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Original Articles

Literature Studies in Law Schools

C.R.B. Dunlop
Pages 63-110 | Published online: 11 Nov 2014

  • During the academic year 1989–90, the University of Alberta released me from teaching responsibilities through the grant of a McCalla Research Professorship. This release time, together with a research grant from the Faculty of Law, made this paper possible. I also want to thank Murray Baumgarten, John Jordan, David Papke, Wesley Pue, Richard Weisberg, and Robert Weisberg, all of whom read and commented on an earlier version of this paper.
  • James B. White, The Legal Imagination: Studies in the Nature of Legal Thought and Expression (Boston and Toronto: Little, Brown, 1973); republished in 1985 as The Legal Imagination: Abridged Edition (Chicago and London: U. of Chicago Press, 1985). Subsequent references are to the abridged edition.
  • For the history of the Law and Literature movement, see David R. Papke, “Law and Literature: A Comment and Bibliography of Secondary Works,” 73 L. Libr. J. 421 (1980); David Ray Papke, “Neo-Marxists, Nietzscheans, and New Critics: The Voices of the Contemporary Law and Literature Discourse,” 1985 Am. B. Found. Res. J. 883. For a survey of Law and Literature courses taught at American law schools, see Elizabeth Villiers Gemmette, “Law and Literature: An Unnecessarily Suspect Class in the Liberal Arts Component of the Law School Curriculum,” 23 Val. U.L. Rev. 267 (1989).
  • Daniel Tritter, “Preface to the Symposium: A Lusty Voice,” 1 CSLL iv (1989).
  • Gemmette, supra note 3, pp. 303–40.
  • The subject matter of these courses is usually drawn from high culture rather than pop culture. For a symposium on the latter, see “Symposium: Popular Legal Culture,” 98 Yale L.J. 1545 (1989). Lawrence M. Friedman (at 1579 of the symposium) defines pop culture, in the sense of books, as those works of imagination whose intended audience is the public as a whole, whereas high culture is intended for the intellectuals or the mandarins. See also Richard A. Posner at 1653 ff.
  • See, The Legal Imagination, supra note 2; When Words Lose Their Meaning: Constitutions and Reconstitutions of Language, Character, and Community (Chicago and London: U. of Chicago Press, 1984); Heracles' Bow. Essays on the Rhetoric and Poetics of the Law (Madison and London: U. of Wisconsin Press, 1985); “Law and Literature: ‘No Manifesto,’” 39 Mercer L. Rev. 739 (1988); Justice as Translation: An Essay in Cultural and Legal Criticism (Chicago and London: U. of Chicago Press, 1990).
  • “Law, Literature and Cardozo's Judicial Poetics,” 1 Cardozo L. Rev. 283 (1979); “How Judges Speak: Some Lessons on Adjudication in Billy Budd, Sailor with an Application to Justice Rehnquist,” 57 N.Y.U. L. Rev. 1 (1982); “Text into Theory: A Literary Approach to the Constitution,” 20 Ga. L. Rev. 939 (1986); “Law in and as Literature: Self-Generated Meaning in the ‘Procedural Novel,’” in C. Koelb and S. Noakes, eds., The Comparative Perspective on Literature: Approaches to Theory and Practice (Ithaca and London: Cornell U. Press, 1988), p. 224.
  • E.g., Robin L. West, “Adjudication is Not Interpretation: Some Reservations about the Law-as-Literature Movement,” 57 Tenn. L. Rev. 203 (1987).
  • It is not intended to look at graduate law degrees, which raise different considerations, but only at the first law degree which is taken by all would-be lawyers and which is the only law degree taken by most of them. Nor am I concerned with non-professional degrees in law such as the program offered by Carleton University in Ottawa, Canada.
  • Some current teachers of Law and Literature, like Richard Weisberg, have studied and taught literature at the university level before emigrating to law.
  • Although see John Jay Osborn, Jr., “UFOs in the Law School Curriculum: The Popularity and Value of Law and Literature Courses,” 14 Legal Stud. F. 53 (1990).
  • Richard A. Posner, Law and Literature: A Misunderstood Relation (Cambridge and London: Harvard U. Press, 1988); Robert Weisberg, “The Law-Literature Enterprise,” 1 Yale J. of Law and the Humanities 1 (1988).
  • Richard A. Posner, “The Decline of Law as an Autonomous Discipline: 1962—1987,” 100 Harv. L. Rev. 761, 762 (1987).
  • Id. at 763.
  • Francis A. Allen, “The Causes of Popular Dissatisfaction with Legal Education,” in Francis A. Allen, Law, Intellect, and Education (Ann Arbor: U. of Michigan Press, 1979), pp. 51, 57. For a similar Canadian view of legal scholarship, see S.M. Waddams, “Research and Scholarship,” in Mr. Justice Roy J. Matas and Deborah J. McCawley, eds., Legal Education in Canada (Montreal: Federation of Law Societies of Canada, 1987), p. 179. Allen probably exaggerates the uniformity of university legal education over the past eight hundred years, at least in England and Canada. Cf. W. Wesley Pue, “Guild Training vs. Professional Education: The Committee on Legal Education and the Law Department of Queen's College, Birmingham in the 1850s,” 33 Am. J. Legal Hist. 241 (1989); David Howes, “The Origin and Demise of Legal Education in Quebec (or Hercules Bound),” 38 U.N.B.L.J. 127 (1989).
