Allen Porter Mendenhall

Posts Tagged ‘Law and Literature’

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Book Review: Paul Cantor and Stephen Cox’s Literature and the Economics of Liberty

In Law-and-Literature, Humane Economy, Literary Theory & Criticism, Book Reviews, Politics, Arts & Letters, Libertarianism, Austrian Economics, Western Civilization, History, Novels, Economics, Conservatism, Communism, Humanities, Liberalism, Fiction, Literature, Essays, Philosophy, Western Philosophy on January 23, 2012 at 4:53 am

Allen Mendenhall

The following book review originally appeared here in the Fall 2010 issue of The Independent Review.

Humans are not automated and predictable, but beautifully complex and spontaneous. History is not linear. Progress is not inevitable. Our world is strangely intertextual and multivocal. It is irreducible to trite summaries and easy answers, despite what our semiliterate politicians would have us believe. Thinking in terms of free-market economics allows us to appreciate the complicated dynamics of human behavior while making sense of the ambiguities leading to and following from that behavior. With these realities in mind, I applaud Paul Cantor and Stephen Cox for compiling the timely collection Literature and the Economics of Liberty, which places imaginative literature in conversation with Austrian economic theory.

Cantor and Cox celebrate the manifold intricacies of the market, which, contrary to popular opinion, is neither perfect nor evil, but a proven catalyst for social happiness and well-being. They do not recycle tired attacks on Marxist approaches to literature: they reject the “return to aesthetics” slogans of critics such as Allan Bloom, Harold Bloom, and John M. Ellis, and they adopt the principles, insights, and paradigms of the Austrian school of economics. Nor do Cantor and Cox merely invert the privilege of the terms Marxist and capitalist (please excuse my resort to Derridean vocabulary), although they do suggest that one might easily turn “the tables on Marxism” by applying “its technique of ideology critique to socialist authors, questioning whether they have dubious motives for attacking capitalism.” Cantor and Cox are surprisingly the first critics to look to Austrian economics for literary purposes, and their groundbreaking efforts are sure to ruffle a few feathers—but also to reach audiences who otherwise might not have heard of Austrian economics.

Cantor and Cox submit that the Austrian school offers “the most humane form of economics we know, and the most philosophically informed.” They acknowledge that this school is heterodox and wide ranging, which, they say, are good things. By turning to economics in general, the various contributors to this book—five in all—suggest that literature is not created in a vacuum but rather informs and is informed by the so-called real world. By turning to Austrian economics in particular, the contributors seek to secure a place for freedom and liberty in the understanding of culture. The trouble with contemporary literary theory, for them, lies not with economic approaches, but with bad economic approaches. An economic methodology of literary theory is useful and incisive so long as it pivots on sound philosophies and not on obsolete or destructive ideologies. Austrian economics appreciates the complexity and nuance of human behavior. It avoids classifying individuals as cookiecutter caricatures. It champions a humane-economy counter to mechanistic massproduction, central planning, and collectivism. Marxism, in contrast, is collectivist, predictable, monolithic, impersonal, linear, reductive–in short, wholly inadequate as an instrument for good in an age in which, quite frankly, we know better than to reduce the variety of human experience to simplistic formulae. A person’s creative and intellectual energies are never completely products of culture or otherwise culturally underwritten. People are rational agents who choose between different courses of action based on their reason, knowledge, and experience. A person’s choices, for better or worse, affect lives, circumstances, and communities. (“Ideas have consequences,” as Richard Weaver famously remarked.) And communities themselves consist of multiplicities that defy simple labels. It is not insignificant, in light of these principles, that Michel Foucault late in his career instructed his students to read the collected works of Ludwig von Mises and F. A. Hayek. Read the rest of this entry »

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Law and Literature at the Seventh Annual Meeting of the Property and Freedom Society

In Arts & Letters, Austrian Economics, Conservatism, Economics, Humane Economy, Humanities, Law, Law-and-Literature, Libertarianism, Literary Theory & Criticism, Literature, News and Current Events, News Release, Philosophy, Politics, Western Philosophy on January 14, 2012 at 9:55 am

Allen Mendenhall

The Seventh Annual Meeting of the Property and Freedom Society will take place in Bodrum, Turkey, at the Hotel Karia Princess, from Thursday, September 27, through Monday, October 1, 2012.  Readers of this site may be interested in some of the proposed talks for this event.

