Cardozo School of Law

Literature Studies in Law Schools Author(s): C. R. B. Dunlop Source: Cardozo Studies in Law and Literature, Vol. 3, No. 1 (Spring - Summer, 1991), pp. 63110 Published by: Cardozo School of Law Stable URL: http://www.jstor.org/stable/743502 Accessed: 17/04/2010 06:54
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Literature Studies in Law Schools

C.R.B.Dunlop A. Introduction
the publication of James Boyd White's The Legal Imagination in 1973,2

Since Literature study in law faculties is a growth industry.1

an increasing number of scholars have begun to write about the relationshipof law and literature,and to teach courses on the subject.3 The Presidentof the Lawand HumanitiesInstitutehas observed that a majority of American law schools now offer Law and Literature courses.4Novels and plays are being read in law libraries,and books by Wayne Booth and Stanley Fish are appearing in law faculty criticismand theory appearto have establisheda bookshelves. Literary foothold in the law schools of NorthAmerica. It is common to divide Lawand Literature studies into two in literature" I will "Law the here. and distinction is, sub-fields, adopt as the name suggests, the study of representationsof the legal order in fiction, usually novels and plays. Courses on the subject require students to read several books in which the law plays a significant courses role. ElizabethGemmette'srecent surveyof Lawand Literature offered in Americanlaw schools lists over 100 authors and over 150 differentnovels, plays, short storycollections, and poems read in such courses.5 Some obvious candidates like Camus, Dickens, Kafka, Melville, and Shakespeareappear on several reading lists, but other instructorsrange furtherafield to include everythingfrom Aeschylus to AgathaChristie.6 The second sub-field of the Lawand Literature movement is often described as "law as literature." The principal scholar is James Boyd White,7 although RichardWeisberg8and others9 have written related essays. Here the focus is on law, not literature. Law as literaturedraws insights from literarycriticism and theory to assist in the reading and interpretation of legal texts, particularlyjudicial
decisions.

The Law and Literaturemovement has in the last 20 years become an importantpart of the world of legal studies. In its rapid development, however, some basic questions have remained unexamined. In this paper, I want to explore two majorand three less importantissues concerning literaturestudies in the law school.
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In PartB of this paper, I address the fundamentalquestion whether literaturecan ever be an appropriatefield of study for law professors and a legitimate course for inclusion in a general first Lawin literatureis a radicaldeparturefrom the usual degree in law.10 work of a lawyeror law student. The label masks the fact that what is going on is the analysis and the teaching of fiction, an activity normallywithin the bailiwick of the arts faculty and not commonly encountered in legal studies. Literarycriticism is an intrinsically interesting pursuit, but not one for which most law professors are trained.'1 Nor is it likely to arise in most law practices.How then can it be justified as a legitimate part of legal scholarship and education? The issue has a personal resonance as I have for over twenty years been teaching literature to law studentsas partof a legal theorycourse more without the protectivecover of Hartand Dworkin. or, recently, The proponents of literature in law faculties have not yet produced a clear, generally accepted justificationfor the appropriateness of the subject.'2Indeed, some of their writing is marredby an enthusiasticboosterism which is not likely to convince skeptics. Two recent students of the field have raised substantialdoubts about the Lawand Literature enterprisewhile remaininggrudging supporters.13 The time seems ripe for an attempt to see if law in literaturehas a place in the largerworld of legal researchand education. Myargumentwill be that literaturestudies are an appropriate, even a necessary,partof legal studies. Fiction gives legal scholarsthe opportunityto get beyond the technical and circumscribedstudy of legal rules, and to look at law as part of the broader civilization. Literaturechallenges assumptions about rationalityand the rule of law, and emphasizes neglected but important aspects of the legal process. Even if legal education remains professional in character, fiction courses serve a useful role in the law curriculumand can be taughtby law professors,so long as they are preparedto learnanother discipline. A second major question about the Law and Literature movement is whether it is held together by an underlying theory of law and legal studies. In Part C, I discuss the work of James Boyd White as the only majortheorist to emerge from the movement.There is much in White's humanistic account of law and legal education which is attractive. Forme, however,White'slegal theory is ultimately unconvincing because it overestimates the similarities between law and literature,and ignores or undervaluesthe practicaland political limits to law, even in a democratic society. White is unwilling to situate his account of law and literaturein the largerworld of theory. He does express sympathyfor the work of the New Critics,but his theory displays the drawbacks as well as the advantages of their

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approachto literarycriticism. I conclude the paper with a comment on three questionable trends in recent Lawand Literature scholarship,namely,the overuse of the GreatBooks model, the vice of Procrusteanism, and the excessive passion for theory.

B. Justifying LiteratureStudies in Law Schools

In a recent essay, RichardPosner recalled his legal education at HarvardLaw School as imbued with the notion that law is an autonomous discipline, that is, "a subject properly entrusted to persons trained in law and in nothing else."'4 The majorityof the Harvard facultyat that time believed or appearedto believe that "the only thing law students needed to study was authoritativelegal texts ... and that the only essential preparationfor a legal scholarwas the knowledge of what was in those texts, and the power of logical discrimination and argumentationthat came from close and critical study of them."'5 Posner is critical of the idea of legal scholarship as a selfcontained discipline, but others have continued to assert the traditionalview. In an address delivered in 1975 and republished four years later, FrancisAllen talks about the development of interdisciplinaryresearchinto law, but sounds a stern and graphicwarning: As the scope and demands of scholarship broaden and intensify, some law teachers lose their way and find themselves in a limbo where they are no longer lawyersbut also not quite behavioralscientists. One of the worst things that could happen to legal education is that the law schools should join the already-long procession of university departments engaged in a wistful search for a subject matter.We need not search. Our mission, as it has been for the past eight hundred years in the universities of the Western world, is the study of law and the institutionsof the law.16 A few years later, Robert Summers concluded that, while economics had some relevance to legal research and education, its role was limited. "Law does not collapse into economics, or any other subject.The law is relativelyautonomous."'7 The vision of law as an autonomous discipline has increasinglycome under attackduring the past 25 years.The doctrinal analysis so vigorously pursued by Judge Posner's teachers has fallen into disfavoralthough a casual review of Americanand Canadianlegal
1. The Nature of Legal Research

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periodicals and books published over the past year suggests that it is still the dominant form of scholarship in North America. Traditional legal education has been condemned for its insularity and its "limits of breadth, depth, and imagination," limits that have led legal researchers and teachers to "fail to consider the intellectual and political world outside the law schools."'8 Law and Learning,'9 an important study of legal research and education in Canada in the early 1980s, concluded that legal scholars in that country had confined themselves to conventional research20 rather than engaging in fundamental research, defined as "research designed to secure a deeper understanding of law as a social phenomenon" - research about law rather than research in law.21 The Report concluded that legal scholars "should make a conscious effort to diversify the approach they take in their research" and "should turn to more fundamental studies using historical, theoretical, comparative, and empirical approaches."22 In response to these criticisms, legal scholarship has begun to transform itself. The most obvious change is the increasing popularity over the past quarter century of interdisciplinary studies. While the American history of "law and ..." research goes back at least to the Realists, it is only recently that the partnership of law and the social sciences, especially economics, has become a significant part of the intellectual agenda in the United States and, to a lesser extent, Canada.23The enthusiasm for interdisciplinary scholarship has led some to denigrate doctrinal analysis,24although Posner for one has expressed the more moderate view that, alongside interdisciplinary research, better doctrinal work remains a legitimate and respectable goal, even for law professors.25 Others have responded to the limitations of traditional legal scholarship by attempting to redefine the nature of law itself. An emphasis on the metaphorical,26 mythic,27or theatrical28aspects of law rather than the analysis of rules has led to provocative and interesting results. Maybe the best example of research through redefinition or at least change of emphasis is the turn to narrative evident in the work of writers like the late Robert Cover.29 The recent changes in the shape of legal scholarship have not gone unchallenged. Critics (and some friends) of interdisciplinary research have questioned its quality and relevance.30 The fear has been expressed that, while doctrinal research is at least a coherent activity, the new sprawling world of legal scholarship appears to have no central and coherent discipline.31 A few have thrown up their hands and rejected the scholarly enterprise entirely.32 The argument carries on unabated in the pages of the Journal of Legal Education, the meetings of the American Association of LawSchools, and elsewhere.

The current debate about the nature and proper limits of legal scholarship turns on two questions that are not always distinguished. The first issue is to describe the nature of legal scholarship. Is there a body of material, a set of issues, a subjectmatter, a discourse that any reasonable person would call legal research as contrasted with, for example, literary research? The second issue, considered later in this paper, is more jurisdictional in character. Who ought to be carrying out legal scholarship? Is this an activity properly claimed by lawyers or law professors, or are certain aspects of research into law properly within the domain of others in the world of research? Does it matter? When we hive off the jurisdictional question, it seems obvious that the term "legal research" naturally comprises any research taking as its subject the legal order.33Such research may be in law or about law, as those terms are used by the writers of Law and Learning, although it may be useful to say something more here about the distinction. Research in law is necessarily a narrower, although a more coherent, activity than research about law. Research in law often (perhaps always) consists of doctrinal analysis of legal texts such as cases or statutes. It often (perhaps always) makes assumptions about some aspects of the legal order, for example, the primacy of reason34 and the nature of legal reasoning, as well as political assumptions about the value of a legal system and of the rule of law as a necessary part of the good society. Another characteristic of research in law is that it tends not to involve empirical study of the actual workings of the legal order or of its economic or social consequences. It becomes the study of a limited set of texts rather than an examination of the actual workings of legal institutions. Finally, legal research in law usually does not cross disciplinary boundaries, at least when the operational and political assumptions noted above remain unquestioned. It apparently has a coherence and an autonomy enabling one to call it a discipline. Research about law is a much larger enterprise. Law can be discussed as an historical phenomenon, as a cultural, philosophical, or political idea, or as an institution having social, political, or economic consequences that can be examined empirically. Law can be seen as the kind of discourse that can be probed for its use of metaphor or myth. It can be read as a story.35 None of these studies must necessarily make the assumptions about rationality or value that research in law tends to make. The last point, and the most important, is that research about law seems almost always to involve disciplines other than law. One is driven to examine history, the social sciences, cultural studies, philosophy, and literature to carry out the project. As

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a consequence, research about law becomes a congeries of overlapping disciplines that do not possess the coherence and autonomy of research in law. There are difficulties in either limiting legal scholarship to research in law or extending it to include all research about law. Studies in law have an appearance of autonomy and a comforting feeling akin to the practice of a craft. But if we start to question the assumptions underlying the craft or to ask questions lying outside the purely legal texts, we may conclude that it is limited to a sterile manipulation of doctrine. Doctrinal analysis should not be denigrated; it is a legitimate, valuable, and necessary part of the work of all lawyers, judges, and law professors, and it is likely for the foreseeable future to constitute the bulk of the work done under the rubric of legal scholarship.36 But when the researcher starts to ask difficult questions (Why is this the rule? Does it really work this way? How does it fit with the other values of our culture?), doctrinal analysis turns out to be ultimately unhelpful and unsatisfying. Research in law seemingly stops short of most of the important questions. On the other hand, research about law raises all of them, but it suffers from the dangers of the unknown or, perhaps worse, the partially understood. Researchers in various interdisciplinary fields may be unable or unwilling to communicate with each other, and their work may be incomprehensible to the unsuspecting bench and bar. Interdisciplinary work can also fail if it is excessively ambitious.37 There is much wisdom in John Austin's gloomy advice that "he who would know anything well, must resolve to be ignorant of many things."38For researchers who wish to do interdisciplinary research on law, there is a real problem in mastering the second discipline.39 However, we have reserved until later the jurisdictional question who is to carry out research about law. Given that decision, we can set aside for now the dangers of amateurism. When everything is taken into account, it seems to me that we really have no choice but to recognize the world of legal scholarship as including research about law. Law is part of the broader culture, language, economy, and society; the curious researcher must accept law's entanglement with the rest of the world and concede that it is legitimate, under the rubric of legal scholarship, to explore that entanglement. History, literature, economics, and ethics all have significance for law.40We can hardly turn our backs on these sources of enlightenment. If we give "legal scholarship" this extended definition, does the activity retain any semblance of coherence or autonomy? The question is an important one, and not just for those legal scholars who fear any departure from the narrowest parsing of legal texts.41 Does an

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analysis of a group of cases on execution against real propertyhave anythingin common with an examinationof representationsof law in Dreiser's novels? In one sense, they are parts of different scholarly projects,and all that holds them together is that they both involve law. But that bond is important.The student of Dreiser and the student of creditors' remedies share the belief that law is an importanthuman activity. We may only achieve a partial autonomy,42 a loose confederation of disciplines, but the rewards in understandingand depth will more than make up for the dangers inherent in the activity.43
2. Literature Studies as Legal Research

Bar Association.47

Legalscholarshipcan and should include studies of works of literaturedealing with law. Fiction may not be particularly helpful as a to learn rules or it but can tell us much about law, way legal history,44 defined broadlyto mean the legal order. Imaginativewriters from Aeschylus to E. L. Doctorow have always known that the law was too importantto be left to the lawyers and have turned to the legal system as a fascinatingand disturbing subject for contemplation.They have found it essential to consider the legal order, among other reasons, because law contributesto notions of the good society and the good person. Fiction is a repository of ideas about and images of the law, a storehouse of alternativevisions which comment on the lawyer'sidea of the world.45 The recent movement towards interdisciplinary legal studies reflects a growing recognition by legal scholars that they cannot understandtheir subject in isolation from the largerconcerns of our culture. The assumption of traditionallegal education, that law is a technical and insularmattergraspedentirely or largelyon its own, has been replaced by the belief that it is inextricablybound up with politics, morality, culture, and life. Law'sattempt to constitute the good society must necessarilybe informedby some general notion of what such a world would look like. The center of legal scholarship will always be law, but scholars should approach it as a part of a broadercivilization. Literature provides legal scholarswith an ideal vehicle to see law as part of the surrounding culture.46It offers a chance to get beyond the technical and assumption-boundstudy of legal rules, and to look at law from the outside (where most people live). Literature is to a us richer view of the than that likely give legal heritage normally set forth by judges, law professors,or representativesof the American This is not to say that literatureshould be regarded as the

