- E.g. Bruce Ackerman, Social Justice and the Liberal State (New Haven: Yale U. Press, 1980); Michael Perry, Morality, Politics, and Law (New York: Oxford U. Press, 1988); Cass Sunstein, “Beyond the Republican Revival,” 97 Yale L.J. 1539 (1988); Benjamin Barber, Strong Democracy (Berkeley: U. of Cal. Press, 1984); Richard Bernstein, Beyond Objectivism and Relativism (Philadelphia: U. of Penn. Press, 1983); John Hart Ely, Democracy and Distrust (Cambridge: Harvard U. Press 1980). See also Louis Fisher Constitutional Dialogues (Princeton: Princeton U. Press, 1988).
- The best summary of Sunstein's theory is found in his “Republican Revival,” supra note 1. See also, Sunstein, “Interest Groups in American Public Law,” 38 Stan L. Rev. 29 (1985); Sunstein, “Constitutionalism after the New Deal,” 101 Harv. L. Rev. 421 (1987); Sunstein, “Naked Preferences and the Constitution,” 84 Columbia L. Rev. 1689 (1984).
- Sunstein, “Republican Revival,” supra note 1, p. 1542.
- I have argued elsewhere that Chief Justice Rehnquist's constitutional decisions appear to be driven by reliance on the pluralist model. See Denvir, “Justice Brennan, Justice Rehnquist, and Free Speech,” 58 Northwestern L. Rev. 285 (1985).
- Sunstein, supra note 3, p. 1548; see also Sunstein, “Interest Groups in American Law,” supra note 2.
- Sunstein, supra note 5, p. 1548.
- Id. at 1548–49.
- Id. at 1549.
- Id. at 1550.
- Id. at 1554.
- Id. at 1554.
- Id. at 1578, 1583–89.
- Id. at 1579–80.
- Sunstein, supra note 3, p. 1575.
- See Kahn, “Community in Contemporary Constitutional Theory”, 99 Yale L.J. 1 (1989), p. 41.
- Kathleen Sullivan, “Rainbow Republicanism,” 97 Yale L.J. 1713 (1988), pp. 1717–18.
- Kathleen Abrams, “Law's Republicanism,” 97 Yale L.J. 1591 (1988), pp. 1600–01.
- Derrick Bell and Preeta Bansal, “The Republican Revival and Racial Politics,” 97 Yale L.J. 1609 (1988), p. 1620.
- See also, Mark Tushnet, Red, White and Blue (Cambridge: Harvard U. Press, 1988), pp. 10–17.
- See Duncan Kennedy, “The Stages of Decline of the Public/Private Distinction,” 130 U. Pa. L. Rev. 1349 (1982).
- See Stephenie Wildman, “Integration in the 80's: The Dream of Diversity and the Cycle of Exclusion,” 64 Tul. L. Rev. 1625 (1990), pp. 1667–68.
- William Brennan, “Reason, Passion, and the Progress of the Law,” 10 Card. L. Rev. 3 (1987).
- See Ronald Beiner, Political Judgment (Chicago: U. of Chicago Press, 1983), p. 106.
- James Joyce, “The Dead,” in Dubliners (London: Grafton, 1914, 1977), p. 160.
- Id. at 160.
- Id. at 183.
- Id. at 183.
- Id. at 190.
- Id. at 191.
- Id. at 197.
- Id. at 197–98.
- Id. at 163.
- Id. at 162.
- Id. at 185.
- Id. at 171.
- Id. at 173.
- Id. at 174. Perhaps Gabriel's true feelings about Ireland and the company he shares are found in the “humorous” story he tells about his grandfather, the clan's patriarch. It seems “the old gentleman” had been a “glue-boiler” by trade, using a horse called Johnny to walk around in circles to drive the mill. One time “the old gentleman” decided to take a drive in the park with the “quality” people. He dressed in high collar and drove Johnny out to Phoenix Park. Unfortunately, as they passed a statue of King William, the Conqueror of Ireland, the horse took a liking to the statue and started to circle around it time and time again. Despite the palaver about Irish hospitality, this story may well reflect Gabriel's (or is it Joyce's?) disgust with the combination of pretension and servility marking the Irish middle class.
- See Hugh Kenner, “Dubliners,” in Peter Garrett, ed. Twentieth Century Interpretations of the Dubliners (Englewood Cliffs: Prentice Hall, 1968), p. 51.
- Joyce, supra note 24, p. 163.
- Id. at 163.
- Id. at 178.
- Id. at 178.
- Id. at 173.
- See text, supra, at notes 23 to 26.
- Sunstein, supra note 3, p. 1581.
- Joyce, supra note 24, p. 168.
- Id. at 161.
- See Richard Delgado, “The Imperial Scholar,” 132 U. Pa. L. Rev 561 (1984).
- See Barber, supra note 1, pp. 174–75.
- Sunstein, supra note 3, pp. 1548–49.
- See Denvir, “William Shakespeare and the Jurisprudence of Comedy,” 39 Stan. L. Rev. 825 (1987), pp. 825–35.
- Id. at 827.
- Joyce, supra note 35, p. 199.
- Id. at 199.
- Id. at 200.
- Id. at 200.
- Id. at 200–01.
