[Milton-L] The Critical Work of Law and Literature - now available

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Now available…


The Critical Work of Law and Literature

University of Toronto Quarterly - Volume 82, Number 4, Fall 2013

 <http://utpjournals.metapress.com/content/m232873g12nh/> http://utpjournals.metapress.com/content/m232873g12nh/


Guest Editors: Simon Stern, Cheryl Suzack, Greig Henderson


This special issue showcases the methodological and historical range of current scholarship at the intersection of law and literature. Spanning the renaissance to the present, moving from conventionally literary forms (drama, fiction, and poetry) to specifically forensic media such as courtroom videos, and taking up subjects such as collaborative writing, land disputes, and the modern law of sovereignty and immigration, these essays show how both classic and lesser-known texts speak to, and engage with, legal doctrines, dogmas, and dilemmas. The texts under consideration include Hamlet, Sir Robert Chambers’s Vinerian lectures, Billy Budd, De Profundis, Tales of the Dakota, and Babel.


The Critical Work of Law and Literature

Simon Stern, Cheryl Suzack, Greig Henderson        

DOI: 10.3138/utq.82.4.837

http://utpjournals.metapress.com/content/u60472v6275x6677/?p=e6d90590c6ff4f2c9088aef2212f52a6 <http://utpjournals.metapress.com/content/u60472v6275x6677/?p=e6d90590c6ff4f2c9088aef2212f52a6&pi=0> &pi=0


Victim Impact Statements, New Media Technologies, and the Classical Rhetoric of Sincerity

Todd Butler


Long a concern for their interjection of emotional appeals into the sentencing process, victim impact statements (VISs) have recently become even more worrisome to some critics, who see in the growing availability of sophisticated video-editing technology the capacity for even unskilled users to construct testimony in ways that corrupt rather than enable reasoned judgment. Drawing upon a combined analysis of the U.S. Supreme Court case Kelly v. California and classical rhetorical theory, I argue by contrast that, especially in death penalty cases, a jury’s demand for authenticity in performance mitigates the potential impact of such technology precisely because the cultural construction of emotive authenticity requires an outpouring of feeling whose very lack of control testifies to its genuineness. As an artistic and compositional techne, the capacity of new media technologies to evoke, seemingly effortlessly, complex representations of emotional states thus contains within itself a fundamental limitation on its power. Recognizing the importance of authenticity and sincerity also reveals a key element of why the introduction of a VIS remains an attractive option for the prosecution, for in allowing the introduction of a VIS the state secures for itself a rhetoric of sincerity that as an institution it could not otherwise hope to wield. DOI: 10.3138/utq.82.4.841



“A More Exact Purity”: Legal Authority and Conspicuous Amalgamation in Eighteenth-Century English Law Guides and the Oxford Law Lectures of Sir Robert Chambers and Samuel Johnson

Nicole M. Wright


This paper finds that early modern and later texts explaining legal vocabulary and history to non-professionals bring into focus two vying conceptions of enforcing narrative and terminological purity (a notion inextricably bound up with the authority to produce legal narratives): decontamination, according to one perspective, and enrichment to strengthen an essence, according to another view. The lexicons generally promote a notion of ‘purity’ that does not connote the removal of contaminants or foreign matter but rather depends on adulteration and heterogeneous additions. This paper argues that legal guide writers believed that cultivating impressions, and even illusions, of corporate authorship was key to attracting readers, who (the writers expected) perceived conspicuous reliance on numerous, diverse (foreign as well as domestic) sources as a mark of legitimacy. DOI: 10.3138/utq.82.4.864



The Hard Case: Billy Budd and the Judgment Intuitive

Gregg Crane


This article explores the importance of a certain form of intuitive reasoning to hard cases, ambiguous situations, and problems that seem to resist the straightforward application of a clear rule. Certain aspects of the processes of judgment come into sharpest relief in those cases where justice seems to require that we bend, modify, or repress the applicable rules. Judges have often been judged not only by virtue of their adherence to the procedures and norms of law but also in regard to their ability to qualify or moderate or even subvert such rules. Melville's posthumous novel, Billy Budd, I argue, offers a revealing and even iconic instance of the necessity of intuitive reasoning to these more arduous and uncertain forms of judgment. DOI: 10.3138/utq.82.4.889



