ROUNDUP: Law and Humanities 04.16.15

New Books

New books of interest to law and humanities folks include Robert P. Burns’  Kafka’s Law: “The Trial” and American Criminal Justice (University of Chicago Press, 2014).  Here’s a description from the publisher’s website.

The Trial is actually closer to reality than fantasy as far as the client’s perception of the system. It’s supposed to be a fantastic allegory, but it’s reality. It’s very important that lawyers read it and understand this.” Justice Anthony Kennedy famously offered this assessment of the Kafkaesque character of the American criminal justice system in 1993. While Kafka’s vision of the “Law” in The Trial appears at first glance to be the antithesis of modern American legal practice, might the characteristics of this strange and arbitrary system allow us to identify features of our own system that show signs of becoming similarly nightmarish?
If you’d like to keep up on new books in the legal area, check out the New Books in Law twitter feed: https://twitter.com/NewBooksLaw.

National Poetry Month
April is National Poetry Month; indulge the intersection of law and poetry by checking out David Kader and Michael Stanford’s anthology Poetry of the Law (University of Iowa Press, 2010).
kader
A fair number of lawyers combine their love of words with the practice of poetry (or you can put it the other way: poets pursue law, maybe to keep bread on the table and milk in the fridge).  Consider this list of poet law-reates.

Archibald MacLeish (Harvard Law, 1920), John William Corrington (Tulane Law, 1975), and  Wallace Stevens (New York Law School, 1903) (for a film based on Corrington’s work, see Decoration Day (starring James Garner)).  Like several other scholars, MacLeish was also Librarian of Congress (1939-1944). William Cullen Bryant (1794-1878) practiced law for ten years before turning full time to writing. Among his best known poems is Thanatopsis (1821). 

The seventeenth century legal scholar Sir John Davies also achieved fame as a poet. The radical poet Ernest Charles Jones (1819-1869) also practiced law, before and after his confinement for support of Chartist politics. William Schwenck Gilbert was law trained;  his knowledge of law helped flavor many of the works he wrote with composer Sir Arthur Sullivan. John A. Quinby was an admiralty lawyer turned poet and soldier. Charles Perrault (1628-1703) the author of the Mother Goose stories, was a lawyer by training.

Federico Garcia Lorca studied law before becoming famous as a writer of dramas and poetry. He was a noted anti-Fascist who was murdered by Franco’s forces during the Spanish Civil War (1936-1939).  

Edgar Lee Masters (“Spoon River Anthology”) was a Chicago attorney.  James Weldon Johnson had many talents, including songwriting (he composed “Lift Every Voice and Sing”) but he was also the first African-American admitted to the Florida Bar.  The early nineteenth century lawyers William Ross Wallace and George Watterston were also poets; Watterson was the third Librarian of Congress.   For more poet-lawyers, see this post from the Law and Humanities Blog.

Attorney Adam Taylor is a comic poet.  George Wallace is a former actor turned attorney and poet.  Vanessa Place is a poet-publisher who also practices criminal law in California. Susannah Gilman has left the practice of law for the practice of poetry.  Academia boasts a number of poetic practitioners. Mary Leader was an assistant attorney general for the state of Oklahoma and then earned a PhD from Brandeis; she then taught English at Purdue. She has won several national prizes for her poetry.  Alex Scherr started out as a poet, then went to law school, and now combines his love of words and his love of the law as a member of the law faculty at the University of Georgia. The law professor Lawrence Joseph (St. John’s University) is also a noted poet.  Seth Abramson is a lawyer-poet who now teaches English at the University of New Hampshire (Manchester).  Both Professor Abramson and Ms. Place (mentioned above) are part of the Conceptualist Poetry movement. Here’s a meditation on lawyer-poets from Martin Espada (a poet-lawyer), written in 2011. Want to read more about lawyer-poets? Here’s another list, from James Elkins of West Virginia School of Law. Or see the following articles:Elizabeth Cohen, Man of the law, and of letters as well, New York Times, April 1, 1994, at B8. About law professor and poet Lawrence Joseph. Jerry Crimmins, A Specialist in all, even iambic pentameter, Chicago Daily Law Bulletin, Sept. 19, 2005, at 3. About attorney poet Paul Homer.“Spoon River” at the firehouse, The Ithaca Journal, June 8, 2000 at 4C. About Edgar Lee Masters.Dana E. Sullivan, From briefs to poetry, a classic change of pace, New Jersey Lawyer, March 28, 2005, at 1.  About attorney lawyers through history, including Francis Scott Key, James Russell Lowell, Sidney Lanier, Edgar Lee Masters, Wallace Stevens, Archibald MacLeish, Steven M. Richman, Scott Alan George, and C. Megan OltmanCelebrate National Poetry Month (April 2015)
Conferences and Calls For Papers
 
