Tag Archives: Law and LIterature in the Law School Curriculum

Magic and Muggle Toys as Metaphors of Translation: How Harry Potter makes a case for Literature inclusion in the legal curriculum Reply

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Last week, Warren wrote about the blessings of reading as a dialectic navigating imaginations within the law school curriculum; and I wrote two pieces describing how at least one short story could be used to better explain property — See Devil and Tom Walker I and Devil and Tom Walker II.  Today I want to draw on metaphors from Harry Potter to further this case that the law curriculum needs literature infused within it.

Throughout the Harry Potter series there is divide between muggles, muggle things, and the magical world.  For example, the ministry of magic has an office for the misuse of muggle artifacts in which muggle things are confiscated when they have been bewitched.  Similarly, muggles (or non magical folk) are not permitted to use magical things, at the cost of having their memories wiped in the event they do stumble onto magical things.  And yet, despite these stark separations, we see instances in which muggle things are used in the magical world.  Radios are used to communicate with members of the order in the final book to advance a magical agenda.  The passage way to one’s magical education begins at a muggle train depot (King’s Cross), though again with a separate platform secured behind the veil of a wall.  And Magical folk wear muggle clothes, in different degrees of success to blend into the larger  muggle culture.  See for example, Harry, Hermione, and Ron in the last film, compared with Bob Ogden, the ministry official from the chapter House of Gaunt in the Half Blood Prince.

Whatever these various commingling are in the series, they stand as tools of translation between two different groups that respect divisions, even though individual members might prefer toleration.  What exactly is to be translated?  John Granger suggests that the magical world helps translate for the reader (ironically a muggle world) the basic and transcendent characteristics of love, mercy, forgiveness, fear, etc…).  JK Rowling made this point in an interview with the Atlanta Journal Constitution when she said “Witchcraft is just a metaphor for this other world of possibilities, beyond convention, that the mind can reach.“ As said by one Harry Potter Commentator,

This is a summary of a central premise in Granger’s work, that the “symbols, themes, and meaning touch the human heart with eternal verities and realities for which contact the human heart is designed and hungers” (234). I think you can understand the idea pretty easily. Harry Potter gets to some kind of Truth (Love, forgiveness, fear, etc) that we are all designed to long for.

Two worlds normally separated are joined by their ability to translate through the various interactions that do not necessarily involve their individual members.

So what can we learn from this lesson of metaphor translation in the law school curriculum. Those of us in the law and literature movement have long thought about the process of learning law as a process of translation.  There is, though, a tendency to treat the leaning of legal skills as distinctive from the learning of perspective skills.  Most agree both are important — but not important enough to merge together.

One of the prevailing themes underlying law students’ entry to law school today is the unpreparedness to understand the art of translation.  The ability to identify metaphors in a text, understand their relevance to context and meaning, and then cull out the underlying authorial meaning is directly relevant to what we ask students to learn how to do beginning in their first substantive courses.  One way of helping students understand that the process is one that relates to their prior work is to include works of fiction in the substantive courses as a means of bridging their legal education with their undergraduate training. Thus, the process of working through a legal text draws upon familiar modes of interpretation that students have been exposed to prior to entering law school.

Likewise, many works draw implicitly on legal themes as underlying conflict in their stories.  Courses like Property draw on theories of possession and entitlement that did not first originate in law, but in philosophical texts — texts which were as influential in literature as they were in law.  History and context afford background materials for texts like William Gaddis’ A Frolic of his Own, which implicitly raise critiques of the torts system.  As Warren has written in the past, Roger Malvin’s Burial forces students to confront norms in a context outside of law — norms of fairness, just deserts, and equality.   In other words, fiction translates the law not only through process but through substance as well.

These materials may serve as means of translating dense subjects to students who are not yet prepared to translate law accurately.  Perhaps, muggle radios sending messages of magical occurrences could be just as helpful to transmit messages of legal translation.

The Devil and Tom Walker: A Property Tale — Part II: Property as mediator of human conduct 1

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In my first post, I described how the landscapes shape the relationships in the Devil in Tom Walker.   Today, I am going to look at elements of the story that focus on the relationships of people to property.   To do so, lets pick up the tale where we left off.  In fact

As Tom returns from his encounter with the Devil, he reluctantly tells his wife of his encounter.  As we described in the first post, the relationship between Tom and his wife is centered around their individual quest to hoard property; there is no community action between the two.  What might seem to be an attempt to partner with her husband is really a selfish push to allow Tom Walker to absorb the risk of dealing with the devil for the mutual benefit of the gold.  But Tom remained determined to not “be damned to please her.”  The wife not to be deterred, attempts to negotiate with the Devil herself.   After her first attempt is unsuccessful, she returns offering all of their valuable chattels to the Devil — their silver teapot, silver spoons, and other belongings.  Later Tom, when he goes to look for her, discovers her apron with a heart and a liver tied in it.

