SOURCE: Rockwood, Bruce L. “Introduction: On Doing Law and Literature.” In Law and Literature Perspectives, edited by Bruce L. Rockwood, pp. 2-38. New York: Peter Lang, 1996.

[In the following essay, Rockwood surveys recent critical approaches to the study of law and literature and suggests that the two disciplines together can be helpful in understanding the moral complexities of the postmodern world.]

Despite its deep roots in culture and civilization, in the last decade of the twentieth century law and literature is still a relatively new and emerging field of study.¹ It is a distinct discipline, and a true “interdiscipline,” involving fundamental issues from the humanities,² the social sciences, and even the natural sciences.³ It is full of ferment and vitality, whether in writing,⁴ scholarly debate,⁵ or the classroom.⁶ There are many questions to ask within a law and literature framework, many texts to examine, and few clearly right or wrong answers. It is the purpose of this volume to provide an introduction to the field, and to permit scholars and educators from a variety of perspectives to explore what it means to do law and literature.

THE EMERGING DISCIPLINE

The law and literature movement has progressed rapidly since the early 1970's, when James Boyd White's The Legal Imagination first gained it widespread attention. White later summarized his views in a symposium introduction, writing:

I began this Introduction by asking this question, meant to capture the essence of many such questions I have heard: “How can literature have anything to say to lawyers when literature is inherently about the expression of individual feelings and perceptions, to be tested by the criteria of authenticity and aesthetics, while law is about the exercise of political power, to be tested by the criteria of rationality and justice?” … (T)his question misstates everything it touches. Literature and law are both about reason and emotion, politics and aesthetics; they both promise to integrate what that question falsely separates, and to do so by drawing attention to what is at stake whenever one person writes or talks to another.⁷

Informed in equal measure by the emergence of scholars with diverse, interdisciplinary backgrounds,⁸ and the blossoming of critical theory in literature and legal studies,⁹ law and literature provides an opportunity to find a synthesis that brings together a wide variety of strands in contemporary discourse. The course of this on-going conversation is reflected in this volume in Mark Weiner's review essay on White's most recent book, Acts of Hope. Weiner seeks to describe “the specific form of law and literature practice” pursued by White, particularly White's “connection between the concept of hope and the study of history.” Hilda Hein, in her paper “Law and Order in Art and Law,” seeks to connect aesthetic theory with law and literature, through an examination of the impact of art on law, and of law on art, “arguing that legal discourse sometimes determines (unwittingly) aesthetic notions, just as it shapes and modifies cognitive and ethical ideas.”

The humane values reaffirmed in law and literature posed a direct threat to the dominance of law and economics theory in modern legal analysis, and the parallel doctrine of rational choice theory in political science.¹⁰ Judge (and Professor) Richard Posner, one of the most prolific legal writers of all time, and a leading exponent of the law and economics school, responded to this threat in the mid-1980's, when he sought to redefine and limit the utility of the law and literature approach after his work was attacked by Robin West using a law and literature methodology.¹¹ Posner wrote in his Law and Literature: A Misunderstood Relation:

These attempted syntheses of law and literature are ingenious and provocative but do not convince me. They borrow the prestige of great literature for political, ideological, or ethical ends to which the literature is not germane. They make Melville and Kafka (and others) stand for a Dionysian or Romantic vision of human possibilities that law is forever thwarting; …¹²

Robin West has been characterized as “one of our most creative legal thinkers,” who is seeking “to generate a ‘morally grounded legal criticism’” that presupposes a universal view of human nature, and the need to rely on literature, story-telling, and empathy as a means of understanding “human nature,” and thus being able to make a moral critique of the law: “she is our Antigone, willing to face down all of the Creons to her left and to her right who invoke social contingency against her invocation of natural right.”¹³

West characterizes Posner's criticisms, in the introduction to her most recent book, Narrative, Authority, and Law, as follows:

Posner argues that works among the canon of great literature that seem to be in some sense about law are rarely if ever critical of law in any deep or important sense. Rather, great literature that is truly about law is almost invariably celebratory, rather than critical, of legal authority. Literature that appears on its face to be critical of law is simply using law metaphorically as a symbol for something toward which the work truly is critical (such as the authority of the church, of God, of fathers), …. Therefore, literature should never be used to mount criticism of law or of legal institutions. … The law-and-literature movement, accordingly, is simply engaged in misguided political criticism. The literature is a smokescreen.¹⁴

West notes that “an adequate response requires a survey of the literature,” but that his argument seems “very peculiar” in suggesting that only law “of all the aspects of social life explored in great literature” would not be taken seriously as a subject worth exploring:

In the face of the extraordinary amount of canonical literature that is both about law and at least appears to be critical of it, from Sophocles' Antigone to Shakespeare's Measure for Measure, Melville's Billy Budd, Sailor, and Twain's Pudd'n head Wilson, to name just a few of hundreds, quite the contrary is almost noncontrovertible; …¹⁵

The flavor of West's critique of Posner—and through him the whole law and economics enterprise—can be found in her discussion of his attempt to defend the priority of wealth maximization “on principles of consent,” which she argues “rests on a simplistic and false psychological theory of human motivation.”¹⁶

West's reference to the “canonical literature” raises an interesting point: much of the debate in the law and literature movement has centered around what texts to study, and whether White and Weisberg in particular have relied excessively on classical texts.¹⁷ I think that much of the early writing has centered on well known works—Shakespeare, Twain, Austen, Dickens, or Melville to name only a few that have been widely examined in this context—for two reasons: first, you have to start somewhere, and usually you start with what is familiar, so that you can rely on what remains of what Hirsch called “cultural literacy” to at least initiate a conversation in which there is some common ground. And, second, some law and literature advocates may use classical texts in the same way that law and economics scholars assume the validity of their vision of classical market economics: to give them some sense of authority and legitimacy as they seek to advance their claims.

White, in response to the complaint that he primarily relies on texts from the “humanistic tradition of Western high culture,” asserts, “I make no claim for the priority of this culture, however, or for these texts, but I do for their value.¹⁸ Richard Weisberg argues quite convincingly that the “classical canon” as used in law and literature, is critical to a “radical understanding,”¹⁹ and not just a servant of traditional power structures and elites. And Linda R. Hirshman asks:

Can a study of Aristotle's writings add to feminist jurisprudence? I think the answer is clearly “yes,” in at least three ways. First, Aristotle's methods and the attendant epistemology presage and support feminist methods and epistemology; each is also importantly linked to the recent revival of interest in moral learning from the methods of literary analysis. Second, Aristotle's writings make explicit and defend a view of the human condition as naturally political that is central to most important contemporary feminist thought. Finally, and I hope most interestingly, the Aristotelian vision of an ideal of the good life for citizens may be the best source of substantive answers about politics and the political community to which liberal quality has been inadequate and which feminism, like any normative theory, must ultimately produce.²⁰

Whether your goal is seen as radically revisionist, the affirmance of traditional values and understandings, or a synthesis of the two, it is clear the works in the canon speak to us in many ways, and should not be lightly abandoned. This should not operate to exclude other works and new voices, however: Toni Morrison, Don DeLillo, William Styron,²¹ Margaret Atwood, Heinrich Böll,²² James Baldwin, Salman Rushdie, Ken Saro-Wiwa,²³ Melissa Fay Greene,²⁴ or William Gaddis,²⁵ to name only a few, are as vital to the evolution of the law and literature movement as the classical texts, as we seek to find common ground in the global environment of the twenty-first century.²⁶ As Katha Pollitt has pointed out, and as all teachers know: “In a country of real readers a debate like the current one over the canon would not be taking place.”²⁷ The canon of law and literature is the world as we find and engage it, and the challenge is to read it carefully as well as critically, with empathy, reason, and hope.

In this volume, a variety of literary texts both classical and contemporary are explored with a view to what they have to say about law, legal institutions, and the risk of abuse of legal power. Alma Jean Billingslea-Brown examines the legal and cultural methods of control over African Americans as represented in the impact of anti-miscegenation laws and traditions, as explored in Alice Childress's play Wedding Band.²⁸ Robert P. Lawry reflects on the legal, moral, and theological implications of the question: “Was justice done in the case of The Crown v. William Budd?”—was summary court-martial and immediate execution necessary, permissible, or moral under the circumstances presented to Captain Vere by Billy Budd?²⁹ Perry Hodges and Gary Wamser both look at Nathaniel Hawthorne's The Scarlet Letter. Hodges, in “The Letter of the Law,” examines Hawthorne's method in building stories, “not unlike a lawyer's when he builds a case,” the evolving law of adultery, and the attempts of religious and legal institutions to preserve the structures of society against the pressures for autonomy and change presented by Hester and her daughter Pearl. Wamser, drawing on his experiences as a legal services attorney representing the poor, sees The Scarlet Letter as a cautionary tale, with extraordinary parallels to the 1994 Republican “Contract With America” and its probable impact on welfare, mothers and children, in the context of the ongoing debate over the nature and meaning of the term “family values.”³⁰

Two papers address the Shakespearean play mentioned above by West: Measure for Measure, which explores the problem of using law to enforce public restrictions on private moral choices. Joel Levin writes that “Legal history often appears to be little more than a contest between law and equity,” and examines the friction between the two which is exposed when the Duke of Vienna, “wounded by criticisms of his leniency and individualistic remedies in administering the city, announces he will leave Vienna indefinitely.” Levin argues that the play establishes a principle of “weak tolerance” for free thought and privacy, but “strong tolerance” in the form of affirmative rights against the state are only, at best, on the horizon. Ervene Gulley, in “Law as Theater,” argues that in the later, “darker period” of Shakespeare's plays, including Measure for Measure, “we see the issues and procedures of law used in the richest ways,” as a “metaphor by which western civilization organizes and evaluates human behavior.” One critical element of the play she highlights is the difference in self-awareness between Angelo, left in charge in the Duke's absence, and Escalus, as “legal dramatists,” with Angelo initially seeing the law as supreme and to be rigidly enforced, while Escalus is more willing to be flexible, but limited by his position as second in command in the “script” the absent Duke has given him. In the end, legal theater “served not only a mechanism for the action of law but as a dynamic meditation on the nature of law itself, suggesting that the constructive operation of law in human affairs will have something of theater in it.”³¹

Salman Rushdie's book, The Satanic Verses, and the controversy over the attitudes and misunderstandings towards it within Islamic countries, and towards both Rushdie and Islam in the West, are the subject of Farida Majid's paper in this volume, Law, Literature and Islam. She shows how text and social text have become indistinguishable in the affairs of Rushdie, and more recently of Taslima Nasrin, and have served to obscure the true significance of their works, as well as the nature of Islam.³²

Thus, despite the dissent of Judge Posner over the merits of using literature to critique law, or perhaps because of it—based on the old story that when there is only one lawyer in town, business is bad, but as soon as a second lawyer arrives it really begins to pick up—law and literature has continued to thrive as a field, and Posner himself continues to write extensively in it, having somewhat grudgingly admitted in the introduction to his book, after all his criticisms of its practitioners:

(T)he field of law and literature, though still largely unknown to the legal profession, including the legal professoriat, is already too large for adequate treatment in a book of moderate length. Although some of its practitioners may claim too much for it—voices crying in the wilderness tend to be shrill—the field has promise; may this book help it to be realized.³³

He is now a member of the board of governors of the Law and Humanities Institute.³⁴

ALTERNATIVE CLASSIFICATIONS

Posner contributed one of the basic classification schemes to law and literature, dividing the contents of his book into three parts: “Literature on Legal Themes,” “Law as a Form of Literature,” and “The Regulation of Literature By Law.” David Ray Papke, in a review of Posner's book, has outlined a variety of approaches for “expanding and diversifying law and literature activities” in both the “‘law in literature’ branch of the movement,” by expanding the range of texts examined beyond the classical canon, and by adding other forms of cultural artifacts as subjects of discourse, and in the “‘literature in law’ branch of the movement,” by moving beyond constitutional and appellate decisions to include analysis of other forms of legal texts and narratives, concluding:

Understanding the way law intertwines with an immense variety of written and social texts holds tremendous promise for energizing legal education and for alerting lawyers and other citizens to the hegemonies which restrict them. While Posner is inclined to put the brakes on the law and literature movement, there is reason instead to accelerate. The law and literature movement, as a movement devoted to critical consciousness and personal and social liberation, has not overstated its potential but rather only begun its transformational project.³⁵

