LAW’S FLIRTATION WITH LITERATURE: ONE DISCIPLINE OR TWO?

If one were simply to track the titles of articles in leading law reviews over the past 25 years one would barely suspect that anyone had ever been seriously interested in the connection between law and literature With just a few exceptions³ the articles seem preoccupied with law - tort liability class actions patents constitutional law family law and so forth What this title survey shows (if anything) is that legal academics mostly like to think about legal doctrine No surprise there The question is really how they think about legal doctrine and whether works in the law and lit genre influenced that sort of thinking Article titles and topics will not be an accurate measure of influence if as many people believe the goal of the law and literature movement within law anyway is not so much to change what is written about as it is to change the quality of the discussion

A credible argument could be made that, for a while at least, law-and-lit did have a noticeable influence within the legal academy Legal scholars increasingly began to attend not just to the outcomes of cases but also to the way in which judges reasoned to those outcomes Generalizations about scholarly trends are always dangerous but representative concerns included the presence or absence of ‘‘empathy” in judicial decision making (eg.

Now in one sense this concern for the quality of legal reasoning was nothing new for legal scholars have always cared about the rationales as well as the results of cases But ‘‘quality” in legal reasoning used to by in what I will call the ‘‘before” period (before say Heracles’ Bow or Poethics or Poetic Justice), measured by fidelity to the internal conventions of law - consistency with prior precedent careful distinction between like and unlike factual scenarios adroit analogies and so forth⁴

After, during what I think of as the height of the influence of law-and-lit, quality in legal reasoning came to be assessed differently Scholars began to examine the degree to which judges recognized that their acts of interpre­tation took place within a community of meaning and both reflected and participated in the constitution of that community⁵ Language mattered, because it could include and exclude (who James Boyd White (1984) famously asked is the “we” who are the constitution’s people?) Sensitivity to context mattered because in attending (or failing to attend) to partic­ulars courts were recognizing (or failing to recognize) the real constraints that bear on individuals’ acts and decisions and these constraints are relevant to the accurate and fair assessment of blameworthiness (eg Scheppele, 1989) Law in short, was understood to be cultural· Thus, legal decisions could and should be judged by the way in which they both commented on and enhanced the quality of our cultural life.

Note that, in this formulation law and literature are importantly alike, for each is equally a cultural activity an instance of collective meaning- making⁶ Law and literature are not, in this view actually separate disci­plines at al) but rather just two different ways of doing the same thing And if they are just two ways of doing the same thing then law and literature can and possibly should be subject to the same evaluative criteria and will reflect the same methodological debates.

Looking backward one can easily find traces of disciplinary blending between literature and law For a while for example there was talk of legal opinions - not to mention contracts and wills - as texts texts subject to all the interpretive problems and possibilities to which literary texts are subject (eg Kingwell, 1994, p. 351) Some of the interpretive debates within literary theory - about the relevance of authorial intent the importance of reader response the possibility of‘‘objectivity’’ and the dangers of‘‘subjectivity’’ - were imported directly into legal scholarship especially regarding consti­tutional interpretation⁷

But a complete blending of law and literature as disciplines is and has always been problematic For one thing there is the pesky issue of power - the fact that in the real world legal language does things sometimes scary things like sending people to jail or even to death (eg Covey 1987, p. 1601; Wes) 1993, pp. 89-176) For another thing a lot of work in the law/lit- erature vein has sought to enlist literature in the aid of law - to make law more literary more moral and more attentive to the diversity of human character and motivation (eg Nussbaum 1995; Ilirshman. 1988) If liter­ature and law are in some meaningful sense ‘‘the same’’ then how can one be used to enlighten the other?

To speak plainly the law/literature enterprise - or at least that part of it that focused on what literature could add to law works best where it is least self-conscious of the way in which it implicitly defines the boundaries of each discipline.⁸ In this way law can be like literature for the purpose, say of its role in constituting modern social and political culture but unlike literature in respect, say to its technical conventions and its moral content.