Pub Date : 1994-01-01DOI: 10.4324/9781351126663-10
R. Ferguson
Legal critics have long noted that trials are narratives that arbitrate between conflicting stories about a controversial event and that, consequently, the legal process often takes on a larger cultural meaning through the idea of story. But acknowledgment, as such, does not imply an effective analytical understanding of the connection, and it has not led to a perception of the way in which legal stories become cultural narratives. We can only tell the stories we know how to tell, and the degree of our understanding-our appreciation-depends on issues of narrative and genre often present but usually missed in studies of the legal process. Famous trials, trials that capture the imagination of a community, are particularly useful for observing the nature of legal-literary-cultural connections and dependencies. This essay uses one such trial, that of John Brown in 1859, to suggest that a better understanding of the way trial narratives and larger communal perceptions intersect is important to legal studies. At issue is a much closer analysis of cultural context than many legal critics are willing to undertake. For example, Ralph Waldo Emerson said of John Brown, on the second day of Brown's trial, "he is a hero of romance & seems to have made this fatal blunder only to bring out his virtues."' Emerson's words are still familiar, but we no longer quite comprehend what they meant at the time. Americans of later generations have accepted Emerson's appraisal, but without an informed sense of the cultural assumptions at work in his language. Recovering the cultural context of a major trial, particularly one generating as many narratives as the trial of John Brown, is no easy matter. There is, however, a reward for perseverance. Since trials involve the transcription of everything that is said in a courtroom they
{"title":"Story and Transcription in the Trial of John Brown","authors":"R. Ferguson","doi":"10.4324/9781351126663-10","DOIUrl":"https://doi.org/10.4324/9781351126663-10","url":null,"abstract":"Legal critics have long noted that trials are narratives that arbitrate between conflicting stories about a controversial event and that, consequently, the legal process often takes on a larger cultural meaning through the idea of story. But acknowledgment, as such, does not imply an effective analytical understanding of the connection, and it has not led to a perception of the way in which legal stories become cultural narratives. We can only tell the stories we know how to tell, and the degree of our understanding-our appreciation-depends on issues of narrative and genre often present but usually missed in studies of the legal process. Famous trials, trials that capture the imagination of a community, are particularly useful for observing the nature of legal-literary-cultural connections and dependencies. This essay uses one such trial, that of John Brown in 1859, to suggest that a better understanding of the way trial narratives and larger communal perceptions intersect is important to legal studies. At issue is a much closer analysis of cultural context than many legal critics are willing to undertake. For example, Ralph Waldo Emerson said of John Brown, on the second day of Brown's trial, \"he is a hero of romance & seems to have made this fatal blunder only to bring out his virtues.\"' Emerson's words are still familiar, but we no longer quite comprehend what they meant at the time. Americans of later generations have accepted Emerson's appraisal, but without an informed sense of the cultural assumptions at work in his language. Recovering the cultural context of a major trial, particularly one generating as many narratives as the trial of John Brown, is no easy matter. There is, however, a reward for perseverance. Since trials involve the transcription of everything that is said in a courtroom they","PeriodicalId":90770,"journal":{"name":"Yale journal of law & the humanities","volume":"6 1","pages":"3"},"PeriodicalIF":0.0,"publicationDate":"1994-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70461651","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1993-01-01DOI: 10.4324/9780203060827-12
E. Cohen
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[I]t is naive to suppose that the [Supreme] Court's present difficulties could be cured by appointing Justices determined to give the Constitution "its true meaning," to work at "finding the law" instead of reforming society. The possibility implied by these comforting phrases does not exist. . . . History can be of considerable help, but it tells us much too little about the specific intentions of the men who framed, adopted and ratified the great clauses. The record is incomplete, the men involved often had vague or even conflicting intentions, and no one foresaw, or could have foreseen, the disputes that changing social conditions and outlooks would bring before the Court. Robert Bork 1
{"title":"A Process of Denial: Bork and Post-Modern Conservatism","authors":"J. Boyle","doi":"10.2139/SSRN.3084934","DOIUrl":"https://doi.org/10.2139/SSRN.3084934","url":null,"abstract":"[I]t is naive to suppose that the [Supreme] Court's present difficulties could be cured by appointing Justices determined to give the Constitution \"its true meaning,\" to work at \"finding the law\" instead of reforming society. The possibility implied by these comforting phrases does not exist. . . . History can be of considerable help, but it tells us much too little about the specific intentions of the men who framed, adopted and ratified the great clauses. The record is incomplete, the men involved often had vague or even conflicting intentions, and no one foresaw, or could have foreseen, the disputes that changing social conditions and outlooks would bring before the Court. Robert Bork 1","PeriodicalId":90770,"journal":{"name":"Yale journal of law & the humanities","volume":"3 1","pages":"263-314"},"PeriodicalIF":0.0,"publicationDate":"1991-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68552466","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1990-01-01DOI: 10.4324/9781315259604-12
