2011 Syllabus Law and Literature Brandeis School of Law

December 19, 2010

Poets are the unacknowledged legislators of the world. 
---Percy Bysshe Shelley

LAW & LITERATURE
Spring 2011 / Louis D. Brandeis School of Law / University of Louisville
Donald Vish, lecturer

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Course Description
The course presents insights into the nature of law and justice through the prism of literature. Each class explores timely and timeless topics arising out of the search for justice. How can Orestes extricate himself from the duty to avenge the murder of his father by killing his own mother? How shall Captain Vere punish Billy Budd’s reflexive act resulting in the death of a superior officer aboard ship in wartime? How is Antigone to obey the religious law requiring her to bury her brother and the state’s decree that she may not bury a traitor in the city? Is justice a pendulum that swings between the letter of the law and the spirit of equity? Through the eyes of art and the imagination of storytellers we shall considerer the question over and over again: What is justice?

Objective: saper vedere
If at the end of a class a student is able to say: “Now I know something I didn’t know before’ then the CLASS has been successful. If at the conclusion of class a student is able to say “I have something to think about’ then the TEACHER and the STUDENT have been successful. Leonardo said the secret to knowledge is saper vedere, to know how to see.

If at the completion of the entire Law & Literature course a student can say:
“I know HOW to see” then the course has set the course for dealing with the question: What is justice?

Law is not algebra. Justice cannot be codified according the rules of calculus. The path of justice is often littered with obstacles, conundrums, paradox, conflicting values, distractions, mirages and poor signage.

The use of art and poetry to engage justice issues is not intended to provide the student with a cohesive and comprehensive philosophy of law and jurisprudence. The successful student is invited to experience, question, theorize and think.

The course material illustrates rather than instructs. The course is a journey not a destination, a beginning not a conclusion. The course is about learning how to travel not about making a map after the journey is over.

Jan:  6, 13, 20, 27,
Feb: 3, 10, 17, 24,
Mar: 3, 10, 24, 31,
April: 7, 14
Break: Mar: 14 20

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Lecture #1: INTRODUCTION
[January 6, 2011]
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Course Syllabus
Basis of grading: Three papers for each of the three or four principal literary assignments will be weighted 20% for the first, 30% for the second and 50 % for the third. Each paper may be 750 words and relate the story line or a character to the important legal principles you discern in the text. We are interested in the story line ONLY as it impacts law and justice issues. The paper is due at the class scheduled two weeks AFTER the literary work is discussed in class. Good reportage is a “C” and superb insight and analysis is an “A”. See the attached Appendix for more elaboration on grading. You may contact me directly at dvish@middreut.com to discuss the class or your paper. A class ombuds committee of three will be appointed to present any complaints, suggestions or requests that an individual student may not want to present personally to the lecturer.
Class plan: There will be fourteen classes beginning January 6 and ending April 14. Three or four key literary works will be considered in lectures: #4 (January 27), #7 (February 17), #10 (March 10, this is the week before Spring break. We may defer discussion of Billy Budd scheduled for March 10 until AFTER the break), and #12 (March 31, subject to completion of Billy Budd). Other literary works and fragments treating law and justice themes and selected to enhance your insights into the principal literary works will be discussed in the intervening lectures. It is NOT necessary for you to read or read about any item marked with an asterisk (*). The material marked with an asterisk (*) will be referenced and described by the lecturer during the class.
Facebook: A class Group Page has been created under the title: Law & Literature @ Louis D. Brandeis School of Law. Weekly assignments will be posted along with discussion opportunities.
Textbooks: Richard A. POSNER, Law and Literature, Third Edition [Harvard University Press, 20090]. (Referred to as POSNER in this Syllabus).
Major Resource on line: LAW & HUMANITIES: a Bibliography of Law and Literature, Professor Daniel L. Solove, The George Washington University Law School (this is a tour de force, consult it before each class to see if there is anything that interests you or helps you with the assignment). http://docs.law.gwu.edu/facweb/dsolove/Law-Humanities/writers.htm
Reading assignments: many can be accessed online. The following works may be purchased from Amazon.com and delivered for less than $100.00 or may be read through excerpts available in the two textbooks. Only Billy Budd, Sailor must be read in its entirety. Here are the major literary works:
1. William Shakespeare, The Merchant of Venice (Oxford World's Classics: the Oxford Shakespeare) Jay L. Halio (Paperback - 2008). POSNER pages 92, 139-163. Also read the plot outline or story synopsis of Measure for Measure by POSNER pages 154-163 and pay special attention to the chart “Legal Antinomies’ on page 162. Lecture # 4, January 27, 2011.
2. Aeschylus, The Orestia (Paperback) Agamemnon, The Libation Bearers and The Eumenides (525-456 B.C.E). (Penguin Classics) by Aeschylus, W. B. Stanford, and Robert Fagles (Paperback - Feb 7, 1984) and see POSNER pages 86-92 also http://en.wikipedia.org/wiki/The_Oresteia Lecture # 7, February 17, 2011.

