Archive for the ‘Law and Humanities’ Category
Natural Law, Imperialism, and the Birth of Free Exercise Jurisprudence
posted by Nate Oman
I have been researching Reynolds v. United States (1879), the Supreme Court’s first Free Exercise case, on and off for several years. For those who are interested, my paper on the topic is now available for download at SSRN. My interest in the case is historical rather than doctrinal. I am interested in what Reynolds, which held that religious polygamy was not protected by the First Amendment, and the anti-polygamy crusade that followed tell us about constitutional politics in the nineteenth century. Historians have generally situated the case within the context of the post-Civil War politics of Reconstruction. The anti-polygamy crusade kicked off by Reynolds is seen as an extension of Reconstruction into the West. I offer a new interpretation.
I began my research by asking myself what the theory of the First Amendment put before the Court by the Reynolds’s lawyers looked like. The Court — following the arguments of the Attorney General — characterized the Mormons as claiming that all religiously motivated action was exempt from the criminal law. This sort of absolutist position, the Court and the government pointed out, would allow absurd results such as the inability to criminalize religiously motivated murders. The Court, however, was knocking down a straw man. The Mormons never in fact made this claim. Rather, they argued that the First Amendment only protected religiously motivated conduct that was not malum in se, that is wrong in and of itself as opposed to being wrong merely because of the law (malum prohibitum). Actions could be judges as malum in se, they went on to argue, by appeal to a set of well-established natural law arguments. These arguments were based in part by a series of more-or-less positive analogies to non-Western legal systems. The Court responded implicitly to this argument by analogizing Mormons to Indians and the federal government to the British Raj. In other words, the Court in effect looked at “The Mormon Question” through the lens of imperialism.
This imperial analogy was more than a one-off rhetorical fillip in the Court’s opinion. It shows up all over the anti-polygamy battles, where it is important for distinguishing the situation in Utah from the situation in the Reconstruction and post-Reconstruction South. It also gets picked up on in the first generation of cases that invoke Reynolds and its progeny as precedent. These cases, known as The Insular Cases, arose in the context of the United States’ conquest of the Philippines in the Spanish American War of 1898 and addressed the question of the federal government’s authority to engage in imperialism and colonialism abroad. In these cases Reynolds was seen not as a First Amendment case as much as a case about the scope of Congressional power over a conquered people. My paper thus suggests that Reynolds and the anti-polygamy battles need to be seen not only in the context of the domestic debates over Reconstruction that proceeded them. Rather, Reynolds and its heirs must also be seen as a prelude to the international debates over imperialism that followed the Spanish American War.
For those interested, here is an abstract of the paper: Read the rest of this post »
March 3, 2010 at 8:46 am
Posted in: Constitutional Law, Criminal Law, First Amendment, History of Law, International & Comparative Law, Jurisprudence, Law and Humanities, Race, Religion, Supreme Court
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Dismembered Goats and the Philosophy of Contract Law
posted by Nate Oman
My latest offering is now up on SSRN for your enjoyment. This particular paper began with a simple question: “Why did people in the ancient world formalize their contracts by hacking up a goat?” Here’s the abstract for the paper that resulted:
In the ancient Near East, contracts were often solemnized by hacking up a goat. The ritual was in effect an enacted penalty clause: “If I breach this contract, let it be done to me as we are doing to the goat.” This Article argues that we are not so far removed from our goat-hacking forbearers. Legal scholars have argued that contractual liability is best explained by the morality of promising or the need to create optimal incentives in contractual performance. In contrast, this Article argues for the simpler, rawer claim that contractual liability consists of consent to retaliation in the event of breach. In the ancient ritual with the goat, the retaliation consented to consisted of self-help violence against life and limb. The private law in effect domesticates and civilizes retaliation by replacing private warfare with civil recourse through the courts. It thus facilitates the social cooperation made possible by the ancient threats of retaliation while avoiding the danger of escalation and violence that such private violence presented. This civil recourse theory of contractual liability provides an explanation for a number remedial doctrines that have proven difficult for rival interpretations of contract law to explain, including the penalty clause doctrine, limitations on expectation damages, and the basic private law structure of contractual liability. Finally, this Article responds to some of the most powerful objections that might be made against a civil recourse theory of contractual liability.
The article, “Consent to Retaliation: A Civil Recourse Theory of Contractual Liability,” is, to my knowledge, the first full-length article on civil a recourse theory and contract. Civil recourse, of course, has been a much discussed topic in the philosophy of tort law, where it has been championed by John Goldberg and Benjamin Zipursky. My take on the normative foundations of civil recourse, however, is a bit different than theirs. Hence, in addition to illuminating the mystery of the hacked up goats, my hope is that the article will contribute to debates in the philosophy of contract law and the philosophy of private law more generally. Enjoy!
