Below is footage of a panel discussion between Justice Stephen Breyer, Professor Martha Nussbaum, Judge Richard Posner, and Professor Richard Strier that took place at the University of Chicago in 2009. The subject of the discussion is “Shakespeare and the Law,” and the purpose of the panel was to counteract what was perceived as growing complacency and unoriginality in the law-and-literature movement. That these four figures are on the same panel is reason enough to watch the video.
My forthcoming book, Literature and Liberty: Essays in Libertarian Literary Criticism, is now available for pre-order here at Amazon.com or here at Rowman & Littlefield’s website. From the cover:
The economic theories of Karl Marx and his disciples continue to be anthologized in books of literary theory and criticism and taught in humanities classrooms to the exclusion of other, competing economic paradigms. Marxism is collectivist, predictable, monolithic, impersonal, linear, reductive — in short, wholly inadequate as an instrument for good in an era when we know better than to reduce the variety of human experience to simplistic formulae. A person’s creative and intellectual energies are never completely the products of culture or class. People are rational agents who choose between different courses of action based on their reason, knowledge, and experience. A person’s choices affect lives, circumstances, and communities. Even literary scholars who reject pure Marxism are still motivated by it, because nearly all economic literary theory derives from Marxism or advocates for vast economic interventionism as a solution to social problems.
Such interventionism, however, has a track-record of mass murder, war, taxation, colonization, pollution, imprisonment, espionage, and enslavement — things most scholars of imaginative literature deplore. Yet most scholars of imaginative literature remain interventionists. Literature and Liberty offers these scholars an alternative economic paradigm, one that over the course of human history has eliminated more generic bads than any other system. It argues that free market or libertarian literary theory is more humane than any variety of Marxism or interventionism. Just as Marxist historiography can be identified in the use of structuralism and materialist literary theory, so should free-market libertarianism be identifiable in all sorts of literary theory. Literature and Liberty disrupts the near monopolistic control of economic ideas in literary studies and offers a new mode of thinking for those who believe that arts and literature should play a role in discussions about law, politics, government, and economics. Drawing from authors as wide-ranging as Emerson, Shakespeare, E.M. Forster, Geoffrey of Monmouth, Henry Hazlitt, and Mark Twain, Literature and Liberty is a significant contribution to libertarianism and literary studies.
When my wife and I can get a babysitter, we love going to the New American Shakespeare Tavern on Peachtree Street in Atlanta. The Tavern, as it is affectionately called by regulars, is offering the following performances this fall:
All who live in and around Atlanta, and who appreciate Shakespeare, ought to visit the Tavern for a guaranteed night of fun and good acting. Click here to support the Tavern.
The following essay orginally appeared here at Mises Daily.
It is well settled that James Boyd White’s The Legal Imagination (1973)[29] catalyzed the law-and-literature movement as we know it today. A professor in the Department of English, Department of Classics, and College of Law at the University of Michigan, White brings a unique interdisciplinary perspective to bear on this field that he more or less founded. He remains prolific even in his old age, having published a string of books on a wide variety of topics having to do with legal rhetoric and legal or literary hermeneutics. Since White’s landmark tour de force in 1973, several legal scholars have followed in his footsteps, venturing into literature (broadly defined to include novels, plays, poems, short stories, essays, and so on) to make sense of legal culture and legal texts. Some of the resulting scholarship has been quite good — some, however, more than slightly wanting.
Shortly after White’s “overture,” the work of literary PhDs like Robert Weisberg (PhD, English, 1971, Harvard University; JD, 1979, Stanford University), Richard H. Weisberg (PhD, French and comparative literature, 1970, Cornell University; JD, 1974, Columbia University), and, among others, Stanley Fish (PhD, English, 1962, Yale University) lent credibility to a field seen as dubious by law-school deans and territorial literature professors.[30] Today the movement seems to be picking up, not losing, momentum, in part due to the interdisciplinary nature of the project and in part due to the literati heavyweights who have used the movement as an opportunity to enlarge their celebrity status (to say nothing of their salaries).
