Columbia Law Review Association, Inc. Columbia Law Review

Review: Forged Alliance: Law and Literature
Reviewed Work(s): Law and Literature: A Misunderstood Relation by Richard A. Posner;

Interpreting Law and Literature: A Hermeneutic Reader by Sanford Levinson and Steven
Mailloux
Review by: Judith Schenck Koffler
Source: Columbia Law Review, Vol. 89, No. 6 (Oct., 1989), pp. 1374-1394
Published by: Columbia Law Review Association, Inc.
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BOOK REVIEW
FORGED ALLIANCE: LAW AND LITERATURE
LAW AND LITERATURE: A MISUNDERSTOOD RELATION. By

Richard A. Posner. Cambridge, Mass.: Harvard University Press, 1988.
Pp. xi, 364. $25.00.
INTERPRETING LAW AND LITERATURE: A HERMENEUTIC

READER. Edited by Sanford Levinson and Steven
ton, Ill.: Northwestern University Press, 1988. Pp
(cloth); $29.95 (paper).
Reviewed by Judith Schenck Koffler*
About fifteen years ago, a ragtag assembly of yo

most of them lawyers, got it into their heads that
ought to address questions of justice through literat
not altogether novel. Indeed, one of the leaders of th
ary cadre was a senior professor, J. Allen Smith, wh
ing the Book of Job to students at Rutgers Univers
Some of the subversives were in fact undercover humanists who were
infiltrating the legal academy. A few were lawyers who had defected
undergraduate humanities programs, while others were confess
fence sitters who could not bring themselves to renounce allegiance
either of the two empires. Although Professor James B. White, a s
tary pioneer, had earlier disguised a law and literature text a
casebook,' the neophyte law professors, rather like young Bartleb
* Visiting Professor of Law, West Virginia University College of Law. A.B. 196
Douglass College (Rutgers); J.D. 1972, Boston University School of Law; LL.M. 19
Harvard Law School.
1. J. White, The Legal Imagination (1973). Since that time, Professor White
published two studies in the field: Heracles' Bow: Essays on the Rhetoric and Poeti
the Law (1985), and When Words Lose Their Meaning: Constitutions and Reconst
tions of Language, Character, and Community (1984). The latter was reviewed by
Bersani, a prominent literary critic. N.Y. Times, Sept. 16, 1984, ? 7 (Book Reviews
32, col. 4. Bersani, although praising White's readings of the Iliad and of Thucyd
found White's idea that literature "teaches" the reader to become a more complete i
vidual and a member of her culture little more than a naive academic assumption. Id
32, col. 5. As Bersani points out, highly literate and cultured states from Athens to
Germany show the problematic "relation between political morality ... and exposu
the arts." Id.
As an antidote to the dangerous assumption that reading literature can impr
character and political morality, Bersani suggests that "[l]iterature invites interpreta
and also makes language somewhat unsuitable for interpretation. It does this by mak
us aware of what might be called the insubstantial density of words: literary lang
evades and undoes transmissible meanings by a kind of promisculo0us availability to m
1374
1989] LA W AND LITERA TURE 1375
"preferred not to" publish formulaic analysis of legal doctrine and, i

noring the tenure catechism, wrote articles on literature.2 Together
the group put out an equally ragtag publication, the American Lega
Studies Association Forum, caught the attention of other subversive
laboring in humanistic cells, sometimes pulled off federal grants fro
the National Endowment for the Humanities, and became, as in the
lyrics of the song "Alice's Restaurant," a movement. That movement
has lately been recognized as the law and literature movement, affec-
tionately denominated here as "law and lit."
At the outset, the reader, especially the trained lawyer, will demand
to know what I mean by a movement. I propose, with a candid self-
serving interest, two defining attributes: one, an alliance that aims at
generating political friction, intentionally going against the grain; and
two, an effective agitation of the organs of power. The first criterion I
have supplied by description, although none of the members of the
group seemed interested in pursuing any particular program. In terms
of written evidence, let the reader consider that numerous books and
scores of scholarly articles on the subject have emerged not only from
the heads of these now aging subversives, feminists, adherents of criti-
cal legal studies and "trashers," but also from historians, conservatives,
economists and even apologists for the status quo.3 One might even
ings." Id. at 33, col. 3 (emphasis added). If literature has any real moral and social
function, Bersani argues, it lies in "its demystification of the force of argument.... By
initiating a demystifying mobility within a text, the writer undoes that security of state-
ment by which we can so easily be seduced and possessed." Id. at 33, col. 4.
I question whether Bersani understood Professor White's argument. White's point
seems to be not that consuming literature will make one a better person, as if by some
magic assimilation, but rather that reading a work well requires one to open oneself to
another point of view.
2. In Herman Melville's story, Bartleby the Scrivener (1856), the narrator, a New
York lawyer, repeatedly asks Bartleby, his scrivener (i.e., human photo-copier) to help
him, but Bartleby replies, "I would prefer not to." With Bartleby's "reiterated declara-
tion what began as a humorous anecdote turns into a fable of existential refusal unto
death." The Oxford Companion to English Literature 71 (M. Drabble ed. 1985); see
also B. Thomas, Cross-Examinations of Law and Literature: Cooper, Hawthorne,
Stowe, and Melville 165-66, 179-80 (1987) ("Bartleby" reveals contradictions in legal
ideology). I supply this footnote as a shorter version of Cliffs Notes, with the abiding
hope that the reader will stop in her tracks, throw away this volume and run as if chased
by Death itself to the nearest copy of "Bartleby."
3. Aging subversives continue to agitate: e.g., R. Weisberg, The Failure of the
Word: The Protagonist as Lawyer in Modern Fiction (1984); Elkins, The Quest for
Meaning: Narrative Accounts of Legal Education, 38 J. Legal Educ. 577 (1988); Papkc,
Neo-Marxists, Nietzcheans, and New Critics: The Voices of Contemporary Law and
Literature Discourse, 1985 Am. B. Found. Res. J. 883. The American Legal Studies
Association Forum (now known as the Legal Studies Forum), although currently dis-
guised as a real journal rather than a homely pamphlet, continues to escape much no-
tice. In addition, two new law journals have recently emerged from the ferment of law
and literature: YaleJournal of Law and the Humanities and Cardozo Studies in Law and
Literature.
As for feminists, see Dalton, An Essay in the Deconstruction of Contract Doctrine,
1376 COLUMBIA LAW REVIEW [Vol. 89:1374
say that in fashionable society, it is ill-mannered, if not unprof

to know nothing about Billy Budd or deconstruction. For not
"law and lit" grown from "clandestine seminars"4 to a movemen
perhaps because of a lack of weapons with which to fend off th
of the movement, the establishment has attempted to turn law
ature into an industry, and indeed may succeed.5
94 Yale LJ. 997 (1985) (surgically altered for the Levinson-Mailloux collect
Authority, Autonomy, and Choice: The Role of Consent in the Moral and
sions of Franz Kafka and Richard Posner, 99 Harv. L. Rev. 384 (1985).
The Levinson and Mailloux collection includes condensed essays by the
"trasher" and fustian-buster, Mark Tushnet, Following the Rules Laid Do
tique of Interpretivism and Neutral Principles, 96 Harv. L. Rev. 781 (1983); b
ultra-conservatives such as Edwin Meese III, Address Before the D.C. Cha
Federalist Society Lawyers Division (1986); and by traditionalists like Freder
An Essay on Constitutional Language, 29 UCLA L. Rev. 797 (1982), and O
Objectivity and Interpretation, 34 Stan. L. Rev. 739 (1982).
"Apologists for the status quo" sounds derogatory but is rather complex
current crisis in authority. I would include James B. White as a positive f
category, and professed nihilists, like Sanford Levinson and Stanley Fish,
problematic end of the spectrum. White's Judicial Criticism, 20 Ga. L. Rev.
and Levinson's uncondensed Law as Literature, 60 Tex. L. Rev. 373 (1982), are
the Levinson-Mailloux collection.
The agglomeration of work noted constitutes a movement of many independe

