The Hillmon Case, the MacGuffin, and the Supreme Court

The case of Mutual Life Insurance Company v. Hillmon is one of the most influential decisions in the law of evidence. Decided by the Supreme Court in 1892, it invented an exception to the hearsay rule for statements encompassing the intentions of the declarant. But this exception seems not to rest on any plausible theory of the categorical reliability of such statements. This article suggests that the case turned instead on the Court\u27s understanding of the facts of the underlying dispute about the identity of a corpse. The author\u27s investigations into newspaper archives and the original case documents point to a different understanding, and proposes that this important rule of evidence may have grown out of an historical mistake

Sex, Lies and Videotape: The Pornographer as Censor

The legal branch of the women\u27s movement, although of one mind on some subjects, is divided on the proper approach to pornography. Some feminists oppose the imposition of any legal burdens on pornography because they fear that feminist speech will be caught in the general suppression, and others believe that any such burdens must violate the first amendment. Professor Wesson suggests that pornography should be defined to include only those materials that equate sexual pleasure with the infliction of violence or pain, and imply approval of conduct that generates the actor\u27s arousal or satisfaction through this infliction. So defined, pornography should be treated like other dangerous consumer products--its creators and disseminators ought to be held liable for the foreseeable harm that flows from its creation, distribution and use. Professor Wesson argues that this proposal does not violate the first amendment, properly construed, and that it also makes good feminist political sense. In particular, she points to the empirical link between pornography and harm to women, to the lies about women embodied in pornography, and to the silencing effect of pornography on women\u27s voices. She suggests that these consequences make pornography resemble other forms of speech that may, under the first amendment, be regulated

The Chow: Depictions of the Criminal Justice System as a Character in Crime Fiction

Having been honored by a request to contribute to a Symposium honoring my talented friend Alafair Burke, I composed this essay describing the various ways the criminal justice system has been depicted in English-language crime fiction. This survey, necessarily highly selective, considers portrayals penned by writers from Dickens to Tana French. Various dimensions of comparison include the authors’ apparent beliefs about the rule of law (from ridiculously idealistic to uncompromisingly cynical), the characters’ professional perspectives (private detective, police officer, prosecutor, defense lawyer, judge, victim, accused), and the protagonists’ status as institutional insiders or outsiders or occupants of the uncomfortable middle. The essay considers as well the protagonists’ insights (often useful, too often nonexistent) regarding issues of gender, race, and economic status — in their own professional lives, and as determinants of how one accused of a crime, or victimized by one, will experience the institutions of criminal justice. The essay concludes with some worried observations about what the election of Donald Trump may portend for crime fiction, in its likely corrosion of the rule of law and thus of the institutions of criminal justice