Hans-Hermann Hoppe and Stephan Kinsella will speak on Philosophy and Law.  Professor Hoppe’s paper is titled “The Nature of Man: Does Any Such Thing Exist?”  Mr. Kinsella’s paper is titled “The Market for Law.”

Sean Gabb and Benjamin Marks will speak on Literature and Literary Criticism.  Dr. Gabb’s paper is titled ”On Literature and Liberty.”  Mr. Marks’s paper is titled “On H. L. Mencken as a Libertarian Model (and Some Romantic Libertarian Delusions).”

Other literati to speak include Jeffery Tucker, who interviewed me about literature and the economics of liberty and who now is the executive editor for Laissez Faire Books, and Theodore Dalrymple.

 

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Review of Forensic Fictions by Jay Watson

In Arts & Letters, Book Reviews, Fiction, Georgia, Humanities, Jurisprudence, Justice, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Novels, Rhetoric, Rhetoric & Communication, Southern History, Southern Literary Review, The South, Writing on December 5, 2011 at 10:56 pm

Allen Mendenhall

The following review originally appeared here at the Southern Literary Review.  If you enjoy this review, please consider subscribing to the Southern Literary Review.  I became the managing editor of the Southern Literary Review in November.

 

Kudos to the University of Georgia Press for this recent reprint of Jay Watson’s Forensic Fictions, which has become something of a classic among law-and-literature scholars.  A pioneering project, Forensic Fictions stands as the first critical work to interrogate the lawyer figure in Faulkner’s oeuvre.

Watson submits that law is vast and multidimensional, “at once a deeply normative cultural system, a vehicle of ideology (in its constructive and destructive manifestations), a force of social stability and control, an entrenched and often blindly self-interested institution, and not least of all a human vocation, a form of practice that in some instances achieves the status of a calling.” 

In Faulkner’s fiction, law helps to highlight the complexity, sometimes liberating and sometimes disorienting, of the “everyday” aspects of Southern culture, institutions, and traditions.  Law is more than bills, statutes, judge-made opinions, codes, and the like.  Law isn’t a monolithic animal but a multiplicity of people and institutions; a product of self-serving performances by lawyers, judges, and politicians; and an accumulation of arguments couched in topoi of guilt and innocence, right and wrong, justice and equality.  Law is, simply put, a network of human relations and a collection of stories. 

Watson’s book examines how lawyers and laws constitute and presuppose authority in the microcosm of Yoknapatawpha.  “Lawyers of course advocate by narrating,” Watson explains, “by telling their clients’ stories in the language of the law.”  Lawyers, then, are raconteurs, and laws are products of language, even as they institute language.

Watson suggests that Faulkner internalized the “conspicuous and complicated presence” of real-life lawyers—Dean R.J. Farley, Governor Lee M. Russell, General James Stone, Ben Wasson, Jim Kyle Hudson, and Lucy Somerville Howorth, to name just a few—and then expressed mixed feelings about lawyers and the legal community in his writings.  Although not a lawyer himself, Faulkner could boast of a legal pedigree, having been born into a family and a society overflowing with attorneys.  Faulkner’s multifaceted and often contradictory ideas about law reflect these cultural associations.

Watson uses the term “forensic fictions” to refer to Faulkner’s depictions “of the legal vocation and the practice of law, a practice that extends from the official space of the courtroom and the professional space of the law office to the farthest reaches of the community.”  Thus conceived, law is not only a communicative vehicle but also a way of life, as mundane as it is exciting. 

Watson works out of the paradigms of forensic discourse.  He treats law as a theater of differences and disparate perspectives and as a vast system of interrelated parts.  An “important subtext” for Faulkner’s forensic fictions, according to Watson, “is the conviction that the values and concerns of the storyteller can and must carry over from a limited, private, aesthetic realm into a public world outside, where verbal creations can reinforce, challenge, or otherwise inform social norms.”

