Satirical legal studies: from the legists to the Lizard.

Author:Goodrich, Peter
 
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ANALYTICAL TABLE OF CONTENTS INTRODUCTION I. FRAGMENTA ANTIQUITATIS (THE ENDURING TRADITION) A. The Civilian Tradition B. The Sermon on the Laws C. Satirical Themes 1. Personification 2. Novelty 3. Ridicule 4. Criticism II. SATURA RESARTUS (THE REVIVAL OF SATIRE) A. Allegory and Theater B. Ad Hominem Arguments C. Revolting Positions D. Tones E. Conclusions III. TRAGEDY AND FARCE A. Theater and Norm B. Genres of Dialogue C. The Figure of Hercules D. Literary Criticisms of Law E. Critical Legal Studies and Beyond F. The Lizard IV. THE SUBLIME AND THE RIDICULOUS A. The Legal Realists B. Trashing C. Book Reviews V. ON BEING BAD AND GETTING CRITICAL A. The Bad Man B. The Unreasonable C. Exiles D. Critical Race Theories VI. KYNICISM, SATIRISTS, AND CRITICS OF LAW A. Philosophy as a Way of Life B. Humor as a Rhetorical Form C. Anomalism as a Theory of Law D. Hedonism as a Source of Law CONCLUSION: ON LIES The first case was called the other day before His Honour, Judge Twin feet, who was attired in a robe of poplin green. He 'opened' that abstraction, the 'proceedings', by expressing the hope that there would not be too much jargon. 'Justice is a simple little lady', he added, 'not to be overmuch besmeared with base Latinities.'

In the first case the plaintiffs sought a plenary injunction for trespass, a declaration of fief in agro and other relief The defense was a traverse of the field as well as the pleadings and alternatively it was contended that the plaintiffs were estopped by graund playsaunce.

Mr Juteclaw for the defendants, said that at the outset he wished to enter four caveats in feodo. His statutory declarations were registered that morning and would be available for the plaintiffs on payment of the usual stamp duty. He asked for a dismiss.

His Honour said that he observed that there was no Guard in court to prove certain maps and measurements. That was a serious matter; it showed disrespect to the court.

Mr Juteclaw said there were no maps in the case; if the plaintiffs intended to produce maps, he was entitled to 18 days' clear notice and viaticum for engrossment.

Mr Faix, for the plaintiffs, said he knew of no maps; he had received no instructions as to maps.

His Honour said he would let the matter pass, but for the future it must be understood that there must be a Guard in court to prove maps; one never knew when a map would be produced, he added. (1)

INTRODUCTION

Although it was clearly present in much of twentieth-century jurisprudence, and indeed was momentarily quite fashionable towards the fin de siecle, it never found its name, and it never quite came out on its own. (2) Satirical legal studies will be defined initially as the humorous pillorying of the pretensions of law and lawyers. (3) It is more than parody, burlesque, or simple humor, in that satire implies ridicule of folly and vices that have a social significance and ill effect. (4) In the words of one early common law reformer, the end of "satyr ... is reformation (5) and in this sense it has always been an important component in movements for abolition or change in the methods and practices of law. In the last century, satire played a varying yet visible role in scholarly movements critical of law ranging from legal realism to law and economics, from legal anthropology to critical legal studies. The accessibility and humor of satirical legal studies afforded it unusual scope. Satire transcended the established political and doctrinal boundaries that defined legal studies. It moved between the professional, the popular and the arcane, the public and the eruditely esoteric. In varying forms, satirical studies of law allowed for the recuperation and revision of a marginal yet potent genre of classical jurisprudence, associated most obviously with Cicero's noted propensity for deflationary jokes. (6) But most of these innovations were implicit rather than self-conscious; the movement to use satire as part of the scholarly armature of legal debate never mastered the technique's conscious deployment, thus dampening its effectiveness. With the time and distance made available by the turn of the twenty-first century, it is now possible to connect the dots and sketch the face of an understudied but important genre of legal studies. Though it dates back to the classics, to the poetry, glosses, art and emblems of the earliest Western lawyers, I will look at it here mainly in its twentieth-century manifestation. Satirical legal studies is perhaps most closely connected to leftist critiques of law, but it is far from restricted to them. Anatole France, for example, is much cited by radical legal theorists for his satirical observation that "[t]he majestic equality of the laws ... forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread." (7) That ironic theme has many variants within radical legal theory but it is by no means confined to those complaining about the inequities of law. At the same time, and just to show that there are no easy political boundaries to satirical legal studies, Judge Richard Posner, the progenitor and scion of law and economics, devoted a book to satirizing the pretensions of lawyers and others. (8) In Public Intellectuals he excoriates the aggrandizing claims of public-intellectual lawyers, showing, for example, that the opinions of Professor Akhil Amar, a leading constitutional law scholar, on the 2000 U.S. election debacle were of no greater relevance to reality than literary critic Elaine Scarry's theory that airplane crashes are caused by bad vibrations. (9)