“Law and the Humanities,” “The Rhetoric of Law,” or “Pedagogy of Narrative” are among the broad labels sometimes used for what in practice is law and literature discourse; each term with its own slightly different implications.³⁶ Regardless of the label used, one major distinction within the law and literature movement is the contrast between those who adopt one of the many theoretical perspectives which can be employed in doing law and literature, and those who simply focus upon a particular text, interpreting it or using it to make an argument, create empathy, or raise the consciousness of the listener, without self-consciously trying to work within any particular theoretical framework.³⁷ Law and literature, then, means many things to many people, and often a number of different things to each of us as we change our understanding over time, come in contact with new texts, and meet others exploring the implications of the field.³⁸

On the theoretical side of the discipline, one approach, which fits in Posner's “law as a form of literature” category,³⁹ or the notion of “literature in law,” is the claim that the study of law can benefit from theoretical approaches developed in the academic study of literature.⁴⁰ Sanford Levinson suggests using interpretive methods developed in theological discourse to understand the many approaches to interpreting the American Constitution—what he calls America's “civil religion.” He suggests “two fundamental differences between Protestantism (or Karaite Judaism) and Roman Catholicism (or some varieties of rabbinic Judaism)” as a foundation for looking at various schools of constitutional analysis:

Thus, “Protestantism” herein refers to either (1) an emphasis on the exclusivity of written Scripture or text as the basis of doctrine, or (2) the legitimacy of individual (or at least relatively nonhierarchical communitarian) interpretation as against the claims of a specific, hierarchically organized institution. “Catholicism” herein refers to either (1) the legitimacy of unwritten tradition in addition to scripture, or (2) the authority of a particular institution, hierarchically organized, to give binding interpretations of disputed aspects of relevant materials.⁴¹

Levinson's argument is interesting for law and literature in two ways. First, he shows how methods of interpretation derived from one discipline (theology) can be used to cast light upon another (constitutional law), particularly the highly politicized debate over whether the Constitution should only be interpreted according to the intentions of its authors, or should be treated as a living document.⁴² And second, any work of literature or legal text is open to contrasting approaches to interpretation similar to those outlined by Levinson for the Constitution. Which edition of Shakespeare or Melville do we take as authoritative? Do we take a work's meaning from its text alone, or from what we know about the era and the author? Do we give deference to the interpretations of scholars who have devoted their life to interpreting one author or text, hold endowed chairs, or serve as judges, or do we instead (or also) listen to the opinions of generalists and thoughtful readers?

Theoretical approaches are sometimes used by judges in resolving actual disputes. Recently, Justice Ruth Bader Ginsburg relied upon a law review article's linguistic analysis of the meaning of the phrase “original sentence” in interpreting a statutory “provision that says a court that has revoked a defendant's probation must resentence the defendant to ‘not less than one third of the original sentence.’”⁴³ William T. Scott argues, in his paper in this volume, “Proverbs, Postmodernity and Unacknowledged Legislation,” that our constantly changing “shared cultural inheritance,” manifested in the use of proverbial expressions by legislators and judges alike, contributes to the shaping of our law. L. H. LaRue has recently argued for analyzing constitutional law decisions as a form of fiction: “Judges tell stories in their opinions; these stories are quite often fictional stories, and, finally these fictional stories are crucial to the law.”⁴⁴

Another approach in the “literature in law” vein is to simply focus on what courts do on a daily basis, to examine the rhetoric and role of lawyers advancing their clients' interests in the courtroom,⁴⁵ the transcripts of witness testimony and examination, and the rhetoric and style of judges in controlling the trial and deciding cases. Linda R. Hirshman, for example, noting the typical opening statements found in criminal decisions written by Chief Justice Rehnquist, juxtaposes her own proposed statement of facts from a well-known rape trial, against the actual charge to the jury by the judge, commenting that unlike the judge, she finds “morality and its worldly expression in moral philosophy … to be very helpful” in understanding this trial:

On March 1, 1989, a retarded young woman followed a high school football star to the basement of a Glen Ridge house on the promise of a “date.” There, thirteen high school athletes gathered: six left, seven others stayed. The seventeen-year-old girl, who has an IQ of 64 and has been described as operating at the mental age of eight, laid down on a couch. The young men told her to disrobe. They then penetrated her with a broomstick and a baseball bat. … In his charge to the jury, trial judge R. Benjamin Cohen gave his opinion on the application of non-legal theories to judicial decision-making. He said: “This is a criminal trial. It is not a morality play. You are not asked to decide whether what any of the defendants may have done is right or wrong in a moral sense.”⁴⁶

This approach to law and literature combines elements of theory, with a concern for the text itself. Justice Benjamin Cardozo made this point in his 1925 essay “Law and Literature,” writing:

This is my own faith. The argument strongly put is not the same as the argument put feebly any more than the “tasteless tepid pudding” is the same as the pudding served to us in triumph with all the glory of the lambent flame. The strength that is born of form and the feebleness that is born of the lack of form are in truth qualities of the substance. They are the tokens of the thing's identity. They make it what it is.⁴⁷

Richard H. Weisberg, citing Cardozo, has argued that a study of judicial opinions shows the inseparability of judicial style and content, calling this, in his “literary jurisprudence, … the ‘poetic method’ for law,” and linking it to a second element, which he calls “‘poetic ethics,’ or … poethics. Poethics, as we shall see, endeavors nothing less than to fill the ethical void in which legal thought and practice now exist.”⁴⁸

Weisberg then makes his controversial claim for the poetic method in three key points:

1. The “holding” in a case cannot without some alteration be abstracted from the words used to express it.
2. No opinion with a misguided outcome has ever in fact been “well crafted.”
3. Even opinions that have had salutary effects and are widely applauded will lose power as time goes on if they fail to harmonize sound and sense in working their outcome.⁴⁹

He follows this with a detailed analysis of several leading cases, in which he seeks to demonstrate his claim that “rightness in a legal decision derives from the imaginative and intuitive process within the adjudicator,” and that “narrative creativity emerges from the act of adjudication itself, …”⁵⁰ Weisberg claims that Roe v. Wade fails this test by failing to “speak fully its only-implicit correctness.”⁵¹ Whether or not Roe could have been decided any other way at the time, the stories “implicit” in Roe and more express in its progeny, and White's more favorable analysis of Planned Parenthood v. Casey, will be explored in my paper for this volume on John Irving's novel, The Cider House Rules—a novel concerning abortion, the relationship of law and morality, and the nature of our obligation to obey positive law when it conflicts with other values.⁵²

With more emphasis on theory than textual analysis, Ronald Dworkin has asserted that what judges do in a common law system is much like what collaborating novelists working on a “chain-novel” might do: try to understand what has gone before when handed one or more earlier chapters, but apply it to the matter at hand in a way that advances the plot:

Now every novelist but the first has the dual responsibilities of interpreting and creating because each must read all that has gone before in order to establish, in the interpretivist sense, what the novel so far created is. He or she must decide what the characters are “really” like; what motives guide them; what the point or theme of the developing novel is; … This must be interpretation in a non-intention-bound style because, at least for all novelists after the second, there is no single author whose intentions any interpreter can, by the rules of the project, regard as decisive. … Deciding hard cases at law is rather like this strange literary exercise. The similarity is most evident when judges consider and decide common law cases; … Each judge is then like a novelist in the chain.⁵³

Other scholars suggest that whether or not they accept the chain-novel analogy, it is likely that judges can benefit from the study of literature, either in helping them to think through difficult problems, or in learning how to enhance the rhetorical and persuasive effect of their written opinions.⁵⁴ In Sanders v. Rowan, 484 A.2d 1023 (1984), for example, Judge Wilner, writing for the Court of Special Appeals in Maryland, noted:

Literature abounds with tales of look-alike people exchanging places, each wittingly or unwittingly posing as or simply being taken for the other. The results range from the farcical (The Comedy of Errors, Shakespeare) to the adventuresome (The Prince and the Pauper, Pudd'n head Wilson, Twain) to the heroic (A Tale of Two Cities, Dickens). This case presents a variation of the theme. It involves not people, but horses; the result is neither farcical, nor adventuresome, nor heroic, but economic.

And in Arthur S. Demoulas v. Demoulas Super Markets, Inc. & others (2 Aug. 1995), 1995 WL 476772 (Mass. Superior Ct.), Justice Lopez begins his analysis of this family dispute with a quotation from Alfred, Lord Tennyson's Ulysses, and notes that when one brother died and left his “wife and children's welfare in the hands of Telemachus”—his brother—“our modern day Telemachus” failed to live “up to his literary namesake.” In each instance, the literary reference, while easily made, serves to give context to the judge's analysis, to assist in imposing order on a chaos of facts, and to direct the audience—the parties, their counsel, and reviewing courts—to a final conclusion with greater confidence than would have been possible without the reference. Finally, some scholars, including Posner, have argued that legal opinions are a form of literature themselves.⁵⁵

In contrast to the foregoing examples of the theoretical and textual approaches to “literature in law,” one can turn to the varied ways in which law is examined in literature, and literature itself is the object of legal regulation. One approach, illustrated by James Boyd White's treatment of Shakespeare's Richard II in Acts of Hope,⁵⁶ and by Daniel Kornstein's evaluation of Shakespeare's Richard III in Kill All the Lawyers,⁵⁷ is to consider the degree to which historical “fact” is portrayed, or, indeed, ascertainable, in fiction, and what lessons can be learned about real legal issues through their dramatic portrayal. White focuses his essay on the evolution of the authority of the English crown, noting:

Richard II should not be read as supporting royal absolutism, or denying it, but rather as offering a way of thinking about it. … Its meaning is not to be found in any one (voice) standing alone: not in Richard's great speeches on kingship, not in John of Gaunt's poem of praise and lament for England, not in Henry's speech justifying his return, … but in the ways in which these voices answer one another, across the line of the narrative that they at once clarify and motivate.⁵⁸

While also analyzing other legal issues—the trial by combat between Bolingbroke and Mowbray,⁵⁹ the “tensions between the feud of honor and rule of the crown” as a metaphor for the gradual substitution of the rule of law for private vengeance⁶⁰—the primary thrust of White's analysis is to show in the play the “transfer of royal power and authority not only from one man to another but from one kind of man to another, one kind of world to another,” from a Medieval kingship grounded in divine right, to a modern limited monarchy where the basis of legitimacy is far less certain.⁶¹

Richard III is also about the legitimacy of a new king, Henry Tudor, and Kornstein shows that this time Shakespeare more clearly takes sides, by the character assassination of Richard III, when the historical accuracy of the charges against Richard are far from clear.⁶² Speaking with the authority of his own courtroom experience, Kornstein treats the play as a stepping stone to analyze whether there are, or should be, legal limitations on authors taking too much artistic license with what is thought to be known about an historical event or person, grounded in the law of defamation, invasion of privacy, or some other legal injury.⁶³ He uses the contemporary examples of the non-fiction novel and the docudrama as foils for Richard III, and ends by discussing the relationship in both history and fiction between facts as source material—if they really exist—and interpretations, and how the law should respond to this uncertainty.⁶⁴

In this volume, the problem of legitimacy addressed in both Richard II and Richard III, is analyzed in Marion Petrillo's study of Nadine Gordimer's The Late Bourgeois World, an exploration of South Africa of the 1950's and 1960's, as seen through the lives of Elizabeth Van Den Sandt and her circle of acquaintances: an ex-husband Max, whose suicide is mentioned in the first line of the book; her lover Graham, an attorney; and a revolutionary named Luke, culminating in her decision to emerge from the comfortable white world created by the apartheid laws, by agreeing to let her bank account be used “to smuggle funds from London to South Africa in order to empower members of the illegal Pan-African Congress.” The use of literature to challenge and critique unjust, arbitrary and corrupt legal systems and governments is also portrayed here in William Pencak's study of Jonathan Swift's famous satire, Gulliver's Travels.⁶⁵

Sometimes in exploring the interrelationships of law and literature it is possible to match fiction grounded in fact with nonfiction narratives of great narrative power and compelling moral force. For example, Don DeLillo's delicious portrayal of academic life in White Noise does not obscure its pointed examination of the impact of toxic chemical pollution in our lives, the role of faceless corporations, and our lack of control over either.⁶⁶ And it serves as a perfect analytic and pedagogical counterpoint to Jonathan Harr's recent account in A Civil Action⁶⁷ of the legal system's slow and frustrating response in a suit against W. R. Grace and Beatrice Foods for allegedly poisoning the water supply in Woburn, Massachusetts, and causing death from leukemia for many children. Such texts can and should have a profound impact on the climate of opinion, as well as on the lawyers and judges who try such cases, and the legislators and regulators who respond in other ways which are equally part of the discourse of law and society.⁶⁸

Law is also addressed in literature in the form of novels, stories and plays that talk about lawyers, judges, and the legal system, and are aimed at a general audience. The work of John Grisham, John Mortimer's famous Horace Rumpole, and the recent turn to fiction of law professor and attorney Alan Dershowitz, are only a few examples.⁶⁹ These works can be assessed by the degree to which they accurately inform the public of legal and ethical issues and choices, and by how they reflect, or help create, the climate of opinion towards the law. Because they are usually interesting and readable, they can prove a useful teaching tool.⁷⁰

