The Death of Law and Literature: An Optimistic Eulogy

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I spent last Saturday morning leading a group of federal judges in a vigorous and largely successful roundtable discussion of Ariel Dorfman's play, Death and the Maiden. The deep underlying cause of this event was surely Michael Palencia-Roth--and not just because he wrote me a nice letter of recommendation to law school years ago. His responsibility runs deeper, to the very substance of my understanding of the relationship between law and literature, an interdisciplinary field of study that had barely started in the late seventies when Michael first became my teacher and mentor. He is why we read a play rather than an academic essay, and it's his influence that lets me proclaim the death of the Law and Literature movement with an optimistic bent.

Although the Brothers Grimm had done work identifying the common etymology of various poetic and legal terms as early as 1816, the modern Law and Literature movement begins with the 1976 publication of James Boyd White's The Legal Imagination. White, an English professor (now a jointly-appointed law professor) at Michigan, took seriously the possibility that legal rhetoric had something to learn from the language of fiction. Literature is replete with examples of rhetoric that is community-building rather than divisive, and White has written frequently about humane rhetorical strategies taught by great works of literature. His work fits within a tradition that finds the commonality of law and literature in their various languages.

This "law as literature as language" approach pioneered by White has developed several sub-divisions over the years. Scholars like Stanley Fish agree with White that law is a sort of language, but Fish does not conclude, as White seems to, that comparative study is necessarily humanizing (see Fish). After all, studying Spanish and Italian together might be mutually illuminating, but neither language will be made better through the comparison. Other scholars, moved by a complementary but more critical spirit, might be identified as "legal semioticians," dedicated to deconstructing legal texts in the same way as literary texts, determined to find evidence of class structure embedded in both. Yet another group, whom we might label "narrative scholars" also focus on similarities in form between stories told in fiction and those told in the course of legal proceedings. This group endorses narrative fiction as sometimes more valid, and often more persuasive, than obfuscating styles of traditional legal analysis.

What all the foregoing strands have in common is a dedication to the study of form: the form of legal argument and the form of literary rhetoric. The comparative study of law and literature for "law as literature as language" scholars becomes a branch of post-modern aesthetics: What works with an audience and what does not? What moves the viewer or the reader and why? The critic attempts to analyze the communication while deemphasizing attempts to discern its meaning. Comparative literary scholars will recognize this approach in some of their own academic writing, and I do not mean to disparage it. I do want to explore why it is, however, that law in action, in courts, legislatures, and law schools seems so resistant to incorporating its insights. Although White and Fish are cited over 2500 times in academic legal articles, they have been cited in federal court opinions only four times. This disparity does not necessarily prove they have no influence--perhaps they affect the legal subconscious via student exposure to their work in law school--but nevertheless the form of legal language seems little changed in the last thirty years.

Fish himself provides the answer in his perceptive essay, "The Law Wants a Formal Existence." Law only works if it appears to be objective. Litigants will only agree that a dispute has been fairly settled if the law appears to emerge from an objective black box uncontaminated by the personal preference of the judge. …