As before, when the wife and Tom bickered over stashed items, Tom’s pursuit of his wife is more about retrieving the things she took than it is about retrieving her from Old Scratch.  Its even unclear whether Tom sought after her; though the author seems to believe he did.   Whatever the case, the story is clear that Tom was not remorseful for his wife’s loss.  “Tom consoled himself for the loss of his property with the loss of his wife; for he was a man of fortitude. He even felt something like gratitude towards the black woodsman, who he considered had done him a kindness.”  Notice how property in this last instance mediated the relationship (the broken relationship) between Tom and his wife.    Tom’s dissatisfaction of losing property is ameliorated by the loss of his wife — as if the spouse were another piece of property to be bargained away.

Ironically, though Tom does not have trouble accepting the loss of his wife as a good bargain for property (thereby reducing her to property to be bargained), he finds the Devil’s suggestion that he engage in the slave trade to be distasteful.  Tom’s distaste is difficult to explain.  His willingness to part with his spouse for a few chattels suggests he has no problem equating humans with economic value — as long as those humans are as wretched as his wife.  Likely, Tom’s reluctance to engage in the slave trade is a commentary by Irving on the moral choices made by slave opposed states.   The story is set in Massachusetts and was written in 1824.   This  should not be taken that Irving was particularly opposed to slavery.  As Kenneth Reed has pointed out, Irving was rather agnostic towards the plight of African Americans, and often used them in stories as a means of pointing to fallacies in his white characters — like Tom Walker.   In this instance, let me proffer a theory.  Massachusetts, and Boston were the sources of many anti-slavery advocates, like William Ellery Channing, William Lloyd Garrison and David Walker, who published his Appeal to the Colored Citizens of the World in 1829.  Though both Garrison and Walker come several years after the publication of the Devil and Tom Walker, there was brewing before that a sentiment that Boston was an anti-slavery society.

Much of the Bostonian view was symbolized in the preacher William Ellery Channing.   It is no accident that Irving has Tom Walker establish a usury business using pirate gold in Boston, and thereby become a respected member of the community, while refusing to take part on the tasteless activity of the slave trade.  Irving is pointing out the North’s hypocrisy in turning a blind eye to deeds that take advantage of others through ill-gotten or less-than-honorable means, while condemning the slave trade of the South.  In fact, we see as much glee in Tom Walker’s acceptance for opening a broker shop as a usury lender as he showed distaste for the slave trade.

“You shall open a broker’s shop in Boston next month,” said the black man.

“I’ll do it to-morrow, if you wish,” said Tom Walker.

“You shall lend money at two per cent. a month.”

“Egad, I’ll charge four!” replied Tom Walker.

“You shall extort bonds, foreclose mortgages, drive the merchant to bankruptcy-”

“I’ll drive him to the d–l,” cried Tom Walker, eagerly.

“You are the usurer for my money!” said the black legs, with delight. “When will you want the rhino?”

“This very night.”

Tom Walker then finds a successful career as a money lender.   His success is built on the failure of others, collecting large sums against defaulting lenders.  More than a few commentators have found allusions to the world of Tom Walker and our current lending climate (or at least the climate a few years ago). For Tom, though, the gold shapes his interactions with his clients.  It affords him the opportunity to be lenient, which he refuses.  Likewise, it shapes his revival as he realizes his soul will be called shortly, much like the loans for which he is calling.

At this propitious time of public distress did Tom Walker set up as a usurer in Boston. His door was soon thronged by customers. The needy and the adventurous; the gambling speculator; the dreaming land jobber; the thriftless tradesman; the merchant with cracked credit; in short, every one driven to raise money by desperate means and desperate sacrifices, hurried to Tom Walker.

Thus Tom was the universal friend of the needy, and he acted like a “friend in need;” that is to say, he always exacted good pay and good security. In proportion to the distress of the applicant was the hardness of his terms. He accumulated bonds and mortgages; gradually squeezed his customers closer and closer; and sent them at length, dry as a sponge from his door.

