This paper considers the adoption ofPortia, the heroine of The Merchant ofVenice, by feminist legal scholars as ametaphor for the woman lawyer. It suggests thatPortia has both captured and is captured by thefeminist legal scholar's imagination, becomingat once an idol, myth and icon. She is to somethe personification of the woman lawyer'sperceived difference, a mouthpiece for mercyand `the different voice' and to others, a shamor myth, her idolised reputation sullied, her`difference' rejected. Yet ultimately thisconstant and simultaneous (...) idolisation andvilification of Portia threatens not only tosilence and constrain conversations about thewoman lawyer, but also to eclipse her promiseand potential. Thus in the final section of thepaper, Portia is established as an icon. Assuch her story, understood as a myth or fairytale, is seen to reveal previously unimaginedpossibilities for change, as an iconicunderstanding of Portia becomes a windowthrough which feminist legal scholars can lookonto alternative understandings of lawyeringand adjudication. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Philosophy and Literature 25.1 (2001) 127-141 [Access article in PDF] Lawyers, Ethics, and To Kill a Mockingbird Tim Dare I Lawyers are widely thought to be callous, self-serving, devious, and indifferent to justice, truth, and the public good. The law profession could do with a hero, and some think Atticus Finch of Harper Lee's To Kill a Mockingbird fits the bill. 1 Claudia Carver, for instance, urging lawyers to (...) adopt Atticus as a role model, writes: "I had lots of heroes when growing up.... Only one remains very much 'alive' for me.... Atticus made me believe in lawyer heroes." 2 Not everyone endorses Atticus's nomination. Most influentially, Monroe Freedman argues that Atticus is hardly admirable since, as a state legislator and community leader in a segregated society, he lives "his own life as the passive participant in that pervasive injustice." 3Although there is plainly disagreement between Freedman and his opponents, there is also an important point of consensus. Both sides to the debate accept that Atticus's suitability as a role model is settled by his character. Freedman argues that Atticus should not be a role model because he is not the admirable figure he is made out to be: appointed counsel to an unpopular defendant, Atticus admits that he had hoped "to get through life without a case of this kind" (p. 98). He excuses the leader of a lynch mob as "basically a good man" who "just has his blind spots along with the rest of us" (p. 173). He sees that "one of these days we're going to pay the bill" for racism, but hopes that payment, and so justice for blacks, will not come during his children's life times (pp. 243-44). 4 On the other hand, a leading Atticus supporter, Thomas Shaffer, argues that Atticus shows us precisely that what matters in professional ethics is character rather than moral principle: [End Page 127] One thing you could say about Atticus is that he had character.... We say that a good person has character, but we do not mean to say only that he believes in discernible moral principles and, under those principles, makes good decisions. We mean also to say something about who he is and to relate who he is to his good decisions. When discussion proceeds in this way, principles need not even be explicit. We can say, "How would Atticus see this situation?" or "What would Atticus do" rather than, "What principles apply?" 5So understood, the debate about Atticus connects with the recent resurrection of virtue ethics and with concomitant suggestions that a virtue or character-based ethics might provide a particularly promising approach to professional ethics in general and to legal ethics in particular.In the following essay, I argue that this character-based appeal to Atticus is misplaced. Although Atticus can teach us important lessons, they are not about the priority of virtue or character. Neither side to the debate has Atticus quite right. Sorting out what it is about him that makes him an appropriate or inappropriate role model for lawyers will both enrich our appreciation of a fine novel and further our understanding of what it is to be an ethical lawyer. More generally, my analysis will suggest that virtue ethics has little to offer toward an understanding of the moral responsibility of lawyers. II In brief, To Kill a Mockingbird is the story of the trial of a black man, Tom Robinson, for the rape of a white woman, Mayella Ewell, in racist Alabama in the 1930s. Appointed to defend Robinson, Atticus Finch takes the task seriously, drawing upon himself and his children the slurs and taunts of neighbors. At trial he proves that Robinson could not have raped Mayella, showing that her attacker was left-handed with two good arms, whereas Robinson had lost the use of his left arm in a cotton-gin accident. Robinson is convicted nonetheless. The verdict does not surprise Atticus. Racism, "Maycomb's usual disease" (p. 98), has made it a forgone conclusion. Indeed, shortly afterward, Tom is... (shrink)

Physically frail, badly educated girls, brought up to lead useless lives as idle gentlewomen, married to dominant husbands, and relegated to "separate spheres" of life—these phrases have often been used to describe Victorian upper-middle-class women. M. Jeanne Peterson rejects such formulations and the received wisdom they embody in favor of a careful examination of Victorian ladies and their lives. Focusing on a network of urban professional families over three generations, this book examines the scope and quality of gentlewomen's education, their (...) physical lives, their relationship to money, their experience of family illness and death, and their relationships to men (brothers and friends as well as fathers and husbands). Peterson also examines the prominent place of work in the lives of these "leisured" Victorian ladies, both single and married. Far from idle, the mothers, wives, and daughters of Victorian clergymen, doctors, lawyers, university dons, and others were accomplished and productive members of society who made substantial public and private contributions to virtually every sphere of Victorian life. (shrink)

“It's almost like putting salt in a wound, for this person who's already made a very difficult decision,” suggested Meghan Patterson, a licensed obstetrician-gynecologist whom we interviewed in our qualitative study of the experiences of North Carolina abortion providers practicing under the state's Woman's Right to Know Act. The act requires that women receive counseling with state-mandated information at least twenty-four hours prior to obtaining an abortion. After the law was passed, Patterson worked with clinic administrators, in consultation with (...) a lawyer, to write a script to be used in the state-mandated counseling procedure. She and her colleagues took particular steps to mitigate the effects of what she described as HB 854's “forced language”—such as referring to the “father of the child.” While HB 854 stipulated that patients must be informed of the medical risks associated with the particular abortion procedure as well as those of carrying the child to term, Patterson's script made explicit the magnitude of comparative risks, emphasizing that the risks of carrying a pregnancy to term are substantially greater than the risks of an early-term abortion. She felt that these contextualization strategies helped to facilitate trust and rapport in a clinical care situation that proved relationally and morally challenging. In this article, we take up and expand on this point by elucidating an empirically grounded approach to ethically justified care when health care providers face legal or institutional policy mandates that raise possible moral conflicts. Our approach builds on recent bioethics discourse addressing conscience in the practice of medicine. While the concept of conscience has broad philosophical underpinnings relating to moral judgment, agency, and discernments of right and wrong, debates in bioethics have tended to engage the concept primarily vis-à-vis rights of conscientious objection or refusal. Here, we suggest a broader frame for thinking about claims of conscience in health care. Our approach draws on the feminist bioethics and the ethics of care literatures to highlight how providers may be motivated by matters of conscience, including relational concerns, in the active provision of certain forms of care. What emerges are two possibilities: not only conscientious refusal to comply with a policy mandate but also conscientious compliance—working conscientiously within a mandate's confines. (shrink)

