LawCulture

AALS Section on Law and Humanities

The AALS Section on Law and Humanities is in the midst of preparing its Fall AALS Law and Humanities Section Newsletter.  Kristin Brandser, Chair of the Section, is seeking information about any of the following to report in the newsletter: upcoming or recently held conference or symposia; call for papers/submissions; recent or forthcoming law and humanities publications; member activities; essay contests for students; job openings; other items of interest to the section membership. 

Please send information about any of the above to kristin.brandser@uc.edu by Wednesday, October 25, 2006.  The Chair thanks you.

Policy in the form of a Comic Strip. Why not?

         I genuinely enjoy reading through the piles of reprints I am sent colleagues over the year (truly, I do!). I tend to fetishize the reprint, the mini-books with their mottled binding and neat lettering. I recently received a very unusual reprint, one that I already covet but am so impressed with I am already sharing it with others. For those not on the reprint list, Keith Aoki, James Boyle and Jennifer Jenkins have authored and designed “Bound by Law? Trapped in a Struggle She Didn’t Understand,” a comic book treatise on copyright law and fair use published through the Duke Center for the Study on the Public Domain. It is fantastic – not only because it clearly lays out the historical evolution of copyright and the problems of “permissions culture,” but because it explains the basics of copyright doctrine in terms that any interested reader will understand. This is, the authors tell us, part of their project. They write in their Afterword “For some strange reason, none of our intended audiences seem eager to read scholarly law review articles. What’s more, there is something perverse about explaining an essentially visual and frequently surreal reality in gray, lawyerly prose. Finally, what could better illustrate the process we describe than a work which ahs to feature literally hundreds of copyrighted works in order to tell its story, a living exercise in fair use? Hence this book.” 

         This got me to thinking more about various forms a law review article could take other than the predictable one symbolized by the “road map paragraph.”  There has been plenty of blog traffic on the variety of legal scholarship (what’s in, what’s out, what counts, what doesn’t, see here and here and here, to link to only a few). But what about thinking more deeply about why we do legal scholarship. Who are we trying to reach with our arguments? Are we trying to reach an audience at all? Assuming we are, why not tailor our arguments for those readers? Other academics? Judges? Lawyers? Elected officials? Certainly, sometimes that means aiming to publish in the top journals in a fairly conventional way. But sometimes that might mean making a comic book; it might mean making a short documentary; it might mean creating podcasts; it might  mean writing across the disciplines; it might mean writing novels. There are some law professors who are more actively engaged in a popular journalistic enterprise and some who are novelists. Aoki et al are the first law professor comic book creators that I know of. Any filmmakers out there? Visual media seems the natural evolution of things, but that may be my own bias.

Why Can't a Legal Academic Be More Like a ...?

So classes are finally over. I've finished grading and my summer writing projects are staring me in the face. I've been working on an article about filmed confessions and autobiographical film, thinking through the similarities and differences, and how the contrast might illuminate criminal justice norms. I happened to be at a wedding this past weekend where I was seated next to the film critic David Denby, who writes for the New Yorker. I was humbled to be in the presence of what I considered a true film guru. I have always admired his writing (about film as well as other things, see his Great Books, for example). Talking with him about film (we spoke mostly about the new film Road to Guantanamo) made me ache for a writing voice more like his. Why don't academics write more popular pieces, shorter articles, that get to the point faster, are just as insightful and detailed, demonstrate acuity of mind and are read and understood by more than just a handful of other clubmembers?  I don't do it now because I don't have tenure, and I want tenure. Tenure requirements don't include (in fact, I think they may all but explicitly discourage) popular press pieces. But law professors more and more are public intellectuals (or try to be) – writing op-ed pieces on a regular basis, writing more popular books (or trying to). What would be the harm if professors -- in the legal field or elsewhere -- were more engaged with the popular media? Would the "intellectual endeavor" of our fields suffer? Would the "discipline" in which we engage loose its rigor?

