lit crit law

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Cardozo School of Law

Literature Studies in Law SchoolsAuthor(s): C. R. B. DunlopSource: Cardozo Studies in Law and Literature, Vol. 3, No. 1 (Spring - Summer, 1991), pp. 63-110Published by: Cardozo School of LawStable URL: http://www.jstor.org/stable/743502

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iterature tudiesn a w chools

C.R.B.Dunlop

A. IntroductionLiterature tudy in law faculties is a growth industry.1Sincethe publication of James Boyd White's TheLegal Imagination in 1973,2an increasing number of scholars have begun to write about therelationshipof lawand literature,andto teach courseson the subject.3The Presidentof the Lawand HumanitiesInstitutehas observedthata

majority of American law schools now offer Law and Literaturecourses.4Novels and plays are being read in law libraries,and booksby Wayne Booth and Stanley Fish are appearing in law facultybookshelves. Literaryriticismandtheoryappear o have establishedafoothold in the lawschools of NorthAmerica.It is common to divide Lawand Literature tudies into twosub-fields,and I will adoptthe distinctionhere. Lawn literature s,as the name suggests,the studyof representationsof the legal orderinfiction, usually novels and plays. Courses on the subject requirestudents to read several books in which the law plays a significantrole. ElizabethGemmette'srecentsurveyof Lawand Literatureoursesoffered in American aw schools lists over 100 authorsand over 150differentnovels, plays,shortstorycollections, andpoems readin suchcourses.5 Some obvious candidates like Camus, Dickens, Kafka,Melville,and Shakespeareappearon several readinglists, but otherinstructorsrange furtherafield to include everythingfromAeschylusto AgathaChristie.6The second sub-field of the Lawand Literaturemovement isoften described as law as literature. The principalscholar is JamesBoyd White,7although RichardWeisberg8and others9have writtenrelated essays. Here the focus is on law, not literature.Law asliteraturedrawsinsights fromliterarycriticism and theoryto assist inthe reading and interpretationof legal texts, particularlyjudicialdecisions.The Lawand Literaturemovement has in the last 20 yearsbecome an importantpartof the world of legal studies. In its rapiddevelopment, however, some basic questions have remainedunexamined.In this paper,Iwantto explore two majorandthree lessimportantssues concerningliterature tudies in the law school.


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In PartB of this paper,I addressthe fundamentalquestionwhether literaturecan ever be an appropriate ield of study for lawprofessors and a legitimate course for inclusion in a general firstdegree in law.10Law n literature s a radicaldeparture romthe usualwork of a lawyeror law student.The label masks the factthat what isgoing on is the analysis and the teaching of fiction, an activitynormallywithin the bailiwick of the arts facultyand not commonlyencountered in legal studies. Literarycriticism is an intrinsicallyinteresting pursuit,but not one for which most law professorsaretrained.'1Noris it likelyto arisein most lawpractices.Howthen can itbe justified as a legitimatepart of legal scholarshipand education?The issue has a personal resonance as I have for over twentyyearsbeen teachingliteratureo lawstudentsas partof a legal theorycourseor,morerecently,without the protectivecoverof Hartand Dworkin.The proponents of literaturein law faculties have not yetproduceda clear,generallyacceptedjustification or the appropriate-ness of the subject.'2Indeed, some of their writing is marredby anenthusiasticboosterism which is not likely to convince skeptics.Tworecent students of the field have raised substantialdoubts about theLawand Literaturenterprisewhile remaininggrudging supporters.13The time seems ripe for an attemptto see if law in literaturehas aplace in the largerworldof legal researchand education.Myargumentwill be thatliterature tudiesarean appropriate,even a necessary,partof legal studies. Fictiongives legal scholarstheopportunityto get beyond the technical and circumscribedstudy oflegal rules, and to look at law as part of the broader civilization.Literature hallenges assumptions about rationalityand the rule oflaw, and emphasizes neglected but important aspects of the legalprocess. Even if legal education remains professional in character,fiction courses serve a useful role in the law curriculumand can betaughtby lawprofessors,so long as theyareprepared o learnanotherdiscipline.A second major question about the Law and Literaturemovement is whether it is held together by an underlyingtheoryoflaw and legal studies. In PartC, I discuss the work of James BoydWhiteas the only major heoristto emerge fromthe movement.Thereis much in White's humanistic account of law and legal educationwhich is attractive.Forme, however,White's egal theoryis ultimatelyunconvincingbecause it overestimatesthe similarities between lawand literature,and ignores or undervaluesthe practicaland politicallimits to law, even in a democratic society. White is unwilling tosituate his account of law and literaturen the largerworld of theory.He does express sympathyfor the work of the New Critics,but histheory displays the drawbacks as well as the advantages of their

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approach o literary riticism.I conclude the paperwith a comment on three questionabletrendsin recentLawand Literaturecholarship,namely,the overuseofthe GreatBooks model, the vice of Procrusteanism,nd the excessivepassionfortheory.

B. Justifying LiteratureStudies in LawSchools1. The Nature of LegalResearchIn a recent essay,RichardPosnerrecalledhis legal educationat HarvardLaw School as imbued with the notion that law is anautonomous discipline, that is, a subject properly entrusted topersons trained in law and in nothing else. '4The majorityof theHarvardacultyat that time believed or appearedto believe that theonly thing law students needed to studywas authoritativeegal texts... and that the only essential preparation or a legal scholarwas theknowledge of what was in those texts, and the power of logicaldiscrimination and argumentation hat came from close and criticalstudyof them. '5Posner is critical of the idea of legal scholarshipas a self-contained discipline, but others have continued to assert thetraditionalview. In an addressdelivered in 1975andrepublishedfouryears later, FrancisAllen talks about the development of interdisci-plinaryresearch nto law,but sounds a sternandgraphicwarning:

As the scope and demands of scholarshipbroadenand intensify,some law teachers lose theirway andfind themselves in a limbo where theyareno longerlawyersbut also not quite behavioralscientists. Oneof the worst things that could happen to legaleducation is that the law schools should join thealready-long procession of universitydepartmentsengaged in a wistful search for a subjectmatter.Weneed not search. Ourmission, as it has been for thepast eight hundredyears in the universitiesof theWestern world, is the study of law and theinstitutionsof the law.16A few years later, Robert Summersconcluded that, whileeconomics had some relevance to legal researchand education, itsrole was limited. Lawdoes not collapse into economics,or anyothersubject.The lawis relativelyautonomous. '7The vision of law as an autonomous discipline hasincreasinglycome under attackduringthe past25 years.The doctrinalanalysis so vigorouslypursued by Judge Posner'steachershas falleninto disfavoralthougha casual review of Americanand Canadianegal

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periodicals and books published over the past year suggests that it isstill the dominant form of scholarship in North America. Traditionallegal education has been condemned for its insularity and its limitsof breadth, depth, and imagination, limits that have led legalresearchers and teachers to fail to consider the intellectual andpolitical world outside the law schools. '8 Law and Learning,'9 animportant study of legal research and education in Canada in the early1980s, concluded that legal scholars in that country had confinedthemselves to conventional research20 rather than engaging infundamental research, defined as research designed to secure adeeper understanding of law as a social phenomenon - researchabout law rather than research in law.21 The Report concluded thatlegal scholars should make a conscious effort to diversify theapproach they take in their research and should turn to morefundamental studies using historical, theoretical, comparative, andempirical approaches. 22In response to these criticisms, legal scholarship has begunto transform itself. The most obvious change is the increasingpopularity over the past quarter century of interdisciplinary studies.While the American history of law and ... research goes back atleast to the Realists, it is only recently that the partnership of law andthe social sciences, especially economics, has become a significantpart of the intellectual agenda in the United States and, to a lesserextent, Canada.23The enthusiasm for interdisciplinary scholarship hasled some to denigrate doctrinal analysis,24although Posner for one hasexpressed the more moderate view that, alongside interdisciplinaryresearch, better doctrinal work remains a legitimate and respectablegoal, even for law professors.25Others have responded to the limitations of traditional legalscholarship by attempting to redefine the nature of law itself. Anemphasis on the metaphorical,26mythic,27or theatrical28aspects of lawrather than the analysis of rules has led to provocative and interestingresults. Maybe the best example of research through redefinition or atleast change of emphasis is the turn to narrativeevident in the work ofwriters like the late Robert Cover.29The recent changes in the shape of legal scholarship have notgone unchallenged. Critics (and some friends) of interdisciplinaryresearch have questioned its quality and relevance.30 The fear hasbeen expressed that, while doctrinal research is at least a coherentactivity, the new sprawling world of legal scholarship appears to haveno central and coherent discipline.31A few have thrown up their handsand rejected the scholarly enterprise entirely.32The argument carrieson unabated in the pages of the Journal of Legal Education, themeetings of the American Association of LawSchools, and elsewhere.

