Law and Literature: A Misunderstood Relation.

Garrett Epps is a former fiction editor of The Washington Monthly, a former reporter for The Washington Post, and the author of two novels. He is currently a first-year student at Duke Law School.

Richard Posner radical feminists, Charles Dickens, and the fight over /ego/ theory

* Law arid Literature: A Misunderstood Relation. Richard Posnen Harvard University Press, $25.00.

After 15 years as a novelist and journalist, I entered law school last year. Six weeks into my criminal law course, I dreamed the exam question was: 'Assess the criminal liability of the major characters in Shakespeare's Macbeth, and suggest possible defenses their lawyers might advance at their trials'"

I set to work. Could Macbeth argue that he had "reasonably relied" on the prophecies of the Weird Sisters? Couldn't Lady Macbeth's erratic behavior form the basis for a defense of insanity, or at least diminished capacity? The analysis continued until I awoke in a cold sweat.

In the legal academy of the eighties, that exam question is not as farfetched as it might seem. Bigtime Lit Crit, in all its quarrelsome glory, has hit the law schools. Called "law and literature," the literary school of law is just one of many intellectual factions contending for supremacy in legal academe today. In fact, seldom before in its history has legal education been such a battleground of competing academic ideologies. Each one has subtleties and internal disagreements; but the striking thing about each of them is that, in their most extreme forms, they all more or less explicitly argue that law-both as an academic discipline and as a social institution-has no identity independent of some other intellectual system.

The "law and economics" movement insists that law is (or should be) economics and nothing else. Adherents of "Critical Legal Studies" argue that law is a cover for society's hierarchical structure; hardline legal feminists dismiss law as patriarchal mystification; and "law and literature" advocates use semiotics and deconstruction to argue that legal rules are incoherent rhetoric.

Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit is a leading light of the "law and economics" movement and a potential Republican appointee to the Supreme Court. His book* is intended as a superweapon in this battle of the sects. It also offers a chance to look at what is happening to legal theory-a disturbing phenomenon that Yale's Owen Fiss has dubbed "the death of the law."

The bottom line

Before he was appointed to the bench in 1981, Posner's academic writing argued that judges should focus only on maximizing the wealth of society as a whole. Fairness and justice are meaningless jargon ("I hate justice," Posner once said, paraphrasing Oliver Wendell Holmes); efficiency is the only thing that matters.

How would this theory-and its academic competitors-play out in an actual case? Let's imagine that a federal prison inmate injures his eye. After a series of medical treatments (some applied mistakenly to his good eye), he ends up blind. The prisoner seeks court-appointed counsel to pursue a lawsuit against the prison doctors who, he says, did not properly treat him.

No federal statute requires appointment of counsel in such cases; nor has the Supreme Court interpreted the Constitution to require appointment of a lawyer in this type of civil case, though appointment is within the discretion of the court. An appellate judge reviewing the prisoner's motion would have to make a complex judgment about the meaning of some phrases in Supreme Court cases (a prisoner has a right t"meaningful access" to courts, for example) and of some court-ordered standards (whether the prisoner's case is "colorable," or legally plausible, and so on).

A judge influenced by Critical Legal Studies might ask in what ways these rules embody and reinforce social hierarchies. One kind of "law and literature" theorist might "deconstruct" the Supreme Court's phrases to "unpack" their meaning in this context; another might use his or her knowledge of fictional depictions of captivity to imagine the prisoner's situation. A legal feminist might try to reinterpret the problem as one not of rules but of relationships.

But a "law and economics" judge might sweep all of this aside and rule that the case should pass "the test of the market." If the prisoner cannot attract a lawyer willing to work for a contingent fee, then "the natural inference is that he does not have a good case'"

In fact, I am talking about a real case, Merritt v. Faulkner, decided in 1983 by the court on which Judge Posner sits. The three-judge panel ruled that the inmate was entitled to counsel; in a widely criticized dissent, Posner made the argument cited above. One of his fellow judges responded, "I am not prepared to consign to the verdict of the marketplace the issue of prisoner representation; and this is, of course, not the law."

