Academic

Heald on the Problems Confronting Law and Literature

By Alfred Brophy

Paul Heald has a brief essay up on ssrn, "The Death of Law and Literature."  It's a fast read and addresses the problems of relevancy and audience for law and literature. Here is his abstract:

Thirty years after the publication of James B. White's iconic THE LEGAL IMAGINATION, Law & Literature scholarship has gained no traction in the practice of law. This essay, prompted by a session of teaching Ariel Dorfman's DEATH AND THE MAIDEN to federal judges, explains why our scholarship has no impact, but fiction itself is very influential. 

One of the key paragraphs:

Of all the forms that comparative scholarship takes, Law and Literature as Ethical Discourse seems to best describe the relationship between the two fields of human endeavor. However, along with all other strands of the Law and Literature movement, the sub-grouping is marginalized by law. The law welcomes academic advances in the sciences and economics with open arms, putting their objective discourse to immediate use. Garret Hardin?s essay ?The Tragedy of the Commons,? for example, has had an enormous influence on intellectual property law, whereas the finest and most perceptive essays produced by the Law and Literature movement gain no traction. Perhaps, the problem is that the movement sought to confront law head on, describe it, and reveal its innermost life. But the King will never want a psychoanalyst by his side revealing his innermost motivations and desires to the people. Science and economics instead give the King powers that he can use to convince the people of his own wisdom and objectivity.  Meanwhile, the King never stops going to the playhouse. He keeps a novel on his nightstand.

Seems to me that one of the under-appreciated aspects of literature is that it offers a critique of law--and I think of this in particular because of the recent controversy over the role of "empathy" (or what the nineteenth century novelists called sympathy) in legal analysis.   It seems to me that literature plays a (sometimes important) role in remaking culture, but that remaking is usually rather far removed from appellate decisions.  One of the challenges of law and literature is to continue to point out how literature critiques and influences legal thought.  (Some of the great works along these lines are Robert Ferguson's Law and Letters in American Culture, Jeannine DeLombard's Slavery on Trial, and Robert Cover's Justice Accused.)

Full post as published by The Faculty Lounge on June 16, 2009 (boomark / email).