- James Boyd White's law and literature scholarship is voluminous. The major works which this article reviews are: Acts of Hope: Creating Authority in Literature (Chicago: University of Chicago Press, 1994); Justice as Translation: An Essay in Cultural and Legal Criticism (Chicago and London: University of Chicago Press, 1990); Heracles' Bow (Madison: University of Wisconsin, 1985); When Words Lose Their Meaning: Constitutions and Reconstitutions of Language, Character and Community (Chicago: University of Chicago Press, 1984); The Legal Imagination: Studies in the Nature of Legal Thought and Expression (Boston: Little Brown, 1973); “Translation As A Mode of Thought,” 77 Cornell Law Review 188 (1992) (symposium); “What Can a Lawyer Learn from Literature?,” 102 Harvard Law Review 2014 (1989); “Law and Literature: ‘No Manifesto,’” 39 Mercer Law Review 739 (1988); “Law's Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life,” 52 University of Chicago Law Review 684 (1985).
- See White, Justice as Translation, supra note 1 at 16–20.
- Id., at 17.
- Id.
- White, From Expectation to Experience: Essays on Law & Legal Education (Ann Arbor: University of Michigan Press, 1999), p. 78.
- Id.
- White, Justice as Translation, supra note 1 at 17.
- In the “Introduction to the Law Student,” in his first, and perhaps greatest, book, The Legal Imagination, supra note 1, at xxi-xxv; for example, White instructs his readers that they should begin thinking of themselves as artists rather than just lawyers. As White explains:
- There is no body of rules expressing the art of the lawyer any more than that of the sculptor or painter. You are as free as they, and as responsible for what you do. It is true that one of the mediums of the lawyer's art is rules, and the lawyer must know rules, and the other materials of the law as the sculptor must know clay and the painter paint and canvas. You must know what they are and how they work, before you can work with them. But what you must ultimately learn is what to do with the rules and judicial opinions and all the other forms of expression that are the working stuff of a lawyer's life, just as the sculptor must learn what to do with the clay and marble. You may feel that you are constrained by your material, as indeed you are. But compare the pianist, who is told what notes to play, in what order, how long and how loud; yet art is surely possible there. In asking you to define for the moment the lawyer as writer, to regard yourself in that way, I am asking you not to follow direction and example but to trust and follow your own curiosity; to work out in your imagination various future possibilities for yourself, defined by the real and imagined performances of your mind at its best; and to subject what you discover to criticism and speculation.
- Id., at xxv. With this passage, I imagine White, the poet and artist, whispering into his students' ears as they read these words, softly saying: “You can do this too with your text! Law can be cool jazz' if only you improvise the text with the imaginary performance of your mind. Yes, you too can create ‘hot literary texts’ in the law.” I realize, of course, that this may not be how others readers read White. However, isn't White's idea of law as literature aimed at encouraging us to read texts freely and imaginatively? We readers are free to “work out” in our minds various real and imagined performances of his texts. So, in my mind, I choose to read White as a literary kind of jazz artist who is seeking in the law to improvise with legal texts a new musical composition based on the artist's personalized idiom learned from literary studies.
- See Jack Kerouac, On the Road (New York: Viking, 1957, 1991). For a lively account of the beat generation which attempts to bring to life the feeling and the experience, see Steve Turner, Angelheaded Hipster: A life of Jack Kerouac (New York: Viking Press, 1996). For a revisionist account that attempts to describe Kerouac as a troubled homophobic homosexual, see Ellis Amburn, Subterranean Kerouac, The Hidden Life of Jack Kerouac (New York: St. Martin's Press, 1998). In comparing White to Kerouac and the beats, I do not wish to imply that sexual preference is in any way relevant to my comparison.
- To do what White does in the law, however, one would have to be like White, to live his life as a law and literature scholar, and to share his experiences as a literary artist struggling to do “art” in the law. And this is what White's readership seems to be saying about his law and literature; readers complain that the personalized idiom of his work is difficult and confusing because his personalized idiom is so different and out of place in the law. Although little that White says about law is found to be objectionable, readers are left complaining that little of what he does say “helps us to mold an ethics of law.” Richard Weisberg, Poethics and Other Strategies of Law and Literature (New York: Columbia University Press, 1992), p. 250. In reviewing a progression of his texts, Weisberg, one of White's contemporaries and early supporters, concludes that: “We are left with an often moving, and almost always engaging confession, a translation of White's earlier work into a new and more personalized idiom.” id.
- See Thomas C. Grey, The Wallace Stevens Case: Law and the Practice of Poetry (Cambridge: Harvard University Press, 1991), p. 2.
- Id.
- White, Justice as Translation, supra note 1 at 46–86.
