Law and Literature Part 1

Law and Literature.

Richard A. Posner.

Preface.

aw and literature are related to each other in interesting ways. Innumerable literary works, many of great distinction, take law for a theme, and feature a trial (Eumenides, The Merchant of Venice, Billy Budd, The Trial, The Stranger), abuse of judicial authority (Measure for Measure), conflicting jurisprudential theories (Antigone, King Lear), the practice of law (Bleak House), crime and punishment (Paradise Lost, Oliver Twist), the relation of law to vengeance (Oresteia, Hamlet), even specific fields of law, such as contract (Marlowe's Doctor Faustus), inheritance (Felix Holt, The Woman in White), and intellectual property (William Gaddis's A Frolic of His Own). These examples could be multiplied manyfold. (Anyone who doubts this claim should glance at Irving Browne, Law and Lawyers in Literature [1883].) Moreover, law is a rhetorical discipline, and the judicial opinions of some of the greatest judges, such as Oliver Wendell Holmes, have literary merit and repay literary a.n.a.lysis. Opinions and briefs are like stories; they have a narrative structure. A literary sensibility may enable judges to write better opinions and lawyers to present their cases more effectively. And the literary critic's close attention to text has parallels in the judge's and the lawyer's close attention to their authoritative texts-contracts, statutes, and const.i.tutions. The law even regulates literature, under such rubrics as copyright infringement,

defamation, and obscenity. Some law professors, moreover, have tried to make legal scholars.h.i.+p itself literary by incorporating narrative, memoir, anecdote, and fiction into their scholars.h.i.+p, and others have claimed that the study of literature in general-literature not limited to works that take law for a subject-can humanize the practice of law and the outlook of judges.

All this and more is the subject of this book. The first edition was published in 1988 and the second, an extensive revision of the first, in 1998. The years since the second edition was published have seen considerable, indeed accelerating, activity in what has been dubbed the "law and literature" field of legal scholars.h.i.+p. The AALS Directory of Law Teachers 20072008 lists 124 law teachers in law and literature, a respectable number considering that in the hottest of interdisciplinary legal fields, law and economics, the number listed is only 271, though the difference conceals the extent to which economic a.n.a.lysis, but not literary a.n.a.lysis, has been incorporated into law courses taught by professors who do not identify themselves in the Directory as teachers of law and economics. A positive sign for law and literature is the high percentage-69 percent-of law and literature professors who, according to the Directory, have been active in the field for five or fewer years, suggesting that the field is attracting young academics. (The corresponding percentage for law and economics is 65 percent.) The growth in the number of law and literature teachers cannot readily be gauged, however, because law and literature was not listed as a field until the 20042005 Directory, and because the field is not limited to law schools and law professors. But a bibliography of books and articles in law and literature published between 1985 and 2005 reveals significant growth: an average of only 8 works per year from 1985 through 1988, rising to 36 for 1989 through 1998 and 48 for 1999 through 2005. (These averages are computed from Law and Humanities Inst.i.tute, "Law and Literature Scholars.h.i.+p: A Chronological Bibliography," http://docs.law .gwu.edu/facweb/dsolove/LHI-Bibliography.htm [visited Feb. 12, 2008]. Another useful online source for studies of law and literature is "Law & Humanities Blog: A Blog about Law, Literature, and the Humanities," http://lawlit.blogspot.com/ [visited June 16, 2008].) Also since the second edition, the law and literature movement has spread to Europe: the Scandinavian countries in 2005, France in 2006, England in 2007, Italy and Portugal in 2008. See Nordic Network for Law and Literature, http://littrett.uib.no/index.php ?ID=Nyheter&lang=Eng; L'Inst.i.tut des Hautes Etudes sur la Justice, www.ihej.org/index.php?rub=ihej_conseiladmin; Raisons Politiques, Oct. 2007, www.cairn.info/revue-raisons-politiques-2007-3.htm; Maison Francaise d'Oxford,www.mfo.ac.uk/research/modernities/law_literature; Shakespeare and the Law Conference, University of Warwick, www .shakespearelaw.org/; AIDEL, http://equity.lawliterature.eu/2008/ 06/28/ aidel-italian-a.s.sociation-of-law-and-literature/; Colloquium on Literature and Law, University of Lisbon, www.comparatistas.edu.pt/en/ actividades/destaque/coloquio-sobre-literatura-e-direito.html. See also European Network for Law and Literature, www.eurnll.org/; Law and Literature a.s.sociation of Australia, www.law.unimelb.edu.au/events/ mediatinglaw/llaa.html. (All of these websites were visited on August 8, 2008.) A number of notable works, most by nonlawyers, have been published since the second edition of this book. They include Literature and Legal Problem Solving: Law and Literature as Ethical Discourse (Paul J. Heald ed. 1998); Heald, A Guide to Law and Literature for Teachers, Students, and Researchers (1998); Harriet Murav, Russia's Legal Fictions (1998); Trial and Error: An Oxford Anthology of Legal Stories (Fred R. Shapiro and Jane Garry eds. 1998); Philip C. Kissam, "Disturbing Images: Literature in a Jurisprudence Course," 22 Legal Studies Forum 329 (1998); Ian Ward, Shakespeare and the Legal Imagination (1999); Law and Literature (Michael Freeman and Andrew D. E. Lewis eds. 1999); Peter Brooks, Troubling Confessions: Speaking Guilt in Law and Literature (2000); Christine Alice Corcos, An International Guide to Law and Literature Studies (2000) (2 vols.); Special Double Issue: Joyce and the Law, 37 James Joyce Quarterly 317 (2000); Daniel J. Kornstein, "He Knew More: Balzac and the Law," 21 Pace Law Review 1 (2000); Emmanuel Yewah, "The Depiction of Law in African Literary Texts," 10 Miami International and Comparative Law Review 109 (2001); Jonathan H. Grossman, The Art of Alibi: English Law Courts and the Novel (2002); Lisa Rodensky, The Crime in Mind: Criminal Responsibility and the Victorian Novel (2003); Lucia A. Silecchia, "Things Are Seldom What They Seem: Judges and *Lawyers in the Tales of Mark Twain," 35 Connecticut Law Review 559 (2003); A. G. Harmon, Eternal Bonds, True Contracts: Law and Nature in Shakespeare's Problem Plays (2004); Literature and Law (Michael J. Meyer ed. 2004); Leonard J. Long, "Law's Character in Eliot's Felix Holt, the Radical," 16 Law and Literature 237 (2004); Roberto Gonzalez Echevarria, Love and the Law in Cervantes (2005); Law and Popular Culture (Michael Freeman ed. 2005); Wendy Nicole Duong, "Law Is Law and Art Is Art and Shall the Two Ever Meet? Law and Literature: The Comparative Creative Processes," 15 Southern California Interdisciplinary Journal 1 (2005); Bradin Cormack, A Power to Do Justice: Jurisdiction, English Literature, and the Rise of Common Law, 15091625 (2007); The Law in Shakespeare (Constance Jordan and Karen Cunningham eds. 2007); Lorna Hutson, The Invention of Suspicion: Law and Mimesis in Shakespeare and Renaissance Drama (2008); and Carla Spivack, "The Woman Will Be Out: A New Look at the Law in Hamlet," 21 Yale Journal of Law and the Humanities 31 (2008). Christine Corcos's two-volume bibliography of law and literature-1,263 pages in length-is alarmingly comprehensive.

