Has Law & Literature Worked?

When I was a student here at Chicago, I took a fabulous class called "Law & Literature" from Professor Nussbaum. We read books like "Native Son" and "Borrowed Time: An AIDS Memoir" with the goal of increasing our empathy. The conceit of the Law & Literature movement, if we can call it that, is that if judges (some of us would eventually be one or otherwise be in policy setting positions) read fiction, they will reach better results because they will more fully understand the human condition. Relying heavily on Aristotle, Professor Nussbaum offered literature (what might happen) as a strong rival to history (what has happened) and economics.

So has Law & Literature had an impact on judges? We can't know for sure, but if it has we might expect citations to literature to show up in judicial opinions, especially in the empathy-evoking form favored by its proponents. In a piece in the current issue of the Green Bag, I survey federal appellate opinions for evidence of impact. (Preview: there is virtually none.) I also identify the most commonly cited authors, the judges most likely to cite to fiction, and the places in which literary citations are most likely to occur, as well as explore what this tells us about judicial opinions and the act of judging.

You can find the paper here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1113511

Comments

[Leif]

It's not forthcoming; I got my copy of the Green Bag last week.

[UC2L]

The title of the actual paper, "Citing Fiction," is worlds away from the question posed by this post, "Has Law & Literature Worked." Sure, it's fascinating to know when judges cite fiction and how often, but that doesn't really tell us much about the influence of the law and literature movement.

[Joan A. Conway]

Playwrights became Judges. Lawyers work at being fiction writers, just like Doctors.

The avenues of endeavor cross,make in roads, or have impact, because political movements, like science itself, have atavistic qualities that endure over the centuries.

They are never just like what had happen, but lessons can be learned from them just the same as what could happen.

Jurastic Park and Disclosure are two fiction books about science and law written by Michael Creighton, a former physician.

Tom Jones written by Henry Fieldings, reads like a text book on common torts, he was a former playwright turned judge, to name two prominent ones.

[Todd Henderson]

To UC2L: Citation studies like this are a commonly used method of measuring influence. If L&L had an impact on judges, we might expect to see citations (increasing in number and increasing in the preferred form) reflect that influence. After all, judges routinely cite to many non-legal forms of influence, like works of history, sociology, and economics. The absence of literary citations might then suggest a lack of influence. It could be that literature is disfavored as a citation for some reason, so we can look only at times when judges do cite to fiction to see for what purposes they use it. As the paper shows, they don't use it for the reasons proposed by the L&L movement. So we can safely conclude that the attempt to influence judges has failed insofar as explicit evidence is concerned. Of course it is possible that a judge was made more empathetic by reading the plight of Bigger Thomas in "Native Son," and didn't cite to this for some reason. We can't ever measure that type of influence explicitly. So this study, like all citation studies, is limited. But observing what is cited and how the citations are used can lead to interesting conclusions nevertheless. I try to explore these in the paper.

[Uzair Kayani]

Hi Professor Henderson,

I think law & literature is under-rated. Citations to literature are probably rare for roughly the same reasons that citations to personal anecdotes, blogs, scripture, or international law are rare- these are unconventional sources. I think the value of literary style lies in framing (that is, clarifying, inflating, or deflating the value of particular goods at issue, especially unquantifiable ones). So the shift from what the world *is* to what it *may be* simply means a revaluation, or re-prioritizing, of the things in our world. We re-evaluate the past all the time (see any two reputable histories on the same topic). If the tellings are different, they are probably literature. Perhaps people re-evaluate the present too- in court.

I think literature might create or change the value of things (like security, privacy, parenthood, marriage, entrepreneurship, charity, and transparency, etc). After all, value itself is exogenous to pure logic.

Also, I think an adversarial system of justice (especially litigation) lends itself more easily to literary thinking (with protagonists, antagonists, and compelling stories etc) than to disinterested analysis.

[Uzair Kayani]

Hi Professor Henderson,

I think law & literature is under-rated. Citations to literature are probably rare for roughly the same reasons that citations to personal anecdotes, blogs, scripture, or international law are rare- these are unconventional sources. I think the value of literary style lies in framing (that is, clarifying, inflating, or deflating the value of particular goods at issue, especially unquantifiable ones). So the shift from what the world *is* to what it *may be* simply means a revaluation, or re-prioritizing, of the things in our world. We re-evaluate the past all the time (see any two reputable histories on the same topic). If the tellings are different, they are probably literature. Perhaps people re-evaluate the present too- in court.

I think literature might create or change the value of things (like security, privacy, parenthood, marriage, entrepreneurship, charity, and transparency, etc). After all, value itself is exogenous to pure logic.

Also, I think an adversarial system of justice (especially litigation) lends itself more easily to literary thinking (with protagonists, antagonists, and compelling stories etc) than to disinterested analysis.

[silverdale florist]

Hmm, that's a good idea, though fiction rarely points out the reality of life as it often relies on exaggerating and making things bigger than it really is.

What am I saying, it's almost the same thing with memoirs and non fiction books.lol

[LAK]

"Citation studies like this are a commonly used method of measuring influence."
Doesn't mean it is a good measure. that is for sure. Especially on this topic. Citing fiction?

