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LEGAL EDUCATION FOR THE 21ST CENTURY, pp. 177-185 Donald B. King, editor Littleton, Co., Fred B. Rothman Co., 1999 Updated April 2000 reprinted by permission of the author Francis M. Nevins Professor of Law St. Louis University In every course we teach, the casebook is an anthology and every case or problem in it is a story. When we and our students tease out the meanings and implications of these stories, we are doing something quite similar to what professors of literature do with the novels and stories and plays they discuss with their students. Every essay examination question we write is a species of story. Every hypothetical we propound in class is a skit, another species of story. Whether we are conscious of it or not, we are using these forms of fiction as classroom tools every working day of our lives. Indeed part of what makes law teaching enjoyable, at least to me, is precisely that it can be done through stories, both those I or another professor have made up and those that really happened. And if we use stories well, classsroom hours become enjoyable to our students too. Devising little skits or dramas can add life and zest even to courses that have the reputation of being dull and dreary. The course in Estates and Administration, which I offer once and frequently twice a year, is not required for graduation at this law school but is well known to be necessary for the bar examination so almost everyone takes it. Many students have told me that they went into that course expecting to be bored silly but were pleasantly surprised by how interesting it turned out. One reason why, I believe, is because the subject matter permits me to use various forms of fiction with great freedom. If Shakespeare was right when he said that cowards die many times before their deaths, then I must be the ignoblest coward of them all, having died thousands of times in class as I play the role of testator in the little dramas I've devised. I've married my students, had children with them, divorced them, married them to each other, killed them off. Usually I cast the students in the front rows as the other main actors in these little dramas. Thanks to this form of fiction, much of the law of wills, trusts and estates can be made more vivid and involving not only for my students but for me as well. The same tools can be used with equal effect in all sorts of other courses, for example Copyright Law. In the mid-1960s when I was a law student at NYU, I had so little sense of the shape of my own future that not only did I fail to take the course on copyright, I never even met the professor who taught it, Walter Derenberg, one of the superstars of the field. By the time I came to St. Louis University and became a law professor myself, I had begun to sell some fiction of my own and had had to learn some copyright law in self-defense. Since there was no course on copyright in the curriculum here, I created one. Almost a quarter century later I am still the only person ever to have taught that subject here. The size of the class tends to range between 35 and 50 each year, an amazing feat considering how little copyright law is practiced in St. Louis. Maybe these figures are a function of the unusual approach I employ. In the course on copyright law I can make use of the same forms of fiction that serve the course in wills, trusts and estates, but I can and indeed must also use fiction in other and more fundamental ways, simply because so much of the subject matter of copyright law deals with creative work. Not only do I have the pleasure all copyright professors share---that of talking about Hemingway,1 Saroyan,2 Salinger,3 Hitchcock,4 Bartok,5 Shostakovich6 and countless other masters---but, since I happen to have written a bit of fiction myself, I can indulge in the unique pleasure of using my own output in my little skits and dramas. What a hoot to toss out a hypothetical about Steven Spielberg wanting to buy the movie rights in one of my novels! When we discuss the radically different regimes under the present Copyright Act of 1976 and the previous 1909 act that continues in large measure to govern all work that predates 1978, I don't need to invent a hypothetical novel or borrow one from Hemingway or Faulkner and draw a timeline of its copyright life on the chalkboard. As luck would have it, my own first novel, Publish and Perish, came out in 1975, when the l909 Act was the only copyright regime we had. I can hold up a copy of that book and we can discuss such questions as the duration of copyright protection it enjoyed under the 1909 Act, the changes in duration after the enactment of the 1976 statute, the need to renew the copyright in that book in its 28th year of copyright life, the 1992 statutory amendment that eliminated the need for formal renewal, and many more. If the spirit moves me I might even display the back of the dust jacket with its photograph of the handsome young author and make some aptly rueful remark about the aging process. Then I can hold up a copy of my second novel, Corrupt and Ensnare, which as luck would have it came out in 1978, soon after the effective date of the present statute, and our discussion of the differences in the legal regime governing this title as opposed to my first novel takes on---I hope!