minds turning away from the language of the social sciences, which has dominated le
thought over the past few generations, to the humanities, thereby expressing a "wi
spread sense of the inadequacy of our current languages ... to our experience of
and legal criticism." White, What Can a Lawyer Learn from Literature? (Book Review
102 Harv. L. Rev. 2014, 2026 (1989). Even though there might be no "common pr
gram," id., among the many writers addressing law and literature, some aspects of
movement are intensely political, some revolutionary (especially the work of femin
like West and Ashe) in the sense that certain writers see the current legal vocabular
out of joint with the reality they experience. See, e.g., Ashe, Law-Language of Ma
nity: Discourse Holding Nature in Contempt, 22 New Eng. L. Rev. 521, 523-25 (19
(surrogacy issues misunderstood because most current discussion "relie[s] upon m
cal, law-and-economics, and contract theory idiom").
4. See Gemmette, Law and Literature: An Unnecessarily Suspect Class in the L
eral Arts Component of the Law School Curriculum, 23 Val. U.L. Rev. 267, 287 (19
To be distinguished are the categories, "the law in literature" and "the law as lit
ture," neither of which has given rise to a movement, much less an industry. To
knowledge, no one has yet written on "the law by literature" or "the law with literat
or even "the law of literature," although such prepositions seem at least as promisin
the copula. Perhaps the idea of law and literature copulating is more fruitful. See, e
M. Ball, Lying Down Together: Law, Metaphor, and Theology (1985).
5. Although some suggest that "law and lit" is not a movement in any politic
sense, see White, What Can a Lawyer Learn from Literature?, supra note 3, at 20
most legal academics probably recognize, especially after the meeting of the Americ
Association of Law Schools in January, 1989 at which the Law and Humanities progr
was heavily attended, that "law and lit" has made its way into the mainstream of acce
ble academic subjects. Hence, given the proclivity of young law professors for pursu
exciting but acceptable legal scholarship (in order to advance tenure prospects by
pearing to be au courant and by liberating themselves from the sawdust-chewing tas
analyzing some politically noncontroversial securities law problem or the latest intr
cies of corporate tax), it is no wonder that many new writers have taken up a variety
19891 LA W AND LITERA TURE 1377
Two recent books attest to the vitality both of the "law and
movement and of the law and literature industry. The industrial
version can be found in Judge Richard Posner's Law and Literatur
Misunderstood Relation. As witness to the friction generated by the mo
ment, Interpreting Law and Literature. A Hermeneutic Reader, edited
Professors Sanford Levinson and Steven Mailloux, includes a variet
essays which demonstrate that the "law and lit" movement has ind
generated skirmishes, if not major wars, both inside and outside
academy.
Both books stand as small monuments marking revolutions in legal
discourse. Posner's book, attempting to transform the subversive but
relatively congenial "law and lit" movement into fodder for his law and
economics cannons, is part of a larger counterinsurgency effort.6
Posner's book represents the industrialized version of law and litera-
ture, in which the energies of art are harnessed to the market, literature
is defined in crude Darwinistic terms (pp. 71-72) and no political or
labor unrest gums up the "smooth" workings of the law. By contrast,
the Levinson-Mailloux book of essays introduces readers to the political
stakes involved in the law and literature controversy, to the literary turn
in constitutional debate, to apparently antiauthoritarian theories of
deconstruction that have invaded legal discourse and to some of the
new mind-numbing "isms," such as interpretivism and poststructural-
ism, that have been invading legal attitudes.
The very vitality of the disputes involved in both books suggests
that legal discourse has been infiltrated in such a way as to demand of
lawyers some acquaintance with literary terms such as deconstruction,
semiotics and hermeneutics, in order to do a professional job of inter-
preting the law. Thus, just as both books may indicate that the law and
literature movement has indeed become an industry, they may also
strike terror in the hearts of innocent young lawyers and judges, not to
mention academics and law students, who must now apparently in-
crease their vocabulary, if not their knowledge, about literary and mar-
ket theory and their interconnections.7
law and literature themes. By an industry, however, I mean more than a busyness or
business in the academic establishment. An attachment to high culture, and to the liter-
ary canon especially, seems to lend an aura of authority, respectability and breadth of
mind to legal academics. (Most of us would like to imitate Oliver Wendell Holmes, with
his vast knowledge of history, philosophy and literature and ferocious epigrammatic
style; we also admire the ability of a judge to spice an opinion with a quotation from
Shakespeare or Dickens. See infra note 52.) Hence the impetus of the establishment,
both academic and judicial, to claim title to literature as illuminating, enlivening or cele-
brating the law.
6. The Chicago-based transaction-cost/wealth-maximizing ideology has begun to
colonize traditional areas of the law and promises (or threatens) to control the profes-
sional vocabulary. See Minda, The Politics of Professing Law, 31 St. Louis U.LJ. 61, 63
(1986).
7. "You can effectively compete with the people in your adjoining offices. You can
Before turning to a more specific account of the two bo