While the critical legal studies movement and subsequent work in gender and race theory are the most visible moments in late twentieth-century satirical legal studies, the excitement and importance of the long-term movement lies precisely in its ability to transcend the boundaries of any particular sect or intersection. For every article with a title taken from a recent movie, (10) or rock-oriented complaint jurisprudence that borrows a name such as Tina Turner and links it to law, (11) there is a prosaic equivalent of the erudite ilk of Kenneth Lasson's Scholarship Amok. (12) A piece such as Michael Fischl's widely read essay, The Question that Killed Critical Legal Studies, (13) which satirically defends the critique of law, has its many counterparts in apparently sober (14) and not-so-sober (15) deliberations on the footnote or seemingly serious accounts of the relation of law to phrenology. (16) There is the reductio ad absurdum, the blank page or the almost-blank page, that usually comes with a satirical footnote. (17) There is the main text which literally falls into a footnote, (18) and there are texts that appear in pictures, and pictures that appear in law reviews. (19) Satirical legal studies takes no one form, and its gems are often buried in the interstices of articles on the most somber of substantive doctrines.

Granted the diffusion of satirical legal studies, and accepting as we must that it can only ever be a partial construction elaborated diversely from the fragments and incidents of earlier texts, this Article is necessarily exploratory rather than definitive. If the tone of most twentieth-century criticism of law could be captured in the notion of complaint jurisprudence, and tends towards both earnestness and verbosity, the satirical legal texts that will be studied here are distinctive by virtue not only of a certain ease of access but also by dint of the eloquence of humor. (20) It has given us the serried wit of the legal realists, Fred Rodell's farewell to law reviews, (21) the jurisprudence of the Supreme Court that says "NI!" or "Neeeow ... wum ... ping," (22) Arthur Left's imaginary anthropology of the hermaphroditic Jondo, (23) Scott Shapiro concisely incisive on the fear of theory, or the distinction between the obvious and the odious, (24) and Dennis Arrow's dictionary of legal "pomobabble." (25) It has poked fun at us with the pseudomelancholic lament of an animal law enthusiast complaining that the Buffalo Law Review contains no studies of buffalo law. (26) In a more literary vein, critical jurisprudence has devised the "whiskoletterosmotron" method for reading texts--loosely drink some whisky and see how the textual meanings break down. (27) It has noted stupid lawyer tricks, (28) mocked the idiosyncrasies of legal dress, (29) excoriated the legal form, (30) and put Freud on the couch as a failed law professor. (31) It has produced the Lizard, (32) the Reptile, (33) and Casual Legal Studies, (34) as well as critical legal studies. It has given us Ronald Dworkin the movie, (35) the lost maxims of Equity, (36) the University of Rutland School of Law, (37) the fallacies of Xanadu, (38) and baseball and legal theory. (39) It has devised the figures of the bad man, (40) the normativo, (41) the jurismaniac, (42) the professor embalmed in footnote 233, (43) the rigor mortis professor of law, (44) the antilawyer, (45) interpretative "bouillabaisse," (46) and the trasher and the trashed. (47) It has offered the stories of Hercules (48) Geneva Crenshaw, (49) and the youthful Rodrigo. (50) At the same time it has offered up the Diary of a Law Professor, (51) the biographical narratives of legal feminism, (52) the oral histories and alternative rhetoric of critical race theory, (53) A Lawyer's 'Alice', (54) a view of sales from the back of a horse, (55) the philosophy of legal naming, (56) the pseudonym Gil Grantmore, (57) a study of legislation applied to canine contraception, (58) and much, much more.

That is already quite a list, and a fairly large number of footnotes. It will give the citecheckers something to get started on, and it provides a useful conspectus of the scope and ecumenical character of the satirical legal tradition. It proves that I am very open-minded, and it allows for some preliminary observations on methodological protocol. First off, because this article...

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