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Showing papers in "Yale journal of law and the humanities in 1999"


Journal Article
TL;DR: While many Black people regarded slavery as a form of social death, some nineteenth-century white policy-makers extolled the virtues of slaves as a tool to uplift the characters of Africans in America as mentioned in this paper.
Abstract: While many Black people regarded slavery as a form of social death,' some nineteenth-century white policy-makers extolled the virtues of slavery as a tool to uplift the characters of Africans in America: \"[Slavery in America] has been the lever by which five million human beings have been elevated from the degraded and benighted condition of savage life ... to a knowledge of their responsibilities to God and their relations to society,\"2 observed a Kentucky Congressman in 1860. These sentiments were echoed by abolitionist northern officers not three years later when the institution of marriage was lauded for its civilizing effect on the newly freed men and women: \"[Marriage] is the great lever by which [the freed men and women] are to be lifted up and prepared for a state of civilization. 3

79 citations


Journal Article
TL;DR: The legal fiction underlying civil forfeiture is that the government is acting against the property itself, rather than against the owner as discussed by the authors, and the legal fiction has been traced to the Middle Ages, where an inanimate object that caused a death was deemed to be "guilty" of a crime and therefore was offered to God through forfeiture to the King.
Abstract: In 1996, the Supreme Court issued two opinions, Bennis v. Michigan and United States v. Ursery, emphasizing the constitutionality of civil forfeiture schemes under both the Due Process and Double Jeopardy Clauses of the Fifth Amendment. These decisions, and civil forfeiture schemes generally, have faced strong criticism from scholars and civil libertarians. Among the arguments advanced against civil forfeiture has been one based on its origins. The so-called "legal fiction" underlying forfeiture is that the government is acting against the property itself, rather than against the owner. Commentators have traced this fiction to the Middle Ages. Under the law of the deodand, an inanimate object that caused a death was deemed to be "guilty" of a crime and therefore was offered to God through forfeiture to the King. Those opposed to today's forfeiture laws have seized upon this history to demonstrate the supposedly senseless origins of forfeiture. The Supreme Court also has invoked the history of civil forfeiture, but for a different purpose. Although the Court has sometimes acknowledged that the fiction underlying civil forfeiture may seem unfair, it has nevertheless upheld forfeiture schemes based on the historical prevalence and acceptance of the practice. Thus, while both the critics and the Court have used the history of forfeiture actions to support their conclusions, neither side has made any serious attempt to understand this history. This Article closely examines the widespread historical practice of conducting legal actions against both inanimate objects and animals. It is unsatisfying simply to conclude that these trials were the product of irrationality or superstitiousness. Instead, this Article speculates on whether these trials may have performed important social functions for the community. In particular, the trials may have permitted the community to heal itself after the breach of a social norm by creating a narrative whereby a symbolic transgressor of the established order was deemed to be "guilty" of a "crime" and cast beyond the boundaries of the society. This Article then suggests that at least some aspects of modern civil forfeiture law may fulfill a similar function. Still today, a forfeiture proceeding can serve to remove an offensive symbol of wrongdoing from the community, a function that is quite distinct from the desire to punish the culpable individual who may have used the object. Indeed, the importance of this symbolic aspect of civil forfeiture may provide a way of thinking about the Supreme Court's recent jurisprudence in this area.

