Practice Extended, Robert A. Ferguson

PRACTICE E

XTENDED

B e yond L aw and Literature

ROBE RT

A . F ERG USON

Introduction T h e Le tt ers in Law

were open. Literature opens things that were once closed. Many interpreters in the relatively new field of law and literature make this claim without drawing an obvious conclusion from it.1 The openness of literature makes the term “law and literature” a misnomer. Imaginative literature contributes to a legal problem only when other disciplines make its claims credible. Take, for example, Herman Melville’s nineteenth-century classic novella Billy Budd, with its summary execution of “the Handsome Sailor.” The work still reaches law today through its philosophical challenge of the danger in legal positivism, a too-slavish regard for the letter of the law.2 At stake in this connection is a similarity within many differences. Law, like literature, manipulates its letters for a particular effect but with very different purposes in mind. It must deal with the world it finds and it must hold to tight rules of procedure and decision making to justify the authority it wields. The novel—or any well-told story—creates its own world.

“Principles and systems” do not control it.3 Fiction defines behavior in any manner it wants to as long as it convinces its readership. To convince its audience, which is no simple task, it must enlist other disciplines for the verisimilitude that makes an imaginary world believable.

Disciplinary verifications vary with the story told. They can include history, geography, philosophy, sociology, anthropology, theology, visual studies, biology, psychology, and yes, law. The combinations supply “thisness,” a “resultant impression of life-likeness.”4 Of course, legal discourse also depends “on a mass of non-legal considerations.”5 It draws on the l aw c lo s e s t h i n g s t h at o n c e

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commonalities in regular life for effect, one reason we refer to “a common law.” Only recently, however, have we come to recognize how extensively “the realities” in fiction open into the commonalities of law.

Practice Extended: Beyond Law and Literature seeks an expanded view of those interdisciplinary possibilities with three main goals. It tests literary challenges through the other disciplines that fiction uses so casually to talk about law. It supplies alternative points of view when law hides behind or mystifies its authority. It seeks “the crafty reader,” one willing to “set a standard for serious reading of an important document.”6 All three objectives share a larger premise that encourages every citizen to be that crafty reader.

A rule of law depends on an informed public capable of evaluating the legal decisions that govern it.

The eleven chapters that follow are arranged in four thematic sections to further these goals. Part 1, “Literary Components in the Legal Imagination,” clarifies literary techniques and dependence in legal expression.

It also reveals why law frequently misuses fictional representations even when they are relevant to a case. Connections between law and literature can just as easily turn into misconnections. Part 2, “The Nature of Judgment,” illuminates the ambivalent role of the judicial figure in American life. Knowing the generic forms in judicial decision making also exposes misuse of them. Part 3, “The Public Uses of Legal Eloquence,” reveals and analyzes the mysterious links between legal communication and public understanding, the means by which a rule of law is recognized. Part 4, “When Law Fails,” asks a larger question: What do we do when law does not do its job?

Law rarely does its job well in fiction. Perhaps that is why public distrust of law has turned an elitist form of fiction into a best-selling genre.

The courtroom novel thrives today even though the basic components have always remained the same. A final coda, “How to Read a Courtroom Novel,” details the intricacies involved. Law rarely talks about injustice; fiction always will. Where should a reader draw the line between what law does and what novelists say about it?

A few preliminaries are in order. The trajectory of the four thematic sections becomes more obvious if we see what law and literature analysis can and cannot do. There is a world of difference between “justice itself ” and “justice represented in fiction.” Homo sapiens is a very different beast than Homo fictus, if just because we can only know the latter perfectly.7

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Law cannot know perfectly. It stumbles to its realizations through the imperfect lens of implied intent. The qualified certainty it achieves in judgment is rigorously circumscribed by procedures, presumptions, evidentiary limitations, and rules of standing.

A novel bypasses all the problems in circumstantiality. It lets us figure out everything on our own and at our leisure. It supplies all of the information we need and, just as significantly, with no more information available elsewhere! We learn what each character believes and does through the set world created by the novelist. All of the evidence is gathered on the page.

Nothing important is left out that a reader cannot furnish. Nor does an ending in courtroom fiction leave matters dangling. Closure is always strategic in fiction; it frequently has to be more circumspect and tactical in legal decision making.8 Law cannot work with the certainty that fiction gives to its own sealed world. It must rule out myriad details, mere accident, and limited knowledge in the jumble of life to decide what has happened and what should be done about it. Often enough, it can do nothing about what has happened, and when it can, the answers may be unfulfilling.