I have continued writing about and teaching law and literature, and I have drawn on this writing in this edition, specifically "Orwell versus Huxley: Economics, Technology, Privacy, and Satire," 24 Philosophy and Literature 1 (2000); "Let Them Talk," New Republic, Aug. 21, 2000, p. 42; "What Has Modern Literary Theory to Offer Law?" 53 Stanford Law Review 195 (2000); "The Law of the Beholder," New Republic, Oct. 16, 2000, p. 49; The Economic Structure of Intellectual Property Law, chs. 2, 6 (2003) (coauth.o.r.ed with William M. Landes); "The End Is Near," New Republic, Sept. 22, 2003, p. 31; Public Intellectuals: A Study of Decline, ch. 6 (paperback ed. 2003) ("The Literary Critic as Public Intellectual"); "CSI: Baker Street," New Republic, Oct. 11, 2004, p. 47; "Cla.s.sic Revisited: Penal Theory in Paradise Lost," 105 Michigan Law Review 1049 (2007) (coauth.o.r.ed with Jillisa Brittan); The Little Book of Plagiarism (2007); and a review of Kieran Dolin, A Critical Introduction to Law and Literature (2007) (forthcoming in Modern Philology). I have also taught seminars on law and literature with the philosopher Martha Nussbaum (my intellectual sparring partner-see chapter 12), and lately also with the Shakespearean scholar Richard Strier.

There has been a continuing flow of scholars.h.i.+p addressed to the specific works of literature that I discuss (a notable example is A. D. Nuttall, Shakespeare the Thinker [2007])-scholars.h.i.+p that while not focused on legal themes is germane to them. Of note also are new translations of Kafka that are greatly superior to what was available when I did the previous editions.

The abundance of new work has enabled me to make this third edition an even more extensive revision of the second than the second was of the first. Among changes from the second edition, the introduction has been expanded in an effort to delineate the field of study more precisely. To Part I, I have added a section on the depiction of law in popular culture, including film; a chapter on Paradise Lost; discussions of trial scenes in the Gospel according to St. John, Alice in Wonderland, and Saint Joan; and discussions of additional novels, including Joyce Carol Oates's law novel, Do with Me What You Will. Part II contains considerable new material as well, and Part III has been completely reworked. In the second edition it was limited largely to a discussion of efforts at using literature that does not have a legal theme, along with narrative techniques borrowed from literature, to improve law's moral tone. The discussion of those issues remains and indeed has been expanded, but it is now preceded by chapters (chapters 10 and 11) on how literary models and techniques might be used to improve the performance of judges and lawyers. I have divided the last chapter in the book into two chapters (const.i.tuting a new Part IV) in recognition of increased ferment in copyright law and increased concern with literary plagiarism. And I have added a conclusion that sketches a future for the law and literature field.

There are deletions as well, for example of the discussions in the second edition of literature and the Holocaust and of judicial biography, topics remote from the central concerns of the law and literature field. And there has been a considerable tightening and updating of the entire text, much stylistic revision, and a revaluing of some of the works discussed.

The book in its present form is not quite a treatise, but it is the closest that the law and literature movement has come to producing one. The only comprehensive book-length treatment of the field, it ranges across all the topics that have engaged the interest of law and literature scholars, charts future directions for scholars.h.i.+p, and offers a fresh perspective and *a variety of a.n.a.lyses of specific works in both literature and law, ranging in literature from Homer to John Grisham and in law from the judicial opinions of Oliver Wendell Holmes to the laws regulating literary parodies and defamation by fiction.

My hope is that this new edition will help a promising field of interdisciplinary teaching (both undergraduate and law school) and scholars.h.i.+p to continue moving forward, but also that its readers.h.i.+p will not be limited to legal and literary scholars and students. Law so permeates American life that all of us should take an interest in it. Law and literature provides a way into law that should be congenial to nonlawyers, as well as a way into literature that should be congenial to lawyers. Modern literary theory tends to obscurity, to repellent prose and a pretense of profundity; everything in this book is presented very simply, in an effort to make more judges, lawyers, and law students comfortable with the literary culture and what it can contribute to the practice and improvement of law.