- White, the literary artist, is saddened by the law today with its current fascination with “science” and the “theoretic.” Id., at xv. For further discussion of this point, see Gary Minda, James Boyd White's Quest for Law and Literature at Chicago (unpublished manuscript on file with editors).
- See Lawrence Joseph, Lawyerland (New York: Farrar, Struas, & Giroux, 1995).
- For an examination of why both the theoretical as well as the practical modes of lawyering have brought about a loss of faith in “the law,” see Pierre Schlag, Laying Down the Law: Mysticism, Fetishism, and the American Mind (New York: New York University Press, 1996).
- Jack Kerouac, “On The Road Again,” The New Yorker, June 22, 1998, at 46.
- Richard A. Posner, Law and Literature: A Misunderstood Relation (Cambridge: Harvard University Press, 1998), p. 52.
- Weisberg, supra note 10 at 226 (emphasis in original).
- White, “‘No Manifesto,’” supra note 1 at 739–751.
- White, The Legal Imagination, supra note 1.
- Id., at xxxiii.
- Id.
- Id.
- See White, Justice as Translation, supra note 1 at 99.
- For White, the crucial difference between “law” and “economics” concerns the different attitudes “towards one's own language and world,” or what White calls the different attitudes towards “translation and translatability.” Id., at 80. White argues that economics “get[s] most seriously in trouble when its practitioners assume that everything can be said in its terms, that [economics] is an adequate language for constructing the central metaphors of our social life.” id. This becomes especially troubling when economists speak and write as if their language has “no force of its own.” Ld., at 81. Language is thus thought to be a transparent vehicle for “identifying the actors and those objects in the world that are the objects of desire or disdain, or for pointing towards the concepts, existing above or beyond language itself, that create the mathematical entity called an economy.” id. The “literary view of language,” according to White, accepts the proposition that all languages are “limited” such that “the full translation from one to the other is always in a deep sense impossible.” id. According to White, “[t]his means that the most profound obligation of each of us in using his or her language is to try to recognize what it leaves out, to point to the silence that surrounds it—to acknowledge the terrible incompleteness of all speech, and thus to leave oneself open to hearing other truths, in other languages.” id. White insists that the “legal conversation” commits lawyers and judges to his literary view of language because the terms of law's language are always subject to contest and are thus “always arguable.” id.
- Id., at 46–53.
- The phrase originates with Mark Kelman. See Mark Kelman, Guide to Critical Legal Studies (Cambridge: Harvard University Press, 1987), p. 114. (“I believe that to the extent that one can discern general themes with the Law and Economics movement, it is the best worked-out, most consummated liberal legal ideology of the sort that CLS has tried both to understand and to critique.”)
- See White, “‘No Manifesto,’” supra note 1 at 739–751.
- Ld., at xv.
- White, When Words Lose Their Meaning, supra note 1.
- White, Heracles' Bow, supra note 1.
- White, When Words Lose Their Meaning, supra note 1 at 273.
- White, Justice as Translation, supra note 1.
- Id., at 257–269. By “literary translation,” White means something different from the way most people understand the word. In its customary understanding, translation is an interpretive practice that converts the meaning of one language into the meaning of another; for example, the way an interpreter would translate French or German into English. This common understanding of translation assumes that language is a “code” into which messages are encoded or a “system of signifiers and signified” that permit one to transport the meaning of one language or text into another. Such an understanding presumes that language is a “conduit,” and that translation is a medium for making an interpretation between parallel languages and cultures.
- The whole point of Whites idea of a literary translation is based on the notion that “languages (including legal ones) [are] forms of life, not merely…systems or instances of communication.” Id., at xiv. The idea of a literary translation is thus intended to bring out the meaning of the “languages and voices” that can be found in the worlds we inhabit. A literary translation contemplates the discovery of new meaning and new identity relations of different languages, texts, and cultures of human communities. White's idea of literary translation seeks to “‘bring to consciousness’ the ethical content of the literary practices of the interpretative community, by confronting the ethics and practices of another community, so that we might examine how the power of our community creates the meaning of who we are, as well as the character and identity of our culture—what White calls the ‘stuff of human life.’” Id., at 65.
- In the law, White claims that lawyers and judges are motivated to equate the word “translation” with the word “interpretation” and thus incorrectly assume that all translations work the way we would regard the translation of a foreign language—the translation is merely a conduit, or code, for transporting “meaning” from context to context. Such a view, says White, fails to appreciate the literary understanding of translation—the idea that with a translation an integration occurs creating new meaning from two different languages. Hence, when the lawyer and the client talk, they translate the meaning of each other's language, and that translation serves to create a new third language abstracted from two different languages and cultures. In failing to recognize the literary meaning of a translation, White claims that law's favored interpretative method of translating fails to do justice in law, and he wants his readers to contemplate how a literary translation might remedy this problem.