- Loomis, “Structure and Sympathy in ‘The Dead,’” Garrett, supra note 38, p. 110. We can see three meanings in the necessity for Gabriel's “journey westward.” It certainly refers to his movement towards death, the mortality he shares with all living beings. It also refers to the West of Ireland where, as Ms. Ivors insists, lay his nation's Celtic roots, roots he has not yet embraced. Finally, it means a movement from all his “thought- tormented” obsession with social appearances to a deeper knowledge of self.
- See Denvir, supra note 52, p. 825.
- Frank Michelman, “Law's Republic“, 97 Yale L.J. 1493 (1988), p. 1502.
- Joyce, supra note 24, p. 183.
- On a similar theme of “recognition” in Shakespeare's comedies, see Denvir, supra note 51, p. 827.
- Perry, supra note 1, p. 76.
- See John Diggins, The Lost Soul Of American Politics (New York: Basic Books, 1984), pp. 277–333, for a discussion of how republicanism must be complemented by a sense of responsibility for past misdeeds.
- Suzanne Langer points out that one important function of art is to intensify emotions we experience less vividly in daily life. Feeling and Form (New York: Scribner, 1953).
- The best discussion is found in Henderson, “Legality and Empathy,” 85 Mich. L. Rev. 1574 (1987); see also Henderson, “The Dialogue of the Heart and Head,” 10 Card. L. Rev. 123 (1988). Henderson does not seem to put any weight on the distinction between “empathy” and “sympathy.”
- Unger, Passion (New York: Random House, 1986), p. 236.
- Joyce, Ulysses (New York: Random House, 1986), ch.15. One cannot but think that Unger had this famous fictional encounter in mind when he described the “psychology of sympathy.” Unger speaks of “the ease with which the object of the benevolence is confused in the mind of the sympathizer with an image of someone important to him in his prior experience. Thus, the stranger in trouble evokes the picture of a father or brother; or the young man about to plunge into a course of ambitious striving, an image of your own past self.” Unger supra note 67, p. 237. Stephen, who has left his own father's house “to seek misfortune,” reminds Bloom of his own dead son, Rudy.
- See Unger, supra note 67, pp. 199–206.
- Id. at 115.
- Id. at 258.
- Martha Nussbaum, “Narrative Emotions: Beckett's Genealogy of Love,” 98 Ethics 225
- (1987), pp. 226–27. Joyce reveals the capacity of fiction to show us truths beyond propositional logic. For instance, parts of “The Dead” can only be comprehended fully on an emotional level. His use of the symbolism of snow in Gabriel's final thoughts defies the principle of non-contradiction; freezing snow reminds us of death; yet snow is melted water, the symbol of life; and here it unites living, dead, and nature. Yet somehow this passage tells us something a more “rational discourse” seems to omit. See Wazl, “Gabriel and Michael: The Conclusion of ‘The Dead,’” in Robert Scholes and A. Walton Litz, eds., Dubliners: Text, Criticism, and Notes (New York: Viking Press, 1969), pp. 433–34.
- Sunstein, supra note 3, p. 1575. It is important to note that Sunstein does expressly rely on emotions like sympathy. See text, supra, at notes 11 and 17. Also, he expressly states that his theory does “to some degree depend on a commitment to political empathy.” Id. at 555. Still, emotion is not central to his theory, because of his suspicion that it is of little help in deciding “hard” legal questions. Id. at 1575 n. 196.
- Robert Bellah, et al., Habits of the Heart (Berkeley: U. of Cal. Press, 1985), p. 251. See also, Tushnet supra note 19, p. 316: “The [republican] ideal builds on our real experiences with friends, in families, at churches, in neighborhoods. Those experiences are complex, but along with moments of fear, anger, and alienation they contain moments of warmth, love, and connectedness.”
- Unger, supra note 67, p. 224.
- Just as we recognize that emotional commitment weakens as we move from the personal to the public, we must accept the fact that to the extent that emotions do transfer, they may not be sympathetic. One need go no further than the stories which precede “The Dead” in Joyce's Dubliners to be convinced of the suffocating strictures which a historical community can place upon the individual. Our own constitutional history is only too full of illustrations of the tendency of majority communities to project their own negative feelings on to members of minority groups.
- Richard Epstein, “Modern Republicanism—Or The Flight From Substance,” 96 Yale L.J. 1633 (1987), p. 1639.
- Nussbaum, supra note 72, p. 227.
- A clear example from popular culture of this phenomenon is Woody Allen in the film “Play it Again, Sam,” trying to emulate Rick, the Humphrey Bogart character in “Casablanca.”
- Wayne Booth, The Company We Keep (Berkeley: U. of Cal Press, 1988), ch. 9.
- Clifford Geertz, Local Knowledge (New York: Basic Books, 1983), pp. 170–175.
- See Drucilla Cornell, “The Institutionalization of Meaning,” 136 U. Pa. L. Rev. 1135
- (1988), p. 1177.
- See Bartlett, “Feminist Legal Methods,” 103 Harv. L. Rev. 829 (1990), pp. 880–87.
- Sunstein, supra note 3, p. 1552.
- Joyce, supra note 24, p. 183.
Law & Literature
Volume 3, 1991 - Issue 1