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History, Memory, and the Law

Austin Sarat and Thomas R. Kearns, Editors

Publication Year: 1999

The essays in this book examine law as an active participant in the process through which history is written and memory is constructed. Instead of seeing law as a "victim" of history, the writers treat law as an author of history, not just in the instrumental sense in which law can be said to make a difference in society, but in the ways that law constructs and uses history. Law looks to the past as it speaks to present needs. In the production of judicial opinions--supposedly definitive statements of what the law is--judges reconstruct law's past, tracing out lines of legal precedent that arguably "compel" their decisions. These essays consider how law treats history, how history appears in legal decisions, and how the authority of history is used to authorize legal decisions. Furthermore, law plays a role in the construction of memory. The writers here ask how law remembers and records the past as well as how it helps us to remember our past. Law in the modern era is one of the most important of our society's technologies for preserving memory. In helping to construct our memory in certain ways law participates in the writing of our collective history. It plays a crucial role in knitting together our past, present, and future. The essays in this volume present grounded examinations of particular problems, places, and practices and address the ways in which memory works in and through law, the sites of remembrance that law provides, the battles against forgetting that are fought in and around those sites, and the resultant role law plays in constructing history. The writers also inquire about the way history is mobilized in legal decision making, the rhetorical techniques for marshalling and for overcoming precedent, and the different histories that are written in and through the legal process. The contributors are Joan Dayan, Soshana Felman, Dominic La Capra, Reva Siegel, Brook Thomas, and G. Edward White. Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science and Professor of Law, Jurisprudence, and Social Thought, Amherst College. He is past President of the Law and Society Association and current President of the Association for the Study of Law, Culture, and the Humanities. Thomas R. Kearns is William H. Hastie Professor of Philosophy and Professor of Law, Jurisprudence, and Social Thought, Amherst College.

Published by: University of Michigan Press

Series: The Amherst Series in Law, Jurisprudence, and Social Thought


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pp. vii

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Writing History and Registering Memory in Legal Decisions and Legal Practices: An Introduction

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pp. 1-24

Generally when scholars talk about the relationship between history, memory, and law, the latter is thought of solely as a passive object of historical change.1 Legal history is regarded as the study of the forces that have shaped law...

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Forms of Judicial Blindness: Traumatic Narratives and Legal Repetitions

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pp. 25-93

This essay will propose a theory of legal repetition, based on a comparative structural interpretation of a legal case and of a fictional, imaginary story written by one of the great writers of all times. I will attempt to integrate a literary vision with a legal vision, with the intention of confronting evidence in law and evidence in art. The case in the...

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Memory, Law, and Literature: The Cases of Flaubert and Baudelaire

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pp. 95-130

One is supposed to remember the law, since ignorance of it is no defense. Whether Flaubert remembered the law against "outrage to accused of infringing, is moot, but he was brought to trial nonetheless. Indeed his trial was intended to serve as a lesson to others and to increase the likelihood that they would remember the law. Baudelaire...

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Collective Memory and the Nineteenth Amendment: Reasoning about “The Woman Question” in the Discourse of Sex Discrimination

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pp. 131-182

At a recent conference on affirmative action, I was struck by a characteristic, if not defining, feature of American conversations about race. Claims about race discrimination are located in national and constitutional...

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Held in the Bodv of the State: Prisons and the Law

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pp. 183-247

Legitimacy, reasonableness, and necessity. These words recur throughout the Code Noir of the French islands, the West Indian slave laws of the eighteenth century, the black codes of the American South, and contemporary legal...

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Stigmas, Badges, and Brands: Discriminating Marks in Legal History

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pp. 249-281

In his infamous opInIon in Dred Scott Justice Roger Brooke Taney denied United States citizenship to all blacks, free or slave. Various discriminatory legislation enacted by states against free blacks had, he claimed, "stigmatized" them...

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Analogical Reasoning and Historical Change in Law: The Regulation of Film and Radio Speech

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pp. 283-317

Two recurrent questions have surfaced in the efforts of scholars to arrive at a more precise formulation of the relationship of law to its social context. Are legal doctrines and legal institutions the equivalent of cultural artifacts, embodying....


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pp. 319


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pp. 321-328

E-ISBN-13: 9780472023646
E-ISBN-10: 0472023640
Print-ISBN-13: 9780472088997
Print-ISBN-10: 0472088998

Page Count: 336
Publication Year: 1999

Series Title: The Amherst Series in Law, Jurisprudence, and Social Thought