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The current debate about the nature and proper limits oflegal scholarship turns on two questions that are not always dis-tinguished. The first issue is to describe the nature of legalscholarship. Is there a body of material, a set of issues, a subject-matter, a discourse that any reasonable person would call legalresearch as contrasted with, for example, literaryresearch?The secondissue, considered later in this paper, is more jurisdictional incharacter. Who ought to be carrying out legal scholarship? Is this anactivity properly claimed by lawyers or law professors, or are certainaspects of research into law properly within the domain of others inthe world of research?Does it matter?

When we hive off the jurisdictional question, it seemsobvious that the term legal research naturally comprises anyresearch taking as its subject the legal order.33Such research may be inlaw or about law, as those terms are used by the writers of Law andLearning, although it may be useful to say something more here aboutthe distinction.Research in law is necessarily a narrower, although a morecoherent, activity than research about law. Research in law often(perhaps always) consists of doctrinal analysis of legal texts such ascases or statutes. It often (perhaps always) makes assumptions aboutsome aspects of the legal order, for example, the primacy of reason34and the nature of legal reasoning, as well as political assumptionsabout the value of a legal system and of the rule of law as a necessarypart of the good society. Another characteristic of research in law isthat it tends not to involve empirical study of the actual workings ofthe legal order or of its economic or social consequences. It becomesthe study of a limited set of texts rather than an examination of theactual workings of legal institutions. Finally, legal research in lawusually does not cross disciplinary boundaries, at least when theoperational and political assumptions noted above remain un-questioned. It apparently has a coherence and an autonomy enablingone to call it a discipline.Research about law is a much larger enterprise. Law can bediscussed as an historical phenomenon, as a cultural, philosophical, orpolitical idea, or as an institution having social, political, or economicconsequences that can be examined empirically. Law can be seen asthe kind of discourse that can be probed for its use of metaphor ormyth. It can be read as a story.35 None of these studies mustnecessarily make the assumptions about rationality or value thatresearch in law tends to make. The last point, and the most important,is that research about law seems almost always to involve disciplinesother than law. One is driven to examine history, the social sciences,cultural studies, philosophy, and literature to carryout the project. As

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a consequence, research about law becomes a congeries ofoverlapping disciplines that do not possess the coherence andautonomy of research in law.There are difficulties in either limiting legal scholarship toresearch in law or extending it to include all research about law.Studies in law have an appearance of autonomy and a comfortingfeeling akin to the practice of a craft. But if we start to question theassumptions underlying the craft or to ask questions lying outside thepurely legal texts, we may conclude that it is limited to a sterilemanipulation of doctrine. Doctrinal analysis should not be denigrated;it is a legitimate, valuable, and necessary part of the work of alllawyers, judges, and law professors, and it is likely for the foreseeablefuture to constitute the bulk of the work done under the rubric oflegal scholarship.36 But when the researcher starts to ask difficultquestions (Why is this the rule? Does it really work this way? Howdoes it fit with the other values of our culture?), doctrinal analysisturns out to be ultimately unhelpful and unsatisfying. Research in lawseemingly stops short of most of the important questions.On the other hand, research about law raises all of them, butit suffers from the dangers of the unknown or, perhaps worse, thepartially understood. Researchers in various interdisciplinary fieldsmay be unable or unwilling to communicate with each other, andtheir work may be incomprehensible to the unsuspecting bench andbar. Interdisciplinary work can also fail if it is excessively ambitious.37There is much wisdom in John Austin's gloomy advice that he whowould know anything well, must resolve to be ignorant of manythings. 38For researchers who wish to do interdisciplinary research onlaw, there is a real problem in mastering the second discipline.39However, we have reserved until later the jurisdictional question whois to carry out research about law. Given that decision, we can setaside for now the dangers of amateurism.When everything is taken into account, it seems to me thatwe really have no choice but to recognize the world of legalscholarship as including research about law. Lawis part of the broaderculture, language, economy, and society; the curious researcher mustaccept law's entanglement with the rest of the world and concede thatit is legitimate, under the rubric of legal scholarship, to explore thatentanglement. History, literature, economics, and ethics all havesignificance for law.40We can hardly turn our backs on these sourcesof enlightenment.If we give legal scholarship this extended definition, doesthe activity retain any semblance of coherence or autonomy? Thequestion is an important one, and not just for those legal scholars whofear any departure from the narrowest parsing of legal texts.41 Does an

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analysisof a group of cases on execution againstreal propertyhaveanything n commonwith an examinationof representationsof law inDreiser's novels? In one sense, they are parts of differentscholarlyprojects,and all thatholds them togetheris thattheyboth involve law.But thatbond is important.The studentof Dreiserand the studentofcreditors' remedies share the belief that law is an importanthumanactivity. We may only achieve a partial autonomy,42a looseconfederationof disciplines, but the rewardsin understandinganddepth will more than make up for the dangers inherent in theactivity.432. Literature Studies as LegalResearch

Legalscholarshipcan and should include studies of works ofliteraturedealingwith law.Fictionmaynot be particularly elpful as awayto learnlegal rules or history,44 ut it can tell us much about law,definedbroadly o mean the legal order.Imaginativewriters from Aeschylus to E. L.Doctorow havealwaysknown thatthe lawwas too important o be left to the lawyersand have turned to the legal system as a fascinatingand disturbingsubjectforcontemplation.Theyhavefound it essential to consider thelegal order,among other reasons,because law contributesto notionsof the good society and the good person. Fiction is a repositoryofideas about and images of the law, a storehouse of alternativevisionswhich commenton the lawyer's dea of the world.45The recent movementtowardsinterdisciplinaryegal studiesreflects a growing recognition by legal scholars that they cannotunderstandtheir subject in isolation from the largerconcerns of ourculture. The assumptionof traditional egal education, that law is atechnical and insularmattergrasped entirelyor largelyon its own, hasbeen replaced by the belief that it is inextricablybound up withpolitics, morality,culture, and life. Law'sattempt to constitute thegood society mustnecessarilybe informedby some generalnotion ofwhat such a world would look like. The center of legal scholarshipwill always be law, but scholars should approachit as a part of abroadercivilization.Literature rovides legal scholarswith an ideal vehicle to seelaw as part of the surroundingculture.46 t offers a chance to getbeyond the technicaland assumption-bound tudyof legal rules, andto look at lawfromthe outside (where most people live). Literatureslikely to give us a richer view of the legal heritagethan thatnormallyset forthby judges, law professors,or representativesof the AmericanBarAssociation.47This is not to say that literatureshould be regardedas the

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source of all wisdom; it can be wrong, confused, even silly on legalmatters. But fiction does present the reader alternative visions of theworld, including the legal order. The reader participates in thesealternative visions during the act of reading and permits them tocomment on her own world. Wayne Booth describes the unique valueof fiction as its relatively cost-free offer of trial runs without thesacrifices imposed by experimentation with our real lives.48

[Narrative experience] transforms (distorts, twists,figures) the life we might have lived during thehours we spend with the narrative, and it thusbecomes a substitute for -- or, better, a replacementof, and consequently a radical criticism of -- thatunlived life. In short, we are led to create forourselves an alternative life during those hours wespend elsewhere. 49The lawyer or law student finds that the literature she isreading challenges her assumptions about law without yet requiringdecisive action on her part.50But fiction's influence may extendeventually to real-world situations.The picture of the legal order that literature presents may bediscomfiting to the lawyer or law student. Writers of fiction will notautomatically assume that law is necessary,51that the rule of law is anunambiguously acceptable value,52 or that the legal process isparticularly rational or fair.53Law may be pictured as a malevolent,life-destructive force, lawyers as frauds,54and judges as fools. Fictionoften places the emphasis on the irrational, theatrical, mythic, andritualistic aspects of the legal process.55 The reader is asked to putherself in odd positions, such as that of the good, though imperfect,captain-judge Vere who must argue for the execution of the almostinnocent Billy Budd.56Literature can extend the sympathies of the reader by

extending her understanding of human nature and motivation, and byenabling her, at least during the reading experience, to participate inanother person's life.57 As James Boyd White suggests, fictionstimulates the reader's capacity to imagine other people in otheruniverses.58 Legal research and education have been accused ofemphasizing the voices of some individuals and groups in our societyto the exclusion of others.59 Fiction can serve as a corrective to thismyopic tendency. After a lawyer or law student reads Charles Dickens'Bleak House, he can never again be completely indifferent orobjective towards the client across the desk.60As he takes a retainer,as he has the client sign a contingent fee contract or writteninstructions to carry on litigation despite advice that it may fail, the