Background: This study was developed as a result of a court case involving conflicts between midwives’ professional practice and their faith when caring for women undergoing abortions in Scotland. Research questions: What are practising Roman Catholics’ perspectives of potential conflicts between midwives’ professional practice in Scotland with regard to involvement in abortions and their faith? How relevant is the ‘conscience clause’ to midwifery practice today? and What are participants’ understandings of Canon 1398 in relation to midwifery practice? Research design: The (...) theoretical underpinning of this study was Gadamer’s hermeneutic out of which the method developed by Fleming et al. involving a five-stage approach was utilised. Participants and research context: The research was conducted in the south of Scotland. A purposive sampling method was used. Eight participants who were practising Roman Catholics familiar with the subject of conscientious objection who were either midwives, lawyers (civil, canon or both) or priests contributed. Ethical considerations: The major ethical issues related to respect for autonomy, maintaining confidentiality and obtaining voluntary informed consent. Parish priests agreed to act as gatekeepers to prospective participants. All legal requirements were addressed regarding data collection and storage. Approval was given by the ethics committee of the university with which one of the researchers were associated. Findings: Three key themes provide an understanding of the situation in which midwives find themselves when considering the care for a woman admitted for an abortion: competing legal systems, competing views of conscience and limits of participation. Conclusion: Clear guidelines for practice should be developed by a multi-professional and consumer group based on an update of the abortion law to reflect the change from a surgical to medical procedure. Clarification of Canon 1398 in relation to what is and is not participation in the procurement of abortion would be of benefit to midwives with a conscientious objection. (shrink)

This article examines the notorious mid-nineteenth-century American trial of Amelia Norman, who was acquitted - very much against the weight of the evidence - of attempting to kill the man who seduced her. In particular, we explore the role in the trial and its aftermath of the affective energies and cultural expectations set in motion by best-selling American sentimental novels like Hannah Foster's "The Coquette" and Susanna Rowson's "Charlotte Temple." In Norman's case, once newspapers, defense lawyers, and reformers such as (...) Lydia Maria Child recast the defendant as a sentimental heroine, the trial became about seduction, not attempted murder. The sentimental emplotment of Norman's life marshaled a powerful set of emotional responses and moral judgments on her behalf. For example, Norman claimed insanity. And since sentimental heroines are supposed to go mad when they are seduced and abandoned, the jury was prepared to interpret her symptoms according to her lawyers' very strategy for establishing her innocence. Ultimately, however, Norman embodied the plight of the sentimental heroine at the same time that she contested her fictional counterpart's fate. In this way, her trial spectacularized the disparity which the sentimental novel conjures up and displaces but never resolves. Going further, the common law theory of coverture, which severely limited the legal personhood of married women, has received a great deal of scholarly attention. Cases like Norman's remind us that unmarried women were also subject to draconian constraints on their legal personhood. The tort of seduction is a key example. Legal historians trace the development of the seduction tort from its common-law origins, when men's property interest in women's bodies formed the basis of the cause of action, to 1851, when Field Code authors (including Norman's lawyer, David Graham) persuaded several states to grant seduced women standing to bring their own cause of action. Consequently, courts were forced to reckon with the seduced woman as a moral agent capable of consenting to sex. As trials like Norman's demonstrate, sentimental novels helped lay the groundwork for this shift in the law by elucidating a subjectivity for the seduced woman. Yet the doctrinal implications of Norman's precedent-setting trial had a second, more ambiguous strain. Other women facing similar charges used the same legal strategy to gain acquittals in a substantial number of cases. Indeed, Norman's sentimental strategy proved so powerful that men on trial for killing their wives' seducers appropriated it to bring their own stories before juries and to reinforce male sexual norms through the so-called honor defense. In the end, then, Norman's trial fostered legal reform, but it also suggested - as Lydia Maria Child's fictionalization of the case in "Rosenglory" recognized - that only sustained and multifaceted efforts to change cultural as well as legal norms could improve the sexual status of women. In addition to its legal, literary, and historical insights that it provides, we also intend this article to contribute to debates on the nature of scholarship in law and literature. Scholars such as Wai Chee Dimock have argued for a focus on the historical and historically shifting relations between law and literature - a view we endorse. Where we differ from Dimock is in our diversion of attention away from abstract ideas of law laid out by treatise writers and philosophers in favor of law experienced and manipulated by individuals. So, too, we are interested less in representations of concepts such as justice in legal and literary texts than we are in the ways in which literature (broadly conceived) can create provisional and fragile opportunities for concrete instantiations of justice and even generate legal change (for good or ill). We would argue that to the extent legal change motivates rather than simply mirrors cultural change, it needs literature to be effective. This project, then, responds to Gregg Crane's call for attention to the complex and slippery historical interactions of law and literature that shape and are shaped by an ever changing cultural idiom of justice. The extended story of Amelia Norman, in short, not only constitutes a case study in the inescapable interaction between the overlapping and interdependent discourses of law and literature, but also reveals the literary and legal consequences of that interaction. (shrink)

This essay is a critique of Derrida's ethical works, using Camus's last novella The Fall as a critical sounding board. It argues that a danger pertains to any such highly self-reflexive position as Derrida's: a danger that Camus identified in The Fall, and staged in his character, Jean-Baptiste Clamence. Clamence is a successful Parisian lawyer, on top of his personal and professional life, whose equanimity is troubled after he is the unwitting passer-by as a young woman suicides one (...) night on the Seine. After this time, he comes to consider all his former virtues as concealed vices. He also becomes acutely aware of what he terms the 'duplicity' of human beings as such. In Part I, I consider how Clamence's fall from innocence can be read 'with' Derrida's deconstructive registration of a 'double bind' pertaining to our standing vis-á-vis what he terms 'logocentrism'. I argue that Derrida's is a post-lapsarian philosophy, which challenges all attempts to construct closed conceptual systems that would confer an epistemic and/or moral certitude upon their expositors. In Part II, I then enter into a more detailed exposition of Derrida's 'later' works broaching friendship, the invitation, the gift, and other 'matters moral'. I read these texts in the light of an examination of what is involved, for Camus, in being a 'judge-penitent' (what Clamence in The Fall calls his profession). I suggest that Derrida runs the risk of a certain 'puritanism of difference' in his moral reflections, which defend the aporetic formulation: 'tout autre est tout autre' [every other is every bit other] (The Gift of Death). The problem is that, while Derrida's position allows one (everywhere) to say what one is against, it problematizes any affirmative moral stance. Like Clamence, who assumes the right to judge everyone else because he has subjected himself to a severe penitence, I suggest that we have a right to wonder whether Derrida's deconstructive critique of metaphysics can validate only endless repetitions of itself. Key Words: Camus • Derrida • ethics • The Fall • innocence • 'puritanism of difference. (shrink)