3. Herman Melville, Billy Budd, Sailor (An Inside Narrative) (1924) (Harrison Hayford & Merton Seals, eds. U. Chicago Press 1962). Use of the Hayford & Seals edition is mandatory. Read the work in its entirety along with the essays, commentary and observations about the story. Lecture #10, March 10 2011 (this is the week before Spring break. We may decide, with advice and counsel of the entire class, to defer this important work until AFTER the Spring break). In addition, see POSNER pp. 211-222.
4. Albert Camus, The Stranger (1942) [Student Guide, Landmarks of World Literature] by Patrick McCarthy, Paperback 2004. (Especially Part Two, the trial) or see POSNER pp. 60-70. Lecture # 12, March 31 2011: subject to completion of Billy Budd lectures.

5. Franz Kafka, The Trial [introduction by George Steiner] A. A. Knopf, Inc. Schocken Books, Inc. ISBN 0-8052-1040-7 or see POSNER pp. 172-187 Lecture # 15, [Provisional lecture, if needed. Classes end April 14, 2011].

Literary fragments, excerpts and the expository prose and poetry are identified in the assignments section of each lecture plan. If you have trouble finding the text online, please let me know by email. If you elect to write one paper you can begin right away and proceed during the semester at your own pace. If you elect to write five papers, one on each of the principal literary works, the paper is due at the beginning of the lecture at which the work will be considered.
The Study of Law and Literature
The law and literature movement focuses on the interdisciplinary connection between law and literature. This field has roots in two major developments in the intellectual history of law -- first, the growing doubt about whether law in isolation is a source of value and meaning, or whether it must be plugged into a large cultural or philosophical or social-science context to give it value and meaning; and, second, the growing focus on the mutability of meaning in all texts, whether literary or legal. Those who work in the field stress one or the other of two complementary perspectives: law in literature (understanding enduring issues as they are explored in great literary texts) and law as literature (understanding legal texts by reference to methods of literary interpretation, analysis, and critique). From Wikipedia http://en.wikipedia.org/wiki/Law_and_literature
Journals: Law and Literature

The Cardozo Studies in Law and Literature, a leading journal on the subject for many years, has changed its name and is now part of the University of California Press (access requires subscription): http://www.ucpressjournals.com/journal.asp?j=lal

Lawyers and Literature

Website created by James Elkins, Professor of Law, West Virginia University, for his course on lawyers and literature. Various readings, links and suggestions for students and bibliographies included
Assignments for Class #1:
1. Book of Genesis: 4:1-24 The Story of Cain and Abel: 9:6, the law as explained to Noah.
Is the judge fair? Is the punishment just? Where does it come from and who imposes it? What is the nature of the justice system in the story? Identify all of Cain’s crimes. Which is the most serious? What does it mean to be avenged sevenfold? Is Lamech a murderer? Is he punished or protected?
2. Psalm 19, 7-11. What are the elements of a good legal system according to Psalm 19? Where does the law originate? What is its source, its authority? Does the source of the law in Psalm 19 have anything in common with the United States Constitution or the Declaration of Independence? Does crime pay?
3. Dante, The Divine Comedy Canto V, XX, XXVIII line 142, XXXIV [Google the word ‘contrapasso’ with Dante’s name]. Is Cain’s punishment consistent with Dante’s theory of contrapasso? What exactly is Cain’s punishment(s)? Did God provoke Cain?