As with the miserly house from the first part, Tom’s property begins to reflect the condition of his soul. Tom “set up a carriage in the fullness of his vain glory, though he nearly starved the horses which drew it; and as the ungreased wheels groaned and screeched on the axle trees, you would have thought you heard the souls of the poor debtors he was squeezing.”
And Tom knowing the state of his soul does not seek mercy but seeks to best the Devil — yet another contrast to those in the social order that Tom is distancing himself from.   He attempts to out pious the pious and in fact leads them to believe he is more pious than they.  At the end of the day, its Tom’s failure to show mercy that warrants him no mercy from his own usury lender of the soul.
What is important from a Property perspective is the role that property plays in shaping the social relations around Tom Walker.  Property becomes the mediator between his wife and the devil; it becomes the mediator between illicit activities and Tom; and it becomes the mediator (or the stage) upon which Tom’s religion is played out.   In short, The Devil and Tom Walker illustrates the role of Property in shaping human interactions.
Here are some discussion questions like the last post.  What other questions would you raise?


Some Questions for Students Following Tom Walker:

Drawing on Justice Marshall’s opinion in The Antelope, how is Tom Walker’s moral position on slavery similar to Justice Marshall?  How is it different?

We talk about Property being primarily about “relationships amongst people to things;” is Property the primary tie between the characters?  Is there something else?

The Devil is primarily a bailor with respect to the pirate gold.  If Captain Kidd indeed never returned, should the Gold be treated as abandoned property?  Should it be treated as treasure trove?  Why?

Should we understand this story as a critique of the financial lending market?   Why or why not.

For more information See Kenneth Reed, Washington Irving and the Negro, Negro American Literature Forum (1970).

The Devil and Tom Walker — A Property Tale 4

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I want to thank Warren, Patrick, Allen and Mai-Linh  for having me here at the Table.

Washington Irving’s The Devil and Tom Walker has been exemplified as a an example of Irving’s use of folklore in constructing narratives of context.  Most writers and commentators focus on the karma-istic nature of the story, the faustian detail (devil story), or the role of greed.   But the Devil and Tom Walker is a property story.  Yes — its about, at its core, the capacity of property to shape relationships amongst people.  A few areas of intersection emerge in a property world.    We see the conflict between entitlements that are respected and those that are not. In fact, as the last assignment for the semester, I am having my students read the Devil and Tom Walker.  These are some of the things I want them to see.  Today I want to point out how landscapes and their surroundings in The Devil and Tom Walker are intertwined in the property world.

The beginning of the story tells us that there are two property conflicts that will shape the story.  We learn that the Pirate Kidd has stashed gold in the hills amongst the trees in an inland swampy area under the watchful “guardianship” of the devil, “as [the devil] always does with buried treasure, particularly when it has been ill-gotten.”  We also learn that Tom Walker and his wife lived in a state of conflict over the things that might be termed their “earthly treasures.”  The wife hid things as they were acquired (like the eggs laid by the hen) and Tom pried about to discover her secret hoards, causing fierce conflicts over what Irving tells us should have been “common property.”  These conflicts left their marks on Tom’s face from time to time, though no one ventured to interfere with their business.

We also get an early glimpse of the poverty in which they lived — poverty which was common amongst their peers.

They lived in a forlorn looking house, that stood alone and had an air of starvation. A few straggling savin trees, emblems of sterility, grew near it; no smoke ever curled from its chimney; no traveller stopped at its door. A miserable horse, whose ribs were as articulate as the bars of a gridiron, stalked about a field where a thin carpet of moss, scarcely covering the ragged beds of pudding stone, tantalized and balked his hunger; and sometimes he would lean his head over the fence, look piteously at the passer by, and seem to petition deliverance from this land of famine. The house and its inmates had altogether a bad name.

Their Property, it seems, began to mimic the desolate nature of their souls.  Their home, like them, was forelorn.  The story does not tell us that Tom or his wife had children, but their property reflecting their nature suggests they were sterile, producing no fruit.  Moreover, the house was unwelcoming — there was no warmth either by fire or welcoming nature and no “traveller stopped at its door.”  The house became anthropomorphasized, at least as it reflected its two inhabitants, similar to the House of Usher in Poe’s tales, or the House of the Seven Gables from Hawthorne.

As Tom went walking one day, through the land, he came upon an area known amongst the common people as a dim place. Tom stops for a rest amongst a great tree and uncovers an indian skull with an ax embedded within it.  The place was known to be one where Indians performed incantations and made sacrifices.  It was a place where the sacred and the profane met.  But Tom was not one to be trifled with such stories.   Here, the story tells us a couple of things.  First, Tom perceives himself differently from the common people.  Common people believe in the mystical nature of the place which shapes the entitlements of people to enter; but not Tom.  Tom’s view of property then is shaped by what we would term entitlements, rather than propriety.  This is exemplified when Tom encounters the devil after kicking away the skull he has unearthed.

