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Articles 1 - 18 of 18
Full-Text Articles in Law
Surveying Recent Scholarship On Fair Use: A Conversation, Jessica M. Silbey
Surveying Recent Scholarship On Fair Use: A Conversation, Jessica M. Silbey
Jessica Silbey
A conversation about recent books discussing copyright fair use with Rebecca Tushnet, Peter Decherney and Bill Herman.
Persuasive Visions: Film And Memory, Jessica M. Silbey
Persuasive Visions: Film And Memory, Jessica M. Silbey
Jessica Silbey
This commentary takes a new look at law and film studies through the lens of film as memory. Instead of describing film as evidence and foreordaining its role in truth-seeking processes, it thinks instead of film as individual, institutional and cultural memory, placing it squarely within the realm of contestability. Paralleling film genres, the commentary imagines four forms of memory that film could embody: memorabilia (cinema verite), memoirs (autobiographical and biographical film), ceremonial memorials (narrative film monuments of a life, person or institution), and mythic memory (dramatic fictional film). Imagining film as memory resituates film’s role in law (procedural, substantive …
Images In/Of Law, Jessica M. Silbey
Images In/Of Law, Jessica M. Silbey
Jessica Silbey
The proliferation of images in and of law lends itself to surprisingly complex problems of epistemology and power. Understanding through images is innate; most of us easily understand images without thinking. But arriving at mutually agreeable understandings of images is also difficult. Translating images into shared words leads to multiple problems inherent in translation and that pose problems for justice. Despite our saturated imagistic culture, we have not established methods to pursue that translation process with confidence. This article explains how images are intuitively understood and yet collectively inscrutable, posing unique problems for resolving legal conflicts that demand common and …
Harvesting Intellectual Property: "Inspired Beginnings" And "Work Makes Work," Two Stages In The Creative Processes Of Artists And Innovators, Jessica M. Silbey
Harvesting Intellectual Property: "Inspired Beginnings" And "Work Makes Work," Two Stages In The Creative Processes Of Artists And Innovators, Jessica M. Silbey
Jessica Silbey
This Article is part of a larger empirical study based on face-to-face interviews with artists, scientists, engineers, their lawyers, agents, and business partners. The book-length project involves the collecting and analysis of stories from artists, scientists, and engineers about how and why they create and innovate. It also collects stories from their employers, business partners, managers, and lawyers about their role in facilitating the process of creating and innovating. The book’s aim is to make sense of the intersection between intellectual property law and creative and innovative activity, specifically to discern how intellectual property intervenes in the careers of the …
Language And Culture In Intellectual Property Law: A Book Review (Reviewing Jessica Reymann's "The Rhetoric Of Intellectual Property: Copyright And The Regulation Of Digital Culture), Jessica M. Silbey
Jessica Silbey
Jessica Reyman’s THE RHETORIC OF INTELLECTUAL PROPERTY: COPYRIGHT LAW AND THE REGULATION OF DIGITAL CULTURE is a book whose time has come. As a book about the rhetorical divide between the content industry and copyright activists, it analyzes the deep rifts between the language of incentives and exclusivity and the counterdiscourse of cooperation and the commons. And as a piece about the upheaval in the socio-legal landscape of intellectual property rights, it is in good company. There are multitudes of recent books and articles that seek a solution to the divide that animates disputes about owners and users (many of …
Reasoning From Literature, Jessica M. Silbey
Reasoning From Literature, Jessica M. Silbey
Jessica Silbey
The “literary turn” in legal studies manifests in many ways in our legal discipline and practice. Be it with the birth of the study of law and literature in the 1980s, the growing attention to narrative theory and storytelling in the law in the 1990s, or the “cultural turn” in legal studies in the 21st century (as some scholars have called the cultural analysis of law), reasoning from literature seems commonplace. And yet it is still marginalized in legal studies as interdisciplinary, not “really law,” and lacking the core persuasive power that legal argumentation and doctrinal analysis do. This Symposium …
Evidence Verite And The Law Of Film, Jessica M. Silbey
Evidence Verite And The Law Of Film, Jessica M. Silbey
Jessica Silbey
This paper explores a puzzle concerning the authority of certain images that increasingly find themselves at the center of legal disputes: surveillance or “real time” film images that purport to capture an event about which there is a dispute. Increasingly, this kind of “evidence verité” is used in United States courts of law as the best evidence of what happened. Film footage of arrests, criminal confessions, photographs of crime scenes (during and after) is routinely admitted into court as evidence. It tends to overwhelm all other evidence (e.g., testimonial or documentary) and be immune to critical analysis. Why would this …
Comparative Tales Of Origins And Access: Intellectual Property And The Rhetoric Of Social Change, Jessica M. Silbey
Comparative Tales Of Origins And Access: Intellectual Property And The Rhetoric Of Social Change, Jessica M. Silbey
Jessica Silbey
This Article argues that the open-source and antiexpansionist rhetoric of current intellectual-property debates is a revolution of surface rhetoric but not of deep structure. What this Article terms “the Access Movements” are, by now, well-known communities devoted to providing more access to intellectual-property-protected goods, communities such as the Open Source Initiative and Access to Knowledge. This Article engages Movement actors in their critique of the balance struck by recent law (statutes and cases) and asks whether new laws that further restrict access to intellectual property “promote the progress of science and the useful arts.” Relying on cases, statutes and recent …
Cross-Examining Film, Jessica M. Silbey
Cross-Examining Film, Jessica M. Silbey
Jessica Silbey