their relationship to the law and literature industry, however, a
torical comments may help map the wider historical contex
which these two books emerge. The account so far has left
major developments, ignorance of which may cloud the reade
ciation of the two works under consideration.
I. A LITTLE BACKGROUND
For all we know, Plato was among the first to perceive a connection
between, if not the identity of, law and literature.8 In the Laws, one of
his later and crankier dialogues, Plato suggested that a society's law
book should be its greatest work of literature.9 It is uncertain wheth
Plato meant that laws should represent the crowning achievement
human art or, with respect to ordinary mortals, a believable giganti
fiction. Perhaps Plato meant both, for he seems to write as academ
agitator and, at least in this dialogue, as political reactionary.
Although some two millenia have elapsed, the American lega
academy seems to recognize little of note in law and literature befor
the American Revolution.10 Searching for a distinctly American ped
make partner. All you have to do is read." Richmond, Can Shakespeare Make You a
Partner?, 20 St. Mary's LJ. 885, 886 (1989) (emphasis added).
8. For a discussion of the Platonic connection between law and literature, see
Koffler, The Assimilation of Law and Literature: An Approach to Metanoia, Am. Legal
Stud. A.F., May 1978, at 5, 5-9.
9. "Surely a society's lawbook should, in right and reason, prove, when we open it,
far the best and finest work of its whole literature; other men's compositions should
either conform to it, or, if they strike a different note, excite our contempt." Plato,
Laws, Book IX, in The Collected Dialogues of Plato 858e-59a (E. Hamilton & H. Cairns
eds. 1961).
(Athenian speaking): "Our societies, we may say, abound in literary works by vari-
ous authors, and of this literature the productions of the legislator form part .... Well
then, are we to give serious attention to the compositions of others, poets and others
who have left a written record of their counsels for the conduct of life, in prose or verse,
and none to the legislator's?" Id. at 858c-d.
These passages, at least in a standard translation, sound menacingly authoritarian.
But Eric Havelock's brilliant book, Preface to Plato (1982), should be consulted before
one makes such a judgment-or, better, consult the Greek text. As even Leo Strauss
notes, Plato was not all that cranky in the Laws, for he ordains that the old men holding
the reins of power should get soused on wine occasionally. L. Strauss, The Argument
and the Action of Plato's Laws 32 (1975). A reader without Greek may derive some
wicked idea of Plato's contempt for lawyers' opportunism in his description of lawyers'
rhetoric as kolakeie, or flattery; in E.R. Dodds's inimatable translation a lawyer employing
kolakeia is a "toad-eater," "lickspittle" or, more vividly, "bumsucker." E. Dodds, Plato,
Gorgias 225 (1959).
10. There are, of course, the old standbys of Chaucer and Shakespeare, and some
newly recognized old standbys, e.g., Aeschylus and the Icelandic Sagas. On Aeschylus,
see Paul Gewirtz's brilliant essay, Aeschylus' Law, 101 Harv. L. Rev. 1043 (1988); re-
garding the Sagas, see Miller, Choosing the Avenger: Some Aspects of the Bloodfeud in
Medieval Iceland and England, 1 L. & Hist. Rev. 159 (1983); Radford, Going to the
Island: A Legal and Economic Analysis of the Medieval Icelandic Duel, 62 S. Cal. L.
1989] LA WAND LITERATURE 1379
gree for law and literature, historian Robert Ferguson suggests that in-
asmuch as law and letters cohered organically in the minds of the early
great American men, most of whom were lawyers or had legal training,
the young Republic can be said to have taken its form from a "legal
aesthetic just beneath the surface."'1 In short, Ferguson argues, early
lawyers educated as men of letters produced a rich, distinctly American
literature.12
Although distant in time from Plato, the highly cultivated, classi-
cally educated Framers of the Constitution may have tacitly recognized
the Platonic assimilation of law and letters. How this great elite tradi-
tion of law and literature degenerated into specialization or antipathy is
another story, which has been addressed recently.13 The more compel-
ling question is how "law and literature" in the 1970s became another
name for conspiracy, and intercourse between the two disciplines a
form of miscegenation. And how has that old, elite conservative tradi-
tion of "real-men's" law and literature begun to reassert itself so as to
stamp out the "law and lit" heresy?
A history of the "law and lit" saga would not be complete without
the mention of the illustrious Cardozo, whose essay Law and Literature
celebrated conjugal felicity between the two disciplines in the 1920s.'4
On the other hand, Thurman Arnold, a merciless debunker, launched
an assault on the law as a gigantic folktale in The Folklore of Capitalism,'5
thereby recapturing a different side of the Platonic "law and lit" simile.
Rev. 615 (1989). The Icelandic Saga's fans multiply even in the radical libertarian maga-
zine Liberty. See Friedman, Viking Iceland: Anarchy That Worked, 2 Liberty 37, 40
(1989) ("The medieval Icelandic legal system comes closer than any other ... to being a
real-world example of [an] anarcho-capitalist system.").
The huge gap between Plato and the American Revolution underscores my misgiv-
ings, as a legal academic, that law school can stimulate students to learn about foreign
cultures. The dearth of historical inquiry, of legal historians in many major law schools,
of solid comparative law programs as a basic component of the curriculum and of for-
eign language requirements points to a narrowness of focus in the minds of many law
students and legal scholars.
11. R. Ferguson, Law and Letters in American Culture 7 (1984). Readers who
enjoy plaudits about literary lawyers of the past or the timbre of a Fourth of July parade
are directed to M. Blumfield, J. McWilliams & C. Smith, Law and American Literature:
A Collection of Essays (1983) [hereinafter M. Blumfield]-and those who do not may
confine themselves to my ill-tempered essay, Koffler, Reflections on Detente: Law and
Literature (Book Review), 62 Tex. L. Rev. 1157 (1984).
12. See R. Ferguson, supra note 11, at 9. Brook Thomas has examined the unset-
tling antiestablishment attitudes of several fiction writers. See B. Thomas, supra note 2,
at 93-163; see also Page, The Ideology of Law and Iiterature (Book Review), 68 B.U.L.
Rev. 805, 808 (1988) (Thomas's book provides distinctly Marxist perspective). Posner
notes, but does not discuss, Thomas's economic and political perspectives on the phe-
nomenon (p. 163).
13. See M. Blumfield supra note 11, at 21; R. Ferguson, supra note 11, at 199;
Koffler, supra note 11, at 1162; Page, supra note 12, at 806.
14. B. Cardozo, Iaw and Literature and Other Essays (1931).
15. "[Ylears ago Mr. Justice Cardozo pointed out that law was really literature.
This is true. Yet if' it were generally recognized to be true, the particular kind of litera-
1380 COLUMBIA LA W REVIEW [Vol. 89:1374
Arnold, unlike the reform-oriented Cardozo, was a virulent critic o

establishment and of capitalism.16
With Cardozo and Arnold taking inimical political views abou
and literature-and indeed about the law itself-the seeds had been
sown both for a cozy flattery of the establishment and for a na
bunking of its pretensions. Thus, both the "law and lit" movem
the law and literature industry can claim roots, if not in Plato's am
ities, then certainly in the American legal past. It remains to b
whether the two books considered here emerge against or fro
context.
II. POSNER'S "MISUNDERSTOOD": A GENEALOGY
Posner's book grew out of a series of law review articles, mos

prominently his Law and Literature: A Relation Reargued,17 which
been revised in the book. Posner's argument is that the interpretat
of literature and the interpretation of legal texts are so dissimilar
the study of one has little to contribute to the study of the other
Legal language is specific and historically bound, while literary l
guage is inherently ambiguous. Thus, for Posner, legal texts must
interpreted according to the intention of the author (or, as with t
Constitution, that of the Framers). Literary texts, on the other ha
require the reader "merely to assign some coherent and satisfyin
meaning"19 irrespective of what an author may have had in mind
sum, Posner's relentless separation of the two disciplines guides his
ploration of the "misunderstood relation" between law and lite
ture.20 Legal texts derive from authority, to wit, their authors' mind
whereas literary texts, lacking authority in the legal sense, and br
ming with deliberate enigma, demand a freedom of interpretation
the law does not allow (pp. 218, 240-41).
Posner's leading theme both in the "seminal" essay and in t
book is a response to perceived misguided trends in law and literat
Posner's public stand about the folly of collapsing the distinctions
tween law and literature appears to have been taken by necessity, give
the law and literature movement's incursions into the prestigious
ture known as law would not have the kind of influence it has today." T. Arnold, The
Folklore of Capitalism 46 (1937) (speaking on the folklore of 1937 in particular).
16. The so-called principles of law, especially those relating to constitutional law
were not, Arnold argued, inescapable truths or the natural laws ofjustice; instead, they
were ideological inventions, or fictions, designed to protect private property interests.
Arnold saw these fictions as pernicious, not so much because they were fictions, but
because they were a destructive and disintegrating force since they purported to de-
scribe a reality from which they were a gross deviation. Id. at 47.
17. 72 Va. L. Rev. 1351 (1986).
18. Id.
19. Id. at 1361-62.
20. For an energetic attack on Posner's article, see Fish, Don't Know M
the Middle Ages: Posner on Law and Literature, 97 Yale LJ. 777 (1988).
reviews. To be specific, in the pages of the 1985 Harvard Law Rev