  • Robert S. Summers, “The Future of Economics in Legal Education: Limits and Constraints,” 33 J. Legal Edite. 337, 348 (1983).
  • Marc Feldman and Jay M. Feinman, “Legal Education: Its Cause and Cure,” 82 Mich. L. Rev. 914, 919, 922 (1984) a review of Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s.
  • Law and Learning: Report to the Social Sciences and Humanities Research Council of Canada by the Consultative Group on Research and Education in Law (Ottawa: S.S.H.R.C., 1983), hereafter Law and Learning. Despite structural differences, Canadian and American legal education are sufficiently similar that Law and Learning will be relevant and useful in both countries.
  • “[R]esearch designed to collect and organize legal data, to expound legal rules, and to explicate or offer exegesis upon authoritative legal sources.” Law and Learning supra note 19, p. 65.
  • Law and Learning, supra note 19, p. 66. In French, the distinction is between recherches ponctuelles (“isolated, narrowly focused and rather random research”), and recherche sublime (“research that involves finding higher levels of explanation and integration through conceptual and empirical analysis”). Id. at 75.
  • Id. at 157.
  • Posner, supra note 14, pp. 766–73. See also Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (Chapel Hill and London: U. of North Carolina Press, 1983). Compare Guido Calabresi, “Thoughts on the Future of Economics in Legal Education,” 33 J. Legal Educ. 359, 360–62 (1983) who thinks that legal scholarship in the last sixty or so years has alternated between two major themes: legal process and “law and (some other discipline).”
  • E.g., George L. Priest, “Social Science Theory and Legal Education: The Law School as University,” 33 J. Legal Educ. 437 (1983).
  • Richard A. Posner, The Federal Courts: Crisis and Reform (Cambridge and London: Harvard U. Press, 1985), pp. 322–34.
  • E.g., James E. Murray, “Understanding Law as Metaphor,” 34 J. Legal Educ. 714 (1984).
  • Arthur Allen Leff, “Law and,” 87 Yale L.J. 989 (1978).
  • E.g., Milner S. Ball, The Promise of American Law: A Theological, Humanistic View of Legal Processi Athens: U. of Georgia Press, 1981).
  • Robert M. Cover, “The Supreme Court 1982 Term: Foreword: Nomos and Narrative,” 97 Harv. L. Rev. 4 (1983); Robert M. Cover, “The Folktales of Justice: Tales of Jurisdiction,” 14 Cap. U.L. Rev. 179 (1985). See also James R. Elkins and others, “Pedagogy of Narrative: A Symposium,” 40 J. Legal Educ. 1 (1990).
  • Allen, supra note 16; David E. Van Zandt, “The Relevance of Social Theory to Legal Theory,” 83 Nw. U.L. Rev. 10, 36–37 (1989); Harry H. Wellington, “Challenges to Legal Education: The ‘Two Cultures’ Phenomenon,” 37 J. Legal Educ. 327 (1987); Harry W. Arthurs, “The Law School in a University Setting,” in Matas and McCawley, supra note 16, pp. 167–68. See also Ball, supra note 28, pp. 128–36.
  • Stevens, supra note 23, pp. 270–75.
  • John S. Elson, “The Case Against Legal Scholarship or, If the Professor Must Publish, Must the Profession Perish?,” 39 J. Legal Educ. 343 (1989).
  • Roscoe Pound, in the discussion of the meaning of “law” in his five volume Jurisprudence (St. Paul: West, 1959), defines the term first as “the legal order…, that is, the regime of adjusting relations and ordering conduct by the systematic and orderly application of the force of a politically organized society. This regime is…carried on in accordance with a body of authoritative precepts, applied by an authoritative technique, on a background of received ideals, through a judicial and an administrative process.” See volume 2, pp. 104–05. Pound (typically) offers other definitions.
  • Waddams, supra note 16, p. 180, quotes John Willis as arguing that “law is an important part of Western man's dream of a life governed by reason [and] that the university is the acknowledged custodian of that dream.”
  • It would be misleading to read otherwise a judgment by Lord Denning, for example.
  • A legitimate criticism of Law and Learning is that it trivializes legal exegesis. See Mark Weisberg, “On the Relationship of Law and Learning to Law and Learning,” 29 McGill L.J. 155, 158–60(1983).
  • Arthurs, supra note 30, p. 168.
  • John Austin, “The Uses of the Study of Jurisprudence,” in John Austin, The Province of Jurisprudence Determined and The Uses of the Study of Jurisprudence, ed. H.L.A. Hart (London: Weidenfeld and Nicolson, 1954) (1st ed. 1863), p. 388.
  • See Franklin E. Zimring, “Where Do the New Scholars Learn New Scholarship?” 33 J. Legal Educ. 453 (1983).
  • James Boyd White writes that literature “complicates one's sense of oneself and the world” and “humiliates the instrumentally calculating forms of reason so dominant in our culture (by demonstrating their dependence on other forms of thought and expression).” See White, “Law and Literature: No Manifesto,” supra note 7, p. 741. See also James Boyd White, “Book Review: What Can a Lawyer Learn from Literature?” 102 Harv. L. Rev. 2014, 2036–37 (1989)—a review of Posner's Law and Literature: A Misunderstood Relation—“humanistic texts…confound the very part of us that wants to think in propositions, arguments, and forced conclusions.”
