Category: Law and Humanities

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Law & Literature Resources

book1.bmpThe topic of this week’s research canons series at PrawfsBlawg is law and literature, a field I find of great interest (I have written a few papers about law and literature). If you’re interested in law and literature, you might find my website for the Law & Humanities Institute to contain some useful information.

There are several web pages that may be of interest:

1. General Resources (websites, syllabi, etc.)

2. A List of Literary Works About the Law

3. A Chronological Bibliography of Works About Law & Literature (1982-present)

4. A Bibliography of Law & Literature Scholarship About Particular Writers

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Law Movie Canon

Since PrawfsBlawg is experimenting with “research canons,” I thought I’d take this opportunity to create a “law movie canon” post. So here’s a list of my five favorite law movies. I’m basing this list on the following totally objective standard: Do I really like the movie? I actually happen to be an expert in things I like, and I therefore believe I am uniquely situated to create this list.

So here’s my list, in no particular order:

1. Anatomy of a Murder

This is a wonderful film about a murder trial, filled with brilliant trial scenes and tons of great issues ranging from attorney ethics to truth-seeking at trial.

2. Breaker Morant

A fantastic film about the trial of three soldiers who follow an order to kill a group of prisoners of war in violation of the rules of warfare. A deep exploration of the nature of law and justice during wartime.

3. My Cousin Vinny

Perhaps the best legal comedy movie ever made. Absolutely hilarious.

4. To Kill A Mockingbird

A superb film adapted from a great book.

5. Twelve Angry Men

A terrific exploration of the themes of judging and the role of perception and experience in the legal decision-making process and a great demonstration of the value of persistent questioning and analysis.

Of course, there are many more law movies I’ve liked, but these are a class apart. What are your favorite law movies?

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‘See At Least One Subtitled Movie A Month’

See at least one movie with subtitles a month. bfbroke06.jpg

This is Kwame Anthony Appiah’s injunction to the audience at a Fordham conference on global citizenship over this past weekend. Appiah, the dazzling University professor at Princeton, believes in conversations across cultures. Such conversations, he hopes, will help us to understand one another, perhaps even inculcate global feelings.

Some might argue that this might lead us to recognize what we all hold in common. But Appiah believes in difference as well. The conversation might lead us to recognize what divides and differentiates us as well.

Appiah is not a cultural relativist: tolerance, he notes, suggests a view as to what is not to be tolerated.

So here is my question for you: Have you learned something from watching a film with subtitles (and, if so, what film)? Did it reveal commonality or difference?

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Solum on the Need for Opinions

opinion.jpgLarry Solum recently posted a kind response to my post on the need for judicial reasoning. Here is a taste of his analysis:

An obligation to offer justification has obvious accuracy-enhancing effects: it forces the decision maker to engage in an internal process of deliberation about explicit reasons for an action and to consider whether the reasons to be offered are “reasonable” and whether they are likely to be sustained in the event of appeal. Balancing approaches, which consider the costs of procedural rules as well as their accuracy benefits, point us in the direction of the costs associated with requiring justifications on too many occasions and of the costs of requiring justificatory effort that is disproportionate to the benefits to be obtained. Requiring reasons facilitates a right of meaningful participation as well: when a judge gives reasons, then the parties affected by the action can respond–offering counter reasons, objecting to their legal basis, and so forth. Moreover, the offering of reasons provides “legitimacy” for the decision.

Very helpful. Clearly, the procedural justice literature has much to say on whether it is illegitimate for judges to rule without explanation. It seems to me that much of Larry’s discussion would seem to foreclose the legitimacy of what our commentators have suggested as the backstop for expressed opinions: back-pocket explanations, i.e., reasons produced by litigant demands.

But I still think that much of our thinking on the problem of “why and when reasons” is driven by biases built into our legal-DNA by the law school experience. I’ll ramble a bit more on this problem below the jump.