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lawyer has the uneasy feeling that he is acting a bit like Mr.Vholes,and he becomes anxious to look for differences between his conductand that of the devil-vampire lawyer. Like Scrooge, the lawyer is notthe man he was61before experiencing the world of the imagination.Many law teachers seek to justify law in literature researchand education on the ground that literature teaches values and forcesthe reader to grapple with ethical issues. J. Allen Smith has argued thatmodern legal education and practice have in this century becomesevered from the overt consideration of values found, for example, inthe decisions of the courts of equity. For Smith, fiction can serve as aplace where ethical questions related to the legal order are raised and(apparently) resolved.62 To the extent that writers are in the vanguardof community conscience, lawyers, as legislators and policymakers,should be attentive to their work. 63Whether or not literature teaches ethics in any sense is ahotly debated question in 20th century literary criticism, and I do notintend to canvass the state of the argument here. My position is thatfiction often raises and examines, usually without resolving, ethicaland political issues about the legal order. Literature can suggest thecomplexity of an ethical question. It can conjure a variety of possiblesolutions. The reader can explore the problem through the eyes ofvarious characters living through a concrete situation, and hersensitivity and understanding will be enriched as a result. As JamesBoyd White says, literature complicates one's sense of oneself andthe world. 64An example of the kind of complication that White is talkingabout occurs in the preface to Bleak House.65 Dickens begins byreporting that a Chancery judge once told him as one of a companyof some hundred and fifty men and women not labouring under anysuspicions of lunacy that the Court of Chancery was almostimmaculate, and that any trivial blemish was the result of theparsimony of the public and would be cured by the appointment ofmore Chancery judges. The judge overheard by Dickens was right inpart about the Court of Chancery,which was grossly understaffed untillate in the 19th century. Moreover, the tone of the speech seemssensible today to many lawyers and law professors as a solution toproblems of court overcrowding, delays, and cost of litigation. ButDickens' response unsettles both our and the Chancery judges'sconvictions. On the idea of adding to Chancery's manpower, Dickensobserves, This seemed to me too profound a joke to be inserted inthe body of this book, or I should have restored it to ConversationKenge or to Mr.Vholes, with one or other of whom I think it musthave originated. We are immediately taken from our narrowperspective on Chancery to the largervision of Dickensian satire.

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If the goal of the legal order is to do justice, literature makesthat value complex and problematic, but in the process enriches anddeepens our understanding. Instead of a monolithic or an officiallyauthorized notion of justice,66 literature provides alternative visions,sometimes set against each other in the same work. Carol Gilligan, inIn A Different Voice,67argues that many men and women see ethicalquestions in a different way, women emphasizing the web of caringrelationships rather than the hierarchical structure of principles. Muchfiction strikes me as picturing ethical problems in terms of their effecton the web-like relationships of the characters in the story rather thanby the application of a system of moral rules. If my perception is right,then literature can operate as a useful corrective to the highlystructured nature of much legal writing and thinking.If literature can be read as carrying ethical freight, it is notdifficult to take the next step and see in it an implied political critiqueof the legal order. Fiction can place lawyers' and law students'presumptively conservative values against a broader background,leading the reader to question those values or to think about themmore carefully. The long tradition of anti-law sentiment in literaturehelps to provide a systematic counterbalance to the pro-law rhetoricpervasive in most legal writing and teaching.Literaturecan be a laboratory to try out experiments in socialstructure. Manynovels set out Utopian visions of the good society andthe good legal system (which may turn out to be no legal system atall). Others, like Orwell's Animal Farm and 1984, and Burgess'ingenious commentary-parody on Orwell in 1985, play with thenightmare of a distopian legal order or, worse, the complete absenceof any law.68The utopian-distopian literature is a rich and provocativesubject for legal research.69Other fiction appears to describe systems of law, much likeour own, which turn out to be flawed and dangerous. Such literature isa warning and a challenge, a series of pictures of law gone wrong or(sometimes) wrong ab initio. Bleak House is not only a commentaryon a particular legal structure; more fundamentally, it attacks ourpassion for litigation, our shirking and sharking, 70and our fear ofdirect communication as the way to solve problems.Fiction need not convey a subversive political message; it canaffirm the status quo or hark back to an older and better time.71Orwell's 1984 implies a call to preserve the English rule of law andthe independent, if bloody-minded, English judge, perhaps improvedby a dose of socialism.72 Dickens was no advocate of riot orrevolution,73 even although he played with anarchist images like thespontaneous combustion of Krook, the false Lord Chancellor in BleakHouse.

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The argument that fiction is largely reformist, if not radical,has been overdone in some recent Lawand Literaturewriting.74Someotherwise quite varied scholars appear to share the view that the legalorder adopts and enshrines a conservative political agenda and thatliterature is subversive of that agenda and supportive of a differentpolitical vision. Both conclusions can be questioned. The law is notrelentlessly reactionary (otherwise, why the call from the right tochange it?75), and literature is not relentlessly subversive.76 Thetendency to line up works of fiction like cases on counsel's tableought to be curbed. Good literature is not sufficiently tractable to bemarshalled as authority for social, political, or legal change.77Fictionmay discomfit the reader, and make apparently clear questionsproblematic, but it is unlikely to advance a political or moral programexcept in the most general (and often banal) terms.In this respect, Dickens' novels are typical of much fiction intheir tendency to raise possibilities or lines of inquiry, rather than topropose solutions. On one reading, Bleak House appears to call forinstitutional reform, but it may also suggest that the ultimate solutionlies in personal salvation. Is the picture of Esther Summerson apatronizing male view of a weak, excessively self-effacing girl, or apenetrating and profoundly radical account of a woman trapped in afinancially and socially precarious position, half-conscious of herplight and half-able to describe it? Little Dorrit places before us asociety using physical and psychological prisons to enforce its law,morality, and religion. Dickens asks what kind of society results fromthis concentration on imprisonment, and he makes that question amoral and political one in his working title (later discarded):Nobody's Fault. 78The issue of responsibility for the depressingprison-society described in the novel is central and disturbing, butagain the answer is unclear. Especially in the later novels, Dickensasks the reader to consider great moral and political questions, but theobjective is less to urge a specific solution on the reader than to giveher that most prized of Dickensian possessions, the disciplinedheart.793. LegalEducation

Even if I assume that literature studies are a proper part oflegal scholarship, it does not follow that fiction ought to be taught aspart of the J.D. or LL.B.curriculum.80 The first degree in law allows alimited number of months to teach students whatever aspects andelements of the legal order the faculty regards as essential, and manycourses and subjects compete for that valuable time. A course inliterature will take classroom space and administrative resources awayfrom substantive law, legal theory, and other subjects. If the course is

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to be taught by a member of the law faculty, it will occupy a large partof her teaching load and research time therefore not available to teacha section of trusts or to write an essay on securities or future interests.Literature courses carry a substantial cost in time, resources, andenergy, and their proponents, like me, have to justify their place in thereal and imperfect world of legal education.The starting point for such a justification is to outline what inmy view are or ought to be the goals of the J.D. or the LL.B.curriculum.81 One might assume that, after the long and successfulhistory of legal education in the United States and Canada, the aims ofthe exercise would be well established and accepted. A review of theliterature on law school curricula appearing in the Journal of LegalEducation and elsewhere suggests that such is not the case. Indeed,the writing about the subject conveys a real unhappiness about thecurrent state of legal education in North America but without anywidely accepted agenda for reform. Because of this confusion andcontroversy, I need to sketch in my views on legal educationgenerally, so that the reader can see the basis from which I propoundthe teaching of literature in law schools.82I begin from the conservative assumption that the first degreein law offered by the great majority of North American law schools isnow and will continue to be professional or occupational in character.The goal of most law teachers is to assist in the preparation of studentsto practice law, defining that term broadly to include using the law ingovernmental and business work. It is true that some students enterlaw school with no intention to practice law, and others will not in factdo so. However, the vast majority of students do not study law simplyto learn about the subject or to prepare themselves for lives of legalresearch and teaching; their intention is to learn law in order to use itin practice.In recent history, the J.D. and the LL.B.degrees have beenviewed as professional training, and not as exercises in liberaleducation with little or no occupational element. Canadian andAmerican governments fund universities and law schools today on theassumption that law schools do professional education, and the legalprofession in both countries makes the same assumption when itrequires a law degree for entry into the profession. Opportunities toteach law as a liberal study unrelated to professional goals exist in theliberal arts colleges; there is no obvious reason why the law schoolsshould abandon their professional role to replicate what legal studiesprograms now do adequately. In a sense, the multi-stream proposalsof the Carrington and the Law and Learning Reports83 have beenaccepted in many North American universities, the professional coursebeing offered by the law faculties and the academic stream finding its