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Lecture #2 and #3: WORDS
[January 13 & 20, 2011]
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Assignments for Classes #2 and #3:
1. Mr. Justice Holmes, dissent Lochner v. New York, 198 U. S. 45, 74 (1905) (Holmes, J., dissenting) POSNER pp.341-349. See also POSNER discussion of rhetoric Chapter 9, pp. 329,331-332, 337 (Homer) -339, 450-455.
2. Richard POSNER, Law and Literature A Relation Reargued, Virginia Law Review 72, 1986, IV A. Rhetoric and Knowledge and especially his critical discussion of Justice Holmes’ dissent in Lochner “…a rhetorical masterpiece.” (POSNER p.347). How can Judge POSNER reconcile his criticism and his praise? Does POSNER approve of the use of rhetoric in the law?
3. Through the Looking Glass by Lewis Carroll
 Chapter VI Humpty Dumpty (his digression on words) http://www.sabian.org/Alice/lgchap06.htm
4. Harper Lee, To Kill a Mockingbird, Chapter 19 (Mr. Gilmer’s cross examination of Tom Robinson. Begin with Tom Robinson’s answer to the last question posed by Atticus Finch. p. 386 Law & Literature: Text & Theory, edited by Lenora LEDWON (New York, 1996) (available online from Google Books).
5. Benjamin Franklin, Poor Richard’s Opinion. LEDWON, pp. 469.
6. Alice’s Adventures in Wonderland, Chapter XI, Who Stole the Tarts? and Chapter XII Alice’s Evidence: http://www.aliceinwonderland.com/ch11.html / http://www.aliceinwonderland.com/ch12.html ALICE'S ADVENTURES IN WONDERLAND/by Lewis Carroll/THE MILLENNIUM FULCRUM EDITION 2.7a/(C) 1991 Duncan Research
It is not necessary to read the following work (s) that will be cited or explained during the lecture:
*7. Ovid, Metamorphoses Book 12 (612-631), and Book 13 The Judgment of Arms (1-393). Upon the death of the great warrior Achilles on the battlefield of Troy, two people claims his sword and shield. An assembly is convened to hear the evidence and decide who is worthy: the wily Odysseus or the warrior Ajax. Each makes their case their case to the jury. http://www.mythology.us/ovid_metamorphoses_book_13.htm. The lesson from this debate is in the last 16 lines of the report.
*8. Aristophanes, The Clouds (419 BCE, Greece). A man wants his son to study rhetoric in order to learn to talk his way out of debt. http://records.viu.ca/~johnstoi/aristophanes/clouds.htm translation by Ian Johnston of Malaspina University-College (Vancouver Island University since 2008), Nanaimo, BC. The translation has certain copyright restrictions.  For information please use the following link: Copyright.  For comments or question please contact Ian Johnston.

*9. The Internet Encyclopedia of Philosophy, Protagoras of Abdera.http://www.utm.edu/research/iep/p/protagor.htm Author Information: Carol Poster 
Email: cposter@english.fsu.edu 
English Department State University FL 32306.

*10. Plutarch, Solon Athenians used to cover up the ugliness of things with auspicious and kindly terms, giving them polite and endearing names.

*11. Apollodorus of Athens (born c. 180 B.C.E.) (The Library 3.180), Pausanias and Suidas both recount the myth of the rape of Ares’ daughter Alkippe by Poseidon's son Aalirrhothios. Ares slew the rapist and was tried by the gods for murder upon the Arepagos. The trial was held on the “Hill of Ares” overlooking Athens. The trial raises the following questions? Why was the trial held at night? What role did rhetoric play in the trial? What is the “Areopagus”? See also Pausanias, Guide to Greece 1.28.5. Who was Apollodorus and what role did he play in the courts of Athens?
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Lecture # 4: JUSTICE, LAW & MERCY
[January 27, 2011]
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Assignments for Class #4 (classes #4, #5 and #6 are interrelated treating themes of justice, law, mercy and revenge):
1. William Shakespeare, Merchant of Venice (1597) (Oxford World's Classics: the Oxford Shakespeare) by William Shakespeare and Jay L. Halio (Paperback - May 15, 2008) or see POSNER pp. 139-163 Lecture # 4, January 27, 2011. See especially Portia's argument, The Merchant of Venice, IV, i. Read also Act V and answer the question: Is Portia consistent? What does the play have to say about law and equity? Also read the plot outline, story synopsis and commentary on Shakespeare’s Measure for Measure by POSNER pp. 154-163 see also Lecture #5. The two plays should be discussed and evaluated together.

2. Steiker, Carol S. Lecture on the role of mercy and the administration of criminal justice (one hour, begins 14 minutes into tape, the lecture is less than an hour): Watch a webcast of Professor Steiker's lecture. (RealPlayer Required) @ http://www.law.harvard.edu/news/spotlight/criminal-law/03_steiker.html (using fiction to illustrate truth). The following text is read in the preceding film clip:
3. Austin Sarat, Nasser Hussain, Forgiveness, mercy, and clemency, Mercy and the Administration of Criminal Justice by Carol S. Steiker [22 pages, Google Books, books.google.com/books?isbn=0804753334... http://books.google.com/books?id=KOAoQiRFo70C&pg=PA16&lpg=PA16&dq=Steiker+mercy+justice&source=bl&ots=.. ]
4. O’Henry. Summarize the two O’Henry stories used by Professor Steiker. Can the two stories be reconciled?
5. Genesis 4: 13-19. After Cain asks for mercy, what happens? What is the section heading in the King James Version for this verse? The template described in the story illustrates a key factor about mercy and justice: the greater good is served when mercy is shown.
6. Luke 15: 11-32: The Parable of the Prodigal Son. What arguments does the faithful, prudent, older brother make about mercy granted to the prodigal son? Are they valid?
It is not necessary to read the following works that will be cited by the lecturer:
*7. Dan Markel, Against Mercy, Florida State University College of Law Minnesota Law Review, Vol. 88, 2004

*8. New Testament: The Gospel of John 8:1-11. The Scribes and Pharisees bring the adulteress to Jesus for execution by stoning. Confer, The Hebrew Bible: Micah 6:8; Zechariah 7:9.