Professor Robin West had brilliantly used the work of Franz Kafk
expose fallacies in Posner's economic theories.21 West suggested t
the Posnerian idea of humans as rational wealth maximizers was a fanci-
ful half-truth, if not a corrosive fiction,22 and her essay engendered a
flurry of controversy, with Posner's replies and West's rejoinders.23 As
inevitably happens in the law reviews, lead articles and symposia on law
and literature have begun to pour out (as earlier they had dribbled).24
Judge Posner, however, while at one time put on the defensive, has now
used the occasion of West's criticism to attack the movement. The
chief lesson in his book is that literature and literary theory have, in
hands of recent writers, been "contorted to make literature seem rele-
vant to law," and "law . . . contorted to make it seem continuous with
literature" (p. 13) (emphasis added).
Before looking more closely at Posner's arguments, some praise is
in order. His book is, first of all, a delightful vademecum, a go-with-me
or "companion" for anyone studying law and literature, and essential
ammunition for a teacher proposing such a course offering to a reluc-
tant curriculum committee. The book collects more secondary litera-
ture than a reader or writer would be able to use, much less read, at
least with respect to canonical works. With its rain of footnotes alone,
the book irrigates some of the arid troughs that run through the disci-
plines. But there is also a negative side to this superabundance of foot-
notes. Only a small number of the sources are discussed, and there are
many sources and viewpoints that go entirely unnoticed. Hence, it is
unsafe to consider oneself relieved from dirty work in the library if one
wants to know, for example, the political and philosophical background
to Dostoevsky's Crime and Punishment (doesn't Raskolnikov commit a
theoretically wealth-maximizing crime?), or whether Dickens was a radi-
cal or a reactionary (don't the lawyers of Bleak House behave as model
wealth-maximizers?). For example, although Posner seems interested
in Dickens's moral vision and insights into corrupt legal institutions, a
reader detects a touch of scorn in his statement that Dickens was a
21. West, supra note 3. Richard Weisberg, one of the original and most illus
of the law and literature subversives, had earlier lodged an attack on Justice R
using Melville's Billy Budd. See Weisberg, HowJudges Speak: Some Lessons on
cation in Billy Budd, Sailor, with an Application to Justice Rehnquist, 57 N.Y.U
1, 42-58 (1982). Professor Weisberg also wrote an unsettling account of law
modern fiction, see R. Weisberg, supra note 3, and is currently at work on an
the role of lawyers in Nazi-occupied France during World War II.
22. See West, supra note 3, at 385-88.
23. See Posner, The Ethical Significance of Free Choice: A Reply to Pro
West, 99 Harv. L. Rev. 1431 (1986); West, Submission, Choice, and Ethics: A R
to Judge Posner, 99 Harv. L. Rev. 1449 (1986).
24. See, e.g., Balkin, Deconstructive Practice and Legal Theory, 96 Yale L
(1987); Symposium: Iaw and Literature, 39 Mercer L. Rev. 739 (1988). Posner
duction collects most of the relevant sources (pp. 6-13). More current listings a
White, What Can a Lawyer Learn from Literature?, supra note 3, at 2024-26
"moralist who believed (very much in the spirit of the Romanti

ment) that institutions pervert the inborn goodness of peo
131), as if Dickens had yet to be undeceived by Malthus, Hob
Milton Friedman.
With Posner's attack on other alleged faults in Romanticism, for

example, that it annihilates the boundaries between individuals (pp
150-51), that it tends to "turn the moral order upside down" (p. 151
that it tends to encourage radicalism (p. 145), or that it is a fundame
tally immature mood of childhood egoism (pp. 140-41), a reader m
suspect that Posner has other, more "mature" literary leanings. No
where is this leaning so apparent as in Posner's discussion of Billy Budd,
whose authority figure, Captain Vere, Posner redeems from recen
legal and literary assaults25 and hails as a "greatly superior person
who, although "isolated by his intelligence" (p. 158), was implicitly a
peace with the demands of war and the cheapness of life. In Posne
opinion, Vere's judgment, although harsh, reveals him as a sensitiv
but eminently practical man (pp. 160-61).26
With a chapter devoted to "Two Legal Perspectives On Kafka
Posner makes the reader understand the larger battle that rages b
tween the law and economics movement and the sort of "law and lit"
challenge to authority that Robin West detonated in the Harvard La
Review. This chapter begins by parading economics as the science o
rational choice and the law and economics movement as a scientific
challenge demanding that lawyers recognize and accept a set of c
cepts inlcuding market behavior and wealth maximization, even th
it undermines the assumption that law is an autonomous discipline
Posner admits, law and economics rests on assumptions about hu
nature that many, especially trained humanists, find disturbing,
more importantly, that most of the practitioners of law and economi
are "politically moderate or conservative" in contrast to the libera
radical bent of most contemporary humanists (pp. 176-77).
Repeatedly, Posner singles out as the enemy those lawyers wh
readings of literature he calls "tendentious," such as movement cri
Richard Weisberg and Robin West, whose interpretations Posner s
are not so much interpretations as "disfigur[ings]" of great liter
texts (p. 180). Thus, a good portion of Posner's book admittedly
rescue effort to redeem "valid" law and literature studies from the
parently wrong-headed, politicized, tendentious writings of the
and lit" subversives (pp. 177-78). The idea that seems to obsess Po
ner is that interpretation in literature cannot be interpretation if
draws support for an "ethical or political position" from a text (
181).27
25. See, e.g., R. Weisberg, supra note 3, at 141-45.

26. The struggle over the meaning of Billy Budd continues. See Billy Budd Sympo-
sium, 1 Cardozo Stud. in Law and Lit. 1 (1989).
27. At one telling point, Posner's counterattack on Robin West aims beyond the
1989] LA W AND LITERATURE 1383
Posner's complaint about lawyers using literature tendentiously

may be right on the mark. In a recent and illustrative case, the feminist
Margaret Randall, an internationally renowned author of more than
forty books who recently sought permanent residence status in the
United States, found herself persecuted by "intentionalist" Immigra-
tion and Naturalization Service ("INS") attorneys who urged her de-
portation for publishing critical political cartoons, writing a poem
entitled "Che" and other nefarious expressions.28 An INS attorney
argued:
There is an enemy here, and that enemy is ambivalence and
the danger is one that has been recognized as recently as this
year [in Allan Bloom's The Closing of the American Mind] ....
We are an intolerant government. We are intolerant of world
communism, and we are intolerant of those individuals like
Randall, who attempt to increase its hold on the world.29
Had the judge and the government attorneys been illumined by
Posner's book, it is probable that they would have concluded that
Randall should not have been deported for her literary works. Accord-
ing to Posner, a New Criticism approach,30 together with a healthy dis-
taste for censorship, is the only proper way of protecting freedom of
expression (pp. 311, 329-30).31 Ironically, Posner's approach, for all
its profound conservativism and seemingly intolerant attitude toward
"radicals," may uphold first amendment freedoms with greater security
politics of literature to the politics of feminism: "[Contrary to West], it is not true in our
society that a wife must take abuse from her husband; she can leave him" (p. 194). A
cost-benefit calculation seems always at hand; for Posner, there is really no question of
interpreting a woman's rational choice: if a woman stays and takes the abuse, it is usu-
ally because the alternatives are even worse (pp. 194-95). What lies beyond this trivial
truth? "Worse" is not defined, nor is the woman's asserted "choice" subjected to any-
thing deeper than surface meaning, nor is the matter of interpreting her plight located
in the larger context of her history as an incompetent witness, as a victim in a fictitiously
discrimination-free system, or even as a psychically disabled, brainwashed being, as
many an abused spouse may find herself. SeeJ. Blackman, Intimate Violence: A Study
of Injustice (1989); C. MacKinnon, Feminism Unmodified (1987). For some arresting
analogies between Billy Budd and battered spouses, see West, The Feminine Silence: A
Response to Professor Koffler, 1 Cardozo Stud. in Law and Lit. 15, 17-18 (1989).
28. Cole, Metaphor and the I.N.S.: Deportation of a Poet, The Nation, June 25,
1988, at 893. Deportation proceedings were brought under the Immigration and Na-
tionality (McCarran-Walter) Act, ch. 477, 66 Stat. 163 (1952) (current version at 8
U.S.C. ?? 1101-1557 (1988)). See Cole, supra.
29. Cole, supra note 28, at 894.
30. For a discussion of New Criticism, see infra notes 32-34 and accompanying
text.
31. Apparently, Judge Martin Spiegel, the immigration judge who denied Randall
application for permanent status, failed to approach Randall's literature as a New Crit
since he never quoted a single passage from the 2,744 pages of Randall's literary wr
ings. See Cole, supra note 28, at 894. Judge Spiegel's senseless censorship "failed ev
to undertake the very task of reading and interpretation that the [McCarran-Walter]
required." Id. at 895. Judge Spiegel's decision was overturned by the Board of Imm
gration Appeals. See L.A. Times, July 27, 1989, at A2, col. 1.
than that of any deconstructionist or "Crit." For in his insi

