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Archive for the ‘Law’ Category

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Adam’s Rib and the “Two-Worlds” Problem

In Arts & Letters, Communication, Film, Humanities, Information Design, Law, Legal Education & Pedagogy, Pedagogy, Rhetoric, Shakespeare, Teaching on June 29, 2011 at 1:28 pm

Allen Mendenhall

Directed by George Cukor, the film Adam’s Rib tells the story of Adam (Spencer Tracy) and Amanda Bonner (Katharine Hepburn), New York attorneys whose marriage smacks of “tough love.”  The couple square off when Adam is assigned to prosecute a woman (Judy Holliday) who has attempted to murder her philandering husband—a bumbling dweeb—in the apartment of his mistress.  Amanda, who approves of the woman’s act, which she views as resistance to patriarchal society, takes up the case as defense counsel.

Genesis tells us that God fashioned Adam from dust, Eve from Adam’s rib.  Adam’s Rib tells a different story.

If anything, Amanda, or “Eve,” is the starting-point—a source of controversy, inspiration, and curiosity.  Adam’s Rib isn’t the first production to render gender contests in comedic tones—it’s part of a tradition dating back at least to Shakespeare’s Taming of the Shrew or Fletcher’s Tamer Tamed, and probably much further—but it is one of the more remarkable of all twentieth-century productions, especially in light of Amanda’s advocacy for a doctrine that, in American family law, came to be known as “formal equality.”

What, exactly, does Adam’s Rib offer law students?  What does it teach law students, and why should law professors bother with it?

A film that’s in no way after verisimilitude is unlikely to teach law students how to file motions, write briefs, analyze statutes, or bill clients—tasks that we assume are requisite to becoming “good” lawyers.  So what’s the point?

In his cunning way, James Elkins, during his Lawyers & Film course that I took in law school, responded to questions of this variety by drawing two boxes on the blackboard: one representing law, the other film.

“We’ve gotta get from this box to this box,” he explained, retracing the diagram with the tip of his chalk.  “One place to start,” he suggested, “is with the movie scenes depicting lawyers or the courtroom.”  Read the rest of this entry »

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Screening Legal Education

In Arts & Letters, Creativity, Film, Humanities, Law, Legal Education & Pedagogy, Pedagogy, Rhetoric, Teaching, Writing on June 15, 2011 at 10:59 pm

Allen Mendenhall

We go to the movies to enter a new, fascinating world, to inhabit vicariously another human being who at first seems so unlike us and yet at heart is like us, to live in a fictional reality that illuminates our daily reality.  We do not wish to escape life but to find life, to use our minds in fresh, experimental ways, to flex our emotions, to enjoy, to learn, to add depth to our days.

 —Robert McKee, from Story

Law school is, in a way, about performing.  From the minute you walk into the building as a 1L, you search for and construct a new identity—one that conforms to your assumptions of what a lawyer is and does.

The first time a professor called on me—Mr. Mendenhall, can you tell us how the judge in this case distinguishes restitutionary from reliance damages?—I panicked.  I knew the answer.  More or less.  But I had no chance to rehearse.  Here I was, before a large audience, a packed house, all alone, all eyes on me.

“Um, yes,” I stammered, apparently suffering from stage fright.

I don’t remember how I answered—not precisely—but I remember taking a deep breath, feigning confidence, and pretending to know what the professor expected me to know.  I must’ve sounded silly talking about things I hardly understood; but I must’ve performed satisfactorily because the professor let me alone and interrogated another student.

My first audition.  Read the rest of this entry »

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Transnational Law: An Essay in Definition with a Polemic Addendum

In Arts & Letters, Austrian Economics, Economics, Humane Economy, Humanities, Jurisprudence, Law, Law-and-Literature, Libertarianism, Literary Theory & Criticism, Rhetoric & Communication, Transnational Law on May 24, 2011 at 8:56 pm

Allen Mendenhall

The Libertarian Alliance (London, U.K.) has published my article “Transnational Law: An Essay in Definition with a Polemic Addendum.”  View the article here, or download it from SSRN by clicking here.  I have pasted the abstract below:

What is transnational law? Various procedures and theories have emanated from this slippery signifier, but in general academics and legal practitioners who use the term have settled on certain common meanings for it. My purpose in this article is not to disrupt but to clarify these meanings by turning to literary theory and criticism that regularly address transnationality. Cultural and postcolonial studies are the particular strains of literary theory and criticism to which I will attend. To review “transnational law,” examining its literary inertia and significations, is the objective of this article, which does not purport to settle the matter of denotation. Rather, this article is an essay in definition, a quest for etymological precision. Its take on transnationalism will rely not so much on works of literature (novels, plays, poems, drama, and so forth) but on works of literary theory and criticism. It will reference literary critics as wide-ranging as George Orwell, Kenneth Burke, and Edward Said. It will explore the “trans” prefix as a supplantation of the “post” prefix. The first section of this article, “Nationalism,” will examine the concept of nationalism that transnationalism replaced. A proper understanding of transnational law is not possible without a look at its most prominent antecedent. The first section, then, will not explore what transnationalism is; it will explore what transnationalism is not. The second section, “Transnationalism,” will piece together the assemblages of thought comprising transnationalist studies. This section will then narrow the subject of transnationalism to transnational law. Here I will attempt to squeeze several broad themes and ideals into comprehensible explanations, hopefully without oversimplifying; here also I will tighten our understanding of transitional law into something of a definition. Having tentatively defined transnational law, I will, in section three, “Against the New Imperialism,” address some critiques of capitalism by those cultural critics who celebrate the transnational turn in global law and politics. Although I share these critics’ enthusiasm for transnational law, I see capitalism – another hazy construct that will require further clarification – as a good thing, not as a repressive ideology that serves the wants and needs of the hegemonic or elite.

