The sociologist Mark Granovetter has shown that economic actors transfer trust to an unknown party based on how embedded the new person is in a familiar and trusted social network. That is why networking is so important to getting ahead in any industry and why recommendation letters from senior, well-regarded, or renowned colleagues are often most effective. This is the theory of social embeddedness: someone will do business with you, hire you as an employee, trade with you, or enter into a contract with you not only if you know a lot of the same people, but if you know a lot of the right people, the trustworthy people, the parties with whom others have a long, positive history. So it’s not just how many people you know, it’s who you know.

The same is true outside the economic context. The Pew Internet and American Life Project found that of those teenagers who use online social networks and have online “friends” that they have never met off-line, about 70 % of those “friends” had more than one mutual friend in common. Although Pew did not distinguish between types of mutual friends, the survey found that this was among the strongest factors associated with “friending” strangers online. More research is needed.

The other social factor that creates trust among strangers is sharing a salient in-group identity. But such trust transference is not simply a case of privileging familiarity, at best, or discrimination, at worst. Rather, sharing an identity with a group that may face discrimination or has a long history of fighting for equal rights is a proxy for one of the greatest sources of trust among persons: sharing values. At the outset, sharing an in-group identity is an easy shorthand for common values and, therefore, is a reasonable basis for trust among strangers.

Social scientists call transferring known in-group trust to an unknown member of that group category-driven processing or category-based trust. But I argue that it cannot just be any group and any identity; trust is transferred when a stranger is a member of an in-group, the identity of which is defining or important for the trustor. For example, we do not see greater trust between men and other men perhaps because the identity of manhood is not a salient in-group identity. More likely, the status of being a man is not an adequate cue that a male stranger shares your values. Trust forms and is maintained with persons with similar goals and values and a perceived interest in maintaining the trusting relationship. But it is sharing values you find most important that breed trust.For example, members of the LGBT community are, naturally, more likely to support the freedom to marry for gays and lesbians than any other group. Therefore, sharing an in-group identity that constitutes an important part of a trustor’s persona operates as a cue that the trustee shares values important to that group.

What makes these factors—salient in-group identity and social embeddedness—the right bases for establishing when trust among strangers is reasonable and, therefore, when it should be protected by society, is that the presence of these factors is what justifies our interpersonal actions. We look for these factors, we decide to share on these bases, and our expectations of privacy are based on them.

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Does Apple Reject That Education Has To Train Skills?

Apple’s Your Verse ad campaign poses an odd and maybe cynical offer to us. Don’t pay attention to the call of law, business, or medicine. Be a poet. Be a creator. Contribute your verse. What are we on American Idol? Or as Monty Python put it maybe all we want to do is sing. Apple panders to the look at me right now world. The film is about free thinkers. Maybe that is the same as being a poet. And as Kevin J.H Dettmar argues at The Atlantic, the film is “a terrible defense of the humanities.” He points out that the film celebrates enthusiasm over any critical thought” “Keating doesn’t finally give his students anything in its place besides a kind of vague enthusiasm.”

Having gone to a prep school, I am less upset by the film than Dettmar. But then I may project my experience onto the film’s gaps. Even before prep school I went to a grade school where the boring “Latin—Agricolam, Agricola, Agricolae, Agricolarum, Agricolis, Agricolas, Agrilcolis” was part of the curriculum in eighth grade. That teacher happened to have done his own translation of Caesar’s Road to Gaul. He’d re-enact charges of legions and evoke swords. In high school we had many inspiring teachers. They kicked our butts for fake enthusiasm. Larry McMillin once asked me a question about Shaw’s Man and Superman. I came up with some ramble. He said “That’s not Shaw. That’s just Desai,” in his Southern gentlemen’s voice that somehow had scorn yet support. Support. For what? He called me out but made me see that I could do more. How?

Rigor. To the waste bin with brownie points for showing up. Be gone empty claims of it’s good, because I said it. Learn the fundamentals. Master the material. As Phillipe Nonet said to my class in college when someone started a sentence with “I think”, “That you think it, does not matter. It matters what it says.”

It turns out that free thinking is much more difficult than Keating realizes. The rigor of learning the fundamentals allows us to be liberated. Liberal arts are about freedom and how we are unmoored from habit. But knowing the foundations is how you might see where they may not operate anymore. So sure contribute your verse. But if you want it to be a good one, let alone a great one, let alone one that might allow you to eat, put in the work. Grab everything you can from college and post-graduate schools. Contrary to recent pushes from big law (note that with 30-505 margins the big firms can absorb training costs), law schools training people to think in sharp and critical ways are providing an education that connects to the law and much more. But that requires diligence, drudgery, and didactic moments. Those happen to turn into gifts of knowledge, skill, and the ability to learn on your own. At that point, your verse might be worth something.