16 citations


Journal Article
TL;DR: Kurtz as discussed by the authors argued that legal practitioners were a constant - and powerful - element of early Rhode Island legal culture, adding to a growing number of accounts that seek to rethink the ways in which we understand and discuss early legal practice.
Abstract: From the author's introduction: Paul C. Kurtz wrote well, spoke and argued eloquently, wore a nice suit, and carried a briefcase. As an observer notes, "He looked 100 percent like a lawyer and conducted himself as a lawyer." Being an actual practitioner of the law, however, does not make one a lawyer in modern America. Lawyer status is conferred only upon those who satisfy formal definitions based on professional education and bar admission. Not surprisingly, on July 7, 1998, Mr. Kurtz was arrested for passing himself off as a lawyer. Three hundred years earlier, an English lord similarly refused to confer lawyer status on the legal parishioners on Rhode Island. In September 1699, Richard Coote, the Earl of Bellomont, arrived in Rhode Island to investigate the colony. Bellomont's Rhode Island visit did not go particularly well. He found little to praise about the colony. In particular, he condemned the men who practiced law. Bellomont disparaged the General Attorney (the Attorney General), John Pocock, as "a poor illiterate mechanic, very ignorant, on whom they rely for his opinion and knowledge of the law." He criticized the former General Attorney, John Greene, as "very corrupt" and "brutish," with "no principles in religion." He added that those men who serve as the Governor and Assistants also knew "very little law." Bellomont was horrified that such legally illiterate men were elected year after year while "several gentlemen most sufficient for estate, best capacitated and disposed for his Majesty's service" were "neglected" and "maligned." This article takes issue with Bellomont's judgment - and with the conventional vision of the seventeenth-century colonial legal world as "Law without Lawyers." Adding to a growing number of accounts that seek to rethink the ways in which we understand and discuss early legal practice, this Article argues that legal practitioners were a constant - and powerful - element of early Rhode Island legal culture. Moreover, this Article suggests that these Rhode Island legal practitioners operated not in a colonial vacuum but as creative participants in a transatlantic legal culture.

12 citations


Journal Article
TL;DR: Goodrich describes the plight of contemporary legal theory with concise accuracy: We have abandoned natural law foundations originally constructed in ecclesiastical venues only to find that the project of developing a secular legal language capable of transforming the management of social conflict into questions of technical rationality is doomed to failure.
Abstract: Peter Goodrich describes the plight of contemporary legal theory with concise accuracy: We have abandoned natural law foundations originally constructed in ecclesiastical venues only to find that the project of developing a secular legal language capable of transforming the management of social conflict into questions of technical rationality is doomed to failure.' The ascendancy of analytic legal positivism has purchased conceptual rigor at the cost of separating the analysis of legal validity from moral acceptability, but retreat from this stale conceptualism and a return to traditional natural law precepts appears wildly implausible. As a sympathetic critic recently concluded, natural law remains \"a curiosity outside the mainstream, regarded mostly as a side-show and not to be taken very seriously.\"2 The irrelevance of the natural law tradition in

11 citations


Journal Article
James Seaton1
TL;DR: Weisberg and Nussbaum as discussed by the authors argue that great literary works support their respective theories about the law, but their arguments fail to persuade, both because they consider such a narrow range of works and because their readings display more special pleading than disinterested analysis.
Abstract: At a time when many departments of literature are discounting literary criticism and scholarship in favor of cultural studies, the rise of the law-and-literature movement is a welcome affirmation of literature's relevance to the larger society. The search for relevance, however, may lead one down blind alleys. This Essay reviews the work of several prominent legal thinkers, arguing that they generally have been misled in their search for legal insights in literary texts, criticism, and theory. The first section discusses the ideas of Richard Weisberg and Martha Nussbaum, who argue that great literary works support their respective theories about the law. Their arguments fail to persuade, both because they consider such a narrow range of works and because their readings display more special pleading than disinterested analysis. I then turn to the work of two theorists who evaluate literary criticism for insight into the interpretation of legal texts: Richard Dworkin and Stanley Fish. Dworkin advocates the application of the methods of literary interpretation to legal texts, while Fish proposes that both legal and literary texts should be seen ultimately as rhetorical exercises. Dworkin misunderstands the literary criticism on which his argument relies, while Fish leaves interpretive questions in both law and literature as he found them. Finally, I review the contribution of Richard Posner-a long-standing critic of the notion that literary analysis can add anything at all to the understanding of the law. While Posner's criticisms of the excesses of the law-and-literature movement are persuasive, his wholesale dismissal of literature as a source of insight for the legal profession goes too far. Literature has the potential to broaden and deepen the individual's understanding of ethics, politics, and human relations in general. Thus, while I take issue with the attempts made by Weisberg and Nussbaum to confine