“Let that skull alone!” said a gruff voice….

He scowled for a moment at Tom with a pair of great red eyes.

“What are you doing in my grounds?” said the black man, with a hoarse growling voice.

“Your grounds?” said Tom, with a sneer; “no more your grounds than mine: they belong to Deacon Peabody.”

In Tom’s view, the Devil has no right to exclude Tom from the property.  Its only Deacon Peabody, whose entitlement is legally proper — that is respected by the white community.  In this end, it does not matter that Tom does not have an entitlement to the property.  All that matters is that neither does the devil, and from where Tom sees the world, his entitlement is probably better anyway.  Similarly, when Tom learns that the Devil is hewing trees (which represent the souls of the great men of the town), Tom asks what right did the devil have to tear down the trees.  And the Devil responds: “”The right of prior claim,” said the other. “This woodland belonged to me long before one of your white faced race put foot upon the soil.”

There is an irony in the claim of first title that emerges in the discussion between Tom and the Devil.   Tom does not respect the right of the native American’s to occupy the land.   He believes the entitlement is only proper with Deacon Peabody — an opinion which was consistent with the prevailing worldview as title goes.  See Johnson v. M’cintosh for example.  Ironically, Tom seems to accept the Devil’s account when he learns that the devil is not merely native american, but rather absorbs the dark matters across all cultures.   At this, the Devil has trumped Tom’s view of entitlement drawing on a greater source of right, than that which Deacon Peabody claimed his right — the actual right of first occupancy.

Similarly, the question of who has the rights to the chattels on the property are shaped by how Tom and the Devil perceive the entitlement to the wooded area. The Devil tells Tom of the treasure that falls under his protection.   At first, Tom is skeptical of the Devil.  In fact the story tells us that Tom was a “hard-minded fellow” and did not at all fear the devil and asked for proof that what the devil said was true.”  As the story proceeds, we see Tom does ultimately deal with the devil (I am going to cover Tom’s and his wife’s encounters with the devil in part II) and takes possession of the gold.  But what is important is how Tom perceives the Devil’s entitlement to the gold.  The Devil tells Tom that the only way to find the gold is through the Devil, who has hidden it so that none may find it.  As Tom prospers with the Devil’s gold, he begins to think about how he can cheat the devil out of his gold.

Once again, Tom defers to entitlements. His solution is to appeal to the what he believes can conquer the devil — zeal and devoutness.   Once again, relating the property course to this work, we see the American perspective shaped by how entitlements are created.

Some Questions for Students from the Devil and Tom Walker

1. How does Tom’s perception of the entitlements to the forest land shape his interactions with “Old Scratch?”

2. Does Tom’s lack of respect for the entitlements shape the way he respects the things found on the land? Compare the Skull with the Trees, with the Treasure.

3. Considering the reasoning of Justice Marshall in Johnson v. M’Insosh, how should we understand entitlements to the property in the forest.  Could Johnson v. M’Intosh be consistent with Devil’s entitlement to the forest land?

4. How should disputes relating to various chattels be resolved in relation to the Skull, the Trees, the Treasure?  Consider Pierson v. Post, Ghen v. Rich, Popov v. Hayashi, Keeble v. Hickeringill, and NAGPRA.   Does it matter if the Devil’s entitlement isn’t legitimate?

5. How does Property shape the various relationships in the story?   Tom and the Devil; Tom and his wife; Tom and Deacon Peabody; the Devil and Mr. Peabody?

6. Are there entitlements we should respect, regardless of their legal enforceability?

Are there other things that you would ask?  Please post comments below.

Forthcoming — The Devil and Tom Walker: A Property Tale — The Relationships of People to Property.  

Article on E.M. Forster 1

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Click here to view my article on law in A Passage to India.  Here is an abstract:

E.M. Forster’s A Passage to India presents Brahman Hindu jurisprudence as an alternative to British rule of law, a utilitarian jurisprudence that hinges on mercantilism, central planning, and imperialism.  Building on John Hasnas’s critiques of rule of law and Murray Rothbard’s critiques of Benthamite utilitarianism, this essay argues that Forster’s depictions of Brahman Hindu in the novel endorse polycentric legal systems.  Mr. Turton is the local district collector whose job is to pander to both British and Indian interests; positioned as such, Turton is a site for critique and comparison.  Forster uses Turton to show that Brahman Hindu jurisprudence is fair and more effective than British bureaucratic administration.  Forster’s depictions of Brahman Hindu are not verisimilar, and Brahman Hindu does not recommend a particular jurisprudence.  But Forster appropriates Brahman Hindu for aesthetic and political purposes and in so doing advocates a jurisprudence that does not reduce all experience to mathematical calculation.  Forster writes against the Benthamite utilitarianism adopted by most colonial administrators in India.  A tough figure to pin down politically, Forster celebrates the individual and personal relations: things that British rule of law seeks to suppress.