March 1, 2010 at 8:14 am
Posted in: Contract Law & Beyond, Jurisprudence, Law and Humanities, Legal Theory, Uncategorized
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Book Review: Divergent Opinions: Why Community Matters — A Review of Sunstein’s Going to Extremes
posted by Marc Roark
Going to Extremes: How Like Minds Unite and Divide, by Cass Sunstein. Oxford University Press: New York 2009. Pp. 171. $21.95
Cass Sunstein argues in his new book Going to Extremes: How Like Minds Unite and Divide that extremism is a phenomenon that is enhanced when people of like minds get together to talk. When we think of people that lie at the extremes of society, our minds are often drawn to reclusive characters. People like John the Baptist living in the wilderness “wearing clothes made of camel hair, eating locusts and wild honey;” (Matt. 3:3-4) or people like Raskolnikov from Fydor Doystoyveski’s Crime and Punishment – a reclusive character who develops a radical and warped sense of morality in response to his perception of society’s values. In reality, people that live on the extremes are rarely alone. They are surrounded by a network of like thinkers who confirm the attitudes, beliefs and interpretations of sensory data that those persons embrace as normal. Extremes are about information. That is, where you get your information from; whether you believe that information to be reliable, and how willing you are to accept information outside of your preferred source.
Going to Extremes is about how, when and why extremes develop in communities. The theme of the book is that “[w]hen people find themselves in groups of like-minded types they are especially likely to move to extremes” (p. 2). Sunstein’s work fits into the genre of human behavioral psychology proposed by James Sidanius and others that views extremists’ cognitive complexity as more complex than moderates. See James Sidanius, Functioning Sociopolitical Ideology Revisted, 6 POLITICAL PSYCHOLOGY 637, 639 (1985). This is in contrast to extremism theory, which largely assumes that political extremists display less-sophisticated cognitive behavior than moderates. About the form of extremism we call terrorism, Sunstein writes at one point,
it is tempting to think that terrorism is a product of extreme poverty, lack of education, or a kind of mental illness. It turns out that all of these thoughts are quite wrong. Most of the time, [terrorists] come from middle-income families. Nor have terrorists lacked education. There is no evidence that they suffer from mental illness…. Alan Krueger argues that terrorism is a form of political protest, and those who lack civil rights and civil liberties not having other means of engaging in protest resort to terrorism. To Krueger’s point, we might add that when civil liberties do not exist citizens have only one prominent source of information – the state – and that source cannot be trusted. (p. 115)
Terrorism then becomes a reaction against information that the extreme positions assume can’t be right. Thus, in Sunstein’s work, the why and how of extremisms (like terrorism) can be associated with how individuals interact in communities – the trust they place in the information received, the confidence they derive from like-minded members, and the authority or submission they respond to as a member of the community.
February 4, 2010 at 12:09 am
Posted in: Articles and Books, Behavioral Law and Economics, Book Reviews, Law and Humanities, Law and Psychology, Philosophy of Social Science, Politics, Sociology of Law
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Post on Legal Scholarship
posted by Frank Pasquale
Yale announced today that Robert Post will succeed Harold Koh as Dean of its Law School. I am thrilled to hear the news. I read Post’s book Constitutional Domains: Democracy, Management, Community while I was in college, and it helped convince me to go to law school. During my recent visit at Yale, Post struck me as one of the most intellectually interesting and friendly faculty members. Virtually every student I talked to who worked with him described him as an outstanding mentor.
Many of our readers might be interested in Post’s take on legal scholarship.
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June 22, 2009 at 12:50 pm
Posted in: Law and Humanities, Legal Theory, Philosophy of Social Science
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What Is Empathy? Obama’s Philosophy of Law and the Next Supreme Court Justice
posted by Daniel Solove
There has been a lot of discussion on what President Obama meant when he said he wanted to choose a person who would judge with “empathy” for the U.S. Supreme Court. When articulating his decision to vote against Chief Justice John Roberts, Obama noted that 95 percent of cases would be relatively straightforward where most justices would agree, but “what matters on the Supreme Court is those 5 precent of cases that are truly difficult.” Obama further explained:
In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.
Over at the Volokh Conspiracy, Orin Kerr has a very thought-provoking post examining what Obama means by “empathy.” He writes:
What makes the issue interesting, I think, is that the broad divide over the role of ambiguity in legal decisionmaking is quite real, and yet not often explicitly drawn out. But to those who take the first approach to legal ambiguity, Obama’s view of empathy is just asking for a judge who is lawless. From that perspective, Obama wants a judge who will ignore the law: He wants a judge who might look at the precedents and text, weigh the merits as 70/30, and then vote for the weaker “30″ side only because that furthers his political agenda. To those who see legal ambiguity as inviting a careful judicial weighing — indeed, who think that the critical role of a judge is to engage in that careful judicial weighing — emphasizing the need for “empathy” is an invitation to replace law with politics.
Orin’s post reminds me of the debate between H.L.A. Hart and Ronald Dworkin.
