Law and Literature: A Misunderstood Relation.

• Author: Epps, Garrett

Garrett Epps is a former fiction editor of The Washington Monthly, a former reporter for The Washington Post, and the author of two novels. He is currently a first-year student at Duke Law School.

Richard Posner radical feminists, Charles Dickens, and the fight over /ego/ theory

* Law arid Literature: A Misunderstood Relation. Richard Posnen Harvard University Press, $25.00.

After 15 years as a novelist and journalist, I entered law school last year. Six weeks into my criminal law course, I dreamed the exam question was: 'Assess the criminal liability of the major characters in Shakespeare's Macbeth, and suggest possible defenses their lawyers might advance at their trials'"

I set to work. Could Macbeth argue that he had "reasonably relied" on the prophecies of the Weird Sisters? Couldn't Lady Macbeth's erratic behavior form the basis for a defense of insanity, or at least diminished capacity? The analysis continued until I awoke in a cold sweat.

In the legal academy of the eighties, that exam question is not as farfetched as it might seem. Bigtime Lit Crit, in all its quarrelsome glory, has hit the law schools. Called "law and literature," the literary school of law is just one of many intellectual factions contending for supremacy in legal academe today. In fact, seldom before in its history has legal education been such a battleground of competing academic ideologies. Each one has subtleties and internal disagreements; but the striking thing about each of them is that, in their most extreme forms, they all more or less explicitly argue that law-both as an academic discipline and as a social institution-has no identity independent of some other intellectual system.

The "law and economics" movement insists that law is (or should be) economics and nothing else. Adherents of "Critical Legal Studies" argue that law is a cover for society's hierarchical structure; hardline legal feminists dismiss law as patriarchal mystification; and "law and literature" advocates use semiotics and deconstruction to argue that legal rules are incoherent rhetoric.

Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit is a leading light of the "law and economics" movement and a potential Republican appointee to the Supreme Court. His book* is intended as a superweapon in this battle of the sects. It also offers a chance to look at what is happening to legal theory-a disturbing phenomenon that Yale's Owen Fiss has dubbed "the death of the law."

The bottom line

Before he was appointed to the bench in 1981, Posner's academic writing argued that judges should focus only on maximizing the wealth of society as a whole. Fairness and justice are meaningless jargon ("I hate justice," Posner once said, paraphrasing Oliver Wendell Holmes); efficiency is the only thing that matters.

How would this theory-and its academic competitors-play out in an actual case? Let's imagine that a federal prison inmate injures his eye. After a series of medical treatments (some applied mistakenly to his good eye), he ends up blind. The prisoner seeks court-appointed counsel to pursue a lawsuit against the prison doctors who, he says, did not properly treat him.

No federal statute requires appointment of counsel in such cases; nor...