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Abstract
John Wigmore’s list of Legal Novels—really several lists compiled over the first thirty years or so of the twentieth century—helped to generate the modern embodiment of the Law and Literature movement. The bibliographical element, although of course controversial as the Law and Literature canon developed through multiple debates about what should and should not be read and discussed, proved essential in locating a group of stories that lawyers were to live with throughout their professional careers. More than bibliographical, however, Wigmore’s accompanying text stressed the democratization through great literature of a legal profession otherwise prone to misunderstanding the human realities with which it was theoretically always concerned. A defined group of fictional narratives—stories about law, lawyers, trials, statutes—was to reawaken in the legal reader the attachment to democratic values conveyed by literature through its acute awareness of human needs and the failure of great institutions to serve them. This essay marks the thirtieth anniversary of its author’s update of the Wigmore list. I trace the very active debates that have informed Law and Literature since that 1976 Northwestern Law Review article, and I celebrate the expansion to foreign shores of knowledge about Wigmore, as Law and Literature proponents both home and abroad have embraced Wigmore’s democratic impulse for law.
Keywords:
Notes
1. See my “Wigmore’s Legal Novels: New Resources for the Expansive Lawyer,” 71 Northwestern Law Review 17 (1976).
2. John Henry Wigmore, “A List of Legal Novels,” 2 Illinois Law Review 574 (1908)
[hereinafter “Wigmore 1908”], repr’d and exp’d as “A List of 100 Legal Novels,” 17 Illinois Law Review 26 (1922) [hereinafter “Wigmore 1922”].3. See, as a widely distributed wartime example of these, “A List of Books for Prospective Law Students Now in Service Prepared by a Committee of the Harvard Law School,” 58 Harvard Law Review 589 (1945). For an earlier effort with a Harvard connection, see also Eugene Wambaugh, “Summer Reading for Lawyers,” 1 Law Book News 199 (1894).
4. While earning my law degree, I was an assistant professor of French and comparative literature at the University of Chicago. On a leave from that school, I was given the chance to teach the seminar at Columbia. See infra, note 10. The semester after my essay was published, I taught a law and literature course for the first time both to law students and to students of literature. The venue was Cornell University, where I was a visiting fellow at the Society for the Humanities, as the professional description on the piece indicates.
5. The essay is reprinted in Margaret Hall, ed., Selected Writings of B. N. Cardozo (Bender, 1947, 1975), 338–428.
6. Ephraim London, The Law as Literature; The Law in Literature (New York: Random House, 1960)
.7. Wigmore 1922, supra note 2 at 28, emphasis added.
8. For example, David Mellinkoff, The Language of the Law (Boston: Little, Brown, 1963)
, and James Boyd White, The Legal Imagination (Chicago: University of Chicago Press, 1973) .9. A great anti–capital punishment story by Victor Hugo—“The Last Day of a Condemned Man”—was added to the three Hugo classics Wigmore had included. Six novels by Balzac were added, for example, to the eleven Wigmore included—there are after all fifty-eight lawyers in Balzac’s magisterial Human Comedy. (For a nice recent study of Balzac, see Daniel Kornstein, “He Knew More: Balzac and the Law,” 21 Pace Law Review 1 (2000).
) To Twain and other late-nineteenth-century Americans on Wigmore’s list, I added Herman Melville, a surprising absence; to Tolstoi I added his obvious contemporary, Fyodor Dostoevski. And among the numerous twentieth-century writers fascinated by the law, none of whom Wigmore lived to read, I included Franz Kafka, Albert Camus, and John Barth, for example. (My own extended ruminations about Camus, Melville, and Dostoevski eventually appeared in The Failure of the Word: The Protagonist as Lawyer in Modern Fiction (New Haven: Yale University Press, 1984) ; and on Barth and Kafka there are essays in my Poethics, and Other Strategies of Law and Literature (New York: Columbia University Press, 1992) .10. The major gaffe on my own list occurred here, as I omitted the best of all these works (as had Wigmore): Dickens’ Great Expectations. I am forever indebted to my friend and colleague, Benno C. Schmidt—with whom I taught the law and literature course at Columbia Law School in 1973—for pointing to Jaggers.
