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Posts Tagged ‘Law and Literature’

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 »

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.

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 »

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?” people have asked when I said that I work in a discipline called law-and-literature. I usually reply, “For the same reason we study math from elementary school until college: to learn about ‘truth.’”

The concept of “truth” has become the subject of ridicule. 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. 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, at any rate, are the simplistic accusations 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, and besides, there is something to this concept of “truth.”  Why else would we have mathematics? Mathematics, like literature, has the capacity to bring about answers. True answers. Postmodernism has never quite debunked this truth-seeking field. Read the rest of this entry »

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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