- While many have found White's idea of literary translation to be “inspiring,” some have come away feeling frustrated. Some have wondered whether White's yearning for a more literary translation will fail to give attention to the lessons to be learned from literature. One is left wondering, for example, as Weisberg has observed, whether the ethical lessons of some of the great classics of literature will be lost in the effort to characterize the lawyer's language as another literary narrative to be read and understood as giving meaning to the character of a human activity. See Weisberg, supra note 10 at 225. Indeed, White never provides us with an ethical referent or a story about justice as an exemplar for developing our understanding of the language of justice. This is a problem.
- White, Justice as Translation, supra note 1 at 260–261.
- Id., at 261.
- Id., at 262.
- Id. White believes that his idea of a “literary translation” will allow us to find something that has been long lost in the official narratives of law. What is missing is the meaning of justice. He claims that law's current language of justice fails to do justice because the laws idea of a translation ignores and marginalizes the reality of the “other” who may have a different language and a different culture than that represented by law's language and culture. White argues that this failure in translation is a product of a misunderstanding about the nature of a translation.
- White, Acts of Hope, supra note 1.
- Id., at 277.
- Id., at 3–44, 47–81, 153–183, 275–302.
- Id., at 306.
- Id., at 306, 307.
- White, supra note 5.
- White, supra note 5 at ix.
- Id.
- White, Heracles' Bow, supra note 1 at 39–40.
- Id., at n1.
- Id., at n2.
- Milner S. Ball & James Boyd White, “Dialogue: A Conversation Between Milner Ball and James Boyd White,” 8 Yale Journal of Law and Humanities 465, 468 (1996).
- Id., at 272 n.4.
- James Boyd White began his academic career at the University of Colorado School of Law, where he began teaching in 1965. After a brief visit at Stanford University School of Law, he accepted an appointment at the University of Chicago School of Law, where he taught from 1973 to 1983. In 1983, he accepted a dual appointment in Law and English at the University of Michigan, where he now resides. While Michigan has been his home since 1983, it was during the “Chicago years” that came in the middle of White's career that White faced the gravest challenge to his work in law as literature. The “Chicago years” (1973–1983) are the crucial cognitive ground for Whites literary narrative about literature, economics, and “the law.”
- Edward Levi, An Introduction to Legal Reasoning (Chicago: University of Chicago Press, 1949).
- Id., at 2.
- Harry Jones, “Our Uncommon Common Law,” 42 Tennessee Law Review 443, 449 (1975).
- Mercuro & Medema, Economics and the Law, (Princeton: Princeton University Press, 1997), p. 52. See also Neil Duxbury, Patterns of American Jurisprudence (Oxford: Clarendon Press, 1995), p. 340.
- Mercuro & Medema, supra note 57 at 52.
- Duxbury reports that “[m]ythology shrouds Director's achievements as Professor of Economics and general eminence grise at the University of Chicago Law School.” Id., at 343 (emphasis in original).
- See, e.g., George Stigler, The Theory of Price, 3rd ed. (New York: The MacMillan Company, 1966).
- See Mercuro & Medema, supra note 57 at 52; Duxbery, supra note 57at 368. The first generation of “Chicago School” theorists attempted to advance the insights of Adam Smith in defending market competition against governmental regulation. The second generation extended the arguments of the first generation by showing the connection between competitive markets and efficient outcomes. Mercuro & Medema, supra note 57 at 54–55.
- Mercuro & Medema, supra note 57 at 385–394. See Ronald Coase, “The Problem of Social Cost,” 3 Journal of Law and Economics 1 (1960). See also Gary Minda, Postmodern Legal Movements: Law and Jurisprudence at Century's End (New York: New York University Press, 1995), pp. 88–95.
- See, e.g., Richard Epstein, “Transaction Costs and Property Rights: Or Do Good Fences Make Good Neighbors?” in E. Posner, ed., Law and Economics (International Library of Essays in Law and Legal Theory, 2000), p. 175.
- As Duxbury notes, “[i]n identifying a relationship between transaction costs and dispute resolution, Coase demonstrates compelling reasons for engaging in the economic analysis of common law rules.” Duxbery, supra note 57 at 389.
- Milton Friedman, “The Methodology of Positive Economics,” in Essays in Positive Economics (Chicago and London: University of Chicago Press, 1953), p. 4.
- I want to thank Richard Weisberg for suggesting to me the relevance of geography at Chicago.
- John A. Wigmore, “A List of 100 Legal Novels,” 17 Illinois Law Review 26 (1922), originally 2 Illinois Law Review 574 (1908). See also Richard H. Weisberg, “Wigmore's ‘Legal Novels’ Revisited: New Resorces for the Expansive Lawyer,” 71 Northwestern Law Review 17 (1976).
