What's past is prologue: precedent in literature and law.

• Author: Yoshino, Kenji

On June 29, 1992, the joint opinion of Planned Parenthood v. Casey(1) "spectacularly failed to overrule"(2) the holding of Roe v. Wade.(3) The writers of the joint opinion suggested that stare decisis, or the legal doctrine mandating that precedent be followed, disciplined their analysis, and that they were bound by Roe's holding regardless of their personal opinions on whether the Constitution protects a woman's choice to have an abortion.(4) Chief Justice Rehnquist's opinion, on the other hand, maintained that stare decisis did not compel upholding Roe and asserted that Roe should be overruled.(5) The Rehnquist opinion further implied that the joint opinion invoked the doctrine of stare decisis as a convenient way of implementing individual Justices' political predilections while allowing those Justices to avoid accountability for their controversial views on abortion.

This Note argues that the law-and-literature movement can shed light on the manner in which the Casey opinions treat precedent. Part I provides the theoretical background to a comparison of precedent in law and literature. First, it briefly situates this Note in the law-and-literature movement; second, it outlines two theories concerning the treatment of precedent, one from literature (Harold Bloom's "anxiety of influence:(6)) and one from law (stare decisis); finally, it describes a prior attempt by David Cole to apply the anxiety of influence to the legal field.(7) Part Il critiques Cole's theory and shows how the remainder of this Note provides a more precise synthesis of the literary and legal theories. Part III describes two of the subversive strategies developed by Bloom: apophrades and clinamen. Part IV applies these two strategies to two literary texts: Tom Stoppard's Rosencrantz and Guildenstern Are Dead(8) and Aimd Cdsaire's Une Tempete.(9) Part V shows that both of these subversive strategies are applicable, with some qualifications, to the Casey opinions. Part VI contrasts the consequences of these strategies in the literary and legal fields.

1. PRECEDENT IN LITERATURE AND LAW

   1. The Law-and-Literature Movement

      The law-and-literature movement has its Anglo-American antecedents in the nineteenth century. In that period, English lawyers wrote about the depiction of the legal system by Shakespeare, Dickens, and other famous writers; Wigmore argued that lawyers should read literature to learn about human nature; and Cardozo analyzed the literary style of judicial opinions.(10) Until the publication in 1973 of James Boyd White's The Legal Imagination,(11) however, law and literature did not emerge as a distinct and self-conscious field.(12) Subsequently, Robert Weisberg divided the law-and-literature movement into two branches-law-in-literature and law-as-literature.(13) This distinction has been widely adopted.(14) Law-in-literature considers literature "about" legal subjects (e.g., Kafka's The Trial, Camus' The Stranger, or Lee's To Kill A Mockingbird) and law "about" literature (e.g., laws concerning defamation, obscenity, or copyright).(15) Law-as-literature, on the other hand, subdivides into two concerns: the study of rhetoric in legal writing and the application of literary theory to the law.(16) For example, White describes how literature's discourse about devices such as metaphor, ambiguity, and irony enhances an understanding of legal argument.(17) Similarly, Dworkin argues that because literary theory is more developed than legal theory, literary theory can offer new insights into legal texts.(18)

      Bloom's anxiety of influence, as shown below, is both a taxonomy of rhetorical devices that authors use to subvert precedent, and a theory about the relationship writers have to their predecessors. By considering the applications of this theory to the law, this Note situates itself squarely in the law-as-literature movement.

   2. The Anxiety of Influence and Stare Decisis

      Precedent occupies the literary and legal fields in the form of two different theories: the literary theory of the anxiety of influence and the legal theory of stare decisis. Harold Bloom formulated the anxiety of influence in a tetralogy: The Anxiety of Influence,(19) A Map of Misreading,(20) Kabbalah and Criticism,(21) and Poetry and Repression.(22) The theory claims that all poets (writers) grapple with the anxiety that everything they write is influenced by their powerful predecessors. In order to become great, Bloom asserts, poets must break free of this influence by conducting "strong misreadings" of their predecessors--that is, by subverting the meaning of their predecessors' texts in order to make their own contributions. Bloom, misreading Freud, casts the predecessor-poet as the father and the usurping-poet as the "belated son."(23)