I thank Alicia Beyer, Laura Bishop, Brian Darsow, Justin Ellis, Nevin Gewertz, Allison Handy, Tara Kadioglu, Mark Sayson, s.h.i.+ne Tu, and Michael Yanovsky for research a.s.sistance; Charles Fried and my editor at the Harvard University Press, Michael Aronson, for suggestions; and Rebecca Haw, Charlene Posner, and Richard Stern for comments on the ma.n.u.script. Chapter 7 is based on an article coauth.o.r.ed with Jillisa Brittan, and she has also given me helpful suggestions with regard to this new edition.

Law and Literature.

Critical Introduction.

aw and literature" brings together two overlapping bodies of thought, the legal and the literary, that have much in common, including an emphasis on rhetoric. Many works of literature deal with law (and its origins, which include revenge). Law itself is formulated and announced in writings, such as statutes, the Const.i.tution, and judicial opinions, that sometimes exhibit a density, complexity, and open-endedness comparable to what one finds in literary works. It is a field with a wide remit, as I shall ill.u.s.trate with E. M. Forster, who was not a lawyer, and with his novel Howards End (1911), which is not a "legal" novel even to the extent to which A Pa.s.sage to India, which has a notable trial scene (see chapter 5), is.

Howards End pivots on the contrast in style and values between a pair of German-born but Anglicized sisters named Schlegel-cultured, sensitive, high-minded epigones of German Romanticism-and the Wilc.o.xes, a boringly English family whose men personify philistine, commercial values. Margaret Schlegel had married Henry Wilc.o.x after the death of his first wife; and now her unmarried sister, Helen, has become pregnant by a pathetic young workingman named Leonard Bast. Bast's wife, as it happens, had before her marriage been Henry Wilc.o.x's mistress when he had been married to his first wife but living in a different part of the world

1.

because of his work. Henry had failed to make any provision for the mistress after leaving her.

Henry regards the pregnancy of his unmarried sister-in-law as a terrible scandal to which only two responses are possible. If the seducer is unmarried, he must be forced to marry her; if he is married, he "must pay heavily for his misconduct, and be thrashed within an inch of his life"

(p.

305).1 Henry questions his wife in an effort to discover the seducer's ident.i.ty. Margaret doesn't want to reveal it, so she changes the subject. She asks whether Helen may stay at their house (Howards End), as Helen wants very much to do on this last night before she goes off to Munich to have the baby in seclusion. Henry is appalled, but responds mildly enough by questioning Helen's reasons for wanting to stay at Howards End. He gets nowhere-Margaret insists that all that matters is that Helen wants to stay. So he changes tack: "If she wants to sleep one night, she may want to sleep two. We shall never get her out of the house, perhaps"

(p.

306). A lawyer's ears should p.r.i.c.k up. This is a familiar lawyer's gambit-the "slippery slope." If you accept claim a, you must consider whether that commits you to accepting b, c ... n because there is no principled distinction between the claims and therefore no logical stopping point; and so you must consider the consequences of the entire set of claims. To suppose that this principle obliterates the distinction between a visit of one night and a visit of indefinite length (which in any event Helen does not intend because she is about to go abroad to have her baby) is absurd; and we may begin to wonder whether Henry Wilc.o.x isn't an inflexible, rule-obsessed, in short legalistic reasoner and whether his "slippery slope" argument isn't, in point of obtuse rigidity, on a par with his insistence that the only possible response to Helen's pregnancy is either a shotgun marriage or a criminal a.s.sault on the seducer.

His legalistic mindset shows up in another context as well. The first Mrs. Wilc.o.x, who had been the legal owner of Howards End, had wanted to leave the house to Margaret but had expressed her intention in a note that failed to comply with the formalities required for a will. Henry, standing on his legal rights, had torn up the note, perpetrating an injustice in the name of legal justice. (The tension between real justice and legal justice is a recurrent theme in the literary treatment of law.) 1. Page references are to the Vintage Books edition (1954).

The impression of Henry's obtuseness is reinforced when he fails to catch the meaning of Margaret's remark: "Will you forgive her-as you hope to be forgiven, and as you actually have been forgiven?" (p. 307). The reference is to Henry's relations.h.i.+p with the woman who is now Leonard Bast's wife. But the remark has a further significance: it is an appeal to mercy over against strict legal justice. Henry rejects the appeal, saying, "I know how one thing leads to another." When he fails to react to her further remark, "May I mention Mrs. Bast?" Margaret becomes enraged. "Margaret rushed at him and seized both his hands. She was transfigured. 'Not any more of this!' she cried. 'You shall see the connection if it kills you, Henry! You have had a mistress-I forgave you. My sister has a lover-you drive her from the house . . . Only say to yourself: "What Helen has done, I've done"'" (p. 308). Even this sally has no effect. Committed to the fundamental precept of legal justice that like cases must be treated alike, Henry responds that "the two cases are different." But not being a clear thinker, he is unable to identify the difference. So again he changes tack. He accuses Margaret of trying to blackmail him, thus placing her words in a cla.s.s of illegal conduct to offset against the wrongfulness of his own conduct. The charge of blackmail is false. Margaret has neither expressly nor by implication threatened Henry that unless he lets Helen stay the night at Howards End she will expose his old relations.h.i.+p with Mrs. Bast. (And expose to whom? Who would care?) Henry is a very poor legal reasoner, but the interesting thing is that in a novelistic setting remote from law we catch an echo of legal reasoning.2 Forster a.s.sociates the legal style of thinking with the failure to connect heart and mind. ("Only connect" is the epigraph of Howards End and in effect Forster's motto.) The human tragedy is that people become enmeshed in structures of thought that prevent them from leading emotionally satisfying lives and treating other people decently. Victorian s.e.xual morality had by condemning h.o.m.os.e.xuality contributed to making Forster's own life miserable. In Howards End this condemnation is displaced onto Henry's rejection of Helen for her lesser violation of the Victorian code. The code itself Forster seems thus to have a.s.sociated with the lega*2. As we do in the even more remote setting of Orpheus's plea to Hades to return Eurydice to the upper world. Russ VerSteeg and Nina Barclay, "Rhetoric and Law in Ovid's Orpheus," 15 Law and Literature 395, 402409 (2003).

