Sunday, June 30, 2013
The traditional tenure article has, at its core, case analysis. But I don’t see that format as a requirement. Here are two articles that I view as excellent tenure pieces. Neither of them is case-oriented. Both are very interesting.
The first is Lisa McElroy’s article,” Cameras at the Supreme Court: A Rhetorical Analysis,” 2012 B.Y.U. L. Rev. 1837. Here is the abstract:
For many years, the Supreme Court has resisted cameras in its marble palace, the temple on the hill. In studying the reasons that the Justices give for refusing cameras at the Supreme Court, it becomes apparent that their resistance is more about maintaining mystique than about defensible concerns, such as security or legitimacy. In fact, cameras at the Supreme Court would help to alter Americans’ perceptions of the institution as a removed sort of aristocracy to a view of the Court as an integral part of democracy. Privacy and secrecy do not preserve public confidence in the Court, but may actually diminish it. The public’s interest in seeing its government at work outweighs any interests the Justices may have in preserving the Court’s mystique.
This article conducts a rhetorical analysis of the Court’s story of majesty and disengagement from the public – one similar to that of the Oracle at Delphi – and suggests how cameras would transform that story to one in which the Justices are human and fallible but committed to the rule of law as a cornerstone of a constitutional democracy.
The second is Cathren Koehlert-Page’s article, “Like a Glass Slipper on a Stepsister: How the One Ring Rules Them All at Trial,” 91 Nebraska L. Rev. 600 (2013). Here’s the abstract:
When a child first hears “glass slipper,” she makes subconscious assumptions. Glass being sparkling conveys beauty. Being fragile it must be dainty, like Cinderella herself. To dance in these fragile slippers, Cinderella must have grace. But dancing for hours in the slippers must be painful. This notion plants a seed of overlooking pain to attain beauty.
Sigmund Freud and Carl Jung both described the manner in which we think in symbols. In today's research Daniel Kahneman illustrates in Thinking Fast and Slow that we all think in symbols and make subconscious assumptions.
Thus symbols and objects make their way into our stories. In literature, one such object is the endowed object, a material object that reverberates with symbolic significance throughout the story. Items such as the glass slipper, the one ring, and the holy grail convey theme, emotion, and character, and even create structural beats.
These objects weave their way into trial narratives as well. Examples include the leather glove from the O.J. Simpson case and Monica Lewinsky’s blue dress.
Trial and appellate attorneys can use the literary concept of endowed objects to identify a key piece of physical evidence that weaves a thread of narrative continuity through the case and resonates in the mind of the judge or juror.
My article presents the literary concept of endowed objects, provides examples from literature and from trials, discusses how attorneys can identify and use evidence to create an endowed object, and explores evidentiary and ethical limitations regarding these objects. I examine endowed objects and other symbols in fiction works such as Coretta Scott King Honor Book, Like Sisters on the Homefront, The Hunger Games, 1984, Anna Karenina, Lord of the Rings, The Natural, and Every Time a Rainbow Dies. I also examine the role such objects played in the trials of Lincoln assassination conspirator, Dr. Samuel Mudd, Timothy McVeigh, Orenthal (O.J.) Simpson, and John Wayne Gacy.