- See James Boyd White, “The Ethics of Argument: Plato's Gorgias and the Modern Lawyer,” 50 University of Chicago Law Review 849 (1983).
- See, e.g., id.; White, Acts of Hope, supra note 1.
- Richard A. Posner, Economic Analysis of Law (Boston: Little, Brown, and Company), p. 4.
- Richard Weisberg, also a father of the modern law in literature movement, was an Assistant Professor of Literature in the Humanities Division at the University of Chicago from 1971–1975.
- There is no doubt that the “Chicago School” of economics has transformed the way lawyers and judges write and speak in the law. New words like “transaction cost,” “free riders,” as well as new linguistic concepts like the Coase Theorem have become part of law's discourse. The language of law is thus no longer the exclusive language of common law lawyers and judges; it is now a language of technocratic discourse framed in part by economists of the “Chicago School” of economics. What concerns White is that lawyers and judges will be prone, as a result of the influence of the “Chicago School,” to mistakenly accept economics as the “only language” for law.
- Lawrence Joseph, “On Kronman's ‘Rhetoric,’” 67 University of Cincinnati Law Review 719, 724 (1999).
- Public interest lawyers represent a small percent of the lawyer population. And today that population is shrinking in size as first year associate salaries escalate in response to the competition of the information economy.
- White, Justice as Translation, supra note 1 at 81.
- Id.
- Duncan Kennedy, “Form and Substance in American Adjudication,” 89 Harvard Law Review 1685 (1976).
- The categories are, as Steven L. Winter has shown, formed from narratives and cognitive models that define and mold the law. See Winter, A Clearing in the Forest: How the Study of the Mind Changes our Understanding of Life and Law (Chicago: University of Chicago Press, forthcoming 2001), pp. 91–138. See also Gary Minda, Boycott in America: How Imagination and Ideology Shape the Legal Mind (Carbondale: Southern Illinois University Press, 1999), pp. 55–98.
- See, e.g., Judge Learned Hand's decision in United States v. Carroll Towing Co., 159 F.2d 169 (2nd Cir. 1947).
- The most important reason is that the narrative enterprise is “highly contextual,” as Steven Winter has argued. See Winter, supra note 78. The narratives and the stories we construct are derived from the contests we inhabit. “[N]arrative proceeds from the ground up [its power is derived] from its very concreteness.” Id., at 2237.
- See Robert Cover, “Violence and the Word,” 95 Yale Law Journal 1601 (1986). White, however, regards Cover's warnings about the potential of the law to do “violence” to be overdrawn. According to White, Cover failed to distinguish between “the lawless and the lawful” and therefore ignored the potential of law to be an “important resource for moral and political thought.” White, “What Can a Lawyer Learn from Literature?,” supra note 1 at 246. Whether Cover ignored the noble potential of the law is highly debatable; he was, after all, focusing on something that was ignored in the law. What was ignored was the violence of law's authority to do real violence by ignoring and erasing the identity of subjects who are not part of law's story. See Gary Minda, “Crossing the Literary Modernist Divide at Century's End,” in M. Freeman & A. Lewis, eds., Law and Literature: Current Legal Issues, vol. II (1999), pp. 323–354.
- Ronald Dworkin's metaphor of a “chain novel”; see Dworkin, Law's Empire (Cambridge: Belknap Press, 1986), pp. 379–380, which illustrates the limitations that are placed on the legal author. In using the example of the “chain novel,” Dworkin argues that in the law the judge is forced to stick to a basic stock story that was told by other author/judges and that the evolution of the story as it is amplified and developed down the “chain” of judges explains how law develops. id. In order for the chain novel metaphor to work, one must assume that the author/judge cannot do what the literary author can do—that is, refuse to follow the basic stock story and simply begin a new story anew. In the law, deviation and subplot development are allowed, but only if the basic stock story remains the same. What one is not allowed to do in the law is to ignore the basic narrative plot that defines the relevant legal categories of legal doctrine. A more basic narrative about the importance of showing respect to the Rule of Law ensures that law's authors stick to the basic story lines of the law.
- See Cass R. Sunstein, “Social Norms and Social Roles,” in E. Posner, ed., Law and Economics (International Library of Essays in Law and Legal Theory, 2000), p. 135.
- See Robin West, “Authority, Autonomy, and Choice: The Role of Consent in the Moral and Political Visions of Franz Kafka and Richard Posner, “ 99 Harvard Law Review 384 (1985).
- See Richard Weisberg, “How Judges Speak: Some Lessons on Adjudication in Billy Budd Sailor, with an Application to Justice Rehnquist,” 57 New York University Law Review 1 (1982).
Law & Literature
Volume 13, 2001 - Issue 1