The illustration shows us some important things about legal ideology in general, and about "law and economics" in particular

"Law and economics" encourages judges to make large-and sometimes indefensibleassumptions about the world. The plaintiff in Merritt was blind and locked in a steel cage; nonetheless, with"assume-a-can-opener" insouciance, Posner postulated an all-knowing, almost magical market that would learn of his claim and make an intelligent determination about it.

Second, there is a faintly heartless air about "law and economics." Issues that may appear to be of transcendent moral importance are revealed to be a matter of the bottom line. The prisoner's blindness imparted to the case a "pathetic aura," Posner wrote, but was otherwise irrelevant to the case.

And last, among all the schools of th"law and economics" is the only one that is having a major, direct, contemporary impact on the law as it is decided, No left-wing "crits" or radical feminists are being named to the federal bench today, or are likely to be for quite a while. But Posner, his seventh circuit colleague Frank Easterbrook, and other Reagan appointees to the bench and to regulatory agencies, are applying conservative economic analysis to the law with a sometimes distrubing eagerness.

It may be apparent from my tone that I disagree with Judge Posner's style of law. But rigorous economic thought, liberal and conservative, has let fresh air into the dusty attic of Anglo-American tort law, blowing away some of the formalism and selfrighteousness that had built up over centuries. As for Posner himself, he is brilliant, persuasive, and unbelievably energetic; having reshaped private law, he is now reaching out for new fields to conquer.

Bleak House

Law and Literature can best be seen as a preemptive strike against an invasion of Posner's intellectual turf, The book was inspired, at least in part, by an article in which Robin West, a feminist professor now at the University of Maryland, disputed Posner's assumption that individuals who are not coerced act "rationally" within a system to maximize their own satisfaction and profit. As a counterexample, West cited Joseph K., the protagonist of The Trial, and other Kafka characters who cooperate in their own destruction out of fear of authority and a kind of delight in humiliation.

Posner attempts to refute West by insisting that Kafka's novel is not "about" law but only about the author's own mental state. The distinction is hard to maintain. Kafka was a lawyer, after all, and even his mental state tells us something "about" the law; and besides, books are not "about" only one thing. Whatever else it may be, The Trial is a book about law as well. But mostly Posner tries to rule West's argument inadmissible; the heart of Law and Literature is the argument that literature and literary discourse, while perhaps legitimate in a small way, cannot be permitted to threaten the primacy of economic thought in the law.

Economic theory, Posner says, shouldn't just guide legal thinking in overtly commercial areas like antitrust or economic regulation; "economists and economics-minded lawyers can explain much nonmarket as well as market behavior, including behavior of litigants, criminals, prosecutors, judges, accident victims, and other persons involved in or affected by such legal institutions as criminal law, property law, tort law, and criminal procedure."

Note that he does not say "help to explain, but "explain." The idea that economics is the most important tool for accounting for, say, rape seems surprising; so does the idea that great works of literature provide no useful insight into the same issues.

For example, here's how Posner dismisses Bleak House, the greatest legal novel ever wr"Someone who wants to learn about the nineteenth-cenwry English chancery court is not likely to spend much time on Bleak House, because there are fuller and soberer sources of data."

But would all those sources together reveal as much about the Chancery, or about law in Dickens's time and ours, as this one paragraph of Bleak House?

"This is the Court of Chancery; which has its decaying houses and its blighted lands in every shire; which has its worn-out lunatic in every madhouse, and its dead in every churchyard; which has its ruined suitor, with his slipshod heels and threadbare dress, borrowing and begging through the round of every man's acquaintance; which gives to monied might the means abundantly of wearying out the right; which so exhausts finances, patience, courage, hope; so overthrows the brain and breaks the heart; that there is not an honorable man among its practitioners who would not give-who does not give-the warning, 'Suffer any wrong that can be done you, rather than come here!'"

Larry Tribe's limo

The U.S. Supreme Court has used Bleak House as evidence for the proposition that "Due to sloth, inattention, or desire to seize tactical advantage, lawyers have long indulged in dilatory practices." The opinion citing Dickens, Roadway Express Inc. v. Piper, was written by Justice Lewis Powell, who retired in 1987. Powell belonged to an older generation of jurists, now passing from the scene, who believed in law as an autonomous discipline, a kind of humane science that drew not only-or even primarily-on economic thought but on literature, history, and moral philosophy as well.