The vast array of Shakespeare-focused works that flew under the banner of law and literature during the 1970s, ’80s, and ’90s actually undermined the entire field. Titles like Michael Richmond’s “Can Shakespeare Make You a Partner?” (1989)[31] signaled a practical but nonscholastic rationale for lawyers to turn to Shakespeare’s texts. Works most commonly addressed during this period include The Merchant of Venice, King Lear, Hamlet, and Measure for Measure.[32] In the rush to canonize Shakespeare in this budding genre that sought to include humanities texts in professional schools, even the conspiracy theories of a Supreme Court justice, John Paul Stevens, became authoritative readings.[33] Stevens is not the only Supreme Court justice with an opinion on the Shakespeare authorship debate, as the following chart by the Wall Street Journal[34] makes clear:
| The Supreme Court on the likely author of Shakespeare’s plays: | ||||||||||||||||||||
*Justice Ginsburg suggests research into alternate candidate, Florio. |
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*Deceased |
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That Supreme Court justices have weighed in on Shakespeare’s authorship is more a study in itself and less a constructive contribution to Shakespeare scholarship. Not long after Stevens’s law-review article, at any rate, some creative attempts to render the Shakespeare as lawyer or other conspiracy theories surfaced. Law professor James Boyle, for instance, penned a novel, The Shakespeare Chronicles (2006),[35] dealing with the obsessive search for the “true” author of Shakespeare’s works. I suspect that Boyle would admit that The Shakespeare Chronicles, being fiction, does not represent scholarship, even if its production required rigorous scholarly research. Read the rest of this entry »
The following essay originally appeared here on Mises Daily.
In an October 2002 article in the New York Times, “Next on the Syllabus, Romeo v. Juliet,” Adam Liptak investigates the curious if questionable move to install literary texts in law-school curricula. Liptak’s opening lines betray his skepticism:
The fact [that Kafka was a lawyer] got the discussion started on a recent afternoon in a sunny seminar room at the New York University School of Law, where 17 law students and 2 professors gather every week for a sort of book club, for credit, in a class called Law and Literature.”[1]
Liptak’s likening of the class to a book club, quickly followed by his strategic comma usage setting off the phrase “for credit,” implies that, in effect, the course is more about enthusiasm than scholarship. How could the activities of book clubbers, Liptak seems to suggest, merit course credit in professional school? Liptak implicitly raises an even greater question: Does literature matter to the so-called “real” world?
In arguing for the inclusion of humanities courses in law school curricula, law-and-literature professors have had to answer that question. They have convinced professional school deans and administrators that literature is important and relevant to actual problems. The turn to political criticism among English faculty is also a move to show that literature has some practical bearing beyond entertainment or leisure. As humanities programs lose funding and students while law-and-literature faculty, courses, conferences, and journals proliferate, it bears asking whether law-and-literature adherents have done a better job persuading university officials that literature is socially significant.
Nearly every Anglo-American law school offers a course called Law & Literature. Nearly all of these courses assign one or more readings from Shakespeare’s oeuvre. Why study Shakespeare in law school? That is the question at the heart of these courses. Some law professors answer the question in terms of cultivating moral sensitivity, fine-tuning close-reading skills, or practicing interpretive strategies on literary rather than legal texts. Most of these professors insist on an illuminating nexus between two supposedly autonomous disciplines. The history of how Shakespeare became part of the legal canon is more complicated than these often defensive, syllabus-justifying declarations allow.
This essay examines the history of Shakespeare studies vis-à-vis legal education. It begins with early law-and-literature scholarship, which focused on Shakespeare’s history or biography — speculating as it did about whether Shakespeare received legal training or became a lawyer — and concludes with recent law-and-literature scholarship treating Shakespeare as a source of insight for law students and lawyers. Early law-and-literature scholarship on Shakespeare anticipated new-historicist theory. More recent law-and-literature work, with its turn to presentism, seems in lockstep with current Shakespeare studies. In law-and-literature classrooms, Shakespeare is more fashionable (like a hobby) than scholarly (like a profession). But law-and-literature scholarship on Shakespeare represents high-caliber work based on interdisciplinary research and sustained engagement with legal and literary texts.
