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Issue #36: The Legal Issue

In this issue we focus on debates—new and old—in the legal and literary sphere, examining topics ranging from birtherism, plea bargaining, forensic architecture and evidence, and robotic free speech. Edited by Lisa Siraganian and Rachel Watson.

Inside the issue

Bret Harte’s Birtherism: Dialect Literature and the Fiction of Native-Born Citizenship

Most constitutional scholars dismiss birther conspiracies by pointing to the birthright citizenship clause of the Fourteenth Amendment. Yet birthright citizenship in the United States was founded on a case of exception (“excluding Indians not taxed”), leaving the relationship between American soil and American citizenship ambiguous. It was American literature, not American law, that defined who gets to count as “born American” in this country, because only in the literary realm could the language of the soil manage to spell inclusion and exclusion at the same time. Specifically, Bret Harte’s 1868 Western frontier tale “The Luck of Roaring Camp” (called “new and fresh and spirited” by none other than Mark Twain) teaches readers just why it is that Native Americans could never count as native-born Americans, and why, as a result, the question of who gets to count as “born American” has not been laid to rest, and likely won’t be anytime soon.

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Plea Bargaining in the Shadow of Narrative

Plea bargaining is a vital element of the criminal justice system, and it deserves more attention from scholars interested in law and culture. Legal scholars have proposed reforms to curb the more extreme abuses of the plea-bargaining system in the U.S. To these recommendations, I add the suggestion that we think of plea bargaining as occurring “in the shadow of narrative.” By looking beyond the trial, the paradigmatic narrative form that has engaged scholars of law and literature, we might appreciate the significance of legal processes that conform less easily to conventional narrative representation, while also revising our understanding of what legal narrative includes.

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Case: Forensic Architecture

Forensic Architecture claims to mobilize its own ethics, aesthetics, and rhetoric in the pursuit of forensic knowledge. Weizman and his collaborators have suggested that their methodologies operate outside of, or adjacent to, traditional legal procedures, and lend “new material and aesthetic sensibilities” to legal conceptions of proof. The result is that Forensic Architecture’s evidentiary assemblages have an uncertain, ambivalent relation to spaces of legal deliberation even while they act upon them.

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Study: The Architecture of Forensics

Indicating more than a set of investigative practices that respond to crime, forensics has come to connote a kind of secular faith in an animate material world—a phantasmagoria, in which material appears to both “hold secrets” and “speak back to us.” As such, forensics makes crime investigation appear not only the moral and administrative responsibility of a state, but also a magical power in and of itself. This response offers a brief analysis of the forensics imagination, as exemplified by Forensic Architecture’s rhetoric around its own work, and suggests some of the entanglements that come along with it.

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Against Theory, now with bots! On the Persistent Fallacy of Intentionless Speech

Arguing for the First Amendment rights of computer content, recent legal scholars Ronald Collins and David Skover have adapted Reader Response literary criticism from the 1970s, as well as related debates about literary meaning from the 1980s, to develop the idea of “intentionless free speech.” This essay examines and challenges these ideas. To think that intention can be meaningfully severed from free speech is to fundamentally misunderstand both speech and language. Siraganian situates and contextualizes this legal scholarly development in relation to both literary theory (Steven Knapp, Walter Benn Michaels, Stanley Fish, Toril Moi) and legal theory (Leslie Kendrick).

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