In The Concept of Law, H.L.A. Hart famously observed:
May 13, 2009 at 7:50 pm
Posted in: Constitutional Law, Jurisprudence, Law and Humanities, Legal Theory, Politics, Supreme Court, Uncategorized
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Lawrence Friedman and the History of Privacy
posted by Neil Richards
I recently uploaded to SSRN a short review essay of Lawrence Friedman’s “Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety and Privacy (Stanford 2007). No book is perfect, but this one is probably the best book on the history of privacy law that I have read.
Here’s the abstract of my review:
A short review essay of Lawrence Friedman’s “Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy” (Stanford Press 2007). The essay argues that Friedman tells a nuanced and compelling story of the rise and fall of the “Victorian Compromise,” a series of interlocking legal doctrines protecting the reputations of elites around the turn of the twentieth century. “Dark Secrets” undeniably advances our understanding of both the genesis of privacy law and the relationships between law and culture in the Gilded Age. As a work of legal history, it is an instant classic – a must-read for anyone interested in privacy law. But although Dark Secrets is first-rate legal history, it is less successful in its latter chapters when Friedman shifts his focus from the past to the present. The limits of Friedman’s social criticism raise important questions about the ability of history alone to provide answers to social problems in our modern, networked information society.
May 7, 2009 at 8:42 am
Posted in: Articles and Books, Book Reviews, Cyberlaw, History of Law, Law and Humanities, Privacy
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Forgiving the Ex, Part II
posted by Solangel Maldonado
In a post last week, I discussed the negative effects of persistent anger against a former spouse, including the harm to their children. I suggested that maybe lawmakers need to encourage divorced parents to forgive each other. As I write this sentence, I realize how naïve and simplistic that sounds. How are lawmakers supposed to help people forgive a former spouse who abused, betrayed, or neglected them? Doesn’t encouraging people to forgive suggest that their anger is unwarranted? Doesn’t it suggest that the injurer’s actions were justified or that one is condoning or excusing her wrongful and unjust behavior? Well, no. Forgiveness does not mean that the forgiver does not have a right to be angry. To the contrary, the person who forgives chooses to “abandon [her] right to resentment . . . toward one who unjustly injured [her] while fostering the undeserved qualities of compassion, generosity and even love toward [the injurer].” Enright et al. (1999).
When asked if they have considered forgiving someone who has hurt them deeply, people often reply that the other person “doesn’t deserve forgiveness.” That may be so, but one does not forgive for the injurer’s benefit, but for one’s own benefit and possibly, for the benefits to one’s children. As I discussed in my earlier post, forgiveness may reduce anger and its negative effects on one’s physical and psychological health and parenting abilities. It might also reduce some of the destructive behaviors some parents engage in after divorce such as interfering with the other parent’s access to the children or disparaging him or her in front of the children. It might also enable some former spouses to cooperate as co-parents in their children’s upbringing. The question is not why divorced parents should forgive, but rather how can they be encouraged to do so?
May 2, 2009 at 10:16 pm
Posted in: Family Law, Law and Humanities
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The Bard of the Financial Crisis
posted by Nate Oman
Over the weekend, I re-read A Merchant of Venice, and I was struck by the fact that Shakespeare manages to include in the play virtually every element of the current financial crisis. Scene one begins with a discussion of risk assessment, and Antonio’s belief that he has managed to tame the vagaries of commercial fate through diversification. Asked by Salarino if he “Is sad to think upon his merchandise” (I.i.40), Antonio responds:
Believe me, no. I thank my fortune for it
My ventures are not in one bottom trusted,
Nor to one place; nor is my whole estate
Upon the fortune of this present year.
Therefore my merchandise makes me not sad. (I.i.41-45)
Having ignored the problem of fat tails and black swans, Antonio decides to engage in a bit of dodgy finance. He borrows in the wholesale market from Shylock under terms that appear favorable, but have a huge downside in the unlikely event of his default. Antonio, of course, is unconcerned. From his point of view he is getting cheap money by taking on what seems like an extremely remote risk. He then takes these borrowed funds and uses them to make what can only be described as a no doc, subprime loan. Bassiano wants money for a speculative venture — the wooing “In Belmont [of] a lady richly left” (I.i.161) — and Antonio agrees, in effect renting out his credit rating:
Try what my credit in Venice can do;
That shall be racked even to the uttermost
To furnish thee to Belmont to fair Portia.
Go presently inquire, and so will I,
Where money is; and I no question make
To have it of my trust or for my sake. (I.i.180-185)
Shylock, for his part, does not approve of the loose monetary policy in Venice, which he rightly blames on wild lending practices, such as Antonio’s loans:
How like a fawning publican he looks.I hate him for he is a Christian;
But more, for what is low simplicity,
He lends out money gratis and brings down
The rate of usance here with us in Venice. (I.iii.38-42)
March 24, 2009 at 11:33 am
Posted in: Articles and Books, Bankruptcy, Behavioral Law and Economics, Consumer Protection Law, Contract Law & Beyond, Current Events, History of Law, Humor, Law and Humanities
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Robert Tsai’s Eloquence and Reason
posted by Daniel Solove
Professor Robert Tsai (American University, Washington College of Law), who previously guest blogged here in January 2006, has just published Eloquence and Reason: Creating a First Amendment Culture (Yale University Press, Nov. 2008). According to the back cover blurb:
This provocative book presents a theory of the First Amendment’s development. During the twentieth century, Americans gained trust in its commitments, turned the First Amendment into an instrument for social progress, and exercised their rhetorical freedom to create a common language of rights. Robert L. Tsai explains that the guarantees of the First Amendment have become part of a governing culture and nationwide priority. Examining the rhetorical tactics of activists, presidents, and lawyers, he illustrates how committed citizens seek to promote or destabilize a convergence in constitutional ideas. Eloquence and Reason reveals the social and institutional processes through which foundational ideas are generated and defends a cultural role for the courts.