Lawyers ofthat generation could still aspire to a career combining courtroom work, corporate practice, family law, criminal defense, and even teaching; they were, in a way, the last recognized generalists in society. That generation was also one of the most successful in the history of American law; and I pick Powell as its exemplar advisedly.

A Virginia blue-blood, Powell practiced with a silk-stocking firm, headed the stuffy American Bar Association, and was named to the bench by Richard Nixon as part of the GOP's "Southern strategy." He was neither a liberal nor a strong advocate of civil rights; indeed, as a prospective judge, he seemed to embody left-wing criticism of the American legal profession as the handmaiden of power and privilege.

But on the bench, Powell was conservative, but also independent-minded, nonideological, and humane. One doesn't need to agree with all or even most of his opinions to see that he was trying conscientiously to interpret something called the law-something he believed to have an existence and a moral force independent of his own political opinions.

There aren't many Lewis Powells rising to the bench these days. Ronald Reagan and Ed Meese, of course, saw to that; but there's another reason. The profession has changed. Major law firms today are highly specialized bureaucracies, and young lawyers are searching less for a general career than for a profitable specialty. With 2,500- or 3,000-billablehour minimums to meet and $40,000 student loans to pay off, they don't have time for Dickens.

Today's law schools both reflect and intensify those changes. Law and Literature is a symptom of the state of academic legal theory and of its influence on the bench: the humane, general perspective is increasingly giving way to a narrow, rigid, and highly ideological specialization. Far more than they were a generation ago, law schools and their faculties are creatures, not of the courtroom, but of the academic sensibility.

In the past 20 years, as well, the gulf between the practicing bar and the academy has widened. For one thing, law schools can no longer afford to hire lawyers who have been in private practice very long; salaries on campus can't keep up with those at big firms, where 25-year-old associates routinely start at $60,000 and up. The popular image of the law professor maintaining a lucrative practice on the side-Larry Tribe arriving at the Supreme Court in a limo to represent Pennzoil, or Alan Dershowitz championing socialite Claus von Bulow-is an exception; professors below the very top must be concerned with law-journal articles, not briefs, if they want academic tenure and promotion; and the law journals more and more want theory. Fits and starts

Law schools once maintained another tie to the world of practice-"clinical" programs that taught students about law by giving them real clients to represent. Clinics are expensive and vaguely leftwing. Many major law schools have pruned them into insignificance or abolished them althogether.

Not every law teacher needs to be a former practitioner, and some of the old ways of teaching and writing about law were sterile and meaningless. But a close connection between classroom and bar kept legal academics focused on the practical consequences of what they taught. Legal education, in theory at least, prepares its students to do something-and something important at that. Now law schools, like most graduate schools, are beginning to float free of the off-campus world altogether, sailing off into the blue sky of deconstruction, the Coase theorem, patriarchy, and Roberto Mangaibeira Unger.

One doesn't need to be a legal mossback to regret some of the effects of this trend. Law study is enriched by the study of economics, literature, history, political science, and other academic specialties. But no other discipline can replace a belief in the law itself, and society is shortchanged by the attempt.

The function of law, as many have rightly argued, is to fashion a public morality-a way of resolving contentious issueslike integration, executive power, abortion, womens' rights, and church-state relations without resorting to the naked ability of the powerful to impose their will.

For many of us who remember the segregated, semitotalitarian South of the 1950s and before, the archetypal example is the revolution wrought by Brown v. Board of Education. Southern district judges, most of them no more racially enlightened than their neighbors, slowly became forces for change because "the law" said change had to come. Slowly, with many fits and starts, the courts and the civil rights movement forced an entire region to dismantle a tidy and efficient racial dictatorship.

In these days of Japan envy, it's customary to complain about the distorting effect American legalism has on private transactions. Fair enough. But let's not forget that public law has served its function surprisingly well over the past half-cenwry. Law and Literature is one more sign that the next 50 years may see a change for the worse.