Law, Literature, and Interdisciplinary Copia: A Response to Skeptics

Abstract:     
Recently, the law and literature (L&L) enterprise has been "reassessed" by a variety of scholars, whose opinions fall loosely into two camps. Some assert that L&L serves a necessary function in legal scholarship and education and should be preserved. Others, such as Jane B. Baron, see L&L as a flawed enterprise that is probably worth preserving, but not in its current incarnation, and not without recognizing its theoretical and practical limitations. In this essay I focus on the purposes and consequences of L&L for legal pedagogy. In order to discover the benefits of L&L, we must ask whether L&L is appropriate for legal education, and why. What I propose is that studying literary texts - fictional, dramatic, cinematic, or poetic works, of the high or low variety - in relation to and alongside of law, can benefit some of our students very much. Baron asserts that L&L discredits law as a field of study by claiming that we can only learn about human nature, compassion, empathy, or other humanistic quality crucial to competent lawyering or judging, by reading literature. This claim treats law "as a largely empty domain composed mainly of rules, a barren realm of technocratic doctrinal manipulation." Although Baron does not say so explicitly, she has expressed a pedagogical concern. The argument she critiques sets up an antagonistic dichotomy: it claims that we learn different and better things by studying literature than by studying law. Proponents of the dichotomy seek to prove that studying L&L is appropriate in legal education. I argue here that the best approach to L&L is an expansive and generous one, an approach that does not rely upon the denigration of law to prove the appropriateness of literature to legal studies. In discussing the benefits of L&L to legal pedagogy, I suggest that L&L, and indeed other interdisciplinary areas, are useful to and appropriate for legal pedagogy because they provide a variety of heuristics, or learning tools. These heuristics enable our various law students to find paths to legal knowledge that works best for them. This concept of multifarious methods derives from the rhetorical copia, as outlined in particular by Erasmus in the sixteenth century. In Part I, I build upon Baron's critiques of current trends in L&L as a framework to review the antagonistic dichotomy of L&L discourse that privileges literature on one hand and denigrates law and traditional legal studies on the other. In Part II, I reframe this dichotomy in a way that is constructive, returning value to traditional legal texts. In Part III, I use the theory of rhetorical copia to show that L&L is best thought of as one of many methods available to legal pedagogy, a strong supplement to traditional doctrinal and skills courses.

Keywords: law and literature, rhetoric, erasmus, copia, pedagogy, law teaching

Working Paper Series