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source of all wisdom; it can be wrong, confused, even silly on legal matters. But fiction does present the reader alternative visions of the world, including the legal order. The reader participates in these alternative visions during the act of reading and permits them to comment on her own world. Wayne Booth describes the unique value of fiction as "its relatively cost-free offer of trial runs" without the sacrifices imposed by experimentation with our real lives.48 [Narrative experience] transforms (distorts, twists, figures) the life we might have lived during the hours we spend with the narrative, and it thus becomes a substitute for -- or, better, a replacement of, and consequently a radical criticism of -- that unlived life. In short, we are led to create for ourselves an alternative life during those hours we spend "elsewhere."49 The lawyer or law student finds that the literature she is reading challenges her assumptions about law without yet requiring decisive action on her part.50 But fiction's influence may extend eventually to real-world situations. The picture of the legal order that literature presents may be discomfiting to the lawyer or law student. Writers of fiction will not automatically assume that law is necessary,51 that the rule of law is an unambiguously acceptable value,52 or that the legal process is particularly rational or fair.53Law may be pictured as a malevolent, life-destructive force, lawyers as frauds,54and judges as fools. Fiction often places the emphasis on the irrational, theatrical, mythic, and ritualistic aspects of the legal process.55 The reader is asked to put herself in odd positions, such as that of the good, though imperfect, captain-judge Vere who "must" argue for the execution of the almost innocent Billy Budd.56 Literature can extend the sympathies of the reader by extending her understanding of human nature and motivation, and by enabling her, at least during the reading experience, to participate in another person's life.57 As James Boyd White suggests, fiction stimulates the reader's capacity to imagine other people in other universes.58 Legal research and education have been accused of emphasizing the voices of some individuals and groups in our society to the exclusion of others.59 Fiction can serve as a corrective to this myopic tendency. After a lawyer or law student reads Charles Dickens' Bleak House, he can never again be completely indifferent or "objective" towards the client across the desk.60As he takes a retainer, as he has the client sign a contingent fee contract or written instructions to carry on litigation despite advice that it may fail, the

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lawyer has the uneasy feeling that he is acting a bit like Mr. Vholes, and he becomes anxious to look for differences between his conduct and that of the devil-vampire lawyer. Like Scrooge, the lawyer is not the man he was61before experiencing the world of the imagination. Many law teachers seek to justify law in literature research and education on the ground that literature teaches values and forces the reader to grapple with ethical issues. J. Allen Smith has argued that modern legal education and practice have in this century become severed from the overt consideration of values found, for example, in the decisions of the courts of equity. For Smith, fiction can serve as a place where ethical questions related to the legal order are raised and (apparently) resolved.62 "To the extent that writers are in the vanguard of community conscience, lawyers, as legislators and policymakers, should be attentive to their work."63 Whether or not literature teaches ethics in any sense is a debated hotly question in 20th century literary criticism, and I do not intend to canvass the state of the argument here. My position is that fiction often raises and examines, usually without resolving, ethical and political issues about the legal order. Literature can suggest the complexity of an ethical question. It can conjure a variety of possible solutions. The reader can explore the problem through the eyes of various characters living through a concrete situation, and her sensitivity and understanding will be enriched as a result. As James Boyd White says, literature "complicates one's sense of oneself and the world."64 An example of the kind of complication that White is talking about occurs in the preface to Bleak House.65 Dickens begins by reporting that a Chancery judge once told him "as one of a company of some hundred and fifty men and women not labouring under any suspicions of lunacy" that the Court of Chancery was "almost immaculate," and that any trivial blemish was the result of the "parsimony of the public" and would be cured by the appointment of more Chancery judges. The judge overheard by Dickens was right in part about the Court of Chancery, which was grossly understaffed until late in the 19th century. Moreover, the tone of the speech seems sensible today to many lawyers and law professors as a solution to problems of court overcrowding, delays, and cost of litigation. But Dickens' response unsettles both our and the Chancery judges's convictions. On the idea of adding to Chancery's manpower, Dickens observes, "This seemed to me too profound a joke to be inserted in the body of this book, or I should have restored it to Conversation Kenge or to Mr. Vholes, with one or other of whom I think it must have originated." We are immediately taken from our narrow perspective on Chancery to the larger vision of Dickensian satire.

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If the goal of the legal order is to do justice, literature makes that value complex and problematic, but in the process enriches and deepens our understanding. Instead of a monolithic or an officially authorized notion of justice,66 literature provides alternative visions, sometimes set against each other in the same work. Carol Gilligan, in In A Different Voice,67argues that many men and women see ethical questions in a different way, women emphasizing the web of caring relationships rather than the hierarchical structure of principles. Much fiction strikes me as picturing ethical problems in terms of their effect on the web-like relationships of the characters in the story rather than by the application of a system of moral rules. If my perception is right, then literature can operate as a useful corrective to the highly structured nature of much legal writing and thinking. If literature can be read as carrying ethical freight, it is not difficult to take the next step and see in it an implied political critique of the legal order. Fiction can place lawyers' and law students' presumptively conservative values against a broader background, leading the reader to question those values or to think about them more carefully. The long tradition of anti-law sentiment in literature helps to provide a systematic counterbalance to the pro-law rhetoric pervasive in most legal writing and teaching. Literature can be a laboratory to try out experiments in social structure. Many novels set out Utopian visions of the good society and the good legal system (which may turn out to be no legal system at all). Others, like Orwell's Animal Farm and 1984, and Burgess' ingenious commentary-parody on Orwell in 1985, play with the nightmare of a distopian legal order or, worse, the complete absence of any law.68The utopian-distopian literature is a rich and provocative subject for legal research.69 Other fiction appears to describe systems of law, much like our own, which turn out to be flawed and dangerous. Such literature is a warning and a challenge, a series of pictures of law gone wrong or (sometimes) wrong ab initio. Bleak House is not only a commentary on a particular legal structure; more fundamentally, it attacks our passion for litigation, our "shirking and sharking,"70and our fear of direct communication as the way to solve problems. Fiction need not convey a subversive political message; it can affirm the status quo or hark back to an older and better time.71 Orwell's 1984 implies a call to preserve the English rule of law and the independent, if bloody-minded, English judge, perhaps improved by a dose of socialism.72 Dickens was no advocate of riot or revolution,73 even although he played with anarchist images like the spontaneous combustion of Krook, the false Lord Chancellor in Bleak House.

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The argument that fiction is largely reformist, if not radical, has been overdone in some recent Law and Literaturewriting.74Some otherwise quite varied scholars appear to share the view that the legal order adopts and enshrines a conservative political agenda and that literature is subversive of that agenda and supportive of a different political vision. Both conclusions can be questioned. The law is not relentlessly reactionary (otherwise, why the call from the right to change it?75), and literature is not relentlessly subversive.76 The tendency to line up works of fiction like cases on counsel's table ought to be curbed. Good literature is not sufficiently tractable to be marshalled as authority for social, political, or legal change.77 Fiction may discomfit the reader, and make apparently clear questions problematic, but it is unlikely to advance a political or moral program except in the most general (and often banal) terms. In this respect, Dickens' novels are typical of much fiction in their tendency to raise possibilities or lines of inquiry, rather than to propose solutions. On one reading, Bleak House appears to call for institutional reform, but it may also suggest that the ultimate solution lies in personal salvation. Is the picture of Esther Summerson a patronizing male view of a weak, excessively self-effacing "girl," or a penetrating and profoundly radical account of a woman trapped in a financially and socially precarious position, half-conscious of her plight and half-able to describe it? Little Dorrit places before us a society using physical and psychological prisons to enforce its law, morality, and religion. Dickens asks what kind of society results from this concentration on imprisonment, and he makes that question a moral and political one in his working title (later discarded): "Nobody's Fault."78 The issue of responsibility for the depressing prison-society described in the novel is central and disturbing, but again the answer is unclear. Especially in the later novels, Dickens asks the reader to consider great moral and political questions, but the objective is less to urge a specific solution on the reader than to give her that most prized of Dickensian possessions, the disciplined heart.79 3. Legal Education Even if I assume that literature studies are a proper part of legal scholarship, it does not follow that fiction ought to be taught as part of the J.D. or LL.B.curriculum.80 The first degree in law allows a limited number of months to teach students whatever aspects and elements of the legal order the faculty regards as essential, and many courses and subjects compete for that valuable time. A course in literature will take classroom space and administrative resources away from substantive law, legal theory, and other subjects. If the course is

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to be taught by a member of the law faculty, it will occupy a large part of her teaching load and research time therefore not available to teach a section of trusts or to write an essay on securities or future interests. Literature courses carry a substantial cost in time, resources, and energy, and their proponents, like me, have to justify their place in the real and imperfect world of legal education. The starting point for such a justification is to outline what in my view are or ought to be the goals of the J.D. or the LL.B. curriculum.81 One might assume that, after the long and successful history of legal education in the United States and Canada, the aims of the exercise would be well established and accepted. A review of the literature on law school curricula appearing in the Journal of Legal Education and elsewhere suggests that such is not the case. Indeed, the writing about the subject conveys a real unhappiness about the current state of legal education in North America but without any widely accepted agenda for reform. Because of this confusion and controversy, I need to sketch in my views on legal education generally, so that the reader can see the basis from which I propound the teaching of literature in law schools.82 I begin from the conservative assumption that the first degree in law offered by the great majority of North American law schools is now and will continue to be professional or occupational in character. The goal of most law teachers is to assist in the preparation of students to practice law, defining that term broadly to include using the law in governmental and business work. It is true that some students enter law school with no intention to practice law, and others will not in fact do so. However, the vast majority of students do not study law simply to learn about the subject or to prepare themselves for lives of legal research and teaching; their intention is to learn law in order to use it in practice. In recent history, the J.D. and the LL.B.degrees have been viewed as professional training, and not as exercises in liberal education with little or no occupational element. Canadian and American governments fund universities and law schools today on the assumption that law schools do professional education, and the legal profession in both countries makes the same assumption when it requires a law degree for entry into the profession. Opportunities to teach law as a liberal study unrelated to professional goals exist in the liberal arts colleges; there is no obvious reason why the law schools should abandon their professional role to replicate what legal studies programs now do adequately. In a sense, the multi-stream proposals of the Carrington and the Law and Learning Reports83 have been accepted in many North American universities, the professional course being offered by the law faculties and the academic stream finding its

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proper place in arts faculties and liberal arts colleges. It seems to me that legal doctrine, research in law, will remain as the central and most important element in any J.D. or LL.B. curriculum that I can foresee, so long as these degrees retain their professional character.84 If the role of the law school is to assist in preparing people to practice law, that practice will require a basic knowledge of the substantive and institutional legal map. The severe limits on student time and institutional resources in North American law schools pinch harder because most law schools seek (properly in my view) to offer a generalist first degree in law, touching most of the basic areas students may encounter in practice.85 Given these constraints, priorities must be set, and a knowledge of substantive law stands at the top of the list. My conservative view that the first law degree should be professional in character does not mean that law schools should relentlessly root out any effort to think or teach about law, or to consider the insights of other disciplines. William Twining has noted that the legal education we offer in law schools is determined by what we want to produce: Pericles or the plumber.86 Twining's conclusion is that a more sophisticated compromise is essential, largely because a purely Periclean or plumberish legal education is inconceivable. The issue is not whether legal education will be professional or scholarly; it will be both. The real issue is the balance to be struck between the two. If research about law is relevant to an understanding of the legal order and is a legitimate and necessary part of legal scholarship, then it follows for me that it is also a legitimate part of an educational program in law. This conclusion should hardly come as a surprise. There is a long history in North American law schools of "law and ..." courses, and their number has increased substantially in recent
years.87

But even more significantly, traditional law courses must draw from other disciplines; in the present intellectual climate, it would be hard not to do so. Teachers and students are reading more and more non-doctrinal material. "Hard law" courses seek the wisdom of empirical studies, economics, history, legal theory, and literature. Research about law raises important and interesting questions that are often missing or assumed away in narrowly doctrinal studies. Law students sometimes like to believe that their enrolment in law school means that they can put behind them all the difficult, challenging, and fuzzy questions raised by their liberal arts courses. Now they have started a study of "clear" rules and processes that leave only enough doubt to enable lawyers to make a good living. It is essential that any decent law program should disabuse students of this

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wrong and dangerous view, and one way to accomplish this goal is to remind students of the broad world of research and thinking about law that exists outside the pages of the law reports and the statutes. Law and Learning, the Canadian report on legal education referred to earlier, comments on the "apparent tension between the humane-intellectual goals of a law faculty and its professional-training activities." It argues that "the cultivated ability to stand at a distance from conventional wisdom, to view it critically" can be defended not only on its intrinsic merits but also on practical grounds. It enables lawyers to adapt to changes when they occur, to assist in bringing about such changes through law reform and other public activities, and to accomplish change themselves in the limited context of serving individual clients whose interests do not coincide with accepted solutions. From the student's perspective, having to deal with both the intellectual and the practical at once generates a dialectic which, if it does not necessarily improve the end-product, at least contributes to the student's tough-mindedness.88 Two points may be made about this passage. The first is that the dialectic that the writers of Law and Learning value so highly is bound to be created if students are asked to look at the way the law actually works in practice, the moral and political assumptions underlying the legal rules, the representation of the law in literature, and so on. The second point is that thinking critically about law does not pay off only in the reformist or exceptional cases referred to above. Most lawyers have encountered the situation of a client who has a technically arguable case that will nevertheless not succeed because of some non-legal consideration such as the justice of the claim, issues linked to the violence of the law,89 the usages of the officials and institutions that make up the system, and so on. There is more to the law than we can find in the cases or the textbooks. One should not underestimate the historic resistance of law faculties to interdisciplinary studies. Lawyers prize their professionalism and their hard-won craft, and they may even now resist or marginalize efforts to "water down" the study of pure law with material from other disciplines. This attitude of law faculties to the work of the rest of the university is sometimes reflected in physical details such as the structure and location of separate law buildings.90 There is considerable risk involved in law teachers and students trying