I’ve read a few chapters of this book earlier on, and I highly recommend it. Robert Tsai’s work is always interesting and thought-provoking. He writes beautifully, and he demonstrates with great insight how rhetoric influences constitutional law.
From a blurb on the back cover by Professor Mark Tushnet (Harvard Law School): “A provocative meditation on the ways the metaphors used in constitutional doctrine empower, limit, create, and recreate the public over which the written Constitution is said to assert authority. Intriguing case studies arise from the civil rights movement of the 1960s, the Christian Right of the 1980s, and the attacks on Jehovah’s Witnesses in the 1940s.”
November 7, 2008 at 10:54 am
Posted in: Book Reviews, Law and Humanities
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Harnessing the Wisdom of Crowds to Spot Spin
posted by Danielle Citron
According to Business Week, this month marks the birth of Spinspotter, a website that lets users identify and discuss phrases in news stories that smack of bias. The website owner, a former Microsoft executive, will generate income by selling advertisements connected to the bias-infected new stories identified by users. For instance, Toyota might want to hang Prius ads around the phrase “gas guzzler.” Or Microsoft and Apple might want to buy ad space next to a news article that deems Windows Vista a “bug-filled failure.”
This is an intriguing, and mischevious, combination–users expose media bias (or its gullibility to spin doctors) while spin doctors append ads to win back or capture those cynical eyeballs. Given the site’s construction around key phrases, bias accomplished through silence may be missed. So often, media outlets emphasize the positive in politicians and industry such that the lack of criticism reveals a bias worthy of the SpinSpot treatment. But if crowds are indeed wise, they may find a way to highlight those bias-filled silences.
September 15, 2008 at 5:44 pm
Posted in: Culture, Cyberlaw, Law and Humanities, Technology
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Politicians and Script Writers
posted by Daniel Solove
Much has been made of the fact that large parts of Sarah Palin’s speech were already pre-written before she was even chosen as the VP candidate. According to the Washington Post:
Not anticipating that McCain would choose a woman as his running mate, the speech that was prepared in advance was “very masculine,” according to campaign manager Rick Davis, and “we had to start from scratch.”
It is common in today’s political landscape for speech writers to pen most of the words in a politician’s speeches — both for Republicans and Democrats. What always irks me is all the commentary about the speeches. The commentators — on all sides of the political spectrum — are saying how much Palin’s speech reveals about her. But are we really learning much about Palin from the speech if she didn’t write a large chunk of it?
If the words are written by others, what exactly does a speech tell us? Why do we pretend as though the words are really coming from the particular politician? If the skill is the ability to read convincingly from the teleprompter, or to deliver the lines with gusto and confidence, then isn’t this more suited for an actor or actress?
One thing that always irks me is when quotes from movies are attributed to particular actors, as if Robert DeNiro or Julia Roberts originated a particular line in the same way that Shakespeare or Einstein created their own words. We all know that actors and actresses are just vessels for delivering the words of others. We wouldn’t attribute quotes to the person who read a particular line for an audio book on CD. Why do we do so when an actor or actress delivers a line in a movie? Or when a singer sings a song written by another?
Suppose we found out that Lincoln had a speech writer write the Gettysburg Address. Would our opinion of him change if we learned that his eloquent words were not really his own, and that he merely delivered the lines in a particularly compelling way?
September 4, 2008 at 12:43 pm
Posted in: Law and Humanities, Politics
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Franz Kafka’s Last Wishes and the Kafka Myths
posted by Daniel Solove
Professor Lior Strahilevitz (U. Chicago Law School) has an interesting post about Franz Kafka’s papers. The famous story about Kafka’s papers is that Kafka asked his friend, Max Brod, to burn them after his death. Although Kafka had published a few works during his lifetime, a great many stories, parables, letters, and diary entries were unpublished, as were Kafka’s two great book masterpieces, The Trial and The Castle. Brod refused to burn them. Instead, he published them, and Kafka would go on to achieve enormous posthumous fame as one of the greatest writers of the twentieth century.
Should Brod have carried out Kafka’s wishes? Lior argues yes:
I have written, and continue to believe, that Brod should have destroyed Kafka’s unpublished works, as per Kafka’s instructions, notwithstanding the immense literary value of the work. Kafka had legitimate privacy and artistic integrity interests in the works that should have been respected, and as their creator he was in the best position to decide upon their fate.
