Richard A. Posner - Law and Literature

aw and literature are related to each other in interesting ways. Innumerable literary works, many of great distinction, take law for a theme, and feature a trial (Eumenides, The Merchant of Venice, Billy Budd, The Trial, The Stranger) , abuse of judicial authority (Measure for Measure) , conflicting jurisprudential theories (Antigone, King Lear), the practice of law (Bleak House), crime and punishment (Paradise Lost, Oliver Twist), the relation of law to vengeance (Oresteia, Hamlet), even specific fields of law, such as contract (Marlowes Doctor Faustus ), inheritance (Felix Holt, The Woman in White), and intellectual property (William Gaddiss A Frolic of His Own ). These examples could be multiplied manyfold. (Anyone who doubts this claim should glance at Irving Browne, Law and Lawyers in Literature [1883].) Moreover, law is a rhetorical discipline, and the judicial opinions of some of the greatest judges, such as Oliver Wendell Holmes, have literary merit and repay literary analysis. Opinions and briefs are like stories; they have a narrative structure. A literary sensibility may enable judges to write better opinions and lawyers to present their cases more effectively. And the literary critics close attention to text has parallels in the judges and the lawyers close attention to their authoritative textscontracts, statutes, and constitutions. The law even regulates literature, under such rubrics as copyright infringement,

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defamation, and obscenity. Some law professors, moreover, have tried to make legal scholarship itself literary by incorporating narrative, memoir, anecdote, and fiction into their scholarship, and others have claimed that the study of literature in generalliterature not limited to works that take law for a subjectcan humanize the practice of law and the outlook of judges.

All this and more is the subject of this book. The first edition was published in 1988 and the second, an extensive revision of the first, in 1998. The years since the second edition was published have seen considerable, indeed accelerating, activity in what has been dubbed the law and literature field of legal scholarship. The AALS Directory of Law Teachers 20072008 lists 124 law teachers in law and literature, a respectable number considering that in the hottest of interdisciplinary legal fields, law and economics, the number listed is only 271, though the difference conceals the extent to which economic analysis, but not literary analysis, has been incorporated into law courses taught by professors who do not identify themselves in the Directory as teachers of law and economics. A positive sign for law and literature is the high percentage69 percentof law and literature professors who, according to the Directory , have been active in the field for five or fewer years, suggesting that the field is attracting young academics. (The corresponding percentage for law and economics is 65 percent.)

The growth in the number of law and literature teachers cannot readily be gauged, however, because law and literature was not listed as a field until the 20042005 Directory , and because the field is not limited to law schools and law professors. But a bibliography of books and articles in law and literature published between 1985 and 2005 reveals significant growth: an average of only 8 works per year from 1985 through 1988, rising to 36 for 1989 through 1998 and 48 for 1999 through 2005. (These averages are computed from Law and Humanities Institute, Law and Literature Scholarship: A Chronological Bibliography, http://docs.law .gwu.edu/facweb/dsolove/LHI-Bibliography.htm [visited Feb. 12, 2008]. Another useful online source for studies of law and literature is Law & Humanities Blog: A Blog about Law, Literature, and the Humanities, http://lawlit.blogspot.com/ [visited June 16, 2008].)