  • See e.g., Edward L. Rubin, “The Practice and Discourse of Legal Scholarship,” 86 Mich. L. Rev. 1835, 1895–1900 (1988).
  • Weisberg, supra note 36, p. 160.
  • I therefore disagree with Edward Rubin, supra note 41, pp. 1898–99, who concludes that, in projects involving law and another discipline, “legal scholarship must supply the organizing principles…generate its own problems, establish its own categories, identify its own audience, and develop its own validity claims.” Professor Rubin's sophisticated discussion of legal scholarship requires more careful attention than I can give it here.
  • A drawback in W.H. Holdsworth's Charles Dickens as a Legal Historian (New Haven: Yale U. Press, 1928) is that Holdsworth often forgets that Dickens is not writing as an historian but as a creator of fiction. As a result, Holdsworth persistently ignores or underestimates his subject's willingness to rewrite the facts of legal history to suit his purposes.
  • I assume without arguing the case here that fiction may present images and ideas to the reader, who in turn takes away something from her reading, if only a heightened understanding and sensitivity. To use Louise Rosenblatt's language, literature (especially the social novels and plays found in Law and Literature courses) is not entirely at the aesthetic end of the scale, but can and must be given an efferent reading as well. See Louise M. Rosenblatt, The Reader, The Text, the Poem: The Transactional Theory of the Literary Work (Carbondale: Southern Illinois U. Press., 1978).
  • It will be apparent that I take a more expansive view of what is interesting in literature than does Robert Weisberg, supra note 13. Nor do I agree with Posner that “although the writers we value have often put law into their writings, it does not follow that those writings are about law in any interesting way that a lawyer might be able to elucidate.” See Richard A. Posner, “Law and Literature: A Relation Reargued,” 72 Va. L. Rev. 1351, 1356 (1986).
  • See James D. Hopkins, “The Development of Realism in Law and Literature During the Period 1883–1933: The Cultural Resemblance,” 4 Pace L. Rev. 29, 60 (1983): “To see law as a fragment of our culture, to see it framed against the cultural background, is hardly to belittle it; it rather introduces into its discipline a greater perspective.”
  • Wayne C. Booth, The Company We Keep: An Ethics of Fiction (Berkeley: U. of California Press, 1988), p. 485.
  • Booth, supra note 48, p. 339. Compare Robert Gordon's view that one aim of the Critical Legal Studies movement is to dredge up and give content to alternative visions of social life which are systematically repressed by the dominant discourses of power in our society, particularly our law schools. See Robert W. Gordon, “Unfreezing Legal Reality: Critical Approaches to Law,” 15 Fla. St. U.L. Rev. 195, 200 (1987).
  • See also John Denvir, “William Shakespeare and the Jurisprudence of Comedy,” 39 Stan. L. Rev. 825, 840 (1987).
  • The obvious example is the anarchist novel, like William Godwin's Caleb Williams, but see also the spontaneous combustion of the (false) Lord Chancellor in Bleak House.
  • The rule of law may turn out for a Shylock to be the rule of those in power in an oppressively Christian society.
  • Richard H. Weisberg, “Law in and as Literature: Self-Generated Meaning in the ‘Procedural Novel,’” supra note 8. For a delightful play on unreason and law, see N. F. Simpson, One Way Pendulum.
  • E.g., Todd Andrews in John Barth's The Floating Opera.
  • See e.g., Paul Gewirtz, “Aeschylus' Law,” 101 Harv. L. Rev. 1043 (1988).
  • At least, this is my reading of Billy Budd. See White, “Book Review: What Can a Lawyer Learn from Literature?” supra note 40, pp. 2038–42.
  • 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); Robin West, “Submission, Choice, and Ethics: A Rejoinder to Judge Posner,” 99 Harv. L. Rev. 1449 (1986); Robin West, “Economic Man and Literary Woman: One Contrast,” 39 Mercer L. Rev. 867 (1988). For an excellent comment on this aspect of law in literature, see Robert Weisberg, supra note 13, pp. 17–36. For another critique, see Toni M. Massaro, “Empathy, Legal Storytelling, and the Rule of Law: New Words, Old Wounds?,” 87 Mich. L. Rev. 2099 (1989).
  • James Boyd White, “Speech to Plenary Session,” Association of American Law Schools; 1989 Annual Meeting, New Orleans, Louisiana, January 7, 1989.
  • Julius G. Getman et al., “Colloquy: Human Voice in Legal Discourse,” 66 Tex. L. Rev. 577 (1988). See especially essays by Getman (at 577) and Mark G. Yudof (at 589).
  • I make no apology for the repeated references to Bleak House in this essay. In my view, it is a rich and rewarding novel, a successfully trenchant comment on the law, and yet a neglected text in Law and Literature studies.
  • Charles Dickens, A Christmas Carol (London: Oxford U. Press., 1954), p. 70.
  • J. Allen Smith, “Law and the Humanities: A Preface,” 29 Rutgers L. Rev. 223 (1976); J. Allen Smith, “Aspects of Law and Literature: The Revival and the Search for Doctrine,” 9 U. Hartford Stud, in Literature 213 (1977); J. Allen Smith and Kathi J. Moore, “Law and Literature: A Symposium: A Case History with a Happy Ending,” 2 ALSA Forum, no. 1, p. 21 (1977); J. Allen Smith, “The Coming Renaissance in Law and Literature,” 30 J. Legal Educ. 13 (1979); J. Allen Smith, “Job and the Anguish of the Legal Profession: An Example of the Relationship of Literature, Law and Justice,” 32 Rutgers L. Rev. 661 (1979); J. Allen Smith and John Paul Laughlin, “Afterword: Law, Literature and Ethics,” 4 Miss. C.L. Rev. 327 (1984).