allowing literature to survive or die in the marketplace of ideas
politicians, prosecutors, judges and jurors (pp. 334-35), P
braces virtual political immunity for literature.
Having jettisoned much of the "law and lit" movement's
literature as a moral and political challenge to the law's mask
Posner concludes the first half of his book, "Literature
Themes," and turns to the problem of objectivity in interpretat
this were the decisive battle. "The contemplation of literatur
yers can at best open broad vistas of social significance" he
but only at the risk of "using literature tendentiously" (p. 205)
added). Putting the matter polemically, Posner invites the
demand just how his disagreements with the "law and lit" s
can ever be resolved in view of literature's profound ambigu
In Part II, entitled "Law as a Form of Literature," Posner tur
attention to the infiltration of literary interpretive methods in
with a short excursus on reader-oriented theories that hold that all
meaning is produced by the reader rather than "found" in a text,
on the topic of deconstruction as a radical practice of decomposi
compositions. Chapter Five, entitled "The Interpretation of Statu
and the Constitution," promises to resolve the many confused lite
assaults on the law, to capture and disarm those literary poachers
want to show that legal interpretation is impossibly subjective, an
send the nihilists and skeptics back over the "borderline" to litera
or to politics.
Posner surveys in abbreviated fashion the warring literary and legal
theories regarding interpretation, including Ronald Dworkin's position
that we are bound to choose as a better interpretation the more com-
plex, more coherent, more aesthetically rich of two possibilities in the
law as well as in literature (p. 217). He takes shots at deconstruction as
one more nail in the coffin of authority, and at literary critics' pretense
of having anything worthy to do in solving puzzles of legal interpreta-
tion as the "falsest of the false hopes of the law and literature move-
ment" (p. 17).
Posner's attempt to introduce the reader to the murky strands of
literary criticism, which have become entangled in law, politics and the
many iconoclastic movements that make legal academia so eruptive and
exciting these days, will not satisfy a demanding reader, but it may help
her understand better the raison d'etre of the Levinson-Mailloux collec-
tion of essays. Poststructuralism, deconstruction, reader-response the
ory, nihilism, intentionalism and similar arcana are briefly paraded for
us in Chapter Five of Posner's book, chiefly to show these new theories
as jargon-ridden flatulence, at least as applied to legal texts. By con-
trast, Posner argues that literary texts merit the approach of Posner'
brand of New Criticism and that legal texts demand an intentionalist
reading. Thus, echoing the early warning of Posner's introduction, thi
chapter insists on the fundamentally ineradicable difference in

terpretation of law as opposed to that of literature.
Posner embraces literature as a "New Critic" in contradistinction
to his rather hidebound "intentionalist" approach to reading statut
A legal intentionalist strives to read a constitution or a statute us
whatever materials are at hand to shed light on "how the legislato
would probably have answered [the] question of statutory interpre
tion if it had occurred to them" (p. 218).32 A "New Critic," accordi
to Posner, properly approaches literary texts as artifacts, "coherent
[themselves] and not to be understood better by immersion in the d
tails of the author's biography or in the other circumstances of its com
position" (p. 218). In short, Posner's "New Critic" believes that
author's intentions in creating a literary work are relatively immateria
the function of the literary interpreter is "to assign a coherent and sat
fying meaning to the words" (p. 219).33
In brief, Posner argues that intentionalism, or a focus on the choic
of words of the author(s) or framers, is esential to the interpretation o
a legal text. As with an earlier chapter on the indictments of legal inju
tice, Posner's argument is reactive, heading off the skeptical attack
literary critics who deny any objectivity in interpretation. But Posner'
preference for interpreting legal texts as the intent of their autho
does not lead him to embrace intentionalism in literary interpretati
He reminds us that there are too many differences between works
literature and enactments of legislatures to permit such analogizing
Thus I do not consider myself inconsistent in being an inten-
32. It has already been suggested by others that such an approach is profound
problematic and inevitably infected with the reader's ideology. See Goldstein, Histor
Homosexuality, and Political Values: Searching for the Hidden Determinants of Bowe
v. Hardwick, 97 Yale L.J. 1073, 1075 (1988); cf. Lane, The Poetics of Legal Intepretati
(Book Review), 87 Colum. L. Rev. 197, 212 n.37 (1987) (distinguishing between a
framer's intention and his interpretation of his intention) (reprinted in Levinso
Mailloux p. 474).
33. For criticism of Posner's brand of New Criticism, and for utter bewilderment,
see Mailloux, Rhetorical Hermeneutics, 11 Critical Inquiry 620, 623-24 (1985), (
printed in Levinson & Mailloux pp. 345-62); White, What Can a Lawyer Learn fro
Literature?, supra note 3, at 2031 n.50.
I do not know exactly what Posner means by "New Criticism." If he means to co
demn interpretations which reduce a literary creation to its author's psychoanaly
problems, his point is rather obvious. But if he means that a work of literature sho
not be "contaminated" by any light that history, politics and biographical studies mi
shed on the work, I question whether many critics would agree.
For an example of a reductive study bordering on the ridiculous, see Kanze
Dostoevsky's Matricidal Impulses, 35 Psychoanalytic Review 115 (1948). According
Sigmund Freud, Dostoevsky suffered from repressed homosexuality; his mania for ga
bling was an expression of a compulsion to masturbate, which made Dostoevsky n
rotic, egotistic and masochistic. Hence, Kanzer argues that the theme of Crime
Punishment is its obsession with the female sex and sexuality. Id. at 119. For a critic
of Freud and his followers, seeJ. Frank, Dostoevsky: The Seeds of Revolt, 1821-18
at 25-28, 87-89 (1976).
tionalist when it comes to reading statutes and the Cons

tion but a New Critic when it comes to reading work
literature. A legal intentionalist holds that what you are try
to do in reading a statute or the Constitution is to figur
from the words, the structure, the background, and any ot
available information how the legislators whose votes w
necessary for enactment would probably have answered
question of statutory interpretation if it had occurred to th
A New Critic treats a work of literature as an artifact, cohe
in itself and not to be understood better by immersion i
details of the author's biography or in the other circumstan
of its composition . . . (p. 218).
New Critics exposed the immaturity of Romanticism and of
neity, while they re-established a "mature, realistic attitude tow
(p. 221). Posner's version of "New Criticism" has been calle
ture in that it denies the relevance of anything beyond the lite
fact.34 The underlying issue, however, is once more the ba
authority, since New Critics, as Posner points out, respond
even embraced prevailing right-wing political winds, whereas t
wing critics denounced them as bourgeois sycophants (pp.
III. LEVINSON AND MAILLOUX: THE BATTLE OVER INTERPRETATION
A reader left breathless and bedazzled by Posner's book on law an