In addition to looking for legal issues raised in fiction, legal writers have begun to write their own stories and parables,⁷¹ and to study the narratives⁷² of groups outside the powerful institutions of the established legal order: the stories of the poor, of women,⁷³ minorities, gays,⁷⁴ immigrants, prisoners,⁷⁵ and others.⁷⁶ A number of scholars, particularly women and minorities, advocates of critical race theory,⁷⁷ and some who use theological arguments in legal analysis,⁷⁸ have argued that formal, traditional academic legal scholarship fails to meet the needs of many people, particularly those seen as outsiders to the system, who lack control over their own lives and any reasonable opportunity to be heard in the existing system.⁷⁹ They see story telling and the study of outsider narratives as a way of educating legal institutions and actors, as well as the public, in the needs of those who are subject to what are seen as ill-considered or unjust laws. Those working in this field are sometimes attacked as subjective and radical, especially by conservative critics who also oppose multicultural education and, in some cases, even a broadening of the literary canon.⁸⁰ Others have suggested that while “legal storytelling can contribute to legal scholarship,” storytelling need not be linked to race, gender, or ideology, and:

(S)torytellers need to take greater steps to ensure that their stories are accurate and typical, to articulate the legal relevance of the stories, and to include an analytic dimension in their work.⁸¹

Many of these stories speak volumes about the nature of law in ways that people of all views will respond to. A recent news story illustrates the point:

Cops Arrest Neighbors to Get Bonus. Perth, Australia. A police officer earned $30,000 in bonus pay over six months by jailing a tenth of the aborigines in his town nightly—and feeding them. Officers in charge of stations in remote outback towns have been paid a tax-free $10 bonus for each meal served to a prisoner.⁸²

These stories are often told in the form of parables, short stories, poetry,⁸³ fictional dialogues,⁸⁴ and personal narratives⁸⁵ merging traditional legal scholarship with the subjective perspective of the author. The writings of Patricia Williams and Derrick Bell fall into this category, while also being seen as part of a subset of the movement called critical race theory.⁸⁶ The reliance on story telling as a means of persuasion does not mean these scholars reject theory; what L. H. LaRue writes of Robin West may be true of most who work in this genre:

(S)he is a theorist of stories; she starts with the fundamental assumption that good feminist practice will ground feminist theories in the stories that women tell, and she wishes to generalize this feminist practice as far as she can. Her basic questions seem to be: If our fundamental knowledge comes from stories, then what are the theoretical consequences of this? … If we can listen to the stories of others and understand them, does empathy follow? If so, what are the further theoretical consequences of the capacity to have empathy?⁸⁷

Kathryn Temple, in this volume, examines the narrative approach to jurisprudence through the lens of the writings of French theoretician Julia Kristeva, putting the work of Patricia Williams into “an alternative generic frame,” while seeking to understand “the basic narrative conventions of oppositional narratives while maintaining a … self-conscious stance in regard to” her own role “in the larger narrative encounter.” She argues that “the stranger's interaction with national cultures has much in common with oppositionist narrative's interactions with mainstream legal scholarship,” and follows through with this metaphor in closely examining the critics of oppositionist narratives, and the possibilities for greater understanding among legal scholars. If such understanding, or at least a good faith willingness to listen, could be achieved as well with critics beyond the legal community, the possibilities for a wider social impact of the narrative impulse would be greatly enhanced.

The study of law and literature takes advantage of the classical literary canon while constantly adding new texts and stories. “New historicist” methods of interpretation are often applied, as scholars seek to understand literary texts in the context of their intellectual and social historical setting.⁸⁸ In this volume, Willem J.Witteveen explores in his paper, Cicero Tells A Story, the influence of Cicero and Quintillian on contemporary rhetorical practice, as reflected in the judicial opinions of the English jurist, Lord Denning: a message of remembrance, showing judicial storytellers how much they are indebted to the rhetorical tradition.⁸⁹

In turn, M. A. R. Habib notes in his paper, Aesthetics and Justice in Plato's Republic, that political commentators on the Republic have treated its discussion of poetry as incidental to the overall argument, while literary critics have tended to isolate the aesthetic component from the text's formulation of polity. What both sets of writers have overlooked, Habib argues, is the intimate connection between Plato's aesthetics and his articulation of the ideal of justice. Habib attempts to examine the precise role of poetry in the Republic in terms of narrative structure, the political motivations and the underlying philosophical premises of Plato's conception of poetry. Habib's paper touches on aesthetic issues raised by Hein, while his discussion of Plato's Republic, together with Weiner's commentary on Plato's Crito, as analyzed in White's Acts of Hope, provides a significant contribution to the on-going conversation about the relationship between these classical texts and the modern law and literature movement.⁹⁰

Children's literature, and literature aimed at young adults, both in the classical canon, and in contemporary works, may provide a useful starting point for introducing law and literature to unfamiliar students, and perhaps to future teachers as well. For example, in teaching William Golding's Lord of the Flies⁹¹ to examine how thin the veneer of civilization is when there is a break down of authority, it is at first startling to a class, but ultimately instructive, to ask the student to consider Winnie the Pooh, by A. A. Milne.⁹² Think about the wholesome, comfortable, civilized atmosphere of the tribe of Christopher Robin in the Hundred Acre Wood, and compare it to the tribe of boys on Golding's isolated island. The presence of Christopher Robin as an authority figure for the animals, and often an integral part of the story, and with his father always available in the background, stands in marked contrast to the absence of all adult authority in Lord of the Flies until the very end of the novel. Such comparisons can provoke both a lively discussion and an insight into how such comparisons can be usefully made, prior to working with more complicated or advanced texts.⁹³

Working with children's literature is also a useful reminder that in this world of international and national upheaval and political uncertainty, often the wisest voices are found in literature nominally aimed at children. I have used Dr. Seuss's Yertle the Turtle⁹⁴ to talk about tyranny and freedom in my classes and writing, in a reading linked to Salman Rushdie's excellent children's tale, Haroun and the Sea of Stories.⁹⁵ Ian Ward suggests “The literature which we read as children is the most influential and important that we ever encounter,” and adds:

before a student ever reaches law school, he or she may well have added further to their knowledge of Kipling, Twain, and Golding, and encountered Shakespeare, Austen and Dickens. … Students may thus already know what Shakespeare thought about the constitution, what Dickens had to say about justice and the legal process, and what Austen thought about the position of women in a masculine legal order. In other words, long before arriving at law school … the student will already have learned from literature, and of course from life, what the essential questions are, and have already decided what the answers should be.⁹⁶

I agree with Ward on the importance and influence of children's literature, but am not as sanguine about the kinds of works students will have in fact read prior to completing college and entering law school in the coming century—here the debate over the canon as opposed to new texts, and the fear of giving offense by assigning now controversial works, such as Mark Twain's The Adventures of Huckleberry Finn,⁹⁷ plays a major role, and also explains some of the impetus for “cultural literacy”⁹⁸ in American education, and some of the concerns of William T. Scott in his paper for this volume. This concern is hinted at in a story by John Gardner:

Once, long, long ago, a strange thing began to happen—all the lights in the world began to grow dim. At first, no one especially noticed. … Soon, however, there was no getting around it. The world was gradually slipping into darkness. “The world's getting darker,” people said experimentally, shoemakers said it, and druggists who were trying to measure things—in fact everyone said it except the politicians, who furiously denied it—and the people were all vaguely frightened wondering what it meant.⁹⁹

The legal regulation of literature is another way to look at the relationship between law and literature, as already seen in Posner's scheme of classification, and Hein's discussion in this book of the two-way relationship between art and law. Issues here are of particular concern to artists, writers, composers, and the creators of software or cinema and other forms of art: censorship,¹⁰⁰ laws banning or punishing hate speech or pornography,¹⁰¹ flag burning amendments,¹⁰² defamation suits (particularly in an era of global communications clashing with national legal systems),¹⁰³ and the impact of copyright law on the ability of scholars to quote from letters and journals in biographies,¹⁰⁴ or the ability of librarians to share copies of journal articles with faculty or with employees in large organizations.¹⁰⁵ With the advent of the Presidential primary campaign, attacks on the media are heard yet again for making movies, rock videos, or albums that encourage violence and anti-social behavior, and often with at least the anecdotal evidence of the tragic story, most recently when “two men set fire to a clerk in a New York City subway token booth … by squirting a flammable substance into the booth and igniting it,” apparently copying incidents in the Woody Harrelson-Wesley Snipes film “Money Train.”¹⁰⁶

A few years ago “Son of Sam” laws were aimed at confiscating the earnings of prisoners who write about their crimes, and while they were struck down, now other laws seek to replace them.¹⁰⁷ Could such laws be used to prevent former felons from ever making a living, as writers¹⁰⁸ or otherwise? Other laws and court orders sought to prevent jurors from the O. J. Simpson trial, or other trials, from capitalizing on their experiences by writing a book, perhaps at the expense of actually doing justice in the courtroom: under what circumstances can they be enforced, if ever?¹⁰⁹ Surely there must be a conflict here for those who oppose government interference in market activity, on the one hand, and want to appear to be tough on crime on the other!

The threat of a breach of contract lawsuit has recently been used to seek to delay or prevent publication of scholarly work, where there is a dispute as to claims of prior discovery of an allegedly new theory concerning Shakespeare's intentions in Hamlet. A wealthy and powerful Hollywood producer who engaged in scholarly activity as an independent scholar sued the tutor he had privately engaged, a Shakespeare scholar at Boston University who wished to publish independently.¹¹⁰ Suits of this kind, if they become common, together with demands for more restrictions on “fair use” in the copying and sharing of material necessary to the creation and transmission of knowledge, may threaten creativity and scholarship. At a time when federal and state funding for both the arts and education is rapidly declining, the day may come when freedom of inquiry and publication will only be possible for those who can pay a significant surcharge. If such restrictions had been applied to Homer, Shakespeare, or the balladeers of early America, there might have been no Iliad, no Hamlet, no folksongs to hand down to us today, and no folk process to permit the casual and creative sharing and development of the traditional narratives that define us as who we are. With the advent of multi-media technology, and the issuance of books on CD-ROM and other formats, the lines between linear texts and the visual and cinematic arts are increasingly blurred. And the availability of efficient scanners, digital tape, and other technologies threaten the legitimacy and credibility of what restrictions do exist, as the free market dictates that we simultaneously market copyrighted materials, and the technology to ignore the copyright almost at will!¹¹¹

With the added controversy over allegations of pornography on the internet,¹¹² and with legislative proposals to restrict access to violent programming with the use of a “V” chip,¹¹³ deregulate the communications industry, and reduce funding to PBS, the NEH and the NEA,¹¹⁴ this area of law and literature is ready to take a major place in the discussion.¹¹⁵ The papers here do not for the most part address these issues, but the methods employed do suggest ways of thinking, and possible conversations, about the stories and narratives express or implicit in each of these aspects of the legal regulation of literature and the creative process.

CONCLUSION

A common denominator in all of these approaches to doing law and literature is that they are shaped by the teaching and study of texts, such as Melville's Billy Budd, Sailor, or Shakespeare's Merchant of Venice, with which we are familiar, and their comparison and integration with the lessons learned from newer works of fiction, personal or non-fiction narratives, and legal texts. All are incorporated into an on-going, developing program and curriculum of law and literature, which can only be defined, as I have tried to do here, by showing what it is in practice.

Law and literature are like flint and steel over the kindling of our doubts and uncertainties in a rapidly changing modern, or postmodern, world. By knocking the flint of literature against the steel of law, we can make some sparks that will illuminate our way to the future, as the stories we tell and retell kindle our imagination and warm our hearts towards one another. The papers in this volume seek to do just that, and I invite you to experience them at first hand, and join in the endeavor.¹¹⁶

Notes

1. American leaders from the Revolutionary War to the Civil War often combined literary with legal training and insight, and the interaction was important in the development of American national identity. Robert A. Ferguson, Law and Letters in American Culture (Cambridge, Mass.: Harvard Univ. Press, 1984). See: David Ray Papke, “Law and Literature: A Comment and Bibliography of Secondary Works,” L. Lib. J. 73 (Spring 1980): 421; Judith S. Koffler, “Reflections on Detente: Law and Literature,” review of Law and American Literature: A Collection of Essays, by Carl S. Smith, John P. McWilliams, Jr., and Maxwell Bloomfield, Tex. L. Rev. 62 (March 1984): 1157; Patricia Harris O'Connor and Samuel Pyeatt Menefee, “Law and Literature ‘Brought to Book’: A Provisional Bibliography of Bibliographical Sources,” L. Lib. J. 86 (Fall 1994): 781; Russ VerSteeg, “Law in Ancient Egyptian Fiction,” Ga. J. Int'l & Comp. L. 24 (Spring 1994): 37; Michael Pantazakos, “Ad Humanitatem Pertinent: A Personal Reflection on the History and Purpose of the Law and Literature Movement,” Cardozo Stud. L. & Lit. 7 (Spring/Summer 1995): 31; M. H. Hoeflich, “Law in the Republican Classroom,” U. Kan. L. Rev. 43 (July 1995): 711.

