- The list does not include music, and I wonder why. Old timers in the mountains of north Georgia say they remember fiddling “at the Law Ground.” Memories are hazy about what, exactly, constituted those occasions. Music seems, at least now, to have little bearing on the doing of law. But see Daniel Kornstein, The Music of the Law (New York: Everest House, 1982).
- Proverbs, 25:11.
- Boston: Little, Brown & Co., 1973.
- 208 U.S. 412 (1908).
- See, e.g., Robert Cover, Justice Accused (New Haven: Yale, 1975).
- So did other, related writings. But White's book had a specific, practical consequence for me. The editor in chief of the Stanford Law Review convinced a reluctant board of editors to publish a piece of mine about courts as theater. As I recall, part of the case he said he made to his colleagues was the fact and precedent of White's book. (That wonderful young man, Jay Spears, who was to do much good for many others, has since died of AIDS. The Stanford Law Review dedicated one of its issues to him. 40 Stan. L. Rev. 839 (1988).) I was driven to law school by the trauma of attempts to dismantle apartheid in the south and to end American military involvement in Vietnam. The precipitating event was my experience at the 1968 Democratic National Convention in Chicago in the midst of a terrible year. I was deeply frustrated by the absence of an effective political voice. The new voices of White and other experimenters held immediate attraction.
- Law and Literature: A Misunderstood Relation (Cambridge: Harvard U. Press, 1988).
- Stanley Fish also read it as a kind of attack on “CLS”. See Stanley Fish, Doing What Comes Naturally (Durham: Duke University Press, 1989), 307–08.
- DeMuth, “The Pen and the Scales,” Wall Street Journal, Feb. 15, 1989, p. A12, col. 1.
- Id.
- Robert Weisberg views the movement as properly subversive in his essay on “The Law-Literature Enterprise,” 1 Yale J. of Law & Hum. 1 (1988). However, he understands the subversion to arise out of “the critical implications for a particular form of discourse of the notion that it is unified with other forms of discourse, that it is part of a larger phenomenon we can call ‘textuality.’” Id. at 52. If I understand his argument, I disagree with it. Such deep commonality as can be postulated—including a unity of contingency—is less discomforting than the polyphonic or heteroglossic capacity in language that I think is the just allure to interdisciplinarians and that sets us to the task White refers to as translation. And then, too, I suspect that the revolutionary power of either the unity or multivocality of discourse is easily overrated.
- Fish, Doing What Comes Naturally, supra note 8, at 204–05.
- Attachment to the legal academy is not a source of absolution; teachers of law cannot claim purity of heart by virtue of their profession, which, if nothing else, serves to legitimate law and its violence.
- See Cover, “Nomos and Narrative,” 97 Harv. L. Rev. 4 (1983); and Cover, “The Bonds of Constitutional Interpretation: Of the Word, the Deed, and the Role,” 20 Ga. L. Rev. 815 (1986).
- See West, “Adjudication is Not Interpretation,” 54 Tenn. L. Rev. 203 (1987).
- Minow, “Interpreting Rights,” 46 Yale L.J. 1860 (1987).
- Minow, The Judgment of Solomon and the Experience of Justice, in Cover & Fiss, The Structure of Procedure 447 (Mineola, N.Y.: Foundation Press, 1979).
- New Haven: Yale U. Press, 1984.
- Richard Weisberg correctly points out that one of the explanations for Posner's denigration of literature's import for law is literature's capacity for raising fundamental questions about law, including its violence. Among other things, fiction may “depict law as an instrument of terror.” Weisberg, “Entering With A Vengeance,” 41 Stan. L. Rev. 1597, 1604 (1989).
- So theory, as I understand it, comprehends more and better than the theory as algorithm attacked by Fish, Doing What Comes Naturally, supra note 8, at 378. Any piece of theory is necessarily provisional and temporary. Its subject is practice, and practice is always in transit. Moreover, any given attempt at theory may be faulty, and, even if not, will be context-bound. Theory is distortion free only within a given frame.
- Theory is an end for Roberto Unger and a diversion for the Supreme Court, which, since the modern introduction of standards of review, has swelled with attention to them and to itself. People and issues before the Court become buried in the Court's arguments with itself about deciding how to decide.
- See James Boyd White, When Words Lose Their Meaning (Chicago: University of Chicago Press, 1984), Chapter 2, 247–63.
- See Richard Weisberg, The Failure of the Word, supra note 18, 131–176; Koffler, “The Feminine Presence in Billy Budd,” 1 CSLL 1 (1988).
- See L. LaRue, Political Discourse: A Case Study of the Watergate Affair (Athens: U. Georgia Press, 1988).
- See Aviam Soifer, “Assaying Communities: Notes for The Tempest,” 21 Conn. L. Rev.—(1989).
- See Robin West, ‘“Authority, Autonomy, and Choice: The Role of Consent in the Moral and Political Visions of Franz Kafka and Richard Posner”’ 99 Harv. L. Rev. 384 (1985).
- See Anthony Chase, “The Legal Scholar As Producer,” 13 Nova L. Rev. 57–67 (1988); Chase “An Obscure Scandal of Consciousness,” 1 Yale J. of Law & Hum. 105 (1988).
- Therefore also “Law and Literature” should avoid self-descriptions that tend to the precious, the exclusive or the unnecessarily off-putting.
- I trust that it is unnecessary to observe that this is not an argument against disciplines or professions. Interdisciplinary studies are a doing of separatedness and togetherness.
- We may pay a price for feeling fine. So far the movement has been from English departments to law schools. Sooner or later there will be movement in the other direction. And then some real deprivileging will set in: how defend law school pay scales to the English department? By recurring to arguments about markets and capitulating to law and economics? Is our worth determined by our scholarly contributions to society or our role in limiting bar membership? See Chase, “The Legal Scholar as Producer,” supra note, 27 at 57.