*9. New Testament: The Parable of the Workers in the Vineyard Matt: 20:1-16. Equal pay for UN-equal work.

*10. Do unto others as you would have others do unto you. Matt: 7:12



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Lecture #5: LESSONS FROM SHAKESPEARE: JUSTICE, LAW & MERCY
[February 3, 2011]

Assignments for Class #5 (classes #4, #5 and #6 are related):
1. POSNER, Measure for Measure pp. 154-163 (law and equity, rigidity and flexibility). Define the word desuetude and be prepared to say what you think of it.
Shakespeare, Measure for Measure (1604): This play is the best introduction to Shakespeare’s overall view of the law. While The Merchant of Venice has received more legal commentary, Measure for Measure has more legal themes: for example kill all the lawyers… What happens to mercy and the law in this play? What does the play have to say about morality and the law and corrupt judges? How is Angelo like Creon, Captain Vere and Draco? What is the penalty for fornication? Is it better to enforce laws strictly or equitably? Do you think the anti-fornication used to prosecute Claudio would violate his right to privacy in modern American law?
2. Bowers v. Hardwick, 478 U.S. 186 (1986) [upholding the Georgia sodomy statute.] Overruled in Lawrence v. Texas, 539 U.S. 558 (2003). Compare the opinion in Bowers to the legal themes in Measure for Measure: Extreme punishment/minor offense; law to enforce morals; is immoral also illegal? What is the importance of respect for the law in enforcement of the law? How does the law work when the source of law is power?
3. Victor Hugo, Les Miserables. Google or otherwise research Bishop Myriel and Jean Valjean and summarize the story of the candlesticks. Is this a story of justice, mercy or madness?
It is not necessary to read the following works that will be cited by the lecturer:
*4. Kornstein, Daniel J., A Scarecrow of the Law from Kill All the Lawyers: Shakespeare’s Legal Appeal (1994 Princeton University Press). This is a tour de force analysis of the Merchant of Venice and Measure for Measure as they enunciate theories of justice.

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Lecture #6: REVENGE & MERCY
[February 10, 2011]
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Assignments for Class #6 (lectures #4, #5 and #6 are related):

1. Shakespeare, Hamlet (Paperback) the grave digging scene: Why not that be the skull of a lawyer? Where be his quiddities now, his quillities, his cases, his tenures, and his tricks? Hamlet, V, i, 99. See POSNER pp. 103-123
2. The New Testament, Matthew 5:38: An eye for an eye… A law of mercy?
It is not necessary to read the following works that will be cited by the lecturer:
*2. Shakespeare, Henry V, IV, I, 132 (the "following orders" defense): Henry V orders the massacre of prisoners at Agincourt.
*3. Shakespeare, Timon of Athens. Pity is the virtue of the law. III, v, 8. Is pity the same thing as compassion? As mercy?
*4. Shakespeare, Taming of the Shrew I. ii, 277: Do as adversaries do in law, / Strive mightily but eat and drink as friends. Note: Does the ‘adversaries’ reference describe a system of law (the ‘adversarial system’) that is peculiar to England or does it pervade Europe. What other types of legal systems are alternatives to the ‘adversarial’?
*5. Shakespeare, The Winter's Tale: as she hath/ Been publicly accused, so shall she have/ A just and open trial. II, iii, 201.
*6. Shakespeare, Julius Caesar, III, 2. The funeral oration is a masterpiece of forensic oratory. See POSNER pp. 450-455.
*7. See Kill all the lawyers? Shakespeare's legal appeal By Daniel Kornstein (1994 Princeton University Press) Chapter 5 Skull of a Lawyer, Hamlet.

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Lecture #7: REVENGE & MERCY
[February 17, 2011]
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Assignments for Class #7:

1. Aeschylus, The Orestia (Paperback) Agamemnon, The Libation Bearers and The Eumenides (525-456 B.C.E.) (Penguin Classics) by Aeschylus, W. B. Stanford, and Robert Fagles (Paperback - Feb 7, 1984) and see POSNER “Revenge Literature” pp. 86-92 and http://en.wikipedia.org/wiki/The_Oresteia. Lecture # 7, February 17, 2011.

2. POSNER, Chapter Two Revenge as Legal Prototype pp. 49-92.

3. SEE http://records.viu.ca/~johnstoi/aeschylus/oresteiatofc.htm Text of The Orestia . This is the webpage of Ian Johnston Malaspina University-College (Vancouver Island University since 2008) Nanaimo, British Columbia and prepared, September 2002. See also an analysis by Ian Johnston http://records.viu.ca/~johnstoi/introser/aeschylus.htm focused on the first play in the trilogy Agamemnon.