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proper place in arts faculties and liberal artscolleges.It seems to me that legal doctrine, research in law, willremain as the central and most important element in any J.D. or LL.B.curriculum that I can foresee, so long as these degrees retain theirprofessional character.84If the role of the law school is to assist inpreparing people to practice law, that practice will require a basicknowledge of the substantive and institutional legal map. The severelimits on student time and institutional resources in North Americanlaw schools pinch harder because most law schools seek (properly inmy view) to offer a generalist first degree in law, touching most of thebasic areas students may encounter in practice.85 Given theseconstraints, priorities must be set, and a knowledge of substantive lawstands at the top of the list.My conservative view that the first law degree should beprofessional in character does not mean that law schools shouldrelentlessly root out any effort to think or teach about law, or toconsider the insights of other disciplines. William Twining has notedthat the legal education we offer in law schools is determined by whatwe want to produce: Pericles or the plumber.86Twining's conclusionis that a more sophisticated compromise is essential, largely because apurely Periclean or plumberish legal education is inconceivable. Theissue is not whether legal education will be professional or scholarly;it will be both. The real issue is the balance to be struck between thetwo. If research about law is relevant to an understanding of thelegal order and is a legitimate and necessary part of legal scholarship,then it follows for me that it is also a legitimate part of an educationalprogram in law. This conclusion should hardly come as a surprise.There is a long history in North American law schools of law and... courses, and their number has increased substantially in recentyears.87 But even more significantly, traditional law courses mustdraw from other disciplines; in the present intellectual climate, itwould be hard not to do so. Teachers and students are reading moreand more non-doctrinal material. Hard law courses seek the wisdomof empirical studies, economics, history, legal theory, and literature.Research about law raises important and interesting questions that areoften missing or assumed away in narrowly doctrinal studies.Law students sometimes like to believe that their enrolmentin law school means that they can put behind them all the difficult,challenging, and fuzzy questions raised by their liberal arts courses.Now they have started a study of clear rules and processes that leaveonly enough doubt to enable lawyers to make a good living. It isessential that any decent law program should disabuse students of this

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wrong and dangerous view, and one way to accomplish this goal is toremind students of the broad world of research and thinking aboutlaw that exists outside the pages of the law reports and the statutes.Law and Learning, the Canadian report on legal educationreferred to earlier, comments on the apparent tension between thehumane-intellectual goals of a law faculty and its professional-trainingactivities. It argues that the cultivated ability to stand at a distancefrom conventional wisdom, to view it critically can be defended notonly on its intrinsic merits but also on practical grounds.

It enables lawyers to adapt to changes when theyoccur, to assist in bringing about such changesthrough law reform and other public activities, andto accomplish change themselves in the limitedcontext of serving individual clients whose interestsdo not coincide with accepted solutions. From thestudent's perspective, having to deal with both theintellectual and the practical at once generates adialectic which, if it does not necessarily improvethe end-product, at least contributes to the student'stough-mindedness.88Two points may be made about this passage. The first is thatthe dialectic that the writers of Law and Learning value so highly isbound to be created if students are asked to look at the way the law

actually works in practice, the moral and political assumptionsunderlying the legal rules, the representation of the law in literature,and so on. The second point is that thinking critically about law doesnot pay off only in the reformist or exceptional cases referred toabove. Most lawyers have encountered the situation of a client whohas a technically arguable case that will nevertheless not succeedbecause of some non-legal consideration such as the justice of theclaim, issues linked to the violence of the law,89the usages of theofficials and institutions that make up the system, and so on. There ismore to the law than we can find in the cases or the textbooks.

One should not underestimate the historic resistance of lawfaculties to interdisciplinary studies. Lawyersprize their professional-ism and their hard-won craft, and they may even now resist ormarginalize efforts to water down the study of pure law withmaterial from other disciplines. This attitude of law faculties to thework of the rest of the university is sometimes reflected in physicaldetails such as the structure and location of separate law buildings.90There is considerable risk involved in law teachers and students trying

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to incorporate other disciplines in their own work. As I have arguedthroughout this paper, the risk is not only worth taking but isunavoidable in the present intellectual climate.4. Literature'sPlace in LegalEducation

If law curricula should include research about law, a usefuland exciting candidate is a law in literature course. Like otherinterdisciplinary courses, literature studies raise important andinteresting questions unlikely to be considered in narrowly doctrinalcourses. Fiction adds to our understanding of the legal order and istherefore a legitimate and useful part of any law degree. It challengesassumptions about rationality9land the rule of law underlying much ofsubstantive law teaching, and it emphasizes narrative,myth, and ritualas neglected but important aspects of the legal process.92Paul Gewirtznotes an important connection between law and literature in his essayon Aeschylus' Oresteia:

Literaturemakes its special claims upon us preciselybecause it nourishes the kinds of human under-standing not achievable through reason alone butinvolving intuition and feeling as well. If, as theOresteia suggests, law engages nonrational elementsand requires the most comprehensive kinds ofunderstanding, literature can play an important partin a lawyer's development.93Fiction contains representations of the legal order markedlydifferent from the representations in the casebooks and treatises.Lawyers need to be aware that most people see law very differentlyfrom the way that lawyers see their profession. Laypeople will talkabout law and will make decisions which are incomprehensible to thelawyer who has lost sight of the broader culture and confined herselfto orthodox legal materials. The good lawyer should cultivate hersensitivity to other discourses by reading a variety of texts, includingfiction. Traditional legal education has been said to sharpen themind by narrowing it.94One would hope that a literature course wouldexercise and strengthen the mind by broadening it. The lawyer needsto have a good imagination;95 literature can help her cultivate thatability. Northrop Frye made the point in a talk to the Ontario Branchof the Canadian Bar Association:What I am really saying, I suppose, is that all respectfor the law is a product of the social imagination,and the social imagination is what literature directlyaddresses .... If the law were to be completely77


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absorbed into the internal discipline of honest men,there would be no more law, and we should all beliving in the Garden of Eden. We are not there, butin the meantime law still depends upon the imagi-nation, and the fostering and cherishing of theimagination by the arts is mainly what makes yourprofession honorable, perhaps even what makes itpossible.96Underlying the arguments for literature reviewed above is therelated but broader notion that literature in some way makes thereader a better and more civilized person by conditioning orimproving her feelings, sympathies, and imagination.97Fiction worksthis change because it reaches the emotions and intuition of thereader in ways that other forms of prose, especially reasonedargument, cannot do.98 Therefore ethical and political discussioncouched in fictional form is said to be more effective and convincingthan if put in non-fiction prose.99 Literature works with concreteimages, metaphors and myths; law or philosophy does not, or at leastpretends that it does not, do so. On this argument, what is important

about literature is not only what it teaches but also how it teaches.John Bonsignore pursues this aspect of literature in aninteresting discussion of his use of Kafka's parables in the legalstudies program at the University of Massachusetts.100Parables arestories of moderate length. They surprise the reader, arrest theregular 'processing' of information and, in so doing, irritate thepsyche. 101 Bonsignore refers to Thomas Oden's introduction to hisanthology of Kierkegaard's parables, in which Oden gives five reasonswhy Kierkegaard used parables rather than philosophical discourse:parables pervert speculative philosophy, allow deep communicationbetween the narrator and the reader, provoke self-discovery, cultivatethe capability for self development, and are memorable and amenableto oral tradition. They are therefore capable of penetrating whatKierkegaard saw as the spiritual death of his readers in order torevitalize them, a task logic is incapable of achieving. Bonsignoreargues that the teacher, including the law teacher, is faced with asimilar spiritual malaise that she must overcome, and that parables(and by extension literature) can help.102

Even as I write these phrases, I know theseaspirations seem out of place. They seem moreproperly extracurricular or too religious. That theyseem out of place may say more about the ethicalbankruptcy of modern education than about theworth of parables. It is true that as inwarding78


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forces, parables are not conducive to group con-sensus. But if salvation is person by person and notwholesale then parables have a special place.103It is difficult to deny the power of literature to move anddiscomfit the reader in a way that philosophy or law simply cannotdo.104Can a lawyer ever be as unreflective about the harm that law cando after she has read Bleak House? Can she ever be as naively proud ofher verbal skills after seeing those skills used by a master deceiver inThe Fall? The argument here is that literature not only raises ethicalquestions but creates an opportunity for and a stimulus towards themoral education of the reader, in this case, the law student.105However, Bonsignore appears to go further and to argue thatteachers have a mandate to awaken their students to moral life and tolead them to salvation. Much as I value my work as a law professor, Idoubt that my authority extends that far. The teacher of law (or ofliterature for that matter) does not have the knowledge or the callingto lead people to righteousness. Students are mature human beingswith moral lives of their own. In my view, the most that a teacher canand should do is to note the ethical dimensions and dilemmas in her

subject, whether it be literature or the Uniform Commercial Code, andto leave her students to work out their own solutions (andsalvations).106An objection sometimes advanced to literature or otherperspectives courses in law school is that they should be left tostudents' pre-law education.107My response is that such courses areabout law and therefore properly part of a law curriculum. Indeed,such courses are likely to make sense only to students who haveexperienced some legal education.