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to incorporate other disciplines in their own work. As I have argued throughout this paper, the risk is not only worth taking but is unavoidable in the present intellectual climate. 4. Literature's Place in Legal Education If law curricula should include research about law, a useful and exciting candidate is a law in literature course. Like other interdisciplinary courses, literature studies raise important and interesting questions unlikely to be considered in narrowly doctrinal courses. Fiction adds to our understanding of the legal order and is therefore a legitimate and useful part of any law degree. It challenges assumptions about rationality9l and the rule of law underlying much of substantive law teaching, and it emphasizes narrative, myth, and ritual as neglected but important aspects of the legal process.92 Paul Gewirtz notes an important connection between law and literature in his essay on Aeschylus' Oresteia: Literature makes its special claims upon us precisely because it nourishes the kinds of human understanding not achievable through reason alone but involving intuition and feeling as well. If, as the Oresteia suggests, law engages nonrational elements and requires the most comprehensive kinds of understanding, literature can play an important part in a lawyer's development.93 Fiction contains representations of the legal order markedly different from the representations in the casebooks and treatises. Lawyers need to be aware that most people see law very differently from the way that lawyers see their profession. Laypeople will talk about law and will make decisions which are incomprehensible to the lawyer who has lost sight of the broader culture and confined herself to orthodox legal materials. The good lawyer should cultivate her sensitivity to other discourses by reading a variety of texts, including fiction. Traditional legal education has been said to sharpen the mind by narrowing it.94One would hope that a literature course would exercise and strengthen the mind by broadening it. The lawyer needs to have a good imagination;95 literature can help her cultivate that ability. Northrop Frye made the point in a talk to the Ontario Branch of the Canadian Bar Association: What I am really saying, I suppose, is that all respect for the law is a product of the social imagination, and the social imagination is what literature directly If the law were to be completely addresses ....

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absorbed into the internal discipline of honest men, there would be no more law, and we should all be living in the Garden of Eden. We are not there, but in the meantime law still depends upon the imagination, and the fostering and cherishing of the imagination by the arts is mainly what makes your profession honorable, perhaps even what makes it possible.96 Underlying the arguments for literature reviewed above is the related but broader notion that literature in some way makes the reader a better and more civilized person by conditioning or improving her feelings, sympathies, and imagination.97 Fiction works this change because it reaches the emotions and intuition of the reader in ways that other forms of prose, especially reasoned argument, cannot do.98 Therefore ethical and political discussion couched in fictional form is said to be more effective and convincing than if put in non-fiction prose.99 Literature works with concrete images, metaphors and myths; law or philosophy does not, or at least pretends that it does not, do so. On this argument, what is important about literature is not only what it teaches but also how it teaches. John Bonsignore pursues this aspect of literature in an interesting discussion of his use of Kafka's parables in the legal studies program at the University of Massachusetts.100Parables are stories of moderate length. They "surprise the reader, arrest the regular 'processing' of information and, in so doing, irritate the psyche."101 Bonsignore refers to Thomas Oden's introduction to his anthology of Kierkegaard's parables, in which Oden gives five reasons why Kierkegaard used parables rather than philosophical discourse: parables pervert speculative philosophy, allow deep communication between the narrator and the reader, provoke self-discovery, cultivate the capability for self development, and are memorable and amenable to oral tradition. They are therefore capable of penetrating what Kierkegaard saw as the spiritual death of his readers in order to revitalize them, a task logic is incapable of achieving. Bonsignore argues that the teacher, including the law teacher, is faced with a similar spiritual malaise that she must overcome, and that parables (and by extension literature) can help.102 Even as I write these phrases, I know these aspirations seem out of place. They seem more properly extracurricular or too religious. That they seem out of place may say more about the ethical bankruptcy of modern education than about the worth of parables. It is true that as "inwarding"

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forces, parables are not conducive to group consensus. But if salvation is person by person and not wholesale then parables have a special place.103 It is difficult to deny the power of literature to move and discomfit the reader in a way that philosophy or law simply cannot do.104Can a lawyer ever be as unreflective about the harm that law can do after she has read Bleak House? Can she ever be as naively proud of her verbal skills after seeing those skills used by a master deceiver in The Fall? The argument here is that literature not only raises ethical questions but creates an opportunity for and a stimulus towards the moral education of the reader, in this case, the law student.105 However, Bonsignore appears to go further and to argue that teachers have a mandate to awaken their students to moral life and to lead them to salvation. Much as I value my work as a law professor, I doubt that my authority extends that far. The teacher of law (or of literature for that matter) does not have the knowledge or the calling to lead people to righteousness. Students are mature human beings with moral lives of their own. In my view, the most that a teacher can and should do is to note the ethical dimensions and dilemmas in her subject, whether it be literature or the Uniform Commercial Code, and to leave her students to work out their own solutions (and salvations).106 An objection sometimes advanced to literature or other perspectives courses in law school is that they should be left to students' pre-law education.107 My response is that such courses are about law and therefore properly part of a law curriculum. Indeed, such courses are likely to make sense only to students who have experienced some legal education. On one or two occasions, I have agreed that arts students with no legal training could enroll in my literature course offered in the law faculty. My experience has been that the arts students are well equipped to read literature but are ignorant about law, legal reasoning, and the values that pervade legal materials. As a result, they are not part of the law students' conversation; they just don't "get it." On the other hand, the law students are interested in Portia's arguments in The Merchant of Venice in a way that most arts students are not, because they have seen Portia's problem in some of their substantive courses. They have heard or read lawyers (and law teachers) who sound a lot like Conversation Kenge in Bleak House, and they may feel themselves a bit like poor Guppy, half-in and halfout of the legal world, using legal ideas in inappropriate situations (like the courtship of Esther), and generally feeling like a fish out of water. The Law and Literature course is about law; it makes sense in a way that it would not if offered in an arts faculty.

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To this point, I have discussed the question whether a separate literature course has a legitimate place in law school. Such a course may find a place in a "perspectives cluster" of courses, one of which the student must take.'08Alternatively, it may have to make its way in the brutal marketplace of the elective course selection process. I now want to consider the suggestion of some Law and Literature advocates that literary works should be taught pervasively, that is, as part of substantive law school courses.109 I have no doubt that fiction, carefully selected and married to the subject matter of a particular course, may work well as a pleasant relief and a thoughtful change of pace. Bonsignore's use of the Kafka parables seems particularly intriguing.10 As a general idea, however, the use of literature in substantive courses seems to me to be a nonstarter. Time is short and caselists are long; the addition of a work or works of fiction seems cruel and unusual punishment for the overworked student. Many works of literature are only remotely relevant to the details of a particular field of law, and their importance does not justify the time and effort necessary to read them carefully. Literature need not be introduced into substantive law courses to have an effect on them."' Reading fiction involves accepting and working with multiple meanings, ambiguity, metaphors, and myths. A law professor sensitive to these layers of meaning integrates them into all her teaching. For example, narrative skills that prove useful in the everyday act of legal writing also enrich the reading of all appellate opinions.112 The student can learn from a narratively attuned teacher that the litigator who gains control of a trial's storyline may well determine which version of the reality As Professor Gemmette says, literature makes becomes authoritative.113 us "better critical readers,""4 an ability that is absolutely essential to the practice of law. 5. 5. The Problem of Professionalism In our earlier discussion of legal scholarship, we noted a jurisdictional issue: who ought to do interdisciplinary legal scholarship, including research and teaching in law in literature. The issue is made more difficult for me for two reasons: (1) I accept as necessary and useful the existence of discrete disciplines in the world of scholarship, and (2) I think that research about law almost always involves true interdisciplinary work and is not simply a natural outgrowth of research in law. Both of these points need to be developed. The division of the scholarly universe and of the modern university into distinct disciplines, and the general rule that members of a discipline work only within that discipline, exist for good reasons.

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It is cheaper and more efficient for people trained in law to teach and to do research into law alone rather than to have to learn an entirely different discipline. Law students may rebel at the prospect of pharmacy professors attempting to teach the law of trusts; they may be equally concerned about law professors trying to explain literature, philosophy, or sociology. Apart from questions of economics and student reaction, legal research and teaching done by law professors in a law faculty or published in a legal periodical are more likely to be done well than the same research published or pronounced in, say, an English periodical or department. The pressure to do well is greater when one's readers or auditors know something of the discipline the scholar is expounding. The pressure is weaker when the law professor purports to discuss literature in a law classroom or in a legal periodical. The point may be put more positively by saying that the law professor teaching law in a law faculty is part of an informed conversation on the subject. The same is less likely to be true if she teaches law in the agriculture school, or literature in a law class. It is sometimes thought that the dangers of interdisciplinary research do not arise in fields like "legal history" or "legal theory" or "law in literature" because these studies are only small but manageable extensions of research in law. I reject this view. For example, legal theory before the publication of H.L.A. Hart's The Concept of Law was largely treated, at least in England and the Commonwealth, as a mere extension of doctrinal legal studies. Hart made that blinkered attitude impossible, because he demonstrated the extent to which philosophy that happened to deal with law was in all other respects philosophy in the fullest sense. Richard Weisberg's The Failure of the Wora'16 has accomplished the same fundamental change in Law and Literature studies. To write about legal philosophy, law in literature, or legal history is not to study a small, contained backwater that can be easily mastered by the lawyer without further education. Literature is literature, whether taught in an English department or in a law school, and it raises all the questions of knowledge, methodology, and experience present for the teacher in an English department.117 Suppose that a law professor wants to write an article or lecture on Bleak House. She will need to read as much of Dickens as possible, as well as works by his contemporaries and other writers who moved him. Some knowledge of Victorian history, general and cultural as well as legal, will be essential. Dickens was influenced by the currents of thought in the Victorian period; some knowledge of Carlyle, for example, would be invaluable. She will have to make at least a preliminary investigation of the enormous critical literature

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around Bleak House and Dickens' fiction as a whole. She will not want to be naive about the problem of interpretation; some reading into literary theory will be necessary. All of this before the bemused scholar is able to return to her original interest: the disordered legal structure in the novel. The prospect is daunting. The floodgates are open. Given the argument that (1) the division of the world of scholarship into discrete disciplines is useful and that (2) most research about law involves genuinely interdisciplinary work, the problem of staffing a law in literature course or research project becomes a difficult one. Literaturescholars have taught successfully in law schools, often in a team teaching situation with a member of the law faculty. Some distinguished Law and Literature scholars have been educated and have taught in literature as well as law. A person with this mix of education is the perfect candidate for a literature course in the J.D. or LL.B. curriculum. Even without formal education in literature, a law teacher who is willing to master another discipline and to invest considerable time and energy in the task can prepare herself to teach the subject. The amount of work involved should not be underestimated.118 On the other hand, the would-be literature teacher should not be so overawed by the body of literary criticism that she is prevented from making any attempt to master it. In Law and Literature: A Misunderstood Relation, Posner says that "in general, the lawyer's training and experience do not equip him to read imaginative literature -- even that nominally 'about' law --with greater insight than specialists in literary criticism, or indeed ordinary cultivated readers."119In part, I disagree. Law teachers and students have several qualities which make them potentially interested and effective readers of fiction about the legal order. First, legal readers usually have an interest in and a sympathy for the aims of and the values underlying the legal process; they tend to respect the law (even if sometimes grudgingly) from the inside. For example, law professors and students, unlike many other readers, will be critical of silly or ignorant generalizations about law. Secondly, lawyers spend much of their time learning to read carefully and precisely, looking to the actual words used and considering the nuances of meaning of those words. They read cases with a keen eye to what was actually said or done, not what the parties contended had occurred. They learn to sort out relevant and irrelevant material and to get the "facts" straight. These are useful, indeed essential, qualities of a competent reader and critic. The good law teacher or student is as prepared to look at the logic of a novel's structure as she is of a judgment or a statute. She

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may not have the technical language of literary criticism or the broad reading experience of a literature student, but she has the basic skills and ability. However well prepared she may be, the legal researcher or teacher doing interdisciplinary work may want to note Melville's veiled criticism of Captain Vere in Billy Budd. Vere is described as honest and direct but as unmindful in his discourse of the circumstances and education of his "bluff company." Melville comments: But considerateness in such matters is not easy to natures constituted like Captain Vere's. Their honesty prescribes to them directness, sometimes farreaching like that of a migratory fowl that in its flight never heeds when it crosses a frontier.120 Vere's error, which reverberates through the novella, lies not in his crossing the frontier but in his doing so unawares or recklessly, without "heeding" the fact. The legal researcher's responsibility is to "heed" the crossing into another discipline, and to prepare herself to operate confidently and knowledgeably in that foreign land.121

C. Law and LiteratureTheory and James Boyd White

The Law and Literature movement is sometimes criticized because it has not yet produced a theory of general application to legal studies.122 Unlike Law and Economics, C.L.S. or feminist legal theory, it is said that Law and Literature has no central set of ideas or insights applicable to substantive courses. Before accepting the accuracy of this criticism, it is necessary to consider the work of James Boyd White. While White more concentrates on the teaching of law than of literature, he has assimilated the two in a fashion important for any attempt to justify the teaching of literature in law faculties. His work is entitled to a more extended discussion than I have space for here,123 but some comment is necessary on this pioneering thinker. Despite White's aversion to conceptual language, I find it useful to begin by asking what he means by law. In his preface to the 1985 edition of The Legal Imagination, White notes that the dominant approach to law has been positivistic and rule-focused, with quasiscientific overtones developed in opposition to earlier natural law notions. A second strain in North American legal thought has rejected the "law as rules" view as simplistic, and has instead sought to look through the tissue of laws to what "really happens" in the world, what officials actually do.124 According to White, however, law should not be seen as