Why is the field of law and literature therefore a vexed interdisciplinary endeavor? The imputed connection makes sense only when real expertise cobbles three or more disciplines together with intellectual restraint and respect for methodologies in what becomes “law and the humanities.”9 The alliterative rhythms of “law & literature”—the ampersand helps the phrase trip off the tongue—will forever be the moniker of a movement but not the reality of inquiries relevant to the field.10 Nor are these confusions without others. Strict interdisciplinary investigation always depends on the integrity of multidisciplinary effect. Literary answers come through the vraisemblance or reality check that the selective artifacts of history, psychology, philosophy, political science, and other disciplines give it on an arranged basis—a basis fused into a common understanding of humanity. Law needs to corral, order, and separate these disciplines in the workings of what it calls legal reason.11 If law has lost some autonomy to other disciplines in new areas of investigation (such as civil rights, family law, environmental law, and intellectual property), it accepts interdisciplinarity only for its own needs and on its own terms. It remains the dominant discipline whenever and wherever it is engaged in a social problem.12 Authority, power, clarity, and lack of

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ambiguity reside here. Legal language takes priority. It trumps other expressions of expertise by claiming its own overriding importance in deciding people’s lives and fortunes. Even so, and even if they do not change the imbalances in interdisciplinarity, some qualifications need to be drawn over legal insistences in explanation.

What are some of those qualifications? Law, a jealous mistress, insists unreasonably on its hermeneutic reliability when its purposes are under discussion, and it willingly admits to difficulty only over future directions and only then when the difficulties in question are not before it for consideration. The closed nature of legal thought needs to be pried open when it refuses to face uncertainty or oversimplifies matters to reach a decision.

The exuberance of the law & literature movement has not always been that opener. The anthropologist Clifford Geertz gives part of the explanation in The Interpretation of Cultures. He warns that “certain ideas burst upon the intellectual landscape with a tremendous force” and “seem also to promise that they will resolve all fundamental problems, clarify all obscure issues . . . crowding out almost everything else for a while.” Gradually things settle down. “A few zealots [will] persist in the old key-to-the-universe view of it,” but for most the new approach turns into a tool for situational use.

The new idea becomes instead “a permanent and enduring part of our intellectual armory,” losing “the grandiose, all-promising scope, the infinite versatility of apparent application, it once had.”13 The adjustments in connections between law and literature from strategic to situational use have been slow at times because of the critical expertise that allows scholars to conflate the disciplines in a linear way without recognizing the boundaries of either. Notice, in this regard, that all emerging interdisciplinary investigations that have to do with legal inquiry put law first in declarative mode: law and economics, law and society, law and history, law and philosophy, critical legal race studies, law and gender studies, law and empirical studies, and naturally enough, law and literature.

Where does one challenge these hegemonic claims of law? There are some weaknesses to worry about. Too much of legal scholarship works through pack mentalities. It loves “movements,” celebrates schools, argues in armed camps over minute intricacies in constitutionalism, and strains for a new vocabulary to replace established uses, whether the new terms

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are needed or not.14 Language is an independent control in law, its own reality, and professional impulses turn it into an exclusive and excluding compulsion.

Most disciplines look to phenomenon to determine interpretation. Law thinks that its language can dictate the awareness of phenomenon, an orientation with costs. Court opinions, legal injunctions, and constabulary authority—coupled to the communal need to obey without question— confirm linguistic formalism in legal thought and guarantee its centrality.

Law loves its internal quarrels over these formalistic tendencies, over the assumed structure in decision making through deductive mechanisms and hierarchical classifications in language. Adversarial woofing over terminology fills legal journals. Whole careers and reputations are made and lost on the scholasticism of linguistic variation and import.

A unique publishing mechanism feeds these intellectual attributes. Law professors publish in student-run journals, and most major law schools have a goodly number of journals to choose from. My own institution, Columbia Law School, now has more editorial openings for its journals than it has students! With such a plethora of possibilities available, the demand for good articles is greater than the supply and the rules used for transmission make it an imperious market.

Think of the rules that prevail. Law professors can submit their essays to a number of journals at once while setting severe time constraints on decision making in the editorial process. The hurried competition for acceptance by journals has pernicious consequences. Well-placed faculty writers can bully second and third-year law student editors into accepting their work quickly without the least modicum of peer review.