  • Smith, “Law and the Humanities: A Preface,” supra note 62, at 223. See also Richard Weisberg, “Coming of Age Some More: ‘Law and Literature’ Beyond the Cradle,” 13 Nova L. Rev. 107, 122 (1988); William H. Page and Richard H. Weisberg, “Foreword: The Law and Southern Literature,” 4 Miss. C.L. Rev. 165 (1984); Richard Weisberg, “Judicial Discretion, or the Self on the Shelf,” 10 Cardozo L. Rev. 105 (1988); Linda R. Hirshman, “Brontë, Bloom, and Bork: An Essay on the Moral Education of Judges,” 137 U. Pa. L. Rev. 177, 198; Judith Koffler, “The Assimilation of Law and Literature: An Approach to Metanoia,” 3 ALSA Forum, no. 1, p. 5 (1978); William T. Braithwaite, “Why, and How, Judges Should Study Poetry,” 19 Loy. U. Chi. L.J. 809 (1988).
  • White, “Law and Literature: No Manifesto,” supra note 7, p. 741.
  • Charles Dickens, Bleak House, eds. George Ford and Sylvère Monod (New York: Norton, 1977), p.3
  • Francis Allen, supra note 16, sometimes talks as if there is in the law a set of values which the good law teacher and researcher will unpack as part of her job. It seems to me that Allen underestimates the ambiguity of those values and neglects the existence and importance of alternative sets of values in our culture.
  • Carol Gilligan, In A Different Voice: Psychological Theory and Women's Development (Cambridge and London: Harvard U. Press., 1982).
  • See Lon L. Fuller, The Morality of Law (New Haven and London: Yale U. Press., 1969). For another version of 1984, see Margaret Atwood, The Handmaid's Tale.
  • A light-hearted starting-point is Margaret Atwood, “Justice in the Literary Tradition,” in Rosalie S. Abella and Melvin L. Rothman, eds., Justice Beyond Orwell (Montreal: Les Éditions Yvon Biais, 1985) 505. Cf. Northrop Frye, “Nobody wants a poet in the perfect human state,” Anatomy of Criticism: Four Essays (Princeton: Princeton U. Press, 1957), p. 128.
  • Charles Dickens, Bleak House, supra note 65, p. 9.
  • An example is Anthony Trollope, The Way We Live Now (New York: Knopps, 1950).
  • Orwell expressed his somewhat guarded admiration for English law more directly in The Lion and the Unicorn: Socialism and the English Genius and The English People. See Sonia Orwell and Ian Angus, eds., The Collected Essays, Journalism and Letters of George Orwell (Harmondsworth: Penguin Books, 1970), vol. 2, p. 74, and vol. 3, p. 15.
  • See, Barnaby Rudge and A Tale of Two Cities respectively.
  • See, e.g., Judith S. Koffler, “Reflections on Detente: Law and Literature,” 62 Tex. L. Rev. 1157 (1984); Richard H. Weisberg, “Family Feud: A Response to Robert Weisberg on Law and Literature,” 1 Yale J. of Law and the Humanities 69 (1988); cf. Owen M. Fiss, “The Challenge Ahead,” 1 Yale J. of Law and the Humanities viii (1988). Richard Posner seems to assume that most Law and Literature writing has a political agenda. See Posner, Law and Literature: A Misunderstood Relation, supra note 13
  • The continuing attack by Law and Literature writers on the Law and Economics movement seems to be motivated by the fear that Law and Economics expresses a conservative program that is convincing lawmakers and judges of its rightness (in two senses). See White, Justice as Translation, supra note 7, ch. 3; West, “Economic Man and Literary Woman: One Contrast,” supra note 57.
  • See Booth, supra note 48, ch. 3. Literature can be employed in support of a wide variety of causes. See, e.g., the use of Mark Twain's Life on the Mississippi to bash the Critical Legal Studies movement in Paul D. Carrington, “Of Law and the River,” 34 J. Legal Educ. 222 (1984).
  • This is not to say that political approaches to literature cannot be sophisticated and rewarding. See Brook Thomas, Cross-Examinations of Law and Literature: Cooper, Hawthorne, Stowe, and Melville (Cambridge: Cambridge U. Press., 1987); Terry Eagleton, Literary Theory: An Introduction, (Oxford: Blackwell, 1983). Applying Thomas' notion of the legal ideology of a period to writers like Dickens, for example, raises exciting prospects unfortunately beyond the scope of this essay.
  • Edgar Johnson, Charles Dickens: His Tragedy and Triumph (rev. ed., New York: Viking Penguin, 1977), p. 427.
  • See David Copperfield, especially chs. 58 to 64.
  • As I noted earlier, it is not intended to look at graduate law degrees but only at the first degree in law. See supra note 10.
  • For an interesting set of goals for legal education, see Summers, supra note 17, pp. 355–58.
  • There are significant differences between Canadian and American legal education, such as the existence in all Canadian provinces of a required articles year, and bar admission courses required of all articles students. However, the fundamental issues of legal education are similar enough that the following discussion can apply on both sides of the border.
