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Archive for the ‘Law-and-Literature’ Category

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Teaching Bioethics From a Legal Perspective

In Advocacy, Arts & Letters, Bioethics, Communication, Creative Writing, Creativity, Humanities, Jurisprudence, Law, Law-and-Literature, Legal Education & Pedagogy, News and Current Events, Pedagogy, Politics, Rhetoric, Rhetoric & Communication, Teaching, Writing on July 6, 2011 at 8:33 pm

Allen Mendenhall

Last fall, I was assigned to teach a course called “Health & Medicine.”  Because I know little about health or medicine, I was concerned.  The subject of the course was writing, so I decided to craft a syllabus to facilitate classroom discussion and textual argument.  Here is the course description as stated on my syllabus:

Forensic discourse is one of three forms of classical rhetoric as defined by Aristotle.  It focuses on the relationship between language and law.  This semester we will explore forensic discourse in the context of health and medicine and consider the relationship of law to such issues as physician assisted suicide, surrogacy, cloning, informed consent, malpractice, and organ transplants.  Readings on ethics and philosophy will inform the way you think about these issues.

Your grade will not depend on how much you learn about law, but on how you use language to argue about and with law.  Because the facts of any case are rarely clear-cut, you will need to understand both sides of every argument.  Your writing assignments will require you to argue on behalf of both plaintiffs and defendants (or prosecutors and defendants) and to rebut the arguments of opposing counsel.  You will develop different tactics for persuading your audience (judges, attorneys, etc.), and you will become skilled in the art of influence.

During the semester, your class will interview one attorney, one judge, and one justice sitting on the Supreme Court of Alabama.

My students came from mostly nursing and pre-medical backgrounds.  A few were science majors of some kind, and at least two were engineering majors.

The students were also at varying stages in their academic progress: some were freshmen, some were sophomores, two were juniors, and at least one was a senior.  Throughout the semester, I was impressed by students’ ability to extract important issues from dense legal readings and articulate complicated reasoning in nuanced and intelligent ways.

I thought about this “Health & Medicine” class this week when I came across this article published by the Brookings Institution.  The title of the article is “The Problems and Possibilities of Modern Genetics: A Paradigm for Social, Ethical, and Political Analysis.”  The authors are Eric Cohen and Robert P. George.   Cohen is editor of The New Atlantis and an adjunct fellow at the Ethics and Public Policy Center.  George is McCormick Professor of Jurisprudence at Princeton University, the director of the James Madison Program in American Ideals & Institutions, and a fellow at the Hoover Institution.  Read the rest of this entry »

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Nicole N. Aljoe on Legal Discourse and Testimony in Early West Indian Slave Narratives

In Advocacy, American History, Arts & Letters, Civil Procedure, History, Humanities, Jurisprudence, Law, Law-and-Literature, Laws of Slavery, Literary Theory & Criticism, Nineteenth-Century America, Politics, Rhetoric, Slavery, The West Indies on July 5, 2011 at 7:21 pm

Allen Mendenhall

Nicole N. Aljoe has published an intriguing article in Volume 46 (issue no. 2) of Early American Literature (2011), which is published by the University of North Carolina Press.  The article is titled “‘Going to Law’: Legal Discourse and Testimony in Early West Indian Slave Narratives.”  It is available here on Project Muse.  The abstract is below:

Despite the fact that the courts had not proven consistently helpful in their quests for freedom, British West Indian slaves frequently consulted them in order to invoke the rule of law and pursue their rights. Several Caribbean historians have documented the ways in which slaves in the West Indies participated in formal legal arenas almost from the initial days of colonization and claimed the courts as one of their own forums for resolving disputes and asserting those few rights written into the various parliamentary acts intended to ameliorate the conditions of the enslaved and passed in England and its Caribbean colonies from 1788 onward. Indeed, slaves in the West Indies participated in the courts systems as plaintiffs as well as defendants more frequently than previously thought. And although the courts were certainly used by those in power to oppress slaves, women, children, and the poor, as well as to “legitimate [the] blatantly repressive regime” of slavery, they nevertheless provided a forum for those who did not write the laws in question to use the courts to ensure the legal protection of their “natural rights” (Lazarus-Black, “John Grant’s” 154). Thus, in another of the seemingly endless paradoxes inherent to the British imperial slave system, slaves—objects of property, yet human subjects—could, in certain situations, use the courts in the West Indies and in England on their own behalf, as legal agents to affirm their status as legal subjects deserving of the law’s unbiased protection, and judgment.

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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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Law and the Ordinary, by Alexandre Lefebvre

In Arts & Letters, Communication, Jurisprudence, Law-and-Literature, Literary Theory & Criticism, News and Current Events, Politics, Rhetoric, Rhetoric & Communication, Writing on April 13, 2011 at 10:32 pm

Allen Mendenhall

One of my favorite journals, Telos, has published an essay that might interest readers of this site.  The essay, by Alexandre Lefebvre, is titled “Law and the Ordinary: Hart, Wittgenstein, Jurisprudence.”  Here is the abstract:

This essay argues that H. L. A. Hart’s concept of jurisprudence in the first chapter of The Concept of Law is strongly influenced by the relationship that Wittgenstein establishes between ordinary and metaphysical language. The article is divided into three sections. The first section shows how jurisprudence emerges as a denial of ordinary language in its pursuit of a definition of law. The second section traces Hart’s use of ordinary language to identify idleness or emptiness in jurisprudence. The third section presents Hart’s conception of his work as therapeutic in its attempt to lead jurisprudence back to the everyday.