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Should the Legal Academy Be Interdisciplinary?

lawbooks1a.jpgOrin Kerr has an interesting post with excerpts from a debate between Stephen M. Feldman and Richard Seamon about the legal academy. Fedman writes that law schools ought to become even more interdisciplinary than they already are: “Interdisciplinary scholarship, done well, can generate creative methods and original insights in previously stale areas of thought.” Seamon, in contrast, observes:

The problem with promiscuous interdisciplinarity is that it does little to improve our graduates’ ability to practice law or to improve the quality of justice. Furthermore, it distracts us from pursuits that would bring such improvement. . . . There seems to be a strong consensus that law schools do not adequately prepare their graduates to practice law and that basic, competently rendered legal services are not widely available to the poor and the working class. Under those conditions, it is selfish and irresponsible for the legal academy to pursue interdisciplinarity on a broad scale so that law professors can feel good about themselves despite their abandonment by the legal profession.

I agree with Feldman. Seamon provides no reason why interdisciplinary studies are unhelpful to the practice of law or the quality of justice. His main gripe is that legal services are not adequately provided to the poor, but this has little to do with an interdisciplinary focus. Indeed, perhaps the study of sociology and literature might inspire students to be more aware of the need for legal services for the poor. There is no reason to assume that teaching students more about legal doctrine will lead them to careers in the public interest. Interdisciplinary scholarship and courses teach students a broader view of the law — to be more critical of the existing legal structure and to understand the role it plays in society. This broader vision of the law can be very helpful for the law’s future development. Many students one day will become judges and lawmakers, and having had some basic exposure to statistics, economics, literature, philosophy, sociology, psychology, and other disciplines will hopefully let them improve the law, which is often hopelessly antiquated in its understandings of these disciplines. The law of evidence, for example, is based on faulty assumptions about psychology. Many opinions make judgments based on unsound empirical assumptions. Many a judge could use a lesson in statistics. And many a judge or legislator would benefit from the depth of normative thought and reasoning that reading literature and philosophy can help develop.

I often find that much about the current practice of law is unimaginative and mechanical. I’ve read many a brief that was like a paint-by-the-numbers exercise. The best lawyers, in my view, have a broader understanding than just rules and legal doctrine. They know how to persuade the judges they appear before; they know how to pick juries; they know how best to resolve a dispute, whether by trial or settlement. Lawyers are problem solvers, and they must utilize a wide range of skills and bodies of knowledge.

Also, it is hard to imagine how law can be separated from interdisciplinary approaches. The formalists of the late 19th Century wanted to see law as something completely self-sufficient and pure. But that just isn’t how law is.

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The Disney Opinion and Executive Compensation

I had the good fortune to be asked to review Professor Telman’s Business Judgment Rule, Disclosure and Executive Compensation article, over on the ‘glom. I enjoyed the paper, both because I think Professor Telman proposes an interesting way to attack recent executive compensation scandals and because I am currently working with my sister (the nicer, funnier, smarter Professor Nowicki) on an empirical paper on executive compensation, such that the topic weighs heavily on my mind. In addition, however, it was interesting to read Professor Telman’s article on the heels of the Delaware Supreme Court’s Disney opinion and its weak review of the Disney board’s analysis of Ovitz’s vulgar pay package. Indeed, Gordon Smith poses a query to Professor Telman (and perhaps me) on the ‘glom that is partially related to something I had intended to address earlier here, on concurringopinions.com. For what it is worth, then:

Executive Compensation and the “Ovitz Fiasco”

In my view, the Disney board failed in an amazing assortment of ways with respect to the hiring and compensation of Michael Ovitz, not the least of which include

(a) the failure to sufficiently consider/review/debate (become informed about) the decision to hire Ovitz (or the “decision to elect Ovitz as Disney’s President”) and

(b) the failure to review as a board at least to some minimal degree the OEA.

The Delaware Supreme Court, in its recent Disney opinion, did not do a strong job with addressing these failures, both in the collective and as the bevy of very distinct issues that they were. In its opinion, the court inappropriately collapses and poorly addresses four inquiries:

(1) Did Eisner have the authority to hire Ovitz into a senior-level position – e.g. delegate board authority to an officer ala normal agency principles and DGCL § 141 – without first securing official board approval?