Karen Quinlan played a big part in my decision to become a lawyer. When this nation's first high-profile right-to-die case was litigated in the 1970s, I was a college graduate who wasn't sure what to do next. I had majored in psychology and sociology and had thought about graduate study in one of those fields. But In re Quinlan ) pointed me in a different direction.Karen Quinlan was a young woman who had temporarily stopped breathing after taking tranquilizers (...) and drinking alcohol at a party. Oxygen deprivation left her in a persistent vegetative state, and doctors believed she needed a respirator and other intensive care measures to survive. Over time, her family came to see these measures... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:American Journal of Philology 121.4 (2000) 629-635 [Access article in PDF] Brief Mention Gildersleeve and M. Carey Thomas Ward W. Briggs IN A RECENT COLUMN on the dismissal of Professor Mary Daly of Boston College, who for decades has not permitted men in her women's studies classes, Garry Wills recalled two stories about Basil L. Gildersleeve: When women were admitted to the graduate school at the Hopkins, much to (...) Gildersleeve's regret, he said that he could not teach his course on the obscene Greek dramatist Aristophanes--he would be too inhibited when it came to explaining the dirty jokes. He was told that not even he, the founder of Greek studies at the place, could refuse to admit women. He countered that by putting up a screen in his classroom and making the women sit behind it. That way they could hear him, but he could pretend they were not there. 1This is virtually the version that I heard at roughly the same time as Wills. The anecdote, though fictional, offers the opportunity to provide a more nuanced if still problematic account that shows Gildersleeve respectful of the ambitions and achievements of a determined and successful woman, while retaining strong reservations on the desirability of higher education for women.In 1877 M. Carey Thomas (1857-1935) was among the first women to graduate from Cornell (the only university in the East that admitted women full-time). 2 She had majored in classics, to which she was drawn by her love of literature, and taken other coursework in mathematics, [End Page 629] literature, and philosophy. She read Agamemnon 3 and Oedipus Tyrannos with Tracy Peck (1838-1921). 4 Her thesis examined Greek civilization to the disadvantage of Roman political hegemony. She earned a B.A. degree, but her program had lasted only two years.The founding board of Johns Hopkins included among its largely Quaker membership Thomas's father, James Carey Thomas (1833-97), a prominent Baltimore physician, who was very keen that the new university should admit women. His daughter, still animated by the advice of Jane Slocum that had led her to Cornell, "What we want in the cause of women are not doctors and lawyers (there are plenty of those), we want scholars," 5 applied on 22 September 1877 to Gildersleeve's second annual graduate seminar. She had as yet no realistic understanding of the requirements, though she was aware of the difficulties of coeducation at that time, which she compared to "living on a volcano or on a housetop." 6She wrote directly to Johns Hopkins president Daniel Coit Gilman (1831-1908), who took her application to the board of trustees. The board, despite the influence of Thomas's father, decided that a difficult compromise was necessary: she, the only woman student at the university, in this its second year of existence, should "have the direction of studies by University Professors, and the final examination for degrees without class attendance in the University." 7 On this basis she first encountered the university's professor of Greek.Gildersleeve's time was precious that year: he was establishing the first graduate seminar in the country, getting the American Journal of Philology under way, organizing his edition of Pindar, and serving as president of the American Philological Association. The trustees' rule imposed the extra burden of a private tutorial. 8 Nevertheless, he agreed that Thomas could sit in his grammar lectures and that he would meet [End Page 630] with her regularly to discuss the work of his seminar. Her preparation was not up to the standard of the five advanced male students already in the seminar 9 and Gildersleeve indicated that she "might be able to take [the degree] in three years" (Thomas's emphasis) and insisted that she learn German. 10 She plunged into her work ("a terrible undertaking") 11 with enthusiasm, teaching herself German and reading Thucydides and the Odyssey. 12 The fall of 1877 was agony. She attended Gildersleeve's biweekly lectures on "Practical Exercises in Greek," but lamented that there were "so many books... waiting to... (shrink)

Machine generated contents note: Part I -- Doctors -- Dr. Joseph Messer -- Dr. Sharon Sandell -- ER -- Dr. John Barrett -- Marc and Noreen Levison, a paramedic and a nurse -- Lloyd (Pete) Haywood, a former gangbanger -- Claire Hellstern, a nurse -- Ed Reardon, a paramedic -- Law and Order -- Robert Soreghan, a homicide detective -- Delbert Lee Tibbs, a former death-row inmate -- War -- Dr. Frank Raila -- Haskell Wexler, a cinematographer -- Tammy Snider, (...) a Hiroshima survivor (hibakusha) -- Mothers and Sons -- V.I.M. (Victor Israel Marquez), a Vietnam vet -- Angelina Rossi, his mother -- Guadalupe Reyes, a mother -- God's Shepherds -- Rev. Willie T. Barrow -- Father Leonard Dubi -- Rabbi Robert Marx -- Pastor Tom Kok -- Rev. Ed Townley -- The Stranger -- Rick Rundle, a city sanitation worker -- Part II -- Seeing Things -- Randy Buescher, an associate architect -- Chaz Ebert, a lawyer -- Antoinette Korotko-Hatch, a church worker -- Karen Thompson, a student -- Dimitri Mihalas, an astronomer and physicist -- A View from the Bridge -- Hank Oettinger, a retired printer -- Ira Glass, a radio journalist -- Kid Pharaoh, a retired "collector" -- Quinn Brisben, a retired teacher -- Kurt Vonnegut, a writer -- The Boomer -- Bruce Bendinger, an advertising executive and writer -- Part III -- Fathers and Sons -- Doc Watson, a folksinger -- Vernon Jarrett, a journalist -- Country Women -- Peggy Terry, a retired mountain woman -- Bessie Jones, a Georgia Sea Island Singer (1972) -- Rosalie Sorrels, a traveling folksinger -- The Plague I -- Tico Valle, a young man -- Lori Cannon, "curator" of the Open Hand Society -- Brian Matthews, an ex-bartender, writer for a gay weekly -- Jewell Jenkins, a hospital aide -- Justin Hayford, a journalist, musician -- Matta Kelly, a case manager -- The Old Guy -- Jim Hapgood -- The Plague II -- Nancy Lanoue -- Out There -- Dr. Gary Slutkin -- Day of the Dead -- Carlos Cortez, a painter and poet -- Vine Deloria, a writer and teacher -- Helen Sclair, a cemetery familiar -- The Other Son -- Steve Young, a father -- Maurine Young, a mother -- The Job -- William Herdegen, an undertaker -- Rory Moina, a hospice nurse -- The End and the Beginning -- Mamie Mobley, a mother -- Dr. Marvin Jackson, a son -- Epilogue -- Kathy Fagan and Linda Gagnon, mothers. (shrink)