---a special vividness. When the subject shifts to collective works I can bring in an old issue of Ellery Queen's Mystery Magazine with a story of mine in it and, with luck, impart the same vividness to the analysis of what rights in that story are owned by the magazine publisher and what rights by me. When anthologies come under consideration, I can hold up a copy of one of the twenty-odd I've edited and expound with great specificity on what rights I as editor own and what rights remain the property of the author or authors of the stories I brought together. At the point where the Supreme Court's landmark decison in the Feist case7 comes up, I can hold up some compilations of raw data I've prepared for various books, such as the comprehensive checklist which concludes my biographical-critical book Cornell Woolrich: First You Dream, Then You Die (1988)---a checklist which arranges all of Woolrich's more than 200 magazine stories alphabetically by the titles of the magazines in which he appeared and, within each magazine listing, chronologically in order of publication---and ask my students whether after Feist that checklist enjoys any copyright protection. Is it any wonder that I enjoy teaching this course more than any other? I have also devised a unique way of using fiction and film in a copyright course which may be worth a few minutes' discussion. One of the biggest challenges in this course is teaching the concept of substantial similarity. How should students be exposed to the analytic problems and techniques involved where the court has to decide whether the defendant's work is so similar to the plaintiff's work as to constitute copyright infringement? The traditional approach is simply to assign various judicial opinions that contain long-winded comparative plot summaries of the contending works---works which of course the students haven't read.8 I have never considered that a helpful way to teach substantial similarity. But what are the alternatives? It would be unwieldy to the point of absurdity for a professor to make students read a complete novel, and then run in class a full-length movie which arguably infringes the novel, and expect the students to take detailed notes over a two-hour period while keeping in their minds everything that transpired in the novel. But suppose there were a story, only ten or twelve pages long, and a movie about fifteen minutes long which was both similar to and different from the story in enough respects so that reasonable minds would differ as to whether they were substantially similar? About fifteen years ago I stumbled upon just the right combo. The story was "The Services of an Expert" by Harry Stephen Keeler (1890-1967), one of the truly inspired nuts of American literature.9 The movie was Smooth Fingers (1949), one of the first films ever made exclusively for TV. Keeler apparently never heard of this little picture but many years ago I came upon a 16mm print of it and, in a rare thunderclap of insight, recognized at once that chance had put in my hands a matched pair that solved my problem perfectly. Everyone reads the ten-page story beforehand and takes detailed notes, the 15-minute film is run in class the following week, and ample time remains for a good long discussion of whether they are substantially similar. At the end of the exercise I poll the class, asking how many would have found for Keeler if they were on the jury and how many for the makers of Smooth Fingers. That the result of the show of hands is different each year demonstrates to me that my approach works. Several other law schools are now using the same story and film in the same way I do. In two of the seminars I offer on a regular basis, fiction and film literally constitute the subject matter. One of these is a seminar on Law and Literature of the sort that many law schools offer. The first thing I tell students who express interest in this seminar is that it's not a substitute for a college literature course, that it's appropriate only for students who already have some reasonable familiarity with at least a respectable number of the works we are going to study. I go out of my way to make this point because many of the great works of literature that deal with legal themes are not concerned with those themes in any central sense. In my seminar we isolate the legal themes in those works and concentrate on them predominantly even if, as in Dostoevsky's The Brothers Karamazov, the law element is less than central.10 Because I happen to have spent some time studying Greek drama when I was young, my seminar begins with Aeschylus and the Orestes trilogy---Agamemnon, The Libation Bearers, and The Furies---which collectively constitutes the most powerful pro-law fiction ever written.11 Then we move to Sophocles and the Antigone, and then to the two great legal plays of Shakespeare, The Merchant of Venice and Measure for Measure. The novels of Dickens are too long to cover fully in my seminar but we spend some time on the law-related