I'm in the Mood for Law.

• Author: Coughlin, Anne M.
• Position: Literary Criticisms of Law - Book Review

LITERARY CRITICISMS OF LAW. By Guyora Binder [dagger] and Robert Weisberg [double dagger]. Princeton: Princeton University Press. 2000. 544 pp.

What do you get when you cross a lawyer and a literary critic? Why get them, these amphibious figures, at all? Why get them now? Why get them here, basking on the banks of the legal training grounds, rather than on the beaches of belles-lettres? In Literary Criticisms of Law, Guyora Binder and Robert Weisberg trace the genealogy of this hybrid and, as it turns out, hydra-headed species of scholar (the law-as-lit scholar, for short). Other authors have ventured over some of this terrain, but Binder and Weisberg offer what is, by far, indeed, by miles and miles and miles, the most extensive expedition of its kind. They search for ancestors, locate remote and close family branches, pass judgment on the health of surviving offspring, and identify lines likely to thrive in future generations. Members of the law-as-lit family are sure to be intrigued by their findings. (Wouldn't you be interested to learn and, yes, have it be known that your forefathers include such worthies as Husserl, John Brown, Cicero, Schleiermacher, Lincoln, Plato, Burke, Derrida, Aristotle, Machiavelli, Hegel & co.?) So will some law school colleagues and acquaintances. (Have you heard about that guy who gets to teach ancient Norse tall tales--in the original, of course, and to law students, no less--while you have to shepherd the little lambs through the Carriage of Goods by Sea Act? Well, you might not know it from looking at him, but he just happens to be the great-great-grandnephew of Nietzsche, twice or thrice removed. Explains a lot, doesn't it?) But Binder and Weisberg say that they are aiming to attract a much larger crowd, one that includes pure law types, pure lit types, law-crits, lit-crits, scholars of every size and shape, all the way down (or up) to those worthy bystanders known as the "educated general readers." (1) The result? Exactly what you'd expect when authors try to bite off something for every reader to chew: The fare is tastefully presented, bland, and there is an awful lot of it.

These qualities tend to be virtues in a treatise or compendium, a subgenre of scholarship that now, thanks to Binder and Weisberg, boasts its first law-as-lit selection. For the most part, as the authors explain, the book is concerned with neither law nor literature, at least not as those categories are popularly understood. Indeed, some readers (the general readers and, I fear, the pure law types) will stumble over familiar, albeit capacious, words; for example, at crucial points the authors seem to conflate the terms "law" and "culture," as well as "literary" and "cultural," (2) and they refer to the Holocaust as a "text," (3) a designation that is sure to mystify and even horrify some lay readers. Instead, the book is a survey of scholarship whose subject is other scholarship: It describes and evaluates bodies of legal scholarship that appropriate and try to apply to law, its actors, audiences, processes, and texts, some of the styles of thinking developed by literary critics and theorists. The phrase "law-as-literature" could be used to define a broader movement, to remark a more profound transformation of reading tastes and habits, or, even, to advocate methodological paradigm-shifts of mind-boggling proportions. Picture a world in which the book you read for pleasure was as likely to be--no, not that Starr report--but a judgment handed down by your state's supreme court or a volume of the United States Statutes at Large as it was a novel or short story. Surely, the law-as-literature trope invites this flight of fancy and evokes related, if inverted, ones, such as the image of litigants briefing the question of whether the outcome of their dispute was controlled by Moby Dick or Jaws. However, Binder and Weisberg avoid these (wacky?) alternatives and keep their feet planted firmly in this universe, a place where the audience for legal texts is limited and where only scholars, most of them law professors, claim to read those texts as if they were works of imaginative literature.

Binder and Weisberg know law professors, and they know that we are fond of treatises. You bet we are. No, it is not that we are lazier than our peers in other disciplines, some of whom probably find themselves surreptitiously dipping into surveys from time to time. Nor is it simply that we possess a naive faith in the transparency and referentiality of language, in the stability of texts, in the ability of one writer to describe concisely and reliably other writers' claims. Rather, the fact is that we need treatises, sometimes desperately. Law schools don't consider a Ph.D., that is, a Ph.D. in law, to be a necessary or, even, desirable credential for those seeking professorships here. Therefore, many of us come to the academy a little green, at least where our teaching and scholarly agendas are concerned. We unpack our litigation bags (we hope) for good, throw out our form documents, spruce up our war stories, when, voila!, we find ourselves teaching classes for which our only preparation was a three-hour course in law school and, worse still, that may not overlap at all with the fledgling research projects that got us hired in the first place. Professors and Would-Be Professors of Other Disciplines are rumored to find law-school practices puzzling--are we superficial?, foolhardy?, brave?, efficient?--why, they even are said to doubt that law review articles qualify as scholarship! Still, every year, aspiring humanities scholars migrate from their fields to ours, an exodus that Binder and Weisberg trace to the late 1970s, which is a crucial moment in their account of the emergence of the most chic law-as-lit styles. (4) Binder and Weisberg imply that the first wave of immigrants came here under economic duress, victimized not by ruthless publish-or-perish regimes, but by hiring freezes. (5) I imagine that others fled willingly to our shores. Some may have been foraging for greener pastures, others desperately seeking asylum from methodologies they found oppressive, and, who knows?, a few even may have dreamed they were leaving the turf of the Theoretical and the Textual for the plains of the Practical and the Real. Then, too, several must have washed up here accidentally, marooned by the Good Ship Serendipity. Whatever their reasons for coming, the story seems to go, the newcomers did what newcomers usually do: They adopted many of the old-timers' customs, persuaded some of the old-timers to adopt some of theirs, and, whether for better, for worse, or for both, the neighborhood has changed.

But law professors still rely on treatises, perhaps now more than ever, and they seem to need new and different surveys every year, ones covering ever more exotic and esoteric topics, to wit, Law and Last Semester's Hot Humanities Offerings. Look, if you had to get a grip not only on Doctrine, but on Discourse too, not to mention all those French and German names, you'd gladly spring for the biggest, fattest treatises you could find. These days may be remembered as the heydays of Law and Another Discipline, and it goes without saying that heydays often are followed by hard times. We know that our interdisciplinary cutting edges may be fads that will start fading even before our most recent article...