The city and the poet.

• Author: Yoshino, Kenji
• Position: Platonic paradigm to contemporary law-and-literature conflicts

Contents Introduction I. The Platonic Parable II. The Platonic Paradigm III. Victim-Impact Statements IV. Storytelling In The Legal Academy Conclusion Appendix Introduction

Three decades after James Boyd White's The Legal Imagination (1) inaugurated it, the law-and-literature enterprise presents conflicting symptoms of health. On the one hand, the field appears to be flourishing as never before. Recent years have seen a spate of books taking law-and-literature approaches. (2) The enterprise has penetrated the legal academy. (3) Conferences on the subject occur with some frequency and attract renowned literary scholars, legal scholars, and jurists. (4)

On the other hand, the field continues to be plagued by skepticism. Although law and literature is a contemporary of law and economics, (5) and arguably a response to it, scholarship in law and literature lags far behind that in law and economics, at least in quantity. (6) It is telling that the book most adopted in law-and-literature courses, (7) Richard Posner's Law and Literature, (8) was penned by a scholar best known for law and economics approaches. This book takes the stern line that law and literature have less to say to each other than might be thought (9) and observes that courses in the field are still considered "soft." (10)

Every field has supporters and skeptics. But law and literature has been caught in limbo for a particularly long time. It has achieved more status than other interdisciplinary curiosities like law and music (11) or law and mathematics. (12) Yet it has never achieved the status of law and economics, legal history, and jurisprudence. Why is this?

We might begin with a diagnosis: Law and literature is a markedly schizophrenic discipline. In a seminal essay, Robert Weisberg contrasts two branches of the field: "law-in-literature" and "law-as-literature." (13) Law-in-literature "involves the appearance of legal themes or the depiction of legal actors or processes in fiction or drama." (14) Law-as-literature, in contrast, "involves the parsing of such legal texts as statutes, constitutions, judicial opinions, and certain classic scholarly treatises as if they were literary works." (15)

This schism derives from two radically different conceptions of the word "literature." In The Meaning of Literature, Timothy Reiss distinguishes pre- and post-seventeenth-century conceptions of the term. (16) Derived from the Latin word for "letters," literature in classical times meant "writing" or "the alphabet." (17) By the second century, the term had narrowed somewhat to signify general erudition, a sense that predominated through the Renaissance. (18) I call this conception of literature a "generalizing" conception, because it encompasses all texts of scholarly value or, in its fullest ambit, all texts. According to Reiss, the currently dominant sense of literature arose only in the late seventeenth century. (19) This new definition held that literature was a belletristic discourse, containing "works having formal beauty and emotional effect." (20) I call this conception of literature a "particularizing" conception, because it limits its scope to genres such as fiction, drama, poetry, and so on. (21) The particularizing conception is nested in the generalizing one, making the word "literature" a synecdoche for itself.

While the particularizing conception dominates popular discourse today, the generalizing definition has not disappeared. When an economics scholar talks of doing a "literature" review in her field, she speaks in the older, broader sense. Moreover, the historical wheel may be turning back toward the generalizing definition, at least in the academy. Poststructuralist literary theorists have contested the popular notion that literature is "a distinct, bounded object of knowledge" given "that literary theory can handle Bob Dylan just as well as John Milton."(22) The boundary question of what, if anything, distinguishes literary texts from nonliterary ones is central to modern literary scholarship. (23)

The distinction between particularizing and generalizing conceptions of literature pervades law and literature, as can be seen in Weisberg's distinction between law-in-literature and law-as-literature. Law-in-literature relies on a particularizing definition of literature--law is enough outside literature to arouse comment when represented within it. Law-as-literature, on the other hand, relies on a generalizing discourse of literature--law is recognized as a form of literature and is, as such, deemed susceptible to literary modes of illumination. The difference between the two branches lies not only in the preposition placed between the words "law" and "literature" but also in different conceptions of the word "literature."

