Poethics: And Other Strategies of Law and Literature (review)

The practice of law, according to Richard Weisberg, has turned from its roots as a literary form, and, consequently, has alienated itself from its heritage and from the public. Legal opinions that attempt to write treatises in social science (Brown v. Board of Education) or in biological/medical science (Roe v. Wade) are doomed to remain controversial because they have not adequately synthesized their form with their substance. They lack a poetics, so they fail to communicate their ethics.

The legal opinions of Cardozo, notably Hynes v. New York Central Railroad, and Palsgraf v. Long Island Railroad, provide the sounding board to demonstrate the successful merger of form and substance in groundbreaking and potentially controversial legal opinions. In Palsgraf, Cardozo's narrative strategy, depersonalizing the plaintiff until she disappears from the opinion, contrasts sharply with his technique in Hynes, where the personality and humanity of the young Harvey Hynes, through his death, are central in focus. Young Hynes becomes the central character and hero of a struggle against impersonal corporate forces of the railroad and its theory of property rights. This successful merging of form with substance in these opinions has contributed to the defusing of the potential controversy inherent in these decisions and gained for them their almost immediate wide-spread acceptance within both the legal community and society as a whole.

The shift to the legal proceedings of Vichy France illustrates how a jurisprudence that turns from its foundation loses its ability to guide. Much of the legal argument in those proceedings, as well as the court decisions resulting from those proceedings, turned on the attempt to fit the specific situations of Jewish tenants into the dictates of a statutory framework that called for the elimination of Jews from various professions and for the reduction of rents due from tenants who had been harmfully impacted by the war. The French legal community focused on the analysis of the statutes to find loopholes for their Jewish clients and thereby gain for them the requested rent reductions, rather than attacking the constitutionality of the statutes' formulation. Although these French lawyers temporarily helped their Jewish clients by gaining rent reductions through the courts, those same lawyers ultimately hurt the entire Jewish community, including those clients, by accepting and arguing around the classifications imposed by those statutes.

Finally, much modern American legal discourse hides its meaning behind veils of language. This discourse has cut itself off from its roots as a literary form. Although a lawyer's success is tied to his ability to communicate his ideas and his theory of a case, the lawyer frequently impedes that communication by relying on the passive voice or an impersonal viewpoint.

Weisberg's book provides a thoughtful analysis of a malady in much modern legal writing. He also provides a prescription for its cure, i.e., a renewed understanding of the literary heritage of the Anglo-American legal tradition. Weisberg's interlude, in Chapter 2, in which he discusses various literary texts with "legal" themes is interesting in the insight he brings to the literary text under discussion, but is not successfully integrated into the balance of the book.