literature might take comfort in turning to Levinson and Mailloux's col-
lection. The virtues of this book are that it assembles some of the more
influential literary trends in the law and suggests how those tren
align themselves with broader political and cultural upheavals, inclu
ing debates over constricting civil rights and over the efforts of critic
legal studies adherents to dismantle outworn doctrines and to unma
the law's apparent beneficence. Without this collection, the essays
most of which appeared in law reviews or literary journals, would n
be readily accessible, nor would a reader understand so well how soc
and political debates about authority have been transformed in
clashes over differing theories of interpretation.35
Unlike Posner's almost single-minded effort to rectify the per
34. See White, What Can a Lawyer Learn from Literature?, supra note 3, at 20
n.50.
35. Although the price of the Levinson-Mailloux collection seems to qualify it as
"luxury goods" ($62.95 cloth; $29.95 paper), it may be no luxury for a court or for civil
libertarians seeking, for example, a theory to protect the likes of Aristophanes or Larry
Flynt against libel claims. See Treiger, Protecting Satire Against Libel Claims: A New
Reading of the First Amendment's Opinion Privilege, 98 Yale LJ. 1215, 1217 n.18
(1989) (noting the importance of legal hermeneutics in disputes involving the tort of
libel).
On hermeneutics generally, see S. Fish, Is There a Text in this Class? (1980);
Cover, The Supreme Court, 1982 Term-Foreword: Nomos and Narrative, 97 Harv. L.
Rev. 4 (1983); Interpretation Symposium, 58 S. Cal. L. Rev. 1, 35-275 (1985); Treiger,
supra, at 1227-28 nn.87-89, for additional sources.
ceived harm that the "law and lit" movement has perpetrated, this
lection presents a variety of political and legal views. In contras
Posner's book, this collection has very little to say about literature it
Although the essays observe similarities and distinctions between
ary works and legal texts, the central purpose of the collection
explore how discoveries and insights current in literary theory
light on the process of legal interpretation. That these insights
fairly serious political implications is suggested by the fact that the
lection begins with two provocative essays, the first, by Justice Will
J. Brennan, vindicating his interpretation that the eighth amendm
prohibits capital punishment as "cruel and unusual" (pp. 13-24),
the second, an address by Edwin Meese, insisting that constituti
interpretation requires loyalty to the Framers' intentions (pp. 25
Thus the stage is set for the remaining twenty-odd essays that re
rather like position papers on the problems plaguing the legal acad
and society generally: the search for authority (or perhaps the decay
authority), the tendency toward nihilism (currently bemoaned36
disintegration of old values, and the tendency toward privatization
away from public life and community values.37 As we have seen,
are also issues for Posner, and if other academics are to be believed, t
struggle is not only over political consequences but also for "the
of the academy and ultimately for that of the polity.38
For example, Sanford Levinson, writing on Law as Literature,
plores as pernicious Justice Rehnquist's jurisprudence, but dispute
view, propounded by Professor Fiss of Yale, that there is such a thing
"objective interpretation" or even an "interpretive community"
whose values and authority one may appeal to dismiss the "appal
Rehnquist oeuvre" (p. 171). Levinson discusses approvingly the con
versial theories of Stanley Fish and others, represented in this co
tion, who argue that texts are radically indeterminate, that mean
are made, not found, and that any search for finality in interpretati
quixotic (pp. 60-61). By joining with these antiauthoritarians, ho
ever, Levinson distances himself from true believers like Fiss, wh
sists upon ascertainable values like liberty, equality and due proce
166).
36. See West, Adjudication is Not Interpretation: Some Reservations about the
Law-as-Literature Movement, 54 Tenn. L. Rev. 203, 244-57 (1987) (attacking the self-
professed and hidden nihilism of several writers, including Stanley Fish).
37. Clare Dalton's essay in the collection tracks the preference of contract doctrine
for private values, while it limits public interests to a strictly supplemental role (pp.
291-301). See also Olsen, The Myth of State Intervention in the Family, 18 U. Mich.
J.L. Ref. 835 (1985) (arguing that the private family is an incoherent ideal and that the
rhetoric of nonintervention is harmful).
38. See the concluding chapter of S. Presser &J. Zainaldin, Law and Jurisprudence
in American History 879-1063 (2d ed. 1989), entitled, "The Struggle for the Soul of the
Legal Academy," recognizing law and economics, critical legal studies, law and litera-
ture, and (last) feminism as the four horsepersons of the apocalypse.
1388 COLUMBIA LA W REVIE W [Vol. 89:1374
Included in the collection is Paul Brest's brilliant essay, The Misco

ceived Questfor the Original Understanding, an attack on the view that
ern readers of the Constitution must constrict the language of
Constitution to what certain of our progenitors had in their colle
cranium; an essay by Charles Fried comparing the law to a Shak
pearean sonnet; two essays setting forth the controversy between en
terrible Stanley Fish and antinihilist Owen Fiss; an essay by David Co
ens Hoy explaining hermeneutical and poststructural debates; and
essays that promise to introduce the reader to the critical legal st
approach, one by that other enfant terrible, Mark Tushnet, whose at
on neutrality and the liberal embrace of individualism have gene
much distress in the legal academy and the other by Clare Dalto
whose article An Essay in the Deconstruction of Contract Doctrine draws up
deconstruction and poststructuralism to attack the professed "priv
and "will" theories of contract doctrine, while suggesting how femin
theory might give the lie to objectivity in contract principles. But D
ton's essay has been radically unsexed, with editorial amputations mu
lating its feminist arguments. Finally, a concluding short sec
entitled "Rhetoric and Politics," ends withJames Boyd White's pe
tion appealing to community, conversation and moral responsibili
My quarrel with this collection of essays is twofold. First, des
its usefulness to a general reader, it seems to lack a principle of orga
zation. Too much material is crammed between the covers of the book
for an unsophisticated reader. (As a guide, I would suggest starting
with Fiss's essay as an introduction to the essays by Fish, Levinson and
Gerald Graff on the issues of objectivity, nihilism, and conventional
constraints on interpretation.) Second, the book omits some of the
most stimulating contributions in the area; it ignores almost entirely,
but perhaps all too predictably, feminist contributions to the debate
and indeed excludes any serious self-doubt about the patriarchal con-
cepts underlying "community," "conversation" or "convention." For
example, none of Robin West's essays have been included in the collec-
tion, even though her work illumines the battle lines drawn by Fish,
White and Posner better than anything in this collection.39 Nor will the
reader find the outrageously funny attacks of Pierre Schlag on the pre-
tenses of legal scholarship,40 encounter the amusing and pellucid
deconstructive acrobatics of Jack Balkin,41 or have a suspicion about
the flood of feminist writings that address the debates raised in the
39. See, e.g., West, supra note 36.