Controversies over the Kafka papers have recently reemerged. The New York Times describes a new issue over Kafka’s papers:
September 2, 2008 at 1:48 pm
Posted in: Law and Humanities
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Tocqueville on Lawyers
posted by Frank Pasquale
I always find certain sections of Democracy in America thought-provoking, and thought I’d just share a bit from a part on lawyers today:
The government of democracy is favorable to the political power of lawyers; for when the wealthy, the noble, and the prince are excluded from the government, the lawyers take possession of it, in their own right, as it were, since they are the only men of information and sagacity, beyond the sphere of the people, who can be the object of the popular choice. If, then, they are led by their tastes towards the aristocracy and the prince, they are brought in contact with the people by their interests. They like the government of democracy without participating in its propensities and without imitating its weaknesses; whence they derive a twofold authority from it and over it.
The people in democratic states do not mistrust the members of the legal profession, because it is known that they are interested to serve the popular cause; and the people listen to them without irritation, because they do not attribute to them any sinister designs. The lawyers do not, indeed, wish to overthrow the institutions of democracy, but they constantly endeavor to turn it away from its real direction by means that are foreign to its nature. Lawyers belong to the people by birth and interest, and to the aristocracy by habit and taste; they may be looked upon as the connecting link between the two great classes of society.
The whole section is a nice introduction to the tensions between the rule of law and democracy. And if you find Tocqueville’s methodology too loose or unscientific, check out Jon Elster, Patterns of causal analysis in Tocqueville’s Democracy in America, 3 Rationality and Society 277 (1990).
August 21, 2008 at 12:28 am
Posted in: Law and Humanities
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The Importance of Choosing Literary References Wisely
posted by Daniel Solove
Over at WSJ blog, Dan Slater writes about a Fair Housing Act case involving a condo association that prohibited all objects in hallways. A Jewish resident challenged the rule under the Fair Housing Act because his mezuzah was removed, claiming the rule discriminated against his religion. The 7th Circuit held for the condo association, concluding that the rule was “neutral with respect to religion” since it applied to all objects.
In dissent, Judge Wood noted a very unwise use of a Shakespearian reference in the Defendants’ brief:
Indeed, especially given the fact that the question in this case is whether a trier of fact could conclude that the defendants were intentionally discriminating against the Blochs, it was shocking to read at the end of their supplemental brief that “[t]hroughout this matter, Plaintiffs have been trying to get their ‘pound of flesh’ from Defendants due to personal animosity between Lynne and Frischholz.” Perhaps the defendants have not read Shakespeare’s Merchant of Venice lately and thus failed to recall that the play is about a bitter Jewish moneylender, Shylock, who agreed to loan funds to a man he loathed (Antonio—who spit on him because he was Jewish) only upon a promise that if the loan was not paid in time, Shylock would be entitled to carve a pound of flesh from Antonio. At the end of the play, after the disguised Portia defeats the contract by pointing out that Shylock is not entitled to shed any blood while he takes his pound of flesh, Shylock is punished by losing half of his lands and being forced to convert to Christianity. This is hardly the reference someone should choose who is trying to show that the stand-off about Hallway Rule 1 was not because of the Blochs’ religion, but rather in spite of it.
July 11, 2008 at 8:03 pm
Posted in: Law and Humanities
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The Moth and Other Tales of Authorship
posted by Jessica Silbey
I’ve been pressed for time these past several months. I became a mom for a second time, and with the second child, life became more than doubly busy. One of the first things to go in order to make space for the new baby was almost all leisure reading. I haven’t even opened a novel since she was born; I have a stack of my favorite magazines and reviews in strategic places around the house, but most remain unread; and I have an electronic email folder of unread emails with attached articles labeled “to read.”
The Moth comes to the rescue. A friend recently introduced me to The Moth, a storytelling stage and website. Most stories (all true, purportedly) are refreshingly funny, insightful and well-crafted. And most stories are no more than fifteen minutes long. I upload them to my IPOD and listen to them on my commute home. These short stories do not provide the deeply engaging experience one gets from reading a good novel, but they are nonetheless satisfying in a similar fashion. They bring to life other people and events with experiences entirely different from your own that nonetheless refocus your thoughts.
In listening to Malcolm Gladwell’s story about the beginning of his journalistic career and the contest he had with a colleague to insert a certain phrase into the pages of the newspaper as often as possible (a phrase such as “perverse and often baffling”), I had a new appreciation for the role of authorship in journalism. Indeed, on that particular commute home, I thought about authorship and authors a lot. I thought about how my older daughter sits and “writes” (she is only four) and tells me “this is my work.” I thought about the many theoretical and experimental scientists, whose academic norm is to co-author articles, which articles are written by the dozens in a short span of time and are secondary in importance to the data they generate in their experiments. I thought about judicial opinions that are written by law clerks. I thought about the star-footnote at the bottom of law review articles that acknowledge the contribution of colleagues and friends, and then include the disclaimer “any errors are my own.” I thought about how many people have spoken to me about Malcolm Gladwell’s article in the New Yorker about innovation (which I have yet to finish) and how authors, like Malcolm Gladwell, become famous public intellectuals permeating so many different social and academic settings. I thought about how, even in the Internet Age, books (a traditional vehicle for authorship) matter. I thought about how the assertion of authorship is a complex, social act, the meaning of which is elusive and depends on the specific writing context.