8 citations


Journal Article
Austin Sarat1
TL;DR: In this paper, the authors examine the cultural life of capital punishment through a reading of two recent films about capital punishment, Dead Man Walking and Last Dance, and analyze the way these films rely on a representational realism that allows their viewers to think that they can know the reality of the crimes for which death is a punishment.
Abstract: This paper makes a particular intervention in scholarship about the death penalty, turning away from abstract, philosophical questions about the morality or legality of state killing and narrow policy-relevant research toward an analysis of the cultural life of capital punishment. It builds on David Garland's suggestion that we should attend to the "cultural role" of legal practices, to their ability to "create social meaning and thus shape social worlds," and that among those practices none is more important than how we punish. Punishment, Garland tells us, "helps shape the overarching culture and contribute to the generation and regeneration of its terms." Punishment is a set of signifying practices that "teaches, clarifies, dramatizes and authoritatively enacts some of the most basic moral-political categories and distinctions which help shape our symbolic universe." Punishment lives in culture through its pedagogical effects, and it teaches us how to think about such basic social categories as intention, responsibility and injury. In addition, it models socially appropriate ways of responding to injuries done to us. The semiotics of punishment is all around us, not just in the architecture of the prison, or the speech made by a judge as she sends someone to the penal colony, but in both "high" and "popular" culture iconography, in novels, television, and film. Punishment has traditionally been one of the great subjects of cultural production, suggesting the powerful allure of humankind's fall from grace and of our prospects for redemption. This is also true when the punishment is death. Execution is even now an occasion for rich symbolization, for the production of public images of evil or of unruly freedom, and for fictive recreations of the scene of death in popular culture. In this paper I examine the cultural life of capital punishment through a reading of two recent films about capital punishment--Dead Man Walking and Last Dance. I am interested in the cultural politics of these films and the way they seek to convey knowledge of capital punishment. How is the death penalty represented in these films and what connections do they forge among death, spectatorship and the constitution of legal subjectivity? What do they suggest about the legitimacy of state killing? To answer these questions I analyze the way these films speak to two of the kinds of basic conceptual categories to which Garland directs our attention. The first of these is individual responsibility and its utility in explaining the causes of, as well as directing our responses to, crime. Dead Man Walking and Last Dance do not explore the social structural factors that some believe must be addressed in responding to crime; instead they are preoccupied with the question of personal responsibility. To the extent they contain an explanation of crime and a justification for punishment it is to be located in the autonomous choices of particular agents. While building dramatic tension around the question about whether their hero/heroine deserves the death penalty, these films convey a powerful double message: First, legal subjects can, and will, be held responsible for their acts; second, they can, and should, internalize and accept responsibility. Last Dance and Dead Man Walking depend upon categories--agency, will, and responsibility--the stability and coherence of which is today increasingly called into question, yet they evade rather than engage with those questions. These films are deeply invested in the constitution of a modernist, responsible subject as the proper object of punishment, a subject who, as Nietzsche would have it, has the "right to make promises." They suggest that there can be, and is, a tight linkage between crime and punishment such that those personally responsible for the former can be legitimately subject to the latter. The second conceptual category to which this paper speaks involves representation, especially how the death penalty is represented to us, and the cultural politics of those representational gestures. While Dead Man Walking and Last Dance initially appear to deploy complex representational practices that call attention to the partiality and limits of all representations, in the end they depend on a representational realism that allows their viewers to think that they can know the reality of the crimes for which death is a punishment and of the death penalty itself. Instead of inviting us to imagine the scene of death and its significance, they seek to inspire confidence that their viewers can "know" the truth about capital punishment through their "You are there" representations of execution. Yet, I contend, the death penalty plays an uncanny role in film, pointing as it does to the limits of representation, to the limits of our ability to "know" death and, as a result, of our inability to be sure whether state killing is an appropriate, proportional response to the deaths which appear to justify it. Whenever and however death is present in film, it reminds us that, in this domain, seeing is not, and cannot be, knowing. Traditionally, the cultural politics of state killing has served to shore up status distinctions and distinguish particular ways of life from others. Thus it is not surprising that today the death penalty and death penalty films sit at an important fault line in our contemporary culture wars. In the way they address questions of responsibility and in the representational practices on which they depend, Dead Man Walking and Last Dance, whatever the intentions of those who made them, enact and depend upon a conservative cultural politics, a politics in which large political questions about what state killing does to our law, politics, and our culture are bracketed and in which viewers are positioned as jurors deliberating solely on the question of whether a particular person merits death. While they raise questions about the calculus of desert that justifies the death penalty in particular cases, they support the conceptual foundations of capital punishment, and they legitimate its place in America's penal apparatus.