Law & Literature: A Basic Bibliography 7

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  • Morawetz, Thomas. Literature and the Law. Frederick, MD: Aspen Publishers, 2007.
  • Morris, Norval. The Brothel Boy and Other Parables of the Law. New York: Oxford University Press, 1992.
  • Nabers, Deak. Victory of Law: The Fourteenth Amendment, the Civil War, and American Literature, 1852—1867. Baltimore, MD: Johns Hopkins University Press, 2006.
  • Neusner, Jacob. Law as Literature. Eugene, OR: Wipf & Stock, 2007.
  • Nussbaum, Martha C. Poetic Justice: The Literary Imagination and Public Life. Boston, MA: Beacon Press, 1995.
  • Posner, Richard A. Law and Literature. Cambridge, MA: Harvard University Press, third ed., 2009.
  • Raffield, Paul. Shakespeare’s Imaginary Constitution: Late Elizabethan Politics and the Theatre of Law. Portland, OR: Hart, 2010.
  • Raffield, Paul and Gary Watt, eds. Shakespeare and the Law. Portland, OR: Hart, 2008.
  • Redhead, Steve. Unpopular Cultures: The Birth of Law and Popular Culture. Manchester: Manchester University Press, 1995.
  • Reichman, Ravit. The Affective Life of Law: Legal Modernism and the Literary Imagination. Stanford, CA: Stanford University Press, 2009.
  • Renaud, Gilles. Les Misérables on Sentencing: Valjean, Fantine, Javert and the Bishop Debate the Principles. Melbourne: Sandstone Academic Press, 2007.
  • Ritscher, Lee A. The Semiotics of Rape in Renaissance English Literature. New York: Peter Lang, 2007.
  • Rockwood, Bruce L., ed. Law and Literature Perspectives. New York: Grove, 1996.
  • Rodensky, Lisa. The Crime in Mind: Criminal Responsibility and the Victorian Novel. New York: Oxford University Press, 2003.
  • Ronner, Amy D. Law, Literature, and Therapeutic Jurisprudence. Durham, NC: Carolina Academic Press, 2010.
  • Rosenshield, Gary. Western Law, Russian Justice: Dostoevsky, The Jury, and the Law. Madison, WI: University of Wisconsin Press, 2005.
  • Ross, Charles. Elizabethan Literature and the Law of Fraudulent Conveyance: Sidney, Spenser, and Shakespeare. Aldershot: Ashgate, 2003.
  • St. Joan, Jacqueline and Annette Bennington McElhiney, eds. Beyond Portia: Women, Law and Literature in the United States. Boston, MA: Northeastern University Press, 1997.
  • Sanders, Mark. Ambiguities of Witnessing: Law and Literature in the Time of a Truth Commission. Stanford, CA: Stanford University Press, 2007.
  • Sarat, Austin, Matthew Anderson, and Cathrine O. Frank. Law and the Humanities: An Introduction. Cambridge, UK: Cambridge University Press, 2010.
  • Scase, Wendy. Literature and Complaint in England, 1272-1553. Oxford, UK: Oxford University Press, 2007.
  • Schaller, Barry R. A Vision of American Law: Judging Law, Literature and the Stories We Tell. Westport, CT: Praeger, 1997.
  • Schmidgen, Wolfram. Eighteenth-Century Fiction and the Law of Property. Cambridge, UK: Cambridge University Press, 2002.
  • Schramm, Jan-Melissa. Testimony and Advocacy in Victorian Law, Literature, and Theology. Cambridge, UK: Cambridge University Press, 2000.
  • Schramm, Jan-Melissa and Gillian Beer, eds. Testimony and Advocacy in Victorian Law, Literature and Theology. Cambridge, UK: Cambridge University Press, 2006.
  • Shapiro, Fred R. and Jane Garry eds. Trial and Error: An Oxford Anthology of Legal Stories. Oxford, UK: Oxford University Press, 1998.
  • Slaughter, Joseph R. Human Rights, Inc.: The World Novel, Narrative Form, and International Law. New York: Fordham University Press, 2007.
  • Smith, Carl S. Law and American Literature: A Collection of Essays. New York: Knopf, 1983.
  • Sokol, B.J. and Mary Sokol. Shakespeare, Law, and Marriage. Cambridge, UK: Cambridge University Press, 2006.
  • Thomas, Brook. Cross-Examinations of Law and Literature: Cooper, Hawthorne, Stowe & Melville. Cambridge, UK: Cambridge University Press, 1991.