In this paper, we discuss what we argue is a newly observed use of nouns like woman, man, and lawyer, in the sort of morphosyntax characteristic of count nouns. We argue that the relevant data constitutes normative uses of the relevant nouns, and we build an analysis on the assumption that such nouns are polysemous between descriptive and normative senses (Leslie 2015), using the formal account of polysemy in Pustejovsky (1998), and the analysis of count- ability in Rothstein (...) (2010). In doing so, we provide evidence in support of the aforementioned kinds of analyses of social terms and countability, as opposed to others which do not seem to be able to account for the data in as straight forward a way. (shrink)

Asylum seekers who claim asylum in the United Kingdom flee from a diverse range of threats of persecution, particularly in the MENA (Middle East & North African) region. These threats may comprise of war, tribal violence and trafficking to honour-killings, female genital mutilation and witchcraft. Some of these threats may be alien to Western immigration tribunals as they either do not occur in their respective countries or are not understood, particularly because of the intricate religious and cultural nature of the (...) threat in question. For example, a single woman who has had sexual relations outside of marriage would be regarded as having insulted tribal and familial honour in some regions of MENA countries. Here, the word ‘tribe’, which in Arabic is _‘qabilah’_, has a distinct historical, cultural and lexical meaning that lawyers, judges and policy-makers may not be aware of; the same may be said of _‘nikah’_ (marriage) or _‘Voodoo’_ (a type of witchcraft) and many other terminologies. These terminologies are intimately linked to the experiences of immigration applicants and asylum seekers who desire to express their fear of persecution to lawyers, judges and policymakers. Using two real-life case studies involving a Yemeni immigration applicant and Nigerian asylum seeker respectively and my practitioner experience as a country expert having written 140 reports, I will critically explore the value of a primary, semiotic understanding of key religious, cultural and linguistic dimensions in asylum claims (as opposed to secondary source evidence). I argue that the UK’s immigration tribunal system should place more value on how language is embodied within the MENA regions. I do not wish to just highlight this issue but semiotically analyse immigration and asylum procedure, the arguments of the Home Office and tribunals in accepting or rejecting claims and suggest substantive reform by broadening the nature of evidence. Using Peirce’s framework of semiotics, a sign (representamen) is the fundamental entry point to comprehend an object—an object being the referent of a sign. Once we understand a sign and its object, we arrive at the interpretant which is the sense or meaning derived from the object. This triad relationship of sign, object and interpretant constitutes semiois. Here, I argue that analysing the nature of a sign and what it purports to represent can provide us with a theoretical basis by which to reformulate the mechanisms which judges and lawyers use to understand religious, cultural and linguistic evidence in asylum claims. It is through signs that we can arrive at a deeper meaning and the larger picture of the intricate components of an asylum seeker’s claim thereby accessing their semiotic code. (shrink)

Our paper explores how the affective energies and cultural expectations set in motion by best-selling American sentimental novels like Hannah Foster's The Coquette and Susanna Rowson's Charlotte Temple informed the notorious mid-nineteenth-century American trial of Amelia Norman, who attempted to kill the man who seduced her. Once newspapers, defense lawyers, and reformers such as Lydia Maria Child recast the defendant as a sentimental heroine, the trial became about seduction, and Norman was acquitted against the weight of the evidence. Sentimental novels (...) turn on the contrast between the passive victim status of the heroine and the active libidinal quest of the rake-villain. As Cathy Davidson points out, this fiction is "about silence, subservience, stasis (the accepted attributes of women as traditionally defined) in contradistinction to conflicting impulses toward independence, action, and self expression (the ideals of the new American nation)." The seduction plot diverts attention from this disparity by establishing an affective solidarity between heroine and reader and elevating the ruined woman to a tragic status. The sentimental emplotment of Norman's life marshaled a powerful set of emotional responses and moral judgements on her behalf. Norman claimed insanity. And since sentimental heroines are supposed to go mad when they are seduced and abandoned, the jury was prepared to interpret her symptoms according to her lawyers' very strategy for establishing her innocence. Ultimately, however, Norman embodied the plight of the sentimental heroine at the same time that she contested her fictional counterpart's fate. In this way, her trial spectacularized the disparity which the sentimental novel conjures up and displaces but never resolves. The common law theory of coverture, which severely limited the legal personhood of married women, has received a great deal of scholarly attention. Cases like Norman's remind us that unmarried women were also subject to draconian constraints on their legal personhood. The tort of seduction is a key example. Legal historians trace the development of the seduction tort from its common-law origins, when men's property interest in women's bodies formed the basis of the cause of action, to 1851, when Field Code authors (including Norman's lawyer David Graham) persuaded several states to grant seduced women standing to bring their own cause of action. Consequently, courts were forced to reckon with the seduced woman as a moral agent capable of consenting to sex. As trials like Norman's demonstrate, sentimental novels helped lay the groundwork for this shift in the law by elucidating a subjectivity for the seduced woman. Yet the doctrinal implications of Norman's precedent-setting trial had a second, more ambiguous strain. Norman's sentimental strategy proved so powerful that men on trial for killing their wive's seducers appropriated it to bring their own stories before juries and to reinforce male sexual norms. In the end, then, Norman's trial fostered legal reform, but it also suggested - as Child's fictionalization of the case in "Rosenglory" recognized - that only sustained and multifaceted efforts to change cultural as well as legal norms could improve the sexual status of women. Scholars such as Wai Chee Dimock have argued for a focus "on the historical and historically shifting relations between law and literature" - a view we endorse. Where we differ from Dimock is in our diversion of attention away from abstract ideas of law laid out by treatise writers and philosophers in favor of law experienced and manipulated by individuals. So, too, we are interested less in representations of concepts such as justice in legal and literary texts than we are in the ways in which literature (broadly conceived) can create provisional and fragile opportunities for concrete instantiations of justice and even generate legal change (for good or ill). Going further, we would argue that to the extent legal change motivates rather than simply mirrors cultural change, it needs literature to be effective. Thus, we see no need to characterize - and indeed reject the depiction of - law as "a limited arena" in which ideas of morality have little place. This project, then, responds to Gregg Crane's call for attention to "the complex and slippery historical interactions of law and literature that shape and are shaped by an ever changing cultural idiom of justice." The extended story of Amelia Norman not only constitutes a case study in the inescapable interaction between the overlapping and interdependent discourses of law and literature, but also reveals the literary and legal consequences of that interaction. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Instinct of Nature: Natural Law, Synderesis, and the Moral SenseRobert A. Greene“Instinct is a great matter.”—Sir John FalstaffThis essay traces the evolution of the meaning of the expression instinctus naturae in the discussion of the natural law from Justinian’s Digest through its association with synderesis to Francis Hutcheson’s theory of the moral sense. The introduction of instinctus naturae into Ulpian’s definition of the natural law by Isidore of Seville (...) in the seventh century posed a problem of definition for medieval commentators. Some said that it meant a universal and providential natura naturans; some defined it as the urge to self and species preservation in animals, degenerating in man into sensual and shameful impulses; some advanced the humanistic and paradoxical notion that it referred to a unique exercise of human reason in coming to know the natural law. The contemporaneous revival in the twelfth century of St. Jerome’s puzzling new term “synderesis,” and its gradual definition as the immediate apprehension of the first practical moral principles of the natural law, brought the two terms into proximity and loose association.A half-century later St. Bonaventure made explicit what had remained latent in the thinking of Thomas Aquinas by relocating synderesis in the affective rather than the intellectual part of man’s nature. Accordingly the moral discoveries of synderesis came to be spoken of as not only non-discursive but instinctive in nature—apprehensions for which no reason could be given, apprehensions somehow rooted in affective human experience. During the bilingual early modern period an increasingly secularized, internalized, and reified instinctus [End Page 173] naturae, together with its abbreviated vernacular cognate, “instinct,” came to serve as a substitute and synonym for the obsolescent synderesis. Edward Herbert’s attention to instinctus naturae in his De Veritate (1624), Sir Matthew Hale’s speculations about the place of rational instinct in the natural law, and Francis Hutcheson’s theory of a moral sense all exemplify this semantic legacy.The first entry in Justinian’s Digest has had a disproportionate influence on later speculation about the natural law. It begins a chapter that gives pride of place to general definitions of justice, law, jus naturale and jus gentium, and it is drawn from the writings of the Roman jurisconsult Domitius Ulpianus (d. 223), whose work constitutes forty percent of the Digest. Ulpian defines the natural law, with insistent repetition, as that which nature has taught to, or is common to, all animals:Jus naturale is that which nature has taught to all animals; for it is not a law specific to mankind but is common to all animals—land animals, sea animals, and the birds as well. Out of this comes the union of man and woman [male and female] which we call marriage, and the procreation of children, and their rearing. So we can see that the other animals, wild beasts included, are rightly understood to be acquainted with this law. Jus gentium, the law of the nations, is that which all human peoples observe. That it is not coextensive with natural law can be grasped easily, since this latter is common to all animals whereas jus gentium is common only to human beings among themselves. 1Justinian’s compilers gave Ulpian’s definition striking prominence at the beginning of the Digest and then in the same short chapter quoted the incompatible and more traditional definitions of his contemporaries Gaius and Paulus. They confined the operation of the natural law to mankind and spoke of reason as its source. 2 The compilers had been charged to eliminate just such conflicts; yet here at the very outset they set a conundrum that perplexed commentators [End Page 174] and invited explanation from Isidore of Seville to Hugo Grotius. Their selection of quotations suggests that as lawyers they regarded such general definitions as “for legal purposes no more than ornament to discussion.” 3 For those of a more speculative bent, however, the dilemmas could not have been more fundamental. How was the natural law to be defined in relation to those appetitive and self-preservative urges that man seemed to share with animals? Or did the term law apply only... (shrink)

