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May|June 2005
Oh, God By Scott Shapiro and Alison Mackeen
A Vast Right-Wing Conspiracy By Jonathan H. Adler
Elsewhere
License to Wardrive By Brendan I. Koerner

Elsewhere

Satirical legal studies, allegorical legal studies, and the right to destroy your own legal studies. These and other pursuits from the nation's law reviews.


IN DEFENSE OF DESTRUCTION

Ever wonder what happened to that infamous ball that cost the Chicago Cubs the 2003 National League Championship Series? Last winter, Harry Caray's, a sports bar in Chicago, purchased it for $113,824. Then they blew it up. The bar hired a movie special effects expert to wire the ball for maximum explosive effect, and then the bar invited spectators to a ceremony that involved singing "Take Me Out to the Ball Game" and watching the cursed ball be blown to smithereens.

Most Chicagoans were pleased to see the ball meet this fate. Not all, however: Historical preservationists (no doubt White Sox fans) made a bid to stop the proceedings, arguing that the ball had historical value and should be spared. Illinois governor Rod Blagojevich intervened only to affirm that the ball deserved to die by lethal explosion. "I have no intention whatsoever of exercising my right to grant clemency or pardon or reprieve," he said shortly before the ball's demise. "That baseball has got to go."

But the historical preservationists might have had a point, and not just because blowing up the ball failed to prevent another late-season Cub implosion in 2004. No one other than fans of the Florida Marlins, the team that won the '03 series, may feel sympathy for the baseball, but what about another famous Chicago object: the Frank Lloyd Wright-designed Emil Bach house near Lake Michigan? Because it is expensive to maintain and sits on real estate coveted by developers, the house is worth more demolished than standing. Should its owners be allowed to raze it?

The right to destroy is a property right that dates back to Roman law, but it has recently come under attack. Legal academics have published a series of critiques of the right, and in several important cases, courts have found against would-be destroyers. In one case, a Washington, D.C., court refused to grant a demolition permit to the owners of a historic building that had been so badly damaged by a fire that several experts testified it was close to collapse. New laws have been enacted to pre empt destruction. One such law prevents the destruction of important works of art without the artist's consent; another prevents the destruction of presidential papers. In its seventh edition, Black's Law Dictionary removed the right to destroy from the definition of "owner."

University of Chicago law professor Lior Jacob Strahilevitz thinks the right to destroy has been encroached upon too much. In a wide-ranging article, he considers the right to destroy everything from diaries and personal papers (Kafka ordered that all of his manuscripts be burned—they weren't) to frozen embryos and internal organs. Strahilevitz believes that destructive rights should rarely be restricted. He criticizes judges who have overruled will provisions requesting the demolition of a family estate or a burial with family jewels. He asserts that by trying to balance the rights of the greedy living against those of the eccentric dead, the courts have overstepped their bounds.

Disappointingly, the article ends its smart analysis with a ridiculous policy suggestion: Property owners should be required to offer for auction any property they'd like to destroy, just to be sure that there's no one who values the property more in one piece than the current owner values its destruction. In the general spirit of Strahilevitz's article, Elsewhere shredded this section of its copy of the article. Yale Law Journal, Volume 114, Number 4

GOING GRATIS

In November 2003, University of Pennsylvania professor Dan Hunter received an e-mail that touched a nerve. The editor of the California Law Review had written to inform him that she had asked the free online database of the Social Sciences and Research Network, or SSRN, to remove his copyrighted California Law Review articles from the site. Hunter was so incensed that he sent a lengthy letter back explaining his opposition to the law review's request, initiated a survey of law reviews to see if their policies were the same, and wrote a 34-page essay (recently published in the Washington and Lee Law Review), summarizing those findings and decrying the copyright-protective tendencies of law reviews.

Part personal essay and part empirical study, "Walled Gardens" makes a vigorous case for the benefits of databases like SSRN, which Hunter claims democratize access to the latest thinking in legal scholarship. Law reviews tend to protect against such free publishing because their revenues are partially derived from contracts with paid databases like Lexis and Westlaw. Hunter's objection to these arrangements is that they make it more difficult for readers outside the legal academy to access legal scholarship. Whether there's a substantial subset of the American public dying to get its hands on this literature—or perusing SSRN, for that matter—is a question Hunter doesn't address in much detail.