Three novels—Intruder in the Dust, Knight’s Gambit, and Requiem for a Nun—make up what Watson dubs Faulkner’s “forensic trilogy.”  These novels portray the lawyer as citizen-spokesperson, able to appropriate the public sphere as a space for social celebration or critique. Read the rest of this entry »

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The Emersonian Oliver Wendell Holmes Jr.

In American History, Art, Arts & Letters, Emerson, History, Humanities, Jurisprudence, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Nineteenth-Century America, Oliver Wendell Holmes Jr., Philosophy, Poetry, Pragmatism, Rhetoric, The Supreme Court, Western Civilization, Western Philosophy, Writing on October 26, 2011 at 9:16 am

Allen Mendenhall

Writers on Holmes have forgotten just how influential poetry and literature were to him, and how powerfully literary his Supreme Court dissents really are.  The son of the illustrious poet by the same name, young Holmes, or Wendell, fell in love with the heroic tales of Sir Walter Scott, and the “enthusiasm with which Holmes in boyhood lost himself in the world of Walter Scott did not diminish in maturity.”[1]  Wendell was able to marry his skepticism with his romanticism, and this marriage, however improbable, illuminated his appreciation for ideas past and present, old and new.  “His aesthetic judgment,” says Mark DeWolfe Howe, author of the most definitive biography of Holmes and one of Holmes’s former law clerks, “was responsive to older modes of expression and earlier moods of feeling than those which were dominant at the fin de siècle and later, yet his mind found its principle nourishment in the thought of his own times, and was generally impatient of those who believe that yesterday’s insight is adequate for the needs of today.”[2]  Holmes transformed and adapted the ideas of his predecessors while transforming and adapting—one might say troping—milestone antecedents of aestheticism, most notably the works of Emerson.  “[I]t is clear,” says Louis Menand, “that Holmes had adopted Emerson as his special inspiration.”[3]      

Classically educated at the best schools, Wendell was subject to his father’s elaborate discussions of aesthetics, which reinforced the “canons of taste with the heavier artillery of morals.”[4]  In addition to Scott, Wendell enjoyed reading Sylvanus Cobb, Charles Lamb’s Dramatic Poets, The Prometheus of Aeschylus,[5] and Plato’s Dialogues.[6]  Wendell expressed a lifelong interest in art, and his drawings as a young man exhibit a “considerable talent.”[7]  He declared in his Address to the Harvard Alumni Association Class of 1861 that life “is painting a picture, not doing a sum.”[8]  He would later use art to clarify his philosophy to a friend: “But all the use of life is in specific solutions—which cannot be reached through generalities any more than a picture can be painted by knowing some rules of method.  They are reached by insight, tact and specific knowledge.”[9]     

At Harvard College, Wendell began to apply his facility with language to oft-discussed publications in and around Cambridge.  In 1858, the same year that Dr. Oliver Wendell Holmes Sr. gifted five volumes of Emerson to Wendell,[10] Wendell published an essay called “Books” in the Harvard undergraduate literary journal.[11]  Wendell celebrated Emerson in the piece, saying that Emerson had “set him on fire.”  Menand calls this essay “an Emersonian tribute to Emerson.”[12] 

Holmes had always admired Emerson.  Legend has it that, when still a boy, Holmes ran into Emerson on the street and said, in no uncertain terms, “If I do anything, I shall owe a great deal to you.”  Holmes was more right than he probably knew. 