Abortion is one of the most controversial issues in today's world. People tend to turn to the law when trying to decide what is the best possible solution to an unwanted pregnancy. Here the author's views on abortion are discussed from a lawyer's and a woman's point of view. By taking into consideration the rights of the fetus an “antagonistic relationship” between the woman and her unborn child may occur. Therefore, women should have more autonomy in the (...) issue. The article concludes with examples of cases in the United States and Ireland where the rights of the fetus are considered more important than those of the mother because of existing laws. This article suggests that a more inclusive ethics of abortion is required rather than a new ethics of abortion when “translating fetal life into law”. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Fetal Sentience and Women’s RightsBonnie Steinbock (bio)A growing number of states have banned abortion after twenty weeks on the grounds that the fetus at that stage experiences pain. Such laws run contrary to current abortion law, and so are almost certain to be challenged in court. In Roe v. Wade the Supreme Court said that the constitutional right to abortion extends until the fetus is viable, between twenty-four and (...) twenty-eight weeks. After viability, states may ban abortion entirely except where continuing the pregnancy would threaten the woman’s life or health. The viability threshold was upheld in Planned Parenthood v. Casey.Why viability? The Roe court said that this is “the ‘compelling’ point... because the fetus then presumably has the capability of meaningful life outside the mother’s womb.” Some commentators point out that this is no justification; the capacity for independent life does not explain the significance of viability. It merely gives the meaning.Another problem with viability is that it seems to depend on medical technology. What if fetuses under twenty-three weeks could be placed in an artificial uterus and brought to development there? Would we then say that even a first-trimester fetus was viable? This focuses on one aspect of viability only—namely, the capacity for independent existence. Another aspect is development. The justification for viability is that a fetus of twenty-four to twenty-eight weeks is so substantially developed, so similar to a newborn, that it has a claim to societal protection—so long as this does not threaten the pregnant woman’s life or health. Any attempt to ban abortions much earlier in pregnancy—as in a bill passed by the Ohio state legislature in June that would ban abortion after a fetal heartbeat is detectable, which can occur as early as six weeks—would be so restrictive as to vitiate the right to abortion altogether.It could be argued that sentience is a more rational threshold than viability because of the connection between sentience and moral considerability. If, as many experts believe, sentience and viability occur around the same time, then from a practical standpoint, it does not matter whether sentience or viability is chosen. But if sentience is the standard, and if it occurs earlier than viability, then abortion rights are restricted. Thus, much of the debate has turned on when fetal sentience occurs. Some are adamant that fetal sentience prior to twenty-four weeks is impossible, but other researchers do not rule it out. The development of neural networks necessary for the experience of pain might be present as early as seventeen weeks.Opposition to these laws should not be based on when sentience occurs, since this might change with more evidence. All we can say now is that the fetus almost certainly cannot feel pain during the first trimester and almost certainly can during the third. The exact onset of sentience in the second trimester is not just unknown; it may even be unknowable. It depends on the development of neural connections, which is a process, not an event. Drawing any exact line within a process is likely to be arbitrary.The choice between sentience and viability to justify the prohibition of late abortions is not the real issue. What really matters—and what pro-choice advocates should stress—is that late abortions are not denied to women who need them to preserve their own lives or health. Roe makes this clear, and subsequent cases have affirmed it.That is what is so upsetting about the story of Danielle Deaver. Deaver was at twenty-two weeks in a wanted pregnancy when her water broke, and the amniotic fluid did not rebuild. Her doctors said that fetal development had stopped and that the fetus stood only a remote chance of being born alive. Deaver also faced a risk of serious infection. She and her husband opted for inducing labor. But because inducing labor, if not done to save the life of the fetus, is legally defined as abortion, and Nebraska law prohibits abortion after twenty weeks, doctors and hospital lawyers concluded that the procedure would be illegal.After ten days, Deaver went into labor... (shrink)