11. See, e.g., Karen L. Kretschmann & Judith Heilbrun, “‘Legal Novels’: An Annotated Bibliography,” Tarlton Law Library Legal Bibliographical Series #13 (1976)
; Richard Weisberg & Richard Danzig, “Reading List on Law and Literature,” The Bulletin of the National Endowment for the Humanities (April, 1977); Weisberg & Kretschmann, “Wigmore’s Legal Novels Expanded: A Collaborative Effort,” 50 New York State Bar Journal #2 (1978); Harold Suretzky, “Search for a Theory: An Annotated Bibliography of Writings on the Relation of Law to Literature and the Humanities,” 83 Michigan Law Review 663 (1985) ; Weisberg, “Appropriate Stylistic Models: A List of Legal Novels,” When Lawyers Write (Boston: Little, Brown, 1987).12. An enduringly central essay formed the preface to Robert Cover’s book Justice Accused: Antislavery and the Judicial Process (New Haven: Yale University Press, 1975)
: “Prelude, on Billy Budd and Antigone,” preface and pages 249–52. Cover probed these two classic tales and found unequaled sources of legal understanding for the historical material he then presented. See also Weisberg, “How Judges Speak: Some Lessons on Adjudication in Billy Budd, Sailor, with an Application to Justice Rehnquist,” 57 NYU Law Review 1 (1982) . Important for the field’s self-identification was an early full-length number, which innovated the subsequently frequent appearances of full-number law review symposia devoted to law and literature: see J. Allen Smith, “Law and the Humanities: A Preface,” 29 Rutgers Law Review 223 (1976) and subsequent essays. There followed book-length treatments including James Boyd White, Heracles Bow (Madison: Wisconsin University Press, 1985 ) and When Words Lose Their Meaning (Chicago: Chicago University Press, 1984); Brook Thomas, Cross Examinations of Law and Literature (New York: Cambridge University Press, 1987) ; Milner Ball, The Promise of American Law: A Theological, Humanistic View of Legal Process (Athens, GA: Georgia University Press, 1981) ; Robert Ferguson, Law and Letters in American Culture (Cambridge, MA: Harvard University Press, 1984) ; Ronald Dworkin, Law’s Empire (Cambridge, MA: Harvard University Press 1986) ; Richard Weisberg, Failure of the Word; Poethics, supra note 9.13. See, e.g., Posner, “A Response to Richard Weisberg on ‘Billy Budd,’” 1 Cardozo Studies in Law and Literature 71 (1989)
. The venue of his response was the first number of that peer-reviewed journal (now called Law & Literature) exclusively devoted to this interdiscipline; for the student-edited journal of the field, which was inaugurated contemporaneously with CSLL, see infra note 17.14. Posner, Law and Literature: A Misunderstood Relation (Cambridge: Harvard University Press, 1988)
. This volume, although described as “execrable” by no less than Stanley Fish (see “Don’t Know Much About the Middle Ages: Posner on Law and Literature,” Doing What Comes Naturally: Change, Rhetoric and the Practice of Theory in Legal and Literary Studies (Durham: Duke University Press, 1989) 294– 311, made a difference.15. Robin West, “Authority, Autonomy, and Choice: the Role of Consent in the Moral and Political Vision of Franz Kafka and Richard Posner,” 99 Harvard Law Review 384 (1985)
.16. Among the first to perceive this “sentimental claim within the movement was my namesake, Robert Weisberg. See his “The Law-Literature Enterprise,” 1 Yale Journal of Law and the Humanities 1 (1988)
. I immediately replied that no one in the field believed that the exposure to literary “culture” would soften or humanize lawyers, given how much evil legal professions had wrought in countries steeped in that very culture. See Richard Weisberg, “Family Feud: A Response to Robert Weisberg on Law and Literature,” 1 Yale Journal of Law and the Humanities 69 (1988) .17. See, e.g., Guyora Binder and Robert Weisberg, Literary Criticisms of Law (Princeton University Press, 2000)
. From the literary side, but in a more nuanced manner, the charge has reemerged; see Julie Stone Peters, “Law, Literature, and the Vanishing Real,” 120 PMLA 442–53 (2005) ; response of Richard Weisberg, “Law and Literature in Dialogue,” 121 PMLA 546–47 (2006).18. The position of Judge Posner in his Law and Literature, supra note 14.
19. My analysis in The Failure of the Word, supra note 9. There followed considerable side-taking by many other scholars and judges, literary critics, and others. For a summary of the varying positions on the story, see my “20 Years (or 2000?) of Story-Telling on the Law,” 26 Cardozo Law Review 2223, 2223–29 (2005).