On one or two occasions, I have agreed that arts studentswith no legal training could enroll in my literature course offered inthe law faculty. My experience has been that the arts students are wellequipped to read literature but are ignorant about law, legalreasoning, and the values that pervade legal materials. As a result, theyare not part of the law students' conversation; they just don't get it.On the other hand, the law students are interested in Portia'sarguments in The Merchant of Venice in a way that most arts studentsare not, because they have seen Portia's problem in some of theirsubstantive courses. They have heard or read lawyers (and lawteachers) who sound a lot like Conversation Kenge in Bleak House,and they may feel themselves a bit like poor Guppy, half-in and half-out of the legal world, using legal ideas in inappropriate situations(like the courtship of Esther), and generally feeling like a fish out ofwater. The Lawand Literaturecourse is about law; it makes sense in away that it would not if offered in an arts faculty.79


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To this point, I have discussed the question whether aseparate literature course has a legitimate place in law school. Such acourse may find a place in a perspectives cluster of courses, one ofwhich the student must take.'08Alternatively, it may have to make itsway in the brutal marketplace of the elective course selection process.I now want to consider the suggestion of some Law and Literatureadvocates that literary works should be taught pervasively, that is, aspart of substantive law school courses.109I have no doubt that fiction, carefully selected and married tothe subject matter of a particular course, may work well as a pleasantrelief and a thoughtful change of pace. Bonsignore's use of the Kafkaparables seems particularly intriguing.10 As a general idea, however,the use of literature in substantive courses seems to me to be a non-starter. Time is short and caselists are long; the addition of a work orworks of fiction seems cruel and unusual punishment for theoverworked student. Many works of literature are only remotelyrelevant to the details of a particularfield of law, and their importancedoes not justify the time and effort necessary to read them carefully.Literature need not be introduced into substantive lawcourses to have an effect on them. ' Reading fiction involvesaccepting and working with multiple meanings, ambiguity, metaphors,and myths. A law professor sensitive to these layers of meaningintegrates them into all her teaching. For example, narrative skills thatprove useful in the everyday act of legal writing also enrich thereading of all appellate opinions.112 The student can learn from anarratively attuned teacher that the litigator who gains control of atrial's storyline may well determine which version of the realitybecomes authoritative.113As Professor Gemmette says, literature makesus better critical readers, 4 an ability that is absolutely essential tothe practice of law. 5.5. The Problem of Professionalism

In our earlier discussion of legal scholarship, we noted ajurisdictional issue: who ought to do interdisciplinary legal scholar-ship, including research and teaching in law in literature. The issue ismade more difficult for me for two reasons: (1) I accept as necessaryand useful the existence of discrete disciplines in the world ofscholarship, and (2) I think that research about law almost alwaysinvolves true interdisciplinary work and is not simply a naturaloutgrowth of research in law. Both of these points need to bedeveloped.The division of the scholarly universe and of the modernuniversity into distinct disciplines, and the general rule that membersof a discipline work only within that discipline, exist for good reasons.

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It is cheaper and more efficient for people trained in law to teach andto do research into law alone rather than to have to learn an entirelydifferent discipline. Law students may rebel at the prospect ofpharmacy professors attempting to teach the law of trusts; they may beequally concerned about law professors trying to explain literature,philosophy, or sociology.Apart from questions of economics and student reaction,legal research and teaching done by law professors in a law faculty orpublished in a legal periodical are more likely to be done well thanthe same research published or pronounced in, say, an Englishperiodical or department. The pressure to do well is greater whenone's readers or auditors know something of the discipline the scholaris expounding. The pressure is weaker when the law professorpurports to discuss literature in a law classroom or in a legalperiodical. The point may be put more positively by saying that thelaw professor teaching law in a law faculty is part of an informedconversation on the subject. The same is less likely to be true if sheteaches law in the agriculture school, or literature in a law class.It is sometimes thought that the dangers of interdisciplinaryresearch do not arise in fields like legal history or legal theory or

law in literature because these studies are only small butmanageable extensions of research in law. I reject this view. Forexample, legal theory before the publication of H.L.A. Hart's TheConcept of Law was largely treated, at least in England and theCommonwealth, as a mere extension of doctrinal legal studies. Hartmade that blinkered attitude impossible, because he demonstrated theextent to which philosophy that happened to deal with law was in allother respects philosophy in the fullest sense. RichardWeisberg's TheFailure of the Wora'16 has accomplished the same fundamentalchange in Law and Literature studies. To write about legal philosophy,law in literature, or legal history is not to study a small, containedbackwater that can be easily mastered by the lawyer without furthereducation. Literature is literature, whether taught in an Englishdepartment or in a law school, and it raises all the questions ofknowledge, methodology, and experience present for the teacher inan English department.117Suppose that a law professor wants to write an article orlecture on Bleak House. She will need to read as much of Dickens aspossible, as well as works by his contemporaries and other writerswho moved him. Some knowledge of Victorian history, general andcultural as well as legal, will be essential. Dickens was influenced bythe currents of thought in the Victorian period; some knowledge ofCarlyle, for example, would be invaluable. She will have to make atleast a preliminary investigation of the enormous critical literature

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around Bleak House and Dickens' fiction as a whole. She will not wantto be naive about the problem of interpretation; some reading intoliterary theory will be necessary. All of this before the bemusedscholar is able to return to her original interest: the disordered legalstructure in the novel. The prospect is daunting. The floodgates areopen. Given the argument that (1) the division of the world ofscholarship into discrete disciplines is useful and that (2) mostresearch about law involves genuinely interdisciplinary work, theproblem of staffing a law in literature course or research projectbecomes a difficult one. Literaturescholars have taught successfully inlaw schools, often in a team teaching situation with a member of thelaw faculty. Some distinguished Law and Literaturescholars have beeneducated and have taught in literature as well as law. A person withthis mix of education is the perfect candidate for a literature course inthe J.D. or LL.B. curriculum. Even without formal education inliterature, a law teacher who is willing to master another disciplineand to invest considerable time and energy in the task can prepareherself to teach the subject. The amount of work involved should notbe underestimated.118 On the other hand, the would-be literatureteacher should not be so overawed by the body of literary criticismthat she is prevented from making any attempt to master it.In Law and Literature:A Misunderstood Relation, Posner saysthat in general, the lawyer's training and experience do not equiphim to read imaginative literature -- even that nominally 'about' law--with greater insight than specialists in literary criticism, or indeedordinary cultivated readers. 119 n part, I disagree. Law teachers andstudents have several qualities which make them potentially interestedand effective readers of fiction about the legal order. First, legalreaders usually have an interest in and a sympathy for the aims of andthe values underlying the legal process; they tend to respect the law(even if sometimes grudgingly) from the inside. For example, lawprofessors and students, unlike many other readers, will be critical ofsilly or ignorant generalizations about law. Secondly, lawyers spendmuch of their time learning to read carefully and precisely, looking tothe actual words used and considering the nuances of meaning ofthose words. They read cases with a keen eye to what was actually saidor done, not what the parties contended had occurred. They learn tosort out relevant and irrelevant material and to get the facts straight.These are useful, indeed essential, qualities of a competent reader andcritic. The good law teacher or student is as prepared to look at thelogic of a novel's structure as she is of a judgment or a statute. She

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may not have the technical language of literary criticism or the broadreading experience of a literature student, but she has the basic skillsand ability.However well prepared she may be, the legal researcher orteacher doing interdisciplinary work may want to note Melville'sveiled criticism of Captain Vere in Billy Budd. Vere is described ashonest and direct but as unmindful in his discourse of thecircumstances and education of his bluff company. Melvillecomments:

But considerateness in such matters is not easy tonatures constituted like CaptainVere's. Their honestyprescribes to them directness, sometimes far-reaching like that of a migratory fowl that in its flightnever heeds when it crosses a frontier.120

Vere's error, which reverberates through the novella, lies not in hiscrossing the frontier but in his doing so unawares or recklessly,without heeding the fact. The legal researcher's responsibility is toheed the crossing into another discipline, and to prepare herself tooperate confidently and knowledgeably in that foreign land.121

C. Law and LiteratureTheory and James Boyd WhiteThe Law and Literature movement is sometimes criticizedbecause it has not yet produced a theory of general application to

legal studies.122Unlike Law and Economics, C.L.S. or feminist legaltheory, it is said that Law and Literaturehas no central set of ideas orinsights applicable to substantive courses. Before accepting theaccuracy of this criticism, it is necessary to consider the work of JamesBoyd White.While White more concentrates on the teaching of law thanof literature, he has assimilated the two in a fashion important for anyattempt to justify the teaching of literature in law faculties. His work isentitled to a more extended discussion than I have space for here,123but some comment is necessary on this pioneering thinker.Despite White's aversion to conceptual language, I find ituseful to begin by asking what he means by law. In his preface to the1985 edition of TheLegal Imagination, White notes that the dominantapproach to law has been positivistic and rule-focused, with quasi-scientific overtones developed in opposition to earlier natural lawnotions. A second strain in North American legal thought has rejectedthe law as rules view as simplistic, and has instead sought to lookthrough the tissue of laws to what really happens in the world, whatofficials actually do.124According to White, however, law should not be seen as

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merelya system of rules or a series of observations of actual officialconduct. Instead, law is more usefully imagined as a language orculture composed of habits of mind and expectations. It is anenormously rich and complex system of thought and expression, ofsocial definitions and practices, which can be learned and mastered,modified or preserved, by the individual mind. 125White is anxious to emphasize that law is a practice, anactivity, rather than just a course of study. In When Words Lose TheirMeaning, White defines law as a culture of argument ... a way ofmaking the world with a life and a value of its own. It is aconversation intended to give to the world it creates the kind ofintelligibility that results from the simultaneous recognition ofcontrasting positions. 126 Good judge-made law is a self-reflective,self-corrective body of discourse that will bind its audience togetherby engaging them in a common language and a common set ofpractices. It is a claim to constitute a community and a culture. 127Lawis best understood as a social and cultural activity and also as arhetorical and literary activity. 128While suitably deferential to this inherited language, theparticipant in the extended conversation is continually acting tochange the structure even as she uses it.

Lawworks by a process of argument that places oneversion of events against another and creates atension between them (and between the endingsappropriate to each); in doing so it makes ourchoice of language conscious rather than habitualand creates a moment at which controlled change oflanguage and culture becomes possible. The rhetor-ical structure of the law makes a place for each partyand defines a relation between them by establishingthe ways they may talk; in doing this it suggests aconception of justice as equality, for a person mayfind himself in any of these roles.129

In Heracles' Bow, White describes law as constitutive rhetoric, thatis, the central art by which culture and community are established,maintained, and transformed. 130Because law is continually beingcriticized and remade, White sees it as structurallytentative, a modeof transformation as well as preservation. 131 n another useful imagefrom his most recent book, White pictures law as involving thetranslation of authoritative texts into the present moment where thetexts necessarily have a somewhat different meaning.132The process of reading texts is central to White's conceptionof literary and legal culture.133He sees the activity of reading as a

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matter of learning from and responding to a text, as a conversationtaking place between the writer and her audience. The reader of anytext is concerned to decide what kind of relationship the writer hasestablished with the language and with the reader.134 Whenever youspeak, you define a character for yourself and for at least one other-- your audience -- and make a community at least between the two ofyou; and you do this in a language that is of necessity provided to youby others and modified in your use of it. '35A text defines an ideal reader whom the actual reader isinvited to become. If the text is a racist joke, for example, one maydecline the invitation. In the case of Pride and Prejudice, the readermay struggle to understand the novel and may then accept itsimplications, being benefitted in the process.136 In this sense, allreading has an ethical and political dimension.137On the question of interpretation, White is not prepared toassume that the reader has complete freedom to mold texts as shepleases. It is possible and right to establish confidently shared,objective understandings of what texts mean.138On the other hand,texts are not reducible to a message that can be extracted and theempty husk thrown away. The meaning resides in the poem andcannot be restated without loss.'39 In his most recent book, Whiteappears to go further and to see both translations and interpretationsas not to be thought of as replicating the originals or conveying their'content' but as gestures themselves; as if the first expression were apiece of a dance, an invitation to make a dance together, and as if ourresponses to it were answering movements. '40As a way to read literature, White's approach has considerableappeal. But, as is well known, White goes further and assimilates lawto literature on the ground that they are both roughly similar activitiescalling for much the same approach to reading.'14 Law should belooked at not as a set of rules or institutions or structures ... nor as apart of our bureaucracy or government ... but as a kind of rhetoricaland literary activity. '42The life of the law is thus a life of art, the goalof which is the integration into meaningful wholes of the largest andmost contradictory truths ... all under the ruling requirement thatwhat we say make sense. '43 Such a life is inevitably linked to anexisting culture, but just as inevitably is driven to change, often inresponse to ethical considerations.'44Treating law as a branch of the humanities means that law isseen as an open system, learning from but also transforming thepast,145acknowledging inconsistency and tension, and affirming theequality of all legal actors, and by implication the radical equality ofall people. '46 The ideal may be difficult to achieve. White expresses astrong sense of desperation at the end of his latest book:

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But as things now are, when bureaucratic andtheoretical modes of thought have so nearlycaptured aw, its futureis in doubt: Shall the lawbea force for multivocality, or the acknowledgmentofthe other--a species of translationworkingby an artthatsimultaneouslyassertsthe self, and its language,and respects what is outside it -- or shall it bereduced to an instrument of bureaucratic andtheoreticalpower?147White's assimilation of law to literature has profound

implications for legal education. Lawstudents should learn to readcases as a way of learningabout their world, by living over in theirimaginations the experience of the parties and of the lawyers, bytestingthe argumentsmadeagainstotherpossibilitiesandso on.148 llof this is familiarto any law teacher,at least as a statementof ideals.But White also arguesthata legal opinion, like a poem, is not simplyreadfor its idea (or its holding).In both cases [the poem and the opinion] theinterestingquestion is not what the main idea is buthow it is given meaning by the text, and givenmeaning in particularby the oppositions thatare itslife. It is not the restatablemessage that is the mostimportant meaning of the poem or the judicialopinion, but the reader'sexperience of the life ofthe text itself.149

Whathe advocates s a legal aestheticsin place of the pseudo-sciencehe finds in traditional legal education and other forms of socialscience, especiallyeconomics.150White applies to legal materialthe ideal reader notion,discussed above, creating in the process a formidabletask for theconscientious law student. The reader of a case should try tounderstandhow an ideal readerwould fit the opinionwith the presentcultural circumstances.Checking the case against the rest of theculture contributesto a process of collective or culturaleducationthatis in structureanalogousto thatexperiencedby the single readerof a literaryext. '5

In a lecture to firstyear law students,White describes legaleducation as both professional and liberal. It is professional in thesense that students are requiredto take responsibilityfor their owneducation and for the improvement of their own minds. Theeducationis liberal in thatits ultimateconcern is the developmentofstudents' own capacities, sensitivities, and styles, the fashioning ofcharacter or themselves out of theirexperiences.1528 6


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In the same lecture,Whitecompares learning awto learninga language.One must of course learnthe rules of grammarandthe meaning of terms,but to know those things isnot to know how to speakthe language.Thatknowl-edge comes only with use. The real difficultiesandpleasures lie, not in knowingthe rules of Frenchorof law, but in knowing how to speak the language,how to make sense of it, how to use it to serveyourpurposesin life.153