A young man, terminally ill and in extreme suffering, asks to be removed from life support, requesting morphine first so he'll be asleep when the machine stops. His physician agrees, but the hospital's chief administrator intervenes, arguing that the morphine might itself cause death, leaving the physician open to criminal indictment for murder. To placate the administrator, the doctor and patient reach a grim compromise: life support will be disconnected first, and only after manifest signs of suffering appear will the (...) physician administer the morphine, to alleviate pain. The patient's request is ultimately respected, but many staff members feel he has been made to suffer needlessly. This is just one of many cases Ruth Macklin discusses in Enemies of Patients, an eye-opening look at the growing number of forces that are hostile to the interests of patients, including hospital administrators, lawyers who represent hospitals, insurance companies, government regulations, and even some well intentioned physicians. Macklin, a highly regarded medical ethicist, the author of Mortal Choices and the subject of a New York Times Magazine cover story, provides a behind-the-scenes look at how the patient's ethical rights are often violated. She describes, for instance, how a new breed of hospital administrator, the risk manager, acts consistently as an enemy of the patient, often urging physicians to continue aggressive, expensive treatments for critically ill patients--even when the patient and doctor agree the treatment should cease--for fear of lawsuits, bad publicity, or criminal indictment. (Macklin points out, for instance, that even though no physician has ever been convicted of a crime for withdrawing treatment from a patient in a permanent vegetative state, hospital lawyers and risk managers regularly assert that there is a danger of criminal liability in such cases.) The government also can become an enemy of patients. The most egregious case, according to Macklin, is the Federal government's "gag rule" which has prohibited health care facilities that receive Title X funds from discussing abortion with pregnant women, violating the patient's right to full information. And physicians themselves can become enemies of patients. Some, seeing themselves as fiscal gatekeepers, ration expensive health care procedures on financial rather than medical grounds. Some physicians refuse to treat patients who don't follow their advice (a cardiologist, for instance, who will not take care of patients who smoke) and others won't treat patients who pose a threat of lawsuit (such as a California woman in need of life-sustaining dialysis, who had previously sued another physician). Packed with numerous case histories drawn from the author's experience in a major urban medical center, Enemies of Patients will give readers a better understanding of their rights as patients and show them how to forge an alliance with their doctors against common enemies. (shrink)

We are printing in its entirety the discussion document which sets out a code of professional conduct for nurses published by the Royal College of Nursing in November 1976 together with commentaries by the Assistant Secretary of the British Medical Association, a professor of nursing studies, student nurses and a lawyer. The image of the nurse is still that of one of Florence Nightingale's young ladies or of a member of a religious order who is wholly dedicated to caring (...) for the sick. Today, as this document and the comments upon it show, 'dedication' is still part of the motive which leads a man or woman to become a nurse but in addition, and this is where the public may be ignorant or choose to be ignorant, nursing offers a career where intellectual achievement and the satisfaction of a demanding job bring their proper financial reward and place in the professional community. We are grateful to the Royal College of Nursing for permission to publish this document. (shrink)

Why has it taken so long for member states to appoint women to the Court of Justice? Despite having won relatively significant policy instruments for equal treatment at work and high levels of legislative representation, women in the European Union have been slow to extend the demand for gender mainstreaming to courts. Prior to 1999, the Court of Justice had had one woman member until Ireland appointed Fidelma Macken in late 1999, and Germany appointed Ninon Colneric and Austria appointed (...) Christine Stix-Hackl Advocate General in 2000.The 1995 U.N. meeting in Beijing was a catalyst for the demand for balanced participation of women and men in decision-making processes within the E.U., and it coincided with Sweden, Finland and Austria joining and championing the cause of gender equality. In 1999, the Commission published a report on women in the judiciary and women lawyers began to organize across Europe. After tracing the appointment process, I review the European Parliament's role in championing women on the Court and consider recent developments. Courts, particularly supranational and federal courts, are representative institutions even if their representative function differs from legislatures. Non-merit factors have always been a factor in judicial appointments and thus the demand for women on the bench is not a terrible deviation from merit. An all male bench is no longer legitimate. (shrink)

An inspiring collection of the personal philosophies of a fascinating group of individuals Based on the NPR series of the same name, This I Believe features eighty essays penned by the famous and the unknown—completing the thought that the book’s title begins. Each piece compels readers to rethink not only how they have arrived at their own personal beliefs but also the extent to which they share them with others. Featuring a star-studded list of contributors—including Isabel Allende, John Updike, William (...) F. Buckley, Warren Christopher, Penn Jillette, Colin Powell, Rick Moody, and Kay Redfield Jameson—the collection also contains essays by a Brooklyn lawyer; a part-time hospital clerk in Rehoboth, Massachusetts; a woman who sells yellow pages advertising in Fort Worth, Texas; and a man who serves on the state of Rhode Island’s parole board. The result is a stirring, funny, and always provocative trip inside the minds and hearts of a diverse group of Americans whose beliefs—and the incredibly varied ways in which they choose to express them—reveal the American spirit at its best. (shrink)

The case of Terri Schiavo, a young woman who spent 15 years in a persistent vegetative state, has emerged as a watershed in debates over end-of-life care. While many observers had thought the right to refuse medical treatment was well established, this case split a family, divided a nation, and counfounded physicians, legislators, and many of the people they treated or represented. In renewing debates over the importance of advance directives, the appropriate role of artificial hydration and nutrition, and (...) the responsibilities of family members, the case also became one of history's most extensively litigated health care disputes. The Case of Terri Schiavo assembles a team of first-hand participants and content experts to provide thoughtful and nuanced analyses. In addition to a comprehensive overview, the book includes contributions by Ms. Schiavo's guardian ad litem, a neurologist and lawyer who participated in the case, and scholars who examine issues related to litigation, faith, gender, and disability. The volume also includes a powerful dissent from the views of many scholars in the bioethics community. The book is intended for students, health care professionals, policy makers, and other in search of carefully reasoned analyses of the case that will shape our view of death and end-of-life medical care for decades. (shrink)

