What's Past Is Prologue: Precedent in Literature and Law
Yoshino, Kenji, The Yale Law Journal
On June 29, 1992, the joint opinion of Planned Parenthood v. Casey(1) "spectacularly failed to overrule"(2) the holding of Roe v. Wade.(3) The writers of the joint opinion suggested that stare decisis, or the legal doctrine mandating that precedent be followed, disciplined their analysis, and that they were bound by Roe's holding regardless of their personal opinions on whether the Constitution protects a woman's choice to have an abortion.(4) Chief Justice Rehnquist's opinion, on the other hand, maintained that stare decisis did not compel upholding Roe and asserted that Roe should be overruled.(5) The Rehnquist opinion further implied that the joint opinion invoked the doctrine of stare decisis as a convenient way of implementing individual Justices' political predilections while allowing those Justices to avoid accountability for their controversial views on abortion.
This Note argues that the law-and-literature movement can shed light on the manner in which the Casey opinions treat precedent. Part I provides the theoretical background to a comparison of precedent in law and literature. First, it briefly situates this Note in the law-and-literature movement; second, it outlines two theories concerning the treatment of precedent, one from literature (Harold Bloom's "anxiety of influence:(6)) and one from law (stare decisis); finally, it describes a prior attempt by David Cole to apply the anxiety of influence to the legal field.(7) Part Il critiques Cole's theory and shows how the remainder of this Note provides a more precise synthesis of the literary and legal theories. Part III describes two of the subversive strategies developed by Bloom: apophrades and clinamen. Part IV applies these two strategies to two literary texts: Tom Stoppard's Rosencrantz and Guildenstern Are Dead(8) and Aimd Cdsaire's Une Tempete.(9) Part V shows that both of these subversive strategies are applicable, with some qualifications, to the Casey opinions. Part VI contrasts the consequences of these strategies in the literary and legal fields.
I. PRECEDENT IN LITERATURE AND LAW
A. The Law-and-Literature Movement
The law-and-literature movement has its Anglo-American antecedents in the nineteenth century. In that period, English lawyers wrote about the depiction of the legal system by Shakespeare, Dickens, and other famous writers; Wigmore argued that lawyers should read literature to learn about human nature; and Cardozo analyzed the literary style of judicial opinions.(10) Until the publication in 1973 of James Boyd White's The Legal Imagination,(11) however, law and literature did not emerge as a distinct and self-conscious field.(12) Subsequently, Robert Weisberg divided the law-and-literature movement into two branches-law-in-literature and law-as-literature.(13) This distinction has been widely adopted.(14) Law-in-literature considers literature "about" legal subjects (e.g., Kafka's The Trial, Camus' The Stranger, or Lee's To Kill A Mockingbird) and law "about" literature (e.g., laws concerning defamation, obscenity, or copyright).(15) Law-as-literature, on the other hand, subdivides into two concerns: the study of rhetoric in legal writing and the application of literary theory to the law.(16) For example, White describes how literature's discourse about devices such as metaphor, ambiguity, and irony enhances an understanding of legal argument.(17) Similarly, Dworkin argues that because literary theory is more developed than legal theory, literary theory can offer new insights into legal texts.(18)
Bloom's anxiety of influence, as shown below, is both a taxonomy of rhetorical devices that authors use to subvert precedent, and a theory about the relationship writers have to their predecessors. By considering the applications of this theory to the law, this Note situates itself squarely in the law-as-literature movement.
B. The Anxiety of Influence and Stare Decisis
Precedent occupies the literary and legal fields in the form of two different theories: the literary theory of the anxiety of influence and the legal theory of stare decisis. …