Still, the response to at least one recent article supports Hunter's position. Much to the surprise of the Stanford Law Review, a recent article criticizing affirmative action in law school admissions set off a firestorm that led to a flurry of inquiries on the review's website, special requests for reprints of the volume, and mentions in Newsweek, the Weekly Standard, and The New York Times, and on National Public Radio and CNN. In a move Hunter surely approved of, the Stanford Law Review made the article available for free on its website.

But the Stanford article is the exception that proves the rule. Although, as Hunter writes, "law is a discipline that directly affects the structure of our society," the general public doesn't seem to have a passion for delving into law reviews (the subscription bases for most law reviews are measured in three figures). Perhaps what America needs is a general-interest legal magazine that would publish a concise, readable, even witty digest of what's going on in the legal literature. Now that's an idea. Washington and Lee Law Review, Volume 62, Number 2

MAKING LIGHT OF THE LAW

The Lizard, a short-lived journal launched in the 1980s, accomplished a rare feat: It published commentary on legal scholarship that was insightful, sharp, and funny. It included an advice column penned by "Ann Slanders," essays on why law conferences are boring, and a confession by a famous law professor that he was a bad teacher.

Peter Goodrich is not surprised the Lizard's lifespan was short. Such satire, he writes in the Michigan Law Review, "requires a sense of humor and that is rare among lawyers." His article, "Satirical Legal Studies: From the Legists to the Lizard", is an ambitious attempt to digest the entire history of legal satire, from the ancient Greeks' writings (in Aristophanes, a group of women get the legislature to do what they want by withholding sex) on up to "Man, His Dog, and Birth Control," a recent law review article on canine contraception. Legal satire, as Goodrich defines it, is the "humorous pillorying of the pretensions of law and lawyers." He also specifies that it must be written by a lawyer. Richard Posner's recent skewering of academics who shamelessly seek status qualifies; so does the (apparently voluminous) legal scholarship about Buffy the Vampire Slayer.

Though by his own definition satire is humorous pillorying, Goodrich admits about 100 pages into his article that "I have left discussion of humor until rather late." Rather, Goodrich's earnest and exhaustive cite-checking may make him the foremost scholar of Satirical Legal Studies, but, aside from the occasional lame quip—note to Goodrich and to MasterCard: the "priceless" ad campaign is so tired that, at this point, it's not even funny to make fun of it—his work suffers from many of the flaws of the "serio-legal criticism" that the pieces he catalogues labor to expose. It's a shame that Goodrich has taken his satire so seriously. Michigan Law Review, Volume 103, Number 3

DON'T PRINT THE LEGEND

File Matthew L. M. Fletcher's forthcoming article under Allegorical Legal Studies. In "The Legal Fiction of Lake Matchimanitou Indian School," Fletcher spins the following tale: Native Americans found an elite private school in Northern Michigan that becomes the envy of local white students. In the spirit of fairness, the school decides to allow a few white students to enroll, and before long, the white students give their Indian classmates lethal cases of the measles, the school is taken over by a white principal, and the remaining minority of Indian students is forced to take classes in the shabby industrial wing of the school.

What we have here, as Fletcher hastens to explain in his introduction, is an "allegory of the conquest of the Western Hemisphere by Euro-Americans." As his title suggests, however, this is fiction, and Fletcher permits himself a happy ending. A new headmaster, appointed by whites, turns out to be an important ally of the Indians. A state charter permits them to reclaim access to all the school's classrooms. In the end, the Indians win back what they had lost, and they are wiser for the struggle.

The allegory transforms what would be a tired, preachy historical retread into a readable narrative. But when Fletcher moves from the past into the future, the allegorical mode stops making much sense. Allegory may have worked well for George Orwell, but it ultimately fails Fletcher, because it's a clumsy way to present a policy prescription. It's not clear whether Fletcher thought allegory was the best way of getting his point across, or just the best way of getting his piece noticed by a law review. American University Journal of Gender, Social Policy & the Law, Volume 13, Number 3

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