2. See, for example: Sanford Levinson and Jack Balkin, “Law, Music, and Other Performing Arts,” U. Pa. L. Rev. 139 (June 1991): 1597.

3. The issues of surrogate parenthood, in vitro fertilization, and genetic research all raise profound ethical and legal concerns as scientific progress continues, and these issues can be explored by reading related case law (e.g., In the Matter of Baby M) against texts such as Aldous Huxley, Brave New World and Brave New World Revisited, (New York: Harper & Row/Harper Torchbook, 1965). See: Robert J. Heaman, “Aeschylus, Reproductive Technology, and the Law,” AGLS Perspectives 20 (Summer 1990): 39; Frederik Pohl, “Science Fiction and Human Values,” Carver: An Interdisciplinary J. (Bloomsburg University) 9 (Spring 1991): 29; and the references to new reproductive technologies in my paper, infra, at 290, 320-321; Linda R. Hirshman, “Big Breasts and Bengali Beggars: A Reply to Richard Posner and Martha Nussbaum,” Tex. L. Rev. 70 (March 1992): 1029. Narratives by scientists and about issues that touch on science and public policy also lend themselves to a law and literature perspective; e.g. the investigation of the Space Shuttle Challenger disaster in Richard P. Feynman, “What Do You Care What Other People Think?” (New York: W. W. Norton, 1988).

4. Numerous symposia on law and literature themes have been published in the law reviews, and several specialized journals have been established, including: Cardozo Studies in Law and Literature, Philosophy and Literature: A Journal of Philosophic Thought and Literary Experience, and The Yale Journal of Law and the Humanities. It is the subject of panels at the AALS, MLA, Law & Society Association, AGLS, AIS, and many other organizations. See, for example: Multiple Cultures and the Law: Do We Have a Legal Canon? as the theme of the January, 1993 AALS Annual Meeting: “Upcoming AALS Convention Will Pose The Tough Questions,” National L. J., 28 December 1992-4 January 1993, p. 4, c. 3. Recent symposia include: “Shylock and Portia in the Band of Commitment: A Symposium on ‘The Merchant of Venice,’” Cardozo Stud. L. & Lit. 5 (Spring 1993): 1; Law, Literature, History, Culture and the Courtroom: Intersections, sponsored by the ABA Commission on College and University Legal Studies, Ft. Worth, Texas, Feb. 11-13, 1993; “Symposium: Law, Literature and the Humanities,” U. Cin. L. Rev. 63 (Fall 1993): 1; Trevor Anderson and Anne McGillivray, eds., “Adversaria: Literature and Law,” Mosaic 27 (December, 1994); Narrative and Rhetoric in the Law, at Yale Law School, Feb. 10-11, 1995, published as Peter Brooks and Paul Gewirtz, eds., Law's Stories: Narrative and Rhetoric in the Law (New Haven: Yale Univ. Press, 1996); the Annual Meeting of the Law and Humanities Institute held at Boalt Hall, Sept. 30-Oct. 2, 1995 with Australian law and literature scholars, whose proceedings will be in Cardozo Stud. L. & Lit. 8 (2) (1996); Writing Across the Margins, held at Washington & Lee School of Law on L. H. LaRue's Constitutional Law as Fiction, and to be published in the Washington & Lee L. Rev. Key treatises not mentioned elsewhere in these notes include: William R. Bishin and Christopher D. Stone, Law, Language and Ethics: An Introduction to Law and Legal Method (Mineola, N.Y.: The Foundation Press, 1972); Richard H. Weisberg, The Failure of the Word: The Protagonist as Lawyer in Modern Fiction (New Haven: Yale Univ. Press, 1984); Richard H. Weisberg, When Lawyers Write (Boston: Little, Brown, 1987); Christopher Norris, Deconstruction and the Interests of Theory (Norman, Ok.: Univ. of Oklahoma Press, 1989); James Boyd White, Justice as Translation (Chicago: Univ. of Chicago Press, 1990); Gregory Leyh, ed., Legal Hermeneutics: History, Theory, and Practice (Berkeley: Univ. of California Press, 1992); Kenneth L. Karst, Law's Promise, Law's Expression: Visions of Power in the Politics of Race, Gender, and Religion (New Haven: Yale Univ. Press, 1993); Stanley Fish, There's No Such Thing as Free Speech (New York: Oxford Univ. Press, 1994); Susan Sage Heinzelman and Zipporah Batshaw Wiseman, eds., Representing Women: Law, Literature, and Feminism (Durham, N.C.: Duke Univ. Press, 1994).

5. See: James Boyd White, “What Can a Lawyer Learn From Literature?” review of Law and Literature by Richard Posner, Harv. L. Rev. 102 (1989): 2014; and the discussion among Milner S. Ball, Richard H. Weisberg, and Robin West, infra, notes 49 and 78.

6. See the vast array of syllabi, bibliographies and teaching materials on file with the ABA Commission on College and University Legal Studies, and John Paul Ryan, “Law and Literature: New Combinations in Teaching,” Focus on Law Studies IX (Fall 1993): 1. See also: Bruce L. Rockwood, “Telling Stories in School: Law and Literature as an Approach to the Business Law Curriculum,” Focus on Law Studies IX (Fall 1993): 9; Clark D. Cunningham, “Learning Law From Law Students: A Socratic Approach to Law and Literature?,” U. Cin. L. Rev. 63 (Fall 1994): 195; Elizabeth Villiers Gemmette, “Law and Literature: Joining the Class Action,” (a survey of law school syllabi and course materials) Val. U. L. Rev. 29 (Spring 1995): 665. Law and literature lends itself to raising civic consciousness and stimulating an interest in reading and thinking in college and high school courses, and can even be adapted to elementary education: Alita Z. Letwin, “Children's Literature: A Treasury of Law-Related Concepts,” Synergy (Winter/Spring, 1979): 87; Alita Z. Letwin, “Bibliography of Children's Literature With Strong Law-Related Content,” Social Education (May, 1980): 395; Arlene F. Gallagher, ed., Acting Together: Readers Theatre, Excerpts From Children's Literature on Themes From the Constitution (Boulder, Co.: Social Science Education Consortium, 1991). Law and literature is not always taught as a separate course: stories and parables can be incorporated into a wide range of courses, and independent and group study approaches can be used. At the University of Maine School of Law, Professors Martin Rogoff and Orlando Delogu team-teach a group study law and literature seminar where the students help select the texts; Prof. Merle Loper incorporates narrative materials in his Constitutional Law seminar; and Prof. Mel Zarr analyzes the methods and persuasive effect of legal story telling in his teaching materials for his course in criminal procedure: The Law-Making Powers of Prosecutors and Defense Counsel in the Criminal Process (Portland: 1995). Collections of short stories with law and literature themes include: Jay Wishingrad, ed., Legal Fictions (New York: Overlook Press, 1994); Elizabeth Villiers Gemmette, ed., Law in Literature: Legal Themes in Short Stories (New York, Praeger, 1992; paperback reprint, Troy, N.Y.: The Whitston Publishing Co., 1995); Elizabeth Villiers Gemmette, ed., Law in Literature: Legal Themes in Drama (Troy, N.Y.: The Whitston Publishing Co., 1995). A collection of articles related to the narrative approach to legal story telling is: David Ray Papke, ed., Narrative and the Legal Discourse: A Reader in Storytelling and the Law (Liverpool, U.K.: Deborah Charles Pub., 1990).

7. James Boyd White, The Legal Imagination (Boston: Little, Brown, 1973; abridged paperback ed., Chicago: Univ. of Chicago Press, 1986). The quotation is from: James Boyd White, “Law and Literature: ‘No Manifesto,’” Mercer L. Rev. 39 (1988): 739, at 751. I took White's seminars, “The Legal Imagination,” and “Classical Greek Arguments About Justice,” in the winter-spring quarters of 1974.

8. J. Allen Smith, “The Coming Renaissance in Law and Literature,” J. of Legal Ed. 30 (1979): 13; Robert Cover, “The Supreme Court 1982 Term—Foreword: Nomos and Narrative,” Harv. L. Rev. 97 (1983): 1; Gretchen A. Craft, “Note: The Persistence of Dread in Law and Literature,” Yale L. J. 102 (November 1992): 521; Nancy L. Cook, “Outside the Tradition: Literature as Legal Scholarship,” U. Cin. L. Rev. 63 (Fall 1994): 95.

9. Brook Thomas, “Reflections on the Law and Literature Revival,” Critical Inquiry 17 (1991): 510 (an earlier version was presented at the 1990 Scholars Symposium at Bloomsburg University, Law and Literature: Shaping Our Values); Jack Balkin, “Nested Oppositions,” review of Against Deconstruction by John M. Ellis, Yale L. J. 99 (May 1990): 1669; Jack Balkin, “Transcendental Deconstruction, Transcendent Justice,” Mich. L. Rev. 92 (March 1994): 1131.

10. Law and Economics ought properly to be named “Law and Free Market Economics,” reflecting an assumption that other schools of economic analysis are not worthy of respect. Richard A. Posner, An Economic Analysis of Law (Boston: Little, Brown, 1973). Its influence is reflected most recently in Richard A. Epstein, Simple Rules For A Complex World (Cambridge, Mass.: Harvard Univ. Press, 1995), and in the rush for privatization and the abandonment of all government responsibility for public goods in the wake of the 1994 elections, as extreme right legislators capitalize on Law and Economics theory for their own purposes. See also: Ellen K. Coughlin, “How Rational is Rational Choice,” Chronicle of Higher Educ. 7 December 1994, p. A8, c. 1; Robin Paul Malloy and Richard A. Posner, “Debate: Is Law and Economics Moral?” Val. U. L. Rev. 24 (Winter 1990):147; “How Do You Mean, ‘Fair’?” The Economist, 29 May 1993, p. 71. The powerful influence of law and economics discourse upon the legal profession, legal education, and the direction of American society is reflected in the story of Daniel R. Fischel, author of Payback: The Conspiracy to Destroy Michael Milken (New York: HarperBusiness, 1995), and head of the program in Law and Economics at the University of Chicago Law School from 1984 to 1992. See: Harvey Berkman, “Milken Adviser Is Still Fighting '80s Battles,” National Law J., 18 September 1995, p. 1, c. 1.

11. Karen J. Winkler, “Controversial Judge and Legal Theorist Jumps Into Debate on Law and Literature,” Chronicle of Higher Education, 7 December 1988, p. A5; Louis Manand, “Objection Overruled,” The New Republic, 13 March 1989, p. 31; and many more review essays on Posner's book in the law reviews and elsewhere.

12. Posner, Law and Literature: A Misunderstood Relation (Cambridge, Mass.: Harvard Univ. Press, 1988): 16.

13. L. H. LaRue, “West on Story and Theory,” review of Narrative, Authority and Law by Robin West, Mich. L. Rev. 92 (May 1994): 1786, 1786-1787. Compare: Sanford Levinson, “Parliamentarianism, Progressivism, and 1937: Some Reservations About Professor West's Aspirational Constitution,” Nw. U. L. Rev. 88 (Fall 1993): 283.

14. Robin West, Narrative, Authority, and Law (Ann Arbor: Univ. of Michigan Press, 1993): 11-12.

15. Ibid., 12.

16. Ibid., 28-29. West's original 1985 article using Kafka to expose “a dark underside” of Posner's analysis is reprinted in Chapter One of this book, and her 1986 reply to Judge Posner in Chapter Two. The flavor of her analysis can be seen here:

    Franz Kafka's fictional world resembles Richard Posner's ideal world in one remarkable respect: most of what happens to Kafka's fictional characters is fully consensual, as is most of what happens to Posner's actors. Kafka's characters, like Posner's actors, consent to a wide range of legal, personal, and market transactions. First, Kafka's characters expressly consent to all sorts of humiliating and degrading commercial, employment-related, and sexual transactions. Second, like Posner's actors, Kafka's characters voluntarily assume risks of future losses and thereby impliedly consent to losses caused by wealth-maximizing transactions.