*mentality; it may be significant that he wrote Howards End only a decade after the trial, conviction, and imprisonment of Oscar Wilde for h.o.m.os.e.xual acts.

The excesses of Romanticism are also a theme of Howards End; Helen's irresponsible behavior with Leonard Bast is a factor in Bast's destruction. But Forster seems to have been especially critical of legalism, which he imagined to be committed to arid abstractions that inflict gratuitous suffering. He exaggerated, but that is not to the point; I want merely to suggest the ubiquity of law as a literary theme.

Law's techniques and imagery have permeated Western culture, popular as well as high, from its earliest days. Law has engaged the attention of imaginative writers as an object of fascination in its own right,3 as a dramatic and rhetorical mode (as in Howards End) that reaches its theatrical zenith in the trial4 (hence the large number of climactic trial scenes in works of literature), and in contrast as a symbol of the orderly everyday world that is foil and backdrop to the disruptive situations that are the stock in trade of literature. Lorna Hutson argues that changes in English legal culture in the sixteenth century resulted in a greater emphasis by judges and jurors on weighing evidence, evaluating the competing narratives of the opposing parties, and a.s.sessing probabilities, and that this emphasis inspired dramatists such as Shakespeare to write plays that involved the realistic probing of the motives, character, and behavior of their dramatis personae. 5 Law's aspect as contest provides an a.n.a.logy to the troubled lives en Novelists have done brilliant nonfiction writing about law. Examples are Sybille Bedford's The Faces of Justice: A Traveller's Report (1961), a description of trials in different European countries, and Rebecca West's account of the questionable trial of "Lord Haw-Haw"- William Joyce, an American executed as a British traitor because he carried a British pa.s.sport, although he was not a British citizen. "The Revolutionary," in West, The Meaning of Treason 1 (1947).

On the effect of legal modalities, specifically the trial, on literary forms, specifically the novel, see Alexander Welsh, Strong Representations: Narrative and Circ.u.mstantial Evidence in England (1992), and the review of Welsh's book by Barbara Shapiro, "Circ.u.mstantial Evidence: Of Law, Literature, and Culture," 5 Yale Journal of Law and the Humanities 219 (1993).

Hutson, The Invention of Suspicion: Law and Mimesis in Shakespeare and Renaissance Drama (2008).

countered in works of literature, an a.n.a.logy dramatized in the punning t.i.tle of Kafka's novel The Trial, which in English as in German (Der Prozess) means both a legal proceeding and a personal crisis. Law's aspect as a framework for social peace provides a contrast to those troubled lives.

And now literary scholars have begun training their sights on texts lying far outside the traditional literary canon.6 Statutes, contracts, and judicial opinions have become objects of literary theory and criticism.

If the law has fascinated creative writers and literary scholars (not to mention filmmakers), literature has fascinated and even inspired not only the occasional judge and lawyer but also academics who claim that a knowledge of literature can improve the understanding and administration of the law, as well as provide a rich stock of quotations.7 Two Justices of the Supreme Court once dueled in a case over the meaning of Robert Frost's poem "Mending Walls."8 Many distinguished writers have been lawyers (or law-trained), including Donne, Fielding, Sir Walter Scott, Balzac, James Fenimore Cooper, Flaubert, H. Rider Haggard, Tolstoy, Kafka, Galsworthy, Wallace Stevens, and possibly Chaucer. Even Henry James was for a time a student at the Harvard Law School. Some of today's most popular writers of fiction, such as John Grisham and Scott Turow, are lawyers. (Oddly, although lawyers sometimes become writers, writers do not become lawyers.) And literature has been drawn directly into the orbit of the law as a subject of legal regulation under such rubrics as libel, copyright, and obscenity.

Law and literature are very old fields, but "law and literature" could not emerge as a field until legal scholars.h.i.+p and literary scholars.h.i.+p were no longer autonomous fields each circ.u.mscribed by a body of texts that did not overlap-the literary canon in the case of literary scholars.h.i.+p, and in the case of legal scholars.h.i.+p texts ranging from statutes, const.i.tutional provisions, and opinions to articles and treatises, all written by lawyers. A blurring of the lines that separate different academic disciplines, and a See, for example, Peter Brooks, Troubling Confessions: Speaking Guilt in Law and Literature (2000), a book by an English professor that is mainly about modern criminal trials.

See, for example, William Domnarski, "Shakespeare in the Law," 67 Connecticut Bar Journal 317 (1992).

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 240 (1995) (Scalia, majority opinion); id. at 245 (Breyer, concurring opinion).

*growing professionalism and intellectual ambition in "soft" fields such as both literature and law, have gotten some literary scholars and some legal scholars interested in each other's fields. Yet in each of the separate fields of law and literature the scholars have been moving apart from the pract.i.tioners at the same time that they have been moving closer to each other. Literary writers and literary scholars, and legal pract.i.tioners and legal scholars, are at risk of becoming mutually unintelligible because scholars.h.i.+p in both fields has become so specialized and even esoteric.