The Supreme Court decision in Scott v. Harris holds that a Georgia police officer did not violate a fleeing suspect's Fourth Amendment rights when he caused the suspect's car to crash. The court's decision relies almost entirely on the filmed version of the high-speed police chase taken from a “dash-cam,” a video camera mounted on the dashboard of the pursuing police cruiser. The Supreme Court said that in light of the contrary stories told by the opposing parties to the lawsuit, the only story to be believed was that told by the video. In Scott v. Harris, the court fell …
A Witness To Justice, Jessica M. Silbey
A Witness To Justice, Jessica M. Silbey
Jessica Silbey
In the 1988 film The Accused, a young woman named Sarah Tobias is gang raped on a pinball machine by three men while a crowded bar watches. The rapists cut a deal with the prosecutor. Sarah's outrage at the deal convinces the assistant district attorney to prosecute members of the crowd that cheered on and encouraged the rape. This film shows how Sarah Tobias, a woman with little means and less experience, intuits that according to the law rape victims are incredible witnesses to their own victimization. The film goes on to critique what the "right" kind of witness would …
Mythical Beginnings Of Intellectual Property, Jessica M. Silbey
Mythical Beginnings Of Intellectual Property, Jessica M. Silbey
Jessica Silbey
It has become commonplace to justify intellectual property protection with homage to utilitarianism (maximizing the incentive to create, invent or produce quality goods) or natural rights (people should own the product of their creative, inventive or commercial labor). Despite the on-going dominance of these theories, there remains a dissatisfying lack of a comprehensive explanation for the value of intellectual property protection. This is in part because the economic analysis of law tends to undervalue the humanistic element of intellectual property. This Article aims to fill that void. It offers a new explanation for intellectual property rooted in narrative theory. Whereas …
Truth Tales And Trial Films, Jessica M. Silbey
Truth Tales And Trial Films, Jessica M. Silbey
Jessica Silbey
Investigations into law and popular culture preoccupy themselves with understanding how law and popular cultural forms work together to challenge or sustain community structures, identity and power. It is inevitable at this point in our cultural history that law and popular culture are intertwined.2 There are too many television shows, films, popular novels and web-based entertainment to withdraw “the law” (whatever that is) from the domain of popular culture. This article takes as a given the intermixing of law and popular culture, embracing it as a new feature of our popular legal consciousness. I suggest that one result of this …
A History Of Representations Of Justice: Coincident Preoccupations Of Law And Film, Jessica M. Silbey
A History Of Representations Of Justice: Coincident Preoccupations Of Law And Film, Jessica M. Silbey
Jessica Silbey
The American trial and the art of cinema share certain epistemological tendencies. Both stake claims to an authoritative form of knowledge based on the indubitable quality of observable phenomena. Both are preoccupied (sometimes to the point of self-defeat) with sustaining the authority that underlies the knowledge produced by visual perception. The American trial and art of cinema also increasingly share cultural space. Although the trial film (otherwise known as the courtroom drama) is as old as the medium of film the recent spate of popular trial films, be they fictional such as Runaway Jury or documentary such as Capturing the …
Criminal Performances: Film, Autobiography, And Confession, Jessica M. Silbey
Criminal Performances: Film, Autobiography, And Confession, Jessica M. Silbey
Jessica Silbey
This article questions the criminal justice emphasis on filmed confession as the superlative evidentiary proffer that promotes accuracy and minimizes unconstitutional coercion by comparing filmed confessions to autobiographical film. It suggests that analyzing filmed confessions as a kind of autobiographical film exposes helpful tensions between the law’s reliance on confession as revealing the inner self and the literary and filmic conception of confession as constituting one self among many. Through a close examination of several filmed confessions along side an examination of the history of autobiographical writing and film, this article shows how filmed confessions do not reveal the truthfulness …
Videotaped Confessions And The Genre Of Documentary, Jessica M. Silbey
Videotaped Confessions And The Genre Of Documentary, Jessica M. Silbey
Jessica Silbey
No abstract provided.
Filmmaking In The Precinct House And The Genre Of Documentary Film, Jessica M. Silbey
Filmmaking In The Precinct House And The Genre Of Documentary Film, Jessica M. Silbey
Jessica Silbey
This Article explores side-by-side two contemporary and related film trends: the recent popular enthusiasm over the previously arty documentary film and the mandatory filming of custodial interrogations and confessions. The history and criticism of documentary film, indeed contemporary movie-going, understands the documentary genre as political and social advocacy (recent examples are Michael Moore’s Farenheit 9/11 and Errol Morris’s Fog of War). Judges, advocates, and legislatures, however, view films of custodial interrogations and confessions those that reveals a truth and lacks a distorting point of view. As this Article will explain, the trend at law, although aimed at furthering venerable criminal …
Judges As Film Critics: New Approaches To Filmic Evidence, Jessica M. Silbey
Judges As Film Critics: New Approaches To Filmic Evidence, Jessica M. Silbey
Jessica Silbey
This Article exposes internal contradictions in case law concerning the use and admissibility of film as evidence. Based on a review of more than ninety state and federal cases dating from 1923 to the present, the Article explains how the source of these contradictions is the frequent miscategorization of film as "demonstrative evidence" that purports to illustrate other evidence, rather than to be directly probative of some fact at issue. The Article further demonstrates how these contradictions are based on two venerable jurisprudential anxieties. One is the concern about the growing trend toward replacing the traditional testimony of live witnesses …
What We Do When We Do Law And Popular Culture, Jessica M. Silbey
What We Do When We Do Law And Popular Culture, Jessica M. Silbey
Jessica Silbey
No abstract provided.