TheLegal Imagination is an extended effort to teach law students howto speak and to control the legal language,and how to retain theirown personalitiesin the process.The emphasisis on learninghow todo, engaging in the activity of makinglanguage, character,andcommunity,makinga cultureand a world. Clearly, egal educationfor White is not a mere trainingn rulesandforms. 154In Heracles' Bow, White talks of law as constitutive rhetoricand, in a remarkableparagraph,summarizes the impact that thisnotion should have on legal education. The paragraphdeservesquotationas a good summaryof his views on whatlegal educationcanand should be.Law might come to be seen as something thatlawyers hemselvesmake all the time,whenevertheyact as lawyers,not as something that is made by apolitical sovereign. From this point of view the lawcan be seen as the culturethat we remakewheneverwe speak as lawyers.To look at law this way is todirect one's attention to places that it perhapsnormally does not rest: to the way in which wecreatenew meanings,new possibilities formeaning,in what we say; to the way our literature can beregarded as a literatureof value and motive andsentiment; to the way in which our enterpriseis aradicallyethical one, by which self and communityare perpetuallyreconstituted;and to the limits thatour natureor ourculture,our circumstancesandourimagination, place on our powers to remake ourlanguagesandcommunitiesin new forms.155There is much to like in White'shumanistic account of lawand legal education. The emphasison law as a discursiveand, to thatextent, a debatableactivity s useful as a correctiveto the essentiallypassive characterof much legal educationtoday.Whetherthe teacher

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lectures,or conductsa Socraticgame show for the amusementof theclass, the educationalprocess is usuallynot what one mightdescribeas a conversation,an act of equalityamong the participants.White'ssense of law as something to be discussed, and as something to beremadeby conversation,gives students a stake in (and some controlover) their own education, a wholly desirable ideal.156There are,however, several less satisfying aspects of his legal theory and hisaccount of legal education.157White has been much criticized for overestimating thesimilaritiesof lawand literatureandforignoringimportantdifferencesbetween them.158There has been less comment about White'sunhappinesswith what he calls conceptual,as contrastedwith literary,language,and his argumentthat legal languagefalls into the secondcategory.'59These two notions, that law and literatureare alike, andthat legal language is literary rather than conceptual, seemquestionable to me, and they lead White to doubtful conclusionsabout the nature of law and legal education. One result is that hepersistentlyundervaluesthe importanceof the rules and concepts oflaw thatteachers have alwaysviewed as their stock in trade,and thatgenerationsof law studentshavesoughtto glean fromthe cases or,onoccasion, from commercial notes and summaries.Rules do seem toexist and to decide cases in most areasof law, and without the highcultural and legal debate that Whiteapparentlybelieves is typicaloflaw talk in the courtsand classroomsof NorthAmerica.160White's idea that cases can be read like novels blursimportant differences between the two forms of expression. Forexample, a judgewritingan opinion is not usuallytryingto integrateinto her judgment thelargestand most contradictoryruths '6' boutthe argumentsraised in the litigation. Her goal is almost alwaystodecide the precise issue before the court andto leave the multitudeofother relevant problems for another day. While novels cannotprofitablybe read for the rule or the moral, many, probablymost,opinions can and should be read in exactlythatway. Such cases arereducible to a proposition in a way that novels are not. The vastmajorityof law students are taught to read case law reductively,strippingawaythe concrete details and the unnecessaryreasoningtofindthe kernel of the case. Lecturers ndwritersmayexpatiateon thefacts and policies lying behind Palsgraf v. Long Island R.R.162r Reginav. Dudleyand Stephens'63ut, at the end of the day,the holding itselfneeds to be determinedanddeployed.Thepopularityof cannednotesand commercialsummariesproffersat least a market sense of whatlaw studentsbelieve theyneed to know.164Unlike some Lawand Literaturecholarswho seek to reduceworks of literatureto political or philosophical propositions,White

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wants to read cases with an expansiveness and complexity suitable toa long Victorian novel. Both are applying inappropriate criteria to thetexts they are considering.165White is most comfortable dealing with the judicial opinion,but he does occasionally address himself to other forms of legalexpression. In Heracles' Bow, White urges us to view statutes, notmerely as a set of orders or directions or commands, but also asestablishing a set of topics, a set of terms in which those topics can bediscussed, and some general directions as to the process of thoughtand argument by which the statute is to be applied. 166This viewseems to overestimate the conversation-starter capacity of statutes andregulations, most of which more closely resemble a communiqueissued after the discussion has been concluded. On the other hand,White's account does ring true for constitutional interpretation,'67perhaps especially in Canada,which is engaged in the exciting activityof giving meaning and establishing limits to its new Charter of Rightsand Freedoms.In part because of White's downplaying of rules andconcepts, his view of legal education becomes distorted andunrealistic. The amount of careful reading White expects law studentsto do seems optimistic in my experience. There is simply not time toread every case like a poem, even if it were appropriate to do so.White rightly emphasizes the need for legal education to involve moreparticipation on the part of students, but the activities White has inmind are remedial reading and writing courses, which, at least asdescribed in The Legal Imagination, may not be appropriate to lawschool. The second questionable aspect of White's work is hisapparent belief that most, if not all, human disputes can be resolved inthe polite, almost bookish legal conversation that White admires. Heassumes that the courts of North America provide an intellectuallylevel playing field in which all sides can and will be heard respectfullyand in which the courts will perform the Herculean (or Heraclean?)task of working out a solution that gives equal credit to all thearguments and to the entire legal tradition. White must know thatsome courts are biased, many issues are not open to judicial debateand decision, and major social factors of class, race, and sex distort thediscourse. Many issues remain to be settled on the rocky and unevenplaying field of politics or the marketplace, and not in a genteelcommon-room atmosphere.'68 Lawhas its limits, even in a democraticsociety, but White appears to underestimate or ignore them.A related problem is that much of White's writing is soabstract and self-contained that one is unclear where he stands onconcrete moral, political, and legal issues. With Hartand Dworkin, the

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discussion is also abstract, but its implications for specific problemsare implied and often expressed. White has expressed relatively fewpolitical judgments. He dislikes the law and economics movement, headmires the American system of litigation, he comments critically onthe search and seizure cases interpreting the fourth and fourteenthamendments to the United States Constitution,169and he thinks thatcriminal law is related to the common sense activity of blaming theaccused. White speaks eloquently for a radical egalitarianism which,he says, arises out of his approach to law, but he gives little or nosubstance to the concept of equality.170 If there is any threadconnecting these ideas, it may be that White is essentially satisfiedwith American legal process and optimistic about the present politicalarrangements. In this as in other respects, White differs from the moreradical Law and Literaturescholars like West, Koffler, and Weisberg.A more general problem with White flows from his aversionto situating his account of law in relation to the general body of legaltheory. For example, I want to know whether White sees any merit inHart's account of law as a system of norms. What does White thinkabout Dworkin? White not only does not say;171he goes further andcriticizes the activity of theorizing, apparently because it interfereswith more useful and interesting legal conversations. One mightrespond that legal theory is also a conversation, and one which Whiteis engaged in, whether he wants to or not. It is a weakness in White'swriting that he does not make it clear why we should prefer his viewto that of Hart, Dworkin, orJerome Frank.White is also disinterested in situating his discussion in theworld of literary theory.172From time to time, he has expressed aguarded sympathy for versions of reader response theory anddeconstructionism, and a more enthusiastic acceptance of theinfluence of Wayne Booth,173 but he has not developed anythoroughgoing assessment of the place of his own work in the contextof literary theory as a whole. In his long footnote on the intellectualorigins and present context of When WordsLose TheirMeaning,174hedoes express a sympathy for the New Critics that raises interestingquestions about his approach to legal and literaryeducation.Like Professor White, I studied literature at a time when NewCritics such as Cleanth Brooks and W.K. Wimsatt were popular andinfluential. They believed in the poem as an autonomous artifact inthe sense that it could and should be split off from the biography ofthe writer and to some extent from the historical and socialbackground of the work.175The poem could be studied as an entity,and it would yield up its meaning, at least to a professional teacher orcritic. The emotional or intuitive reactions of the untutored readerwere not significant. Emphasis was placed on the craft of careful