I have come to praise Caesar, not to bury him. Law and literature is a rich and promising field; and if the first edition of this book had rather a negative and even defensive character (defending my academic specialty, "law and economics," against criticism from law and literature scholars such as James Boyd White and Robin West), that was more than 20 years ago and the negative tone was gone by the second edition. But the further development of the field is endangered. It is true that books and articles on law and literature are being published at a smart clip and that more than 100 law professors are teaching law and literature. (I do not know how frequently law and literature is taught outside of law schools.) But the increase in publication may reflect a general growth in academic publication rather than a relative increase in interest in law and literature. Between 1990-by which date economic a.n.a.lysis of law was already a mature field-and 2004, the annual number of articles containing the phrase "law and economics" increased by three and a half times, while there was no increase in the number of articles containing the phrase "law and literature."9 The field has not stalled; but its continued development faces obstacles. One is amateurishness-the plague of interdisciplinarity: the lawyer writing about literature without literary sensitivity or acquaintance with the relevant literary scholars.h.i.+p, the literary scholar writing about law without legal understanding. The scholar who crosses academic bound 9. Kenji Yos.h.i.+no, "The City and the Poet," 114 Yale Law Journal 1835, 1896 (2005) (table). However, the different search method cited in the preface to this book revealed a 25 percent-growth in annual publications in law and literature between the period 19891998 and 19992004.

aries risks losing the benefits of specialization, but that is not the major danger, because specialization has costs as well as benefits; it has for sure not brought unalloyed gains to literary scholars.h.i.+p. The greater danger is the attractiveness of interdisciplinarity to weak scholars as a method of concealing weakness. The literary scholar who writes about law is apt to be judged indulgently by other literary scholars, impressed by his apparent mastery of another field, and the legal scholar who writes about literature is apt to be judged indulgently by other legal scholars similarly impressed.

Another obstacle to the continued flouris.h.i.+ng of the law and literature enterprise, an obstacle that I try to remove in Part III, is a misconception about how the study of literature can improve the law-that it can do so not only by providing jurisprudential insights, rhetorical techniques, an understanding of legal regulation of literature, and insights into social practices that law encounters, but also by humanizing lawyers. It cannot do that, as we shall see in chapter 12. Other problems that beset the field are an absence of well-defined boundaries and a resulting lack of coherence,10 along with indiscriminateness, jargon, and a pervasive left-liberal political bias-all of which turn out to be related to each other and also to the misconceived humanizing project. These problems are highlighted by two recent books that survey the field-Guyora Binder and Robert Weisberg's Literary Criticisms of Law (2000), and Kieran Dolin's A Critical Introduction to Law and Literature (2007)-to which I devote the balance of this introduction.

Binder and Weisberg are fascinated by, and minutely examine, an a.s.sortment of scholarly literatures that have no significance for law. Some are not even about law, and some have nothing to do with literature. The book groans under the weight of its erudition,11 though it has some shrewd pa.s.sages and a first-rate chapter on narrative. Despite these See Jane B. Baron, "Law, Literature, and the Problems of Interdisciplinarity," 108 Yale Law Journal 1059 (1999). Baron notes the tendency in the law and literature scholars.h.i.+p to define law as everything that literature is not and literature as everything that law is not. Id. at 10811082.

As where we are told, in a discussion of Wilhelm Dilthey's hermeneutic theory, that "Simmel and Weber [were] influenced by two rival, neo-Kantian theorists of the Geisteswissenschaften, Heinrich Rickert and Wilhelm Windelband" (p. 126 n. 50).

*strengths, it exemplifies the tendency of law and literature scholars to wander away from any proper conception of what the field includes and mount a political soapbox.12 The authors' interest is in "the law" at a high level of abstraction-law as a "cultural activity" and "a process of meaning making" (p. ix). As a guide to law so conceived, the authors turn to literary theory. That is a wrong turn. Modern literary theory (which must not be thought coextensive with literary criticism and scholars.h.i.+p, cited throughout this book) has indeed changed its focus from "literature" as traditionally understood to "writings" in the broadest sense, which might include legal texts. But in changing focus in this way, literary theory has not brought law and literature closer together. Instead it has allowed itself to become submerged in "cultural studies,"13 the aim of which is to knock literature off its pedestal and find vehicles easier than literary works for making political points. "Texts . . . are interpreted and a.n.a.lysed with a view to unlocking the social norms and att.i.tudes encoded therein, not a.s.sessed or evaluated as integral, self-contained creations."14 "The 'best' [is regarded] as a politically dubious category, with selections made in its name often nurturing hidden and hierarchical agendas."15 "In a comparatively short time, academic literary criticism has been transformed. Many [literary critics] now regard social activism as the major purpose of literary criticism."16 Formerly, literary critics "prided themselves on using their language well. Here, too, the new wave has produced a startling change: people who write about literature now write in a prose thick with impenetrable jargon."17 "Much of it [cultural studies] combines a smug a.s.sumption that it is on the side of the moral and political angels with a disparate set of critical tools and concepts that seek justification. Too often it employs a For other criticisms, see Anne M. Coughlin, "I'm in the Mood for Law," 53 Stanford Law Review 209, 218220 (2000).

See Mark Bauerlein, Literary Criticism: An Autopsy 3035 (1997).

Ronan McDonald, The Death of the Critic 21 (2007).

Id. at ix. For a thoughtful criticism of modern literary theory by a scholar steeped in and to a degree sympathetic to it, see Valentine Cunningham, Reading after Theory (2002).

John M. Ellis, Literature Lost: Social Agendas and the Corruption of Humanities 8 (1997).

17. Id. at 910.

writing style that, for all its gestures toward global inclusion, proves its moral earnestness by in-group allusions."18 This cannot be an aid to law, which has its own problems with jargon.