This essay concludes with a note about the direction of the university in general and of the law-and-literature movement in particular. My closing argument is, I admit, tendentious. It raises issues usually raised by confrontational academics and suggests remedies for what William M. Chace has called “the decline of the English Department”[2] or what Harold Bloom has called “Groupthink” in “our obsolete academic institutions, whose long suicide since 1967 continues.”[3] If Chace and Bloom are right about a decline in academic standards — evidence shows that they are at least right about a decline in the number of English majors — then the fate of literary studies seems grim. Nevertheless, Chace and Bloom overlook the migration of literature professors into American law schools, a phenomenon that has not received enough attention.
One aspect of this phenomenon is the migration of students from the humanities to professional schools. I have known students who hoped to attend graduate school in the humanities but quite understandably viewed that route as impractical and went to law school instead. A positive result of this trend is that many law students are open to the idea of law and literature and find luminaries like George Anastaplo or Stanley Fish more interesting than other law professors. The final comments of this essay will address the strange exodus of literary scholars into professional schools, which pay more money and arguably provide vaster audiences and readership, more generous funding opportunities, and reduced teaching loads.
Perhaps more than other literary disciplines, save for cultural studies, Shakespeare studies has moved into the realm of interdisciplinarity, albeit without large contributions from scholars outside of literature departments. The law-and-literature field would have perished without the expertise of literature professors; likewise, Shakespeare studies, if it continues down the path of politics and cultural criticism, will perish without the expertise of economists, political scientists, and law professors, whose mostly non-Marxist ideas, when pooled with the ideas of the literature scholars, might fill out a space for interesting scholarship and redeem the interdisciplinary label. Information sharing is especially crucial for literature scholars who, in order to examine the history of Shakespeare in American culture, have turned to practices and methods traditionally reserved for other disciplines. In this respect, the direction of Shakespeare studies is representative of the direction of the humanities in general.
It may be possible to overcome disciplinary boundaries while recognizing the importance of disciplinary expertise. For understandable reasons, conservative literary critics decry political trends in current literary theory. What these critics ought to decry, though, is the nature of the political trends rather than political trends themselves. What if, instead of Marxist or quasi-Marxist paradigms, literary critics adopted the theories of free-market economics?
Adherents of law and literature unwittingly have carved out an approach to literary studies that jettisons Marxism and quasi Marxism but that retains civic goals. Law and literature cuts across labels like “conservative” and “liberal.” It demonstrates how professional or vocational studies are incomplete without teachings in liberal arts. At a time when antitraditional, quasi-Marxist ideologies have taken over graduate programs in literature, and when humanities funding and enrollment are wanting, the burgeoning law-and-literature courses offer an avenue for restoration of literary study with a civic focus. Read the rest of this entry »
Tomorrow marks a preview of The Comedy of Errors, directed by Drew Reeves and performed at the New American Shakespeare Tavern in Atlanta. Performances begin on September 3 and last through September 11, with additional performances on September 17, September 23, September 29, and October 2. View show information here.
I wrote the following piece about three weeks ago, while I was vacationing in Destin, Florida, with my family.
If we expect others to rely on our fairness and justice we must show that we rely on their fairness and justice.
—Calvin Coolidge
My wife and I are on vacation in Florida. Yesterday morning, over a cup of coffee and a doughnut, sitting on the balcony and reading the newspaper amid sounds of seagulls and the grating roll of morning waves, I noted that one Michael Stone—a blind man, XTERRA champion, and 10-time Ironman triathlete who recently published a book, Eye Envy—will speak at the University of North Florida on August 13. I haven’t read Stone’s book, but it’s apparently a resource not only for those suffering from vision-loss any degenerative disease.
Stone began to lose his sight in 2004. His blindness is a result of a rare disease called cone-rod dystrophy. Despite his handicap, he has accomplished amazing things, but not without the help of others. During races, he relies on guides, who shout directions and warnings to him.
I’ll never understand why God makes some people handicapped and others not, why some must rely on others, and some must be relied on. Someday and for a time, everyone relies on someone or something and is relied on by someone or something. Read the rest of this entry »
Directed by George Cukor, the film Adam’s Rib tells the story of Adam (Spencer Tracy) and Amanda Bonner (Katharine Hepburn), New York attorneys whose marriage smacks of “tough love.” The couple square off when Adam is assigned to prosecute a woman (Judy Holliday) who has attempted to murder her philandering husband—a bumbling dweeb—in the apartment of his mistress. Amanda, who approves of the woman’s act, which she views as resistance to patriarchal society, takes up the case as defense counsel.
