An investigation into the stage history of Shakespeare's Tempest, 1667-1838 : a thesis presented in partial fulfilment of the requirements for the degree of Master of Arts in English at Massey University

After the theatres were re-opened in England at the Restoration, there were many adaptions made of Shakespeare's plays, and this was a common occurrence throughout the eighteenth century, lasting to Victorian times. It was only in the middle of the nineteenth century that Shakespeare began to be appreciated in the original form. The Tempest was one play that suffered many changes. Sir William Davenant and John Dryden collaborated in the first alteration of 1667, and their version is noteworthy because their changes were to a great extent retained by subsequent adapters. Pandering to a neo-classical desire for artistic symmetry, Davenant, the major contributor, and Dryden paired several of the major characters. To complement the lovers (Miranda and Ferdinand), they added Dorinda (Miranda's younger sister) and Hoppolito, who had never seen a woman, to be her mate. Caliban was given a sister, Sycorax, who has eyes for Trincalo (sic), and for Ariel, a female spirit called Milcha was created. Other changes in the dramatis personae are minor. The Restoration Tempest is full of farcical situations which stem from the lovers' naivity and the grotesque antics of the low comedy characters. The masque of Juno, protectress of marriage, in Shakespeare's Act IV has been cut, and altogether the effect of the original vanishes, the new play being much coarser. In 1674, an operatic version of the Restoration Tempest was published, probably written by Thomas Shadwell. This was basically Dryden and Davenant's play, though many songs were added. An elaborate masque of Neptune and Amphitrite was added towards the end, though it is hard to associate these characters with the ending of the play. Throughout the play there was much opportunity for spectacle and the use of mechanical contrivances. From 1747, when David Garrick became the manager of the Drury Lane Theatre, many of Shakespeare's plays were given a new look. Shadwell's operatic Tempest had been a long-running success, and in 1756 Garrick turned it into a three-act opera. This incorporated thirty-two songs, only three of which were Shakespeare's, and little regard was paid to the original text. It was a failure and Garrick repudiated authorship of it. In 1757 he reverted to a version that was much closer to Shakespeare's than any other before it. Among the 400 or more lines that Garrick omitted, however, were several intensely poetic passages. John Philip Kemble's Tempest of 1789, which used just the bare outline of the original plot, was merely a vehicle for the presentation of a number of songs, and was poorly received by critics who had begun to clamour for real Shakespeare, not a hybrid version of him. Kemble's next attempt to produce the play was in 1806, when he tried to combine the original and the Restoration versions. The last appearance of the Dryden-Davenant Tempest was in 1821 when Frederic Reynolds produced it, but it was greated with acrid criticism. William Charles Macready restored Shakespeare's original to the stage in 1838; and even though his interpretation catered for the visual impact more than for the poetry, his version was the first serious attempt for over century and a half to present the unadulterated Tempest to English theatregoers. Apart from detailing and commenting on the above changes, I have given several reasons for them, namely the adapters' endeavours to cater for contemporary taste and opinions, the neo-classical desire for symmetry, eighteenth century pragmatism, and the popularity of opera and of spectacle

The Business Judgment Rule, Disclosure, and Executive Compensation

Despite its ubiquity in corporate law, the business judgment rule remains a doctrinal puzzle. Both courts and scholars offer different understandings of the Rule\u27s role in litigation brought against corporate directors and different justifications for its deployment to insulate such directors from liability for breaches of fiduciary duties. This Article rejects all existing justifications for the Rule and argues that the Rule is no longer needed to protect directors from liability either because the justifications offered never made any sense or because directors are now protected by other, statutory means. Rather, the Rule is needed today not to protect directors, but the corporations they serve from the irreparable harm corporations would suffer if forced to disclose prospective business plans in order to defend decisions taken by their boards. This Article follows some recent scholarship in arguing that the Rule is best understood as an abstention doctrine and argues that courts should invoke the Rule and abstain from the review of the business judgment of corporate directors when the litigation that gives rise to such review would compel the corporation to disclose information relating to its prospective business plans. The Article then Illustrates why the Rule should not apply in cases involving challenges to board decisions relating to executive compensation through a detailed discussion of the ongoing litigation relating to the hiring and dismissal of the Walt Disney Company\u27s former President Michael Ovitz

A Path Not Taken: Hans Kelsen\u27s Pure Theory of Law in the Land of Legal Realists

This Essay is a contribution to a volume on the influence of Hans Kelsen’s legal theory in over a dozen countries. The Essay offers four explanations for the failure of Kelsen’s pure theory of law to take hold in the United States. Part I covers the argument that Kelsen’s approach failed in the United States because it is inferior to H. L. A. Hart’s brand of legal positivism. Part II discusses the historical context in which Kelsen taught and published in the United States and explores both philosophical and sociological reasons why the legal academy in the United States rejected Kelsen’s approach. Part III addresses the pedagogical obstacles to bringing Kelsen’s Pure Theory into classrooms in the United States. The final section addresses the U.S. legal academy’s continuing resistance to the pure theory of law. The vehemence with which legal scholars within the United States rejected Kelsen’s philosophy of law is best understood as a product of numerous factors, some philosophical, some political and some having to do with professional developments within the legal academy itself. Because the causal significance of philosophical and political opposition to Kelsen’s legal philosophy has been overstated, this Essay supplements those explanatory models with a sociological account of the U.S. legal academy’s rejection of Kelsen’s pure theory of law

