Legal and Literature - (Revised Edition)

Author: Posner
Publisher:
Publication Date: 2002-09-01
Features: The first edition of this book was published ten years ago. During this time, I have been engaged in teaching, thinking, reading, and writing within the interdisciplinary field of "Law and Literature." I am pleased to have this opportunity to summarize my current ideas in the form of this substantially revised and expanded edition. Over the past decade, this field has expanded. Within law schools alone, the number of related courses has doubled. [1] Several important monographs have emerged during this period, including Thomas Grey's Wallace Stevens and Legal Practice: Law and Poetry, [2] and Martha Nussbaum's Poetic Justice; Literary Imagination and Public Life. [3] The involvement of prominent scholars like Grey and Nussbaum also demonstrates the vitality of the Law and Literature movement. A continuous stream of critical anthologies, selected essays, and general works on Law and Literature have been published, including Adversaria (a special issue of Mosaic in December 1994); Happy Accidents: Law and Literature, edited by J. Neil Turner and Pamela Williams; [4] Law and Literature: Possibility and Perspective, by Ian Ward; [5] and Perspectives on Law and Literature, edited by Bruce L. Rockwood. [6] (Also see Interpreting Law and Literature, edited by Sanford Levinson and Steven Maierroth, published in the same year as the first edition of this book). [7] During this period, first-rate works on Law and Literature have also been written by practicing lawyers. See Daniel K. Con's The Lawyer Who Would Be King? Shakespeare's Legal Appeal; [8] William D. Domnarsky's The Court as Seen by the Lawyers. [9] Two new journals have also begun publication: Cardozo Studies in Law and Literature and Yale Journal of Law and Humanities, the former devoted entirely to Law and Literature, and the latter partly so. Due to the continued fascination of American writers with the law, the field of Law and Literature has flourished, and its status as an interdisciplinary research school has been increasingly solidified. See Chapter 8 of Gary Minda's The Postmodern Law Movement: Law and Jurisprudence at the Turn of the Century. [10] The development of this field has been very consistent with the direction described in the first edition of this book, except for two exceptions. , interest in using literary methods to interpret statutes and constitutions has declined, as people increasingly feel that interpretation is relative to purpose, so it is unlikely to ask the same questions of different interpretive objects (dreams, operas, labels, constitutions, sonnets), and interpretation is also a conscious effort that is not necessarily a lot of activity even if it is effective. My own thinking about interpretation has also changed, and these changes are reflected in the revision of the chapter on interpretation. Second, interest in using fictional literature and its techniques to address issues far from jurisprudence has grown—examples of jurisprudential issues originally studied include: one, how is law born from revenge? What is natural law? What is objective interpretation of a text? In what sense do judicial opinions have "literariness" or should they have "literariness"? What is the relationship between rhetoric and justice/judiciary? Only in the reviews of the first edition of this book, [11] James Boyd White criticized me for not understanding that it is important for lawyers to have a literary education, rather than whether they read literary works about the law. [12] White, Nussbaum, and others use fictional works unrelated to the law, or at least appear unrelated, as the foundation of a new model of legal scholarship, which I will discuss in the third part of this edition. This new model emphasizes narrative and memory rather than analysis, prefers judicial biographies to the study of judicial opinions, promises to provide fresh insights into the dilemmas faced by those troubled by American law (such as blacks and women), and generally seeks to promote the ability of lawyers and judges to empathize and understand by expanding their imagination. Only the chapters in the third part are entirely new, but many chapters in other parts have also been added. One result is that the second chapter in the first edition has now become three chapters—the first, third, and fourth chapters, while the original first chapter has become the second chapter. This edition discusses the works of some authors not discussed in the first edition, including Shelley, Manzoni, Stendhal, Forster, Dryden, Geddes, and Richard Wright; it also discusses other works of authors discussed in the first edition; and it discusses several popular novels. I have revised or reorganized all chapters (or both) and updated the bibliography. Some new materials come from books and articles I published after the first edition: Cardozo: A Study in Reputation (1990); [13] Problems of Jurisprudence (1990); Beyond Law (1995); "When Is Parody Fair Use?", in Journal of Legal Studies 21, 67 (1992); "Judicial Biography," in New York University Law Review 70, 502 (1995); "Judges' Writing Styles (And Do They Matter?)," in University of Chicago Law Review 62, 1421 (1995); "Legal Narratology," in University of Chicago Law Review 64, 737 (1997).