20. Daniel Kornstein, Kill All the Lawyers? Shakespeare’s Legal Appeal (Princeton University Press, 1994)
; compare Weisberg, Poethics with Posner, Law and Literature, supra notes 9 and 12. For a very recent take on this debate, see Lizzie Widdicombe, “The Bench: Retrial,” in The New Yorker, Dec. 22 & 29, 2008, “Talk of the Town,” 44–46.21. See Roalfe, John Henry Wigmore, Scholar and Reformer (Evanston, IL: Northwestern University Press, 1977), 50
.22. Anne Simonin, “Eloge de l’eclectisme: Penser le Champ ‘Droit et Literature’ a partir des listes de ‘Legal Novels’ (1900–1987).” Paper given at Law and Literature colloquium in the Grand Chamber of the French Supreme Court, Oct. 13, 2006
, on file with the author, who has translated the passage from Simonin.23. See a series of articles by Elizabeth Gemmette, including “Law and Literature: Joining the Class Action,” 29 Valparaiso Law Review 665 (1995), in which for North America the number rose gradually from about two when the Wigmore update was published to about sixty in the early ‘90s to almost two hundred today. The breadth of coverage is increasingly matched by depth, as some schools offer more than one such course and, in a prominent Canadian school (University of Toronto), a J.D.-M.A. in Law and Literature is well into the planning stage.
24. I personally have been invited to teach or evaluate (where instructors are already in place) in Australia, Canada, Denmark, England, Germany, Israel, and Italy. It is also offered in Belgium, the Netherlands, and Norway. In China, I had the privilege of teaching “Law Through Stories” over a full semester to twelve Chinese law or graduate literature students at the University of Nanjing in 2002. In all these countries, scholarship of high quality has emerged reflecting the specificity of the indigenous bibliography and cultural challenges but also respecting the interpretive and narrative links Wigmore identified.
25. See Gary Minda, Postmodern Legal Movements: Law and Jurisprudence at Century’s End (New York: New York University Press, 1995), ch. 8
.26. To keep up with Wigmore’s list, my update, and all the even more recent fiction about law, the lawyer’s nightstand would be stacked high with legal novels.
27. The addition to law and literature studies of film and popular culture has been exciting and worthwhile, but although I now screen at least five “law films” per semester in my classes, I maintain the view that the camera’s “narration” throughout a film—although equally vital to its meaning as the narrative perspective within a novel—does not include precisely those verbal techniques common to lawyer and fiction writer.
28. Cardozo, “Law and Literature,” supra note 5.
29. See, e.g., my “The Codification of Western Law and the Poethics of Disclosure,” 6 Cardozo Studies in Law and Literature 157, 157–60 (1994).
30. For unique insights into the way a judge’s values inform her interpretive decisions, see (from my revisions of Wigmore’s list): Melville, Billy Budd, Sailor; Dostoevski, Crime and Punishment, The Brothers Karamazov; Camus, The Stranger; E. L. Doctorow, The Book of Daniel. Narrative fiction generally tends to debunk the seeming rationality of the judicial interpretive process but does so less from a stance of bitter powerlessness than one of a sister narrative institution with special understanding of how authoritative words influence captive audiences. See generally my The Failure of the Word, supra note 9.
31. See Cardozo, “Law and Literature,” supra note 5.
32. See especially, Melville’s Billy Budd and the debates about it, supra notes 12–13.
33. See my “Three Lessons from Law and Literature,” 27 Loyola of Los Angeles Law Review 285 (1993).
34. Wigmore 1908, supra note 2, at 579. The 1908 list, by the way, was a longer (377 titles!) version of the 1908 and 1922 lists I refer to in my update of thirty years ago, supra note 1, at n.1.
35. This paragraph restates my book-length thesis in Poethics, supra note 9.
36. The subtitle is itself an homage to John Ciardi’s classic work of new textual criticism: How Does a Poem Mean? (1958). Ultimate meanings (if they exist at all in legal and literary texts) must be demonstrated as plausible and perhaps eventually authoritative. The “how” is the pathway to the “what” of meaning.
37. See especially an explosion of law review and book-length interest in “theory” during the 1980s, e.g., the Texas Law Review symposium issue on Law and Literature, 60 Texas Law Review 373–586 (1982). See especially and perhaps of most enduring value, S. Levinson & S. Mailloux, eds., Interpreting Law and Literature (Evanston, IL: Northwestern University Press, 1988).