And this may be an obvious conclusion to draw – but I had a relatively short commute and didn’t have much more time to think deeply about whether I was being profound or banal. I was nearing the house and I was going to have to put away my IPOD and devote my time to parenting rather than thinking more about how, it seems, writing creates a community rather than the reverse.
As I now sit with a bit more time (albeit right now stealing time away from my research and writing rather than from my family), I wonder how obvious this insight actually is — at least from the standpoint of law. We tend to say that a community (or a person) creates a writing. This is one of the central tenets of copyright law and, if broadened to include invention or innovation, is central to intellectual property law generally. (I have elsewhere called this one of the origin myths of intellectual property.) But, of course, constitutions are constitutive of communities – they birth them anew. And many novelists or essayists will say, “I don’t know what I think or what I want to say until I write it down,” strongly suggesting that written discourse shapes their thoughts (and therefore themselves). How would this insight – that a community’s writing creates the community rather than vice versa (be it the journalism community, the juridical community, etc.) – change our view of intellectual property rights? I’m going to have to think more about this on the next commute home … but then I’m just dying to listen to the next Moth podcast.
June 5, 2008 at 3:00 pm
Posted in: Culture, Intellectual Property, Law and Humanities
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Cross-Examining Film
posted by Jessica Silbey
Thanks for having me here at Concurring Opinions. I haven’t blogged for some time – reminding myself there is life outside of the Web – but for the next month I am excited to reengage my blogging-self and hopefully some readers of this blog.
One of my summer projects is to think about how to turn some of my more theoretical writing on law and film into a practical “how to” piece on lawyering in the courtroom with filmic evidence. To that end, I have been watching lots of police films (a subset of what I have called “evidence verite”). These films can be found without much effort on YouTube or VideoSpider. Anyone else out there know of good sites storing this kind of film footage, I would love to hear about it. I found one piece of footage that is the subject of a recent court case – Jones v. City of Cincinnati, 521 F.3d 555 (6th Cir. 2008) – which can be found here. This film, of the police using a tremendous amount of force to subdue Nathanial Jones (who subsequently died), is an excellent example of how the film frame (what is seen and what is not seen due to the limits of the camera’s size and angle) can affect the viewer’s response to the images. When watching this film, we must imagine the blows delivered and the pain received because both are off-camera. How we imagine them might depend on our experience with police brutality more generally. (We do hear the police and the criminal suspect protesting loudly.) Do we imagine Hollywood violence (which way does that cut for the defendant here)? Do we have any experience seeing this kind of violence first or second hand so that it is hard to imagine anything but the worst? The boundaries of imagination are hard to predict and therefore a formidable opponent in a court of law. Imagination is obviously not evidence in a court of law, although it likely wields mighty influence nonetheless. A former student suggested to me that not seeing the blows Nathanial Jones suffered makes us more callous to the pain he received. I tend to think that is the case.
The Sixth Circuit in Jones v. City of Cincinnati affirmed the district court’s refusal to dismiss the case on defendant’s 12(b)(6) motion and said this in relation to the film: “Where the evidence ‘captures only part of the incident and would provide a distorted view of the events at issue,’ as the district court concluded with respect to the videotape, we do not require a court to consider that evidence on a 12(b)(6) motion.” Id. at 561. To this, I would say “no kidding,” but we will have to wait and see what the trial court does on a Rule 56 motion. Given the Supreme Court’s decision in Scott v. Harris, I remain skeptical that a court can resist the myth of film’s obviousness and objectivity.
For those who need a refresher, Scott v. Harris was the 2007 Supreme Court case concerning a high speed police chase that resulted in the police ramming the suspect’s car causing him to become a quadriplegic. A police camera on the cruiser recorded the chase from the point of view of the police car, and the Supreme Court said that the trial court should have considered the facts in that case “in the light depicted by the videotape” despite contradictory testimony. For an excellent analysis of the flaws of that case, see Howard Wasserman’s short piece here . For an even shorter analysis, see my Op-Ed here . For a longer more empirical analysis of the video in the case, see Kahan et al. here.
How do courts and lawyers deal with filmic evidence in light of film’s inevitably partial nature? That is what my new piece is working through with some practical tips on cross-examining film in a courtroom. The piece should be up on-line soon. For those who want a preview, feel free to email me.