      Bloom's theory is a literary theory in that it describes how a poem achieves meaning. Helen Vendler maintains that Bloom's theory allows readers to see poems

      for what they are, part of a perpetual struggling dialogue between

      generations, temperaments, wills, and perceptions, all couched in a

      fraternity of shared and contested language, unintelligible unless the

      common usage of that language, and the problems to which it gives

      rise, are perceived, weighed, and appreciated.... Each poet turns in

      passing, and makes valedictory utterances toward his predecessors,

      using and revising the languages they bequeathed to him, while

      charging successors to take up his language made lucky by the

      Musels favor.(24)

      As Vendler indicates, Bloom argues that poems achieve meaning by situating themselves in an aesthetic genealogy, providing in turn a history for their successors. The system is simultaneously communal and adversarial: Poets provide each other with context while vying with one another for supremacy.

      The anxiety of influence is also a taxonomy of the various rhetorical positions a poet's text can take in relation to that of his predecessor. Bloom outlines six relationships that texts have with their precedents--all of which entail a misreading of what has gone before--that allow the poet to create a place for himself. These "revisionary ratios" include: clinamen, or swerving, where the poet seeks to correct an error in the preceding text; tessera, or completion, where the successor fills out lacunae in the predecessor's work; kenosis, or emptying out, where the iconoclastic son demystifies the godlike father by showing him to be as fallible as the son; daemonization, where the successor adopts the antithesis of the precursor; askesis, where the poet curtails his gift to truncate the precursor's achievement in a milder form of kenosis; and apophrades, where the successor so overwhelms the predecessor that he reverses the father-son relationship.(25) The term and concept of precedent are more comfortably situated in the discourse of law than they are in literature. "Precedent" is a term of art, defined by Black's Law Dictionary as:

      An adjudged case or decision of a court, considered as furnishing an

      example or authority for an identical or similar case afterwards arising

      on a similar question of law. Courts attempt to decide cases on the

      basis of principles established in prior cases. Prior cases which are

      close in facts or legal principles to the case under consideration are

      called precedents. A rule of law established for the first time by a

      court for a particular type of case and thereafter referred to in

      deciding similar cases.(26)

      The doctrine stating that courts must adhere to precedent is called stare decisis et non quieta movere,(27) or stare decisis. Unlike the anxiety of influence, the doctrine of stare decisis is prescriptive rather than merely descriptive. Whereas the anxiety of influence merely detects a relationship that already exists, stare decisis invents one by mandating that courts follow previous decisions.

      The doctrine of stare decisis developed in the infancy of English common law; "[h]istorians agree that Bracton's Note Book, containing one of the first collections of English decisions, gave early impetus to the doctrine."(28) As early as 1454, Chief Justice Priscot stated that precedent should be followed for a particular case, arguing that "[i]f this plea were now adjudged bad . . . it would assuredly be a bad example to the young apprentices who study the Year Books, for they would never have confidence in their books if now we were to adjudge the contrary of what has been so often adjudged in the Books."(29) In his Commentaries of 1765, Blackstone formally articulated the doctrine, stating that "it is an established rule to abide by former precedents, where the same points come again in litigation."(30) The doctrine was substantially in place by the end of the eighteenth century.(31)

      In its developed form in English common law, the doctrine of stare decisis required that precedent be followed by: (1) all lower courts after promulgation by a superior one; (2) the House of Lords after its own prior decisions; (3) the Court of Appeal after its own decisions; and (4) courts after decisions of courts of coordinate authority.(32) The doctrine has historically allowed, however, for certain exceptions. Specifically, precedent need not be followed if: (1) the rule laid down in the previous case was plainly unreasonable and inconvenient; (2) another court of equal authority had handed down a conflicting decision; or (3) the part of the precedent cited was not a principle necessary for the decision of the case.(33)

      Following the American Revolution, a major goal of American legal educators was to relieve American judges of the necessity of following English precedents.(34) The doctrine of stare decisis was modified to require strict adherence to precedents established by American courts while permitting English precedents to be questioned.(35) This modification exemplifies the argument that there are two kinds of stare decisis: strict and relaxed.(36) Under the strict form, judges are obliged to follow the...