Holmes, who never gave himself over to ontological (or deontological) ideas about law as an existent, material, absolute, or discoverable phenomenon, bloomed and blossomed out of Emersonian thought, which sought to “unsettle all things”[13] and which offered a poetics of transition that was “not a set of ideas or concepts but rather a general attitude toward ideas and concepts.”[14]  Transition is not the same thing as transformation.  Transition signifies a move between two clear states whereas transformation covers a broader and more fluent way of thinking about change.  Holmes, although transitional, was also transformational.  He revised American jurisprudence until it became something it previously was not.  Feeding Holmes’s appetite for change was “dissatisfaction with all definite, definitive formulations, be they concepts, metaphors, or larger formal structures.”[15]  This dissatisfaction would seem to entail a rejection of truth, but Emerson and Holmes, unlike Rorty and the neopragmatists much later, did not explode “truth” as a meaningful category of discourse.  Read the rest of this entry »

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Law & Literature: A Basic Bibliography

In American History, Arts & Letters, Law-and-Literature, Legal Education & Pedagogy, Literary Theory & Criticism, Nineteenth-Century America, Novels, Pedagogy, Politics, Rhetoric, Rhetoric & Communication, Semiotics, Slavery, The Literary Table, The Supreme Court, Western Civilization on April 2, 2011 at 9:16 pm

Patrick S. O’Donnell compiled this bibliography in 2010.  He teaches philosophy at Santa Barbara City College in California.  This bibliography first appeared over at The Literary Table. 

Amsterdam, Anthony G. and Jerome Bruner. Minding the Law. Cambridge, MA: Harvard University Press, 2000.

Atkinson, Logan and Diana Majury, eds. Law, Mystery, and the Humanities: Collected Essays. Toronto: University of Toronto Press, 2008.

Ball, Milner S. The Word and the Law. Chicago, IL: University of Chicago Press, 1993.

Bergman, Paul and Michael Asimow. Reel Justice: The Courtroom Goes to the Movies.  Kansas  City, MO: Andrew McMeels Publ., revised ed., 2006.

Best, Stephen M. The Fugitive’s Properties: Law and the Poetics of Possession. Chicago, IL: University of Chicago Press, 2004.

Binder, Guyora and Robert Weisburg. Literary Criticisms of Law. Princeton, NJ: Princeton University Press, 2000.

Biressi, Anita. Crime, Fear and the Law in True Crime Stories. New York: Palgrave, 2001.

Black, David A. Law in Film: Resonance and Representation. Urbana, IL: University of Illinois Press, 1999.

Brooks, Peter. Troubling Confessions: Speaking Guilt in Law and Literature. Chicago, IL: University of  Chicago Press, 2001.

Brooks, Peter and Paul Gewirtz, eds. Law’s Stories: Narrative and Rhetoric in the Law. New Haven, CT: Yale University Press, 1998 ed. Read the rest of this entry »

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The Orphan in Eighteenth-Century Law and Literature, by Cheryl L. Nixon

In Arts & Letters, Book Reviews, Jurisprudence, Law-and-Literature on December 22, 2010 at 6:05 pm

This new book looks quite promising.  Note the following from the publisher:

Cheryl Nixon’s book is the first to connect the eighteenth-century fictional orphan and factual orphan, emphasizing the legal concepts of estate, blood, and body. Examining novels by authors such as Eliza Haywood, Tobias Smollett, and Elizabeth Inchbald, and referencing never-before analyzed case records, Nixon reconstructs the narratives of real orphans in the British parliamentary, equity, and common law courts and compares them to the narratives of fictional orphans. The orphan’s uncertain economic, familial, and bodily status creates opportunities to “plot” his or her future according to new ideologies of the social individual. Nixon demonstrates that the orphan encourages both fact and fiction to re-imagine structures of estate (property and inheritance), blood (familial origins and marriage), and body (gender and class mobility).

Whereas studies of the orphan typically emphasize the poor urban foundling, Nixon focuses on the orphaned heir or heiress and his or her need to be situated in a domestic space. Arguing that the eighteenth century constructs the “valued” orphan, Nixon shows how the wealthy orphan became associated with new understandings of the individual. New archival research encompassing print and manuscript records from Parliament, Chancery, Exchequer, and King’s Bench demonstrate the law’s interest in the propertied orphan. The novel uses this figure to question the formulaic structures of narrative sub-genres such as the picaresque and romance and ultimately encourage the hybridization of such plots. As Nixon traces the orphan’s contribution to the developing novel and developing ideology of the individual, she shows how the orphan creates factual and fictional understandings of class, family, and gender.