This distinction between particularizing and generalizing conceptions of literature cuts more deeply than Weisberg's distinction. Categories that cannot be subsumed within Weisberg's binary can be subsumed under the particularizing/generalizing binary. The legal regulation of literature through obscenity, defamation, and copyright regimes--which could be called "law-of-literature"--is neither law-as-literature nor law-in-literature. Yet law-of-literature can be classified as a particularizing discourse of literature, because it understands law to be an external discourse that in this instance takes literature as its subject.

The tension between particularizing and generalizing conceptions of law and literature helps us understand why law and literature is anemic and why it will not die. In its particularized form, literature is marked by qualities stigmatized within the law, such as falsity, irrationality, and seductiveness. This explains why law and literature has limped along after law and economics, legal history, and jurisprudence: Economics, history, and philosophy are not generally thought to suffer from these debilities. The question then becomes why law and literature has more life than law and mathematics. One answer is that literature has another, more expansive incarnation, a generalized form of which law is a part. Law is a machine made of words, not numbers.

Law's simultaneous need and inability to banish literature makes law and literature a distinctively fraught enterprise. Banished from law as a polluted discourse, literature keeps surfacing in the wake of its enforced departure. Indeed, law's failed banishment of literature is such a foundational anxiety that it has itself become an archetypal story. In this Article, I take up one version of that story--Plato's banishment of the poet from the city. I then apply the model developed in that context to two modern instances.

In Part I, I consider the banishment of the poet from the city in Plato's dialogues. In Book III of the Republic, (24) Plato's Socrates evicts the poet from the city because the poet is inimical to the functions of the state. This is a classic articulation of the particularizing view--literature must be banished for its falsity, irrationality, and seductiveness. Over the course of subsequent dialogues, (25) such as the Phaedrus (26) and the Laws, (27) doubts arise about whether poetry can or should be banished. Plato implicitly considers two different defenses of poetry--an ineradicability defense and a virtue defense--which correspond to the generalizing and particularizing conceptions of literature. The ineradicability defense asserts that literature cannot be banished because it is impossible to separate from other textual practices, including philosophy and law. The virtue defense asserts that poetry, while a discrete discourse, should not be banished because it has the capacity to serve, rather than merely to subvert, the proper ends of the state. Plato rejects the first defense, and, while leaving the door open to the second one, never fully entertains it. He denies the poet a place in the city.

This position has enraged generations of Plato's successors. In Part II, I defend Plato's position on poetry, with one significant caveat. I accept Plato's three basic tenets: (1) Poetry cannot be permitted to conflict with the core functions of the state; (2) poetry cannot evade accountability to these functions on the ground that it is ineradicable; (3) poetry can only defend itself by affirmatively demonstrating that it does not conflict with such functions, a demonstration that will often entail reliance on poetry's virtues. My only criticism of Plato is that he fails to apply the third tenet--while he twice invites the virtue defense of poetry, he never considers it. I call this paradigm, including my emendation, the "Platonic paradigm."

In Part III, I show the contemporary relevance of the Platonic paradigm by applying it to the U.S. Supreme Court's treatment of victim-impact statements. A victim-impact statement is a statement made during the sentencing phase of a criminal trial by a victim of the crime. In the 1987 case of Booth v. Maryland, (28) the Supreme Court banished these "literary" statements from capital trials on the ground that they are false, irrational, and seductive. This banishment rests on a negative particularizing conception of literature. Yet a scant four years later, the Court reversed itself in Payne v. Tennessee. (29) The Payne Court justified its reversal by drawing on both defenses of poetry. At times, it relied on the ineradicability defense, maintaining that victim-impact statements are indistinguishable from narratives routinely admitted into trials. Because I never accept the ineradicability defense, I naturally reject it here. At other times, the Court asserted the virtue defense, arguing that victim-impact statements should not be excluded because they serve the functions of capital sentencing. While I believe the question is a close one, I ultimately reject this virtue defense as well. Instead, I agree with Booth that victim-impact statements should be excluded.

In Part IV, I turn to a...