The Critical Work of Law and Literature: Introduction

The debates in law and literature studies represented by this special issue focus on the intersections between contemporary issues that arise in modern courtrooms and comparative analyses of legal rhetoric and literary representation. These intersections tie the two fields together. To date, studies in law and literature have been largely thematic for a number of reasons: to maintain the integrity and stable epistemological boundaries of the two fields, to focus on stylistic concerns and parallels, to emphasize correspondences in terms of mimetic practices of law that are reflected in works of the literary imagination, to situate comparative frameworks or ideas, to explore how characters are fated toward an encounter with law, and to emphasize the formation of the legal mind (see Baron; Brooks; Cover; Felman; Henderson; Peters; Stern; and White).

As a field of study that draws from several schools of thought, law and literature scholarship remains preoccupied by foundational concerns that also reflect its interdisciplinary tensions: how to account for ‘law’s taken for granted autonomy’ (Baron 1061), how to ‘implicate both intellectual questions and institutional ones concerning how we teach the law’ (Brooks 351), and how to participate in ‘doing justice’ by exploring the ways in which ‘legal meaning and literary meaning necessarily inform and displace each other’ (Felman 155, 8). The seven essays assembled here approach these concerns from a wide range of interpretive methods and narrative techniques – methods and techniques that implicitly call attention to these issues while addressing one of the earliest critiques of the movement: its failure ‘to fulfill the potential of interdisciplinary scholarship [by] examin[ing] how we categorize knowledge and why’ (Baron 1061).

Our lead essay by Todd Butler takes up this important question of the legal and literary framing of knowledge by exploring the use of technology and new media in judicial decision-making. Focusing on videotaped victim impact statements and their capacity to invoke universal narratives that rely on stories of the family to frame and concretize an audience’s emotional response, Butler shows how these new technologies challenge settled accounts of legal authority. They do so, Butler claims, not only through a performative excess that ‘testifies to their genuineness’ but also through a capacity to permit ‘the state to lay claim to a sincerity of loss.’ This claim to authentic suffering further extends law’s reach as a ‘powerful rhetorical weapon’ in the conflicts that beset society. Nicole M. Wright also analyses how technology is changing the public’s relationship to legal culture. Exploring the rise of ‘legal crowdsourcing sites’ as a point of departure, Wright argues that debates concerning the contemporary issue of open access for lay people to legal advice sites are rooted in ‘far-reaching, exclusionary notions of custom, cultural inheritance, and authorial autonomy’ that date back to the early-modern and eighteenth-century preoccupation with determining the ‘appropriate standard for the “purity” of a law text or legal term.’ Wright shows how bids for legal power in the form of guidebooks rested on the strategic use of authority and custom, at one time to claim access to an authoritative public voice and at another to maintain a distance from a text’s hybrid origins. These debates, she argues, inform how we should approach the ‘new era in legal education’ as it rapidly partakes in the ‘transfer of legal labour from professionals to lay people.’

Wright’s concern with the untethering of legal education institutions from social values finds a parallel in Gregg Crane’s reading of Billy Budd. Crane argues that Melville’s novel represents a ‘hard case’ in law and fiction studies because Melville confronts the reader with the predicament of a social order that is ‘sustained and protected by deference to established rules [but that] must compete with other values, interests, and jarringly particular factual scenarios.’ Literary texts, in contrast to legal texts, Crane asserts, foreground a ‘type of deliberation’ that depends on intuition, permitting the reader to reason through the established rules and norms of a case while simultaneously assessing how ‘particular facts’ fit within ‘our broader conceptions of justice.’ For...