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Archive for the ‘Jurisprudence’ Category

The Orphan in Eighteenth-Century Law and Literature, by Cheryl L. Nixon

In Arts & Letters, Book Reviews, Jurisprudence, Law-and-Literature on December 22, 2010 at 6:05 pm

This new book looks quite promising.  Note the following from the publisher:

Cheryl Nixon’s book is the first to connect the eighteenth-century fictional orphan and factual orphan, emphasizing the legal concepts of estate, blood, and body. Examining novels by authors such as Eliza Haywood, Tobias Smollett, and Elizabeth Inchbald, and referencing never-before analyzed case records, Nixon reconstructs the narratives of real orphans in the British parliamentary, equity, and common law courts and compares them to the narratives of fictional orphans. The orphan’s uncertain economic, familial, and bodily status creates opportunities to “plot” his or her future according to new ideologies of the social individual. Nixon demonstrates that the orphan encourages both fact and fiction to re-imagine structures of estate (property and inheritance), blood (familial origins and marriage), and body (gender and class mobility).

Whereas studies of the orphan typically emphasize the poor urban foundling, Nixon focuses on the orphaned heir or heiress and his or her need to be situated in a domestic space. Arguing that the eighteenth century constructs the “valued” orphan, Nixon shows how the wealthy orphan became associated with new understandings of the individual. New archival research encompassing print and manuscript records from Parliament, Chancery, Exchequer, and King’s Bench demonstrate the law’s interest in the propertied orphan. The novel uses this figure to question the formulaic structures of narrative sub-genres such as the picaresque and romance and ultimately encourage the hybridization of such plots. As Nixon traces the orphan’s contribution to the developing novel and developing ideology of the individual, she shows how the orphan creates factual and fictional understandings of class, family, and gender.

Review of John Ernest’s Chaotic Justice (Chapel Hill: University of North Carolina Press, 2009)

In American History, Arts & Letters, Book Reviews, Dred Scott, Jurisprudence, Law-and-Literature, Legal Education & Pedagogy, Literary Theory & Criticism on July 7, 2010 at 2:30 pm

 

John Ernest, Eberly Distinguished Professor of American Literature at West Virginia University, has written a new book, Chaotic Justice, that should appeal to lawyers and law professors alike.  Ernest’s project began with basic research on Frances E. W. Harper’s Iola Leroy (1892), but over time Ernest realized that, in his words, “I did not know nearly enough about the literary and cultural history on which, according to my doctorate and professional experience, I was supposed to be an expert.”  Ernest found himself “increasingly convinced that we cannot appreciate American literary and cultural history without a deep understanding of nineteenth-century African American literature,” so he set out to gain that understanding and to convey his findings to a wide audience.  Some of the articles he published along the way—in such journals as PMLA, African American Review, American Literature, and Arizona Quarterly—appear in the book, albeit in slightly different form.   

Examining a vast network of authors who shaped the African American literary corpus, Ernest, a critical race theorist, has strong words for those who teach histories and theories about race as a nod toward idealized multiculturalism.  “Too often,” he says, “social progress relating to race is considered to be an approach toward an imagined horizon by which either the color line gradually disappears or an imagined multiculturalist ideal emerges—an escape, in effect, from a social world largely constructed by and long devoted to racial theories and racist practices.”  More harm than good, in other words, will come of a curriculum that celebrates a quixotic post-racial future while overlooking—or, worse, generalizing—about America’s fraught history of racism.      Read the rest of this entry »

Jefferson’s Laws of Nature

In Arts & Letters, Jurisprudence, Law-and-Literature, Literary Theory & Criticism, Politics, Thomas Jefferson on June 29, 2010 at 10:24 pm

My article on Jefferson is going to print this month.  Titled “‘Jefferson’s Laws of Nature’: Newtonian Influence and the Dual Valence of Jurisprudence and Science,” the article will appear in The Canadian Journal of Law and Jurisprudence, Vol. 23, No. 2 (2010).  View the SSRN page here.

The Dred Scott Decision

In Arts & Letters, Dred Scott, Jurisprudence, Law-and-Literature, Legal Education & Pedagogy, Literary Theory & Criticism, The Supreme Court on June 16, 2010 at 10:08 pm

My paper on the Dred Scott decision is available on SSRN.  Click here to view the abstract and then click “One-click Download” to read the paper.