Lecture #8: REVENGE & THE NATURE OF LAW
[February 24, 2011]
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Assignments for Class #8:
1. Charles Dickens, The Trial of Bardell v. Pickwick [from The Pickwick Papers]; Why didn’t Bardell and Pickwick testify? What do you think of the reason? What does Mr. Perker think of hungry jurors? [Begin your reading at “I wonder what the foreman of the jury, whoever he’ll be, has got for breakfast,” said Mr. Snodgrass…..to “I know’d what ‘ud come o’ this here mode o’ doin’ bis’ness. Oh Sammy, Sammy….” POSNER pp.187-191, 224 (is the jury always a safeguard?).
2. Charles Dickens, In Chancery [from Bleak House]. What does the suit Jarndyce v. Jarndyce mean? (What do you think about justice being rendered according to the conscience of the judge or jury? How does equity fare in this story? Where is the pendulum now?)
3. POSNER pp. 75-86 Revenge as Legal Prototype. See also p. 162 (and try to add to the list). Compare the concept POSNER calls ‘composition’ (page 83) and the phrase ‘restorative justice’ (Google the phrase).
It is not necessary to read the following works that will be cited by the lecturer:
*4. Cicero, On Duties. On Duties, or On Obligations, has generally been the most popular of Cicero’s writings, and perhaps exercised more influence on thought and standards of the western world than any other secular work ever written. Michael Grant, Penguin Classics (1971): Book I. VII, 20 [role of justice and kindness], 21 [private property], 22 [duties to the state], 23 [foundation of justice], 24 [reason for crime], 26, 27 [injury and injustice], 28 [passive injustice], 29 [self-interest], 31 [the two principles of justice], 33 [chicanery], XI. 33 [limits to retribution and punishment], XIV. 42 [kindness and generosity], XVI. 50 [kindness], 51, 52 [public property], 63 [the soul of justice], 71 [duty to engage in public affairs], 87 [electioneering and scrambling for office], Book II, 49, 50 [winning admiration through lawyering], 51 [capital charges against the innocent and defending the guilty], 66, 67[eloquence at the bar], 70, 71 [ representing the poor], 74 [property taxes], 78-80 [agrarian laws], 83 [impartiality], 84 [debt and public safety], 85 [courts of equity], Book III, 54-57, 65-67 [a seller’s duty to disclose], 60-61 [criminal fraud], 69 [civil law versus moral law], 70 [good faith in contracts], 97 [doing evil to do good]. How would Cicero resolve conflicting duties? “The historical roots of casuistry can be found in ancient Rome and Greece.  Cicero, the great rhetorician, described early casuist methodology in his work, On Duty (106-43 BCE).  In it he states that “we need to consider ‘what is most needful in each individual case,’ … and that .different circumstances should be carefully scrutinized in every instance.’” (David Jonsen, The Abuse of Casuistry, 1988 p. 10).  In On Duty, Cicero explores this proposal in cases that he presents where “conflicts of duty appear to arise.” His approach: what is most needful in each individual case, Jeramy Townsley, professor Butler University, 2003, http://www.jeramyt.org/ ; http://www.jeramyt.org/papers/casuistry.html
*5. Cicero, The Laws, Book One, 16-35. Where does justice come from? Is law synonymous with wisdom?
*6. Cicero, The Laws, Book Two, 37-40. What does music have to do with law? Why did Athens cut off strings from the instrument played by Timotheus? What would Plato think? See Plato, Laws 3. 700-1; Aristotle, Pol. 8. 5-7, Horace, Ars Poetica 202-19.
*7. Michel de Montaigne, Of Custom (1572-1574) (the last 14 paragraphs of the essay). What is Montaigne’s theory about the source of law? Would Montaigne support the idea ‘health care reform’ and innovation? Why does Montaigne think the legal reformer should wear a rope around the neck? What does Montaigne think about legal tricks and artifice?
*8 The Hebrew Bible, Exodus (21-23ff); Leviticus (24:17-20); Deuteronomy (19:21). Compare with Dante’s concept of contrapasso or counter-punishment.
*9. Rabelais, On Judge Bridlegoose and Lord John the Loony [from Gargantua and Pantagruel]. HOW PANTAGRUEL PERSUADED PANURGE TO SEEK COUNSEL OF A FOOL through PANTAGRUEL’S STRANGE TALE OF THE PERPLEXITIES OF HUMAN JUDGEMENT. Judge Bridlegoose decides cases by rolling dice.
*10. Kafka, The Problem of Our Laws: Our laws are not generally known; they are kept secret by the small group of nobles who rule us … for the laws were made to the advantage of the nobles from the very beginning, they themselves stand above the laws
*11. Piers Plowman (14th c.): Neede hath no law. Publilius Syrus, Necessity gives the law, but does not herself accept it. What do the two maxims mean? Who is Ananke (or Anance) and what role does she play in the law.
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Lecture #9: CRIME, PUNISHMENT AND LEGAL FORMALISM
March 3, 2011]
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Assignments for Class # 9:
1. Sophocles, Antigone (in THE OEDIPUS CYCLE) (441 B.C.E.) (Cambridge Translations from Greek Drama) (Paperback), David Franklin (Translator), John Harrison, Translator, P.E. Easterling (Introduction) or see POSNER pp. 133-135. Lecture #9, March 3, 2011. How is Creon like Captain Vere? For analysis and synopsis see: http://www.bookrags.com/notes/ant/ (Antigone)

2. Dante: contrapasso [Google the word with Dante’s name).
4. Walker v. Georgia 555 U. S. 1 (2008) (proportionality review).
5. 1 Kings 3:16-28: The Judgment of Solomon.