June 2, 2008 at 10:57 am
Posted in: Criminal Law, Criminal Procedure, Culture, Empirical Analysis of Law, Evidence Law, Law Practice, Law and Humanities, Movies & Television, Supreme Court
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Constitutionalism and Legitimacy
posted by Daniel Solove
Over at Convictions and Balkinization, Orin Kerr and Jack Balkin are having an interesting discussion about Justice Scalia’s constitutionalism versus liberal constitutionalism.
Orin Kerr writes:
Justice Scalia’s view has popular appeal precisely because it is based on populism. His basic theme is that the People created the Constitution, and they can set rules with in it. If the People want to change the Constitution, they can. But it’s up to them. In this view, the People decide: Every citizen is empowered to participate in the rule making that governs us all. I think this resonates not because Justice Scalia is a legal Pied Piper but because the message itself is quite powerful (and to me, I confess, pretty persuasive). At bottom, it’s “we the people.”
Kerr notes that liberal constitutionalism can be defended by arguing that “some limitations on democratic rule making actually enhance democratic rule making.” But, Kerr notes: “This is a very popular move among academics, although it can be hard to sell to the public.” Kerr also contends that another option is “to forget about theory and instead focus on results. . . . The idea is to focus on the bad results that are possible if courts let elected branches run amok, and then ask whether you want to live in a world with good results or the potential for bad ones.”
Jack Balkin contends that “Scalia may say his originalism is respectful of majority rule, but he is perfectly happy to strike down lots of laws for which there is little basis in the original expected application.” Balkin goes on to argue:
By contrast, liberal constitutionalism is far more honest. Its basic principles are simple. First, we must be faithful to the constitutional text and to the basic principles of the Constitution that underlie it. Second, we must apply and adapt these principles in the text to changing times. Liberal constitutionalists from Brandeis to Brennan have made these two basic claims over and over again: Be faithful to the constitution’s text and principles, and apply them faithfully to new circumstances and new challenges.
I have a few thoughts to add to this debate:
1. The quest in theories of constitutional interpretation has often been to find a way to legitimate judicial review. What gives courts the power to stop the will of the majority? The problem is that in a post-realist age, we realize that the Constitution is not very constraining and that justices can interpret it as freely as they can a Rorschach blot. This makes the quest for legitimacy a very difficult one, in at least two senses: (1) we need a theory for why a document written hundreds of years ago can bind us today, even when a large majority of us may want to do something; (2) we need a theory for why judicial interpretations of this document are authoritative and not merely the gussied-up projection of a justice’s preferences. All sorts of valiant efforts have been made to find legitimacy in these two senses.
2. I’m not sure we should be so obsessed with legitimacy, because I’m not sure that we’ll ever come up with a satisfactory way to achieve it. Kerr might very well be right that most theories to find legitimacy might appeal more to theorists than to the general public, and that’s a big problem, for at least one main reason why legitimacy is sought is to convince the public of the validity of the Court’s decisions. Paul Kahn’s Legitimacy and History (1993) makes a very powerful argument for why the quest for legitimacy is futile.
3. Justice Scalia’s populist constitutionalism is also deeply flawed. He says he’s reluctant to overturn the will of the majority, but as Balkin notes, that’s just false. Scalia’s brand of originalism is just one theory among many to claim legitimacy, a way to argue that Scalia’s interpretations are somehow more grounded than other justices’ interpretations, that he somehow has insight into the true meaning of the Constitution. But there is no true meaning of the Constitution. And Scalia’s method of interpretation is no more legitimate than many other methods. The realist in me says that this entire debate is about sloganeering. Everybody wants their vision to be the true meaning of the Constitution, and it devolves into a silly game of “I’m more legitimate than you.”
May 12, 2008 at 5:32 pm
Posted in: Constitutional Law, Jurisprudence, Law and Humanities, Supreme Court
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Law & Lit Smorgasborg
posted by Frank Pasquale
Literature with implications for law and politics is the topic of this special issue of the Law and Politics Book Review. It has many bite-sized reviews/reflections. I particularly liked these thoughts from Simon Stern on Dr. Jekyll and Mr. Hyde:
Much of the interest in Stevenson’s tale lies in its status as a moral allegory about the human character, not as an exploration of Jekyll’s uniquely conflicted psyche. If Jekyll’s “underlying illness” is universally shared, should it be taken into consideration when we ask whether Hyde’s crimes were brought about by a voluntary act? Jekyll and Hyde thus opens up extensive vistas for discussion of different degrees of criminal liability.
And there are some provocative reflections on Brave New World from Tracy Lightcap:
What Huxley was trying to point out about the World State, is not that happiness and stability are undesirable, but that happiness and stability have to be achieved by societies that put individuals, not institutions, first. As Huxley says, “In this community economics would be decentralist and Henry-Georgian, politics Kropotkinesque cooperative. Science and technology would be used as though, like the Sabbath, they had been made for man, not . . . as though man were adapted and enslaved to them. Religion would be the conscious and intelligent pursuit of man’s Final End . . . And the prevailing philosophy of life would be a kind of Higher Utilitarianism, in which . . . the first question to be asked in every contingency of life being ‘How will this thought or action contribute to or interfere with, the achievement, by me and the greatest number of other individuals, of man’s Final End’” (pp.ix-x).