Our Very Privileged Executive: Why the Judiciary Can (and Should) Fix the State Secrets Privilege

This paper was first presented at the Temple Law Review Symposium on Executive Power. In Reynolds v. United States, the Supreme Court shaped the state secrets privilege (the Privilege) as one akin to that against self-incrimination. In recent litigation, the government has asserted the Privilege in motions for pre-discovery dismissal, thus transforming the Privilege into a form of executive immunity. This Paper argues that courts must step in to return the Privilege to a scope more in keeping with its status as a form of evidentiary privilege. After reviewing the doctrinal origins of the Privilege, the Paper explores three types of issues implicated by the government\u27s invocation of the Privilege. The government, in calling for judicial deference to executive assertions of the Privilege, often realies on (1) separation of powers arguments or on (2) arguments sounding in institutional competence. Courts are often swayed by such arguments and thus give relatively little consideration to the (3) conflict of interest inherent in the government\u27s assertion of the Privilege and the impact of the successful invocation of the Privilege on the rights of individual litigants. The Paper then proceeds to address arguments that Congress can provide a check on executive abuse of the Privilege. The Paper argues that, assuming that Congress has constitutional authority, it lacks the will or the institutional competence to provide a proper solution to the problems raised by the Privilege. Instead, the Paper contends that, since courts created the Privilege, courts are best positioned to rein it in. The final section of the Paper provides examples drawn from case law illustrating mechanisms whereby courts can protect state secrets while also giving litigants adverse to the government their day in court

Book Review: HENRY J. RICHARDSON III, THE ORIGINS OF AFRICAN-AMERICAN INTERESTS IN INTERNATIONAL LAW

This short review evaluates Professor Richardson\u27s book both as a contribution to the history of the Atlantic slave trade and as contribution to critical race theory. Professor Richardson has read innumerable historical monographs, works of legal and sociological theory, international law and critical race theory. Armed with this store of knowledge, he is able to recount a detailed narrative of African-American claims to, interests in and appeals to international law over approximately two centuries spanning, with occasional peeks both forward and backward in time, from the landing of the first African slaves at Jamestown in 1619 to the 1815 Treaty of Ghent. The work partakes of some of the narrative and methodological strategies of the critical race theory tradition, including the fictive reconstruction of historical events, with new African-American voices added to the mix. But Professor Richardson is equally at ease with the approach to international law of the New Haven School, and he is thus able to write with great authority of how African-American history can be understood to have comprised a tradition of appeals to international law or international legal norms as a source of remediation for the injustices that African-heritage people suffered in the Americas

Plural Vision: International Law Seen Through the Varied Lenses of Domestic Implementation

This Essay introduces a collection of essays that have evolved from papers presented at a conference on “International Law in the Domestic Context.” The conference was a response to the questions raised by the U.S. Supreme Court’s decision in Medellín v. Texas and also a product of our collective curiosity about how other states address tensions between international obligations and overlapping regimes of national law. Our constitutional tradition speaks with many voices on the subject of the relationship between domestic and international law. In order to gain a broader perspective on that relationship, we invited experts on foreign law to introduce us to the way other states attempt to reconcile international commitments and the domestic constitutional order. The essays collected here were presented in three separate panels during the conference. The organization of the volume follows the same organizational principle. The first three papers thus focus on questions relating to the implementation of international human rights as domestic law. The two papers that follow address issues relating to international obligations and the foreign affairs power. The final section, which comprises four papers, provides a comparative perspective on how other international law is introduced into the domestic legal systems of Australia, Canada, China and the United Kingdom. Each contribution attests to the continuing relevance of Holmes’ dictum: the life of the law is not logic but experience. Programmatic statements in founding documents or in law review articles do not determine the status of international law in the domestic context. It is worked out through the various legal histories of each state. As each state grapples to reconcile its national legal traditions with its international obligations, it is worthwhile to pause and consider the experiences of others. It is our hope that this volume contributes to that process

Internet Giants as Quasi-Governmental Actors and the Limits of Contractual Consent

Although the government’s data-mining program relied heavily on information and technology that the government received from private companies, relatively little of the public outrage generated by Edward Snowden’s revelations was directed at those private companies. We argue that the mystique of the Internet giants and the myth of contractual consent combine to mute criticisms that otherwise might be directed at the real data-mining masterminds. As a result, consumers are deemed to have consented to the use of their private information in ways that they would not agree to had they known the purposes to which their information would be put and the entities – including the federal government – with whom their information would be shared. We also call into question the distinction between governmental actors and private actors in this realm, as the Internet giants increasingly exploit contractual mechanisms to operate with quasi-governmental powers in their relations with consumers. As regulators and policymakers focus on how to better protect consumer data, we propose that solutions that rely upon consumer permission adopt a more exacting and limited concept of the consent required before private entities may collect or make use of consumer’s information where such uses touch upon privacy interests