What Role Law and Literature Should Play in a Law School Reply

The following is cross-posted at Concurring Opinions.

Some may ask what role should liberal arts style courses play in law school where we are increasingly focused on bar exams and practice ready skills. But it may take me a while to unravel that answer with the gusto and the framing it deserves. I think anyone that regularly teaches Law and Literature has been asked some variant of this question. The course doesn’t have the safe luxury of “well its on the bar exam,” or even the more sardonic return of “well, but of course it underlies much of legal thought and practice.” See, e.g., Law and Econ, Law and Social Theory, and Legal History.

Let me make a bold proclamation. The law and literature course, perhaps more than any other, asks students to wrestle with their subjective views of the law. It’s interesting, in a course that deals with Constitutional Law, for example, there is the finality of how the court approached the problem (whether we agree with the outcome or not). In Law and Literature on the other hand, the course encompasses the views of the professor, the authors, and their fellow students as they encounter these views. Sometimes worlds are created in which those concrete legal frameworks are disembodied (See, e.g., Margaret Atwood’s The Handmaid’s Tale). Sometimes, the fictional worlds embrace the world as we know it, and offer stunning critique to its foundation (See, e.g., Harriet Beecher Stowe, Uncle Tom’s Cabin). That’s not to say that other courses, (take a UCC course), is not rife with highly charged emotional queries (notwithstanding my critique, my explanation for whether the disposition of collateral equates to proceeds is a highly charged event!). It is saying that in a time where the ABA is prompting law schools to create standards that push the law school experience towards so-called objective standards of evaluation (see revision of section 302 in the ABA standards), the role of encountering, critiquing, explaining, and understanding different subjective understandings of the law is critical. We should not be afraid to encounter nor express our subjective views in the context of critical dialogue.

My view is that Law and Literature is a course that offers students not only the opportunity to understand themselves better but to learn to dialogue about the subjective views of law. A few years ago, Yale Law School offered a course titled “The Book of Job and Suffering.” Unfortunately, at many law schools such a class would never be taught for fear that the subject strayed too far from what law schools are suppose to do — at least not under that title. However such a course is precisely the kind of law and literature course we should be teaching. Isolating the critical component that suffering may play in the narrative for law students, I imagine, was a powerful experience for those students and the professor. Powerful because they all have suffered something, I’m sure, though undoubtedly it was uneven. Students learn to dialogue about themselves and the text in a group where each other’s respective experiences help frame and isolate the way the text moved within the group. At one and the same time, students in a law and literature class learn about themselves, as members of a group, a class and as an individual. This is the idea of Law and Literature that James Boyd White framed so well — the engagement of the reader with the text forcing the reader to accept or not accept the writer’s framed world. [Perhaps Boyd’s best framing of this encounter is his book This Book of Starres: Learning to Read George Herbert, in which Boyd wrestles with the text as reader primarily].

This role of teaching students about themselves is critical if not necessary to shaping who they are as counselors and advocates for their clients. Of course they are things we should care about as shaping lawyers. But should we have to isolate them into an ABA objective or standard. In a way, it cheapens the process to do so.

I fear that courses like Law and Literature, in which students engage in thoughtful discourse, may find themselves replaced with others that fail to live up to the promise of helping students understand themselves in a legal environment and instead only focus on the particulars of interacting in the legal environment. There is nothing wrong with a movement in legal education that attempts to focus institutional resources to critically examine whether the law school is best preparing students for the modern legal environment. But, that doesn’t mean that our students [or our faculty] are better off without having the dialogues and communities that law and literature help promote and shape in the law school environment.

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