Austin D. Sarat
"For me the law is all over. I am caught, you know; there is always some rule that I'm supposed to follow, some rule I don't even know about that they say. It's just different and you can't really understand." These words were spoken by Spencer, a thirty-five-year-old man on public assistance (general relief), whom I first encountered in the waiting room of a legal services office. I introduced myself and told him that I was interested in talking to him about law and finding out why he was using legal services; I asked if he would be willing to talk with me and allow me to be present when he met with his lawyer. While he seemed, at first, both puzzled and amused that I had, as he put it, "nothing more important to do," he agreed to both of my requests. As my research unfolded, what Spencer said in our first conversation, .. the law is all over," served as a reference point for understanding the meaning and significance of law in the lives of the welfare poor. His words helped me interpret how people on welfare think about law and use legal ideas as well as how they respond to problems with the welfare bureaucracy. In this paper I present that interpretation and describe what I call the legal consciousness of the welfare poor.' I suggest that the legal
{"title":"\".. The Law Is All Over\": Power, Resistance and the Legal Consciousness of the Welfare Poor","authors":"Austin D. Sarat","doi":"10.4324/9781315259604-12","DOIUrl":"https://doi.org/10.4324/9781315259604-12","url":null,"abstract":"\"For me the law is all over. I am caught, you know; there is always some rule that I'm supposed to follow, some rule I don't even know about that they say. It's just different and you can't really understand.\" These words were spoken by Spencer, a thirty-five-year-old man on public assistance (general relief), whom I first encountered in the waiting room of a legal services office. I introduced myself and told him that I was interested in talking to him about law and finding out why he was using legal services; I asked if he would be willing to talk with me and allow me to be present when he met with his lawyer. While he seemed, at first, both puzzled and amused that I had, as he put it, \"nothing more important to do,\" he agreed to both of my requests. As my research unfolded, what Spencer said in our first conversation, .. the law is all over,\" served as a reference point for understanding the meaning and significance of law in the lives of the welfare poor. His words helped me interpret how people on welfare think about law and use legal ideas as well as how they respond to problems with the welfare bureaucracy. In this paper I present that interpretation and describe what I call the legal consciousness of the welfare poor.' I suggest that the legal","PeriodicalId":90770,"journal":{"name":"Yale journal of law & the humanities","volume":"2 1","pages":"6"},"PeriodicalIF":0.0,"publicationDate":"1990-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70643648","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
their homes. Both plaintiffs and defendants were interviewed. I conducted about 50 interviews and several research assistants did the rest. In addition, I spent hundreds of hours observing court proceedings including hearings in front of clerk-magistrates, talking informally to court personnel, mediators, and mediation program staff, and doing general historical and ethnographic work on the towns. Susan Silbey also did extensive ethnographic work in observing court proceedings and interviewing court personnel. Fifth, we did an ethnographic study of three small neighborhoods where interpersonal conflicts occurred fairly often. This included a survey of 93 residents of these neighborhoods about how often they had the kinds of problems we saw in mediation and what they did about them. The survey was part of a more intensive ethnographic study which included long conversations with several of the residents of these neighborhoods. I did the general ethnographic interviewing and background work in these neighborhoods and several neighborhood residents and students did the survey interviewing. In order to compare these working-class and lower-middle-class neighborhoods with an upper-middle-class neighborhood, in the summer of 1985 I did a similar survey and ethnographic study of an affluent suburban neighborhood. A student did the survey, while I again did more general ethnographic work on the neighborhood. See Merry, Crowd-ing, Conflict, and Neighborhood Regulation, in Neighborhood and Community Environments 35 (1. Altman & A. Wandersman ed. 1987).
他们的家园。原告和被告都接受了面谈。我进行了大约50次采访，剩下的工作由几位研究助理完成。此外，我花了数百个小时观察法庭程序，包括在地方法官面前的听证会，与法庭人员、调解员和调解项目工作人员进行非正式交谈，并对城镇进行一般的历史和人种学研究。苏珊·西尔贝在观察法庭程序和采访法庭人员方面也做了大量的民族志工作。第五，我们对三个经常发生人际冲突的小社区进行了人种学研究。其中包括对这些社区的93名居民的调查关于他们出现我们在调解中看到的问题的频率以及他们是如何解决这些问题的。这项调查是一项更深入的民族志研究的一部分，其中包括与这些社区的几位居民进行长时间的交谈。我在这些社区做了一般的人种学访谈和背景调查，一些社区居民和学生做了调查访谈。为了将这些工薪阶层和中下层社区与中上层社区进行比较，1985年夏天，我对一个富裕的郊区社区进行了类似的调查和人种学研究。一个学生做了调查，而我又做了更多关于社区的一般人种学研究。参见《邻里和社区环境中的快乐、拥挤、冲突和邻里监管》35(1)。Altman & A. Wandersman主编，1987)。
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