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Grappling With Story; or, Climbing into the Skin of Another: Applying Literary Truths to the Black Letter of Law

In Arts & Letters, Creative Writing, Law-and-Literature, Legal Education & Pedagogy on July 19, 2010 at 12:35 pm

Jonathan Board lives in West Virginia with his wife and two children.  A graduate of West Virginia University College of Law, he has also attended Harvard Extension School, Fairmont State University, Bob Jones University, and Witherspoon School of Law & Public Policy.

“A literature class?  In law school?  Are you sure you want to spend your time and money on that?”

Thus spoke my perplexed supervising attorney.  Weeks later, as I reviewed the syllabus for Law & Literature, his words haunted me.  The names on the syllabus ranged from Komie to Tolstoy to Melville to Kafka.  Of course, “the list” (as it was to become known) was much longer and full of colorful personalities, but, at least in my mind, most of the readings seemed like odd studies for law school.  Nevertheless, I was in my last semester, and I simply could not look at another case book.  So, on a cold January day, I clambered up icy, ugly, gray-yellow steps, found my classroom and a seat next to my best friend (who had strongly encouraged me to take this course and whose judgment I now questioned), and I began to discuss literature, a thing I thought I knew little about.

The “list,” for me, was daunting.  I’d never taken a graduate literature course, and I was several years removed from my college English courses.  I felt like Abraham’s son, Isaac, about to be slaughtered, except that there was no ram in the thicket and I wasn’t submitting to a father’s trembling hand but to a law professor’s pen and grade sheet.  My fears were abated, to a degree, when the professor walked in.  I’d heard that this man, Michael Blumenthal, had taught at Harvard and published works in many genres.  I was both excited to sit in his classroom and nervous about embarrassing myself in front of him.  I didn’t know it then, but Blumenthal, whose kindness was contagious, would make a lasting impression.  He encouraged me—us—to devour the works on the list and to apply those works to personal experiences with the law. Read the rest of this entry »

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A Defense of Law-and-Literature

In Arts & Letters, Jurisprudence, Law-and-Literature, Legal Education & Pedagogy, Literary Theory & Criticism on May 7, 2010 at 2:58 pm

Why study literature in professional school? That’s what people ask when I say that my “area,” as it were, is law-and-literature. I usually reply, “For the same reason we study math from elementary school until college: to learn about ‘truth.’”

This word “truth” has become the subject of ridicule in recent decades. Bear with me while I essentialize for a moment. The postmodern era of scholarship, with its roots in poststructuralism, deconstruction, and narratology, ushered in new conceptions of metaphysics and ontology. All texts, indeed all things emanating from texts, whether cultural norms or social values, are at variance with themselves and therefore unsound. Nothing has essential meaning; everything is indeterminate and arbitrary. The self-evident “meaning” perceived by individuals is socially constructed, having been centered or passed down through networks of people and events. These, among others, are the general and generalized conceptions put forth by those fed up with postmodernist presuppositions.

I’m no enemy of postmodernism, but I tend to agree with French theorist Bruno Latour, who claims that we have never been modern, so we cannot have been postmodern. I have neither the time nor space to labor this point. Suffice it to say that, whatever its contingencies or instabilities, mathematics, like literature, has the capacity to bring about answers. True answers. Postmodernism has never quite debunked this truth-seeking field, although postmodernism has assailed literature for decades. Read the rest of this entry »

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Michael Blumenthal

In Arts & Letters, Law-and-Literature, Legal Education & Pedagogy, Michael Blumenthal on April 29, 2010 at 10:43 pm

Having held the Copenhaver Chair at West Virginia University College of Law for two semesters, Michael Blumenthal will remain in Morgantown for another academic year.  Blumenthal is a lawyer, poet, novelist, essayist, memoirist, and translator.  See my article about Blumenthal here.

Professor James R. Elkins, editor of The Legal Studies Forum, was instrumental in bringing Blumenthal from Old Dominion University, where Blumenthal held an endowed chair, to West Virgina University.

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