Nomos and Form: Reading A Jury of Her Peers

Pages101-137
Date20 August 2012
DOIhttps://doi.org/10.1108/S1059-4337(2012)0000058008
Published date20 August 2012
AuthorMatthew Anderson
NOMOS AND FORM: READING
A JURY OF HER PEERS AND
‘‘THE PROBLEM OF JUDGMENT’’
IN PROCEDURE
Matthew Anderson
ABSTRACT
This chapter offers a reading of the inclusion of Susan Glaspell’s short
story, A Jury of Her Peers, in the casebook, Procedure. What does it
mean that the editors turn to a secular, literary narrative to ground a
consideration of ‘‘The Problem of Judgment?’’ How should we read the
irony of the reading instructions they provide, which reproduce the
blindness to form – to the significance of ‘‘trifles’’ – that the text
describes? How do we read literature in the context of law? More
specifically, what does attention to the form of the story yield for an
understanding of legal judgment?
Thus almost everywhere there can be found striking omissions, disturbing repetitions,
palpable contradictions, signs of things the communication of which was never intended.
The distortion of a text is not unlike a murder. The difficulty lies not in the execution of
the deed but in the doing away with the traces. (Freud, Moses and Monotheism, p. 52)
Special Issue: The Discourse of Judging
Studies in Law, Politics, and Society, Volume 58, 101–137
Copyright r2012 by Emerald Group Publishing Limited
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1108/S1059-4337(2012)0000058008
101
The inclusion of A Jury of Her Peers (1917) in the groundbreaking legal
casebook, Procedure, in 1988, marks a signal moment not just in the history
of the reception of Glaspell’s short story, but also, more broadly, in the
history of law and literature as field. By that time, A Jury of Her Peers was
already a canonical feminist text and a staple of law and literature studies,
and for good reason: Glaspell explicitly depicts the oppression of women
by men and implicitly calls attention to the historical exclusion of women
from juries in the United States and to related questions of legal procedure.
(The irony in the title of the story underscores that at the time of its
publication, in 1917, women do not serve on juries.) The story reminds us
that the enactment of legal judgment takes place in an embodied historical
context shot through with the interests of power, not a vacuum of
disinterestedness. From the perspective of an interest in issues of gender and
social justice, especially as they relate to questions of legal judgment,
Glaspell’s text makes the point not only that the law in this country has
often failed to provide justice equitably to women, but that the structures of
patriarchal oppression have been encoded in putatively disinterested legal
procedure.
The inclusion of the story does more than simply consolidate the
canonical status of Glaspell’s text, however. By placing it in a textbook
intended for a course on Procedure – one of the core courses of the first-year
curriculum in law school – the editors argue for an expanded sense of the
reach and relevance of literature for an understanding of law. In effect, they
move literature from the periphery to the center of the curriculum:
previously visible, if at all, primarily as a subject that a law student might
encounter in her third year in an elective ‘‘law and literature’’ course,
literature now figures at the heart of the textbook for a core ‘‘1L’’ course.
This choice is more than a turn to a work of literature to illustrate a problem
of law; it is part of a project to rethink what law is and how it is taught.
1
The
implied claim is not just that literature can hold up a mirror and enable us to
take the measure of law’s justice, but that literature is integral to an
understanding of law and legal judgment.
Precisely because the move from periphery to center challenges received
ideas about the disciplinary boundaries of law, the editors face the rhetorical
and political (with a small ‘‘p’’) challenge of persuading their peers in the
legal community of the value of this reconfiguration of knowledge and
pedagogy. Why should literature be integral to law’s self-conception? Why
should it decenter prevailing conceptions and modes of representation?
And even if one is prepared to accede that there are forms of knowledge
specific to literature and its modes of disclosure that can be central to an
MATTHEW ANDERSON102
understanding of law and legal judgment, how do we access this knowledge?
How do we read literature in the context of law? What is the methodology?
The challenge of integrating A Jury of Her Peers is thus not only rhetorical
and political, but also procedural.
The procedural challenge is easy to miss because it is underplayed. The
editors provide three paragraphs of biographical information about
Glaspell, followed by a brief series of questions to direct the reading:
The story is not explicitly about a jury process, but rather about the relationship between
judgment and viewpoint. As you read the story, consider how the women (Mrs. Hale and
the Sheriff’s wife) who go to the accused’s home learn about her and about her life, and
how the women’s learning process differed from that of the men, in search of ‘‘evidence’’
of the crime. Then consider the value judgments made and the relationship between the
judgment process and the kinship experienced between the women and the accused.
What does this story tell us about who should be our judges, and why? (Cover, Fiss, &
Resnik, pp. 1165–1166)
A couple of things are striking about these guidelines. First, there is a sense
in which it feels like a scene of jury instruction. This owes to the immediate
rhetorical context and framework of the casebook: the story figures in a
chapter on ‘‘The Problem of Judgment,’’ in a subsection of the section on
‘‘The Powers and Attributes of Decisionmakers,’’ entitled, ‘‘Introduction to
the Jury: A Jury of Her Peers.’’ Second, the editors direct us to see how
the story represents legal judgment as grounded in a perspective that is
embodied, interested, and relational. Their instructions heighten our self-
consciousness as readers and encourage a self-reflexive awareness of the
ways in which our readings of the story reflect our own subject positions. But
they also want us to see the relationship between embodiment or viewpoint
and ‘‘process.’’ (They use the word three times: ‘‘jury process,’’ ‘‘learning
process,’’ ‘‘judgment process.’’) Here, the perspective of legal actors is a
dynamic, intersubjective process of learning and judging – in other words, a
process of reading. By framing the text in this way, the editors orient us
to think of the juror as reader and of legal judgment as an act of reading.
Third, it is somewhat surprising that they do not mention that the story is
an adaptation of a one-act play, Trifles (1916), which Glaspell had published
the year prior, nor that the play, in its turn, was inspired by a trial that she
covered while working in Des Moines, Iowa, as a journalist. The relation
with the play intrigues: why did the editors select the short story rather than
the play? Does it have to do with its form? This leads to the fourth and final
aspect of the introduction to which I would call attention: from a literary
perspective, it is noteworthy that it does not include any questions about
the form of the text, that is, about how to read the story as a story. For
Nomos and Form 103

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