Genesis tells us that God fashioned Adam from dust, Eve from Adam’s rib. Adam’s Rib tells a different story.
If anything, Amanda, or “Eve,” is the starting-point—a source of controversy, inspiration, and curiosity. Adam’s Rib isn’t the first production to render gender contests in comedic tones—it’s part of a tradition dating back at least to Shakespeare’s Taming of the Shrew or Fletcher’s Tamer Tamed, and probably much further—but it is one of the more remarkable of all twentieth-century productions, especially in light of Amanda’s advocacy for a doctrine that, in American family law, came to be known as “formal equality.”
What, exactly, does Adam’s Rib offer law students? What does it teach law students, and why should law professors bother with it?
A film that’s in no way after verisimilitude is unlikely to teach law students how to file motions, write briefs, analyze statutes, or bill clients—tasks that we assume are requisite to becoming “good” lawyers. So what’s the point?
In his cunning way, James Elkins, during his Lawyers & Film course that I took in law school, responded to questions of this variety by drawing two boxes on the blackboard: one representing law, the other film.
“We’ve gotta get from this box to this box,” he explained, retracing the diagram with the tip of his chalk. “One place to start,” he suggested, “is with the movie scenes depicting lawyers or the courtroom.” Read the rest of this entry »
Paul Cantor’s review of Stephen Greenblatt’s Shakespeare’s Freedom appears in this month’s issue of The American Conservative. Greenblatt’s about-face means that my paper “Shakespeare’s Place in Law & Literature” will be dated upon publication, but that’s okay, because the trend of liberty is more important to me (and to society) than the timeliness of my research.
Kris Collins interrogates the mutually affirming racial discourses of the theater and the natural sciences in nineteenth-century America.
“The nineteenth-century scientific community’s fascination with the black body,” Collins explains, “provides a contemporary analytical template for the racialized anxieties expressed in both minstrelsy and mainstage productions of Othello: white America’s struggle to define and defend the whiteness of their own bodies” (88).
Collins focuses on the work of several white Euro-American scientists: George Gliddon, Josiah Nott, Herman Burmeiter, Cesare Lombroso, Samuel G. Morton, and Louis Agassiz. All of these men classify races hierarchically and by taxonomies putatively dependent on racial intelligence. Because of the inherent differences between the races, these scientists argue, the white population should not mingle, sexually or otherwise, with the black population. Collins thoroughly debunks these claims, which she relates to nineteenth-century minstrel performances of Othello that solidify racist significations of the black body.
While the scientists that Collins identifies opined on racial distinction, another scientist, the young Charles Darwin, dissertated on theories of natural selection and evolution. One wonders whether Darwin’s ideas about genetics and heritable traits influenced the late nineteenth- and early twentieth-century stage as much as Collins’s subjects influenced the stage in the preceding era.
More to the point, Herbert Spencer’s appropriations of Darwin—epitomized by the phrase “survival of the fittest”—may have justified and authorized racial divisions at the same time that high brow / low brow and elite / popular distinctions began to congeal. This simultaneous segregation (scientific and socio-cultural) was not so much coincidental as mutually (re)affirming.
Bardification and Shakespeare idolatry proliferated along with scientific discourses suggesting that whites were “better adapted” or “more advanced” than people of color. Shakespearean performances—most notably blackface performances of Othello but also early twentieth-century performances starring African American actors as Othello—gradually and perhaps unwittingly reflected the Spencerian drive to “preserve” the “favored” races.
This argument is the logical extension of Collins’s work; it compels a look at the continued influence of natural science on the next generation of American actors, directors, and theater-goers. Although the display of scientific racism and its corresponding effect on the theater may have changed, the underlying idea of racial superiority remained in place.
For further reading:
Collins, Kris. “White-Washing the Black-a-Moor: Othello, Negro Minstrelsy and Parodies of Blackness. The Journal of American Culture 19.3 (June 2004), pp. 87-101.
The Literary Lawyer: A Forum for the Legal and Literary Communities 