Transition

I was eating lunch yesterday with a fellow summer intern from Yale Law School and we struck up a conversation about the merits of interdisciplinary approaches to legal education. We both agreed that although these often theory-heavy analyses stoke our intellectual fires, they might not be much help to those law students who want to be monster litigators, tax lawyers, etc. because the law is fundamentally a practical profession. But I still like to think that interdisciplinary study contributes to a deeper understanding of the law and has practical consequences for public policy. Heck, theory might be even be useful in practical, professional legal situations. For example, law and economics might provide some helpful analytic approaches to determine the best way to assign remedies in the event of a breach of contract. Likewise, law and philosophy and a knowledge of legal history would be handy if you find yourself arguing an 8th amendment case in front of the Supreme Court (ahem, Guantanamo. . . ). The glaring problem with my position is that theory/interdisciplinary analysis becomes more "useful" only as you work your way up the legal food chain, i.e. as you take on high profile clients/argue and brief cases at the federal appellate level.

So what about the study of law and literature?

M. Todd Henderson recently wrote a blog post talking about a law and literature class that he took with Martha Nussbaum when he was a student at UChicago. The ostensible goal of the course was to increase the students' capacity for empathy, an idea grounded in an Aristotelian-influenced belief that the study of literature provides insights into the human condition. By extension, increased empathy will spur judges and policy makers—those at the top of the legal food chain—to make better legal and policy decisions.

In a paper that analyzes judicial decisions for literary references (available here), Henderson concludes that literature has had a very small impact on judges, noting that in over 2 million opinions, there were only 543 references to works of fiction and that of those, only 236 "were employed rhetorically to evoke an emotional response in the reader". Henderson concedes that, "of course, a simple count of citations will not definitively answer the question of whether particular works of literature have influenced judicial decisions." This concession leaves the door open for the possibility that literature might have a significant impact on a judge's worldview and implicitly influence his rulings.

One explanation for the paucity of judicial literary references might be that that literature is not an accepted legal authority. Lawyers and judges continually refer to sources of authority, some of which carry more weight than others, and legal arguments are often judged on their ability to properly use this hierarchy. At times, however, the law “runs out,” and other sources of authority must fill the void. Social sciences like psychology and economics are popular, as are history and, to a lesser extent, philosophy. The appeal of these authorities— especially of the social sciences— is that they are easily transposed into syllogistic arguments. The critical study of literature, however, is different, because it allows for different historical, sociological, and philosophical interpretations of works of fiction. Additionally, because the law struggles to maintain at least the veneer of impartiality, it is highly skeptical of “subjectivity,” which receives far more sympathy in literary criticism. I would like to agree with Martha Nussbaum that, “the novel constructs a paradigm of a style of ethical reasoning … in which we get potentially universalizable concrete prescriptions by bringing a general idea of human flourishing to bear on a concrete situation.” But I also think that the law rejects literary insights into the human condition as being authoritative precisely because they don’t exhibit the same “transparent” universiality that the social sciences are perceived as having.

There are, however, near-universal, or at least Western, characteristics of the human condition that are poignantly described in literature. Shakespeare comes to mind and I’m willing to bet that a reference to Lady Macbeth will generally be construed in only one way. No surprise then that Shakespeare and his works are among those most frequently cited by judges. Other literary themes, embodied in a single word or phrase, are commonly accepted as having rhetorical force, “Orwellian” being the best example. Notwithstanding the dearth of literary citations in judicial opinions, the general acceptance of these literary themes/characters/insights provides advocates with valuable argumentative tools. And, for those advocates who argue for a particular conception of human flourishing, perhaps in an appellate court or a policy setting, literature may bolster their case: Ayn Rand for the conservative individualists, the Grapes of Wrath for the liberal socialists. Therefore, that judges don’t explicitly cite works of fiction in their decisions doesn’t preclude advocates from effectively using literary references to make legal arguments. So the study of law and literature might actually have some practical benefits to lawyers, even if it's only applicable in a few limited situations. And if Nussbaum is right that reading fiction improves ethical reasoning, well, there's an argument for all lawyers to start reading novels.

And that’s my long-winded discussion of literature and the law. I have to spend a lot of time in airports this weekend, so I hope to get another couple posts up soon.