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"merely a system of rules" or a series of observations of actual official conduct. Instead, law is more usefully imagined as a language or culture composed of habits of mind and expectations. "It is an enormously rich and complex system of thought and expression, of social definitions and practices, which can be learned and mastered, modified or preserved, by the individual mind."125 White is anxious to emphasize that law is a practice, an activity, rather than just a course of study. In When Words Lose Their Meaning, White defines law as "a culture of argument ... a way of making the world with a life and a value of its own." It is a conversation intended to "give to the world it creates the kind of intelligibility that results from the simultaneous recognition of contrasting positions."126 Good judge-made law is "a self-reflective, self-corrective body of discourse that will bind its audience together by engaging them in a common language and a common set of Law practices. It is a claim to constitute a community and a culture."127 is best understood as "a social and cultural activity" and also as "a rhetorical and literary activity."128 While suitably deferential to this inherited language, the participant in the extended conversation is continually acting to change the structure even as she uses it. Law works by a process of argument that places one version of events against another and creates a tension between them (and between the endings appropriate to each); in doing so it makes our choice of language conscious rather than habitual and creates a moment at which controlled change of language and culture becomes possible. The rhetorical structure of the law makes a place for each party and defines a relation between them by establishing the ways they may talk; in doing this it suggests a conception of justice as equality, for a person may find himself in any of these roles.129 In Heracles' Bow, White describes law as "constitutive rhetoric," that is, "the central art by which culture and community are established, maintained, and transformed."130Because law is continually being criticized and remade, White sees it as "structurally tentative, a mode of transformation as well as preservation."131In another useful image from his most recent book, White pictures law as involving "the translation of authoritative texts into the present moment" where the texts necessarily have a somewhat different meaning.132 The process of reading texts is central to White's conception of literary and legal culture.133 He sees the activity of reading as a

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matter of learning from and responding to a text, as a conversation taking place between the writer and her audience. The reader of any text is concerned to decide what kind of relationship the writer has established with the language and with the reader.134"Whenever you speak, you define a character for yourself and for at least one other -- your audience -- and make a community at least between the two of you; and you do this in a language that is of necessity provided to you by others and modified in your use of it."'35 A text defines an ideal reader whom the actual reader is to become. If the text is a racist joke, for example, one may invited decline the invitation. In the case of Pride and Prejudice, the reader may struggle to understand the novel and may then accept its implications, being benefitted in the process.136 In this sense, all reading has an ethical and political dimension.137 On the question of interpretation, White is not prepared to assume that the reader has complete freedom to mold texts as she pleases. It is possible and right to establish confidently shared, objective understandings of what texts mean.138On the other hand, texts are not reducible to a message that can be extracted and the empty husk thrown away. The meaning resides in the poem and cannot be restated without loss.'39 In his most recent book, White appears to go further and to see both translations and interpretations as "not to be thought of as replicating the originals or conveying their 'content' but as gestures themselves; as if the first expression were a piece of a dance, an invitation to make a dance together, and as if our responses to it were answering movements."'40 As a way to read literature, White's approach has considerable appeal. But, as is well known, White goes further and assimilates law to literature on the ground that they are both roughly similar activities calling for much the same approach to reading.'14 Law should be looked at "not as a set of rules or institutions or structures ... nor as a part of our bureaucracy or government ... but as a kind of rhetorical and literary activity."'42The life of the law is thus a life of art, the goal of which is "the integration into meaningful wholes of the largest and most contradictory truths ... all under the ruling requirement that what we say make sense."'43 Such a life is inevitably linked to an existing culture, but just as inevitably is driven to change, often in response to ethical considerations.'44 Treating law as a branch of the humanities means that law is seen as an open system, learning from but also transforming the past,145acknowledging inconsistency and tension, and affirming "the equality of all legal actors, and by implication the radical equality of all people."'46 The ideal may be difficult to achieve. White expresses a strong sense of desperation at the end of his latest book:

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But as things now are, when bureaucratic and theoretical modes of thought have so nearly capturedlaw, its future is in doubt: Shall the law be a force for multivocality,for the acknowledgmentof the other -- a species of translation workingby an art that simultaneouslyassertsthe self, and its language, reduced to an instrument of bureaucratic and theoreticalpower?147 White's assimilation of law to literature has profound implications for legal education. Law students should learn to read cases as a way of learning about their world, by living over in their imaginations the experience of the parties and of the lawyers, by All testing the argumentsmade againstother possibilities and so on.148 of this is familiarto any law teacher, at least as a statement of ideals. But White also argues that a legal opinion, like a poem, is not simply read for its idea (or its holding). In both cases [the poem and the opinion] the interestingquestion is not what the main idea is but how it is given meaning by the text, and given by the oppositions that are its meaning in particular life. It is not the restatablemessage that is the most important meaning of the poem or the judicial opinion, but the reader's experience of the life of the text itself.149 Whathe advocatesis a legal aesthetics in place of the pseudo-science he finds in traditional legal education and other forms of social science, especially economics.150 White applies to legal material the "ideal reader" notion, discussed above, creating in the process a formidable task for the conscientious law student. The reader of a case should try to understandhow an ideal readerwould fit the opinion with the present cultural circumstances. Checking the case against the rest of the culture "contributesto a process of collective or cultural education that is in structureanalogous to that experienced by the single reader text.""'5 of a literary In a lecture to first year law students, White describes legal education as both professional and liberal. It is professional in the sense that students are required to take responsibility for their own education and for the improvement of their own minds. The education is liberal in that its ultimateconcern is the development of students' own capacities, sensitivities, and styles, the fashioning of character for themselves out of their experiences.152
and respects what is outside it -- or shall it be

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In the same lecture,Whitecompareslearninglaw to learning a language. One must of course learn the rules of grammarand the meaning of terms, but to know those things is not to know how to speak the language.Thatknowledge comes only with use. The real difficulties and pleasures lie, not in knowing the rules of Frenchor of law, but in knowing how to speak the language, how to make sense of it, how to use it to serve your purposes in life.153
The Legal Imagination is an extended effort to teach law students how

to speak and to control the legal language, and how to retain their own personalities in the process. The emphasis is on "learninghow to do," engaging in the activity of "making language, character,and community, making a culture and a world." Clearly,legal education in rules and forms."154 for White is not a mere "training
In Heracles' Bow, White talks of law as constitutive rhetoric

and, in a remarkable paragraph,summarizes the impact that this notion should have on legal education. The paragraph deserves quotationas a good summaryof his views on what legal education can and should be. Law might come to be seen as something that lawyersthemselves make all the time, whenever they act as lawyers, not as something that is made by a political sovereign. From this point of view the law can be seen as the culture thatwe remakewhenever we speak as lawyers. To look at law this way is to direct one's attention to places that it perhaps normally does not rest: to the way in which we create new meanings, new possibilities for meaning, in what we say; to the way our literature can be regarded as a literature of value and motive and sentiment; to the way in which our enterprise is a radicallyethical one, by which self and community are perpetually reconstituted;and to the limits that our natureor our culture, our circumstancesand our imagination, place on our powers to remake our languagesand communities in new forms.155 There is much to like in White's humanistic account of law and legal education. The emphasis on law as a discursive and, to that extent, a debatable activityis useful as a correctiveto the essentially passive characterof much legal education today.Whetherthe teacher

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lectures, or conducts a Socraticgame show for the amusement of the class, the educational process is usually not what one might describe as a conversation, an act of equality among the participants. White's sense of law as something to be discussed, and as something to be remade by conversation,gives students a stake in (and some control There are, over) their own education, a wholly desirable ideal.156 however, several less satisfying aspects of his legal theory and his account of legal education.157 White has been much criticized for overestimating the similaritiesof law and literatureand for ignoringimportantdifferences between them.158There has been less comment about White's unhappinesswith what he calls conceptual, as contrastedwith literary, language, and his argumentthat legal language falls into the second These two notions, that law and literatureare alike, and category.'59 that legal language is literary rather than conceptual, seem questionable to me, and they lead White to doubtful conclusions about the nature of law and legal education. One result is that he persistently undervaluesthe importanceof the rules and concepts of law that teachers have alwaysviewed as their stock in trade, and that generations of law students have sought to glean fromthe cases or, on occasion, from commercial notes and summaries.Rules do seem to exist and to decide cases in most areas of law, and without the high cultural and legal debate that White apparentlybelieves is typical of law talk in the courtsand classroomsof NorthAmerica.160 White's idea that cases can be read like novels blurs important differences between the two forms of expression. For example, a judge writing an opinion is not usually tryingto integrate about truths"'6' into her judgment"the largestand most contradictory the arguments raised in the litigation. Her goal is almost always to decide the precise issue before the court and to leave the multitudeof other relevant problems for another day. While novels cannot profitably be read for the rule or the moral, many, probably most, opinions can and should be read in exactly that way. Such cases are reducible to a proposition in a way that novels are not. The vast majority of law students are taught to read case law reductively, stripping away the concrete details and the unnecessaryreasoning to and writersmay expatiateon the find the kernel of the case. Lecturers v. Dudley and Stephens'63 but, at the end of the day, the holding itself needs to be determinedand deployed. The popularityof canned notes and commercial summaries proffers at least a marketsense of what law studentsbelieve they need to know.164 scholarswho seek to reduce Unlike some Lawand Literature works of literatureto political or philosophical propositions, White
or Regina facts and policies lying behind Palsgraf v. Long Island R.R.162

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wants to read cases with an expansiveness and complexity suitable to a long Victorian novel. Both are applying inappropriate criteria to the texts they are considering.165 White is most comfortable dealing with the judicial opinion, but he does occasionally address himself to other forms of legal expression. In Heracles' Bow, White urges us to view statutes, "not merely as a set of orders or directions or commands, but also as establishing a set of topics, a set of terms in which those topics can be discussed, and some general directions as to the process of thought and argument by which the statute is to be applied."166 This view seems to overestimate the conversation-starter capacity of statutes and regulations, most of which more closely resemble a communique issued after the discussion has been concluded. On the other hand, White's account does ring true for constitutional interpretation,'67 perhaps especially in Canada, which is engaged in the exciting activity of giving meaning and establishing limits to its new Charter of Rights and Freedoms. In part because of White's downplaying of rules and concepts, his view of legal education becomes distorted and unrealistic. The amount of careful reading White expects law students to do seems optimistic in my experience. There is simply not time to read every case like a poem, even if it were appropriate to do so. White rightly emphasizes the need for legal education to involve more participation on the part of students, but the activities White has in mind are remedial reading and writing courses, which, at least as described in The Legal Imagination, may not be appropriate to law school. The second questionable aspect of White's work is his apparent belief that most, if not all, human disputes can be resolved in the polite, almost bookish legal conversation that White admires. He assumes that the courts of North America provide an intellectually level playing field in which all sides can and will be heard respectfully and in which the courts will perform the Herculean (or Heraclean?) task of working out a solution that gives equal credit to all the arguments and to the entire legal tradition. White must know that some courts are biased, many issues are not open to judicial debate and decision, and major social factors of class, race, and sex distort the discourse. Many issues remain to be settled on the rocky and uneven playing field of politics or the marketplace, and not in a genteel common-room atmosphere.'68 Law has its limits, even in a democratic society, but White appears to underestimate or ignore them. A related problem is that much of White's writing is so abstract and self-contained that one is unclear where he stands on concrete moral, political, and legal issues. With Hart and Dworkin, the

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discussion is also abstract, but its implications for specific problems are implied and often expressed. White has expressed relatively few political judgments. He dislikes the law and economics movement, he admires the American system of litigation, he comments critically on the search and seizure cases interpreting the fourth and fourteenth amendments to the United States Constitution,169and he thinks that criminal law is related to the common sense activity of blaming the accused. White speaks eloquently for a radical egalitarianism which, he says, arises out of his approach to law, but he gives little or no substance to the concept of equality.170 If there is any thread connecting these ideas, it may be that White is essentially satisfied with American legal process and optimistic about the present political arrangements. In this as in other respects, White differs from the more radical Law and Literaturescholars like West, Koffler, and Weisberg. A more general problem with White flows from his aversion to situating his account of law in relation to the general body of legal theory. For example, I want to know whether White sees any merit in Hart's account of law as a system of norms. What does White think about Dworkin? White not only does not say;171he goes further and criticizes the activity of theorizing, apparently because it interferes with more useful and interesting legal conversations. One might respond that legal theory is also a conversation, and one which White is engaged in, whether he wants to or not. It is a weakness in White's writing that he does not make it clear why we should prefer his view to that of Hart, Dworkin, or Jerome Frank. White is also disinterested in situating his discussion in the world of literary theory.172 From time to time, he has expressed a guarded sympathy for versions of reader response theory and deconstructionism, and a more enthusiastic acceptance of the influence of Wayne Booth,173 but he has not developed any thoroughgoing assessment of the place of his own work in the context of literary theory as a whole. In his long footnote on the "intellectual origins and present context" of When Words Lose Their Meaning,174he does express a sympathy for the New Critics that raises interesting questions about his approach to legal and literary education. Like Professor White, I studied literature at a time when New Critics such as Cleanth Brooks and W.K. Wimsatt were popular and influential. They believed in the poem as an autonomous artifact in the sense that it could and should be split off from the biography of the writer and to some extent from the historical and social background of the work.175The poem could be studied as an entity, and it would yield up its meaning, at least to a professional teacher or critic. The emotional or intuitive reactions of the untutored reader were not significant. Emphasis was placed on the craft of careful