(2) Did the board *as a group* have to debate/consider/review/become-informed-about the decision to elect Ovitz as Disney’s President?

(3) Was a full board vote needed when approving a very costly senior executive compensation package or could that sort of matter be finalized without full board ratification?

(4) If a full board vote was needed on the compensation package, was it permissible for the board to delegate the discussion and deliberation on the entirety of the Ovitz compensation issue to the compensation committee, such that all the full board needed to do is hear the comp. committee say “yep, fine with us” and the rest of the board could sign-off on the package? (Francis v. Smith?)

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Andy Warhol’s Electric Chair

My colleague Bennett Capers (Hofstra) has written a fascinating, and rather disturbing, article at the intersection of law and art. Writing about Andy Warhol’s Electric Chair paintings, he asks a series of probing questions – about who the viewer imagines in the chair, and about death as a public spectacle. In this excerpt, he talks more about presence/absence in the paintings:

ReSizedWarholElectricChair.jpgIn Warhol’s Electric Chair series, just as the condemned is both absent and present, so is the State – and this is comforting. Complicity is shared. No one is to blame. Our system of capital punishment thrives partly because of this (joint) presence and absence. The state is present in the very bureaucracy of execution, from the legislative decision to authorized capital punishment to the judicial sanctioning of death-authorized juries. At the same time, the state creates its own absence in diffusing authority among the cast of participants: legislators, prosecutors, jurors, trial and appellate judges, governors with their ability to grant clemency, the executioner himself. And this is what I mean by absence. To borrow from another commentator, the diffusion allows everyone to say, “I’m only doing my job. I’m just a cog in the wheel. I didn’t kill him.” The room is empty, even though it is full.

The article was recently published by the California Law Review.

Photo Credit: Andy Warhol, Electric Chair I (1971), Warhol Family Museum of Modern Art

Law of Conservation of Responsibility?

Back in 2004, a Florida judge angrily sent 11 defendants—mainly traffic offenders—to a jail cell for hours because they happened to be in the wrong courtroom. He’s now trying to keep his job, and claims in his defense that he had undiagnosed attention-deficit hyperactivity disorder (ADHD).

I think the case raises fascinating issues, less for the judge’s defense (I have no idea whether it’s accurate or exculpating), than for the cultural effect of such defenses. Are support groups for people with ADHD glad to see such defenses raised in court, since they add legal heft to diagnoses? Or are they worried that opportunistic defendants are going to discredit ADHD as one more tool to “get around” conventional notions of responsibility? I’d love to hear more on this type of debate, either in the criminal context (over the insanity defense) or in civil contexts. It’s a bit topical, given that the Supreme Court will hear arguments in Clark v. Arizona on April 19, to determine whether defendants have a constitutional right to an insanity defense.

All I’ll say for now is that this is not just a scientific question….

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Three Cheers for Categorizers!

gursky.jpg

Dan mentioned an indefatigable blogger who’s now taxonomizing over 600 law-related blawgs. I’ve heard a lot of critics of bloggers complain about “navel-gazing” in this field. But this type of work is exceedingly valuable, as I try to demonstrate in a recent piece on “information overload externalities.”

In my view, categorizers are a uniquely beneficial “genus” in the information ecosystem, and they deserve special solicitude from copyright law. Categorizers should be able to provide small samples or clips from whatever works they organize or index, without begging for licenses from the copyrightholders who own the sampled work.

Unfortunately, categorizers have been getting some rough treatment by courts lately. For example, Google recently lost a battle against “erotic image purveyor” Perfect 10 because the low resolution images on its “image search” might reduce Perfect 10’s sales to the “cell phone viewing” market. The Author’s Guild (which appears neither to represent all authors nor to be a guild) is suing to stop Google’s digital book indexing project—even though Google permits any aggrieved copyright owner to opt out! They believe Google should have to work out, individually, permissions for each of the millions of books they want to index.

Imagine if uber-taxonomizer 3L Epiphany had to ask permission to quote or cite to any of the blawgs he compiled. Are we really going to let a few cantankerous holdouts veto an effort to archive and index the world’s expression? I hope not, for a couple reasons…

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