It is not necessary to read the following works that will be cited by the lecturer:
*6. Kristen M. Nugent. Proportionality and Prosecutorial Discretion: Challenges to the Constitutionality of Georgia’s Death Penalty Laws and Procedures amidst the Deficiencies of the State’s Mandatory Appellate Review Structure University of Miami Law Review (2009). At: http://works.bepress.com/kristen_nugent/1 (look for ‘download the paper’ option in upper right hand corner).
*7. Plutarch, Lives: Solon [legendary Athenian lawgiver, died 539 B.C.E] written 75 C.E. translated by John Dryden http://classics.mit.edu/Plutarch/solon.html [this essay describes the architecture of a complete system of justice in Athens and compares it with the system of justice in Sparta]: First, then, he repealed all Draco's laws, except those concerning homicide, because they were too severe, and the punishment too great; for death was appointed for almost all offences, insomuch that those that were convicted of idleness were to die, and those that stole a cabbage or an apple to suffer even as villains that committed sacrilege or murder. So that Demades, in after time, was thought to have said very happily, that Draco's laws were written not with ink but blood; and he himself, being once asked why be made death the punishment of most offences, replied, ‘Small ones deserve that, and I have no higher for the greater crimes.
*8. Plutarch Lives: Lycurgus [legendary Spartan lawgiver, 800-730 B.C.E.]. Compare Solon with Lycurgus with Draco. What did Lycurgus think of music and the law? What did the Delphic Oracle think of Lycurgus’s laws? http://classics.mit.edu/Plutarch/lycurgus.html [this essay describes the complete system of justice in Sparta].
Friedrich Schiller (1789): Solon and Lycurgus were great and righteous men, but there laws differed greatly since they proceeded from principles diametrically opposed. The character of an entire people is the most faithful impression of its laws, and the surest judge of its value. Limited was the mind of the Spartan, and insensitive his heart. He was proud and haughty toward his fellows, severe toward the vanquished, inhuman toward his slaves, and slavish toward his superiors; in his transactions, he was unscrupulous and faithless, despotic in his decisions, and his greatness, even his virtue, lacked the pleasing grace, which alone wins hearts. The Athenian, quite the contrary, was gentle and tender of behavior, politely intelligent in discussion, kind to inferiors, hospitable and helpful to foreigners.
*9. 1 Kings 3:9-12; and 10: 24: Solomon’s Wish: Give Thy servant an understanding heart to judge…

Lecture #10: CRIME, PUNISHMENT& LEGAL FORMALISM
[March10, 2011]
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Assignments for Class #10:
1. Herman Melville, Billy Budd, Sailor (An Inside Narrative) (1924 posthumously). Has any work of American literature generated more antithetical and mutually hostile interpretation than Herman Melville's Billy Budd, Sailor? And all the battles about the moral and political vision at the heart of the tale swirl around one question: Are we supposed to admire or condemn Captain Vere for his decision to sentence Billy Budd to death by public hanging? Somehow, astonishingly enough, nobody seems to have noticed that central to the story is the subject of capital punishment and its history. H. Bruce Franklin Reprinted from AMERICAN LITERATURE, Copyright 1997 by H. Bruce Franklin): See POSNER pp. 122,148-50, 162, 163, 165-173, 179, 181, 242. Posner thinks Captain Vere acts on the basis of expediency, i.e. the common good that dictates the death of one for the sake of the many. Melville’s story is also about war and its folly (Lord Nelson) and its ability to transform good and evil into each other as illustrated by the ‘impressed men’ who are jailbirds, insolvent debtors (L 98) and lame ducks of morality at one moment (L 96) then transformed into defenders of the King by their impressments only to become mutineers ( L 57) and then patriots and heroes as they help win the naval crown of crowns at Trafalgar. The minister of the Prince of Peace gets his stipend from the God of War, the ‘prudent surgeon’ dedicated to healing directs a hanging and science, religion, innocence and guilt change places in the jugglery of circumstance. Sailors who aim guns at the enemy have swords aimed at their backs by their own officers lest they turn the guns on their superiors. War is a rat pit of quarrels. Compare Captain Vere, Creon, Lycurgus, Draco and Solon and Solomon.
2. Richard Weisberg,Yeshiva University, Benjamin N. Cardozo School of Law conducted extensive research into the history and practice of naval law in England during the era in which the novel is set. He rejects the reading that Captain Vere is a good man, trapped by a bad law in a time of war and concluded that Captain Vere deliberately distorted substantive and procedural laws to support hanging Billy Budd. See The Failure of the Word: The Lawyer as Protagonist in Modern Fiction [orig. ed., 1984; expanded ed., 1989] chapters 8 & 9. Posner sharply contests Weisberg’s reading. See POSNER pp. 211, 213-216, 222.
3. http://stevencscheer.com/billybudd.htm by Steven C. Scheer @ stevenscheer@wowway.com. This excellent essay traces four readings of the novel and describes the system of justice as seen through the prism of Billy Budd,