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reading, mastery of which gave to literature teachers a professional identity and a specialized skill of their own. The New Critics projected an art of criticism that most students would never be able to achieve; Frank Lentricchia talks of "too many generations of students [who] came out of New-Critical classrooms convinced that their teachers possessed knowledge of the 'hidden' meanings of texts to which there was no systematic and disciplined access."176The New Criticism lost much of its power and influence in the late 1960s and early 1970s under the influence of history-based studies, structuralism, psychology, mythic criticism (especially by Northrop Frye), deconstruction, Marxism, and feminism. However, James Boyd White has retained some of the flavor of his mentors, and it affects his understanding of literature and law. White reads novels and plays without any extended interest in their historical and cultural context. Thucydides is regarded as engaging in the same conversation as Jonathan Swift, Jane Austen, and Chief Justice Marshall in McCulloch v. Maryland.'77White's reading of law is similar in its neglect of the context of the cases or statutes under consideration. Nor are we concerned with the actual lives of the litigants, lawyers, or judges. "Thinking like a lawyer" is given a very thin definition or content. Even where political issues are addressed, the tone is peremptory. Law and Economics is not so much answered as dismissed. 78 White reads case law as a continuation of the American tradition of the case system, involving a close reading of and a dialogue with the text. What White has done is to develop a theory underpinning the case system very much in the spirit of his New Critical reading of literary works. His approach to legal education, with the emphasis on painstakingly careful reading of cases, seems impractical and unrealistic in the modern law school where the emphasis is more on "covering the course" than reading anything in depth. If we assume that the case system is gone, replaced by the lecture or by other forms of educational techniques, then White is articulating a system of legal education that does not and cannot exist any more, if it ever did. There are similarities in White's approach to the reading and teaching of both law and literature.'79We are first struck by his mastery of the craft, his analytical ability, and breadth of knowledge. At the same time, there is the sense that the teacher, in this case White himself, occupies a privileged position by virtue of his knowledge and skill, and that the student-reader is correspondingly seen as a recipient of knowledge, and certainly not in control of her own readingeducation. Texts have meanings, and the wise oracular professorwriter can and will discover them and relay them to the student. We

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earlier noted the potential for the democratization of the reading and learning process in White's theory. His practice tends in the opposite direction. His books are performances of great skill and knowledge, but they do not encourage the student-reader to try her hand at the
exercise.180

White seems to me to be engaged in at least two separate projects. The first is to develop an account of legal discourse, an exercise in law as literature. This account is a general theory of the sort articulated by the Law and Economics school, C.L.S., and feminism, although its implications in concrete situations are less obvious than those of its competitors. White's second project is to read several literary texts, linked loosely together by such themes as the alteration in the meaning of words used by societies in the process of change.181 It is important to note that White's two projects can be separated. They exist independently. White's theory of law as literature is not a necessary underpinning of the law in literature project or vice versa.182 Literature studies in law schools are not validated by White's work, and can and do exist separate from it. Even in his books, the relationship between literature and law is tenuous, although White argues strenuously (and somewhat defensively) that the two activities are necessarily related.'83 If my analysis is right, then White's discussion of law as literature is peripheral to the actual reading of literary works in law schools, an activity he seems to endorse but fails to discuss directly.

D. Three Pitfalls in Literature Studies

We noted at the beginning of this paper that Law and Literature courses are now taught in a majority of American (and some Canadian) law schools. Research is published regularly in legal and literary periodicals, as well as the two journals that devote all or a substantial part of their space to Law and Literature.184 The future of literature studies would appear to be assured as a lively and challenging addition to the world of legal scholarship. While I admire and enjoy the work of the Law and Literature movement, there are pitfalls in this kind of interdisciplinary work. My intention is not to damn with faint praise, as Posner has done in his recent book.'85 Instead, as a friend and supporter of law in literature studies, I wish to comment on three disturbing trends in the recent scholarship. They are the overuse of the Great Books model, the vice of Procrusteanism, and the passion for theory. 1. The Overuse of the Great Books Model Courses on law in literature, including mine, tend to be Great

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Books courses in the sense that they bring together works drawn from widely differing periods and writers on the assumption that the books in some way comment on each other or on the legal order. The texts are decontextualized; they are treated as autonomous units of meaning more or less free of their authors, periods, and genres, but engaged in the same conversation about law. A similar Great Books approach typifies some of the writing produced by the Law and Literature movement, such as The Failure of the Worda86 and When Words Lose Their Meaning.87 There are obvious dangers in eclectic courses and books of this sort. For example, looking at Bleak House without putting it in the context of the whole of Dickens' writing, the fiction of other Victorian novelists, and the history and culture of the period runs the risk of a superficial misreading of the novel. One wants to place White's accounts of Greek and 18th-century English literature in the context of the enormous critical literature on those periods and writers. One reason for doing so is to see if Thucydides is really engaged in the same conversation as Burke, or whether instead their basic ideas and values are so different that comparisons are difficult and treacherous. The problem in any Great Books course, or any treatise built on the same principle, is that it may not spell out, or value highly enough, the differences among periods of history, writers, or even different books
by the same writer.188

When critics or teachers concentrate their attention on the legal aspects of works of fiction, the effect may be to limit and distort their interpretation of the works, and to fail to read them as a whole.189 An obvious example is any account of The Merchant of Venice that stops at the end of the trial scene without reference to Act V or to the non-legal subplots of the play.190Bleak House is a book about law and about the powerlessness of Chancery suitors, but it is also about other forms of powerlessness, such as Esther's situation as a dependent gentlewoman. 2. The Vice of Procrusteanism Another questionable aspect of some Law and Literature writing is the tendency to use fiction as authority for various ethical and political propositions. One might call this approach the vice of Procrusteanism (after the well-known ancient Greek scholar of the same name). Some of the writing by people associated with the Law and Literature movement seems to be motivated by the regrettable desire to cram literary works into a theoretical or political framework, thus cutting down the complexity and richness of the works themselves.19' For example, Richard Weisberg's The Failure of the Word and Richard Posner's Law and Literature: A Misunderstood

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Relation both advance elaborate and controversial historical-cultural theories needing more extensive defence than the authors give. These theories sometime seem to impede a full and sensitive reading of the literary texts themselves. Richard Weisberg seems to express this approach to literature in his response to Robert Weisberg's critique of the Law and Literature movement. In the course of his defense, Richard Weisberg says that "our task, of course, is to choose the texts that proffer (often only 92He covertly) the subversive voice we find representative of the age."1 E.L. and on to explain why Flaubert, Dostoevski, Melville, Camus, goes Doctorow are preferable to Dickens,193Balzac and Louis Auchincloss. Weisberg's approach, while often exciting and successful, is of diminishing literature in at least two ways. First, he limits capable and sometimes distorts the writers he chooses to include as representative of the "subversive approach" of the age; his odd and much criticized treatment of Billy Budd is the best example.194 Secondly, he is too quick to discard entirely other writers who are more subtle and worthy of consideration than his arbitraryframework will permit him to accept. If the test for inclusion in Weisberg's canon is "narrative ambiguity and non-omniscience," and the production of "anti-rationalistic and word-skeptical themes", I have great difficulty in understanding the exclusion of books like Bleak House or Ursule Miroue't. Speaking more generally, Law and Literature scholars and teachers should think about including in their books and reading lists more gay, women,195 and minority writers,196 as well as hitherto neglected writers from the established canon, such as Anthony Trollope.197 The aim should be to include any work of fiction that treats the legal order in an interesting way. James Boyd White is also selective about the literature he chooses to discuss. His favorite authors are drawn almost entirely from the Age of Reason or from Greek literature, perhaps because they can be read as supportive of the civilized, rational world White prefers to contemplate.198 If he used more works drawn from the Renaissance, the Romantic period, or from modern literature, he might reach different conclusions about the possibility of the civilized conversation he advocates. The underlying issue here is whether literature can ever be used as a way to illustrate or prove theoretical propositions. Some fiction undoubtedly does describe situations that have philosophical overtones. The Merchant of Venice and Measure for Measure expose the difficulties, inherent in any higher law theory, in making that law operate in the human world. Some of Dickens' novels, such as Oliver Twist and Hard Times, can be profitably read as critiques of Utilitarianism.199The Caucasian Chalk Circle assumes a Marxist theory

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of law-making and administering, although refracted through Brecht's imagination. Theodore Dreiser's An American Tragedy comments on human and cosmic injustice in a world in which people like Clyde have little or no control over their lives.200 Examples may be multiplied. In general, however, it seems to me that literature is an extremely roundabout way to get at philosophical questions. A novel, if it is any good, does not take as its central object the development of a theoretical problem. Otherwise, as in the novels of Ayn Rand, it is often bad literature.201 There is a danger in overemphasizing the philosophical concerns, not to speak of the expertise, of writers of fiction. Theoretical insights in literature are usually superficial and incomplete. A good example is Dreiser's confused effort in his fiction and non-fiction to come to terms with the problem of free will.202The student of theory would be better advised to read the great philosophical texts directly rather than at second or third hand.203 An example to the contrary may be the work of Robin West. In a recent series of articles, West has taken on a wide variety of adversaries, including Richard Posner, Owen Fiss, Ronald Dworkin, Stanley Fish, and James Boyd White.204 In each case, she has used works of literature by, for example, Franz Kafka, Mark Twain, John Barth, and Toni Morrison, which are analyzed and found to disagree with or to undermine the theorists who are the object of her attack. Without doubt, here is literature used to debate questions of legal and political theory. My intention is not to disagree with West's political and theoretical posture or with her readings of the literary works she has examined.205 Instead I would like to express my misgivings as to her use of fiction in the service of theory. The impression left by West's articles is that the literature is not being read for itself but is being used for the extraneous purpose of establishing an argument. For example, Kafka's fictional works are said to "dramatize a dark underside of Posner's argument that the fact of consent morally legitimates our legal, social, and personal worlds .... Kafka'sfictional world thus provides a dramatic enactment of Posner's normative claim .... In the internal world of Kafka's fiction, the experience of the Posnerian, rational, wealth-maximizing exchange is consistently depicted as the nightmare that follows from doing what one has consented to do."206Kafka appears to have foreseen and condemned the Chicago School's enthusiasm for consent as a defense of wealth maximization. Similar comments may be made about the other fiction that West deploys in her articles. Little use is made of the enormous critical literature around Kafka and the other writers, nor are the books read

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in their historical, literary, and cultural context in an attempt to give them a defensible and persuasive interpretation. Instead they are cited, rather like cases in a factum, to establish a point or to uncover the errors of West's particular adversary. Even if I concede that the books used by West can bear the she reading gives them,207this begs the question what sort of authority writers can have on theoretical or political questions. The fact that Kafka is a great writer (as West and Posner agree) does not necessarily mean that he knew anything about legal theory, or that his books contain pronouncements on that or any other subject. Great writers have espoused political views of varying degrees of eccentricity, viciousness, or plain lunacy; other equally great writers have so skillfully hidden their true opinions that they cannot be cited for any proposition at all. There may be good reasons for arguing that The Merchant of Venice is not anti-Semitic, but the fact that Shakespeare is "a great writer" is not one of them. Ezra Pound was a great poet, despite his Fascism. And so on. I do not doubt that literature forms part of our culture, including our history of ideas, and that it does raise ethical issues. As Terry Eagleton208 and others have shown, fiction grows out of and reflects the politics of the time in which it was created. To this extent, I agree with West. My criticism is with the use of novels and plays as ammunition to be expended in theoretical struggles. If the goal is to refute Posner or to correct White, the better course is to do so in plain prose, as West can do masterfully, and to abandon the reduction of works of literature to the status of pawns in a political chess game. 3. The Passion for Theory In my earlier discussion of James Boyd White, I assumed without argument that Law and Literature studies should have one underlying theory. I now want to consider that assumption critically. If all that is meant is that literature studies should acquire a sophistication as to philosophical issues concerning literary criticism, one could hardly quarrel. For example, current Law and Literature scholars seem to favor ethical critics like Gardner209 and Booth,210and to reject reader-response theory;211 both assumptions should be examined. However, if the idea is that the movement can or should generate some unique, overarching, theoretical approach to either law or literature, then I have my doubts. On the contrary, I would argue that what Law and Literaturestudies needs now is not more theory, but more detailed, descriptive, contextual research into the background of specific works of literature, and more close reading of the literature itself.212 What Law and Literaturewriting sometimes lacks is a full and

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thoughtful reference to the vast body of literary criticism that exists in the literary periodicals and books, and that is clearly germane to any comment on literature. Writing about Shakespeare, Dickens, or Dreiser without making use of the body of critical thought on those writers may lead to naive, superficial, or eccentric judgments that could be avoided by reading and using the criticism. Interdisciplinary work has great potential, but it has to be carried out professionally and with due recognition of its dangers. One way to ensure that our writing on literature is of high quality is to publish it in the appropriate literary journals, or at least to have it read and criticized by teachers from the literature department.213 Another useful project would be a bibliography of materials on law in literature drawn from literary periodicals, although the difficulties in defining what is and is not relevant should not be underestimated.214

E. Conclusion
The criticisms advanced in the last section are minor and debatable. The great strength of literature studies in the law school is to remind legal researchers and students of the insights to be gained from books like The Merchant of Venice, An American Tragedy, Billy Budd, or The Fall. Fiction is both fascinating and frightening because it creates alternative realities, asks hard questions about fact and evidence, and generally subverts the seeming orderliness of the law. Literature studies is the most radical of the "law and" courses because it brings the artists into the law school, always a dangerous, if exciting, activity.215 In an early article, John Bonsignore quotes a passage from Camus' Carnets that summarizes our interest in literature and law: The attraction that certain minds feel for the law and the absurdity of its workings. Gide, Dostoyevski, Balzac, Kafka, Malraux, Melville, etc. Try to find out
why.216

Bonsignore goes on to counsel Law and Literature teachers that "rather than reducing large works to their least possible impact, the works of literature should be consulted for their greatest possible reach."217The future of literature studies in the law faculty lies in accepting Bonsignore's advice and in trying to answer a version of Camus' question: why do we as lawyers continue to be attracted by and to work within the absurd science of the law.