Jefferson and Information Policy

In Arts & Letters, Information Design, Jurisprudence, Literary Theory & Criticism, Politics, Rhetoric & Communication on May 18, 2010 at 7:11 pm

 

Since the emergence of the Internet and the innovations of information technology, intellectual property law (IP) has become an increasingly important and contentious field.  Applying old ideas to new inventions can lead to heated debates.

IP has always stood on shaky footing in light of claims that rights to intangible products such as ideas, or tangible products that amount to artistic or commercial creations of the mind, are legal fictions.

IP involves monopolistic privileges for inventors to incentivize inventing.  Opponents of IP argue that monopolies are inefficient, uncompetitive, exploitative, and unjust, even when granted to artists or performers.

David Opderbeck, a scholar of IP, has examined information policy, which studies the interface of information technology and government.  He argues against social constructivism as an approach to information policy and for a combination of critical realism and environmental virtue ethics.  The latter approach breaks from what he calls “modern positivism” and “postmodern skepticism,” insisting that social constructivism is itself grounded in deeper realities.

Opderbeck brings to mind Bruno Latour’s description of the vacuum pump experiment: although the conditions of the experiment are artificial or socially constructed in that they never would appear naturally, the results of the experiment are real (i.e., natural).  Social constructions are means to natural ends, but to reduce the entire experiment to social constructivism misses the point.

The same is true for information technology.  Social constructions influence the ways in which information, broadly conceived, interacts with government, just as they influence the ways in which humans interact with nature.   Read the rest of this entry »

Stanley Fish Takes on David A. Strauss

In Arts & Letters, Jurisprudence, Law-and-Literature, Literary Theory & Criticism, The Supreme Court on May 11, 2010 at 10:09 am

In his weekly column for The New York Times, Stanley Fish takes to task David A. Strauss, whose method of constitutional interpretation, or explanation of constitutional interpretation, seems incoherent, pivoting on grand assumptions about the ways in which readers of a text construe the meaning(s) of that text.

A Defense of Law-and-Literature

In Arts & Letters, Jurisprudence, Law-and-Literature, Legal Education & Pedagogy, Literary Theory & Criticism on May 7, 2010 at 2:58 pm

“Why study literature in professional school?” people have asked when I said that I work in a discipline called law-and-literature. I usually reply, “For the same reason we study math from elementary school until college: to learn about ‘truth.’”

The concept of “truth” has become the subject of ridicule. The postmodern era of scholarship, with its roots in poststructuralism, deconstruction, and narratology, ushered in new conceptions of metaphysics and ontology: all texts, indeed all things emanating from texts, whether cultural norms or social values, are at variance with themselves. Nothing has essential meaning; everything is indeterminate and arbitrary. The self-evident “meaning” perceived by individuals is socially constructed, having been centered or passed down through networks of people and events. These, at any rate, are the simplistic accusations put forth by those fed up with postmodernist presuppositions.

I’m no enemy of postmodernism, but I tend to agree with French theorist Bruno Latour, who claims that we have never been modern, so we cannot have been postmodern, and besides, there is something to this concept of “truth.”  Why else would we have mathematics? Mathematics, like literature, has the capacity to bring about answers. True answers. Postmodernism has never quite debunked this truth-seeking field. Read the rest of this entry »

Stanley Fish

In Arts & Letters, Jurisprudence, Literary Theory & Criticism, Politics, The Supreme Court on April 29, 2010 at 7:16 pm

Stanley Fish writes about The First Amendment and Kittens.

Moundsville Penitentiary

In Jurisprudence, Libertarianism, Literary Theory & Criticism, Politics, Prison on April 29, 2010 at 6:50 pm

These articles express my frustrations about, and ambivalence toward, the tourist spectacles at Moundsville Penitentiary:

“Moundsville Penitentiary, Model and Symptom of Hyperreality,” International Journal of Baudrillard Studies, Vol. 6, No. 1 (2009).

“Moundsville Penitentiary Reconsidered: Second Thoughts on a Small Town Prison Tour,” Libertarian Papers, Vol. 2, No. 1 (2010).