Introduction: Law, Literature, and Ethnic Subjects

Article excerpt

The question is that of the canon: what (and who) is given voice; who privileged, repeated, and invoked; who silenced, ignored, submerged, and marginalized. Law and literature have shared traditions--of silencing, of pushing certain stories to the margin and of privileging others. An obvious example in literature is the exclusion of certain books from the canon of the "great books."

--Judith Resnik, "Constructing the Canon" (221)

There has been little engagement of the canon and of the notion of the canon. Literature was urged upon the law school with creative pluck. After the agenda made room for Homer and Melville, however, the audacity and openness stalled. For the most part, studies in Law and Literature still do not venture outside a narrow range of standard, Harvard-and-its-sisters approved literature. Where are the new, more difficult translations, the equivalents in our practice to the topics Fish refers to in English studies: "The Trickster Figure in Chicano and Black Literature" or "Lesbian Feminist Poetry in Texas"?

--Milner Ball, "Confessions" (190)

In March 2000 over three hundred scholars interested in the study of American multiethnic literatures gathered in New Orleans for a MELUS conference entitled "Multi-Ethnic Literatures and the Idea of Social Justice." The driving force of the conference was the recognition that while issues of social justice are among the most important concerns of minority writers, the works of these writers have largely been ignored by the "law and literature" movement in the legal academy. The call of the conference was explicit: to engage in the active de-canonization of the field of law and literature, and to show through example how the inclusion of literature emerging from a wide variety of ethnic experiences in America would challenge the settled assumptions of the field.

To be sure, as our epigraphs suggest, this is not the first time that the issue of canonicity in the domain of law and literature has been raised. In a seminal article published in 1990, Carolyn Heilbrun and Judith Resnick demonstrated the overwhelmingly masculinist bias of the law and literature movement. Drawing on Elizabeth Villiers Gemmette's 1987 empirical survey of law and literature courses in thirty-eight law schools, the authors argued that the study of literature in law schools assumes "that if not totally absent, women are the other, the object of the male gaze, the subject of the discussion, not the speaker" (1914). Furthermore, they noted a significant time-lag between scholarship being conducted in literary studies on the one hand and the law and literature movement on the other. Much of what Heilbrun and Resnick noted in 1990 about the marginality of feminism and women's literature in the law and literature movement is parallel to our own concerns about the continued marginality of multiethnic literatures in this movement. "The really bad old days of literary criticism (and much else) have been left further behind by literature than by legal studies," state Heilbrun and Resnick. "Feminist criticism and post-structuralist criticism have had almost twenty years in which to perfect theories and techniques, and to revise ideas of what to read and what to value. Surely law could well benefit from the fruits of those decades, both in the reading of the new literature by women now available and in the reading and interpretation of texts not usually read in law classes" (1933).

Scholars who have tracked the field might differ on the weight they place on the transformative effects of the Heilbrun and Resnick article. But that article, along with others written at about the same time, seems to have spoken to a pressing need for a change in the orientation of the field. (1) In her follow-up survey, conducted in 1993, Elizabeth Villiers Gemette says, "The most notable changes from the titles in the earlier survey relate to courses dealing exclusively with women and the law, none of which were reported in the earlier survey. …