38. In addition to the Texas Law Review symposium cited supra note 37, there were some key individual players from literature and philosophy, notably Stanley Fish, whose best work is the still interesting Is There a Text in This Class? (Duke University Press, 1989)
, and Jacques Derrida, the late French deconstructionist who became increasingly present in American law schools after the appearance of his essay “Force of Law: The Mystical Foundation of Authority,” 11 Cardozo Law Review 919 (1990).39. Stanley Fish, “Fish v. Fiss,” 36 Stanford Law Review 1325 (1984)
.40. Stanley Fish, “Working on the Chain Gang,” in The Politics of Interpretation, ed. W. T. Mitchell, (Chicago: Chicago University Press, 1983)
.41. Dworkin, supra note 12.
42. “Fish Takes the Bait: Holocaust Denial and Post-Modern Theory,” 14 Law & Literature 131 (2002), rev’d and exp’d from 43 Critical Quarterly 19 (2001).
43. For excellent descriptions of Derrida’s work, which for reasons of space but also of substance I schematize brutally in these pages, see (on the favorable side) the work of my colleague Peter Goodrich, e.g., in “Europe in America: Grammatology, Legal Studies, and the Politics of Transmission,” 101 Columbia Law Review 2033 (2001)
, while a more balanced but ultimately critical perspective is taken by Jack Balkan, “Transcendental Deconstruction, Transcendent Justice,” 92 Michigan Law Review 1131 (1994) . See also Drucilla Cornell, Michel Rosenfeld & David Gray Carlson, eds., Deconstruction and the Possibility of Justice (New York and London: Routledge, 1992) . The enormous literature on Derrida, as well as on my own teachers, the deconstructionists Geoffrey Hartman and Paul de Man, exceeds the purview of this essay, again particularly because, as I am arguing, Wigmore at least would not have credited this wing of the “interpretation” debate very highly, given his far more expansive aims.44. See supra , notes 13 and 14. The concession to style occurs, e.g., in Posner’s Law and Literature (2d ed., Harvard University Press, 1998) at 255 and ch. 8 generally
.45. There is one disgracefully inadequate and underinformed reference to Wigmore at id., 308.
46. See id . at 209. He is wrong to say there that the “harvest from all that has been written about interpretation [for law] is meager.” Since Wigmore was not interested in this particular influence of literature on law (he was interested in the human element I discussed supra in section II (B) 1, I will not extend this debate here beyond pointing the reader to the valuable works cited infra at notes 48 and 49, and if needed to the dozens of earlier writers about legal hermeneutics who influenced Croce and Gadamer.
47. Hans Georg Gadamer, Truth and Method (New York: Crossroads, 1982).
48. Benedetto Croce, Aesthetic (New York: Godine, 1984)
.49. See supra note 17, ch. 3.
50. I have argued elsewhere that the first indeterminacy theorists were the gospel writers, who essentially misused the Jewish Bible by programmatically destabilizing established traditions of meaning. See Weisberg, “Text into Theory, or a Literary Approach to the Constitution,” 20 Georgia Law Review 939 (1986)
; and I further argue there and again briefly in these pages that this millennia-long approach is misguided, infra (b).51. Weisberg, “Text into Theory,” supra note 50, repr’d and rev’d in Levinson & Mailloux, supra note 37.
52. Wigmore 1908, supra note 2, at 587.
53. See the inclusion of my “Poethics,” supra note 9, in a list of works guiding literary interpretation back to a surer epistemological path than was followed during postmodernism in Laurence Buell, “In Pursuit of Ethics,” 114 PMLA 7, 10 (1999)
. My writings on Nietzsche’s interpretive strategies have also called on readers to recognize that there are limits to the meanings we can find in most texts, that those limits are palpable, and that there are readings that can simply be called “wrong”; see, e.g., “Nietzsche’s Hermeneutics: Good and Bad Interpreters of Texts,” in Nietzsche and Legal Theory, ed. Peter Goodrich & Mariana Valverde (New York: Routledge, 2005) . An elaboration of this chapter was delivered to the Northwestern Law Faculty workshop on Sept. 14, 2006 and to the University of Toronto Law Faculty on Oct. 24, 2006, and these are available.54. Michael R. Asimow & Richard H. Weisberg, “When the Lawyer Knows the Client Is Guilty: Client Confessions in Legal Ethics, Popular Culture, and Literature,” Southern California Interdisciplinary Law Journal (forthcoming).