Telos is one of the few literary-theoretical journals that regularly challenges the critical and political orthodoxy that pits itself, ironically, as the unorthodox, progressive, or transgressive.

Indeed, Telos seriously considers repressed, unpopular, and unapproved thoughts and theories. It complicates “conservative” and “liberal” as meaningful categories of discourse.

Having published such controversial authors as Paul Gottfried, Clyde Wilson, Alain de Benoist and others who situate themselves on the right-wing of the political spectrum, Telos is committed to contemplation and speculation, to profound and difficult ideas and not fashionable or typical recitations of mainstream opinions.

The journal has a long history of interrogating and revising critical theory and critiquing culture and society, and it continues to publish notable scholarship in traditions both left and right, although the signifiers left and right are not useful starting points from which to analyze anything that appears in this journal.

Paul Piconne was the founder and long-term editor of Telos.  Piconne died in 2004.  Today the editor is Russell A. Berman.  The only publication as daring and interesting as Telos is Counterpunch, a political newsletter and not an academic journal.  I urge readers of this site to read both Telos and Counterpunch as often and as closely as possible.

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Law & Literature: A Basic Bibliography

In American History, Arts & Letters, Law-and-Literature, Legal Education & Pedagogy, Literary Theory & Criticism, Nineteenth-Century America, Novels, Pedagogy, Politics, Rhetoric, Rhetoric & Communication, Semiotics, Slavery, The Literary Table, The Supreme Court, Western Civilization on April 2, 2011 at 9:16 pm

Patrick S. O’Donnell compiled this bibliography in 2010.  He teaches philosophy at Santa Barbara City College in California.  This bibliography first appeared over at The Literary Table. 

Amsterdam, Anthony G. and Jerome Bruner. Minding the Law. Cambridge, MA: Harvard University Press, 2000.

Atkinson, Logan and Diana Majury, eds. Law, Mystery, and the Humanities: Collected Essays. Toronto: University of Toronto Press, 2008.

Ball, Milner S. The Word and the Law. Chicago, IL: University of Chicago Press, 1993.

Bergman, Paul and Michael Asimow. Reel Justice: The Courtroom Goes to the Movies.  Kansas  City, MO: Andrew McMeels Publ., revised ed., 2006.

Best, Stephen M. The Fugitive’s Properties: Law and the Poetics of Possession. Chicago, IL: University of Chicago Press, 2004.

Binder, Guyora and Robert Weisburg. Literary Criticisms of Law. Princeton, NJ: Princeton University Press, 2000.

Biressi, Anita. Crime, Fear and the Law in True Crime Stories. New York: Palgrave, 2001.

Black, David A. Law in Film: Resonance and Representation. Urbana, IL: University of Illinois Press, 1999.

Brooks, Peter. Troubling Confessions: Speaking Guilt in Law and Literature. Chicago, IL: University of  Chicago Press, 2001.

Brooks, Peter and Paul Gewirtz, eds. Law’s Stories: Narrative and Rhetoric in the Law. New Haven, CT: Yale University Press, 1998 ed. Read the rest of this entry »

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Literature and the Economics of Liberty

In Arts & Letters, Austrian Economics, Book Reviews, Communication, E.M. Forster, Law-and-Literature, Libertarianism, Literary Theory & Criticism on February 5, 2011 at 10:53 pm

Allen Mendenhall

Recently Jeffrey Tucker, editorial vice president of the Ludwig Von Mises Institute, interviewed me about capitalism, the free market, and literature.  We discussed, among other things, Marxism in literature and humanities departments.  Just days later, a review titled “Marx’s Return” appeared in the London Review of Books.  That shows how relevant my interview was and is.  The interview is below:


News of Note

In Arts & Letters, Law-and-Literature, Legal Education & Pedagogy, Literary Theory & Criticism, News and Current Events on January 14, 2011 at 9:40 pm

Allen Mendenhall

Giorgio Agamben is a critical legal-literary theorist whose work Homo Sacer I both admire and recommend.  This new edition addresses Agamben’s scholarship. 

Here is an interesting article for anyone considering law school.

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The Oft-Ignored Mr. Turton: The Role of District Collector in A Passage to India

In Arts & Letters, Austrian Economics, E.M. Forster, Jurisprudence, Law-and-Literature, Legal Education & Pedagogy, Libertarianism, Literary Theory & Criticism, Politics, Religion, Writing on December 23, 2010 at 2:43 pm

Allen Mendenhall

Click here to read my latest law-and-literature article.  Below is the abstract for the article, which appears in Libertarian Papers:

E.M. Forster’s A Passage to India presents Brahman Hindu jurisprudence as an alternative to British rule of law, a utilitarian jurisprudence that hinges on mercantilism, central planning, and imperialism.  Building on John Hasnas’s critiques of rule of law and Murray Rothbard’s critiques of Benthamite utilitarianism, this essay argues that Forster’s depictions of Brahman Hindu in the novel endorse polycentric legal systems.  Mr. Turton is the local district collector whose job is to pander to both British and Indian interests; positioned as such, Turton is a site for critique and comparison.  Forster uses Turton to show that Brahman Hindu jurisprudence is fair and more effective than British bureaucratic administration.  Forster’s depictions of Brahman Hindu are not verisimilar, and Brahman Hindu does not recommend a particular jurisprudence.  But Forster appropriates Brahman Hindu for aesthetic and political purposes and in so doing advocates a jurisprudence that does not reduce all experience to mathematical calculation.  Forster writes against the Benthamite utilitarianism adopted by most colonial administrators in India.  A tough figure to pin down politically, Forster celebrates the individual and personal relations: things that British rule of law seeks to suppress.

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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.

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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 »