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Liberty and Shakespeare, Part Two

In Arts & Letters, Austrian Economics, Economics, History, Humanities, Law, Law-and-Literature, Legal Education & Pedagogy, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Shakespeare, Western Civilization on May 22, 2012 at 8:08 am

Allen Mendenhall

The following essay orginally appeared here at Mises Daily.

The Later Works (1973 to present)

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:

Shakespeare’s Court
The Supreme Court on the likely author of Shakespeare’s plays:
Active Justices
Roberts, Chief Justice No comment.
Stevens Oxford
Scalia Oxford
Kennedy Stratford
Souter “No idea.”
Thomas No comment.
Ginsburg “No informed views.”*
Breyer Stratford
Alito No comment.

*Justice Ginsburg suggests research into alternate candidate, Florio.

Retired Justices
O’Connor Not Stratford
Blackmun* Oxford
Brennan* Stratford

*Deceased

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 »

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Liberty and Shakespeare, Part One

In Arts & Letters, Humanities, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Shakespeare, Western Civilization on May 17, 2012 at 7:51 am

Allen Mendenhall

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 »

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