Everything about this process of publication encourages intellectual sloppiness and excess. Career advancement can depend on quick acceptance for a submitter and, further down the line, for student recipients.

Cooperative prominence on a student journal may pave the path to judicial clerkships and academic careers. Rapid turnover in student editors also limits journalistic expertise and judgment in the market for articles. Students typically work on journals for a year and a half at most before moving on. The editorial boards that decide publication of an article serve even less time, usually a scant twelve months.

A required writing style in law journals makes things worse. The prescribed jog-trot steps in law review composition contribute to authorial

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indulgence with mind-numbing repetition instead of creative organization.

Constant duplication and sign-posting in articles, part by tedious part, is the established mode in law review writing, and the plodding sequence of this intellectual straitjacket welcomes assertion over substance. The number of times an expression is repeated becomes the mark of its interest.

Sought-after controversy adds to the mix. The more contentious the assertion endlessly offered, the greater will be the rejoinders in many subsequent journal articles.

And rejoinder is a goal. Reputations in the legal academy flourish on the number of journal citations received. Easy publication without peer review boosts those numbers. Two to four times a year, new articles in the many law journals of law schools—each article with literally hundreds of footnotes—comment pell-mell on previous articles. A touch of a finger then spits out footnote count information to hiring and promotional committee computers. These footnote counts support school evaluations without recourse to what was actually written in the articles or the validity of the citation.

None of these weaknesses can be strictly called an institutional disaster, but the tendencies are bad for creative thinking, and the more rigorous vetting process of the literary academy could bring needed freshness to legal writing. Law likes to do things as it has done them before. That reactive process comes with the corollary of rigidity in formal writing.

As one literary critic summarizes the dangers in habitual performance, “the point to make about convention is not that it is untruthful per se, but that it has a way of becoming, by repetition, steadily more and more conventional.”15 Literature and literary criticism admittedly have their own problems, but they do a better job of avoiding mindless routine. The writing in imaginative texts can be a useful model for law in rethinking its style if not its substance.

Literary enterprise never forgets “the great virtuoso of exceptionalism.” Creativity of this sort is the particular hallmark of fiction; “it always wriggles out of the rules thrown around it.”16 Law can learn from this inventive spirit without losing sight of the important rules that govern it.

That said, the novel is no panacea for legal reform. No one should forget that fiction leans toward protest narrative when the subject is law. A different reality, and by no means a better reality, is at work. The legal process differs not just in scope but in kind from that pictured in the realm of story.

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Its great virtue lies not in moments of crisis, as newspaper reporters and novelists would have it, but in the quotidian.

Who notices when law gets it right beyond those involved? Mundane procedural integrity and consistency rule the roost in the average working courtroom through the justice that is plausible. That is what everyone wants in life; never, though, as the reader of a novel. No work of fiction can survive such an understanding. The humdrum effect has to be made an exciting event. The procedural regularities that control in a trial exist to be broken in fiction. Courtroom novels dote on outrage, usually through an element of injustice. Although law as such is not always the villain in fiction, it must be made problematic and somehow an obstruction to a better answer given beyond its bounds.

Three paradigmatic plot situations control the ubiquitous phenomenon of outrage in courtroom fiction. Either the person punished is actually innocent (for example, in Harper Lee’s To Kill a Mockingbird ), the person on trial is punished too heavily (such as in Herman Melville’s Billy Budd and Bernard Schlink’s The Reader), or the punishment deserved is questionable (à la John Grisham’s A Time to Kill ). A novel about law succeeds on how unfairness is rendered—on whether or not that unfairness is faced squarely, on whether or not a corresponding fairness, implied or otherwise, reaches its intended audience.

Law and literature analysis easily claims too much for literature. It is not true that novels give “a different way to think about law,” nor that novels give law “real world thinking.”17 The even bolder assertion that reading literature makes the absorber of it a more empathetic observer of life is also false.18 Anyone with experience of departments of literature realizes that the people who work there are not better or more sensitive human beings when it comes to the problems they face or will not face. Is it true that “the border between law and literature has become a bridge”? Maybe so, but it is a farcical leap to use that metaphor to say the bridge will “produce further transformations in both fields.”19 Imaginative literature may encourage new thought about a specific legal problem, but it does so through the other disciplines that it brings to bear on that problem. Those who claim a separate disciplinary integrity for “law & literature” mistake the enterprise. No one should believe that “extending law and literature studies” to include philosophy and theology “risks dissolving the specificity of the original interdisciplinary undertaking.”

