LawCulture

Talks with Iran-- not much of a policy shift

Condoleezza Rice has announced that the US is willing to enter into direct talks with Iran, and the press is trumpeting it as a major shift in policy. Well, um, it would be, if it were. But Rice says Iran first has to suspend its uranium enrichment and reprocessing programs, or else no talks!  So, if I understand this right, we're happy to negotiate directly with Iran in an effort to convince Iran to suspend its nucelar program... but only if Iran first promises that it will suspend its nuclear program.

Not much of a policy shift.

I'm unemployed! Or, how unusual is Virginia?

Since May 24, I've been officially unemployed! My time at Virginia is technically over, and my various new affiliations technically don't begin for another month or so (those affiliations are: Georgetown, preceded by a leave of absence during which I'll be based at the Open Society Institute, working on a book).

I'm feeling very sad about leaving Virginia (Ed.: Then why leave? RB: just geography). Although I'm looking forward to new adventures and new friends elsewhere, I do wonder if any major US law school comes close to duplicating Virginia's intensely warm and collegial culture. At Virginia, faculty members routinely have dinner parties and parties together, go shopping together, form book clubs together, host baby showers for one another, and even go on vacations together. That's not to mention the work stuff: people are in their offices, they pay a lot of attention to teaching, and we have a very well-attended general interest workshop (at which people have actually read the paper) that meets on Friday afternoons at 3:30, and starts with wine and cheese.

Granted, Charlottesville is a small town, so I suppose one might say we have nothing better to do here than hang out together-- whereas people at big city schools have plenty of other options. But I think it is more than that. Do Cornell, Michigan, and other small-city schools have similar cultures?

How unique is Virginia's faculty culture? And how important is it to try to create such a faculty culture? And... can such a culture be created where it does not exist? Any examples?

Why be consistent in footnotes?

I recently spent hours going over a copy-edited book manuscript, and one of the most time-consuming pieces involved trying to make footnote format consistent from chapter to chapter and note to note (this is a book with two co-authors).  And I wondered... WHY AM I DOING THIS? Law professors whine all the time about bluebooking, but let me take the whining a step further: it's not just that particular citation conventions (bluebooking, Chicago Style Manual, whatever) are arbitrary, but the insistence that note styles within a book or article be internally consistent also seems pointless. That is: there is one and only one thing a reader needs in a footnote, right, and that's the ability to go find the source themselves if so inclined. But does the reader give a hoot if footnote 6 lists volume number after the name of the journal, while footnote 45 lists volume number before the name of the journal? Who cares? Is there any non-ritualistic, non-aesthetic reason for any of this?

MacJefferson at Uva

The American college campus is often a place of exquisite beauty, especially at this time of the year—a crafted open space of a type not much found in the U.S. outside of the great old urban parks. Frederick Law Olmstead, after designing New York’s Central Park, went on to draw the plans for many a college, including Cornell University (in a setting chosen by Ezra Cornell to inspire lofty thoughts in students) and Berkeley and Mount Holyoke and a host of others. My favorite may be Smith College, with its botanical gardens stretching down to Paradise Pond.

But nothing of course quite matches Thomas Jefferson’s “academical village” at the University of Virginia, where architecture, landscape, and intellectual vision intersect in a truly moving statement. It reminds me of Denis Diderot’s “Plan for a University,” a utopian scheme he wrote for Catherine the Great—but Diderot’s vision never was translated into brick.

More about Performance and Confession

I'm continuing to work on a project about filmed confessions. Yesterday, I had a very helpful conversation with several of my colleagues about my theory that all custodial confessions are kinds of performances that enact an identity that may not have existed prior to the confession. Filmed confessions are a subgenre of these performances that have peculiar interpretive problems associated with their filmic nature.

One of my colleagues pointed me to the History of the Peloponnesian Wars by Thucydides where, among other things, Thucydides attempts to set himself apart from other chroniclers. Considered the first "historian," he claims to be telling a story about the Peloponnesian Wars that are empirically verifiable. With this claim, it is said, he is the first to draw the line between myth or  stories and history. What is interesting about Thucydides for the purpose of my concerns about confessions as a form of performance (narrative storytelling that enact identities, bring them to life) is that Thucydides' history -- despite its reliance on empirical data -- is recounted in dramatic form, much in the style of Homer's Odyssey or Sophocles' Oedipus.  The History of the Peloponnesian War, considered one of the first "modern" histories (not only because of its emphasis on verifiable fact but also because of its emphasis on human causality as opposed to divine intervention), is structured around orations and speeches, all in the Latin hortatory subjunctive case.  In this way, much of the "history" told is recounted in a first person dialogue among statesmen that is clearly performative in nature -- presenting an argument or declaration to a crowd of citizens. (The Latin hortatory case, I am learning, is a form of the subjunctive that delineates or signals a speech, a kind of presentation or claim to an audience. Like generic markers "Once upon a time..." or "It was a dark and stormy night...", the Latin subjunctive signals to the audience that a particular kind of speech is about to take place.)  A wonderfully ironic detail of this history is that Thycidides admits that he is recalling the speeches and many were told to him second hand. The "hearsay" quality of the speeches throws their veracity into doubt and their inclusion, nontheless, suggests Thycidides is very concerned with helping bring the history alive, to an audience -- to reconstitute it for the present.