There is a good deal of food for thought in these and the 20 or so other reviews in the issue.
April 28, 2008 at 1:30 pm
Posted in: Law and Humanities
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Judges Citing Literature
posted by Daniel Solove
Professor Todd Henderson (U. Chicago Law School) has posted an interesting article on SSRN, Citing Fiction, 11 Green Bag 2d 171 (2008). He provides many illuminating facts about judges citing literary works:
A comprehensive survey of over 2 million federal appellate opinions over the past 100 years reveals only 543 identifiable citations or references to works of fiction. Of these, less than half – 236 – were employed rhetorically to evoke an emotional response in the reader. This type of citation, which I’ll call a “literary” citation, occurs in only about 1 out of every 10,000 federal appellate opinions.
Todd’s data is quite interesting, but I disagree with how he frames his essay and some of the conclusions he draws. Todd writes:
[A] central claim of the law and literature movement (which I’ll refer to as “the Movement”) is that reading fiction can provide judges with knowledge about how to solve real world problems. For example, Professor Martha Nussbaum writes that “the novel constructs a paradigm of a style of ethical reasoning … in which we get potentially universalizable concrete prescriptions by bringing a general idea of human flourishing to bear on a concrete situation.” If this is true and the Movement has had a significant effect on law, one would expect to see an increase in the use of literature in judicial opinions, since judges routinely cite to works that have a direct impact on their decisionmaking. We should also expect to see works cited for the reasons the Movement wants them to be – to reveal that the fiction has evoked feelings of pity and empathy for the less fortunate and given a voice to traditionally marginalized segments of society. Neither of these things is true.
Unpacking this paragraph, I see the following claims: (1) whether the law and literature movement “has had a significant effect on law” can be assessed by instances when literature has a “direct impact” on judicial decisionmaking; (2) “central” claims of the law and literature movement are that literature makes judges more ethical or empathetic and that literature provides judges with “knowledge about how to solve real world problems”; and (3) citations will demonstrate whether literature has a “direct impact” on a judge’s decisionmaking.
Let’s begin with the first claim: Whether the law and literature movement “has had a significant effect on law” can be assessed by instances when literature has a “direct impact” on judicial decisionmaking.
This claim begins with an assumption that having a significant effect should be measured by having a direct impact. But it is unclear why the significant effect must be a direct impact rather than an indirect one. Reading Orwell’s 1984 might help shape how judges perceive surveillance and government power. Will it directly affect their decisions? Probably not, if direct effects mean that but for reading Orwell’s book, a judge inclined to decide a case one way will now decide it another way. But it might have helped shaped a judge’s mindset along with other works of literature and a number of other social and cultural experiences. It might have an indirect effect. The difficulty is that looking for direct impact is far too demanding a requirement.
April 9, 2008 at 12:02 am
Posted in: Jurisprudence, Law Practice, Law School (Scholarship), Law and Humanities, Supreme Court
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The Neuroimaging of Persuasion: Selling Babies
posted by Dave Hoffman
I’ve argued (here, here, & here) that there is a gap between how jurists generally imagine that consumers behave (and should be protected) and the technological tools available to clever marketers. The slogan I’ve come up with is total persuasion: “a society in which most speech that you hear is designed to persuade you to consume.”
Today’s W$J offers an interesting article along this line. According to researchers at Oxford, we’re hard-wired to respond to baby faces in positive ways:
Using a technique called magneto-encephalography that measures brain signals, the Oxford researchers found that a baby’s face can seize our attention in milliseconds, activating an unusual mental organ called the fusiform gyrus that responds to human faces. Moreover, these distinctive infant features, unlike the mature features of an adult, trigger a sense of reward and good feeling in a seventh of a second. Picture Bambi’s saucer-size eyes or those of Mickey Mouse.
And from later in the article:
Through brain-scanning experiments, researchers have located the neurochemical essence of our face expertise in a strip of temporal-lobe tissue about two inches long and three-quarters of an inch wide. Studying this face recognition area in macaque monkeys, neurobiologist Doris Tsao at the University of Bremen, Germany, reported in Science that the tissue consisted almost entirely of neurons that responded just to faces.To understand how the tissue develops, Yoichi Sugita at Japan’s Neuroscience Research Institute raised infant monkeys for two years without ever showing them a face. Lab workers wore hoods. When faces were finally revealed to them, the monkeys could readily tell them apart, Dr. Sugita reported in January in the Proceedings of the National Academy of Sciences.
“It is mind-blowing,” Dr. Kanwisher said. “If you had to bet, you would bet it is innate.”
What can/should the law do about these findings, which, after all, confirm common intuitions. See Steven Jay Gould’s A Biological Homage to Mickey Mouse, in The Panda’s Thumb.
April 4, 2008 at 2:11 pm
Posted in: Behavioral Law and Economics, Consumer Protection Law, Culture, Law and Humanities, Sociology of Law
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