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The Place of Miscegenation Laws within Historical Scholarship about Slavery

In American History, Arts & Letters, Book Reviews, Communication, Economics, History, Law, Laws of Slavery, Legal Education & Pedagogy, Nineteenth-Century America, Politics, Slavery, The Literary Table, Thomas Jefferson, Western Civilization on May 17, 2011 at 8:28 am

Allen Mendenhall

The following post appeared at The Literary Table.

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Miscegenation laws, also known as anti-miscegenation laws, increasingly have attracted the attention of scholars of slavery over the last half-century.  Scholarship on slavery first achieved eminence with the publication of such texts as Eric Williams’s Capitalism and Slavery (1944), Frank Tannenbaum’s Slave and Citizen (1946), Kenneth Stampp’s The Peculiar Institution (1956), Stanley Elkins’s Slavery: A Problem in American Institutional and Intellectual Life (1959), and Leon F. Litwack’s North of Slavery (1961).  When Winthrop D. Jordan published his landmark study White Over Black in 1968, miscegenation statutes during the era of American slavery were just beginning to fall within historians’ critical purview.  The Loving v. Virginia case, initiated in 1959 and resolved by the U.S. Supreme Court in 1967, no doubt played an important role in activating scholarship on this issue, especially in light of the Civil Rights movement that called attention to various areas of understudied black history. 

In Loving, the Supreme Court struck down Virginia’s miscegenation statutes forbidding marriage between whites and non-whites and ruled that the racial classifications of the statutes restricted the freedom to marry and therefore violated the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment.  In the wake of Loving, scholarship on miscegenation laws gained traction, although miscegenation laws during the era of American slavery have yet to receive extensive critical treatment.  Several articles and essays have considered miscegenation laws and interracial sex during the era of American slavery, but only a few book-length analyses are devoted to these issues, and of these analyses, most deal with interracial sex and miscegenation laws in the nineteenth-century antebellum period, or from the period of Reconstruction up through the twentieth-century.  This historiographical essay explores interracial sex and miscegenation laws in the corpus of historical writing about slavery.  It does so by contextualizing interracial sex and miscegenation laws within broader trends in the study of slavery.  Placing various historical texts in conversation with one another, this essay speculates about how and why, over time, historians treated interracial sex and miscegenation laws differently and with varying degrees of detail.  By no means exhaustive, this essay merely seeks to point out one area of slavery studies that stands for notice, interrogation, and reconsideration.  The colonies did not always have miscegenation laws; indeed, miscegenation laws did not spring up in America until the late seventeenth-century, and they remained in effect in various times and regions until just forty-four years ago.  The longevity and severity of these laws make them worthy our continued attention, for to understand miscegenation laws is to understand more fully the logic and formal expression of racism. Read the rest of this entry »

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Outline and Summary of Thomas D. Morris, Southern Slavery and the Law: 1619-1860 (Chapel Hill and London: University of North Carolina Press, 1996).

In American History, Arts & Letters, Book Reviews, History, Jurisprudence, Law, Laws of Slavery, Legal Education & Pedagogy, Nineteenth-Century America, Politics, Slavery, Western Civilization on April 20, 2011 at 4:23 pm

Allen Mendenhall

Introduction

The introduction serves as a brief historiographical essay that situates Morris’s text alongside other prominent texts and authors in the field.  Morris uses the introduction to familiarize readers with, among other things, the differences between common law and courts of equity, the differences between civil and criminal law, and other relevant information such as the fact that statutes in England and America are mostly products of the nineteenth century.  Morris believes that slavery reinforced English racism in that the English were predisposed to view Africans as inferior and so used the law to categorize racial difference and justify slave property.  Morris suggests that experts can skip most of his introduction probably because the introduction is, as I have suggested, a piece about historiography rather than a history in itself. 

PART ONE

Sources: Racial and Legal

Chapter One: The Function of Race in Southern Slave Law

Popular science maintained that blacks were inferior, and this understanding was reflected in law.  Indians were not enslaved as often or in the same numbers as blacks.  The presumptions and definitions of “slave” had to do with blackness; therefore, the legal status of mulattoes was often in flux.  Law had to define people by race and then determine their free or slave status afterwards.  Several Southern states adopted laws allowing free blacks to sell themselves as slaves.

Chapter Two: The Sources of Southern Slave Law

Some Southern slave law derived from Roman law; some derived from English common law.  The origins of Southern slave law are traceable to at least Virginia.  The degree to which Virginia followed or revised the common law is debatable.  In early Virginia, many blacks were treated as indentured servants, not slaves.  Not until the mid-seventeenth century did blacks become routinely associated with slavery.  There is little evidence to suggest that Virginians had a sophisticated understanding of ancient Roman or other European legal traditions.  A child’s status as free or slave followed the mother under the judicial principle of partus sequitur ventrem.  The traditional common law rule was that the child’s status followed the father.  Some appellate courts tried to link their opinions to the precedents of civil law or the Roman law on slavery.  Some judges analogized slavery to English villenage.  The roots of slavery in Hebraic tradition and Biblical literature had an enormous influence among nineteenth-century Southern whites. Read the rest of this entry »