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Law & Humanities Blog

Musical Rhetoric in Legal Language

Posted: 03 Oct 2011 04:04 PM PDT

Ian Gallacher, Syracuse University College of Law, has published The Count's Dilemma, or, Harmony and Dissonance in Legal Language in Legal Communication & Rhetoric, no. 9 (2012). Here is the abstract.

Lawyers have had a long, but ambivalent, relationship with metaphor. Viewed by some as a mere literary device, a trick of language that "adds little of substance to an argument," metaphor is seen by others as an essential component of legal language, a rhetorical device inseparable from thought. On one thing, though, all can agree: lawyers only have words to express their thoughts, so they have an obligation to use words, whether used metaphorically or not, as exactly as possible. 

This article offers a critique of the way lawyers meet this obligation when they use metaphors based in musical language. In particular, the article examines the ways in which the musical term "harmony" is used as a metaphor to explain the nature of the relationship between disparate elements of the law and concludes that the metaphor fails to convey its intended meaning. In order to reach this conclusion, the article explores the meaning of "harmony" in music and then shows how the musical and assumed legal usages diverge, making "harmony" an inexact metaphor for lawyers to use. Although recognizing that "harmony" will likely continue to be used, the article proposes "tonality" as a better, more precise, alternative musical term for lawyers to use.

Download the article from SSRN at the link.

The Impeachment of Samuel Chase

Posted: 03 Oct 2011 03:29 PM PDT

Adam A. Perlin has published The Impeachment of Samuel Chase: Redefining Judicial Independence at 62 Rutgers Law Review 725 (2010). Here is the abstract.

This article hopes to make the following contributions to the existing academic scholarship:

First, some legal scholars have ignored how the impeachment contributed to the modern apolitical judiciary or have construed its contribution too narrowly.
This article provides a fuller explanation of the impeachment's contributions to our modern understanding of judicial independence and what properly constitutes an impeachable offense. 

Second, the article touches upon the contribution the debates over Chase's impeachment made to more peripheral subjects, such as the debates over jury nullification and judicial review. 

Third, this article fills a void in the academic literature, as there are almost no articles fully addressing the "story" of Chase's impeachment and even fewer which analyze the importance of the debates in the House of Representatives and the examination of the trial witnesses. 

Given the increasing attention devoted to judicial activism and persistent calls for the impeachment of federal judges, the lessons of the Chase impeachment are perhaps more relevant today than ever before. By addressing the issues mentioned above, this article endeavors to draw greater attention to a major event in American legal history and to give a turning point in the history of impeachment and the judicial branch the attention it deserves.

The Lindbergh Law and the Press

Posted: 03 Oct 2011 03:24 PM PDT

Barry Cushman, University of Virginia School of Law, has published Headline Kidnappings and the Origins of the Lindbergh Law, in volume 55 of the St. Louis Law Journal. Here is the abstract.


The federal kidnapping statute of 1932 -- which prohibits the transportation of a kidnapped person across state lines -- is commonly known as the Lindbergh Law due to its enactment in the immediate wake of the abduction of Charles and Anne Lindbergh's child in March of that year. Indeed, but for the commission of that crime the statute probably would not have been enacted. But the Lindbergh affair alone cannot explain the form that the congressional reaction took. For the Lindbergh baby was found murdered fewer than four miles from his home, and there was no evidence that he had been transported across a state line. Had the Lindbergh Law been in effect when young Charles Lindbergh was kidnapped, it would not have applied to the offense. In fact, the bill that ultimately became the Lindbergh law was not introduced in the wake of that sensational crime, nor was it introduced by members of the New Jersey delegation that represented the Lindbergh family and the state in which the crime had been committed. Instead it had been introduced three months before the Lindbergh abduction by Senator Roscoe Conkling Patterson of Missouri and Representative John Joseph Cochrane of St. Louis. 

The congressional hearing on the bill, which took place a week before the Lindbergh kidnapping, was dominated by testimony of officials from St. Louis. Owing to its strategic location on the state border with Illinois, that city had become a center of profitable activity for the organized criminals running the midwestern "snatch racket." This essay, prepared as a comment on Professor Lawrence Friedman's Childress Lecture on "headline trials" at St. Louis University School of Law, explores the high-profile abductions of the early 1930s that spurred St. Louis leaders to seek federal legislation to address the scourge. These included kidnappings of scions of the Anheuser-Busch and International Shoe fortunes; but the story that dominated headlines and riveted the attention of the community for much of the decade involved the 1931 interstate abduction of the city's leading otolaryngologist by a group of mobsters and ex-convicts led by a prominent St. Louis socialite named Nellie Muench. Nellie, whose underworld nickname was "Goldie" due to her exceptional interest in lucre, was married to a local physician, was the daughter of a well-known Baptist minister, and was the sister of a judge on the Missouri Supreme Court. The saga of Nellie and her partners in crime involved a parade of colorful figures participating in multiple criminal trials; the drive-by machine-gunning of a key witness; a near-fatal attack on the chief prosecutor; a faked pregnancy and two illegal adoptions (one of which resulted in an infant's death) in order to curry favor with her criminal jury; an unsuccessful attempt to retain custody of the surviving child in a hearing before Special Commissioner Rush Limbaugh, Sr.; and ultimately a mail fraud conviction for seeking to extort $250,000 from the bachelor with whom she had initiated an affair and had told that he was the father of her child.
Download the article from SSRN at the link. 
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