Among new calls for papers is that from Serena Mayeri, University of Pennsylvania Law School, below, on behalf of the Kathryn T. Preyer Competition:
CALL FOR PAPERS, 2015: KATHRYN T. PREYER SCHOLARS

Named after the late Kathryn T. Preyer, a distinguished historian of the law of early America known for her generosity to young legal historians, the program of Kathryn T. Preyer Scholars is designed to help legal historians at the beginning of their careers. At the annual meeting of the Society two early career legal historians designated Kathryn T. Preyer Scholars will present what would normally be their first papers to the Society. The generosity of Professor Preyer’s friends and family has enabled the Society to offer a small honorarium to the Preyer Scholars and to reimburse, in some measure or entirely, their costs of attending the meeting. The competition for Preyer Scholars is organized by the Society’s Kathryn T. Preyer Memorial Committee.Submissions are welcome on any topic in legal, institutional and/or constitutional history.  Early career scholars, including those pursuing graduate or law degrees, those who have completed their terminal degree within the previous year, and those independent scholars at a comparable stage, are eligible to apply. Papers already submitted to the ASLH Program Committee–whether or not accepted for an existing panel–and papers never previously submitted are equally eligible. Once selected, Preyer Award winners must present their paper as part of the Preyer panel, and they will be removed from any other panel.

Submissions should be a single MS Word document consisting of a complete curriculum vitae, contact information, and a complete draft of the paper to be presented. Papers must not exceed 40 pages (12 point font, double-spaced) and must contain supporting documentation. In past competitions, the Committee has given preference to draft articles and essays, though the Committee will still consider shorter conference papers, as one of the criteria for selection will be the suitability of the paper for reduction to a twenty-minute oral presentation. The deadline for submission is June 15, 2015.

Kathryn T. Preyer Scholars will receive a $500 cash award and reimbursement of expenses up to $750 for travel, hotels, and meals. Each will present the paper that s/he submitted to the competition at the Society’s annual meeting in Washington, D.C. in November 2015.  The Society’s journal, Law and History Review, has published several past winners of the Preyer competition, though it is under no obligation to do so.

Please send submissions as Microsoft Word attachments by June 15, 2015, to the chair of the Preyer Committee, Serena Mayeri, University of Pennsylvania <email>. She will forward them to the other committee members.

The 2015 Preyer Memorial Committee
Serena Mayeri, (2013) Chair, University of Pennsylvania <email>
Sam Erman (2013), University of Southern California <email>
Melissa Hayes (2014), Independent Scholar <email>
Michael Hoeflich (2014), University of Kansas <email>

More information, including a list of past Preyer Scholars, can be found here: http://aslh.net/about-aslh/honors-awards-and-fellowships/preyer-scholars/
CALL FOR PAPERS: ISSUES OF FACT: THE PATHOLOGIES OF FACT AND THE FICTITIOUS IN LAW AND THE HUMANITIES

A three-day conference organized by Jeanne Gaakeer and Frans-Willem Korsten

To be held September 24-26, 2015

Erasmus School of Law & Erasmus School of History, Culture and Communication – Leiden University Centre for the Arts in Society

Deadline application: a proposal of max. 300 words should be sent to issuesoffact@gmail.com before May 15th, 2015.

Introduction

Truth in law is not written in stone. In all legal systems, actors submit their findings and views on what is to constitute that all-important category called “the facts”, in order to have judgment. What, then, in that process, is “fact” and what is “ficticious”, and how do we “know”? These basic questions draw the attention to both etymology and epistemology: fact as the act of “facere”, the act of giving something a recognizable form is that is in itself a also mode of fiction, a “making up”, in literary narratives as well as, historically, when it comes to postulates of science. To Giambattista Vico, for example, any scientific endeavor is equivalent to knowledge of the way in which things came into being. If we have a strong belief in, and thorough acquaintance with a factum as a man-made thing, then on this precondition and presupposition we are able to reach a verum, cognition of a truth.