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Nor does it make sense to celebrate that specificity by claiming “law & literature” “may ultimately lead to a reconfiguration of genres in which ‘law’ disappears as a distinct discipline.”20 Law as a distinct discipline is with us for keeps. My work has concentrated on the aspirations against the shortfalls of an American culture that holds extravagant expectations of itself without meeting them. As often as not, law has been the cornerstone of both advance and retreat. Legal thought prides itself on a conservative frame of reference. It proceeds cautiously as one basis of its legitimacy. It thereby holds lines well but misses opportunities for advances in social justice and can retreat by losing track of the things it has accomplished. If its accomplishments are great, law still needs to be reminded of what it does best with those reminders coming from outside of itself.

Each of my previous books on law raised an interdisciplinary question in this form. Law and Letters in American Culture asked a historical question with literary implications: how did lawyers seize control of literary production from the clergy in the half century before novelists and poets took over in the 1840s?21 The answer showed how those same lawyers had the expository facility to secure a form of government that was not only unprecedented in 1787 but virtually unnamed until it was invented. It was also a reminder to the current legal profession about skills in public writing now seemingly lost to it. The American Enlightenment, 1750–1820 then followed that reminder with a different question: what is the nature of legal facility in letters?22 A subsequent book, The Trial in American Life, used methodologies in sociology, anthropology, and popular culture as well as historical and literary interpretation to ask yet a different kind of question. Why do certain courtroom events have such a long half-life in communal recognition, and what have been the permanent consequences for American thought?23 Courtroom decisions frequently exacerbate the larger problems they are forced to address when they solve a particular case. Ideological conflict is the real catalyst of many high-profile trials, and it can inflame communal norms through the embattled hyperbole of advocacy and melodramatic media coverage of it.

Most recently, Inferno: An Anatomy of American Punishment turns on a more immediate interdisciplinary question. Why does the United States punish so much more heavily than other liberal democracies?24 The book

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has the goal of contributing to a better penal system, and it uses literary texts to illustrate the degradation and pain of the imprisoned when law prefers to look the other way.

The questions asked now in this book again turn on situations where the law, for whatever reason, needs to be reminded of what it does best and what it can do better. Point and counterpoint are both important here.

How can literary awareness assist a citizenry to understand law better than it now does? Where can literature, through the showcase of other disciplines, lead law to reform itself or respond to injustices within its purview?

The questions in every chapter confront what internalized legal endeavor might not convey or recognize.

For the same reason, these eleven chapters are addressed to a general audience without losing the legal reader. Two of the great problems in contemporary law have been specialization and fragmentation. Long gone are the days when a figure like Oliver Wendell Holmes Jr. could conceive of writing a single book that would summarize the state of law in American culture.25 Gone as well are the generalists in legal education who prided themselves on teaching all parts of their discipline and held closer to a common language. The arcane nature of legal debate today does not translate easily to public comprehension.

The authority of experts can solve a problem, but it rarely guarantees communal accord.26 One value of an approach to law through the humanities comes here. How do you join legal and common expectations in shared thought about problems everyone must face? That, too, is an underlying goal of this book. Each chapter opens a path to legal explanation that every citizen should know something about and that every lawyer will gain a more informed point of view about than previously held.

Why are these connections so important? Ronald Dworkin, one of the significant legal theorists of our time, argues that “lawyers are always philosophers.”27 The assertion may be more of an aspiration than a statement of fact, but consider how aspirations become an obligation in thinking about law. Principles of professional behavior still relevant from the time of Justinian more than twenty centuries ago prove the point. The codification of Roman law begins this way: “These are the precepts of the law: live honestly, harm no one, give every person their due.”28 How does honesty square with the entrenched desire to win in advocacy? Can you engage in legal decision making without hurting anyone?

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What is a person’s “due”? These are questions that internal legal analysis only begins to solve, and they reach the recipient of law as much as they direct the appliers of it. These questions and others like them indicate that law must reach beyond itself to understand itself. Surely it is right, when we say “the rule of law is a product of the imagination before it is a product of legislative and judicial acts.”29 That act of imagination is special, but it belongs to all of us.