  • Thomas, Brook. Civic Myths: A Law-and-Literature Approach to Citizenship. Chapel Hill, NC: University of North Carolina Press, 2007.
  • Thomas, Jeffrey E. and Franklin G. Snyder, eds. The Law and Harry Potter. Durham, NC:  Carolina Academic Press, 2010.
  • Thompson, Carlyle Van. Black Outlaws: Race, Law, and Male Subjectivity in African American Literature and Culture. New York: Peter Lang, 2010.
  • Tomain, Joseph P. Creon’s Ghost: Law, Justice, and the Humanities. New York: Oxford University Press, 2009.
  • Turner, J. Neville and Pam Williams, eds. The Happy Couple: Law and Literature. Sydney: Federation Press, 1994.
  • Tushnet, Mark V. Slave Law in the American South: State v. Mann in History and Literature. Lawrence, KS: University Press of Kansas, 2003.
  • Visconsi, Elliott. Lines of Equity: Literature and the Origins of Law in Later Stuart England. Ithaca, NY: Cornell University Press, 2008.
  • Ward, Ian. Law and Literature: Possibilities and Perspectives. Cambridge, UK: Cambridge University Press, 1995.
  • Ward, Ian. Shakespeare and the Legal Imagination. London: Butterworths, 1999.
  • Ward, Ian. Law, Text, Terror. Cambridge, UK: Cambridge University Press, 2009.
  • Watson, Jay. Forensic Fictions: The Lawyer Figure in Faulkner. Athens, GA: University of Georgia Press, 1993.
  • Warren, Joyce W. Women, Money and the Law: Nineteenth-Century Fiction, Gender, and the Courts. Iowa City, IA: University of Iowa Press, 2005.
  • Weaver, Jace. Other Words: American Indian Literature, Law, and Culture. Norman, OK: University of Oklahoma Press, 2001.
  • Weiner, Susan. Law in Art: Melville’s Major Fiction and Nineteenth-Century American Law. New York: Peter Lang, 1992.
  • Weisberg, Richard H. The Failure of the Word: The Lawyer as Protagonist in Modern Fiction. New Haven, CT: Yale University Press, 1984.
  • Weisburg, Richard H. Poethics, and Other Strategies of Law and Literature. New York: Columbia University Press, 1992.
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  • White, James Boyd. When Words Lose Their Meaning: Constitutions and Reconstitutions of Language, Character, and Community. Chicago, IL: University of Chicago Press, 1984.
  • White, James Boyd. Heracles’ Bow: Essays on the Rhetoric and Poetics of the Law. Madison, WI: University of Wisconsin Press, 1985.
  • White, James Boyd. Acts of Hope: Creating Authority in Literature, Law and Politics. Chicago, IL: University of Chicago Press, 1994.
  • White, R.S. Natural Law in English Renaissance Literature. Cambridge, UK: Cambridge University Press, 1996. 
  • Williams, Melanie. Empty Justice: One Hundred Years of Law, Literature and Philosophy. London: Cavendish, 2001.
  • Wilson, Luke. Theaters of Intention: Drama and the Law in Early Modern England. Stanford, CA: Stanford University Press, 2000.
  • Winter, Steven L. A Clearing in the Forest: Law, Life, and Mind. Chicago, IL: University of Chicago Press, 2001.
  • Wishingrad, Jay, ed. Short Fictions: Short Stories About Lawyers and the Law. New York: The Overlook Press, 1992.
  • Woodmansee, Martha and Peter Jaszi, eds. The Construction of Authorship: Textual Appropriation in Law and Literature. Durham, NC: Duke University Press, 1994.
  • Wright, Nancy E., Margaret W. Ferguson, and A.R. Buck, eds. Women, Property, and the Letters of the Law in Early Modern England. Toronto: University of Toronto Press, 2004.
  • Yoshino, Kenji. A Thousand Times More Fair: What Shakespeare’s Plays Teach Us About Justice. New York: Ecco/HarperCollins, 2011.
  • Ziolkowski, Theodore. The Mirror of Justice: Literary Reflections of Legal Crises. Princeton, NJ: Princeton University Press, 2003 ed.
  • Zomchick, John P. Family and the Law in Eighteenth-Century Fiction: The Public Conscience in the Private Sphere. Cambridge, UK: Cambridge University Press, 2007.
  • Zurcher, Andrew. Spenser’s Legal Language: Law and Poetry in Early Modern England. Woodbridge: Boydell & Brewer, 2007.