So much is obvious, stating the facts in law is advancing a claim of (referential) truthfulness: “This is what happened” .This means that jurists should bear in mind the influence of their own interpretive frameworks and unconscious choices or preferences on both fact and norm. What is more, ascertaining the facts in the sense of the selection of what may be looked upon as relevant legal facts is always done literally ex post facto. That too provides a good reason for more research on how a number of facts “out there” come to be regarded as a string of causally connected events with consequences as far as imputation and accountability are concerned, and what factors are influential in the process of the construction and re-construction of (legal) reality. This is acute because the way in which the facts of a case are narrated determines to a large part the outcome of that case.The flipside of the meaning of fiction as noted above is the fictitious, as the act of pretending, and even willfully deceiving in order to produce a false belief. In the context of law, it leads to injustice, given the reciprocal relation between fact and legal norm, i.e. the always combined effort in law of the perception and assessment of the facts against the background of what the legal norm (including the academic propositions made for it) means.

From the very start of law as we know it, people have tried to meddle with the (meaning of) facts in court cases, – think of the god Apollo in Aeschylus’ Oresteia -, precisely because trials were aimed first and foremost at establishing the facts of what had happened (or what might have happened, in Aristotelian terms) and what that meant. In other words, narrative plays a role in the forensic statement of fact, the narration. Enter fiction, with the danger of the fictitious.

It appears that in the contemporary situation the questions after ‘factuality’ are acute because the powers of the so-called ‘triers of fact’ are confronted with, and perhaps lag behind with, the growing powers of those who benefit from the specific construction, deliberate deceitful fabrications included, of the facts. The problems involved have been dealt with in many forms of art: literature, theatre, film, the visual arts, participatory forms of art and so on. This conference wants to read how works of art have been dealing with the contemporary issue of factuality in the juridical domain, i.e. to place the factual-fictional distinction in a wider context than that of the original domain.

Five aspects of the matter

The first aspect of factuality concerns the rapid growth and growing complexity of scientific possibilities in establishing the truth of the matter. We would like to consider how works of art have reflected on the ways in which, on the hand, new techniques and technologies have allowed prosecutors, judges and lawyers alike to make their case on the basis of facts that would have been irretrievable in former circumstances. Yet the flipside is that the officials working in court often miss the basic expertise to assess the validity of the facts being handed to them. So, for every prisoner being freed after a miscarriage of justice on the basis of results procured by new dna-technologies, there are also cases of miscarriage of justice precisely because scientifically produced facts were either read in the wrong way or did not prove to be that factual. For judges, for example, who are unaccustomed to the specifics of a discipline other than their own, it can therefore be most helpful to gain insight in the way other forms of cognition function. This brings us back to the epistemological debate about the facts and the concept of cognition and knowledge, and reminds us of the distinction, problematic as legal practice shows, between the factum probandum, the fact which is the subject of proof and the factum probans, the fact from the existence of which that of the factum probandum is inferred. Put differently, is there a chain of circumstance “out there” or does (some)one carefully fit together the facts and evidence, and the other established facts and so on and so forth?

The second aspect of factuality concerns the societal respect for the court’s prerogative to establish the facts. Many works of art have been focusing on the problem that in a growing number of cases people have been declared guilty in the context of a ‘society of the spectacle’, or ‘trial by (social) media’ that thrives on the dynamic of opposing parties that pick their favorite and already appear to know beforehand what the facts of the matter ‘really’ are. For example, in many societies people suspected of pedophilia are no longer able to live their own lives safely. Or there may be controversial cases that have become the subject of a society’s spectacle as a result of which the judicial outcome of the case will always lead to a disqualification of the court (or the legal system) by one of the societal parties involved. What happened to the respect for facts in the society of the spectacle?

The third aspect of factuality concerns the growing intertwinement of forms of subjectivity and agency that used to be clearly distinguishable in previous times. A worker handling a machine could be held responsible for using it rightly or wrongly, intentionally or not, because it would be a matter of fact who was doing what. Yet the issue of “who” is it that acts has become acute , for instance, in cases that robots (like cars) have become entities that can make assessments on their own, and decide ‘on their own’, or in the case of devices, as yet a fantasy but a serious one in ambient intelligence, such as ‘Digital-Me’, a personal assistant that impersonates its owner and takes his decisions independently. Here questions of personhood and legal personality come in. A comparable problem concerns the conflation of the machinic with the human, or of animals that are produced technologically. The question is not so much what all these new forms of bodies can do. The question is: what are they, as a matter of fact? Which works of art have been doing research in this domain, and how did they do it? The paradigm shift in scientific thought that technological advancements have brought about has not yet been fully understood in and by law. New technologies are as yet ‘undecided’ since they are ‘undecidable’ from a legal point of view. As Charles Taylor already in 1991 urged us to do, it is time to reconsider the primacy of instrumental reason in modernity. So one question we have to ask is whether we dominate technology or technology dominates us, given the risk that instrumental reason becomes framed in a project of domination that seriously affects our freedom in the sense of our capacity to remake the conditions of our existence.