40. Schlag, Cannibal Moves: An Essay on the Metamorphoses of the Legal Distinc-
tion, 40 Stan. L. Rev. 929 (1988); Schlag, Fish v. Zapp: The Case of the Relatively Au-
tonomous Self, 76 Geo. LJ. 37 (1987); Schlag, The Brilliant, the Curious, and the
Wrong, 39 Stan. L. Rev. 917 (1987).
41. Balkin, Taking Ideology Seriously: Ronald Dworkin and the CLS Critique, 55
UMKC L. Rev. 392 (1987); Balkin, The Footnote, 83 Nw. U.L. Rev. 275 (1989); Balkin,
supra note 24.
Levinson-Mailloux book.42 That these are sins of omission, and not

commission, seems apparent, but to women, they are all too predict-
able follies of male scholarship.43 If the collection suggests that it cov-
ers the spectrum, albeit superficially, of literary critiques of law, this
omission is too palpable to ignore.
With respect to young writers like Balkin and Schlag, I hope that a
publisher will rescue their work from the oblivion of the law reviews
and present it soon to the general public, to would-be law students, and
to lawyers bored or befuddled by some of the essays in the Levinson-
Mailloux collection. For some of them are, quite honestly, overwritten
and tedious. In contrast, for all of his faults, Posner has the deliberate
and enticing virtue of readability.
On the matter of ignoring feminist writers and the power of their
attacks on male supremacy, or on unreflecting claims about community
and conversation, both books merit harsh criticism. By ignoring the
female voices now finally making themselves heard above the din of
traditionally male scholarship, especially those female voices that ad-
dress the fabrications, fictions and forgeries of the law and economics
movement and the phallic "hermeneutics" of male discourse, falsely
conceived as universal, Levinson and Mailloux have done themselves
and their readers a disservice.44 As Marie Ashe has recently written, it
is time now for men to be very quiet and to listen very carefully,45 for
surely listening is the sine qua non of any real conversation.
CONCLUSION
The unstated issue in the academic controversy between the law

and economics movement and the law and literature/hermeneutics
42. See, e.g., Law, Rethinking Sex and the Constitution, 132 U. Pa. L. Rev. 9
(1984); Olsen, The Family and the Market: A Study of Ideology and Legal Reform
Harv. L. Rev. 1497 (1983); Scales, The Emergence of FeministJurisprudence: An Es
95 Yale L.J. 1373 (1986); West, Jurisprudence and Gender, 55 U. Chi. L. Rev. 1 (19
There are also several law journals on feminist jurisprudence. See, e.g., Berkeley W
men's Law Journal; Harvard Women's Law Journal; Wisconsin Women's Law Jour
43. I advise the reader to run right now to Frances Olsen's essay, Feminist Theor
in Grand Style (Book Review), 89 Colum. L. Rev. 1147 (1989) (reviewing C. MacKinn
Feminism Unmodified (1987)).
44. The complaint of feminist scholars that "neutral" scholarship is in reality m
discourse and that women's history has been ignored or made invisible runs thro
many disciplines, from the study of classical Greece, see E. Keuls, The Reign of
Phallus: Sexual Politics in Ancient Athens (1985), to science, see R. Bleier, Science
Gender: A Critique of Biology and Its Theories About Women (1984); E. Keller, Ref
tions on Gender and Science (1985).
45. Ashe, Conversation and Abortion (Book Review), 82 Nw. U.L. Rev. 387,
400-01 (1988). Ashe's extraordinary style and her direct, graphic and keenly detailed
description of women's (and her own) bodily experience of pregnancy, birth, lactation,
and abortion combines uncanny erudition with a candor rarely encountered in the law
reviews. See Ashe, Zig-Zag Stitching and the Seamless Web: Thoughts on "Reproduc-
tion" and the Law, 13 Nova L.J. 355 (1989).
1390 COL UMBIA LA W REVIEW [Vol. 89:1374
movement seems to be the question of control of the vocabular

legal discourse. As David Carlson has pointed out, control of the
cabulary governs access to the prestigious law reviews, control
panels at leading conferences and "even access to political power
As any clever trial lawyer knows, language governs our ideas
words have an uncanny way of policing our perceptions. Thucydid
student of the notorious Gorgias (although not to our knowledge a tr
lawyer), made this point devastatingly clear, as the law and liter
writers have often noted.47 Professor White refutes Posner's idea that
lawyers have nothing to learn from literature except style. "Whoever
controls our languages," argues White, "has the greatest power o
all."48 Further, the new vocabulary of efficiency and transaction costs
has altered not only the way law review articles, and especially tenure
articles, are composed (including the caryatid-like footnotes upon
which their texts rest), but also the way the law is taught and eventually
absorbed into the judicial mind and its products. Hence one finds not
only a revolutionary change in the way human transactions are
viewed-for example, looking at the adoption area as a market for baby
flesh49-but also in the way judges are speaking these days to such
nonliterary issues as leveraged buyouts and fraudulent conveyances.50
It is not surprising, therefore, that feminists demand a change in
the use of language, whether it be the unsexing of the Uniform Com-
mercial Code's grammar or the renaming of what used to be seen as
"harmless office pranks," and still is seen as magisterial prerogative, a
sexual harassment.51 It is also not surprising that debates over the
46. Carlson, Is Fraudulent Conveyance Law Efficient?, 9 Cardozo L. Rev. 643, 682
n.99 (1987); see also Minda, supra note 6, at 62, 64-67 (Posner's law and economics
efforts have effectively "colonized" quasi-official legal language).
47. See J. White, When Words Lose Their Meaning, supra note 1, at 89-92; see
also Teachout, Chicago Exposition: The New American Jurisprudential Writing As a
Cultural Literature, 39 Mercer L. Rev. 767, 797-99 (1988) (Thucydides describes the
"tragic consequences of abandoning an ethically integrated rhetoric for the radical em-
brace of the language of self-interest."); Koffler, Book Review, 1 Pace L. Rev. 403 (1981
(reviewing J. Ely, Democracy and Distrust (1980)) (comparing Thucydides's lesson
about language and power with Ely's degradation of the moral vocabulary).
48. White, Law and Literature: "No Manifesto," 39 Mercer L. Rev. 739, 747
(1988).
49. See R. Posner, Economic Analysis of Law ? 5.4 (3d ed. 1986); Landes & Posner,
The Economics of the Baby Shortage, 7 J. Legal Stud. 323 (1978).
50. See, e.g., Kupetz v. Wolf, 845 F.2d 842 (9th Cir. 1988) (adopting wholesale the
law and economics analysis).
51. See C. MacKinnon, Sexual Harassment of Working Women: A Case of Sex
Discrimination (1979). On the documented discrimination that feminist law professors
have faced, see Olsen, supra note 43, at 1149 n.14 (MacKinnon and others denied ten
ure); see also Toufexis, Now for a Woman's Point of View, Time, Apr. 17, 1989, at 51
(feminist scholars are challenging male bias in legal system); Herold, The Personal Bat-
tle of Beverly Carl, The Dallas Morning News, Mar. 23, 1986 (Magazine), at 11 (law
professor Beverly Carl brings sex discrimination lawsuit against Southern Methodis
University). Shockingly, but perhaps predictably, some "traditionalists" complain that
1989] LAW AND LITERA TURE 1391
Framers' intent, that perennially overbeaten dead horse, drew

gories of literary hermeneutics as a way of unmasking the pol
sues at stake in the fight over the nomination of Judge Rober
And now that literary talk is in fashion, it is no wonder that pro
members of the judiciary recognize a professional imperative
works of literature.52
Some critics of the law and economics colonialism of legal dis-