chapters of The Pickwick Papers and Bleak House. Then we read The Brothers Karamazov, and Melville's Billy Budd, and Kafka's The Trial and "In the Penal Colony," and Richard Wright's Native Son, and Camus' The Stranger. I usually stop there, roughly fifty years from the present. The works I choose for this seminar are traditional and not in the least innovative but others who offer the same seminar tend to be more daring in their choices.12 Law and Literature satisfies not only our seminar requirement but also our rule that each student must complete a course or seminar of a humanistic nature. I can't claim that it contributes directly to making my students more competent lawyers but I continue to hope that it helps make their lawyering more human. During the late 1970s I also created out of whole cloth a new seminar in which fiction and film penetrate the law school curriculum. Its nickname is Law and Film, its full title is Law, Lawyers and Justice in Popular Fiction and Film, and its subject matter, as the complete name indicates, is the treatment of the themes of law, lawyers and justice in the popular fiction and movies of the twentieth century. We actually begin very late in the nineteenth century, with Justice Holmes' seminal essay "The Path of the Law"13 and "The Corpus Delicti," a story by Melville Davisson Post (1869-1930) that came out almost simultaneously with the publication of Holmes' essay. These two works are another matched pair, dealing with the lawyer as servant of what Holmes called "the bad man." Post's story, now a century old but still reprinted regularly,14 is about a lawyer named Randolph Mason whose client has a problem. He's about to marry a beautiful New York socialite but his blackmailing former mistress is threatening to go public and stop the wedding. Mason's advice: "This growth must be cut out at the roots." Not to mince words, he advises his client how he can kill this woman and, if he happens to be caught, admit the murder in open court and still walk away free as a bird. The client does happen to be caught but Mason's defense forces the judge to direct a verdict of not guilty. End of story. Is it any wonder that even today Post remains a key figure in law-related fiction? He was our first important author of tales about law and lawyers in this century, and in my seminar we read several more besides this early classic and, if I may throw in a plug for my own article on Post, trace his evolution "from Darwinian to Biblical lawyering."15 Around 1920 Post was displaced as our premier lawyer author by Arthur Train (1875-1945), creator of the immortal Mr. Tutt, whose eighty-odd adventures in jurisprudence ran regularly in the Saturday Evening Post from 1919 until Train's death. Most of the later tales in the Mr. Tutt series are formulaic and not worth reviving but about twenty of the earlier ones remain extremely interesting today,16 and we read five in my seminar. In the early 1930s, around the time Train's stories became routine, his role as America's lawyer storyteller was taken over by Erle Stanley Gardner (1889-l970), the creator of Perry Mason. From the perspective of my seminar the meatiest Perry Mason novels are the earliest, published between 1933 and 1936, when Mason functions not as we remember him from Raymond Burr's portrayal in the much later TV series, as a ponderous bureaucrat mindful of the law's niceties, but rather as a tiger in the social Darwinian jungle.17 Among the other works we read are William Faulkner's "Smoke" and "Tomorrow,"18 Louis Auchincloss' "Power in Trust" and "The Tender Offer," two grandly cynical stories by Lawrence Block, and a pair of novellas by lawyer-science fiction writer Charles L. Harness.19 We also, of course, watch law-related movies. Most of what we see in class comes from one of the three golden ages of American films dealing with the themes of law, lawyers and justice. From the first of these golden ages, the 1930s, the most important film to my way of thinking is Counsellor at Law (1933), directed by William Wyler, from a script by attorney Elmer Rice based on his hit 1931 stage play of the same name, and starring John Barrymore as a manic-depressive workaholic lawyer driven to near suicide by several personal and professional crises erupting at the same time. This film takes place entirely in a lavish Art Deco suite of law offices in a New York skyscraper, with not a moment of courtroom action, so that we don't have to endure the nonsensical trial sequences which make so many law films of the Thirties---and later decades too---laughable to viewers who are attorneys. The second golden age of movies relevant to my seminar roughly coincides with the peak years of the Warren Court and gave birth to such classics as 12 Angry Men, Anatomy of a Murder, To Kill a Mockingbird and Inherit the Wind,20 not to mention TV series like Perry Mason and The Defenders. Two of the features with which I represent this period --- Hitchcock's The Wrong Man (1957) and the first version of Cape Fear (196l)---go against the idealistic grain of their time. Then to do justice to the Warren Court ethos I run a genuine unsung classic of this period, Man