    (34)

17. For criticism of “literary jurisprudence” as advocated by Richard Weisberg and others, and the suggestion that its claims “are themselves founded on overly restricted notions of what counts as literature and what it means to read a text,” see: John Fischer, “Note: Reading Literature/Reading Law: Is There a Literary Jurisprudence?” Texas L. Rev. 72 (November 1993): 135. Ian Ward notes the ambiguous response of feminist critics to law and literature, while pointing out the many texts available to address feminist concerns in the framework of law and literature. Ian Ward, Law and Literature: Possibilities and Perspectives (New York: Cambridge Univ. Press, 1995), 119-141. When debate about the canon threatens to split the academy further, and play into the hands of those who would like to divide and discredit independent academic scholarship still further, it should be apparent in law and literature and elsewhere how dependent analysis is on integrating a variety of points of view into the discussion, without discarding the narratives of the past, if we are to make sense of the human story and give content to vital notions of justice and human rights in the face of the twin vices of extremism and commercialism. For a taste of the debate, see: Liz McMillen, “Literature's Jeremiah Leaps into the Fray,” Chronicle of Higher Educ., 7 September 1994, p. A11, c. 1; Norman Fruman, “Bloom at Thermopylae,” review of The Western Canon, by Harold Bloom, New York Times Book Rev., 9 October 1994, p. 9; Mary Crystal Cage, “Treating Literature as Literature: Group That Opposes Many Current Trends in Scholarship Holds Its First Meeting,” Chronicle of Higher Educ., 6 October 1995, p. A21, c. 2; Michael Eric Dyson, “Shakespeare and Smokey Robinson,” New York Times Book Rev., 19 November 1995, p. 47.

18. James Boyd White, Acts of Hope: Creating Authority in Literature, Law and Politics (Chicago: Univ. of Chicago Press, 1994), 80-81.

19. Richard Weisberg, Poethics and Other Strategies of Law & Literature (New York: Columbia Univ. Press, 1992), 122.

20. Linda R. Hirshman, “The Book of ‘A’,” Texas L. Rev. 70 (March 1992): 971, 972.

21. cf.: Daniel S. Fabricant, “Thomas R. Gray and William Styron: Finally, A Critical Look At the 1831 Confessions of Nat Turner,” Am. J. Legal Hist. 37 (July 1993): 332.

22. Heinrich Böll, The Lost Honor of Katharina Blum, or: How Violence Develops and Where It Can Lead, trans. by Leila Vennewitz (New York: McGraw Hill, 1975); Bruce L. Rockwood, review of The Lost Honor of Katharina Blum, ABA Journal (January 1977): 34.

23. The judicial murder of Ken Saro-Wiwa by the dictatorship in Nigeria has made a martyr of this author and environmentalist, created greater interest in his writings abroad, and reaffirmed my view that, in many nations and cultures without a functioning democratic life, writers are the only political opposition. “Nigeria: The Making of a Legend,” Newsweek, 18 December 1995, p. 47. Compare the work and impact of Vaclav Havel and Alexander Solzhenitsyn, for example, and White's analysis of the effect of Nelson Mandela's speech in his own defense at his trial for “sabotage and attempted overthrow of the government” in 1963, White, Acts of Hope, 278-294. See also: Marjorie Agosin, “Inhabitants of Decayed Places: The Dictator in the Latin American Novel,” trans. by Barbara E. Pierce, Human Rights Q. 12 (1990): 328.

24. Melissa Fay Greene, Praying For Sheetrock: A Work of Nonfiction (New York: Fawcett Columbine/Ballantine Books, 1992).

25. William Gaddis, A Frolic of His Own (New York: Simon & Schuster, 1994; New York: Scribner Paperback, 1995); reviewed in: Robert Weisberg, “Taking Law Seriously,” Yale J. of L. & Humanities 7 (Summer 1995): 445.

26. The debate over the continued value of teaching Joseph Conrad's The Heart of Darkness, provoked by a 1975 essay by Nigerian author Chinua Achebe attacking it as racist, is a case in point: we cannot understand the present without also understanding how the past looked to those who inhabited it. See: David Denby, “Jungle Fever,” New Yorker, 6 November 1995, 118, and letters in response, New Yorker, 25 December 1995/1 January 1996, 12.

27. Katha Pollitt, “Why We Read: Canon to the Right of Me, Canon to the Left of Me,” Nation, 23 September 1991.

28. The issues of racism, racial identity, affirmative action, and their impact on the future of society will continue to play a central role in the next century, one law and literature will continue to address. The Clarence Thomas-Anita Hill hearings and their literature; the Bell Curve debate; the O. J. Simpson trial and verdict; the Million Man March; and Dinesh D'Souza's claim that racism is somehow no longer an issue, are all important straws in the wind. See: “Symp.: To Kill a Mockingbird,” Ala. L. Rey. 45 (Winter 1994); Jervis Anderson, “The Public Intellectual (Cornel West),” New Yorker, 17 January 1994, 39; Lani Guinier, The Tyranny of the Majority, (New York: Martin Kessler Books/Free Press, 1994); “What Color is Black?, Science, Politics, and Racial Identity,” Newsweek, 13 February 1995, 34; Dorothy Gaiter, “Black Conservatives Are Now Searching For a New Home,” Wall Street Journal, 19 October 1995, p. 1, c. 4. The implications of such recent cases as Adarand Constructors Inc. v. Pena, 518 U.S.———, 115 S.Ct. 2097 (1995), and Miller v. Johnson, 519 U.S.———(1995) for racial harmony in the U.S. will need to be examined through the stories they tell, and those they omit. “Retired Justice Blackmun Sees A Blight of Increasing Racism,” New York Times, 30 May 1995, p. A14, c. 3; Derrick Bell, “Black History and Americas Future,” Val. U. L. Rev. 29 (Summer, 1995): 1179; Stanley Fish, “How the Right Hijacked the Magic Words,” New York Times, 13 August 1995, sec. 4, p. E15, c. 2; Paul Butler, “Society: Justice in Black and White, A Former Prosecutor Argues That Black Jurors Should Routinely Acquit Certain Black Defendants—Even If They Are Guilty,” Boston Sunday Globe, 19 November 1995, p. 81, c. 1; “Editorial: Higginbotham v. Thomas,” Wall Street Journal, 1 December 1995, p. A14, c. 1.

29. Billy Budd, Sailor is a focal point of law and literature discourse. cf.: Richard Posner, “From Billy Budd to Buchenwald,” review of The Failure of the Word, by Richard Weisberg, Yale L. J. 96 (April 1987): 1173; “Symp.: Billy Budd, Sailor,” Cardozo Stud. in L. & Lit. 1 (Spring 1989); Kevin M. Kelly, “You Murdered Queeg: Lawyers' Ethics, Military Justice, and the Caine Mutiny,” Wis. L. Rev. (1991): 543; Lawrence Douglas, “Discursive Limits: Narrative and Judgment in Billy Budd,” Mosaic 27/4 (December 1994): 141.

30. Nathaniel Hawthorne, The Scarlet Letter, Norton Critical Edition, 2d ed., (New York: W. W. Norton, 1978). See: Linda Hirshman, “Bronte, Bloom and Bork: An Essay on the Moral Education of Judges,” Univ. of Pa. L. Rev. 137 (1988): 177; J. Honnold, “Hirshman, Bronte, and Hawthorne on Law, Abortion and Society,” Univ. of Pa. L. Rev. 137 (1989): 1247; Michael H. Hoffheimer, “Artistic Convention and Natural Law: Didactic Treatment of Justice and Authority in the Works of Fielding, Hawthorne, and Fritz Lang,” Temp. L. Rev. 63 (Fall 1990): 483; Nancy E. Dowd, “Stigmatizing Single Parents,” Harvard. Women's L. J. 18 (Spring 1995): 19.

31. Compare: Milner S. Ball, “The Play's The Thing: An Unscientific Reflection on Courts Under the Rubric of Theater, Stan. L. Rev. 28 (1975): 81.

32. See: J. Scott, “Rushdie Out of Hiding, on ‘Donahue’” and N. Darnton, “Sentenced to Death But Recalled to Life,” New York Times, 17 January 1996, p. B1, c.2 and C1, c.2; Bruce L. Rockwood, “Speech as a Universal Right: International Law and the Case of Salman Rushdie,” in Roberta Kevelson, ed., Conscience, Consensus, & Crossroads in Law (New York: Peter Lang, 1995), 271-290; Ian Hamilton, “Biography: The First Life of Salman Rushdie,” New Yorker, 25 December 1995/1 January 1996, p. 90.

33. Posner, Law and Literature, 21.

34. The LHI reports Posner's latest book, Overcoming Law (Cambridge: Harvard Univ. Press, 1995), in Mediator: Newsletter of the Law and Humanities Institute XI#2 & XII#1&2 (June 1995): 3. The LHI was formed in 1979, integrating scholars from the Modern Language Association and legal scholars active in law and literature; see: Milner S. Ball, “Introduction: A Bicentennial Symp.: The Constitution and Human Values,” Ga. L. Rev. 20 (Summer 1986): 811, note 2.

35. David Ray Papke, “Problems With an Uninvited Guest: Richard Posner and the Law and Literature Movement,” Boston U. L. Rev. 69 (November 1989): 1067, 1086-1088.

36. The acknowledgments in Austin Sarat and Thomas R. Kearns, eds., The Rhetoric of Law (Ann Arbor: Univ. of Michigan Press, 1994), state: “The Rhetoric of Law highlight's law's distinctive language, arguments, and hermeneutic practices. These features of law are central to the conception of legal study that animates the work of Amherst College's Department of Law, Jurisprudence, and Social Thought …”

37. Richard H. Weisberg, one of the leading advocates of law and literature, and editor of Cardozo Studies in Law and Literature, suggests in a review of Posner' s book that Posner's law and literature studies fit within this category: “Although always trying to prove the coincidental nature of this literary infatuation with lawyers' seemingly practical and boring endeavors, Posner unwittingly demonstrates the dynamism of Law and Literature studies. With so much material so delightfully presented by such talented wordsmiths, how can we exile this fund to jurisprudence? How long can we ignore, especially in light of Posner's findings, the obvious: literary art about law is richer, if not necessarily more important, than most other jurisprudential source. I welcome, therefore, this return to a criticism that is text-centered, that has a wealth of bibliographical data for all levels of its readership, and that has been accomplished without recourse to insular jargon or convoluted phraseology.” Weisberg faults Posner for not always being honest about his objectives, and for being defensive about his prior writings. Richard Weisberg, Poethics, ch. 6, sec. 15, 189. For an interesting evaluation of Posner's judicial writings that notes their creativity and ideological bent, see: Chicago Council of Lawyers, “Evaluation of the United States Court of Appeals for the Seventh Circuit,” Depaul L. Rev. 43 (Spring 1994): 673.

38. Posner lists many approaches he does not address in his book, with bibliographical notes, without fitting them into an overall scheme. Posner, Law and Literature, 19-20.

39. See: Sanford Levinson, “Law as Literature,” Tex. L. Rev. 60 (March 1982): 373.

40. Daniel J. Kornstein, “The Success of the Word: The Literary Critic as Constitutional Theorist,” Cardozo Arts and Entertainment L. J. 4 (July 1985): 277; James Boyd White, “Judicial Criticism,” Ga. L. Rev. 20 (Summer 1986): 835; Stephen Winter, “Transcendental Nonsense, Metaphoric Reasoning and the Cognitive Stakes for Law,” U. of Pa. L. Rev. 137 (1989): 1105; Ronald K. L. Collins, “Legal Metaphors Shape Our Vision of the Law,” National Law J., 23 May 1994, p. A19, c. 1.

41. Sanford Levinson, Constitutional Faith (Princeton: Princeton Univ. Press, 1988), 27.

42. See: Levinson and Mailloux, eds., Interpreting Law and Literature, sec. I: the Meese-Brennan debate, 3-33.

43. U.S. v. Gunderson, 92-1662, interpreting the 1988 Anti-Drug Abuse Act; “High Court Relies on Linguistic Sleuths in Case,” National Law J., 11 April 1994, p. A11, c. 4; Clark D. Cunningham, Judith N. Levi, Georgia M. Green, and Jeffrey P. Kaplan, “Plain Meaning and Hard Cases,” review of The Language of Judges, by Lawrence M. Solan, Yale L. J. 103 (April 1994): 1561. Some judges object to linguistic analysis, as in a dissent complaining that “the disagreement was only a question of ‘semantics.’” “EPA Employees Prevail in a Free-Speech Suit,” National Law J., 12 June 1995, p. A12, c. 1.

