Marc L. Roark, Law, Literature, and Identity

Law, Literature, and Identity

Marc L. Roark*

My first exposure to Law and Literature was as a grad student at Duke where Jamie Boyle taught the course.   It was, for lack of a better description, a course on great books of western society with some relation back to law – many of which I had read previously in my not-so-stellar-but-above-average high school and college experience. We read books like To Kill a Mockingbird,[1] Antigone,[2] Melville’s Billy Budd and Bartleby the Scrivener,[3] and Crime and Punishment[4] amongst others. To be honest, I had never heard of Law and Literature before seeing it listed on the course menu. I’m sure we talked about law when I read To Kill a Mockingbird in high school, or maybe we just talked about racial relations in the South. To be honest I don’t remember really, perhaps suggesting that my formative education was less than average.  But considering Law and Literature as a distinct discipline, with different modalities for thinking about the world of law and its problems – that was interesting.

As I began thinking towards an academic career, Law and Literature was always intriguing. Despite that, it was third line listing on my FAR form at the AALS Meat Market mainly because the conventional wisdom was that schools don’t hire for Law and Literature. Still, I was reading everything I could get my hands on about Law and Literature, from Posner’s book titled Law and Literature;[5] Cardozo’s two part essays by the same name;[6] Steven Winter’s A Clearing in the Forest: Law, Life, and Mind,[7] Richard Weisberg’s The Failure of the Word;[8] and James Boyd White’s books The Legal Imagination[9] and Justice as Translation[10] to name a few. At the same time, I was reading other works, which were not Law and Literature per se, but had an impact on how I would see the course. They included Grant Gilmore’s Ages of American Law;[11] Willard Hurst’s Law and the Conditions of Freedom in the Nineteenth-Century United States;[12] Morton Horwitz’s two parts of the Transformation of American Law;[13] Robert Ferguson’s Law and Letters in American Culture;[14] Robert Penn Warren’s Democracy and Poetry;[15] and Robert Cover’s Justice Accused: Antislavery and the Judicial Process,[16] as well as various essays dealing with Law and the rhetoric of meaning including Cover’s The Supreme Court, 1982 Term – Forward: Nomos and Narrative[17] and Violence and the Word; Robin West’s treatment of gender and Billy Budd;[18] and Richard Weisberg’s [19] How Judges Speak: Some Lessons on Adjudication from Billy Budd, Sailor, with an Application to Justice Rehnquist.

Each of these works had a profound effect on how I began to think about the law – both in my doctrinal courses and in my thinking about the role of literature in shaping the legal mind.  I was keenly aware of Posner’s admonition that Law and Literature was susceptible to “false starts, tendentious interpretations, shallow polemics, glib generalizations, and superficial insights.”[20] This critique of Law and Literature frankly is enough to frighten any pre-tenured professor from darkening its doors. But other’s told me Posner’s critique was not quite right. Black’s essay Law as Art resonated to my view of law as a force to shape the world, not unlike authors in their times.[21]   Cover’s powerful comparison of Creon and Captain Vere in the context of the Fugitive Slave Act of the 1830’s reminded me that some generalized archetypes are helpful thinking about the world – though rarely captured in one person, the archetype helps us understand the polemics of being who we are.[22] Gilmore, Hurst and Horwitz recommended narratives of the law played out over the course of time.[23]  What Posner’s tome against Law and Literature did for me, more than anything else, is provide the boundaries of critique.

I was fortunate enough to have the opportunity to teach Law and Literature in my very first appointment at the University of Tulsa.   In face, I have been fortunate enough to teach it at every place I have taught except for one, where the bench for teaching the course was well established long before I arrived.  When I taught my first class under the name Law and Literature, I decided that the best way to avoid Posner’s critique was to ground the class in some form of literary tradition. I chose the historical tradition, and built my course as an exposition of American culture through the lens of authors and jurists. It’s a technique I have carried through to this day when I teach the course. That technique isn’t to treat authors as if they offer a particular expertise on legal matters like evidence, tort, or property.  But rather, to treat authors the same as judges, litigants and attorneys – as people who face problems on the ground that are shaped by context, culture, and conventions.  Law is one way of ascribing meaning to those conventions.  Literature is another.  To assume that they do not speak to each other would be to assume that they have nothing to say.  I think nothing could be further from the truth.

My first leap into this version of the course (and the one I’ve returned to the most) has been to understand law through the lens of the American Transcendentalists.  I have at times subtitled my course as the Transcendentalism Effect on American Law. Over the semester we read as foundational pieces stories and essays by Nathaniel Hawthorne, Ralph Waldo Emerson, Henry David Thoreau, Herman Melville, and Edgar Allen Poe, F. Scott Fitzgerald, Robert Penn Warren, Margaret Atwood, and Barbara Kingsolver to name a few.[24]  All of these are read with the backdrop of opinions and writings by Perry Miller, Joseph Story, Lemuel Shaw, Oliver Wendell Holmes, Benjamin Cardozo, Grant Gilmore, and Roscoe Pound.[25] In last few years I’ve added material on memoirs, comparing early Puritan memoirs,[26] slave memoirs,[27] prison memoirs, [28] and law professor memoirs.[29] Other versions of the course that I have taught over the years includes a focus on Russian Land and Freedom in Post-Feudal Russia,[30] Harry Potter and the Law, and Slavery, Freedom and the American South. For some reason all of this felt more concrete and less susceptible to criticism.