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1. During the academic year 1989-90, the University of Alberta released me from teaching responsibilities through the grant of a McCalla Research Professorship. This release time, together with a research grant from the Faculty of Law, made this paper possible. I also want to thank Murray Baumgarten, John Jordan, David Papke, Wesley Pue, Richard Weisberg, and Robert Weisberg, all of whom read and commented on an earlier version of this paper. 2. James B. White, The Legal Imagination: Studies in the Nature of Legal Thought and Expression (Boston and Toronto: Little, Brown, 1973); republished in 1985 as The Legal Imagination: Abridged Edition (Chicago and London: U. of Chicago Press, 1985). Subsequent references are to the abridged edition. 3. For the history of the Law and Literature movement, see David R. Papke, "Law and Literature:A Comment and Bibliography of Secondary Works," 73 L. Libr.J. 421 (1980); David Ray Papke, "Neo-Marxists, Nietzscheans, and New Critics: The Voices of the Contemporary Law and Literature Discourse," 1985 Am. B. Found. Res. J. 883. For a survey of Law and Literature courses taught at American law schools, see Elizabeth Villiers Gemmette, "Law and Literature: An Unnecessarily Suspect Class in the Liberal Arts Component of the Law School Curriculum," 23 Val. U.L.Rev. 267 (1989). 4. Daniel Tritter, "Preface to the Symposium: A LustyVoice," 1 CSLL iv (1989). 5. Gemmette, supra note 3, pp. 303-40. 6. The subject matter of these courses is usually drawn from high culture rather than pop culture. For a symposium on the latter, see "Symposium: Popular Legal Culture," 98 Yale LJ. 1545 (1989). Lawrence M. Friedman (at 1579 of the symposium) defines pop culture, in the sense of books, as those works of imagination whose intended audience is the public as a whole, whereas high culture is intended for the intellectuals or the mandarins. See also RichardA. Posner at 1653 ff. 7. See, The Legal Imagination, supra note 2; When Words Lose Their Meaning: Constitutions and Reconstitutions of Language, Character, and Community (Chicago and London: U. of Chicago Press, 1984); Heracles' Bow: Essays on the Rhetoric and Poetics of the Law (Madison and London: U. of Wisconsin Press, 1985); "Law and Literature: 'No Manifesto,"' 39 Mercer L. Rev. 739 (1988); Justice as Translation: An Essay in Cultural and Legal Criticism (Chicago and London: U. of Chicago Press, 1990). 8. "Law, Literature and Cardozo'sJudicial Poetics," 1 Cardozo L. Rev. 283 (1979); "How Judges Speak: Some Lessons on Adjudication in Billy Budd, Sailorwith an Application to Justice Rehnquist," 57 N.Y.U. L. Rev. 1 (1982); "Text into Theory: A LiteraryApproach to the Constitution," 20 Ga. L. Rev. 939 (1986); "Law in and as Literature: Self-Generated Meaning in the 'Procedural Novel,"' in C. Koelb and S. Noakes, eds., The Comparative Perspective on Literature: Approaches to Theory and Practice (Ithaca and London: Cornell U. Press, 1988), p. 224. 9. E.g., Robin L. West, "Adjudication is Not Interpretation: Some Reservations about the Law-as-Literature Movement," 57 Tenn. L. Rev. 203 (1987). 10. It is not intended to look at graduate law degrees, which raise different considerations, but only at the first law degree which is taken by all would-be lawyers and which is the only law degree taken by most of them. Nor am I concerned with non-professional degrees in law such as the program offered by Carleton University in Ottawa, Canada. 11. Some current teachers of Law and Literature, like Richard Weisberg, have studied and taught literature at the university level before emigrating to law.

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12. Although see John Jay Osborn, Jr., "UFOs in the Law School Curriculum: The Popularity and Value of Law and LiteratureCourses," 14 Legal Stud. F. 53 (1990). 13. Richard A. Posner, Law and Literature: A Misunderstood Relation (Cambridge and London: Harvard U. Press, 1988); Robert Weisberg, "The Law-LiteratureEnterprise," 1 YaleJ. of Law and the Humanities 1 (1988). 14. Richard A. Posner, "The Decline of Law as an Autonomous Discipline: 1962 - 1987," 100 Harv. L. Rev. 761, 762 (1987). 15. Id. at 763. 16. Francis A. Allen, "The Causes of Popular Dissatisfaction with Legal Education," in Francis A. Allen, Law, Intellect, and Education (Ann Arbor: U. of Michigan Press, 1979), pp. 51, 57. For a similar Canadian view of legal scholarship, see S.M. Waddams, "Research and Scholarship," in Mr.Justice Roy J. Matas and Deborah J. McCawley, eds., Legal Education in Canada (Montreal: Federation of Law Societies of Canada, 1987), p. 179. Allen probably exaggerates the uniformity of university legal education over the past eight hundred years, at least in England and Canada. Cf. W. Wesley Pue, "Guild Training vs. Professional Education: The Committee on Legal Education and the Law Department of Queen's College, Birmingham in the 1850s," 33 Am. J. Legal Hist. 241 (1989); David Howes, "The Origin and Demise of Legal Education in Quebec (or Hercules Bound)," 38 U.N.B.L.J. 127 (1989). 17. Robert S. Summers, "The Future of Economics in Legal Education: Limits and Constraints," 33J. Legal Educ. 337, 348 (1983). 18. Marc Feldman and Jay M. Feinman, "Legal Education: Its Cause and Cure," 82 Mich. L. Rev. 914, 919, 922 (1984) - a review of Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s. 19. Law and Learning: Report to the Social Sciences and Humanities Research Council of Canada by the Consultative Group on Research and Education in Law (Ottawa: S.S.H.R.C., 1983), hereafter Law and Learning. Despite structural differences, Canadian and American legal education are sufficiently similar that Law and Learning will be relevant and useful in both countries. 20. "[R] esearch designed to collect and organize legal data, to expound legal rules, and to explicate or offer exegesis upon authoritative legal sources." Law and Learning supra note 19, p. 65. 21. Law and Learning, supra note 19, p. 66. In French, the distinction is between recherches ponctuelles ("isolated, narrowly focused and rather random research"), and recherche sublime ("research that involves finding higher levels of explanation and integration through conceptual and empirical analysis"). Id. at 75. 22. Id. at 157. 23. Posner, supra note 14, pp. 766-73. See also Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (Chapel Hill and London: U. of North Carolina Press, 1983). Compare Guido Calabresi, "Thoughts on the Future of Economics in Legal Education," 33 J. Legal Educ. 359, 360-62 (1983) who thinks that legal scholarship in the last sixty or so years has alternated between two major themes: legal process and "law and (some other discipline)." 24. E.g., George L. Priest, "Social Science Theory and Legal Education: The Law School as University," 33 J. Legal Educ. 437 (1983). 25. Richard A. Posner, The Federal Courts: Crisis and Reform (Cambridge and London: HarvardU. Press, 1985), pp. 322-34.

26. E.g., James E. Murray, "Understanding Law as Metaphor," 34 J. Legal Educ. 714 (1984). 27. ArthurAllen Leff, "Lawand," 87 Yale L.J.989 (1978). 28. E.g., Milner S. Ball, The Promise of American Law: A Theological, Humanistic View of Legal Process (Athens: U. of Georgia Press, 1981). 29. Robert M. Cover, "The Supreme Court 1982 Term: Foreword: Nomos and Narrative," 97 Harv. L. Rev. 4 (1983); Robert' M. Cover, "The Folktales of Justice: Tales of Jurisdiction," 14 Cap. U.L. Rev. 179 (1985). See also James R. Elkins and others, "Pedagogy of Narrative:A Symposium," 40 J. Legal Educ. 1 (1990). 30. Allen, supra note 16; David E. Van Zandt, "The Relevance of Social Theory to Legal Theory," 83 Nw. UL. Rev. 10, 36-37 (1989); Harry H. Wellington, "Challenges to Legal Education: The 'Two Cultures' Phenomenon," 37 J. Legal Educ. 327 (1987); Harry W. Arthurs, "The Law School in a University Setting," in Matas and McCawley, supra note 16, pp. 167-68. See also Ball, supra note 28, pp. 128-36. 31. Stevens, supra note 23, pp. 270-75. 32. John S. Elson, "The Case Against Legal Scholarship or, If the Professor Must Publish, Must the Profession Perish?," 39J. Legal Educ. 343 (1989). 33. Roscoe Pound, in the discussion of the meaning of "law" in his five volume Jurisprudence (St. Paul: West, 1959), defines the term first as "the legal order ..., that is, the regime of adjusting relations and ordering conduct by the systematic and orderly application of the force of a politically organized society. This regime is ... carried on in accordance with a body of authoritative precepts, applied by an authoritative technique, on a background of received ideals, through a judicial and an administrative process." See volume 2, pp. 104-05. Pound (typically) offers other definitions. 34. Waddams, supra note 16, p. 180, quotes John Willis as arguing that "law is an important part of Western man's dream of a life governed by reason [and] that the university is the acknowledged custodian of that dream." 35. It would be misleading to read otherwise a judgment by Lord Denning, for example. 36. A legitimate criticism of Law and Learning is that it trivializes legal exegesis. See Mark Weisberg, "On the Relationship of Law and Learning to Law and Learning," 29 McGillL.J.155, 158-60 (1983). 37. Arthurs, supra note 30, p. 168. 38. John Austin, "The Uses of the Study of Jurisprudence," in John Austin, The Province of Jurisprudence Determined and The Uses of the Study of Jurisprudence, ed. H.L.A. Hart (London: Weidenfeld and Nicolson, 1954) (1st ed. 1863), p. 388. 39. See Franklin E. Zimring, "Where Do the New Scholars Learn New Scholarship?" 33 J Legal Educ. 453 (1983). 40. James Boyd White writes that literature "complicates one's sense of oneself and the world" and "humiliates the instrumentally calculating forms of reason so dominant in our culture (by demonstrating their dependence on other forms of thought and expression)." See White, "Law and Literature: No Manifesto," supra note 7, p. 741. See also James Boyd White, "Book Review: What Can a Lawyer Learn from Literature?"102 Harv. L. Rev. 2014, 2036-37 (1989) - a review of Posner's Law and Literature: A Misunderstood Relation - "humanistic texts ... confound the very part of us that wants to think in propositions, arguments, and forced conclusions." 41. See e.g., Edward L. Rubin, "The Practice and Discourse of Legal Scholarship," 86 Mich. L. Rev. 1835, 1895-1900 (1988).

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42. Weisberg, supra note 36, p. 160. 43. I therefore disagree with Edward Rubin, supra note 41, pp. 1898-99, who concludes that, in projects involving law and another discipline, "legal scholarship must supply the organizing principles ... generate its own problems, establish its own categories, identify its own audience, and develop its own validity claims." Professor Rubin's sophisticated discussion of legal scholarship requires more careful attention than I can give it here. 44. A drawback in W.H. Holdsworth's Charles Dickens as a Legal Historian (New Haven: Yale U. Press, 1928) is that Holdsworth often forgets that Dickens is not writing as an historian but as a creator of fiction. As a result, Holdsworth persistently ignores or underestimates his subject's willingness to rewrite the facts of legal history to suit his purposes. 45. I assume without arguing the case here that fiction may present images and ideas to the reader, who in turn takes away something from her reading, if only a heightened understanding and sensitivity. To use Louise Rosenblatt's language, literature (especially the social novels and plays found in Law and Literature courses) is not entirely at the aesthetic end of the scale, but can and must be given an efferent reading as well. See Louise M. Rosenblatt, The Reader, The Text, the Poem: The Transactional Theory of the Literary Work (Carbondale: Southern Illinois U. Press., 1978). 46. It will be apparent that I take a more expansive view of what is interesting in literature than does Robert Weisberg, supra note 13. Nor do I agree with Posner that "although the writers we value have often put law into their writings, it does not follow that those writings are about law in any interesting way that a lawyer might be able to elucidate." See Richard A. Posner, "Law and Literature:A Relation Reargued," 72 Va. L. Rev. 1351, 1356 (1986). 47. See James D. Hopkins, "The Development of Realism in Law and Literature During the Period 1883-1933: The Cultural Resemblance," 4 Pace L. Rev. 29, 60 (1983): "To see law as a fragment of our culture, to see it framed against the cultural background, is hardly to belittle it; it rather introduces into its discipline a greater perspective." 48. Wayne C. Booth, The Company We Keep: An Ethics of Fiction (Berkeley: U. of California Press, 1988), p. 485. 49. Booth, supra note 48, p. 339. Compare Robert Gordon's view that one aim of the Critical Legal Studies movement is to dredge up and give content to alternative visions of social life which are systematically repressed by the dominant discourses of power in our society, particularly our law schools. See Robert W. Gordon, "Unfreezing Legal Reality: Critical Approaches to Law," 15 Fla. St. U.L.Rev. 195, 200 (1987). 50. See also John Denvir, "William Shakespeare and the Jurisprudence of Comedy," 39 Stan. L. Rev. 825, 840 (1987). 51. The obvious example is the anarchist novel, like William Godwin's Caleb Williams, but see also the spontaneous combustion of the (false) Lord Chancellor in Bleak House. 52. The rule of law may turn out for a Shylock to be the rule of those in power in an oppressively Christian society. 53. Richard H. Weisberg, "Law in and as Literature: Self-Generated Meaning in the 'Procedural Novel,"' supra note 8. For a delightful play on unreason and law, see N. F. Simpson, One- Way Pendulum. 54. E.g., Todd Andrews in John Barth's The Floating Opera. 55. See e.g., Paul Gewirtz, "Aeschylus' Law," 101 Harv. L. Rev. 1043 (1988).