44. L. H. LaRue, “Tell Stories About Constitutional Law,” Tex. Tech. L. Rev. 26 (1995):1275; see also: L. H. LaRue, Constitutional Law as Fiction (University Park: Penn. State Univ. Press, 1995); cf.: Bruce L. Rockwood, “Face to Face: Law and Other Stories,” in Roberta Kevelson, ed., Flux, Complexity and Illusion, vol. 6, Semiotics and the Human Sciences (New York: Peter Lang, 1993), 351, 359-360: “(o)ne can view case law as, after all, nothing more nor less than a collection of stories itself. … Supreme Court decisions can be seen for what they are: not universal truths binding because they are scientifically correct …, but stories binding only when they are enforced or obeyed, and (arguably) even then, only when they are worthy of respect.” Lon Fuller's work on legal fictions is discussed in: Aviam Soifer, “Reviewing Legal Fictions,” Ga. L. Rev. 20 (Summer, 1986): 871. Fuller's essays, originally published in 1930-31, were collected in L. Fuller, Legal Fictions (1967).

45. Francis Wellman, The Art of Cross-Examination (New York: Macmillan Co., 1903; 4th ed., revised and enlarged, New York: Collier Books, 1966). Wellman's narration of the successful defense in the Triangle Shirtwaist Factory fire manslaughter trial, after 175 women were killed, reads quite differently today from what he intended, 69-72; Michael L. Richmond, “Can Shakespeare Make You Partner?” St. Mary's L. J. 20 (Spring 1989): 885; Clark D. Cunningham, “The Lawyer as Translator, Representation as Text,” Cornell L. Rev. 77 (September 1992): 1298.

46. Linda R. Hirshman, “Moral Philosophy and the Glen Ridge Rape Case,” in “Symposium: Judicial Decisionmaking: The Role of Text, Precedent, and the Rule of Law,” Harvard J. L. & Pub. Pol'y 17 (Winter 1994): 101.

47. Benjamin N. Cardozo, “Law and Literature,” Yale Review 14 (1924-25): 699, reprinted in Benjamin N. Cardozo, Law and Literature and Other Essays and Addresses (New York: Harcourt, Brace & Co., 1931), 5-6.

48. Weisberg, Poethics, 4.

49. Ibid., 7. See: reviews of Poethics such as: “Do the Right Thing,” Harvard L. Rev. 106 (April 1993): 1352; Milner S. Ball, “Poethics, Christians, Jews, Law,” Cardozo L. Rev. 15 (January 1994): 1069; L. H. LaRue, “The Problem of Theory in Poethics,” Cardozo L. Rev. 15 (January 1994): 1093; and Richard Weisberg, “The True Story, Response to Five Essayists,” Cardozo L. Rev. 15 (January 1994): 1245; “Colloquy Over Richard Weisberg's Poethics,” Mediator (June 1995): 5-14.

50. Weisberg, Poethics, 16-17.

51. Ibid., 9, 46.

52. John Irving, The Cider House Rules (New York: William Morrow & Co, 1985; New York: Ballantine, 1993). White, Acts of Hope, ch. 5. In teaching I have juxtaposed his novel with one or more of the following: Margaret Atwood, The Handmaid's Tale (New York: Houghton Mifflin Co., 1986; Fawcett Crest/Ballantine, 1987); William Faulkner, The Wild Palms (New York: Random House, 1939; Vintage, 1989); Frederik Pohl, The Years of the City (New York: Simon & Schuster, 1984; Baen Paperback, 1995) and Walker Percy, The Thanatos Syndrome (New York: Farrar, Straus & Giroux, 1987; Ivy/Ballantine Books, 1988). See: Walker Percy, “A View of Abortion With Something to Offend Everybody,” in Walker Percy, Signposts in a Strange Land, ed. by Patrick Samway (New York: Farrar, Straus & Giroux, 1991), 340-342.

53. Ronald Dworkin, “How Law is Like Literature,” Tex. L. Rev. 60 (1982): 527, reprinted in chapters 6 and 7 of Ronald Dworkin, A Matter of Principle (Cambridge, Ma.: Harvard Univ. Press, 1985), 158-159. Stanley Fish critiques Dworkin in “Working on the Chain Gang: Interpretation in Law and Literature,” and “Wrong Again,” in Stanley Fish, chapters 4 and 5 of Doing What Comes Naturally (Durham: Duke Univ. Press, 1989). The debate is also reprinted in W. J. T. Mitchell, The Politics of Interpretation (Chicago: Univ. of Chicago Press, 1983), 249-320. Posner calls the Dworkin approach a “New Critical” position: Posner, Law and Literature, 217-218.

54. Fritz Snyder, “The Great Authors and Their Influence on the Supreme Court,” Legal Ref. Services Q. 7 (Summer-Winter 1987): 285-309; Saul Touster, “Law at the Bar of Literature: Some Aspects of Dostoyevsky and Brecht,” ALSA Forum 5 (Spring 1981): 13; Jack H. Pollack, “Judges Combine Literature, Law,” National Law J., 25 June 1984, p. 13, c. 1; William T. Braithwaite, “Why, and How, Judges Should Study Poetry,” Loyola Univ. of Chicago L. J. 19 (Spring 1988): 809; Kenneth L. Gillis, “Let's Reinvigorate the Judicial Mind,” Judges J. 27 (Fall 1988): 44; Lucy V. Katz, “Justices Issue Poetic Justice,” National Law J., 23 October 1989, p. 13, c. 1.

55. Craig Lawson, “The Literary Force of the Preamble,” Mercer L. Rev. 39 (Spring 1988): 879; Michael Hoenig, “Opinions as Literature,” New York Law J., 12 Aug. 1991, p. 3, c. 1; Posner, Law and Literature, 269-316. Posner states: “Judges can obtain insights from literature that have nothing to do with effective presentation or persuasion but have rather to do with the spirit, meaning, or values found in literature, and so in a rough sense with content rather than just form.” (299) He notes that the “overt” moral values upheld in great literature may be “outmoded” and unacceptable today. (300-301) This analysis seems unobjectionable, as is his subsequent lament for imposing political standards on literary criticism, and his concern for the risk of this leading to excessive regulation of literature (301-302). It does not follow, though, that political issues are not present in literature, or should not be addressed in literary analysis, and it certainly does not mean that literature cannot fairly be used to highlight problems with the law and legal institutions. For criticism of Posner on this point, see Robin West, “Adjudication is Not Interpretation,” Tenn. L. Rev. 554 (Winter 1987): 203, reprinted as chapter 3 of West, Narrative, Authority and Law.

56. White, Acts of Hope, Ch. 2, 47-81.

57. Kornstein, Kill All the Lawyers?, Ch. 9, 143-155.

58. White, Acts of Hope, 47.

59. Ibid., 51-55.

60. Ibid., 55-57.

61. Ibid., 48, 74. White also shows the power of language to create its own authority in characterizing Richard II's “kingship speeches” as creating “a poetry of kingship,” arguing that the “power of the imagination to make real is a deep theme of the play.” (63-64) When Richard yields the crown to Henry, “this language … falls apart under the pressure of events, leaving nothing to take its place,” (76) leaving Henry with a crown whose meaning is weakened and uncertain (74-76, 79). Having made this very Postmodern point, White then suggests that the play also stands for the possibility of another kind of authority, grounded in persuasion, which may make possible a new and more legitimate “polity” (80). While this analysis risks circularity—at bottom it assumes we are bound by agreement to agree to what we agree—it seems to be an intuitive underpinning of the whole narrative approach to law, fundamental to the notion that by telling stories we can generate empathy, and thus agreement and legitimacy.

62. Kornstein, Kill All the Lawyers?, 144-148. He cites Josephine Tey's mystery novel about the case of the murder of the princes in the Tower of London, The Daughter of Time (New York: Macmillan, 1951; New York: Berkeley Medallion, 1975).

63. Kornstein, Kill All the Lawyers?, 148-151. Kornstein, who is president of the Law and Humanities Institute, represented Melanie Geisler in Geisler v. Petrocelli, 616 F.2d 636 (2d Cir. 1980), a libel-in-fiction suit, and Joe McGinniss when McGinniss was sued by Jeffrey MacDonald after the publication of McGinniss's Fatal Vision. Ibid., 253, note 13, and 254, note 34.

64. Ibid., 151-155.

65. See: James Boyd White's reading of Swift, in When Words Lose Their Meaning, (Chicago: Univ. of Chicago Press, 1984), “Swift's A Tale of a Tub,” 114-137.

66. Don DeLillo, White Noise (New York: Viking Penguin, 1985). John A. Bonsignore, Law and Multinationals (Englewood-Cliffs, N.J.: PrenticeHall, 1994) uses White Noise to explore issues related to the toxic leak in Bhopal, India, 514-515.

67. Jonathan Harr, A Civil Action (New York: Random House, 1995), reviewed in Richard Bernstein, “Of Tragedy and Truth,” New York Times, 13 September 1995, p. C17, c. 1.

68. Other nonfiction narratives worth exploring from a law and literature perspective include: Mark Singer, Funny Money, New York: Alfred A. Knopf, 1985; Dell Laurel, 1986 (collapse of Penn Square Bank); Thomas A. Petzinger, Oil and Honor, New York: G. P. Putnam's Sons, 1987; New York: Berkeley Books, 1988 (Pennzoil-Getty-Texaco dispute); Connie Bruck, The Predators' Ball, New York: Penguin, 1989; and James B. Stewart, Den of Thieves, New York: Simon & Schuster, 1991, (both about Michael Milken and the insider trading and breach of fiduciary duties which permeated the “greed decade” of the 1980's); James S. Kunen, Reckless Disregard: Corporate Greed, Government Indifference, and the Kentucky School Bus Crash, New York: Simon & Schuster, 1994, reviewed in Robert Krulwich, “Reckless Disregard,” New York Times, 18 Sept. 1994, p. 9, c. 2. These stories do not always have entirely happy or unambiguous endings for those concerned about the ethics of our legal system, as seen in the recent return of Michael Milken as a well-paid consultant for merger deals, and the reinstatement of an attorney disbarred for his insider trading in that era: “I. K. Reich: One-Time Outcast Returns to the Bar,” National Law J., 18 December 1995, p. A5, c. 1. Other nonfiction sagas like Watergate and Whitewater have potential for future fictionalized “histories” like Richard II, if only we had a Shakespeare to provide them. As it is, we have Oliver Stone's JFK and Nixon. See also: “Gov. Hires Starr to Defend Plan,” National Law Journal, 18 Dec. 1995, p. A6, c. 1 (Wisconsin Governor hires Whitewater Special Prosecutor Kenneth Starr to defend the state's school choice plan before the Wisconsin Supreme Court, using private funds donated from the conservative Bradley Foundation; ethicist Stephen Gillers says it is “unwise for Starr” to take Bradley funds when the Foundation is also funding “ideological enemies of the president he is investigating.”). As with Richard III, so here, it is possible that the “truth” in all its complexity will emerge in time, but that the well publicized story may help determine who wins the immediate political contest, as well as whose version of events, however doubtful, dominates the public's memory and imagination.

69. John Grisham, The Firm (New York: Island/Dell, 1992); Grisham consulted a friend who is an attorney, William Denton, for help in researching bad-faith insurance law for The Rainmaker: “In Flux: John Grisham Has Friends in All the Right Courtrooms,” National Law J., 24 July 1995, p. A23, c. 1. John Mortimer, Rumpole For the Defense (New York: Penguin Books, 1984); Daniel J. Kornstein, “Rumpole's Favorite Poet” (William Wordsworth), New York Law J., 20 August 1985, p. 2, c. 3. Alan M. Dershowitz, The Advocate's Devil (New York: Warner Books, 1994; Warner paper, 1995); Alan Dershowitz, “Inadmissible Lies,” ABA Journal (December, 1995): 51.

70. Richard A. Posner, “The Depiction of Law in The Bonfire of the Vanities,” Yale L. J. 98 (June 1989): 1653; Ronald L. Goldfarb, “Tom Wolfe's Jurisprudence,” Crim. Just. Ethics 9 (Winter-Spring 1990): 2; Hal Espen, “The Lives of Louis Begley,” New Yorker, 30 May 1994, 33-46, discussing this attorney-author's works; “Leaves of Summer: A Reading List of Fiction and Non-Fiction for Lawyers,” National Law J., 7 August 1995, p. A26; Ben Brantley, “Topsy Returns to Confront Another Century's Legacy,” review of I Ain't Yo' Uncle: The New Jack Revisionist Uncle Tom's Cabin, by Robert Alexander, New York Times, 25 November 1995, p. 13, c. 4; Joel Henning, “Murder and Infamy,” review of Never the Sinner, by John Logan (Leopold and Loeb trial), Wall Street Journal, 1 December 1995, p. A12, c. 1.

