Intellectual Property Law

More on Gender

By Mike Madison

Jill Lepore has a very interesting and provocative essay in a recent New Yorker, teasing apart distinctions between fact and fantasy, between works of popular history and works of popular fiction.  Her thesis?  That the distinction may be gendered:

By the end of the eighteenth century, not just novel readers but most novel writers were women, too. And most historians, along with their readers, were men. As the discipline of history, the anti-novel, emerged, and especially as it professionalized, it defined itself as the domain of men. (Women might write biography, or dabble in genealogy.) Eighteenth-century observers, in other words, understood the distinction between history and fiction not merely and maybe not even predominantly as a distinction between truth and invention but as a distinction between stories by, about, and of interest to men and stories by, about, and of interest to women. Women read novels, women wrote novels, women were the heroines of novels. Men read history, men wrote history, men were the heroes of history. (When men wrote novels, Godwin suggested, this was regarded as ?a symptom of effeminacy.?)

As Burrow?s ?A History of Histories? and Wood?s ?Purpose of the Past? make clear, however, much of what distinguished eighteenth-century fiction from eighteenth-century history is now part of how academic historians write history. Most of the popular history books you?ll find in Barnes & Noble celebrate the public lives of famous men, but the history books that many academics have been writing for the past half century concern the private lives of ordinary people. (Memoirs constitute a related but distinct genre, chronicling the lives of both the famous and the not so famous, and borrowing from the conventions of history and of fiction. Fake memoirs, like Margaret Jones?s or Misha Defonesca?s, borrow from those genres, but without achieving the legitimacy of either.) ?By the 1970s,? Wood writes, ?this new social history of hitherto forgotten people had come to dominate academic history writing.? Maybe the topics that have seized professional historians? attention?family history, social history, women?s history, cultural history, ?microhistory??constitute nothing more than an attempt to take back territory they forfeited to novelists in the eighteenth century. If so, historians have reclaimed from novelists nearly everything except the license to invent . . . and women readers. Today, publishers figure that men buy the great majority of popular history books; most fiction buyers are women.

Last Fall, I wondered whether legal scholarship has room for different literatures.  In Lepore’s terms, I wonder whether the contention that “proper” legal scholarship has a linear, deterministic quality (a contention reinforced by the postings and comments at the recently unveiled “Anonymous Articles Editors” blog) is gendered.  Are law professors supposed to produce “history,” not “fiction,” even though, as Lepore writes, “Every history is incomplete; every historian has a point of view; every historian relies on what is unreliable?documents written by people who were not under oath and cannot be cross-examined”?

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Full post as published by Madisonian.net on March 24, 2008 (boomark / email).