Bad writing must be distinguished from difficult writing. Henry James wrote beautifully, but many readers find his late novels heavy going. Modern poetry, for example by Wallace Stevens and W. H. Auden, can be baffling. But these writers do not use jargon; they just could not create the effects they are aiming at in a prose as simple as that of Nineteen Eighty-Four. Literary theorists have not explained in simple prose why they cannot explain their theories in simple prose.19 Literary theory nowadays is a macedoine of overlapping theories that go by such names as deconstruction, structuralism, poststructuralism, multiculturalism, hermeneutics, queer theory, postcolonialist theory, subaltern studies, reader-response theory, reception theory, cultural materialism, and the new historicism.20 In their number and notoriously obscure jargon these theories (compendiously, "postmodern literary theory") erect a barrier between literary theory and literature.21 Ironically, though the theories have a left-wing cast, they anger many left-wing political activists by channeling intellectual energies into politically inert obscurantism and faculty intrigue and by inviting, through their stridency and extravagance, right-wing ridicule that resonates with the general public and so pushes both radical politics and literary studies ever further to the Peter Brooks, "On Difficulty, the Avant-Garden, and Critical Moribundity," in Just Being Difficult? Academic Writing in the Public Arena 129, 135 (Jonathan Culler and Kevin Lamb eds. 2003). Yet we shall see, in chapter 11, one of the most difficult and rebarbative literary theorists, Fredric Jameson, offering acute literary criticism of Kafka. The problem is not that the theorists and the most "advanced" literary critics have nothing to say, but that the cost of figuring out what they are trying to say often exceeds the benefit.

19. They have tried to explain-in difficult prose. Just Being Difficult?, note 17 above.

See The Cambridge History of Literary Criticism, vol. 9: Twentieth-Century Historical, Philosophical and Psychological Perspectives (Christa Knellwolf and Christopher Norris eds. 2001).

See, besides McDonald's book, note 13 above, and Ellis's, note 15 above, Victor Davis Hanson, John Heath, and Bruce S. Thornton, Bonfire of the Humanities: Rescuing the Cla.s.sics in an Impoverished Age (2001), and references in id. at 344350; Denis Donoghue, On Eloquence 1314, 3940 (2008); Mark Bauerlein, "Bad Writing's Back," 28 Philosophy and Literature 180 (2004); Bauerlein, note 12 above; Brian Boyd, "Theory Is Dead-Like a Zombie," 30 Philosophy and Literature 289 (2006), and references cited there.

*margin. Because postmodernist professors of literary and cultural studies "no longer think of themselves as citizens of a functioning democracy, they are producing a generation of radical students who think of 'the system' as irredeemable, and who therefore can think of nothing better to do with their sense of moral outrage than to fling themselves into curricular change."22 To be of any practical use, leftist intellectuals would have to "giv[e] up the claim that philosophical or literary sophistication is important because it prepares us for the crucial, socially indispensable role that history has allotted to us-the role of 'critic of ideology.'"23 "'On every campus . . . there is one department whose name need only be mentioned to make people laugh' . . . Everyone knows that if you want to locate the laughing stock on your local campus these days, your best bet is to stop by the English department."24 The well-doc.u.mented decline in the reading of literature25 has many causes, but one may be the obscurantist style of teaching literature that is in vogue in many colleges.

I do not reject postmodernism tout court. I rely on Michel Foucault's postmodern theories of punishment and authors.h.i.+p in this book, as I relied on his theory of s.e.xuality in an earlier one.26 The theory-mongering that is making laughingstocks of English departments is postmodern literary theory. It is not an auspicious starting point for the study of law as a cultural activity. Binder and Weisberg must sense this, for much of what they discuss under the rubric of literary theory is not modern, or is not literary theory but instead belongs to history, philosophy, or jurisprudence. They begin with a history of theories of legal interpretation and tick off the famous names from Edward c.o.ke to Alexander Bickel, though Richard Rorty, "Intellectuals in Politics: Too Far In? Too Far Out?" Dissent, Fall 1991, pp. 483, 489490.

Richard Rorty, "The End of Leninism and History as Comic Frame," in History and the Idea of Progress 211, 223 (Arthur M. Melzer, Jerry Weinberger, and M. Richard Zinman eds. 1995).

Andrew Delbanco, "The Decline and Fall of Literature," New York Review of Books, Nov. 4, 1999, p. 32.

See National Endowment for the Arts, To Read or Not to Read: A Question of National Consequence (Research Rep. No. 47, Nov. 2007); Albert N. Greco, Clara E. Rodrigues, and Robert M. Wharton, The Culture and Commerce of Publis.h.i.+ng in the 21st Century 207212 (2007).

26. Richard A. Posner, s.e.x and Reason (1992).

there is no discussion of the influential modern advocates of "originalism" (that is, of returning to the original understanding of the meaning of the Const.i.tution), such as Robert Bork and Antonin Scalia, which is a clue that the authors are writing for the left intelligentsia. Their efforts to tie the history of legal interpretation to literature are perfunctory. Loose interpretation is deemed "creative" in contrast to strict interpretation, creation is deemed the domain of art, and so the judge is described as "a moral artist . . . exemplifying the artistic virtues of nonconformity, independence, and integrity" (p. 111) and who, "like the modern literary author, was expected to provide charismatic moral leaders.h.i.+p" (p. 93).

Persuaded by the schools of interpretation that emphasize the reader's role in determining the meaning of a text, Binder and Weisberg claim that interpretation cannot be just of a text but must be of its cultural context as well-which is to say that all the world's a text, and the cultural critic's potential reach vast: "a genuinely hermeneutic criticism would have to interpret and evaluate law as part of a larger culture. In our final chapter we will propose such a Cultural Criticism of Law" (p. 200). But the fact that interpretation of a text requires consideration of context does not mean that it is no longer just the text that is being interpreted, or that it cannot be interpreted without interpreting American culture as a whole.