"The Justice of Mercy is exhilarating reading. Teeming with intelligence and insight, this study immediately establishes itself as the unequaled philosophical and legal exploration of mercy. But Linda Meyer's book reaches beyond mercy to offer reconceptualizations of justice and punishment themselves. Meyer's ambition is to rethink the failed retributivist paradigm of criminal justice and to replace it with an ideal of merciful punishment grounded in a Heideggerian insight into the gift of being-with-others. The readings of criminal law, Heideggerian and Levinasian (...) philosophy, and literature are powerful and provocative. The Justice of Mercy is a radical and rigorous exploration of both punishment and mercy as profoundly human activities." ---Roger Berkowitz, Director of the Hannah Arendt Center for Ethical and Political Thinking, Bard College "This book addresses a question both ancient and urgently timely: how to reconcile the law's call to justice with the heart's call to mercy? Linda Ross Meyer's answer is both philosophical and pragmatic, taking us from the conceptual roots of the supposed conflict between justice and mercy to concrete examples in both fiction and contemporary criminal law. Energetic, eloquent, and moving, this book's defense of mercy will resonate with philosophers, legal scholars, lawyers, and policymakers engaged with criminal justice, and anyone concerned about our current harshly punitive legal system." ---Carol Steiker, Harvard Law School "Far from being a utopian, soft and ineffectual concept, Meyer shows that mercy already operates within the law in ways that we usually do not recognize.... Meyer's piercing insights and careful analysis bring the reader to think of law, justice, and mercy itself in a new and far more profound light." ---James Martel, San Francisco State University How can granting mercy be just if it gives a criminal less punishment than he "deserves" and treats his case differently from others like it? This ancient question has become central to debates over truth and reconciliation commissions, alternative dispute resolution, and other new forms of restorative justice. The traditional response has been to marginalize mercy and to cast doubt on its ability to coexist with forms of legal justice. Flipping the relationship between justice and mercy, Linda Ross Meyer argues that our rule-bound and harsh system of punishment is deeply flawed and that mercy should be, not the crazy woman in the attic of the law, but the lady of the house. This book articulates a theory of punishment with mercy and illustrates the implications of that theory with legal examples drawn from criminal law doctrine, pardons, mercy in military justice, and fictional narratives of punishment and mercy. Linda Ross Meyer is Carmen Tortora Professor of Law at Quinnipiac University School of Law; President of the Association for the Study of Law, Culture and the Humanities; and Associate Editor of Journal of Law, Culture and the Humanities. Jacket illustration: "Lotus" by Anthony James. (shrink)

Past research suggests that Working Memory plays a role in determining relative clause attachment bias. Disambiguation preferences may further depend on Processing Speed and explicit memory demands in linguistic tasks. Given that Working Memory and Processing Speed decline with age, older adults offer a way of investigating the factors underlying disambiguation preferences. Additionally, older adults might be subject to more severe similarity-based memory interference given their larger vocabularies and slower lexical access. Nevertheless, memory interference and sentence disambiguation have not been (...) combined in studies on older adults before. We used a self-paced reading paradigm under memory load interference conditions. Older (n = 30) and Younger (n = 35) readers took part in the study online; reading times were recorded and measures of comprehension accuracy and load recall were collected. This setup allowed for the implicit measurement of attachment biases and memory interference effects interactively. Results show that similarity-based interference affected both age groups equally, but was more pronounced in NP2-biased structures, which took participants generally longer to read. Attachment preferences did not differ by group and were unaffected by Working Memory span. However, accuracy on recall prompts was predicted by Working Memory span in both groups. Findings of greater interference in syntactically dispreferred structures support unified processing models where parsing constraints naturally interact. The lack of age differences on our measures further aligns with research finding age-invariant implicit language processing. (shrink)

"Golf day 2005 @ federal golf club, red hill." Ethos: Official Publication of the Law Society of the Australian Capital Territory, (196), pp. 7.

SummaryJudith Montefiore's life has attracted attention principally by association with that of her husband Sir Moses Montefiore (1784–1885), the pre-eminent Jewish figure of his age. This article emphasises instead Judith's pioneering role as a Jewish woman travel-writer and influential female voice in the world of Jewish letters and international Jewish politics. To Jews in the Holy Cities of Palestine and the ghettos and shtetls of Eastern Europe, Judith was—like her husband—a beacon of hope, an example to follow and an (...) instrument of change. Her activities drew on a rich vein of Jewish tradition and a series of profound encounters with Middle Eastern and, to a lesser extent, Eastern European Jewries, which shaped her spiritual world. These paradoxes are easily conceptualised by the contrast between Judith's different worlds: the Jewish world that underpinned her marriage, structured her spirituality and infused her life with meaning, and the world of the English gentry and dissenting middle classes, with whom she mixed socially, and whose spiritual style, values, expectations, and mode of life shaped her in other, equally profound ways. This article argues, however, that it was the interaction and cross-fertilisation between these different worlds that enabled Judith to carve her distinctive path in life. (shrink)

In criminal law, foresight betrays a guilty mind as much as intent does: both reveal that the agent is not properly motivated to avoid an illegal state of affairs. This commonality warrants our judgment that the state is brought about intentionally, even when unintended. In contrast to Knobe, I thus retain the idea that acting intentionally is acting with a certain frame of mind.

In "Amelioration and Inclusion: Gender Identity and the Concept of Woman," Katharine Jenkins argues that Sally Haslanger's focal analysis of gender problematically excludes nonpassing trans women from the category "woman." However, Jenkins does not explain why this exclusion contradicts the feminist aims of Haslanger's account. In this paper, I advance two arguments that suggest that a trans-inclusive account of "woman" is crucial to the aims of feminism. I claim that the aims of feminism are to understand and (...) combat women's oppression. First, I argue that denial of trans identities reinforces cultural ideas that perpetuate both transphobic violence and sexual violence against women. Consequently, a feminist account of "woman" that fails to respect trans identities indirectly contributes to the oppression of women. Second, I prove that nonpassing trans women are oppressed as women through the internalization of sexual objectification. I then conclude that an account of "woman" that excludes nonpassing trans women cannot successfully advance a complete understanding of women's oppression. (shrink)

Drawing on 121 in-depth interviews with first- and second-generation women and men physicians of Indian origin in the U.S. Southwest, I examine the incidence and nature of gender-based discrimination in American medicine. I focus on two aspects: gender discrimination by employers and colleagues against women physicians of Indian origin and the interaction of gender discrimination with race in the professional lives of first- and second-generation physicians. U.S. healthcare has become increasingly dependent on immigrants, in particular women physicians, from the developing (...) world. I document the significant impact gender and race can have in molding the professional trajectories of Indian women physicians. The experiences of these physicians help clarify the interaction of skilled migrant workers with racial/ethnic and gender relations in U.S. workplaces. (shrink)

ABSTRACTThis paper draws on interviews with 57 corporate finance lawyers working from global law firms based in the City of London. Drawing on this data, we highlight common themes of taking deals at ‘face value’, being the lawyer-technician who uses the law to effect his client’s wishes, and not ‘pushing’ ethics. We suggest that there is an apathy – a lack of concern or interest – about ethics on the part of corporate lawyers. This apathy stems from various sources. (...) It is linked to assumptions about the sorts of clients that large law firms are willing or not willing to act for, and assumptions about the ‘right sort of people’ the firm hires and retains; it is linked to strong notions of role morality; and it is founded on the classic legal ethics ‘standard conception’ principles of neutrality and non-accountability. Our data also highlights a lack of ethical infrastructures in large firms, and a lack of ethical leadership from law firm partners for the associates and trainees working for them. (shrink)