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?

Using Film to Teach Law

At the Law and Film Conference at the University of Maryland School of Law last weekend, several law professors spoke about the ways in which they use film to teach their law courses.  For example, Margaret Russell at Santa Clara University of Law spoke about showing clips from the documentary entitled The Untold Story of Emmett Till and from the documentary entitled Soul of Justice: Thelton Henderson's American Journey.  Both were used to bring to life certain issues in her law courses.  The documentary about the Emmett Till case could be used, she suggested, to talk about jury composition and evidentiary burdens. In the wake of so many debates over Supreme Court nominees, Professor Russell discussed how she showed parts of the documentary about the Honorable Thelton Henderson to discuss what makes a good (or bad) judge. In particular, she played for the conference attendees a particularly illuminating clip from the film in which Judge Henderson and others speak about the reason Judge Henderson did not recuse himself from civil rights cases despite his profound involvement in the civil rights movement.  In a world where students are more easily engaged with the visual image and the screen (be it a computer screen or a movie or television screen), Professor Russell admitted that sometimes the best way to communicate with students is to mobilize the visual language with which they are most at ease.

Professor Marilyn Berger from Seattle University School of Law spoke about her film Lessons from Woburn about the case (Anderson et al v. W.R. Grace et al) on which the book and film The Civil Action were based.  This film is an interactive documentary that students and the professor can explore together to review documents and testimony from the legal case as well as testimonials and other information that were not part of the legal saga.  Meant to be used in a civil procedure course, the film discusses the bifurcation of the trial, ethical issues faced by the attorneys, procedural and subject matter issues raised by the trial, as well as juriprudential questions that students might consider in evaluating the case and its result as a whole. 

These presentations at the conference got me thinking about the case books that have come out in the past several years that include DVDS or video supplements to enhance classroom discussion.  I believe George Fisher's book on evidence includes such a supplement. And I think Lempert, Gross and Liebman's evidence casebook does as well.  I wonder how many other casebooks could be enhanced with visual supplements. I can think of a dozen film clips that I would like to show in my constitutional law class (I already show clips from Eyes on the Prize, Tying the Knot, Unfinished Business (on the Japanese Internment Camps during WWII), and Seizing Power: The Steel Seizure Case Revisited).  I would love to hear what other films people can think of that would be particularly illustrative or thought provoking for core law courses?

Executive Power: what's our role as legal scholars?

I have a short essay on executive power in the Yale Law Journal's new "Pocket Part." Here is part of my argument:

Just as a checkbook can’t balance itself, our Constitutional system of checks and balances only works when most Americans share a disciplined and courageous commitment to making it work. And it’s this shared commitment to checks and balances that we seem to have somehow lost during these past five years – or perhaps we lost it much earlier, and just did not notice until now. The Bush Administration itself clearly has zero commitment to the limits the Constitution places on executive power – but who can blame them trying to circumvent a system that is apparently cherished by neither Congress nor the public?

[.... ]One major moral of this particular story—the story of the Bush Administration's successful power grab – is that law does not exist, and cannot be understood, within its own hermetically sealed universe. Law does nothing and means nothing outside of its cultural context.

As a result, those of us unhappy with the way our constitutional system is working today will not be able to fix the problem through strictly legal means—we already have, on paper, a perfectly workable constitutional system. If we want to roll back unconstrained executive power, we need to look beyond the law to the broader political culture, and work on changing that.

This has powerful implications for how law is studied, discussed and taught within the legal academy. Legal scholarship has become increasingly technical, increasingly theoretical, and increasingly specialized. As Harvard Law Professor Bill Stuntz lamented recently in The New Republic, “Too many scholars write for an audience of dozens (if that – a good friend of mine says he writes for six people), and far too few write for thousands, fewer still for millions.” This, unfortunately, is as true of constitutional law scholarship as it is of legal scholarship more generally.