Law’s Empire Writes Back: Legal Positivism and Literary Rejoinder in Wilde’s De Profundis

Dale Barleben


“Law’s Empire Writes Back” queries the relationships among subjectivity, agency, and liberal jurisprudence against the backdrop of Oscar Wilde’s De Profundis. Examining the trial proceedings that led to Wilde’s eventual incarceration and, arguably, demise, Dale Barleben argues that the trial apparatus, which searches for “truth,” instead manufactures guilt in many instances. Juxtaposing contemporary literary and legal scholarship with accounts of Wilde’s trials, Barleben extrapolates theories of trauma and confession, focusing on the trial as a performance in which the actors often become the characters they play. The ontological shift in Wilde’s writing before and after trial evidences the change in Wilde’s thinking about his subjectivity and identity—changes, argues Barleben, which are direct results of the traumas of trial procedure. DOI: 10.3138/utq.82.4.907



How Allotment-Era Literature Can Inform Current Controversies About Tribal Jurisdiction and Reservation Diminishment

Ann E. Tweedy


In a previous piece, ‘Unjustifiable Expectations: Laying to Rest the Ghosts of Allotment-Era Settlers,’ the author argued that a review of historical newspaper articles showed that the expectations of non-Indians who purchased lands on Sioux reservations in South Dakota during the allotment era above tribes disappearing were not justifiable because they were rooted in an expectation of continued injustice towards tribes. The article thus concluded that the Supreme Court should not presume that allotment-era settlers had justifiable expectations when it decided reservation diminishment and tribal jurisdiction cases. This article addresses whether allotment era literature pertaining to Sioux peoples can similarly help inform such cases. Although the results are more mixed, particularly with non-Indian-authored fiction, the works of Native writers such as Luther Standing Bear, Charles Eastman, and particularly Zitkala-Ša are helpful in explicating the injustices in the federal government’s land dealings with tribes, as was a nonfiction work by non-Native historian and poet Doane Robinson. DOI: 10.3138/utq.82.4.924



In the Shadowlands of Sovereignty: The Politics of Enclosure in Alejandro González Iñárritu’s Babel

Elizabeth S. Anker


In recent years, sovereignty has become a newly central yet also hotly contested term within political theory, as nation-state territorial jurisdiction is increasingly subordinated to other ambulatory and often piratical networks and flows of people, services, goods, and capital. This essay analyzes Alejandro González Iñárritu’s 2006 film Babel for insight into the contemporary formations of sovereignty and its exceptional spaces, enquiring about that term’s currency as a regulatory construct. In so doing, I critique the usual tendency to explain sovereignty – individual and juridical – through the logic of the border and enclosure. Drawing on Roberto Esposito’s work on the immunitary paradigm, I look to Babel to develop an alternate mapping of community that, while refusing to culminate with Esposito’s affirmative biopolitics, approaches individual and collective embodiment alike as sites of flux, porosity, messiness, and vulnerability.DOI: 10.3138/utq.82.4.950



Genre, Critique and Human Rights

Mark Antaki


This article begins to examine the turn to genre in works at the intersection of law and literature, broadly understood. It categorizes two examples of this turn, those of Lynn Hunt and Robert Meister respectively, as less and more critical turns to genre. The less critical turns to genre succumb more to the romantic fantasy of the completion of law by literature, whereas the more critical turns succumb less, encouraging or allowing us to experience ‘dissonance in the form one has become.’ The more critical turns to genre allow one to better articulate the critical work of law and literature, including the way we have been disciplined to separate ethics and aesthetics, sense and sensibility. I conclude by suggesting that the focus on genre may lead to a fruitful re-casting of law and literature as literacies and legalities. DOI: 10.3138/utq.82.4.974





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