Of course, teaching law and literature, one typically believes that narrative is a powerful tool in the shaping of legal systems.  These themes I developed appeared over the course of my scholarship. In Loneliness and the Law, I tried to capture some of the same reflections of literature over time, in time, and through time as a companion of law’s iterations relating to the Civil Rights Act.[31] In the Nomos of the Louisiana Civil Law, I tried to show how narrative is told through law, and becomes a powerful force shaping the substance of what’s created.[32] In Disease, War and Waste, I suggested boldly that perhaps law is only narrative, and depends on the story teller and context for its meaning.[33] And in Property and Poetry, written as a tribute to Marc Poirier, I tried to show how traces of a poet never mentioned in Poirier’s work still emerged in his thought.[34] These themes emerged in my work, not because they were glib generalizations of how the law operated, but rather as insights I gained when comparing legal traditions to their literary counterpart. Law and Literature taught me that narratives matter and law tells a narrative, spins yarn, sings a song, and shapes our inter-cultural and outer-cultural identities in similar ways as literature.  It also taught me that my writing, much like the writings we read from others, constituted my own explanation of my identity.

Each time I teach law and literature I learn a bit more about who I am.   I recall Jeff Powell introducing me to a book by James White titled This Book of Starres: Learning to Read George Herbert – a gem of reflective prose about the process of reading what reading tells us about ourselves.[35]  I think back to those memoirs that I have assigned through the years, and how often the theme of reading and writing emerges – even unconsciously.   What I have learned about myself in teaching this course through the years is that Law and Literature as a course allows us to read alongside other people as they discover themselves just as we are in the process of discovering ourselves.  As academics we are fortunate enough to have an outlet to express who we are and who we are becoming.  When I think back to the relationships that I have carried with me through the years from students, its almost uniformly the students that were in that course that I have remained closest with – because we ate, drank, read, and transformed together. The professors that I know and love the most are those that I talk about literature with.  When I reflected on Marc Poirier’s life, I remarked that we don’t break bread enough – “spend purposeful time not only sharing our big ideas but our laughter, food, and fun.”[36]  In short, what I have learned about Law and Literature is something quite simple: it’s a way that we share ourselves.

* Associate Professor, Savannah Law School.  Thanks to all of my students in Law and Literature who have shaped me and continue to shape me, and to current students Cameron Kuhlman and Morgan Cutright, who read initial drafts and commented on this piece.

Copyright © 2019 Marc L. Roark 2019

[1] Harper Lee, To Kill a Mockingbird (1960)

[2] We actually read two versions of Antigone.  The classic Greek tragedy by Sophocles and a revision set in World War II France by Jean Anouilh.  See Sophocles: The Theban Plays: Antigone/ Oedipus/ Oedipus at Colonus (Ed. Ruby Blondell 2001); Jean Anouilh, Five Plays: Antigone, Eurydice, The Ermine, The Rehearsal, and Romeo and Jeanette (1990).

[3] Herman Melville, Billy Budd and Other Stories (1990).

[4] Fyodor Dostoevsky, Crime and Punishment (Trans. McDuff 2002).

[5] Richard Posner, Law and Literature (3rd ed. 2002) (seemingly less about the virtues of law and literature than a tome against Law and Literature).  I am not alone in this critique.  See Michael L. Richmond, Book Review: In Defense of Poesie: Law and Literature: A Misunderstood Relation: Richard A. Posner, Cambridge, Harvard University Press 1988, 57 Fordham L. Rev. 901, 901 (1989)(describing the work as one of unfortunate under reaching and misplaced criticism of a movement with great potential”) amongst others.

[6] Benjamin Cardozo, Law and Literature, in Benjamin Cardozo, Law and Literature (1931). Cardozo’s essays on Law and Literature have been called “among the finest writings that have been done in the law.”   Not ironically, I believe, the author of the review praises the great jurists use of plain language with a not-so-plain language of his own.  “It is not overburdened with a phantasmagoria of flowery language, nor is it without poetic force; in his nicely balanced diction the good taste of the author is manifest without being conspicuous.”  See Daniel James, Law and Literature by Benjamin Cardozo, 6 Indiana L.J. 579, 579 (1931).

[7] Steven L. Winter, A Clearing in the Forest: Law, Life, and Mind (2003).  (analyzing how our understanding of cognition shapes our perception of the law and how it interacts in shaping our lives and law).

[8] Richard H. Weisberg, The Failure of the Word (1989).