The result? When an issue comes along that arouses the deepest passions in those of us who study and write about the law, and we finally bestir ourselves to communicate some of our outrage to those outside the legal academy, we find, alas, that most of them aren’t listening to us at all, and fewer still are moved by our concerns.

If the legal academy were to take seriously the notion that law is but a small part of culture writ large, we would do two things. First, we would alter our scholarly agendas and our curricula to reflect a commitment to studying law as a form of culture, striving not simply to develop neater and more original legal theories, but to understand the complex interrelationship between law and other political and social forces. And second, we would recall that in classical Greece and Rome, law was conceived as a close relation of rhetoric. Legal argument was seen not merely as a technical skill, but as a form of rhetorical art, one designed both to engage the mind and stir the passions and, ideally at least, to inspire civic virtue.

In a world of academic specialization and turgid, jargon-laden law review prose, this may seem an odd way to think about law. But if we lawyers and legal scholars value the rule of law, we should strive to reclaim the ancient notion of legal argument as a public-regarding form of rhetoric. Because if we can’t convince our fellow citizens to know or care about our fragile constitutional system, which now lies in tatters, then little of what we do has any point at all.

Emails from Students

Rosa linked below to today's NYT article about students emailing professors.  The piece suggested that email has increased communication between students and professors, both for better and worse.  Better because it can provide instant feedback, a more comfortable venue for  shy students, and greater convenience than the phone or in-person meetings.  Worse because students may expect instant response and access in a way that isn't feasible or realistic, either creating or reflecting a sense of entitlement that (from the faculty's perspective) isn't justified, and perpetuating the idea of students as consumers.

Do most faculty members really suffer from a constant deluge of borderline inappropriate emails from students?  In my case, the answer is: no, not a deluge, but certainly a trickle. A few of my favorite examples:  the time when a student emailed me by accident in the middle of class no less, (ah, the joys of wireless access in the classroom) while trying to write some other 'Jennifer" (oh, the horror of 'auto-fill' technology). She whined about her ex-boyfriend and asked me to come with her to a party that night where she feared she'd run into him.  Ooops!  Then there was the time when a student wrote to me asking if I could tape record the next three classes for her because she was going to the carribean for a week because she got a really good deal on a resort.

Frankly, though, these are exceptions. Most of the academic year, the biggest problem I have with email is sheer quantity:  when my inbox is overrun, the information overload means that sometimes messages move off of my mental radar screen (and too far down my inbox) before I get to them.

When exam-time comes around, however, I do sometimes have real problems with student email.  Students will sometimes write very long and detailed questions mere days -- or sometimes hours -- before the exams.   Some of these are really good questions.  Some of them are really bad questions. (The ones that really get to me are when a student writes me instead of looking up something that is literally written down in the casebook or in the Federal Rules of Evidence.  Whatever my job is, it's surely NOT to spend my time directing you to the appropriate page of your book as finals approach in order to remind you that Rule 801(d)(2) clearly states in the language of the rule that it applies only when offered against a party. . . .)   So yes, I do wish that some of my students would better internatlize the basic adage: if you can figure out the answer yourself by doing five minutes of research, please don't bug the professor about it.

But this isn't the only issue, or perhaps even the main one.  At the end of term time, I've sometimes felt that I could  spend my entire workday answering student questions via email -- and I still might not get through all of them!  At some point a couple of years ago, when I'd spent at least half an hour answering just one student's extremely detailed email, and during that same half an hour, three more equally lengthy lists of questions had appeared in my inbox, I realized that this was going to have to stop.  So I've instituted a new rule:  I don't take substantive questions via email in the week before the exam.  I do set up lots of extra office hours during this time.  If students want to bother coming in, I'll certainly talk to them.  And during the course of the semester, I"m delighted to have students email me about substance. But email during exam period?  Uh-uh. 