  • “Appendix A: The Carrington Report,” in Herbert L. Packer and Thomas Ehrlich, New Directions in Legal Education (New York: McGraw-Hill, 1972); Law and Learning, supra note 19.
  • My conservatism on subject matter is not paralleled by a conservatism on teaching methods. It seems to me that legal education suffers from a dearth of research and thought on pedagogical questions, although see Andrew Petter, “A Closet Within the House: Learning Objectives and the Law School Curriculum,” in Neil Gold, ed., Essays on Legal Education (Toronto: Butterworths, 1982) 77; John Kilcoyne and Neil Gold, “Instructional Technology: The Systematic Design of Legal Education,” in Matas and McCawley, supra note 16, p. 254; Andrew J. Pirie, “Objectives in Legal Education: The Case for Systematic Instructional Design,” 37 J. Legal Educ. 576 (1987).
  • I disagree with George Priest, supra note 24, at 441, who argues that the increasing specialization of legal scholarship will necessarily lead to the law school itself becoming a university composed of miniature graduate departments. “Introductory courses may be retained (if not shunted to colleges)…. The law-school curriculum will come to consist of graduate courses in applied economics, social theory, and political science. Specialization by students, which is to say, intensified study, follows necessarily.”
  • William Twining, “Pericles and the Plumber,” 83 Law Q. Rev. 396 (1967).
  • Posner, “The Decline of Law as an Autonomous Discipline: 1962–1987,” supra note 14.
  • Law and Learning, supra note 19, pp. 49–50.
  • E.g., Robert M. Cover, “Violence and the Word,” 95 Yale L.J. 1601 (1986).
  • My own law faculty building closely resembles a cement bunker (perhaps on an intellectual Maginot line?).
  • See White's discussion of the complicating character of literature, quoted supra note 64.
  • See Ball, The Promise of American Law: A Theological, Humanistic View of Legal Process, supra note 28.
  • Gewirtz. supra note 55, p. 1050.
  • Andrew Pirie has traced the idea back to Coleridge. See Pirie, supra note 84, p. 580, n. 48.
  • See, e.g., White, The Legal Imagination, supra note 2, especially ch. 4; James M. Haughey, “The Arts and the Lawyer,” 28 U. Kan. L. Rev. 589 (1980); Lynn Smith, “The Courts and Different Kinds of Objectivity,” 45 The Advocate 17 (1987).
  • Northrop Frye, “Literature and the Law,” 4 Law Society Gazette 70, 77 (1970). Cf. Atwood, supra note 69, p. 516: “For the law itself is a creature of the mind, and as such is limited to the categories of the human imagination itself. We can embody in the law only what we can first imagine as fully human beings, and the more stunted and repressive the imagination at work, the more harsh, punitive and intolerable will be the resulting laws.”
  • Cf. Wayne Booth's description of the effect of a novel on a reader, supra note 48, p. 52:
  • I read a novel and find it not just pleasant but good, and I work out for myself the qualities that make it so: it is beautiful, unified, harmonious, coherent, original, new, or risk-taking. Or it does something for me that i now think needed doing: it has deepened my experience, heightened my sensibilities, matured my judgment, consoled me, shocked me, “defamiliarized” the word and the world, served the revolution, stabilized my tottering polis.
  • See Haughey, supra note 95; Hirshman, supra note 63, p. 201.
  • Cf. Thomas De Quincey's distinction between the literature of knowledge and the literature of power (e.g., poetry). See Thomas De Quincey, “The Poetry of Pope,” in John E. Jordan, ed., De Quincey as Critic (London: Routledge, 1973) (1848, 1858), pp. 266–73.
  • John J. Bonsignore, “In Parables: Teaching Through Parables,” 12 Legal Stud. F. 191 (1988).
  • Id. at 197.
  • Id. at 203–07.
  • Id. at 208.
  • John Carey makes the point in his book The Violent Effigy: A Study of Dickens' Imagination (London: Faber, 1973), p. 123. He notes Dickens' apparent view that paupers should be given a decent burial, or their corpses will spread disease among the middle class. He then notes the detail in Bleak House of Lady Dedlock visiting Hawdon's grave and standing in the archway “with its deadly stains contaminating her dress.” Carey goes on:
  • The suggestion…stirs the reader's imagination…. The difference between the two ways of communicating is that between imagination and reason. That graveyard railings stain ladies' dresses is from a reasonable viewpoint a trivial objection, but it has more power over the imagination that [sic] any amount of sanitary argument. Reason is circumspect, and can enlarge the issue with religious considerations. Imagination is direct.
  • The “morality” of the education may be debatable. See, e.g., Carey, supra note 104.
  • Cf. Katharine T. Bartlett, “Teaching Values: A Dilemma,” 37 J. Legal Educ. 519 (1987)—a comment on Roger C. Cramton, “Beyond the Ordinary Religion,” 37 J. Legal Educ. 509 (1987).
  • See, e.g., David Ray Papke, “The Writer on Wall Street: An Interview with Louis Auchincloss,” 5 ALSA Forum, no. 3, pp. 5, 8.
  • This is the situation in my law school, where students are required to take at least one from a group of courses on legal theory, law and literature, and legal history. I do not want to argue here the relative merits of these different courses.
  • See Smith, “The Coming Renaissance in Law and Literature,” supra note 62; Smith, “Job and the Anguish of the Legal Profession,” supra note 62; Milner S. Ball, “Confessions,” 1 CSLL 185 (1989); Bonsignore, supra note 100.