in the Middle (1963), starring Robert Mitchum, the Cape Fear sociopath, as a career military officer with some legal training who's faced with the choice of destroying his career to save, not an innocent black man as in To Kill a Mockingbird, but a white racist maniac (brilliantly portrayed by Keenan Wynn) who clearly is not worth the sacrifice. We are living right now in the third golden age of movies dealing with law, lawyers and justice, the age that has given us Dirty Harry (l971), ....And Justice for All (1979), Breaker Morant (1979), The Star Chamber (1983) and Criminal Law (1989), to name just a handful of recent films whose hallmark is an acid contempt for law, lawyers and the legal system. I represent this period with one of the last films directed by Tony Richardson, a little-known gem called The Penalty Phase (1986), starring Peter Strauss as a liberal trial judge who's about to enter a tough re-election battle and facing the nightmare of having to nullify the conviction of a sociopath who tortured and murdered dozens of teen-age girls because the arresting officers violated his constitutional rights. This film, structured as a duel between the ethos of films like To Kill a Mockingbird and that of our own post-Warren Court anti-Warren Court era, is the perfect vehicle for drawing together the themes I deal with in this seminar. Whenever I want the seminar to end on a lighter note I close with the wildly funny and cynical comedy Trial and Error (1997), with an unsuccessful actor (Michael Richards) making a shambles of the system when he takes over for an inebriated lawyer buddy (Jeff Daniels) and, with forensic skills absorbed from watching Gerry Spence on the tube, defends a con artist (Rip Torn) whose mail-order house sells ordinary Lincoln-head pennies at $17.50 each as bronze busts of Abe. What I hope to have suggested here is that fiction and film are law school tools: in traditional courses like Estates, in more exotic courses like Copyright, in traditional humanistic offerings like Law and Literature, and in eccentric inventions of my own like the seminar on Law and Film. When used properly they can enrich both law students and the law school curriculum. And they can make life more interesting for some of us who are law professors. N.E.2d 250 (1968). 2 . Saroyan v. William Saroyan Foundation, 675 F. Supp. 843 (S.D.N.Y. 1987). 3. Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir. 1987). 4. Stewart v. Abend, 495 U.S. 207 (1990). 5. Bartok v. Boosey & Hawkes, Inc., 523 F.2d 941 (2d Cir. 1975). 6. Shostakovich v. Twentieth Century-Fox Film Corp., 196 Misc. 67, 80 N.Y.S.2d 575 (Sup. Ct. 1948). 7. Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991). 8. See, e.g., Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49 (2d Cir. 1936). 9 . In recent years Keeler has become the subject of a number of first-rate websites. For one of the most elaborate and well-informed, see http://xavier.xu.edu/~polt/keeler.html 10. In The Failure of the Word: The Protagonist as Lawyer in Modern Fiction (1984), Richard H. Weisberg argues that The Brothers Karamazov is centrally about legal themes. For the opposing view, which on this issue is much closer to mine, see Richard Posner, Law and Literature (2d ed. 1998). I organize much of my Law and Literature seminar by pitting Posner's book and Weisberg's two volumes---The Failure of the Word and Poethics and Other Strategies of Law and Literature (1992)---against each other. 11. The most helpful books I have found in teaching Aeschylus and Sophocles are H.D.F. Kitto, Form and Meaning in Drama (1956) and Walter Kaufmann, Tragedy and Philosophy (1968). Neither Posner nor Weisberg discuss all the works covered in my seminar but most are discussed by one or the other if not both. 12. My colleague Henry Ordower, who is an authority on medieval Norse literature, includes material not only from that tradition but from various third world sources in his Law and Literature syllabus, to the exclusion of a number of Western literary classics. 13. 10 HARVARD LAW REVIEW 457 (1897). 14. Its first appearance was in Post's collection The Strange Schemes of Randolph Mason (1896) and its most recent in Elizabeth Villiers Gemmette's anthology Law in Literature: Legal Themes in Short Stories (1992). 15. Francis M. Nevins, "From Darwinian to Biblical Lawyering: The Stories of Melville Davisson Post," 18 LEG. STUD. FORUM 177 (1994). 16. See Francis M. Nevins, "Mr. Tutt's Jurisprudential Journey: The Stories of Arthur Train," 19 LEG. STUD. FORUM 57 (1995). 17. See Francis M. Nevins, "Samurai at Law: The World of Erle Stanley Gardner," 24 LEG. STUD. FORUM 43 (2000). 18. Faulkner had no legal training but was fascinated by law, and his treatment of legal themes is the exclusive subject of a recent book. See JAY WATSON, FORENSIC FICTIONS: THE LAWYER FIGURE IN FAULKNER(1993). 19. For a generous collection of short fiction by this author, including the two novellas used in my seminar, see CHARLES L. HARNESS, AN ORNAMENT TO HIS PROFESSION (1998). 20. For discussion of these and other Warren Court film classics, see THOMAS J. HARRIS, COURTROOM'S FINEST HOUR IN AMERICAN CINEMA (1987). |