I'd be interested in thoughts and reactions from both faculty and students?  Is this restriction  of mine draconian or legitimate self-protection? Do others place similar limits?

Wall St Journal article: "Law Reviews Adapt to New Era"

Readers of this blog will recall the minor blogosphere kerfuffle that followed my posting called "Goodbye to Law Reviews?"   In the Wall Street Journal, Brandt Goldstein reports on the debate:

Notes From the Ivory Tower

Law Reviews Adapt to New Era

By BRANDT GOLDSTEIN
Special to THE

WALL STREET

JOURNAL
February 21, 2006.  Last month, Rosa Brooks, a professor at the University of Virginia Law School, tossed out a provocative thought on LawCulture, a blog about law and legal academia. Ms. Brooks questioned whether she would ever write again for the law reviews.... [the rest is here].

To: Professor@University.edu Subject: Why It's All About Me

Here's a piece from today's NYT. I'd be interested to see how others react to it.

The New York Times

February 21, 2006

To: Professor@University.edu Subject: Why It's All About Me

By JONATHAN D. GLATER

One student skipped class and then sent the professor an e-mail message asking for copies of her teaching notes. Another did not like her grade, and wrote a petulant message to the professor. Another explained that she was late for a Monday class because she was recovering from drinking too much at a wild weekend party.  [Read the rest here].

What Counts as Legal Scholarship?

Prompted by Rosa Brooks’ post and the comments, among them from our friends at Prawfsblog, I thought I’d take the interesting conversation on a bit of a tangent. As one who has straddled two disciplines for most of her academic career – literature and law – I am acutely aware of the diverse methodological approaches to knowledge production in the academy. The Ph.D., for example, is the training ground by which scholars of literature (or history or sociology or…) learn what counts as foundational texts and a common language in their field. Through this study, we also are supposed to learn what counts as good scholarship. We learn common evaluative methods, teachable and reproducible ways to assess and analyze assertions about the subject matter in our field. In literature departments, for example, we study specific literary genres or national literatures. We learn to evaluate and critique the canon of texts that forms the basis of the common language in the field. And we learn to produce our own assessments of the literature at issue by understanding that not all interpretations of a piece of literature are equally good. Some are more persuasive than others because they mobilize evidence in the text and about the text in coherent and sustainable ways. Some are outright wrong because they draw on unrelated theoretical musings to illuminate some theme in the text that fairly can be said to be absent.

Other disciplines require of their scholars an understanding of quantitative methods. Knowledge, in these fields (or part of these fields – I’m thinking of some aspects of political science, sociology and economics, for example), is produced by the evaluation and interpretation of empirical data, which must be collected according to certain guidelines. Adhering to agreed upon methods of data collection and analysis is crucial to sustaining the authority of the knowledge that is produced in these fields. Sometimes scholars debate the methods by which the data was collected as a means to critique the knowledge that was produced by it; other times, scholars will debate what the data means, agreeing that its collection is otherwise uncontroversial. In either case, however, there is a foundation – a canon and a methodology – on which the discipline is built and by which scholars are trained.

So what of legal studies and scholarship? Can we adequately compare the Ph.D. training of a scholar in literature or the social sciences with a J.D. in law? Is the better comparison with an S.J.D.? If yes, what can we say the legal methodology is? What is the canon? And if we can agree on a methodology and a canon – a tall feat, I would say – is that what law schools teach? And if not, where do law professors (dare I say, legal scholars) get their training, their expertise? My sense is that there is a kind of identity crisis in legal scholarship and law schools about this precise issue, a problem of “where do we fit” and “where do we get our authority” vis a vis the rest of the academy. I see this as the law professor job market is more and more weighted by “hot candidates” with Ph.Ds who have already published several articles. No longer is the candidate stellar because she has scholarship potential (whatever “scholarship” means) but she is stellar because she has already demonstrated how “scholarly” she is. By comparison to other disciplines, what do you think “scholarly” mean in the legal context?