4. David Padilla, The University of Virginian American Studies site: http://xroads.virginia.edu/~HYPER/bb/bb_main.html . This hypertext version of Billy Budd, Foretopman, is based is large measure on the 1924 Raymond Weaver edition and F. Barron Freeman’s 1948 edition and Elizabeth Treeman’s later modification and includes certain chapter Weaver excluded or incorporated into other chapters. Also, this text refers to the warship on which the action takes place as the Indomitable not the Bellipotent as Harrison Hayford and Merton Seals maintain that Melville intended. The hypertext version points out these variations in appropriate places.
http://herbinator.blogspot.com/2005/11/laws-are-silent-in-times-of-war.html> Laws are silent in times of war---Cicero.
Inter arma enim silent leges is a Latin phrase meaning "For among [times of] arms, the laws fall mute," although it is more popularly rendered as "In times of war, the law falls silent." This maxim was likely first written by Cicero in his published oration Pro Milone, although Cicero's actual wording was "Silent enim leges inter arma." Loud cannons silence laws. Laws are silent when the drums beat.
MARCH 17, 2011 is SPRING BREAK





Lecture #11: CRIME & PUNISHMENT
[March 24, 2011]
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Assignments for Class 11: (subject to completion of Billy Budd, Sailor):

1. Lon L. Fuller, Speluncean Explorers: In the Supreme Court of Newgarth, 4300 http://www.nullapoena.de/stud/explorers.html (Harvard Law Review, 1949). Would Judge Bridlegoose approve of the method used to decide? Consult notes from Lecture #8. Be prepared to discuss the five divergent legal theories.







Lecture #12: PUNISHMENT
[March 31, 2011]

Assignments for Class # 12: (subject to completion of Billy Budd, Sailor).

1. Albert Camus, The Stranger (1942) [A Student Guide, Landmarks of World Literature] by Patrick McCarthy, Paperback 2004. (Especially Part Two, the trial, the arbitrariness of justice). POSNER pp. 40-48. Is the novella a polemic against capital punishment? Is it imaginative literature? What does this story say about capital punishment? What does Billy Budd (the man) have in common with Mersault? What does this work have in common with Dickens’ Bleak House? Jarndyce v. Jarndyce drones on. This scarecrow of a suit has, in course of time, be- come so complicated, that no man alive knows what it means. The parties to it under- stand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Charles Dickens, Bleak House 7-8.






Lecture #13: Crime & Punishment (Continued)
[April 7, 2011]
Assignments for Class # 13: (subject to completion of Billy Budd, Sailor).
1. Jack L. Sammons, On Teaching the Legality of Televising Capital Punishment.
2. Gilbert & Sullivan, The Mikado (1885). Scan or research the opera text to determine why Ko-Ko, the Lord High Executioner was appointed to his position; what he or the Pooh-Bah thinks of his position; the Pooh Bah’s explanation as to why the executioner enjoys such high status in the town of Titipu.
3. Homer, The Odyssey, Book XXII http://classics.mit.edu/Homer/odyssey.22.xxii.html . Read only the last eight paragraphs of Book XXII that describe how and why Telemachus executed Penelope’s twelve handmaidens. Could these executions take place today in the United States?
4. Greek Mythology, Theseus. Using classical dictionaries, reference books and your own research ingenuity, determine how Theseus cleared the road from Troize, over Corinth and Isthmus to Eleusis and Athens from bandits and other criminals such as Sinis, Procrustes (Damastes), Periphetes and Sciron. http://www.in2greece.com/english/historymyth/mythology/names/theseus.htm . Would Dante approve of Theseus’s methods of punishing crime? Also see Minos, the Odyssey Book XI 568. Where does Judge Minos do his judging? What kind of lawmaker was he?







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Lecture #14: CULTURE, FEMINISM
[April 14, 2010]
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Assignments for Class # 14 (Consider with class deliberation and about vote using this final lecture to review, discuss strategies for the paper).