course seem utterly frustrated, for no matter what the human problem
that gives rise to a legal issue, whether it be adoptions or punches in the
nose, and no matter what the field of intellectual inquiry, whether it be
fiction or history, market-talk refuses to go away. Volumes of critical
attacks in the law reviews, some scorching and scurrilous, have failed to
stop the spread of the contagion. For if indeed this relentless "wealth
maximization" rhetoric is a cloak for the rich to cover up their privi-
leges and their insouciant disdain for social change, it may be unstop-
pable, notwithstanding the four-letter jeremiads of the "Crits" or all
the ink spilled over literary theory in the law.53 Nihilism may seem a
respectable position, but it may lead to silence, and maybe ultimately to
feminist jurisprudes have received too much attention. Olsen, supra note 43, at 1149
n.14 (citing Carter, Women Face Hurdles as Professors, Nat'l L.J., Oct. 24, 1988, at 1,
30). I wonder how the "traditionalists" would react to law firms sponsoring wet t-shirt
contests for young female summer associates, and to the fact that women associates at
several firms are constantly being propositioned and physically tormented. See Burleigh
& Goldberg, Breaking the Silence: Sexual Harassment in Law Firms, A.B.A. J. Aug.,
1989, at 46. It is clear that there is an urgent need for a greater emphasis of women's
issues at the law schools. See Czaparskiy & Singer, Women in the Law School: It's Time
for More Change, 7 Law & Inequality 135, 136-37, 139-40, 143-44 (1988) (discussing
sexual harassment, sexist curricular materials and dismal statistics of women in legal
academia).
52. See Saxe, Billy Budd, Law Teacher, Nat'l L.J., Apr. 11, 1988, at 13, col. 1. It is
no wonder that citations to Shakespeare, Dickens and Kafka crop up in judicial opinions.
See, e.g., Coy v. Iowa, 108 S. Ct. 2798, 2800 (1988) (Shakespeare's Richard II); Colo-
rado v. Connelly, 479 U.S. 157, 172 & n.2 (1986) (Stevens, J., concurring in part and
dissenting in part) (Shakespeare's Macbeth); Califano v. Goldfarb, 430 U.S. 199, 223 n. 10
(1976) (Stevens, J., concurring) (Dickens's The Adventures of Oliver Twist); Wassell v. Ad-
ams, 865 F.2d 849, 852 (7th Cir. 1989) (Kafka's The Metamorphosis); United States v.
Notorianni, 729 F.2d 520, 523 (7th Cir. 1984) (Kafka's The Trial). The JIassell and
Notorianni opinions were written by Judge Posner. For an imitation of Edgar Allan Poe's
The Raven, see In re Love, 61 Bankr. 558 (Bankr. S.D. Fla. 1986). Posner, in his conclu-
sion, notes that great works of literature, such as Antigone, Bleak House and Billy Budd, can
stimulate reflections on justice (Posner, p. 355). Posner calls for a broadening of legal
education as against the "trade-school" mentality of today's law schools: "[T]he well
educated lawyer should have some acquaintance with current controversies in literary
theory and their potential bearing on legal interpretation." Id.
53. See Teachout, supra note 47, at 845-46 (citing Gabel & Kennedy, Roll Over
Beethoven, 36 Stan. L. Rev. 1 (1984)); Kelman, Trashing, 36 Stan. L. Rev. 293, 320-21
(1984) ("For three years ... I was a model prisoner .... I've burned the notebooks ....
[I]t's a fucking oppression."). Not to be overlooked is the argument that the "Crits"
may have more in common with right-wing fundamentalists than it may at first appear.
See Massey, Law's Inferno (Book Review), 39 Hastings L.J. 1269, 1290 n.61 (1988).
1392 COLUMBIA LA W REVIEW [Vol. 89:1374
one a more concession stand in the Posnerian bazaar. Or perha

hilism is a conceit for narcissism and a cover-up for insentience, in
ble to its professor, but all too palpable to those with a boot in
face.
But, compared with nihilism, law-and-economics language

more noxious vice, rather like Tolstoy's metaphor:
It's a sort of moral sickness like leprosy-it doesn't destroy any
one part but disfigures the whole-it insinuates itself gradually
and imperceptibly and then develops throughout the whol
organism; there is no manifestation of life which it doesn't in-
fect; it's like venereal disease-if it's driven out of one part
appears with greater force in another ....54
But then Tolstoy had a silly notion that as long as any ma
miserable no man could be happy, and that to concern oneself
anything but the poverty, hunger, cruelty and injustice that rema
be eradicated was to miss the point of life entirely.55 Besides, T
unillumined by political economy, much less by wealth-maximi
principles, believed with Rousseau that pride was "only a relativ
ment, artificial and born in society, which inclines each indivi
have a greater esteem for himself than for anyone else [and] inspir
men all the harm they do to one another."56
We moderhs, hammered into identity through the traditi
Adam Smith, Jeremy Bentham and John Stuart Mill, freed t
Milton Friedman and now cleansed of heresy by the "Acade
Fists"57 of the Chicago School, know now that our mission is t
the world safe once more for capitalism and its moral imperative o
love, a.k.a. wealth maximization.58 Le Moi Haissable-that topic of
French school children's composition, the despicable self-remains ut-
terly foreign, untranslatable into market-ese.
Woe then to the anarchists and troglodytes who say in the law jour-
nals that modern man "is insensible to the pain of others" or that "no
immoral act . . . holds his attention for more than . . . ten minutes" or
that we cannot annihilate the reality that "behind this orderly progres
sion of life there is an emptiness, a sense that life is going out like
last lights in windows before dawn."59
Woe, too, unto those who complain that life in legal academia i
54. Valiunas, Tolstoy and The Pursuit of Happiness, Commentary, June 1989
33, 35 (quoting Tolstoy's diary in which he used the metaphor to describe his van
55. Id. at 37.
56. Id. at 35 (citingJJJ. Rousseau, Discourse on Inequality 167 (M. Cranston tr
1984)).
57. On "Academic Fists," see Young, Alternative Ideologies of Law: Tradition
ists and Reformers in Eighteenth-Century Lombardy, 34 McGill LJ. 264 (1989).
58. See Posner, Utilitarianism, Economics, and Legal Theory, 8J. Legal Stud. 1
136 (1979) (law and economics talk aims to redefine legal concepts to fit the "capita
conception of justice").
59. Murphy, What Kind of People Have We Become?, N.Y.LJ., Mar. 10, 1987, a
desert.60 And woe, too, to Bartleby, bu

self-deceived lawyer who interprets him
60. Shaffer, Levinson Builds the Kingdom: Co

Louis U.LJ. 73, 73 (1986).

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Review: Forged Alliance: Law and Literature

Reviewed Work(s): Law and Literature: A Misunderstood Relation by Richard A. Posner;

FORGED ALLIANCE: LAW AND LITERATURE

LAW AND LITERATURE: A MISUNDERSTOOD RELATION. By

INTERPRETING LAW AND LITERATURE: A HERMENEUTIC

Reviewed by Judith Schenck Koffler*

About fifteen years ago, a ragtag assembly of yo

"preferred not to" publish formulaic analysis of legal doctrine and, i

say that in fashionable society, it is ill-mannered, if not unprof

The agglomeration of work noted constitutes a movement of many independe

Before turning to a more specific account of the two bo

Arnold, unlike the reform-oriented Cardozo, was a virulent critic o

II. POSNER'S "MISUNDERSTOOD": A GENEALOGY

Posner's book grew out of a series of law review articles, mos

reviews. To be specific, in the pages of the 1985 Harvard Law Rev

"moralist who believed (very much in the spirit of the Romanti

With Posner's attack on other alleged faults in Romanticism, for

25. See, e.g., R. Weisberg, supra note 3, at 141-45.

Posner's complaint about lawyers using literature tendentiously

than that of any deconstructionist or "Crit." For in his insi

chapter insists on the fundamentally ineradicable difference in

tionalist when it comes to reading statutes and the Cons

III. LEVINSON AND MAILLOUX: THE BATTLE OVER INTERPRETATION

A reader left breathless and bedazzled by Posner's book on law an

Included in the collection is Paul Brest's brilliant essay, The Misco

39. See, e.g., West, supra note 36.

Levinson-Mailloux book.42 That these are sins of omission, and not

The unstated issue in the academic controversy between the law

movement seems to be the question of control of the vocabular

Framers' intent, that perennially overbeaten dead horse, drew

Some critics of the law and economics colonialism of legal dis-

one a more concession stand in the Posnerian bazaar. Or perha

But, compared with nihilism, law-and-economics language

desert.60 And woe, too, to Bartleby, bu

60. Shaffer, Levinson Builds the Kingdom: Co

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