  • Bonsignore, supra note 100.
  • The quotation from Booth, supra note 49, suggests the capacity of fiction to comment on the law student's life during the rest of her days and nights at the law school.
  • Supra notes 26–29 and accompanying text; cf. Koffler, supra note 74. My experience, confirmed by an experienced literature teacher who has team-taught law and literature courses with me, is that law students tend to want novels to have one meaning or interpretation, while literature students are more likely to accept several readings of a text as possible and even desirable. One of the difficulties with Posner's readings of the fiction he discusses in Law and Literature: A Misunderstood Relation, supra note 13, is that he tends to assume that works of fiction bear only one meaning, although he criticizes this tendency in others, e.g., Robin West's treatment of Kafka.
  • See, e.g., Kim Lane Scheppele, “Foreword: Telling Stories,” 87 Mich. L. Rev. 2073 (1989)—a foreword to a legal storytelling symposium.
  • See Gemmette, supra note 3, p. 291.
  • The discourse of literature can illuminate and comment on the discourse of law, alike in some respects and different in others. See Robert Scholes, “Is There a Fish in This Text?” in Marshall Blonsky, ed., On Signs (Baltimore: Johns Hopkins U. Press, 1985) 308. This approach seems more useful and feasible than White's (apparent) view that different discourses can and should be integrated into one “human” discourse. See White, Justice as Translation, supra note 7, chs. 1, 11–12.
  • Richard H. Weisberg, The Failure of the Word: The Protagonist as Lawyer in Modern Fiction (New Haven and London: Yale U. Press, 1984).
  • The same problems arise for the English teacher who wants to swat up the law of heirlooms before teaching The Eustace Diamonds.
  • For comments on the problem of retooling law teachers to handle other disciplines, see David H. Vernon, “Education for Proficiency: The Continuum,” 33 J. Legal Educ. 559 (1983); Zimring, supra note 39.
  • Posner, Law and Literature: A Misunderstood Relation, supra note 13, p. 353.
  • Herman Melville, Billy Budd, Sailor (An Inside Narrative), eds. Harrison Hayford and Merton M. Sealts, Jr., (Chicago and London: U. of Chicago Press, 1962), p. 63.
  • For an interesting discussion of the interdisciplinary study of law in an undergraduate program (that raises many of the same problems as similar courses in law school), see Peter D'Errico, Stephen Arons, and Janet Rifkin, “Humanistic Legal Studies at the University of Massachusetts at Amherst,” 28 J. Legal Educ. 18 (1976).
  • See Harold Suretsky, “Search for a Theory: An Annotated Bibliography of Writings on the Relation of Law to Literature and the Humanities,” 32 Rutgers L. Rev. 727 (1980); John D. Ayer, “The Very Idea of ‘Law and Literature,’” 85 Mich. L. Rev. 895 (1987).
  • Apart from book reviews, the only extended essays on White that I have found are Richard K. Sherwin, “A Matter of Voice and Plot: Belief and Suspicion in Legal Storytelling,” 87 Mich. L. Rev. 543 (1988); Robin West, “Communities, Texts, and Law: Reflections on the Law and Literature Movement,” 1 Yale J. of Law and the Humanities 129 (1988); and Susan Mann, “The Universe and the Library: A Critique of James Boyd White as Writer and Reader,” 41 Stan. L. Rev. 959 (1989).
  • Justice as Translation, supra note 7, p. xiii.
  • The Legal Imagination, supra note 2, p. xiii.
  • When Words Lose Their Meaning supra note 7, p. 267.
  • Id. at 251.
  • Heracles' Bow, supra note 7, p. x. See also, Justice as Translation, supra note 7, pp. xii xiv.
  • When Words Lose Their Meaning supra note 7, p. 273.
  • Heracles' Bow, supra note 7, at 28. Cf. Koffler, supra note 63.
  • Justice as Translation, supra note 7, p. 216.
  • Justice as Translation, supra note 7, p. 246.
  • On White's literary theory, see Mann, supra note 123.
  • When Words Lose Their Meaning, supra note 7, p. 6.
  • Id. at xi. White's discussion of reading is heavily influenced by Wayne Booth, supra note 48.
  • Heracles' Bow, supra note 7, pp. 91–94.
  • When Words Lose Their Meaning, supra note 7, p. 17.
  • Heracles' Bow, supra note 7, p. 82.
  • White's discussion of the issue of interpretation is much more complex than my brief statement indicates.
  • Justice as Translation, supra note 7, p. 236.
  • Cf. Archibald MacLeish, “Apologia,” 85 Harv. L. Rev. 1505, 1508 (1972):
  • The business of the law is to make sense of the confusion of what we call human life—to reduce it to order but at the same time to give it possibility, scope, even dignity.
  • But what, then, is the business of poetry? Precisely to make sense of the chaos of our lives. To create the understanding of our lives. To compose an order which the bewildered, angry heart can recognize. To imagine man.
  • Heracles' Bow, supra note 7, p. x.
  • Id. at xii.
  • Id. at 32–35.
  • When Words Lose Their Meaning supra note 7, p. 273.
  • Heracles' Bow, supra note 7, p. 124; Justice as Translation, supra note 7, chs. 11 and 12.
  • Justice as Translation, supra note 7, p. 267.
  • When Words Lose Their Meaning supra note 7, p. 9.