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reading, mastery of which gave to literature teachers a professionalidentity and a specialized skill of their own. The New Critics projectedan art of criticism that most students would never be able to achieve;Frank Lentricchia talks of too many generations of students [who]came out of New-Critical classrooms convinced that their teacherspossessed knowledge of the 'hidden' meanings of texts to which therewas no systematic and disciplined access. 176The New Criticism lostmuch of its power and influence in the late 1960s and early 1970sunder the influence of history-based studies, structuralism,psychology,mythic criticism (especially by Northrop Frye), deconstruction,Marxism, and feminism. However, James Boyd White has retainedsome of the flavor of his mentors, and it affects his understanding ofliterature and law.White reads novels and plays without any extended interestin their historical and cultural context. Thucydides is regarded asengaging in the same conversation as Jonathan Swift,Jane Austen, andChief Justice Marshall in McCulloch v. Maryland.'77White's reading oflaw is similar in its neglect of the context of the cases or statutesunder consideration. Nor are we concerned with the actual lives of thelitigants, lawyers, or judges. Thinking like a lawyer is given a verythin definition or content. Even where political issues are addressed,the tone is peremptory. Law and Economics is not so much answeredas dismissed. 78White reads case law as a continuation of the Americantradition of the case system, involving a close reading of and adialogue with the text. What White has done is to develop a theoryunderpinning the case system very much in the spirit of his NewCritical reading of literaryworks. His approach to legal education, withthe emphasis on painstakingly careful reading of cases, seemsimpractical and unrealistic in the modern law school where theemphasis is more on covering the course than reading anything indepth. If we assume that the case system is gone, replaced by thelecture or by other forms of educational techniques, then White isarticulating a system of legal education that does not and cannot existany more, if it ever did.There are similarities in White's approach to the reading andteaching of both law and literature.'79We are first struck by his masteryof the craft, his analytical ability, and breadth of knowledge. At thesame time, there is the sense that the teacher, in this case Whitehimself, occupies a privileged position by virtue of his knowledge andskill, and that the student-reader is correspondingly seen as a recipientof knowledge, and certainly not in control of her own reading-education. Texts have meanings, and the wise oracular professor-writer can and will discover them and relay them to the student. We

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earlier noted the potential for the democratization of the reading andlearning process in White's theory. His practice tends in the oppositedirection. His books are performances of great skill and knowledge,but they do not encourage the student-reader to try her hand at theexercise.180White seems to me to be engaged in at least two separateprojects. The first is to develop an account of legal discourse, anexercise in law as literature. This account is a general theory of thesort articulated by the Law and Economics school, C.L.S., andfeminism, although its implications in concrete situations are lessobvious than those of its competitors. White's second project is toread several literary texts, linked loosely together by such themes asthe alteration in the meaning of words used by societies in the processof change.181It is important to note that White's two projects can beseparated. They exist independently. White's theory of law asliterature is not a necessary underpinning of the law in literatureproject or vice versa.182Literature studies in law schools are notvalidated by White's work, and can and do exist separate from it. Evenin his books, the relationship between literature and law is tenuous,although White argues strenuously (and somewhat defensively) thatthe two activities are necessarily related.'83If my analysis is right, thenWhite's discussion of law as literature is peripheral to the actualreading of literary works in law schools, an activity he seems toendorse but fails to discuss directly.

D. Three Pitfalls in Literature StudiesWe noted at the beginning of this paper that Law andLiterature courses are now taught in a majorityof American (and someCanadian) law schools. Research is published regularly in legal andliterary periodicals, as well as the two journals that devote all or asubstantial part of their space to Law and Literature.184 he future ofliterature studies would appear to be assured as a lively andchallenging addition to the world of legal scholarship.While I admire and enjoy the work of the Lawand Literaturemovement, there are pitfalls in this kind of interdisciplinary work. Myintention is not to damn with faint praise, as Posner has done in hisrecent book.'85 Instead, as a friend and supporter of law in literaturestudies, I wish to comment on three disturbing trends in the recentscholarship. They are the overuse of the Great Books model, the viceof Procrusteanism, and the passion for theory.

1. The Overuse of the GreatBooks ModelCourses on law in literature, including mine, tend to be Great

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Books courses in the sense that they bring together works drawn fromwidely differing periods and writers on the assumption that the booksin some way comment on each other or on the legal order. The textsare decontextualized; they are treated as autonomous units ofmeaning more or less free of their authors, periods, and genres, butengaged in the same conversation about law. A similar Great Booksapproach typifies some of the writing produced by the Law andLiterature movement, such as The Failure of the Worda86 nd WhenWords Lose TheirMeaning.87There are obvious dangers in eclectic courses and books ofthis sort. For example, looking at Bleak House without putting it in thecontext of the whole of Dickens' writing, the fiction of other Victoriannovelists, and the history and culture of the period runs the risk of asuperficial misreading of the novel. One wants to place White'saccounts of Greek and 18th-century English literature in the context ofthe enormous critical literature on those periods and writers. Onereason for doing so is to see if Thucydides is really engaged in thesame conversation as Burke, or whether instead their basic ideas andvalues are so different that comparisons are difficult and treacherous.The problem in any Great Books course, or any treatise built on thesame principle, is that it may not spell out, or value highly enough, thedifferences among periods of history, writers, or even different booksby the same writer.188When critics or teachers concentrate their attention on thelegal aspects of works of fiction, the effect may be to limit and distorttheir interpretation of the works, and to fail to read them as a whole.189An obvious example is any account of The Merchant of Venice thatstops at the end of the trial scene without reference to Act V or to thenon-legal subplots of the play.190Bleak House is a book about law andabout the powerlessness of Chancery suitors, but it is also about otherforms of powerlessness, such as Esther's situation as a dependentgentlewoman.2. The Vice of Procrusteanism

Another questionable aspect of some Law and Literaturewriting is the tendency to use fiction as authority for various ethicaland political propositions. One might call this approach the vice ofProcrusteanism (after the well-known ancient Greek scholar of thesame name). Some of the writing by people associated with the Lawand Literature movement seems to be motivated by the regrettabledesire to cram literaryworks into a theoretical or political framework,thus cutting down the complexity and richness of the worksthemselves.19' For example, Richard Weisberg's The Failure of theWord and Richard Posner's Law and Literature: A Misunderstood

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Relation both advance elaborate and controversial historical-culturaltheories needing more extensive defence than the authors give.These theories sometime seem to impede a full and sensitive readingof the literarytexts themselves.RichardWeisberg seems to express this approach to literaturein his response to Robert Weisberg's critique of the Lawand Literaturemovement. In the course of his defense, Richard Weisberg says thatour task, of course, is to choose the texts that proffer (often onlycovertly) the subversive voice we find representative of the age. 1 2Hegoes on to explain why Flaubert, Dostoevski, Melville, Camus, and E.L.Doctorow are preferable to Dickens,193Balzac and Louis Auchincloss.

Weisberg's approach, while often exciting and successful, iscapable of diminishing literature in at least two ways. First, he limitsand sometimes distorts the writers he chooses to include asrepresentative of the subversive approach of the age; his odd andmuch criticized treatment of Billy Budd is the best example.194Secondly, he is too quick to discard entirely other writers who aremore subtle and worthy of consideration than his arbitrary rameworkwill permit him to accept. If the test for inclusion in Weisberg's canonis narrativeambiguity and non-omniscience, and the production of

anti-rationalisticand word-skeptical themes , I have great difficulty inunderstanding the exclusion of books like Bleak House or UrsuleMiroue't. Speaking more generally, Law and Literature scholars andteachers should think about including in their books and reading listsmore gay, women,195 and minority writers,196as well as hithertoneglected writers from the established canon, such as AnthonyTrollope.197The aim should be to include any work of fiction thattreats the legal order in an interesting way.James Boyd White is also selective about the literature hechooses to discuss. His favorite authors are drawn almost entirely fromthe Age of Reason or from Greek literature, perhaps because they canbe read as supportive of the civilized, rational world White prefers tocontemplate.198 If he used more works drawn from the Renaissance,the Romantic period, or from modern literature, he might reachdifferent conclusions about the possibility of the civilized conversationhe advocates.The underlying issue here is whether literature can ever beused as a way to illustrate or prove theoretical propositions. Somefiction undoubtedly does describe situations that have philosophicalovertones. The Merchant of Venice and Measure for Measure exposethe difficulties, inherent in any higher law theory, in making that lawoperate in the human world. Some of Dickens' novels, such as OliverTwist and Hard Times, can be profitably read as critiques ofUtilitarianism.199The Caucasian Chalk Circleassumes a Marxisttheory

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of law-making and administering, although refracted through Brecht'simagination. Theodore Dreiser's An American Tragedy comments onhuman and cosmic injustice in a world in which people like Clydehave little or no control over their lives.200 Examples may bemultiplied.In general, however, it seems to me that literature is anextremely roundabout way to get at philosophical questions. A novel,if it is any good, does not take as its central object the development ofa theoretical problem. Otherwise, as in the novels of Ayn Rand, it isoften bad literature.201There is a danger in overemphasizing thephilosophical concerns, not to speak of the expertise, of writers offiction. Theoretical insights in literature are usually superficial andincomplete. A good example is Dreiser's confused effort in his fictionand non-fiction to come to terms with the problem of free will.202Thestudent of theory would be better advised to

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