71. Norval Morris, The Brothel Boy and Other Parables of the Law (New York: Oxford Univ. Press, 1992).

72. Robin West, “Jurisprudence as Narrative,” N. Y. U. L. Rev. 60 (May 1985): 145; “Pedagogy of Narrative: A Symp.,” J. of Leg. Ed. 40 (March/June 1990); Richard Delgado and Jean Stefanic, “Norms and Narratives: Can Judges Avoid Serious Error?” Tex. L. Rev. 69 (June 1991): 1929; Vanessa Laird, “Dueling Narratives in An American Tragedy and the Criminal Law,” Tenn. L. Rev. 59 (Fall 1991): 131; Beryl Blaustone, “Teaching Evidence: Storytelling in the Classroom,” Am. U. L. Rev. 41 (Winter 1992): 453; “Narrative Theory,” Issues in Integ. Stud. 11 (1993); Patricia Williams, review, “Silencing Mumia Abu-Jamal: Live From Death Row,” Nation, 10 July 1995, 59.

73. Martha Minow, “The Welfare of Single Mothers and Their Children,” Conn. L. Rev. 26 (Spring 1994): 817; Martha Minow, “Surviving Victim Talk,” UCLA L. Rev. 40 (August 1993): 1411; Martha Minow, “The Supreme Court, 1986 Term: Foreword: Justice Engendered,” Harv. L. Rev. 101 (November 1987): 10; James M. O'Fallon and Cheyney C. Ryan, “Finding a Voice, Giving an Ear: Reflections of Masters/Slaves, Men/Women,” Ga. L. Rev. 24 (Summer 1990): 883; Carolyn Heilbrun and Judith Resnik, “Convergences: Law, Literature, and Feminism,” Yale L. J. 99 (June 1990): 1913.

74. Marc Fajer argues for the use of story-telling in educating the court, opposing counsel and parties to disputes involving gay rights, as to their “pre-understandings,” that prevent them understanding gay litigants, as happened in the 5-4 decision in Bowers v. Hardwick, 478 U.S. 186 (1986). Marc A. Fajer, “Can Two Real Men Eat Quiche Together? Storytelling, Gender-Role Stereotypes, and Legal Protection for Lesbians and Gay Men,” U. Miami L. Rev. 46 (January 1992): 511; see also: Marc A. Fajer, “Authority, Credibility, and Pre-Understanding: A Defense of Outsider Narratives,” Geo. L. J. (June 1994): 1845; Lynn Rosellini, “One True Gay Life in the Navy,” U.S. News & World Rep., 6 Feb. 1995; Kornstein, Kill All the Lawyers?, 35-64.

75. Sister Helen Prejean, Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States (New York: Random House, 1993); Martha Grace Duncan, “In Slime and Darkness: The Metaphor of Filth in Criminal Justice,” Tul. L. Rev. 68 (March 1994): 725.

76. Narratives by scholars in anthropology, sociology, and other disciplines should be studied for the insights they give to law and literature. cf.: John Langston Gwaltney, Drylongso: A Self-Portrait of Black America (New York: Random House, 1980); John Langston Gwaltney, The Dissenters: Voices From Contemporary America (New York: Random House, 1986); Nancy Cook, “Breaking Silence with Ourselves: Stepping Out of Safe Boundaries,” review of Failed Revolutions: Social Reform and the Limits of Legal Imagination, by Richard Delgado and Jean Stefancic, Law & Soc. Rev. 29 (1995): 757.

77. Roy L. Brooks, “Critical Race Theory: A Proposed Structure and Application to Federal Pleading,” Harv. BlackLetter J. 11 (1994): 85.

78. Milner S. Ball, The Promise of American Law: A Theological, Humanistic View of Legal Process (Athens: Univ. of Georgia Press, 1981); Milner S. Ball, The Word and the Law (Chicago: Univ. of Chicago Press, 1993), reviewed in: Clark D. Cunningham, “Sometimes You Can't Make a Dent, But They Know You've Been There: The Lawyer as God's Witness,” Harv. L. Rev. 106 (June 1993): 1962, and Robin West, “The Word on Trial,” Wm. & Mary L. Rev. 35 (Spring 1994): 1101. Sanford Levinson, “Religious Language and the Public Square,” review of Love and Power: The Role of Religion and Morality in American Politics, by Michael J. Perry, Harv. L. Rev. 105 (June 1992): 2061; Sanford Levinson, “The Multicultures of Belief and Disbelief,” review of Battleground: One Mother's Crusade, the Religious Right, and the Struggle for Control of Our Classrooms, by Stephen Bates, and The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion, by Stephen L. Carter, Mich. L. Rev. 92 (May 1994): 1873. A fascinating and extended attempt to analyze a variety of theological perspectives and apply them to understanding and, arguably, redirecting the abortion debate, is: Elizabeth Mensch and Alan Freeman, The Politics of Virtue: Is Abortion Debatable? (Durham, N.C.: Duke Univ. Press, 1993).

79. An excellent summary of the various theoretical perspectives underlying much law and literature discourse, in particular the narrative impulse noted here, with extensive bibliographical references, is Gary Minda, Postmodern Legal Movements: Law and Jurisprudence at Century's End (New York: New York Univ. Press, 1995), with separate chapters on law and economics, critical legal studies, feminist legal theory, law and literature, and critical race theory, set in the broader context of exploring the implications of the “canon debate” for the future of jurisprudence. “Postmodernism emerges from the view that the search for new legal theories and metanarratives to solve law's problems has been exhausted. It ‘announces or implies that a rupture has occurred, an irreparable break with the past, and that nothing can ever be the same again.’” (8-9) One thesis of the law and literature movement is that these problems can be solved, and that common understandings can be achieved, if only we will listen to each other with empathy and toleration. For an ironic view of postmodern theory, see comments in: D. J. Enright, Interplay: A Kind of Commonplace Book (New York: Oxford Univ. Press, 1996), reviewed in William H. Pritchard, “Other People's Words,” New York Times Book Review, 11 February 1996, 33.

80. E.g., Arthur Austin, “The Top Ten Politically Correct Law Reviews,” Utah L. Rev. (1994): 1319; Jason A. Lief, “Political Correctness Deadens Scholarship,” National Law J., 21 August 1995, p. A19, c. 3; Heather Mac Donald, “Law School Humbug,” Wall Street Journal, 8 November 1995, p. A21, c. 3; Rejoinder to Mac Donald: Letters, “Law: The Neverending Storytelling,” Wall Street Journal, 8 Dec. 1995, p. A13, c. 1.

81. Daniel A. Farber and Suzanna Sherry, “Telling Stories Out of School: An Essay on Legal Narratives,” Stanf. L. Rev. 45 (April 1993): 807.

82. Press-Enterprise (Bloomsburg-Berwick, Pa.), 23 November 1994, p. 7, c. 1.

83. Nancy L. Cook, “Outside the Tradition: Literature as Legal Scholarship,” U. Cin. L. Rev. 63 (Fall 1994): 95; Steven L. Winter, “Death is the Mother of Metaphor,” review of The Wallace Stevens Case: Law and the Practice of Poetry, by Thomas C. Grey, Harvard L. Rev. 105 (1992): 745; Thomas Grey, “Hear the Other Side: Wallace Stevens and Pragmatist Legal Theory, S. Cal. L. Rev. 63 (September 1990): 1569; James Boyd White, Acts of Hope, on the poetry of Emily Dickinson, 224-271; James Boyd White, “The Judicial Opinion and the Poem: Ways of Reading, Ways of Life,” Mich. L. Rev. 82 (June 1984): 1669.

84. A number of law review articles in the form of a fictional dialogue between a law professor and his student have now been published in book form: Richard Delgado, The Rodrigo Chronicles: Conversations About America and Race (New York: New York Univ. Press, 1995), attacked by Marc Arkin, “A Crash Course in the Latest Legalese,” Wall Street Journal, 1 September 1995, p. A5, c. 4. The story of legal analysis in the Wall Street Journal could be the subject of a narrative analysis itself.

85. Clark D. Cunningham, “Legal Storytelling: A Tale of Two Clients: Thinking About Law as Language,” Mich. L. Rev. 87 (August 1989): 2459; Nancy Cook, “Legal Fictions: Clinical Experiences, Lace Collars and Boundless Stories,” Clinical L. Rev. 1 (Spring 1994): 41; Anthony G. Amsterdam, “Telling Stories and Stories About Them,” Clinical L. Rev. 1 (Spring 1994): 9.

86. Patricia Williams, The Alchemy of Race and Rights (Cambridge, Mass.: Harvard Univ. Press, 1991), reviewed in Robin West, “Murdering the Spirit: Racism, Rights, and Commerce,” Mich. L. Rev. 90 (May 1992): 1771; Derrick Bell, And We Are Not Saved: The Elusive Quest for Racial Justice (New York: Basic Books, 1987); Derrick Bell, Faces at the Bottom of the Well: The Permanence of Racism (New York: Basic Books, 1992).

87. L. H. LaRue, “West on Theory and Story,” 1790.

88. Brook Thomas, Cross-Examinations of Law and Literature: Cooper, Hawthorne, Stowe, and Melville, Cambridge Studies in American Literature and Culture (New York: Cambridge Univ. Press, 1987), reviewed in: William H. Page, “The Ideology of Law and Literature,” Boston U. L. Rev. 68 (July 1988): 805; James M. Doyle, “Into the Eight Ball: The Colonialist's Landscape in American Criminal Justice,” Boston C. Third World L. J. 12 (Winter, 1992), 65. A reading of American Indian law and literature texts would seem to require this approach; see, for instance: Robert A. Williams, Jr., The American Indian in Western Legal Thought: The Discourses of Conquest (New York: Oxford Univ. Press, 1990); James Welch, The Indian Lawyer (New York: W. W. Norton, 1990; a Penguin CAF paperback, 1991); Robert A. Williams, Jr., “Linking Arms Together: Multicultural Constitutionalism in a North American Indigenous Vision of Law and Peace,” Calif. L. Rev. 82 (July 1994): 981.

89. There is much recent law review discussion of Cicero and his relevance to our rhetorical tradition. Yellott reports: “Cicero advised his son that advocacy was second only to philosophy as a subject for study. … Cicero cautioned, however, to use the powers of oratory only in the service of ‘justice or virtue, and never to set up profit, and not honesty, for the measure of his happiness.’” Jock Yellott, “Tocqueville, Judge Hand, and the American Legal Mind,” S. D. L. Rev. 38 (1993): 100, note 6. See also: Linda Levine and Kurt M. Saunders, “Thinking Like a Rhetor,” J. Legal Ed. 43 (March 1993): 108; John W. Cooley, “A Classical Approach to Mediation—Part I: Classical Rhetoric and the Art of Persuasion in Mediation,” U. Dayton L. Rev. 19 (Fall 1993): 83; Frank R. Herrmann, S. J. and Brownlow M. Speer, “Facing the Accuser: Ancient and Medieval Precursors of the Confrontation Clause,” Va. J. Int'l L. 34 (Spring 1994): 481; Harold J. Berman and Charles J. Reid, Jr., “Roman Law in Europe and the Jus Commune: A Historical Overview with Emphasis on the New Legal Science of the Sixteenth Century,” Syracuse J. Int'l & Com. 20 (Spring 1994): 1; Richard H. Underwood, “Logic and the Common Law Trial,” Am. J. Trial Advoc. 18 (Summer 1994): 151; Michael Frost, “Ethos, Pathos & Legal Audience,” Dick. L. Rev. 99 (Fall 1994): 85; Matthew A. Pauley, “The Jurisprudence of Crime and Punishment From Plato to Hegel,” Am. J. Juris. 39 (1994): 97; Geoffrey C. Hazard, Jr., “In Defense of Lawyers,” review of A Nation Under Lawyers, by Mary Ann Glendon, Mich. L. Rev. 93 (May 1995): 1196; M. H. Hoeflich, “Law in the Republican Classroom,” U. Kan. L. Rev. 43 (July 1995): 711; Bernard E. Jacob, “Ancient Rhetoric, Modern Legal Thought, and Politics: A Review Essay on the Translation of Viehweg's Topics and Law,” NW. U. L. Rev. 89 (Summer 1995): 1622; R. Randall Kelso, “The Natural Law Tradition on The Modern Supreme Court: Not Burke, But the Enlightenment Tradition Represented by Locke, Madison, and Marshall,” St. Mary's L. J. 26 (1995): 1051.