The fourth aspect of factuality that we want to address concerns the inequality of arms and/or imbalance of power between the so-called ‘triers of fact’ and those who aim at fabricating or manipulating the facts. We think here of works of art that focus on different variants of so-called ‘grey zones’ in which things happen that are often impossible to reconstruct on the basis of facts. Secret services may be operative that willfully produce and use grey zones in order to have the ability to act without leaving clear traces. Another example would be all those circumstances where political, juridical, and criminal forces have become intertwined as a result of which the very idea of a system of adjudication, let alone one under the rule of law, has become so perverted that its principal aim of establishing the facts has become non-existent. A third example would be all those cases where powerful organizations are at work in, and with circumstances in which other actors do not have the financial resources to get the proper legal expertise that would be required to test the facts of the matter, on the view that the fact section of a narrative before a court of law decides the case. A fourth example would be new forms of warfare that might be war crimes but that are hard to assess as such because of missing or basically blurred evidence.

Finally, the overarching question at the meta-level is how to think of a critical response to the current malleability of facts. One specific historical irony, here, may concern the way in which pivotal building blocks of post-structuralism and deconstruction (leading to the so-called establishment of ‘critical legal studies’) have been incorporated by forces of the opposition. The major target of criticism for post-structuralism and deconstruction was the state’s power to ‘make truth’, with the ideologies underpinning it, and in response these approaches focused on the malleability of facts. To read this as a support for principal relativism would be simply wrong. Post-structuralism and deconstruction wanted to break the power grab by ideologies or states as for their ability to define what was fact and what was not. The contemporary situation appears to be far more that the malleability of fact has become part and parcel of an ideology’s or state’s ability to remain in power. So, should we rethink the philosophies underpinning the malleability of facts entirely anew, or should we reframe the critical project of poststructuralism and deconstruction in order to revitalize them? To return to our opening statement, this question is especially acute if we consider the ways in which “facts” have their place in law, but, more importantly, if we reconsider the question whether facts can be thought of as “objects”, or “the way things are” without considering the cognitive burdens of their disciplinary, conceptual frameworks and underlying assumptions.

Call for papers

We invite contributions from scholars who are working in the interdisciplinary domains of Literature and Law and, more broadly, Law and Humanities in order to include other (interdisciplinary) fields, such as philosophy, law and theatre studies, law and film studies, cultural legal studies, and law and technology.

We invite contributions on one or more of the following aspects of the matter on the basis of the following questions:

  • Has the establishment of facts become a matter of scientific expertise that, in some sense, lies beyond the horizon of cognition and control of those judging the case?
  • Does the court of law’s prerogative to establish the facts still get the respect it once had in a ‘society of the spectacle’, engendered by modern (social) media that pit parties against one another and declare people to be guilty before they have had the ability to defend themselves in a court of law?
  • Has the establishment of fact become a matter of juridico-political-societal concern because formerly distinguished and accepted forms of subjectivity have now become mixed or blurred due to recent developments in technology?
  • Have the powers of those who manipulate or fabricate facts grown stronger so that in a growing number of cases, legal and otherwise, the very establishment of what happened has become almost impossible?
  • What would be the philosophical or strategic requirements for a critical response to our contemporary perceptions of the malleability of facts?

Send your proposal of max. 300 words to issuesoffact@gmail.com before May 15th, 2015.

We intend to publish the outcome of the conference and will therefore be working with texts of 3000-5000 words (notes excluded) being sent in beforehand, if your proposal is selected. We envision an event where not so much academic presentations, but discussion or dialogue is primary, so selection will be based on the quality of the proposal to bring in new perspectives or provoke discussion.

Kindly note that a conference fee will be charged.

 

CBS promises a new legal drama for fall (?) called Doubt; it will star Laverne Cox of Orange Is the New Black (just renewed for a fourth season) as Sadie, a defense lawyer at a boutique firm who “get involved” with a client and Dule Hill of Psych, as Albert, Sadie’s law partner. More here.

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