- See Fish, supra note 12.
- I would never have known from the Texas Law Review's Symposium on Law and Literature, Vol. 60, No. 3, March, 1983 that there was lesbian feminist poetry in Texas. But maybe that is not fair. I would not have known about Homer and Melville from that symposium either or about any law-literature practice. Perhaps it was one of those occasional pauses for theory. A small, tentative advance in canonical, expansion can be detected in the first two issues of the Yale Journal of Law & Humanities.
- Cover, Proposal 1 (on file with the author).
- Id., at 2.
- Robert Weisberg thinks it desirable that law be informed by the voice of the specific, the empathetic, and the passionate but that to establish this voice as late as in law school and by recurrence to the humanities constitutes inappropriate “remedial reading.” Robert Weisberg, “The Law-Literature Enterprise,” supra note 11, at 17. For him, this program might imply that lawyers and law students are “doltish.” Id., at 18. I join Richard Weisberg in thinking him wrong on this point. See Weisberg, “Family Feud,” 1 Yale J. L. & Hum. 69 (1988). Why is teaching literature to our students in law school remedial, but teaching literature to them a year or so earlier in the English department, as some of us have done, not remedial? Why would teaching literature ever entail thinking of students, of whatever age and profession, as dolts? It makes me wonder what Robert Weisberg thinks teaching literature is and how it proceeds. Is ii not a joint adventure that precisely repudiates the remedial and the doltish? “Rabbi Hanina said: Much have I learned from my teachers, more from my friends, and most of all from my students.” (Ta'anit 7a)
- They have made it necessary to contend with economic analysis in, for example, torts, property, environmental law, and jurisprudence. See e.g. Posner and Landes, The Economic Structure of Tort Law (Cambridge: Harvard University Press, 1987).
- Minow, “Interpreting Rights,” supra note 16, at 1913. See also id., at 1914.
- Id., at 1906–07, n. 191.
- Minow, “Justice Engendered,” 101 Harv. L. Rev. 10, 74 (1987).
- Matsuda, “Looking to the Bottom,” 22 Harv. Civ. Rts. Civ. Lib. Rev. 323, 325 (1987).
- Subsequently, Robin West made a similar proposal. West, “Communities, Texts, and Law,” 1 Yale J. of L. & Hum. 129 (1988). There are two ambiguities in West's proposal. One is this: She says that our communities are limited by their texts and that, in consequence, we must attend to communities formed by interactions with others. But she implicitly makes a somewhat different argument: because texts constitute communities, we need to attend a greater range and diversity of texts. The other, related ambiguity is this: She says we need to feel the pain of those excluded by texts (Jim in Huckleberry Finn, for example). But again she implicitly argues that experience and pain are only accessible to others, to the degree that they are accessible at all, through these texts.
- She thus contrasts Toni Morrison's Sethe (in Beloved) to Twain's Jim. Some of the implied and specific points of this comparison raise questions in my mind. What does it mean to say that Jim's real experience and voice are excluded from the text of Huckleberry Finn? Where else does Jim exist except in the novel? And why turn to Sethe, a hundred years later? Is not the fit comparison between Jim and the authors of slaves' narratives, especially Frederick Douglass and Harriet Jacobs? Such texts and their alternative voices were well-known and, in some cases, were widely circulated. See, e.g., Charles Davis and Henry Gates, eds., The Slaves Narratives (New York: Oxford U. Press, 1985). This fact is an example of my point that texts “from the bottom” are near at hand; we do not have to wait a century for them. Also, because the slave narrative was a major original form, it was a conspicuous feature of the literary background that Twain would—deliberately, consciously?—have counted upon for informed reading of his own novels.
- Matsuda, “Looking to the Bottom,” supra note 40, at 331.
- See id., at 343–45 & n. 92.
- See id., at 335–37, 388 & n. 266.
- Id., at 344 n. 92.
- James Clifford, The Predicament of Culture (Cambridge: Harvard U. Press, 1988), 14. We can scarcely make others' experiences our own, and Clifford, Matsuda and Minow do not think otherwise. That is not the point. As Matsuda writes: “Our various experiences are not co-extensive. I cannot pretend that I, as a Japanese American, truly know the pain of, say, my Native American sister. But I can pledge to educate myself so that I do not receive her pain in ignorance.” Matsuda, “When the First Quail Calls,” 11 Women's Rts. L. Rep. 7, 10 (1989).
- White, “Book Review: What Can a Lawyer Learn from Literature?” 102 Harv. L. Rev. 2014, 2018 (1989).
- Id., at 2015.
- Weisberg, “Accepting the Inside Narrator's Challenge,” 1 CSLL 27, 43 (1988). See also id., at 44.
- Id., at 46 n. 15. Compare Cover, “Nomos and Narrative,” supra note 14, at 11 n. 31, 24.
- See discussion, supra, at notes 40–44.
- I join Robert Weisberg in anticipation of Richard Weisberg's “working out more systematically the relationship between his notion of ratiocination and Christianity.” Weisberg, “The Law-Literature Enterprise,” supra note 11, at 34 n. 114.
- Although discussion about these things may identify areas of disagreement, it is also sure to turn up some surprising agreement. For example, although I think Richard Weisberg overreads some of the evidence for Melville's covert attack upon Christendom in Billy Budd, I think his basic point is well taken (with respect to both Mellville and Christendom). Some evidence he underreads—e.g. the Bellipotent's chaplain. See Ball, “Cross and Sword, Victim and Law,” 35 Stan. L. Rev. 1007 (1983).
Law & Literature
Volume 1, 1989 - Issue 2