Most of the theorists of interpretation whom Binder and Weisberg discuss are philosophers or law professors rather than literary scholars. In an attempt to tie back the book's theoretical meander to literature, the authors devote particular attention to legal theorist Ronald Dworkin's a.n.a.logy of const.i.tutional interpretation to writing a chain novel. There are several objections to the a.n.a.logy, as we shall see in chapter 8, but the one pertinent here is that it functions as a metaphor rather than as a serious invocation of literary theory or practice. Dworkin is not interested in chain novels. Nor, for that matter, are literary theorists and critics; for there are no good chain novels-they are a parlor game. Dworkin's a.n.a.logy is just a vivid way of making the point that judges are constrained by past decisions in a way that legislators are not.

Later the authors take up rhetorical criticism and in a fine pa.s.sage explain that the followers of Leo Strauss, including Allan Bloom, the author of the bestselling The Closing of the American Mind, though they con *sider themselves philosophers and political theorists, are in fact "conservative rhetoricians" who oppose cla.s.sical thought to modern thought, and so oppose rhetoric to both the subjectivism of Romantic literature and the objectivism of science . . . [They] apparently adhere to a cla.s.sical metaphysics made up of natural wholes, cla.s.ses, and values. Yet it is not always clear whether they believe that this metaphysics is true or merely that it is useful to the maintenance of desirable forms of social authority . . . Conservative rhetoricians present themselves as open-minded pluralists, seeking to make room for cla.s.sical ideas in modern debate rather than to replace modern ideas. Yet this position may simply reflect an effort to exploit the vulnerabilities of liberal ideas like value relativism, value neutrality, and tolerance. And it may reflect the awareness of these rhetoricians that cla.s.sical ideas are unlikely to prevail with the general public in a modern liberal state. In any case, their teachings are not primarily directed at the public but at intellectual and political elites . . . Conservative rhetoricians place relatively little value on candor, which they a.s.sociate with incontinent self-revelation and an irresponsible disregard for how information may be misused . . . [They] see themselves as a relatively powerless intellectual elite . . . that must ally with and civilize other sources of political power in order to conserve itself and its values. [They] see the structure of rhetorical discourse as hierarchical. For those interlocutors unfit for initiation into wisdom, rhetoric serves to deceive and mollify. For those fit for instruction . . . a lengthy, suspenseful, and eroticized process of initiation serves to confirm the charismatic authority of the teachers and to socialize the pupils to deference and patience. (pp. 329330) This is spot on but has nothing to do with law or literature. The authors make the surprising claim that Yale law professor Alexan der Bickel was a princ.i.p.al forerunner of the law and literature movement because he believed that the only way for judges to overcome the Con st.i.tution's failure to speak clearly to modern issues of race relations was "through ever greater artifice and ever more subtle aesthetic vision . . .

[Bickel's] method was rhetorical in the sense that it combined prudential reason with eloquence, in that it aimed at reaffirming the normative basis of social solidarity, and in that it aimed at modeling the political virtues of restraint, forbearance, and commitment to deliberative dialogue" (p. 310). Borrowing Alexander Hamilton's description of the judiciary as "the least dangerous branch"27 of the federal government, Bickel argued that the role of the judiciary was "to lead by persuasion, not coercion, and by example rather than regulation" (p. 311). That is an incomplete description of the judicial role. Judicial decrees are backed by force, not just by honeyed words. Bickel wanted the courts to be tactful and adroit in the exercise of power, but he was not interested in the rhetorical surface of judicial opinions. Nor are Binder and Weisberg. Having defined the judiciary's role as leaders.h.i.+p by persuasion and example rather than by force and precept, they do not try to explain how literary techniques can be employed in that role but instead veer off into a discussion of Lincoln's politics of prudence.

And what is "cultural criticism," the climax to which the book builds? It is applying "literary a.n.a.lysis to the drama of particular legal disputes and legal transformations, to better understand what is truly at stake. Whether we are bent on describing normative conflict or prescribing its solution, we will do better if we understand that it is the very ident.i.ties of the partic.i.p.ants that are at issue" (p. 461). The key words are "drama" and "ident.i.ties," as we learn from the authors' discussion of the trial of Abbie Hoffman and other radicals (the "Chicago Seven") on charges growing out of the riots at the 1968 Democratic convention in Chicago. At the trial Hoffman "broadly played the shtetl-dweller, just off the boat"

(p. 482). The judge, also named Hoffman, and also Jewish, was an elderly man, a Republican, of exaggerated formality, a courtroom martinet. Abbie Hoffman, "by calling public attention to Judge Hoffman's Jewishness," "placed Judaism on both sides of the civilization divide," thus showing, among other things, that "Judge Hoffman was not simply striving to 'pa.s.s' but was actually collaborating in the persecution of his own people" (id.). Binder and Weisberg offer this a.n.a.lysis as an example of how one can read a trial "to discover the social forms, rituals, and mechanisms of meaning that underlie its apparent function" (p. 481). The trial of the Chicago 27. Binder and Weisberg seem to think it Bickel's coinage. See p. 311.

*Seven, conceived of as a literary text, was not about whether Abbie Hoffman and the other defendants had committed crimes but about "exposing the soiled undergarments of civilization-its s.e.xuality, materiality, savagery" (p. 482).

With other examples similarly unrepresentative of the normal operation of a legal system, the authors build to their climactic critique of-capitalism: The corporation represents the eternal capitalist life, the form of commerce that transcends the vagaries of commerce . . . The corporation is a figure of ravenous desire, conceived as a mere agent of distribution but ending up as the great consumer of value. It is the answer to the wonderful question of capitalism that [Walter Benn] Michaels poses: How do rich people who seem to have all that a person could want manage to keep on wanting? A person has to have a limited body and hence a limited appet.i.te, but the corporation can transcend these limits. Just as the corporation, saviorlike, takes upon itself the liability of its investors, it also takes on their desires and keeps them safe from satiation. (p. 531; footnotes omitted) Behind these wild and whirling words lurks a Depression-era fear of overproduction-a theme of another literary work that Binder and Weisberg do not discuss, Aldous Huxley's Brave New World (see chapter 10 of this book). Capitalism is too efficient: it spews out products in such abundance as to threaten disaster. Society casts about frantically for methods of sopping up the excess production, as by turning the citizen into an avid consumer or creating an artificial person, the corporation, to produce beyond human limits (but that means more production, not more consumption). Yet disaster is always lurking just around the corner for the capitalist, and so, the authors argue, rich people collect art because its permanence acts as a hedge against the inherent insecurity of capitalist enterprise.