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56. At least, this is my reading of Billy Budd. See White, "Book Review: What Can a LawyerLearnfrom Literature?" supra note 40, pp. 2038-42. 57. See Robin West, "Authority, Autonomy, and Choice: The Role of Consent in the Moral and Political Visions of Franz Kafka and Richard Posner," 99 Harv. L. Rev. 384 (1985); Robin West, "Submission, Choice, and Ethics: A Rejoinder to Judge Posner," 99 Harv. L. Rev. 1449 (1986); Robin West, "Economic Man and Literary Woman: One Contrast," 39 Mercer L. Rev. 867 (1988). For an excellent comment on this aspect of law in literature, see Robert Weisberg, supra note 13, pp. 17-36. For another critique, see Toni M. Massaro, "Empathy, Legal Storytelling, and the Rule of Law: New Words, Old Wounds?," 87 Mich. L. Rev. 2099 (1989). 58. James Boyd White, "Speech to Plenary Session," Association of American Law Schools; 1989 Annual Meeting, New Orleans, Louisiana,January7, 1989. 59. Julius G. Getman et al., "Colloquy: Human Voice in Legal Discourse," 66 Tex. L. Rev. 577 (1988). See especially essays by Getman (at 577) and MarkG. Yudof (at 589). 60. I make no apology for the repeated references to Bleak House in this essay. In my view, it is a rich and rewarding novel, a successfully trenchant comment on the law, and yet a neglected text in Law and Literaturestudies. 61. Charles Dickens, A Christmas Carol (London: Oxford U. Press., 1954), p. 70. 62. J. Allen Smith, "Lawand the Humanities: A Preface," 29 Rutgers L. Rev. 223 (1976); J. Allen Smith, "Aspects of Law and Literature:The Revival and the Search for Doctrine," 9 U. Hartford Stud. in Literature 213 (1977); J. Allen Smith and KathiJ. Moore, "Lawand Literature:A Symposium: A Case History with a Happy Ending," 2 ALSA Forum, no. 1, p. 21 (1977); J. Allen Smith, "The Coming Renaissance in Law and Literature,"30J. Legal Educ. 13 (1979); J. Allen Smith, "Job and the Anguish of the Legal Profession: An Example of the Relationship of Literature, Law and Justice," 32 Rutgers L. Rev. 661 (1979); J. Allen Smith and John Paul Laughlin, "Afterword:Law, Literatureand Ethics," 4 Miss. C.L.Rev. 327 (1984). 63. Smith, "Lawand the Humanities: A Preface," supra note 62, at 223. See also Richard Weisberg, "Coming of Age Some More: 'Law and Literature' Beyond the Cradle," 13 Nova L. Rev. 107, 122 (1988); William H. Page and Richard H. Weisberg, "Foreword: The Law and Southern Literature," 4 Miss. C.L.Rev.165 (1984); Richard Weisberg, "Judicial Discretion, or the Self on the Shelf," 10 Cardozo L. Rev. 105 (1988); Linda R. Hirshman, "Bronte, Bloom, and Bork: An Essay on the Moral Education of Judges," 137 U. Pa. L. Rev. 177, 198; Judith Koffler, "The Assimilation of Law and Literature:An Approach to Metanoia," 3 ALSAForum, no. 1, p. 5 (1978); William T. Braithwaite, "Why, and How, Judges Should Study Poetry," 19 Loy. U. Chi. L.J.809 (1988). 64. White, "Lawand Literature:No Manifesto," supra note 7, p. 741. 65. Charles Dickens, Bleak House, eds. George Ford and Sylvere Monod (New York: Norton, 1977), p. 3. 66. Francis Allen, supra note 16, sometimes talks as if there is in the law a set of values which the good law teacher and researcher will unpack as part of her job. It seems to me that Allen underestimates the ambiguity of those values and neglects the existence and importance of alternative sets of values in our culture. 67. Carol Gilligan, In A Different Voice: Psychological Theory and Development (Cambridge and London: HarvardU. Press., 1982). Women's

68. See Lon L. Fuller, The Morality of Law (New Haven and London: Yale U. Press., 1969). For another version of 1984, see MargaretAtwood, The Handmaid's Tale.

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69. A light-hearted starting-point is MargaretAtwood, "Justice in the LiteraryTradition," in Rosalie S. Abella and Melvin L. Rothman, eds., Justice Beyond Orwell (Montreal: Les Editions Yvon Blais, 1985) 505. Cf. Northrop Frye, "Nobody wants a poet in the perfect human state," Anatomy of Criticism: Four Essays (Princeton: Princeton U. Press, 1957), p. 128. 70. Charles Dickens, Bleak House, supra note 65, p. 9. 71. An example is Anthony Trollope, The Way We Live Now (New York: Knopps, 1950). 72. Orwell expressed his somewhat guarded admiration for English law more directly in The Lion and the Unicorn: Socialism and the English Genius and The English People. See Sonia Orwell and Ian Angus, eds., The Collected Essays,Journalism and Letters of George Orwell (Harmondsworth: Penguin Books, 1970), vol. 2, p. 74, and vol. 3, p. 15. 73. See, Barnaby Rudge and A Tale of Two Cities respectively. 74. See, e.g., Judith S. Koffler, "Reflections on Detente: Law and Literature,"62 Tex. L. Rev. 1157 (1984); Richard H. Weisberg, "Family Feud: A Response to Robert Weisberg on Law and Literature," 1 Yale J. of Law and the Humanities 69 (1988); cf. Owen M. Fiss, "The Challenge Ahead," 1 YaleJ. of Law and the Humanities viii (1988). Richard Posner seems to assume that most Law and Literaturewriting has a political agenda. See Posner, Law and Literature: A Misunderstood Relation, supra note 13. 75. The continuing attack by Law and Literature writers on the Law and Economics movement seems to be motivated by the fear that Law and Economics expresses a conservative program that is convincing lawmakers and judges of its rightness (in two senses). See White, Justice as Translation, supra note 7, ch. 3; West, "Economic Man and LiteraryWoman: One Contrast," supra note 57. 76. See Booth, supra note 48, ch. 3. Literature can be employed in support of a wide variety of causes. See, e.g., the use of Mark Twain's Life on the Mississippi to bash the Critical Legal Studies movement in Paul D. Carrington, "Of Law and the River," 34 J. Legal Educ. 222 (1984). 77. This is not to say that political approaches to literature cannot be sophisticated and rewarding. See Brook Thomas, Cross-Examinations of Law and Literature: Cooper, Hawthorne, Stowe, and Melville (Cambridge: Cambridge U. Press., 1987); Terry Eagleton, Literary Theory: An Introduction, (Oxford: Blackwell, 1983). Applying Thomas' notion of the legal ideology of a period to writers like Dickens, for example, raises exciting prospects unfortunately beyond the scope of this essay. 78. Edgar Johnson, Charles Dickens: His Tragedy and Triumph (rev. ed., New York: Viking Penguin, 1977), p. 427. 79. See David Copperfield, especially chs. 58 to 64. 80. As I noted earlier, it is not intended to look at graduate law degrees but only at the first degree in law. See supra note 10. 81. For an interesting set of goals for legal education, see Summers, supra note 17, pp. 355-58. 82. There are significant differences between Canadian and American legal education, such as the existence in all Canadian provinces of a required articles year, and bar admission courses required of all articles students. However, the fundamental issues of legal education are similar enough that the following discussion can apply on both sides of the border. 83. "Appendix A: The Carrington Report," in Herbert L. Packer and Thomas Ehrlich, New Directions in Legal Education (New York: McGraw-Hill, 1972); Law and Learning supra note 19.

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84. My conservatism on subject matter is not paralleled by a conservatism on teaching methods. It seems to me that legal education suffers from a dearth of research and thought on pedagogical questions, although see Andrew Petter, "A Closet Within the House: Learning Objectives and the Law School Curriculum," in Neil Gold, ed., Essays on Legal Education (Toronto: Butterworths, 1982) 77; John Kilcoyne and Neil Gold, "Instructional Technology: The Systematic Design of Legal Education," in Matas and McCawley, supra note 16, p. 254; AndrewJ. Pirie, "Objectives in Legal Education: The Case for Systematic Instructional Design," 37 J. Legal Educ. 576 (1987). 85. I disagree with George Priest, supra note 24, at 441, who argues that the increasing specialization of legal scholarship will necessarily lead to the law school itself becoming a university composed of miniature graduate departments. "Introductory courses may be retained (if not shunted to colleges) .... The law-school curriculum will come to consist of graduate courses in applied economics, social theory, and political science. Specialization by students, which is to say, intensified study, follows necessarily." 86. William Twining, "Pericles and the Plumber," 83 Law Q. Rev. 396 (1967). 87. Posner, "The Decline of Law as an Autonomous Discipline: 1962-1987," supra note 14. 88. Law and Learning supra note 19, pp. 49-50. 89. E.g., Robert M. Cover, "Violence and the Word," 95 Yale L.J.1601 (1986). 90. My own law faculty building closely resembles a cement bunker (perhaps on an intellectual Maginot line?). 91. See White's discussion of the complicating character of literature, quoted supra note 64. 92. See Ball, The Promise of American Law: A Theological, Humanistic View of Legal Process, supra note 28. 93. Gewirtz, supra note 55, p. 1050. 94. Andrew Pirie has traced the idea back to Coleridge. See Pirie, supra note 84, p. 580, n. 48. 95. See, e.g., White, The Legal Imagination, supra note 2, especially ch. 4; James M. Haughey, "The Arts and the Lawyer," 28 U. Kan. L. Rev. 589 (1980); Lynn Smith, "The Courts and Different Kinds of Objectivity," 45 TheAdvocate 17 (1987). 96. Northrop Frye, "Literature and the Law," 4 Law Society Gazette 70, 77 (1970). Cf. Atwood, supra note 69, p. 516: "For the law itself is a creature of the mind, and as such is limited to the categories of the human imagination itself. We can embody in the law only what we can first imagine as fully human beings, and the more stunted and repressive the imagination at work, the more harsh, punitive and intolerable will be the resulting laws." 97. Cf. Wayne Booth's description of the effect of a novel on a reader, supra note 48, p. 52: I read a novel and find it not just pleasant but good, and I work out for myself the qualities that make it so: it is beautiful, unified, harmonious, coherent, original, new, or risk-taking. Or it does something for me that I now think needed doing: it has deepened my experience, heightened my sensibilities, matured my judgment, consoled me, shocked me, "defamiliarized" the word and the world, served the revolution, stabilized my tottering polis. 98. See Haughey, supra note 95; Hirshman, supra note 63, p. 201. 99. Cf. Thomas De Quincey's distinction between the literature of knowledge and the

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literature of power (e.g., poetry). See Thomas De Quincey, "The Poetry of Pope," in John E. Jordan, ed., De Quincey as Critic (London: Routledge, 1973) (1848, 1858), pp. 266-73. 100. John J. Bonsignore, "In Parables: Teaching Through Parables," 12 Legal Stud. F. 191 (1988). 101. Id. at 197. 102. Id. at 203-07. 103. Id. at 208. 104. John Carey makes the point in his book The Violent Effigy: A Study of Dickens' Imagination (London: Faber, 1973), p. 123. He notes Dickens' apparent view that paupers should be given a decent burial, or their corpses will spread disease among the middle class. He then notes the detail in Bleak House of Lady Dedlock visiting Hawdon's grave and standing in the archway "with its deadly stains contaminating her dress." Carey goes on: The suggestion ... stirs the reader's imagination.... The difference between the two ways of communicating is that between imagination and reason. That graveyard railings stain ladies' dresses is from a reasonable viewpoint a trivial objection, but it has more power over the imagination that [sic] any amount of sanitary argument. Reason is circumspect, and can enlarge the issue with religious considerations. Imagination is direct. 105. The "morality" of the education may be debatable. note 104. See, e.g., Carey, supra

106. Cf. Katharine T. Bartlett, "Teaching Values: A Dilemma," 37 J. Legal Educ. 519 (1987) - a comment on Roger C. Cramton, "Beyond the Ordinary Religion," 37 J. Legal Educ. 509 (1987). 107. See, e.g., David Ray Papke, "The Writer on Wall Street: An Interview with Louis Auchincloss," 5 ALSA Forum, no. 3, pp. 5, 8. 108. This is the situation in my law school, where students are required to take at least one from a group of courses on legal theory, law and literature, and legal history. I do not want to argue here the relative merits of these different courses. 109. See Smith, "The Coming Renaissance in Law and Literature,"supra note 62; Smith, "Job and the Anguish of the Legal Profession," supra note 62; Milner S. Ball, 185 (1989); Bonsignore, supra note 100. "Confessions," 1 CSLL 110. Bonsignore, supra note 100. 111. The quotation from Booth, supra note 49, suggests the capacity of fiction to comment on the law student's life during the rest of her days and nights at the law school. 112. Supra notes 26-29 and accompanying text; cf. Koffler, supra note 74. My experience, confirmed by an experienced literature teacher who has team-taught law and literature courses with me, is that law students tend to want novels to have one meaning or interpretation, while literature students are more likely to accept several readings of a text as possible and even desirable. One of the difficulties with Posner's readings of the fiction he discusses in Law and Literature: A Misunderstood Relation, supra note 13, is that he tends to assume that works of fiction bear only one meaning, although he criticizes this tendency in others, e.g., Robin West's treatment of Kafka. 113. See, e.g., Kim Lane Scheppele, "Foreword: Telling Stories," 87 Mich. L. Rev. 2073 (1989) - a foreword to a legal storytelling symposium.