So I began doing what my friends in comparative literature do, wondering aloud how much Thucydides' form and purpose have in common with filmed confessions.  What are the markers of the filmed confession that are like the Latin hortatory case? (There are many, many commonalities among filmed confessions that signal the fact of film, the larger audience the film engenders, the self-conscious nature of filmed speech.) And how are the purposes of the filmed confession and the uses to which the confessions are put similar to the motivations behind Thucydides' new theory of storytelling, that is "history"?  (Confessions are filmed, for the most part, to "record what actually happened" in the precinct house.)

Welcome!

As a relative newcomer to the blogosphere, I feel strange "welcoming" others to the "space" that we occupy. I am still very unsure of how that space is constituted and whether I'll be here very long. Nevertheless, I am glad to welcome the folks over at Harvard's Berkman Center (who will not be there long, I gather, soon on to prawf-ships around the nation) who have started Info/Law here.  They are friends, and smart ones at that.

A recent post today ("Cyberlaw" and "Information Law") tickles me, about the "dusty" prefix of "cyber" and the preferred adjective of "info" to describe the kind of law they think and write about.  I particularly like the term "metaverse" (perhaps a good way to describe the "space" we are indeed occupying and proliferating by blogging).

"Chick Lit" and Originality

The scandal about Harvard co-ed Kaavya Viswanathan may have blown over, but I am still thinking about it.  What does it mean for copyright protection specifically and cultural production generally when it is illegal to “internalize” one’s favorite books and (giving Viswanathan the benefit of the doubt) in good faith write one’s own book with some clear similarities?  Those who think that the six-or-so passages in the book “How Opal Mehta Got Kissed, Got Wild, and Got a Life” are just too similar not to be intentionally copied from Megan McCafferty’s book “Sloppy Firsts” will argue that Viswanathan does not deserve copyright protection, as the expression is not original to her.  But I do wonder about what this originality requirement means in a day when we understand our knowledge (and our creative sources) to be generated in substantial part from the world around us. Isn’t most creative expression by some large measure a rehashed version of some “internalized” expression of another? Is the difference that what was “internalized” here was someone else’s copyrighted material?

Some parts of copyright law (albeit for different reasons) actually recognize the unprotectability of those mother narratives that we’ve all internalized, consider the scenes-a-faire doctrine and the restriction on copyrighting folk lore.  When I compare the paragraphs in the two books side-by-side, I admit, I am a bit dubious as to the plausibility that Viswanathan was an innocent infringer.  But it is certainly possible that an avid reader of “chick lit” – and Viswanathan said she was more than avid, but devoted, even obsessed – would memorize passages, recite them aloud, much like teenagers do with music lyrics.  Years later, when she is honing her own writerly skills, it is possible – isn’t it? – that those beloved phrases are somewhere deep in her unconscious, that they are part of her in some real way?  Who is to say, at that point, that the expression doesn’t originate with her?  In other words, at what point do the narratives we live (for Viswanathan, the “chick lit” of her youth) become part of our identity such that we are entitled to express it, even publish it?

Blog Lingua Franca

I've been noticing lately (probably later than most) the burgeoning language that blogging has produced.  For example, in the past week I have heard the following: "bloggy," "blogworthy," "bloggable," "a blogicle," and "bloggership."  At the Berkman Center's conference last week, Larry Ribstein coined the phrase "PEAPs" (for "publicly engaged academic posts"). And that got me to thinking further about other variations of language usage that the Internet blogging has generated -- to say nothing of the communities these languages constitute.

Do we "stop by" a blog when we stay for a while, that is, after we've "surfed" the net? Should this imply that a blog (or a website) is akin to an office or a living room to be visited, accessible by ... waves? When we "link" to other blogs, is the link like a nod, like a footnote, or is it fully incorporating, like another limb?  Exactly how are we committing ourselves by "linking" to others? What kind of chains are these?  And, what, really, is the translation for ;>\   or :@)  or }:>o ?

You don't see many of these funny type-faces on legal scholarship blogs (and I use the qualifier "legal scholarship"  advisably). But, as Dan Solove told us last week at the Berkman (during what was called a "Berkmania" event -- yet another lovely addition to our linga franca), "We have a romantic vision of blogging. Who are bloggers? 50% are teenagers."

So FWIW if we are to be more inclusive in our jargon and more fluent in this growing language of blogging and web-talk (perhaps that is decidedly not our goal?), we might want to consider a few more carrot-noses and winks. IMHO, that is.

A Sustained Attack on the Culture of Death

Last December, the Stanford Law Review published a pro-death penalty article by Cass Sunstein and Adrien Vermeule, with a response by Carol Steiker. Sunstein and Vermeule argued that even if capital punishment violates someone's right to life, it is still morally obligatory if through deterrence it would save more people than it kills. My colleague Eric Blumenson has just posted an article on SSRN outlining heretofore unanalyzed logical and moral problems with the Sunstein-Vermeule approach. Importantly, Blumenson's article is relevant not only to the Sunstein-Vermeule specific death penalty argument, but to the similar, lesser-evil logic behind post-9/11 proposals to "violate the human rights of some in the name of human rights for all." The article pointedly shows whats wrong with this thinking, and how radically life would change in a country that took the Sunstein-Vermeule rationale to heart.