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Law & Humanities Blog

Rex Stout's "Justice Ends at Home"

Posted: 30 Jan 2012 03:26 PM PST

Ross E. Davies, George Masson University School of Law; The Green Bag, has published Leg, Culp, and the Evil Judge at 2012 Green Bag Almanac and Reader 321. Here is the abstract.

Nobody could have known it at the time, but when Rex Stout's novella Justice Ends at Home was published in 1915, it foreshadowed not only the rise of two enduringly popular fictional heroes (Nero Wolfe and Archie Goodwin), but also the fall of one enduringly objectionable actual villain (Judge Martin T. Manton of the United States Court of Appeals for the Second Circuit). Leading scholars of the work of Rex Stout agree that the two main heroic characters in Justice Ends at Home — the flabby, phlegmatic, middle-aged Simon Leg and his sharp, energetic, youthful assistant Dan Culp — prefigured the fat Nero Wolfe and svelte Archie Goodwin who made their first appearance in Stout's 1934 novel, Fer-de-Lance. As Stout biographer John McAleer puts it, "eighteen years before Fer-de-Lance was written, Wolfe and Archie already lived nebulously in the mind of Rex Stout." Unlike Simon Leg and Dan Culp, Judge Fraser Manton — the main villainous character in Justice Ends at Home — has passed largely unnoticed by scholars of Stout and of the law. But the fictional Judge Manton is in fact a prefiguration of the infamous real-life Judge Martin T. Manton of the U.S. Court of Appeals for the Second Circuit. The similarities go beyond the names. Indeed, the two Mantons have enough in common to support an inference that Stout based his fictional Judge Fraser Manton on the real Martin Manton, although the real Manton would not become a judge until 1916 — the year after Justice Ends at Home was published. In other words, Stout's selection of a corrupt Judge Manton for the lead bad-guy role in Justice Ends at Home was intriguingly prescient.
Download the article from SSRN at the link.

Literary Property and Copyright

Posted: 30 Jan 2012 03:22 PM PST

Alina Ng, Mississippi College School of Law, has published Literary Property and Copyright in volume 10 of Northwestern Journal of Technology and Intellectual Property (May 2012). Here is the abstract.



Even when the first subject matter of copyright control was literary works, the specific rights of authors who produce these works had never been clearly articulated. Copyright laws have protected a statutory right to distribute the work to the public that may be broadly owned by both author and publisher while the common-law right of property over the work, which would have protected an author's creative interest in the work, have been dismissed by the courts as a legitimate source of law. This paper examines literary property as a form of authorial rights, which authors may potentially have over works of authorship and which is both separate and distinct from statutory copyright.
By looking at publication contracts between manuscript publishers and authors such as John Milton, Ralph Waldo Emerson, Harriet Beecher Stowe, Henry Thoreau, and Oliver Wendell Holmes, this paper suggests that there are two sources of rights over literary and artistic works - one at common-law and another at statute – as evidenced by the fact that authors retained personal property rights over their work after exclusive rights to print were assigned to the publisher. Should the notion of literary property be accepted as another source of right for the author, there will be immense implications for how  scholars, jurists, and policy-makers understand and shape copyright laws. If literary property is acknowledged as separate from statutory copyright, then ownership of the work and ownership of the specific rights under §106 of the Copyright Act would entail different entitlements. The author's role in the copyright system will be more clearly defined as ownership of literary property delineates rights owned and obligations owed by authors who produce literary works for the rest of society. Finally, this paper argues that social expectation to access creative works may be checked against the authors' right to protect their creative personality and integrity as well as the publishers' right to receive fair payment for the use of the work if a clear conceptual distinction between literary property and copyright is drawn.
Download the article from SSRN at the link. 

Justice Holmes and Pragmatism

Posted: 30 Jan 2012 03:20 PM PST

Seth Vannata, Morgan State University, has published Justice Holmes at the Intersection of Philosophical and Legal Pragmatism. Here is the abstract.
Because of the prolific scholarship on legal theory by Judge Richard Posner, especially since his turn away from law and economics toward "pragmatism," legal scholars began reading "legal pragmatism" as references to Posner's thought alone. My present task is part of a larger process of rethinking Posner's version of legal pragmatism. Posner's inspiration for his turn toward pragmatism can be attributed, in large measure, to Oliver Wendell Holmes, Jr. Posner buys into three central insights of legal pragmatism, whose origins lie in the work of Holmes, anti-formalism, the prediction theory of the law, and a modicum of indeterminacy in judicial decision making. Further, Posner is a methodological pluralist, refusing to reduce the process of adjudication to any one method or approach, such as textual literalism or originalism. He takes the mask off of these judicial theories and claims that underneath each is a pragmatist. 

But Posner's central position, to which the present article is a propadeutic to a more substantial criticism, is that academic philosophy and philosophical pragmatism in particular have no role to play in legal pragmatism as it manifests itself in the process of adjudication or in the process of legal scholarship. Since the legal theory Posner thinks useless is so infected by philosophy, legal theory, according to Posner is not relevant to the law either. If legal theory is not relevant to the law, legal institutions seem intellectually impoverished, ignoring the storehouse of wisdom in philosophy and depriving law of the intelligence necessary for social growth. Posner's polemical stance has not gone unnoticed in the world of jurisprudence and legal theory. But the result has been that legal scholars have now begun to associate legal pragmatism with Posner's seeming anti-theory. Thus, an important element in rethinking Posner's version of legal pragmatism is presenting a defense of Holmes as a philosophical pragmatist and a pragmatist in the tradition of his contemporary, Charles Sanders Peirce. Such is my present task. Holmes's scholarship resides at the intersection of philosophical and legal pragmatism, where Posner imagines that these roads run parallel to each other and therefore do not intersect.

The central position I advance here is that Holmes's historical legal scholarship and several of his judicial arguments evince the pragmatic sensibility of C.S. Peirce. Holmes puts to work several elements of Peirce's pragmatism: (1) that we must infer knowledge internal to the mind by external signs; (2) that the best method to fix our beliefs and settle our doubts relies on a communal inquiry as opposed to authoritarian dictates; (3) that the meaning of a concept, such as law, is found in the effects of its enactment; (4) that falliblism, liberalism, and skepticism of absolute truth are the proper norms to deter dogmatism and authoritarianism; (5) that the reality of values and ideals are found in their functional effects; and (6) that the norms, principles, standards, and rules, which guide the process of judicial inquiry, are generated by the facts of the case, as opposed to being a priori principles (versus natural law theory) and as opposed to lacking any reality at all, (versus nominalism). Peirce offered us the idea that to understand the meaning of a concept, we must look to its practical effects. I offer the idea that if we want to know the meaning of pragmatism itself, we should look to its practical effects in the scholarship and judicial decisions of Oliver Wendell Holmes, Jr.
Download the paper from SSRN at the link.
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