  • Heracles' Bow, supra note 7, p. 117.
  • White returns to this idea repeatedly in his writing. See e.g., Justice as Translation, supra note 7, chs. 2, 4, and 10.
  • When Words Lose Their Meaning, supra note 7, p. 272.
  • Heracles' Bow, supra note 7, pp. 58–59.
  • Id. at 53.
  • The Legal Imagination, supra note 2, p. xv.
  • Heracles' Bow, supra note 7, pp. 40–41. See also, Justice as Translation, supra note 7, ch. 1.
  • Although see my comments on White's New Critical practice later in this section.
  • It is not intended to carry out a full scale critique of White as a legal theorist. Such a discussion would have to deal with issues such as his views on interpretation (and its relationship to translation), and his use of key terms like “language,” “discourse,” and “community.”
  • See, e.g., Geoffrey P. Miller, “A Rhetoric of Law,” 52 U. Chi. L. Rev. 247 (1985)—a review of When Words Lose Their Meaning; Robert M. Cover, “The Bonds of Constitutional Interpretation: Of the Word, the Deed, and the Role,” 20 Ga. L. Rev. 815 (1986); West, “Communities, Texts, and Law: Reflections on the Law and Literature Movement,” supra note 123; Kim Lane Scheppele, Legal Secrets: Equality and Efficiency in the Common Law (Chicago and London: U. of Chicago Press, 1988), pp. 105–08.
  • See, e.g., Justice as Translation, supra note 7, chs. 2 and 3
  • My colleague Richard Bauman points out to me that other legal theorists, like Hart and Dworkin, also discuss law in terms appropriate to fundamental constitutional issues, but not to the run-of-the-mill legal points which form the everyday fare of most law school lectures, legal opinions, or court judgments.
  • Heracles' Bow, supra note 7, p. xii, quoted above at note 143 and accompanying text.
  • 248 N Y. 339, 162 N.E. 99, 59 A.L.R. 1253 (1928).
  • 14 Q.B.D. 273 (1884).
  • See Gerald P. López, “Training Future Lawyers to Work with the Politically and Socially Subordinated: Anti-Generic Legal Education,” 91 W. Va. L. Rev. 305 (1989).
  • It is questionable whether the machinery of narrators, ideal readers, and so on can be applied without considerable modification to opinions, not to speak of statutes and regulations.
  • Heracles' Bow, supra note 7, at 41.
  • See, e.g., Justice as Translation, supra note 7, chs 5–9.
  • White is aware of the danger of “high-culture blindness” to the world which lies outside texts (see Heracles' Bow, supra note 7, pp. 119–38), but I remain unconvinced that he has fully worked out the consequences of this concession. See also West, “Communities, Texts, and Law: Reflections on the Law and Literature Movement,” supra note 123.
  • Justice as Translation, supra note 7, chs. 4, 6–9.
  • See, e.g., Allan C. Hutchinson, “From Cultural Construction to Historical Deconstruction,” 94 Yale L.J. 209 (1984)—a book review of When Words Lose Their Meaning.
  • White's comments on “law as rules” and “law as facade” theories in Justice as Translation, supra note 7, p. xiii are suggestive but skeletal.
  • Cf. Justice as Translation, supra note 7, pp. 97–99.
  • See, When Words Lose Their Meaning supra note 7, pp. 286–91.
  • Id.
  • The following account is largely based on Eagleton, supra note 77, pp. 46–51, and Frank Lenticchia, After the New Criticism (Chicago: U. of Chicago Press, 1980), Preface and ch. 1.
  • Lentricchia, supra note 175, p. 5.
  • Seethe reviews of When Words Lose Their Meaningby by Hutchinson, supra note 170, and Miller, supra note 158.
  • Compare Robin West who is concerned to attack Posner directly, albeit through the use of Kafka. See West, “Authority, Autonomy, and Choice,” supra note 57; West, “Submission, Choice, and Ethics,” supra note 57.
  • White has recognized the parallels in ch. 6 of Heracles' Bow, supra note 7.
  • There is occasionally a patronizing tone to White's review of Posner's Law and Literature: A Misunderstood Relation. See White, supra note 40.
  • In When Words Lose Their Meaning supra note 7.
  • I am indebted to Roger Shiner for this point.
  • When Words Lose Their Meaning supra note 7, ch. 1.
  • The Cardozo Studies in Law and Literature, and the Yale Journal of Law and the Humanities.
  • Posner, Law and Literature: A Misunderstood Relation, supra note 13.
  • Supra note 116.
  • The point has been made in reviews of When Words Lose Their Meaning by Hutchinson, supra note 170; and Terence Ball, “When Words Lose Their Meaning,” 96 Ethics 620 (1986).
  • See for example the differences between Pickwick Papers and Little Dorrit, both of which deal with imprisonment for debt but in widely differing ways. See C.R.B. Dunlop, “Debtors and Creditors in Dickens' Fiction,” in M. Timko, F. Kaplan, and E. Guiliano, eds., 19 Dickens Studies Annual: Essays on Victorian Fiction, (New York: AMS Press, 1990), p. 25.
  • See Thomas L. McHaney, “Commentary: Papers by Noel Polk and Morris Wolff,” 4 Miss. C.L. Rev. 265, 272–73 (1984).
