Two recent assessments of Law and Literature

Within the past few months, from both sides of the table, important commentaries on the Law and Literature Movement (or "Enterprise") have appeared. Julie Stone Peters, a professor of English at Columbia, and Kenji Yoshino, a law professor at Yale, have each separately published articles -- she in the PMLA (Publication of the Modern Language Association), he in the Yale Law Journal. Peters' essay, which can be found at vol. 120#2 of the PMLA (2005), is called "Law, Literature, and the Vanishing Real: On the Future of an Interdisciplinary Illusion"; Yoshino's article is called "The City and the Poet" and appears in vol. 114 of the YLJ (2005) beginning at page 1835.

I happened to read these fine pieces in quick succession, yielding a benefit worth stressing here. People tend to neglect the truly interdisciplinary nature of the Law and Literature enterprise. Yoshino largely ignores the effect of this work upon literary theory and scholarship. Peters of course brings to the table her literary perspective; perhaps since she is a lawyer as well as an English professor, however, her effort also primarily "tests" the enterprise by weighing its influence on legal thought. Still, her literary sensitivities and training enhance her understanding of the enterprise's cross-disciplinary contributions, and she cites a number of literary scholars whom Yoshino has no doubt not read at all.

It is worth emphasizing that in the 30 or so years since the onset of the "modern" movement, Law and Literature has informed the thinking and writing of many folks who do not have law degrees. (Geoffrey Hartman pointed this out several years ago in associating Law and Literature with the New Historicism and in stating that the enterprise has also produced some of the best examples of "cultural criticism".) There are important communities of scholars working today -- many of them younger people -- in English and other Literature departments, not only in the United States but in Italy, France, the UK, Scandanavia, Germany and the Netherlands, as well as in Australia and China. Some of these efforts, directed of course to speech act theory, rhetoric and traditional literary analyses of stories but also to technical considerations of authorship, intellectual property, and inheritance law, have advanced these subjects in a singularly inter-disciplinary way. Lawyers writing about the enterprise need to be more aware, perhaps, of the balance that has been sought and in part achieved by some who helped "pioneer" the enterprise, many of whom are still active in LHI.

One final, related point: Yoshino's ascription to Robert Weisberg of the bifurcation of the field into "Law in Literature" and "Law as Literature" is incorrect; Peters does better in tracing out the origins of this seeming dichotomy. (Robert Weisberg has contributed in many other ways to the field, primarily as a critic of what he deems to be a certain sentimentalism or questionable insistence that somehow the mere reading of "Literature" will make lawyers better people. I have answered him on this, trying to show that much of the work -- again -- has been interdisciplinary -- it tends not only to conflate the fields despite their natural resistance to any threat to their perceived uniqueness; but it also undermines rather than promotes the unitary assumptions of each separate discipline, and perhaps especially the idea that "Literature" is inherently edifying!) More important though then who said what first may be the over-emphasis in both essays of this only-superficial if pedagogically useful dichotomy, which actually originated in a two-volume work from the early '60's by famous New York civil rights lawyer Ephraim London.

The reading of stories, in my view, serves as the predicate for the understanding of law -- its power to mobilize rhetoric and form to advance its often covert agendas . So "Law-in-Literature" and "Law-as-Literature" are intertwined, not separate. These two essays, which make many other points not addressed here, can be profitably read together by the decreasingly segregated audiences of lawyers and literati.