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114. See Gemmette, supra note 3, p. 291. 115. The discourse of literature can illuminate and comment on the discourse of law, alike in some respects and different in others. See Robert Scholes, "Is There a Fish in This Text?" in Marshall Blonsky, ed., On Signs (Baltimore: Johns Hopkins U. Press, 1985) 308. This approach seems more useful and feasible than White's (apparent) view that different discourses can and should be integrated into one "human" discourse. See White, Justice as Translation, supra note 7, chs. 1, 11-12. 116. Richard H. Weisberg, The Failure of the Word: The Protagonist as Lawyer in Modern Fiction (New Haven and London: Yale U. Press, 1984). 117. The same problems arise for the English teacher who wants to swat up the law of heirlooms before teaching The Eustace Diamonds. 118. For comments on the problem of retooling law teachers to handle other disciplines, see David H. Vernon, "Education for Proficiency: The Continuum," 33 J. Legal Educ. 559 (1983); Zimring, supra note 39. 119. Posner, Law and Literature: A Misunderstood Relation, supra note 13, p. 353. 120. Herman Melville, Billy Budd, Sailor (An Inside Narrative), eds. Harrison Hayford and Merton M. Sealts, Jr., (Chicago and London: U. of Chicago Press, 1962), p. 63. 121. For an interesting discussion of the interdisciplinary study of law in an undergraduate program (that raises many of the same problems as similar courses in law school), see Peter D'Errico, Stephen Arons, and Janet Rifkin, "Humanistic Legal Studies at the University of Massachusetts at Amherst," 28 J. Legal Educ. 18 (1976). 122. See Harold Suretsky, "Search for a Theory: An Annotated Bibliography of Writings on the Relation of Law to Literature and the Humanities," 32 Rutgers L. Rev. 727 (1980); John D. Ayer, "The Very Idea of 'Lawand Literature,"'85 Mich. L. Rev. 895 (1987). 123. Apart from book reviews, the only extended essays on White that I have found are Richard K. Sherwin, "A Matter of Voice and Plot: Belief and Suspicion in Legal Storytelling," 87 Mich. L. Rev. 543 (1988); Robin West, "Communities, Texts, and Law: Reflections on the Law and LiteratureMovement," 1 YaleJ. of Law and the Humanities 129 (1988); and Susan Mann, "The Universe and the Library:A Critique of James Boyd White as Writer and Reader," 41 Stan. L. Rev. 959 (1989). 124. Justice as Translation, supra note 7, p. xiii. 125. The Legal Imagination, supra note 2, p. xiii. 126. When Words Lose Their Meaning supra note 7, p. 267. 127. Id. at 251. 128. Heracles' Bow, supra note 7, p. x. See also, Justice as Translation, supra note 7, pp. xii-xiv. 129. When Words Lose Their Meaning, supra note 7, p. 273. 130. Heracles' Bow, supra note 7, at 28. Cf. Koffler, supra note 63. 131. Justice as Translation, supra note 7, p. 216. 132. Justice as Translation, supra note 7, p. 246. 133. On White's literary theory, see Mann, supra note 123. 134. When WordsLose Their Meaning supra note 7, p. 6. 135. Id. at xi. White's discussion of reading is heavily influenced by Wayne Booth, supra note 48.

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136. Heracles'Bow, supra note 7, pp. 91-94. 137. When Words Lose Their Meaning supra note 7, p. 17. 138. Heracles' Bow, supra note 7, p. 82. 139. White's discussion of the issue of interpretation is much more complex than my brief statement indicates. 140. Justice as Translation, supra note 7, p. 236. 141. Cf. Archibald MacLeish, "Apologia," 85 Harv. L. Rev. 1505, 1508 (1972): The business of the law is to make sense of the confusion of what we call human life -- to reduce it to order but at the same time to give it possibility, scope, even dignity. But what, then, is the business of poetry? Precisely to make sense of the chaos of our lives. To create the understanding of our lives. To compose an order which the bewildered, angry heart can recognize. To imagine man. 142. Heracles' Bow, supra note 7, p. x. 143. Id. at xii. 144. Id. at 32-35. 145. When Words Lose Their Meaning supra note 7, p. 273. 146. Heracles' Bow, supra note 7, p. 124; Justice as Translation, supra note 7, chs. 11 and 12. 147. Justice as Translation, supra note 7, p. 267. 148. When Words Lose Their Meaning, supra note 7, p. 9. 149. Heracles' Bow, supra note 7, p. 117. 150. White returns to this idea repeatedly in his writing. See e.g., Justice as Translation, supra note 7, chs. 2, 4, and 10. 151. When Words Lose Their Meaning supra note 7, p. 272. 152. Heracles' Bow, supra note 7, pp. 58-59. 153. Id. at 53. 154. The Legal Imagination, supra note 2, p. xv. 155. Heracles' Bow, supra note 7, pp. 40-41. See also, Justice as Translation, supra note 7, ch. 1. 156. Although see my comments on White's New-Critical practice later in this section. 157. It is not intended to carry out a full scale critique of White as a legal theorist. Such a discussion would have to deal with issues such as his views on interpretation (and its relationship to translation), and his use of key terms like "language," "discourse," and "community." 158. See, e.g., Geoffrey P. Miller, "A Rhetoric of Law," 52 U. Chi. L. Rev. 247 (1985) - a review of When Words Lose Their Meaning; Robert M. Cover, "The Bonds of Constitutional Interpretation: Of the Word, the Deed, and the Role," 20 Ga. L. Rev. 815 (1986); West, "Communities, Texts, and Law: Reflections on the Law and Literature Movement," supra note 123; Kim Lane Scheppele, Legal Secrets: Equality and Efficiency in the Common Law (Chicago and London: U. of Chicago Press, 1988), pp. 105-08. 159. See, e.g., Justice as Translation, supra note 7, chs. 2 and 3. 160. My colleague Richard Bauman points out to me that other legal theorists, like Hart

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and Dworkin, also discuss law in terms appropriate to fundamental constitutional issues, but not to the run-of-the-mill legal points which form the everyday fare of most law school lectures, legal opinions, or court judgments. 161. Heracles' Bow, supra note 7, p. xii, quoted above at note 143 and accompanying text. 162. 248 N.Y. 339, 162 N.E. 99, 59 A.L.R.1253 (1928). 163. 14 Q.B.D. 273 (1884). 164. See Gerald P. L6pez, "Training Future Lawyers to Work with the Politically and Socially Subordinated: Anti-Generic Legal Education," 91 W Va. L. Rev. 305 (1989). 165. It is questionable whether the machinery of narrators, ideal readers, and so on can be applied without considerable modification to opinions, not to speak of statutes and regulations. 166. Heracles' Bow, supra note 7, at 41. 167. See, e.g., Justice as Translation, supra note 7, chs 5-9. 168. White is aware of the danger of "high-culture blindness" to the world which lies outside texts (see Heracles' Bow, supra note 7, pp. 119-38), but I remain unconvinced that he has fully worked out the consequences of this concession. See also West, "Communities, Texts, and Law:Reflections on the Law and LiteratureMovement," supra note 123. 169. Justice as Translation, supra note 7, chs. 4, 6-9. 170. See, e.g., Allan C. Hutchinson, "From Cultural Construction to Historical Deconstruction," 94 Yale L.J. 209 (1984) - a book review of When Words Lose Their Meaning. 171. White's comments on "law as rules" and "law as facade" theories in Justice as Translation, supra note 7, p. xiii are suggestive but skeletal. 172. Cf.Justice as Translation, supra note 7, pp. 97-99. 173. See, When WordsLose Their Meaning supra note 7, pp. 286-91. 174. Id. 175. The following account is largely based on Eagleton, supra note 77, pp. 46-51, and Frank Lentricchia, After the New Criticism (Chicago: U. of Chicago Press, 1980), Preface and ch. 1. 176. Lentricchia, supra note 175, p. 5. 177. See the reviews of When WordsLose Their Meaning by Hutchinson, supra note 170, and Miller, supra note 158. 178. Compare Robin West who is concerned to attack Posner directly, albeit through the use of Kafka. See West, "Authority, Autonomy, and Choice," supra note 57; West, "Submission, Choice, and Ethics," supra note 57. 179. White has recognized the parallels in ch. 6 of Heracles' Bow, supra note 7. 180. There is occasionally a patronizing tone to White's review of Posner's Law and Literature: A Misunderstood Relation. See White, supra note 40. 181. In When Words Lose Their Meaning, supra note 7. 182. I am indebted to Roger Shiner for this point. 183. When Words Lose Their Meaning, supra note 7, ch. 1.

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184. The Cardozo Studies in Law and Literature, and the Yale Journal of Law and the Humanities. 185. Posner, Law and Literature: A Misunderstood Relation, supra note 13. 186. Supra note 116. 187. The point has been made in reviews of When Words Lose Their Meaning by Hutchinson, supra note 170; and Terence Ball, "When Words Lose Their Meaning," 96 Ethics 620 (1986). 188. See for example the differences between Pickwick Papers and Little Dorrit, both of which deal with imprisonment for debt but in widely differing ways. See C.R.B.Dunlop, "Debtors and Creditors in Dickens' Fiction," in M. Timko, F. Kaplan, and E. Guiliano, eds., 19 Dickens Studies Annual: Essays on Victorian Fiction, (New York: AMS Press, 1990), p. 25. 189. See Thomas L. McHaney, "Commentary: Papers by Noel Polk and Morris Wolff," 4 Miss. C.L.Rev. 265, 272-73 (1984). 190. This criticism may be made of Posner's discussion of the play. See Posner, supra note 13, pp. 90-99. 191. This criticism underlies many of the reviews of Richard H. Weisberg's The Failure of the Word: The Protagonist as Lawyer in Modern Fiction, supra note 116. See, e.g., Susan Sage Heinzelman and Sanford Levinson, 7 Cardozo L. Rev. 453 (1986); Richard A. Posner, 96 Yale L.J. 1173 (1987); Nancy T. Hammar, 84 Mich. L. Rev. 974 (1986). As to James Boyd White, at least in When Words Lose Their Meaning see Mann, supra note 123, pp. 976-90. Legal scholars are not of course alone in trying to make literature fit a grand scholarly plan. Cf., e.g., Northrop Frye, Anatomy of Criticism, supra note 69. 192. Richard H. Weisberg, "Family Feud: A Response to Robert Weisberg on Law and Literature,"supra note 74, p. 74. 193. Weisberg has spoken about Great Expectations in a way that illustrates a partial acceptance of at least that novel into the canon. See his paper on Jaggers given to a conference on "Dickens and the Law" at the University of California at Santa Cruz in August, 1988. This paper will be part of his forthcoming Poethics (Columbia U. Press). 194. See the book reviews of The Failure of the Word, cited supra note 191, although Heinzelman and Levinson support Weisberg's position on Billy Budd. 195. Carolyn Heilbrun and Judith Resnik, "Convergences: Law, Literature, and Feminism," 99 Yale L.J.1913 (1990). 196. Ball, "Confessions," supra note 109, p. 192-93. 197. See generally Rowland D. McMaster, Trollope and the Law (Basingstoke: Macmillan, 1986). 198. As Richard Sherwin has noted, even the literature that White discusses can be given a more anti-rational and pessimistic reading leading to very different conclusions about the possibility of constitutive rhetoric. See Sherwin, supra note 123, pp. 575-92 on Sophocles' Philoctetes. 199. KJ. Fielding, "Benthamite Utilitarianism and Oliver Twist: A Novel of Ideas," 4 Dickens Q. 49 (1987). 200. C.R.B. Dunlop, "Lawand Justice in Dreiser's An American Tragedy," 6 U. of British Columbia L. Rev. 379 (1971). 201. Although compare Milton's Paradise Lost which undoubtedly tries to convince the reader of a theological and philosophical position, while succeeding as poetry.

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202. See Dunlop, supra note 200, pp 399-403; C.R.B. Dunlop, "Human Law and Natural Law in the Novels of Theodore Dreiser," 19 Am. J. Juris. 61 (1974). 203. A student of legal interpretation will have to deal with literary theory, because of the intermixture of these two discourses in the past ten years. Her knowledge of literature itself, while useful, is secondary to the theoretical issues, and any literature, whether about law or not, will do as a case study. 204. West, "Authority, Autonomy, and Choice: The Role of Consent in the Moral and Political Visions of Franz Kafka and Richard Posner," supra note 57; West, "Submission, Choice, and Ethics: A Rejoinder to Judge Posner," supra note 57; West, "Adjudication is Not Interpretation: Some Reservations About the Law-As-Literature Movement," supra note 9; West, "Communities, Texts, and Law: Reflections on the Law and Literature Movement," supra note 123. See also Robin West, 'yurisprudence as Narrative: An Aesthetic Analysis of Modern Legal Theory," 60 N. Y.U.L.Rev. 145 (1985). 205. Posner has vigorously rejected her reading of Kafka. See Richard A. Posner, "The Ethical Significance of Free Choice: A Reply to Professor West," 99 Harv. L. Rev. 1431 (1986); Posner, Law and Literature: A Misunderstood Relation, supra note 13, ch. 4. 206. West, "Authority,Autonomy, and Choice," supra note 57, pp. 386, 391. 207. Although quaere whether Kafka's enigmatic fiction can be said to stand for any proposition. 208. Terry Eagleton, Literary Theory:An Introduction, supra note 77. 209. John Gardner, On Moral Fiction (New York: Basic Books, 1978). 210. Booth, supra note 48. The Gardner-Booth school are used by the Law and Literaturewriters in part because they enable an ethical and therefore a political ratio to be drawn from works of literature. See, e.g., Teresa Godwin Phelps, 39 J. Legal Educ. 463 (1989) (reviewing Booth's The Company We Keep). 211. See, e.g., Weisberg, " Text into Theory: A LiteraryApproach to the Constitution," supra note 8, pp. 951-54. 212. Milner Ball has recently observed that "the tendency is to defend the study of Law and Literaturewith theory when what is called for is more and better practice." See Ball, "Confessions," supra note 109, p. 189. See also White, Justice as Translation, supra note 7, pp. 98-99. 213. It is probably true, however, that there has been more interdisciplinary peer review in Law and Literature than in other recent innovative approaches to law. For example, many books in the field undergo critical reading by specialists in both fields prior to publication. 214. For example, the bond of flesh story in The Merchant of Venice is so interwoven with the other threads of the plot, e.g., the three caskets and the lost rings, that it is hard to say what is relevant and what is not. 215. My own law faculty has recently had a controversy over a painting (loaned to the school by a feminist artist) of a series of female figures. The painting was attacked on the ground that it objectified women, which the artist claimed was in a sense her point. Forum 11 (1976), quoting 216. John Bonsignore, "Meta-Law Through Literature,"1 ALSA Camus, Carnets 1942-51, p. 2. 217. Bonsignore, supra note 216, p. 13.

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