  • This criticism may be made of Posner's discussion of the play. See Posner, supra note 13, pp. 90–99
  • This criticism underlies many of the reviews of Richard H. Weisberg's The Failure of the Word: The Protagonist as Lawyer in Modern Fiction, supra note 116. See, e.g., Susan Sage Heinzelman and Sanford Levinson, 7 Cardozo L. Rev. 453 (1986); Richard A. Posner, 96 Yale L. J. 1173 (1987); Nancy T. Hammar, 84 Mich. L. Rev. 974 (1986). As to James Boyd White, at least in When Words Lose Their Meaning see Mann, supra note 123, pp. 976–90. Legal scholars are not of course alone in trying to make literature fit a grand scholarly plan. Cf., e.g., Northrop Frye, Anatomy of Criticism, supra note 69.
  • Richard H. Weisberg, “Family Feud: A Response to Robert Weisberg on Law and Literature,” supra note 74, p. 74.
  • Weisberg has spoken about Great Expectations in a way that illustrates a partial acceptance of at least that novel into the canon. See his paper on Jaggers given to a conference on “Dickens and the Law” at the University of California at Santa Cruz in August, 1988. This paper will be part of his forthcoming Poethics (Columbia U. Press).
  • See the book reviews of The Failure of the Word, cited supra note 191, although Heinzelman and Levinson support Weisberg's position on Billy Budd.
  • Carolyn Heilbrun and Judith Resnik, “Convergences: Law, Literature, and Feminism,” 99 Yale L.J. 1913 (1990).
  • Ball, “Confessions,” supra note 109, p. 192–93
  • See generally Rowland D. McMaster, Trollope and the Law (Basingstoke: Macmillan, 1986).
  • As Richard Sherwin has noted, even the literature that White discusses can be given a more anti-rational and pessimistic reading leading to very different conclusions about the possibility of constitutive rhetoric. See Sherwin, supra note 123, pp. 575–92 on Sophocles' Philoctetes.
  • K.J. Fielding, “Benthamite Utilitarianism and Oliver Twist: A Novel of Ideas,” 4 DickensQ. 49 (1987).
  • C.R.B. Dunlop, “Law and Justice in Dreiser's An American Tragedy,” 6 U. of British Columbia L. Rev. 379 (1971).
  • Although compare Milton's Paradise Lost which undoubtedly tries to convince the reader of a theological and philosophical position, while succeeding as poetry.
  • See Dunlop, supra note 200, pp 399–403; C.R.B. Dunlop, “Human Law and Natural Law in the Novels of Theodore Dreiser,” 19 Am. J. Juris. 61 (1974).
  • A student of legal interpretation will have to deal with literary theory, because of the intermixture of these two discourses in the past ten years. Her knowledge of literature itself, while useful, is secondary to the theoretical issues, and any literature, whether about law or not, will do as a case study.
  • West, “Authority, Autonomy, and Choice: The Role of Consent in the Moral and Political Visions of Franz Kafka and Richard Posner,” supra note 57; West, “Submission, Choice, and Ethics: A Rejoinder to Judge Posner,” supra note 57; West, “Adjudication is Not Interpretation: Some Reservations About the Law-As-Literature Movement,” supra note 9; West, “Communities, Texts, and Law: Reflections on the Law and Literature Movement,” supra note 123. See also Robin West, “Jurisprudence as Narrative: An Aesthetic Analysis of Modern Legal Theory,” 60 N.Y.U.L. Rev. 145 (1985).
  • Posner has vigorously rejected her reading of Kafka. See Richard A. Posner, “The Ethical Significance of Free Choice: A Reply to Professor West,” 99 Harv. L. Rev. 1431 (1986); Posner, Law and Literature: A Misunderstood Relation, supra note 13, ch. 4.
  • West, “Authority, Autonomy, and Choice,” supra note 57, pp. 386, 391.
  • Although quaere whether Kafka's enigmatic fiction can be said to stand for any proposition.
  • Terry Eagleton, Literary Theory: An Introduction, supra note 77.
  • John Gardner, On Moral Fiction (New York: Basic Books, 1978).
  • Booth, supra note 48. The Gardner-Booth school are used by the Law and Literature writers in part because they enable an ethical and therefore a political ratio to be drawn from works of literature. See, e.g., Teresa Godwin Phelps, 39 J Legal Educ. 463 (1989) (reviewing Booth's The Company We Keep).
  • See, e.g., Weisberg, “Text into Theory: A Literary Approach to the Constitution,” supra note 8, pp. 951–54.
  • Milner Ball has recently observed that “the tendency is to defend the study of Law and Literature with theory when what is called for is more and better practice.” See Ball, “Confessions,” supra note 109, p. 189. See also White, Justice as Translation, supra note 7, pp. 98–99.
  • It is probably true, however, that there has been more interdisciplinary peer review in Law and Literature than in other recent innovative approaches to law. For example, many books in the field undergo critical reading by specialists in both fields prior to publication.
  • For example, the bond of flesh story in The Merchant of Venice is so interwoven with the other threads of the plot, e.g., the three caskets and the lost rings, that it is hard to say what is relevant and what is not.
  • My own law faculty has recently had a controversy over a painting (loaned to the school by a feminist artist) of a series of female figures. The painting was attacked on the ground that it objectified women, which the artist claimed was in a sense her point.
  • John Bonsignore, “Meta-Law Through Literature,” 1 ALSA Forum 11 (1976), quoting Camus, Carnets 1942–51, p. 2.
  • Bonsignore, supra note 216, p. 13.

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