The ABA has adopted four model policies that address, in one way or another, the issue of foreign lawyer mobility. These policies are the ABA Model Foreign Legal Consultant Rule, which is commonly known as the FLC rule, the ABA Model Rule for Temporary Practice by Foreign Lawyers, which is commonly known as the FIFO rule, ABA Model Rule of Professional Conduct 5.5, which permits foreign lawyers to serve as in-house counsel, and the ABA Model Rule on Pro Hac (...) Vice Admission. All four of the ABA's foreign lawyer mobility recommendations include a requirement that the mobile foreign lawyer is “ subject to effective regulation and discipline by a duly constituted professional body or a public authority .” In other words, these rules set forth requirements regarding the nature of the regulatory system in the foreign lawyer's home jurisdiction. A number of US states have included this requirement in their foreign lawyer mobility provisions, but a number have not. Although the ABA model rules and a number of state rules include this requirement, neither the ABA Model Rules nor any of the state rules have defined what it means for a foreign lawyer to come from a system with “effective regulation and discipline.” Nor is there any evidence that this requirement has been enforced in those states that have included this requirement. This article suggests that the “effective regulation and discipline” requirement has been an elephant in the room that no one has been willing to talk about. The article argues that the time has come to confront this issue head-on. It asserts that either efforts should be undertaken to define and enforce this requirement or that the requirement should be abandoned. The article reviews two “threshold” issues that jurisdictions might want to consider when deciding whether to adopt or retain an “effective regulation and discipline” requirement. It also identifies cross-cultural and cross-professional resources that might be consulted for “benchmarking” purposes if and when US regulators decide to add “meat to the bones” by defining and enforcing the “effective regulation and discipline” requirement found in foreign lawyer mobility provisions. (shrink)

Although the American Philosophical Association has more than 11,000 members, there are still fewer than 125 Black philosophers in the United States, including fewer than thirty Black women holding a PhD in philosophy and working in a philosophy department in the academy.1The following is a “musing” about how I became one of them and how I have sought to create a positive philosophical space for all of us.

The works of Mary Wollstonecraft ranged from the early Thoughts on the Education of Daughters to The Female Reader, a selection of texts for girls, and included two novels. But her reputation is founded on A Vindication of the Rights of Woman of 1792. This treatise is the first great document of feminism—and is now accepted as a core text in western tradition. It is not widely known that the germ of Wollstonecraft's great work came out of an earlier (...) and much shorter vindication—A Vindication of the Rights of Men , written in the context of the issues raised by the French Revolution. This edition, which follows the model of other Broadview Editions in including a range of materials that help the reader to see the work in the context of its era out of which it emerged, is arranged chronologically, opening with Wollstonecraft's "other vindication." It also includes a wide range of other documents in appendices, as well as a comprehensive and authoritative introduction, chronology, and full index. (shrink)

In Regina v. Murray, (2000, Ont S.Ct.J.) the learned trial judge, Justice Gravely, errs in his interpretation and application of the law of mens rea in the offense of willfully attempting to obstruct justice under section 139(2) of the Criminal Code of Canada. In view of his findings of fact and law, including the determination that the accused knowingly and intentionally committed the actus reus of the offense and the absence of any suggestion that he lacked awareness of any relevant (...) facts, there is no question in law but that Kenneth Murray was liable to be, and actually should have been, convicted. Nonetheless, the trial judge concluded that Murray’s alleged belief, that his actions were required by his duty to his client, raised a reasonable doubt about his intention to obstruct justice and entitled him to be acquitted. -/- In his reasons for judgment, the trial judge analyzes mens rea as if there is a “color of right” defense to the offense of obstruction of justice. In law, however, no such defense exists to this offense. Consequently, even if Mr. Murray did “honestly believe” that he had a duty to his client not to disclose the existence of the video tapes, that belief could not provide him with an exculpatory defence. In Canada, pursuant to common law and section 19 of the Criminal Code, mistakes of law do not excuse accused persons from responsibility for criminal conduct in the absence of a statutory exception. No exception exists for the offense of obstruction of justice. Yet the Crown did not choose to appeal and thereby signaled its acceptance of the legal analysis adopted by the trial judge. By contrast, if the analysis proposed in this piece had been adopted, the Crown should have prevailed at trial and, if unsuccessful at trial, would have had a right of appeal on a question of law. -/- At least two tendencies converge as significant influences shaping the outcome in the Murray case. The central tendency, discussed in Part I of this article, is the trial judge’s treatment of the accused’s alleged mistake about his legal duty as if it were a mistake about a question of fact which therefore could give rise to a reasonable doubt about intention or culpable awareness. This approach to mistaken beliefs ignores the distinction between mistakes of law and mistakes of fact, and then characterizes all mistakes as mistakes of fact. Unfortunately, this is not uncommon in the case law. In recent years however, as explained below, the judiciary has rejected that approach in a number of leading cases and ruled that mistakes which are actually mistakes about the meaning, scope, or application of the law are subject to the general rule and do not provide an accused with an exculpatory defense. The relationship between mistake of law and mens rea in Canadian criminal law has also been the subject of critical scholarly comment in Canada in recent years. The Murray decision provides evidence that, despite clarification by the Supreme Court, in some lower courts the unrefined approach to mistaken belief continues to shape the legal analysis of criminal culpability, even when the mistaken belief is overtly a belief about the law. This will not change until the proper characterization of mistaken beliefs as legal or factual becomes a deliberate and common-place aspect of case analysis at the trial court level. -/- The other tendency, discussed in Part III of this article, is one that often appears as a companion to the first - the judicial tendency to perceive and invoke analytical legal ambiguity in favour of accuseds more readily in cases in which the impugned conduct involves the discretionary exercise of authority which, when used appropriately, is fully legitimate and essential to the normal functioning of the existing socio-legal order. Of course, courts are strongly influenced by the arguments put to them by counsel. And counsel, acting on behalf of client groups with particular group interests may, consciously or unconsciously, favour the development of those lines of analysis which are protective of that interest or associated institutional interests. One of the reasons for scrutinizing the Murray case is that it provides a concrete context for discussion of those issues in relation to an actual decision made by Crown prosecutors. The case provides an occasion to examine a specific example of the exercise of prosecutorial discretion, its implications for the administration of criminal justice, and its broader potential impact on the public interest. [See also errata in UNBLJ 2002 volume 52 at pp 309-310.]. (shrink)