6 citations



Journal Article
James Dawes1
TL;DR: The act of naming is defined as "forceful imposition of a sign upon a person or object with which it has only the most arbitrary of relationships" as mentioned in this paper, i.e., it is a form of violence that produces an Other, establishes hierarchies, enable surveillance, and institute violent binaries.
Abstract: Naming is violence. Among post-structuralist theorists this is an essential and commonly invoked critical maxim. The act of naming is a matter of forcibly imposing a sign upon a person or object with which it has only the most arbitrary of relationships. Names produce an Other, establish hierarchies, enable surveillance, and institute violent binaries: Naming is a strategy that one deploys in power relations. The violence cuts through at all levels, from the practically political (\"They are savages,\" \"You are queer\") to the ontological

5 citations


Journal Article
Steven Kautz1
TL;DR: Dworkin and Gutnann as discussed by the authors argued that the original moral concept is no more privileged than the original conceptions of the moral concepts, and argued that such a correction would be an act of fidelity to the original intention of the authors of the constitutional provision-saving their better judgment from their worse judgments.
Abstract: guarantee, it follows immediately that \"judges must make substantive decisions of political morality not in place of judgments made by the 'Framers' but rather in service of those judgments\": Political theory is inescapable.85 But surely there is an intermediate possibility: The authors of a constitutional provision might have intended to establish an abstract guarantee (and not merely guarantees of a specific list of particular rights \"recognized... at a fixed date in history\"86), but they might have understood this abstract guarantee to have a determinate and unchanging meaning. That is, they would have been prepared to concede that some of their particular conceptions might have been in error (that segregated schools violate the abstract guarantee of equal protection, say, even on the original and determinate meaning of equal protection), in which case their particular judgment would properly be subject to correction by a future Court more faithful to the original moral concept than its authors had been. And such a correction would indeed be, as Dworkin says, an act of fidelity to the original intention of the authors of the constitutional provision-saving their better (abstract) judgment from their worse (particular) judgments. And yet, it certainly does not follow that the framers of abstract constitutional provisions would (necessarily or even probably) have been prepared to concede that their moral concepts themselves might have been so far in error as to justify correction by a future Court guided by a \"better philosophy.\" For example, they surely would not have conceded that the moral concept \"equality\" is properly understood as Rawls understands it in A Theory of Justice, say; and so they would not have conceded that the Court should rest its judgments upon this concept of equality rather than upon a concept of equality that might conceivably have guided the authors of the Equal Protection Clause. Indeed, Dworkin's whole argument here seems to rest on an equivocation: Equality here, equality there, we must be talking about the same thing. But Dworkin consistently makes this stronger claim, as in the passage cited above regarding cruelty: The original moral concept is no more privileged than the original conceptions (just as the parent supposedly refrains from giving his 84. DWORKIN, supra note 6, at 135-36. See also the recent exchange on this point between Dworkin and Justice Scalia, in ANTONIN SCALIA, A MATrER OF INTERPRETATION 119-27, 14449 (Amy Gutnann ed., 1997). 85. DWORKIN, supra note 6, at 49. 86. DWORKIN, supra note 5, at 134. 28 Yale Journal of Law & the Humanities, Vol. 11, Iss. 2 [1999], Art. 6 https://digitalcommons.law.yale.edu/yjlh/vol11/iss2/6

3 citations



Journal Article
TL;DR: The authors argued that there had been just a bit wanting in the President's behavior as President in the conduct of the Lewinsky scandal, and from an ethical perspective, the President made ill use of so many people: his secretary, staff, Cabinet officers, trusted
Abstract: Let me begin with a story from the trenches. On a public radio call-in program in the thick of the Clinton impeachment imbroglio, I found myself being bombarded with denunciations from irate citizens. Most callers seemed to believe I was either a member of the "Christian Right" or part of a "vast right-wing conspiracy" because I claimed that there had been just a bit wanting in the President's behavior as President in the conduct of the Lewinsky scandal. Most importantly, from an ethical perspective, the President made ill use of so many people: His secretary, staff, Cabinet officers, trusted