Kieran Dolin's book maintains a steadier focus on legal and literary texts than Binder and Weisberg's. But it is indiscriminate in coverage; jargon-laden in expression (reflecting the baleful influence of literary theory); politically obsessed; and even mist.i.tled, for it is an uncritical introduction to law and literature. The following pa.s.sage ill.u.s.trates the first pair of characteristics: "Some . . . 'fictional' libels [fiction found to defame a real person too thinly disguised in the fictional work-see chapter 13] have been proven, as in a case involving Laurie Lee's autobiographical novel Cider with Rosie, in which an implicit allegation of arson at a local piano factory drew a writ from its owners. They recovered damages, and Lee altered his piano factory to a boilerworks in subsequent editions" (pp. 5859). The book may not have merited any fuller discussion, but some cla.s.sic literary works about law, by Kafka for example, receive no greater attention from Dolin and many of them are not mentioned at all. One could have done without Cider with Rosie altogether, since so much else is omitted.

Dolin does not write gracefully (as we have just seen), which does not augur well for the help that the modern literary scholar can give the legal writer. He is drawn to such phrases as "impacted on their scope" (p. 42) and "d.i.c.kens's broader literary activism" (p. 237). His prose can be opaque, as when he says that "this chapter will explore the role of writing as ally and dissident, in the crisis of crime and punishment at key points in the century" (p. 98). Discussing Defoe's novel Moll Flanders, narrated in the first person, Dolin asks, "Are her professions of repentance and conversion sincere? Is Defoe being sincere in his impersonation of her? While different answers to these questions are open, it is clear that as a verbal creation Moll achieves a high level of authenticity along with her ethical dubiety. In another instance of the intertextual traffic between law and literature, Moll Flanders is based on a real transported pick-pocket, Moll King . . . Though their stories are not identical, their name, crimes and resilience are shared" (p. 102). He quotes approvingly critic Jean-Christophe Agnew's description of the Elizabethan theater as "a representational laboratory for a world perplexed by a culture of liquidity"

(p. 88), and, pleased with the image, repeats it: "Upwardly moving while profiting from Antonio's credit, Ba.s.sanio [in The Merchant of Venice] is representative of that liquidity of ident.i.ty which Agnew sees as the hallmark of the new society" (p. 92).

Dolin thinks the aim of the law and literature movement should be to show how literature, and nonliterary doc.u.ments, such as judicial opinions, can be used to promote the left-liberal agenda. He argues (without *evidence) that the gradual decline of racial prejudice after the Supreme Court in 1954 held segregation of public schools unconst.i.tutional was due in significant part to literary works on race by James Baldwin, Gwendolyn Brooks, Lorraine Hansberry, Harper Lee, and others, and so "literature proved once more to be a significant weapon for advancing progressive opinion" (p. 185). The many works of literature that present conservative values in a favorable light, a number of which deal with law, such as Antigone, King Lear, The Possessed, The Brothers Karamazov, and The Secret Agent (and in popular literature such works as The Caine Mutiny and The Bonfire of the Vanities), are banished from the canon, along with the great reactionary opinions, such as Holmes's opinion in Buck v. Bell ("Three generations of imbeciles are enough").28 At the same time the political ambivalence of works claimed to be "liberal," such as Billy Budd, is suppressed. The result is a distorted picture of the relations between law and literature.29 My point is not that literature is a politics-free zone. It is no more so30 than law is.31 The issue for the scholar and teacher is emphasis and balance. When literature is valued only in relation to its contribution to what used to be called the cla.s.s struggle and is now seen mainly in terms of race and gender, it becomes indistinguishable from polemic; quality control disappears; and the boundaries that separate law from literature dissolve, as when Dolin says of a legal opinion by Francis Bacon later republished as an essay that "the double life of Bacon's text, as a Lord Chancellor's opinion and, with only minor changes, a reflective essay, highlights the regular traffic between law and literature at the time"

(p. 92). What makes a legal essay "literature"? All but two of the eight chapters in Dolin's book are organized around 28. 274 U.S. 200, 207 (1927).

James Seaton, "Law and Literature: Works, Criticism, and Theory," 11 Yale Journal of Law and the Humanities 479 (1999), makes similar criticisms of two prominent law and literature scholars: "Richard Weisberg and Martha Nussbaum . . . argue that great literary works support their respective theories about law. Their arguments fail to persuade, both because they consider such a narrow range of works and because their readings display more special pleading than disinterested a.n.a.lysis."

Robin West, "Law, Literature, and the Celebration of Authority," 83 Northwestern University Law Review 977 (1989).

31. Richard A. Posner, How Judges Think (2008).

a social issue: contract, crime, discrimination against women, the effect of industrialization on law, and racial discrimination (which is given two chapters). Many of the works discussed in the social-issue chapters have no literary character, such as nineteenth-century pamphlets advocating greater rights for women and judicial decisions that do not concern literature, have no literary flavor, and cannot be illuminated by literary criticism. After the first two chapters, the book turns into a tract in defense of political positions popular in college English departments.

These books by Binder and Weisberg and by Dolin provide a map of the minefields that law and literature scholars must avoid if the field is to prosper.

part i

Literary Texts as Legal Texts

chapter 1.