1. The Apocrypha Susanna and the Elders. Is there any trial technique utilized in the storythat modern American justice continues to use? What type of offense justifies the death penalty in the story? If the Elders had intended to wreck Susanna’s marriage and her social standing, would they have received the death penalty? Daniel 13 in the New American Bible or here: http://bible.oremus.org/?version=nrsvae&vnum=yes&passage=Susanna
2. Carolyn Heilburn and Judith Resnik, Convergences: Law, Literature and Feminism. LEDWON pp. 91-126. Be prepared to discuss Jude the Obscure, A Doll’s House, Hoyt v. Florida, Michael M. v. Superior Court.


3. W. H. Auden, Law Like Love [LEDWON 221].

4. Susan Glaspell, A Jury of Her Peers (1917). What do you think of Mrs. Hale and Mrs. Peters story about the canary and their repair of the quilt? What is the difference in the jury make-up in the story and the jury that heard the actual case the story is based on? Why do Mrs. Hale and Mrs. Peters help Minnie? POSNER pp. 164-166. (Are the women in the story like Portia?).

CLASSES END

Lecture #15: PUNISHMENT
[]
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Assignments for Class # 15:

1. Michel Foucault, Panopticism, Discipline and Punish, LEDWON 323.

2. Franz Kafka, The Trial (1925) (Willa & Edwin Muir trans. Revised E.M. Butler, Schocken n Books, New, Introduction by George Steiner). POSNER 127-140, 183-205, and especially 176, 184-185, 188, 192, 217, 238, 240-241 and LEDWON pp. 255-256. http://en.wikipedia.org/wiki/The_Trial. Do you discern any relation to Dickens’ Bleak House?

Donald Vish, Middleton Reutlinger, counsel; executive director and board member, The Joan & Lee Thomas Foundation; director of advocacy, The Kentucky Coalition to Abolish the Death Penalty; Louisville Bar Association (Committee on Judicial Integrity and Independence); elected life member, The American Law Institute. Member of the Kentucky and Florida bars.


Criteria for grading papers
Law & Literature
From the Syllabus: “Each paper should relate the story line or a character to the important legal principles you discern in the text….as it impacts law or justice….Good reportage is a “C” and superb insight and analysis is an “A.”
Criteria based on analyzing the architecture of the best papers 68, 61 and 72:
1. Facts: are the facts (a) sufficient to tell a non-reader of the book the basic story line or plot; (b) sufficient to support the points made by the writer; (c) animated with nuances of the story?
2. Themes: does the paper describe the theme (s) in sufficient detail that a non-reader of the story will appreciate what the story is about in the abstract? (This is a reportorial standard, not analytical). Think of the ‘theme’ as the ‘issue(s)’ in a case.
Points 1 & 2 are sufficient to get a C for the paper with the ++ range achieved through use of nuance and good execution.
3. Organization: does the paper have a clear beginning, middle and end? Do the paragraphs logically flow from point to point?
4. Thought: does the paper display some thought about the subject treated in the paper or is the treatment superficial? (See the ‘insight and analysis’ #8 below, which goes further).
5. Interest: does the paper reflect interest on the part of the writer and command interest on the part of the reader?
6. Justice: does the paper talk about justice though the plot or characters of the story and address the central question of the entire course? As the Syllabus points out, the entire course and every assigned work is about the same thing: what is justice?
Point 3, 4, 5 & 6 are necessary to achieve a B with the + or – range being impacted by execution—how well is it done and the absence or presence of some minimum analysis.
(Here is the ‘superb insight and analysis’ features):
7. Context: does the paper reflect the student’s ability to place the assigned reading into context with the rest of the course assigments and from a broader perspective of law and justice?
8. Original thought: has the student raised any original ideas? Is there superb insight and analysis EITHER from the student or borrowed from critics (either is acceptable).
Points 7 & 8 raise the grade into the A range with the + or – range impacted by execution.
***
“A” papers demonstrate ‘superb insight and analysis’ to evaluate issues not merely report on them. All “A” papers have one thing in common that distinguishes them from “B” papers: (i) an analytical meditation about the nature of justice, (ii) a broad perspective and (iii) obvious thought. “Insight” means to see things beyond face value and to see the relationship and context of things in juxtaposition to each other and where they fit into a wider world. The top of the “A” range is marked by the use of outside sources, thoughtful command of the material, use of class and other Syllabus materials and the fundamental architecture on display in paper #68988.
Excellent reportorial character distinguishes a “B” paper but analysis—if any—is conclusory, abbreviated, narrow and without elaborated insight and reasoning. As stated in the Syllabus, ‘good reportage’ will earn a “C”. The “B” paper rises to a higher level of reportage. Many B papers have no analysis and those that do display a superficial analysis narrowly drawn, without elaborated insight or reasoning, of subsidiary importance to the paper and merely conclusory use of catch words and phrases. However, this is sufficient to earn a + to the B grade. The B+, however, is not on the cusp of an A-. The A papers are different universes. The B+ paper is at the top of the universe it occupies.

May 12, 2010/ May 13, 2010; December 19, 2010