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The Torts, They Are A-Changin'









 
 

The Torts, They Are A-Changin’


Pete Kennedy performs a selection of Bob Dylan songs to close the first day Bob Dylan and the Law.

Photo by Janet Sassi



Chief Justice John Roberts cited

Dylan’s phrase, “When you ain’t got nothing,

you got nothing to lose,”

to prove “standing” in a case.



By Janet Sassi

When Fordham Law professor Bruce Green joined with Touro Law School colleague Samuel Levine to host a scholarly conference on Bob Dylan and the Law, he admitted there were raised eyebrows.

“Some of my colleagues have been skeptical, but it also struck a chord in a lot of lawyers and judges,” said Green on April 4 at the opening of the event. “I was gratified to get calls and emails telling me how cool some thought this was.”

The conference, which attracted judges, law professors and practicing lawyers, kicked off with a panel discussion led by WFUV disc jockey Corny O’Connell (LAW ’91) followed by a performance of Dylan’s songs by musician Pete Kennedy.

Citing the work of Michael Perlin, a lawyer who said that Dylan’s lyrics express cynicism for legal institutions and distaste for arbitrary sentencing, O’Connell asked panelists whether a “jurisprudence of Dylan” really exists.

“If there is such a jurisprudence, then Michael (Perlin) got it right—it is Dylan’s cynicism about the law and its institutions,” said Alex Long, professor of law at the University of Tennessee.

Columbia University journalism professor David Hajdu, music critic for The New Republic and author of Positively 4th Street: The Lives and Times of Joan Baez, Bob Dylan, Mimi Baez Fariña and Richard Fariña (North Point Press, 2001), said that Dylan constructed a persona for himself and his music that defined him as an “outlaw, an outcast, an outsider,” someone contrasting governmental laws and formal jurisdictions.

“The (1960s) folk music was a challenge to government jurisdiction, a challenge to the laws of the land based on the idea that outcast people, marginalized people, disenfranchised people, African Americans, the poor, people connected to the earth, all had a connection to a higher jurisdiction and a deeper truth,” Hajdu said. “It wasn’t actually a rejection of the law or even a challenge. It was a claim to privilege, a subscribing to a higher jurisdiction.”

In his role as outsider troubadour, Dylan used his songs such as 1963’s “The Lonesome Death of Hattie Carroll” and 1975’s “Hurricane” as both social commentary and protest against judicial decisions, said Abbe Smith, professor at Georgetown Law School. “Hurricane” inspired an outcry for a new trial for boxer Rubin “Hurricane” Carter, who was eventually exonerated of homicide charges for which he served 18 years.

Smith said that “Hurricane” would make a brilliant opening statement in a court of law, but she took issue with Dylan’s loose use of the facts in his songs.

“Guilt and innocence . . . they are not as black and white as Dylan depicts them in these two songs,” Smith said. “I wish he would have dug a little deeper into the lives of the people he depicted. Guilty people are more than their conduct in a single instance . . . there is more nuance than these songs suggest.”

The National Law Journal reported that Dylan is the musician most cited in appellate court opinions. Long recalled doing a legal database search for Bob Dylan lyrics that turned up, among others, two citations in the last two years by members of the U.S. Supreme Court. Chief Justice John Roberts cited Dylan’s phrase, “When you ain’t got nothing, you got nothing to lose,” to prove “standing” in a case, he said.

Justice Antonin Scalia used, “The times, they are a changin’,” to comment on a case about unreasonable search and seizure of text messages.

“You get Dylan’s lyrics being used by conservatives and liberals—if you are a judge of a certain age,” Long said, “but he also cuts across generations.”

Conference workshops included “Tangled Up in Law: The Jurisprudence of Bob Dylan,” by Michael Perlin, professor of law at New York Law School; “Dylan as the Complete Trial Lawyer: Using Hurricane Carter to Teach Trial Skills,” by Allison Connelly, professor of law at the University of Kentucky College of Law; and “Bob Dylan and the Art of Taking Legal Ethics Seriously,” by Greg Randall Lee, professor of law at Widener Law School.

The event was co-sponsored by Fordham’s Louis Stein Center for Law and Ethics, Touro Law School and the Fordham Urban Law Journal.

 


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