I welcome suggestions for additional titles. And I will send along a Word doc. version upon request. (At a future date this compilation will be made available at the Ratio Juris blog for download as a Word doc.)

Returning from the Oklahoma Sovereignty Symposium 5

by • Roger Malvin's Burial • Tags: , , , , , , , ,


I have been traveling allot the last few weeks.  One of the places that I have been, and which I am returning is the Oklahoma Sovereignty Symposium in Oklahoma City, OK.  This is my first year going and it was well worth the drive.  I was blown away by the Parade of Nations, in which the tribal nations of Oklahoma entered the arena.  I was captivated by the conversations and found myself wishing I had more to contribute.  But on a certain level that seems to be appropriate when we are talking about Native Americans and the law doesn’t it. Our narrative history (I am Choctaw) chants a song that is only heard by some, but when heard is a testament to our life, our struggles and our status as a people.

This years theme was “as long as the grass grows.”  How fitting a phrase for Indian law itself.  As long as the grass grows beneath our feet, Indian law will continue to whisper the remnants of our past.

While I was sitting in the panels and listening to the rich dialogues that of themselves gave birth to the peoples and their stories, I began to think about what types of texts might fit in a law and literature course.

Of course Nathaniel Hawthorne wrote about Indians: we have talked about Roger Malvin’s Burial and Lovewell’s fight in the French and Indian War here; however, Indians in Hawthorne’s tales are mostly in the background — setting for the action of the european settlers. This is in contrast to his contemporary James Fenimore Cooper who romanticized the American Indian (Last of the Mohicans remains a favorite (book and movie).

Another book that looks at the Indian as confronted with modernity, is Sundown, by John Joseph.

A modern piece of literature that struggles with identity, family, and modernity is The Bean Trees by Barbrara Kingsolver.   I keep meaning to read her follow up to that book Pigs in Heaven, though perhaps this summer. Animal Dreams is also a good read.

Perhaps though the best book is Robert William’s The American Indian in Western Legal Thought. William’s historical and cultural sensativity make this volume a must for anyone contemplating Indian Law.

What other works by or about Native Americans should be included in a Law and Literature Course?

Video and Song: Ghost Dance by Robbie Robertson

Can Law and Literature Function without Historical Narrative? 3

by • Robert Penn Warren • Tags: ,

When I took law and literature in law school, it was frankly the best class experience of my education (sorry unnamed property prof — the rule against perpetuities still haunts).

But one thing that was missing when I took law and literature was the connection of the literature to any emerging cultural narrative or norm. We read lots of great books, many of which I have incorporated into my own law and literature course. But they were all disconnected from one another, except for the shared discussions of authorship, irony, the task of writing, etc… The course essentially became a course in the Great books of the world… with legal narratives behind them. Don’t get me wrong. That’s is a wonderful course, and I suspect for most law and literature profs it functions as an ethics alternative to the universe of professionalism that has engrafted legal education for the last hundred years — retrenching liberal education in the law school halls if you will.

In my own law and literature course (this is the third time that I have taught the class) I have attempted to incorporate a greater sense of historical connection between literature and the law. Perhaps my view of literature and the law is best summed up by Robert Penn Warren reflecting on Cass Mastern in All the King’s Men:

Cass Mastern lived for a few years and in that time he learned that the world is all of one piece. He learned that the world is like an enormous spider web and if you touch it, however lightly, at any point, the vibration ripples to the remotest perimeter and the drowsy spider feels the tingle and is drowsy no more but springs out to fling the gossamer coils about you who have touched the web and then inject the black, numbing poison under your hide.
Each time that I have taught the course, it has been a reflection of the culture of American law — so only literature by Americans or about America (my students read Margaret Atwood’s Handmaid’s Tale which is set in Gideon or Evangelically reformed America). So out are Antigone, or even Jean Anouilh’s version of Antigone (set against a German occupied France in World War II). We don’t read Charles Dickens’ Bleak House, or Fydor Dostoyevsky’s Crime and Punishment or Brother’s Karamozov. And we don’t read Kazuo Ishiguro’s Remain’s of the Day, one of my favorites. And of course, no Shakespeare.