90. References to classical Greek texts abound in the work of law and literature scholars: David Luban, “Some Greek Trials: Order and Justice in Homer, Hesiod, Aeschylus and Plato,” Tenn. L. Rev. 54 (Winter 1987): 279; Paul Gewirtz, “Aeschylus' Law,” Harv. L. Rev. 101 (March 1988): 1043; John Jay Osborn, Jr., “At Sea: An Exploration of Implicit Assumptions in ‘Hamlet,’ ‘Oedipus,’ and ‘St. Joan,’” Cardozo Stud. in L. & Lit. 1 (Fall 1989): 199; L. H. LaRue, “Suggestions Toward Reading/Teaching Plato's Gorgias,” U. Cin. L. Rev. 63 (Fall 1994): 317; James Boyd White, When Words Lose Their Meaning, 24-113; James Boyd White, Heracles' Bow: Essays on the Rhetoric and Poetics of the Law (Madison: Univ. of Wis. Press, 1985), 3-27, 168-180, 215-237; James Boyd White, Acts of Hope, 3-44.

91. William Golding, Lord of the Flies, Casebook ed.:Text, Notes, and Criticism, ed., by James R. Baker and Arthur P. Ziegler, Jr. (New York: Wideview/Perigee, 1983). See: Ian Ward, Law and Literature, 90-118, on children's literature in general, and Lord of the Flies at 110-112 in particular.

92. A. A. Milne, Winnie-the-Pooh (London: Methuen, 1926).

93. Using Winnie the Pooh also provides an opportunity to explore the nature of criticism, the alternate ways of reading a text, and the role of satire in discourse, through such works as: Benjamin Hoff, The Tao of Pooh (New York: Penguin Books, 1982), and Frederick C. Crews, The Pooh Perplex (New York: E. P. Dutton & Co., 1963; paperback, 1963). See also: Jeffrey S. Kinsler, “Politically Incorrect,” review of Politically Correct Bedtime Stories, by James Finn Garner, SMU L. Rev. 48 (January-February 1995): 411.

94. Dr. Seuss, Yertle the Turtle and Other Stories (New York: Random House, 1950).

95. Salman Rushdie, Haroun and the Sea of Stories (London: Granta Books/Viking Penguin, 1990); Bruce L. Rockwood, “Face to Face,” 355-358.

96. Ian Ward, Law and Literature, 90, 117.

97. See: Nat Hentoff, Free Speech for Me—But Not For Thee (New York: HarperCollins, 1992; Harper Perennial, 1993), 18-41; James Boyd White, The Legal Imagination, 21, 430-431, 759-760; Teresa Godwin Phelps, “The Story of the Law in Huckleberry Finn,” Mercer L. Rev. 39 (1988): 889; Mari Matsuda, “Public Response to Racist Speech: Considering the Victims Story,” Mich. L. Rev. 87 (1989): 2320; Ian Ward, Law and Literature, 108-110. I share the view of Robin West that we should teach Twain jointly with Toni Morrison's Beloved: Robin West, Narrative, Authority, and Law, 13-14; but am fearful that neither book will be taught much in public schools divided by conflicting pressures as they are today, and with censors on watch for opportunities to attack the schools. See also: Robin West, “Communities, Text, and Law: Reflections of the Law and Literature Movement,” Yale J. of L. & Hum. 1 (1988): 129.

98. See: E. D. Hirsch, Jr., ed., What Your First Grader Needs to Know: Fundamentals of a Good First-Grade Education, The Core Knowledge Series: Book I (New York: Doubleday, 1991; trade paperback, Delta, 1993), and others in this series. We made use of the first four volumes when home schooling our first and fourth grade boys while on sabbatical in Maine working on this book. See the comments on William Bennett in “Cheesy Kid Stuff,” New Yorker, 25 December 1995/1 January 1996, 45-46.

99. John Gardner, Dragon, Dragon (New York: Alfred A. Knopf, 1975), “The Last Piece of Light,” 57.

100. Anna Quindlen, “Don't Read This,” New York Times, 1 Oct. 1994, p. 23, c. 1, reports on the growing number of books being banned by school boards; see: Nat Hentoff, Free Speech For Me—But Not For Thee.

101. The controversy over banning personal attacks, outlawing pornography, and holding on-line services and bulletin boards responsible for libel as “publishers,” all plague the internet. See: “A Bad Dream Comes True in Cyberspace,” Newsweek, 8 January 1996, p. 65, concerning CompuServ, Inc.'s suspension of global access to “200 sexually explicit discussion groups on the Internet,” due to a prosecution brought in Munich, Germany. CompuServ claims to have a technical fix allowing it to only bar these chat groups in Germany, but that raises the possibility of every nation restricting the domestic, and international, speech rights of its residents, which would undermine the potential of the internet for contributing to the building of global community. China's actions in February, 1996 to register all internet users in China and centralize, monitor and censor all internet access is another straw in the wind, as is the Communications Decency Act of 1996, signed into law on Feb. 8, 1996 by President Clinton as part of a larger telecommunications reform act. U.S. District Judge Ronald L. Buckwalter issued a temporary restraining order on February 15, 1996, barring enforcement of provisions in the law dealing with “indecent” material, but permitting prosecution of those who use language that is “patently offensive.” Press-Enterprise (Bloomsburg, Pa.), 16 Feb. 1996, p. 2, c. 2. See also: “Cyberscope: In Protest,” Newsweek, 19 February 1996, 12; Jared Sandberg, “Regulators Try to Tame the Untamable On-Line World,” Wall Street Journal, 5 July 1995, p. B1, c. 3; Stratton Oakmont, Inc. and Daniel Porush, Plaintiffs, v. Prodigy Services Company, et. al., Defendants, Supreme Court of New York, Trial/IAS, Nassau County, Part 34, 24 May 1995, 1995 WL 323710 (N.Y. Sup.), 63 USLW 2765, 23 Media L. Rep. 1794. The case has since been settled, leaving the state of the law unclear. See: Paul Reidinger, “Weighing Cost of Free Speech,” review of The Price We Pay by Laura J. Lederer and Richard Delgado, and The Death of Discourse by Ronald K. L. Collins and David M. Skover, ABA J. (January 1996): 38; Carlin Meyer, “Sex, Sin, and Women's Liberation: Against Porn-Suppression,” Tex. L. Rev. 72 (April 1994): 1097; John F. Wirenius, “Giving the Devil the Benefit of Law: Pornographers, The Feminist Attack on Free Speech, & the First Amendment,” Fordham. Urb. L. J. 20 (Fall 1992): 27; Paul M. Barrett, “Ruling Upholding Airwaves Curbs on ‘Indecent’ Material Is Let Stand,” (Pacifica Foundation v. FCC), Wall Street Journal, 9 January 1996, p. B9, c. 1; James Fallows, “An Outlaw in Cyberspace,” reviewing three books on the Kevin Mitnick case, New York Times Book Review, 4 February 1996, 14.

102. The latest attempt to pass such an amendment in the Senate failed by three votes, 12 Dec. 1995; news accounts seem horrified and ignorant at the same time, suggesting the gap between telling stories about law within academia, and to the broader community, is widening perilously. cf.: Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940); Bd. of Ed. v. Barnette, 319 U.S. 624 (1943) (the Jehovah's Witnesses flag salute cases).

103. Henry Kamm, “In Prosperous Singapore, Even the Elite Are Nervous About Speaking Out,” New York Times, 13 Aug. 1995, p. 10, c. 1; William Glaberson, “Newspaper Decides Not To Fight Singapore Libel Award, Int. Herald Trib. will pay $678,000 damages,” New York Times, 16 August 1995, p. 3, c. 1. In Australia, the High Court appears to be moving towards the American model, which is less restrictive of speech: Anthony Lewis, “Ripples of Freedom,” New York Times, 11 March 1994, p. A31, c. 1. The reluctance of the new owners of CBS and ABC to resist pressure from the tobacco industry in the U.S. in 1995 suggests that self-censorship for economic reasons will increasingly restrict access to a robust free market in ideas except, of course, for those able to pay for sufficient on-line access. cf.: Gail Diane Cox, “Hardball Legal Maneuvers Cow News Media Titans,” National Law J., 8 January 1996, p. B1, c. 2.

104. Martha Woodmansee and Peter Jaszi, eds., The Construction of Authorship: Textual Appropriation in Law and Literature (Durham, N.C.: Duke Univ. Press, 1994).

105. “Texaco Settles Suit, Preventing Supreme Court Hearing on Fair Use Issue,” AALL Newsletter 26 (July, 1995) 452, reporting on the settlement in American Geophysical Union v. Texaco, 37 F.3d 882 (2d Cir. 1994). Compare: Frank Music Corp. v. CompuServ Inc., 93 Civ. 8153 (S.D.N.Y.); Andrew Blum, “Online Music Copyright Case Settled, Terms Set Actual Knowledge as Liability Test,” National Law J., 8 January 1995, p. B1, c. 1.

106. Joe Morgenstern, “Film: Wild Bill's Wildest Dreams,” Wall Street Journal, 1 Dec. 1995, p. A12, c. 1; M. Zimecki, “Violent Films Cry ‘Fire’ in Crowded Theaters,” National Law J., 19 February 1996, p. A19, c. 3. See the report on the fight over Interscope, cultural values and the impact of rap music among Senator Robert Dole, William Bennett and Time Warner, concerning Interscope's “gangsta” rap label “Death Row Records.” Jeffrey A. Trachtenberg, “Time Warner Wants to Screen Lyrics,” Wall Street Journal, 17 August 1995, p. B4, c. 1. See: Kevin W. Saunders, Violence as Obscenity: Limiting the Media's First Amendment Protection (Durham: Duke Univ. Press, 1996).

107. Junda Woo, “Big Fines are Replacing Some of Sam Laws,” Wall Street Journal, 26 April 1994, p. B1, c. 3: “When a judge added a $1.8 million fine to Arthur Seale's prison sentence in the kidnap-murder of Exxon Corp. executive Sidney J. Reso, the … fine had a practical effect: to make sure that the debt-ridden Mr. Seale would never be able to profit from publishing his story or selling it to Hollywood.”

108. Sarah Lyall, “Mystery Writer's Hidden Past,” New York Times, 17 August 1994, p. C9, c. 3, concerning Anne Perry, who committed a murder as a teenager in New Zealand, served five years in prison, and then changed her name to become a writer.

109. “Ex-Juror May Publish Book,” National Law J., June 1995, p. A8, c. 1, concerning ex-O. J. juror Michael Knox's book, The Private Diary of an O. J. Simpson Juror. California has sought to criminalize the sale of evidence: “‘Trash for Cash’ Outlawed in California,” National Law J., 10 October 1994, p. A10, c. 1; “Editorial: The Tabloid Bar,” Ibid., p. A20, c. 1. cf.: Hazel Thornton, Hung Jury (Philadelphia: Temple Univ. Press, 1995), her account of seven months on the Erik Menendez jury.

110. David Remnick, “A Reporter at Large: Hamlet in Hollywood,” New Yorker, 20 November 1995, 60.

111. See the discussion in Posner, Law and Literature, 338-352.

112. Jeffrey Rosen, “Cheap Speech: Will the Old First Amendment Survive the New Technologies?” New Yorker, 7 August 1995, 75-80.

113. Which may increase the exposure of many children to violent programming as networks rely on the presence of the chip as an excuse to use more sex and violence. See: Bruce L. Rockwood, “Retakings: Perspectives on the Nature of Property and Politics From the Law and Literature of Slavery,” in Roberta Kevelson, ed., Law and the Conflict of Ideologies (New York: Peter Lang, 1996), note 13; Bob Gale, “Fans of Sex and Violence Will Love the V-Chip,” Wall Street Journal, 21 February 1996, p. A14, c. 3.

114. Arthur Miller, “We Spend Far Less on the Support of our Fine Arts Than Almost Every Other Advanced Country,” letter to Newt Gingrich, 6 June 1995, reprinted in Chronicle of Higher Educ., 18 August 1995, p. B5, c. 2.

115. The literature here is voluminous. See: Lee C. Bollinger, The Tolerant Society (New York: Oxford Univ. Press, 1986); Mark A. Graber, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism (Berkeley: Univ. of California Press, 1991); Cass R. Sunstein, Democracy and the Problem of Free Speech (New York: The Free Press, Macmillan, Inc., 1993).

116. The international and interdisciplinary scope of the movement is reflected in a recent collection of essays representative of Australian law and literature scholarship: J. Neville Turner and Pamela Williams, eds., The Happy Couple: Law and Literature (Sydney: The Federation Press, 1994), and in the establishment of a journal, Law/Text/Culture in the Department of English at the University of Wollongong in Wollongong, NSW 2522, Australia. I thank Kathryn Temple at Georgetown and Desmond Manderson at The Australian National University for bringing these references to my attention, and ask readers of this essay to let me know of other texts from around the world that either discuss or represent the intersections of law and literature. Perhaps we can establish an Internet discussion group to foster our growing real, and not merely virtual, law and literature community. cf.: Adam Gopnik, “Paris Journal: The Virtual Bishop,” New Yorker, 18 March 1996, 59.