[9] James Boyd White, The Legal Imagination (2nd ed. 1973, 1985). Using the law as a constitutive rhetoric.

[10] James Boyd White, Justice as Translation: An Essay in Cultural and Legal Criticism (1994).

[11] Grant Gilmore, The Ages of American Law (1977).  Recounts the evolvement of American law from the 1800’s.

[12] James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century Unites States (1st ed. 1964). Hurst developed how the expansion of freedom was sought through the legal means during the nineteenth-century.

[13] Morton J. Horwitz, The Transformation of American Law, 1780-1860 (1979). Horwitz considers the common law and its evolution as a mechanism for economic proficiency, connecting the law to the real world through economic encouragement of the legal system.

[14] Robert A. Ferguson, Law and Letters in American Culture (1987). The connection between law and literature is implemented in as far back in history as the founders of the United States, who as lawyers wrote many of the influential pieces of our history, like that of the Constitution. Ferguson explores the connections made of the law to the letters that were written during the founding of our nation.

[15] Robert Penn Warren, Democracy and Poetry (1976). Warren demonstrates how poetry and democracy both require a concept of self, and poetry is the affirmation of the self. Warren explains how the self has been lost upon the successes of democracy, and self was the focus of the creation of a democracy for the free man, which can only be achieved by selfhood.

[16] Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (1984). Cover looks at the tensions created by the legal formalism resulting from the challenges in creating law as a response to slavery.

[17] Robert M. Cover, The Supreme Court, 1982 Term – Forward: Nomos and Narrative, 97 Harv. L. Rev 5 (1983-1984).

[18] Robin West, The Feminine Silence: A Response to Professor Koffler, 1 Cardoza Studies in Law and Literature, 15 (1989).  As West’s article indicates, her short six-page essay was a response to Koffler’s assertion that femininity was not only not present but simply banned in the world of Billy Budd.  See Judith Schenck Koffler, The Feminine Presence in Billy Budd, 1 Cardozo Studies in Law and Lit. 1 (1989).

[19] Richard Weisberg, How Judges Speak: Some Lessons on Adjudication from Billy Budd, Sailor, with an Application to Justice Rehnquist, 57 N.Y.U. L. Rev. 1 (1982).

[20] See Posner supra note 5, at 5.

[21] Charles Black, Law as Art in Charles Black, The Humane Imagination 19 (1986).

[22] See Robert Cover, Justice Accused: Antislavery and the Judicial Process (1984).

[23] See Grant Gilmore, The Ages of American Law (1977); James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century Unites States (1st ed. 1964); Morton J. Horwitz, The Transformation of American Law, 1780-1860 (1979).

[24] A key thread tying this course together was Grant Gilmore’s insightful narrative of American legal ages.   If one were telling a story of American law, as so many have, Gilmore’s piece could be the Great Gatsby of them all.   Grant Gilmore, Ages of American Law (1977).  Of the works we read included Nathaniel Hawthorne’s Roger Malvin’s Burial (1832); several essays by Ralph Waldo Emerson, both Walden and Civil Disobedience by Henry David Thoreau; Billy Budd and Bartleby the Scrivener, by Melville, and The Tell-Tale Heart, Fall of the House of Usher, and Don’t bet the Devil your head, by Edgar Allen Poe.

[25] See F. Scott Fitzgerald, The Great Gatsby (2004); Robert Penn Warren, All the King’s Men (1946).

[26] Abigail Abbot Baily, Religion and Domestic Violence in Early New England (1815) (Ed. Ann Taves 1989).

[27] Solomon Northup, Twelve Years a Slave (Ed. Joseph Logsdon 1968).

[28] Jack Henry Abbot, In the Belly of the Beast (Ed. Norman Mailer 1981).

[29] Patricia Williams, Open House: Of Family, Friends, Food, Piano Lessons (2005).

[30] Focused on Fyodor Dostoyevsky’s Crime and Punishment and Brothers Karamazov.  Dostoyevsky perhaps writes about himself more than any other author of note.

[31] See Marc L. Roark, Loneliness and the Law: Solitude, Action and Power in Law and Literature, 55 Loy. L. Rev. 45 (Spring 2009).

[32] See Marc L. Roark, “Opening the Barbarians’ Gate” or Watching the Barbarians from the Coliseum: A Requiem on the Nomos of the Louisiana Civil Law, 67 La. L. Rev. 451 (2007).

[33] See Marc L. Roark, Disease, War, and Waste: A Consideration of External Factors on the Trade Fixtures Doctrine Between 1324-1850, 43 Cumb. L. Rev. 1 (2012-2013).

Id. at 27-28.

[34] Marc L. Roark, Poetry and Property: Reflections on Marc Poirier, 3 J. L. Prop. & Soc. 13 (2017).

[35] James W. White, This Book of Starres: Learning to Read George Herbert (Michigan 1994).

[36] Roark-Poirier, supra note 34, at 18.