Looking back over the list of works that my students miss out on, started me thinking about what other ways I could incorporate the historical narrative against the backdrop of literature and the law. Perhaps a study of 19th century literature would reveal a growing consciousness between wealth and poverty. That would be fun — Dickens’ Oliver Twist and Doystoveski’s Poor Folk anyone? Perhaps an obvious catalyst would be a course “Literature in the Age of Revolution.” William Wirt’s Letters of the British Spy , Victor Hugo’s Les Miserable, and Dickens’ Tale of Two Cities would be great. Perhaps even some twentieth century memoirs/ biographies around revolutions –, maybe Reading Lolita in Tehran for the Iranian Revolution and Che Guevara, A Revolutionary Life for the South American/ Cuban Revolution? (At the very least, we could educate our students about who the guy on their t-shirt is).

What other historical narratives could you see using in Law and Literature. Also, then, how is law and literature different from Legal History?

Nathaniel Hawthorne’s Roger Malvin’s Burial and the Question of Conduct 2

by • Roger Malvin's Burial • Tags: , , , , , , , , ,

Nathaniel Hawthorne’s short story Roger Malvin’s Burial (1832) is set following Lovewell’s fight in the French and Indian Wars. Besides Roger Malvin’s Burial, Lovewell’s fight has been mentioned in a ballad of Lovewell’s fight, which was written anonymously after the 1725 fight as well as the painting Chamberlain and Paugus at Lovewell’s Fight, 1725.

wpid-1149648.jpg

Roger Malvin’s Burial is a story about conduct and the guilt that flows from one’s conduct. It follows two soldiers returning from Lovewell’s fight, both wounded. At a certain point, one soldier, Roger Malvin, decides that he cannot go further. He pleads with his companion Reuben Bourne to leave him and return to the settlement. After telling Roger Malvin that he would not leave him, Reuben finally agrees. Before leaving on his own, Roger asks Reuben to promise one thing — return to bury him.

When Reuben Bourne makes it back to the settlement, his wounds have overcome him, leaving him unconscious for several days. When he does recover, Reuben is treated as a brave man and Reuben is not given to tell Roger’s daughter Dorcas that he left Roger to die in the woods alone. Reuben ultimately marries Dorcas and accedes to Roger Malvin’s farm. They also have a child named Cyrus. And Reuben never returns to bury Roger Malvin. Over the next several years things fell apart for Reuben. The farm fails, his community begins to question his integrity, and eventually Reuben, Dorcas, and Cyrus leave the community.

Cyrus is, by all accounts the embodiment of Cyrus of Persia, both in his ethic and his treatment of others. Recall that Cyrus of Persia in the Biblical text is responsible for rebuilding the Jewish Temple in Jerusalem (Book of Ezra and Nehemiah). He is hailed by the Prophet Isaiah as “the Lord’s anointed,” despite the fact that he himself is not an Israelite. (Isaiah 45:1-8) Reuben on the other hand in the biblical account is filled with complexity and contradiction. He is intimate with his mother Rachel’s handmaid (like his father before him), leading early biblical scholars to suggest that Reuben engaged in incest (Genesis 35:22). Reuben is also the model of indecision, who at first saves Joseph’s life, but then merely comes up an alternative to death by throwing Joseph into a well and selling Joseph into slavery. (Genesis 37:21 et seq.). Later, when famine strikes Israel, its Reuben that recognizes the connection between the action of the brother’s and the state of the land (Genesis 42:22). In short, like the Biblical Reuben, Hawthorne’s Reuben was a deeply conflicted character who recognized his faults without being entirely clear about how to resolve them.

As Reuben and Cyrus are hunting for food, in the same woods where Roger Malvin died (Hawthorne loves irony), Reuben shoots his musket at a deer. He then discovers that he has actually shot and killed Cyrus, on the very spot where Roger Malvin was left unburied to die (Hawthorne really loves irony)! Several questions arise in reading Roger Malvin’s Burial in the context of the law — principally, should Reuben have left Roger Malvin? Whatever our answer, as the story goes forward we get a picture that Reuben would not be held out of esteem by the community even by leaving Roger Malvin. Nevertheless, Reuben can’t bring himself to tell the truth about leaving Roger Malvin alone to die.

When I have taught torts, I always end the class with this story — largely because this story encapsulates the tension between rights and wrongs as decided by communities versus rights and wrongs as individualized. Torts as a legal matter only enforces those wrongs which we jointly recognize as being remedied by force of law. Yet, its the individual wrong that causes the most lasting consequences — often the inverse of our social legal recognitions. In Roger Malvin’s Burial, the consequence is guilt — and the expiation of that guilt is itself something that one normally feels guilt over — the killing of one’s own son.

There is much more to Roger Malvin’s Burial, including the confusion of Indian and Puritan symbols between Roger Malvin and Rueben Bourne, and Hawthorne as historian presenting his own unique view of New England.