"If L&L had an impact on judges, we might expect to see citations (increasing in number and increasing in the preferred form) reflect that influence."
We might? Why? I'd suspect just the opposite. it is "fiction" after all.

"After all, judges routinely cite to many non-legal forms of influence, like works of history, sociology, and economics."
Yea but not fiction, cause it is, you know, fictional.

"The absence of literary citations might then suggest a lack of influence." Or it might not?

"So we can safely conclude that the attempt to influence judges has failed insofar as explicit evidence is concerned." Did professor Nussbaum somehow mislead you into thinking the influence of literature in judical opinions would manifest itself explicitly ? For some odd reason, I doubt it.

[Tom Townsend]

The project seems ill-conceived. It's an odd view of law and literature that would regard judicial empathy as a criterion for whether the enterprise has "worked." Most writers of fiction, most literary critics, and most scholars of law and literature show no interest in promoting empathy. For a better understanding of what law and literature seeks to do, read work by people who are regarded as moving the field ahead -- such as Julie Stone Peters, Peter Brooks, Luke Wilson, Lorna Hutson, Peter Schneck, Bradin Cormack, Jane Baron, Gregg Crane, Holger Schott Syme, Simon Petch, Robert Weisberg, Clare Pettit, Ed Morgan, Paul Saint-Amour, and Robert Ferguson. These scholars are interested in how law and literature inter-relate as modes of representation and as strategies for engaging with social and philosophical problems. Getting people to be more empathetic ain't part of the agenda. Now if you think that *should* be the point, well -- ok, but you might want to start by explaining why you think so.

If you want a good sense of what is going on in the field, keep an eye out for the Modern Language Association anthology, due out soon, called Teaching Literature and Law (ed. Matthew Anderson & Cathrine Frank). It will have a good mix of articles by law and English professors, some meditating on the goals of law and literature research, others exploring specific issues historically. But I doubt there will much in the way of empathy-maximization goin' on.

As to the question of citation-counting, a judge who sought to improve her vocabulary probably would not cite "Word Power Made Easy" or even some more hifalutin version of same. She would just implement what she had learned.

[Todd Henderson]

Tom,

I'm not an expert in Law & Literature, but as it was taught to me and as I surveyed the legal literature on the field, I found that at least one of the two most prominent strands is as I suggested. For example, in a 2001 piece in the Columbia Law Review, Sarah Krakoff describes two positions in the field: "The first position, contended with varying degrees of nuance and reservation, by Martha Nussbaum, Robin West, and others, is that literature, by cultivating the literary imagination and thereby inducing empathy, can have a salutary effect on judging and lawyering." It is this position that I am addressing in part, although if you read the piece, you will see that it isn't so much an attack on Law & Literature, as a survey of judicial citations and some lessons learned from the results.

As for your point about "Word Power Made Easy," it is certainly true, as I acknowledge in both the blog post and the paper, that influence is hard to measure and citation studies may be underinclusive. But judges do cite to fiction. I find many instances. Why don't they usually cite for the reasons Nussbaum and West want them to? Sometimes they do, but not often. What does this tell us about judging? It may simply suggest that litigants or other judges would be resistant to this type of "authority". I explore these issues in the paper.

Moreover, judges frequently cite to all sorts of authority that most of us wouldn't. A dictionary is a great example. Judges cite to them thousands of times, often for the definition of simple words. Why it is true that a judge could just look up the word and "implement what she had learned," for some reason judges feel that a citation adds something to the force of the opinion. Why isn't this true for literature generally? Why do judges cite to things about their world, not the world of others, like the litigants? Again, I explore these briefly in the piece.

Finally, as for your suggestions about scholars and works, I appreciate them, and will make sure to check them out. Thank you.

[Daniel J. Solove]

Readers of Todd's essay might be interested in my extensive comments about it over at Concurring Opinions: http://www.concurringopinions.com/archives/2008/04/judges_citing_l.html

[GP]

I thought that the point of the law and lit movement was to make lawyers broadly speaking more humane and conscious of the world around them; not simply to get judges to cite works of literature in their opinions.

[Todd Henderson]

GP,

Agreed. The quote from the Columbia Law Review in my comment above recognizes that the subset of the movement that I'm talking about (the empathy-generating part) has the goal of making judges and lawyers more empathetic. I'm testing (indirectly and not perfectly) only the former. We might expect the latter to be reflected in citations too, but this is much more attenuated. So the movement might be a success in making lawyers much more empathetic (I have my doubts), and I won't pick that up here. I can't imagine a test for this, but would love to hear one.

[Joan A. Conway]

The art of reading literature and non-fiction religiously as a well-earned habit is test enough of one's devotion to the written text.

Prince Charles preferred Camilia over Princess Diana supposedly because she at least read books, while Diana was had a pragmatic personality and a need for public adulation.

Perhaps reading a lot leaves you friendless but discerning, and not reading much leaves you with many likeminded-friends however credulous.

You be the judge?

[Buyer of Structured Settlements]

No doubt that literature reflects itself in many aspects of our life. It evokes sympathy, empathy, in a person. Like if we watch some movie, we are moved by the emotions in it although we know that it is all fictitious. So, literature do teaches us many lessons and bring clear picture of everything in front of us. It makes a person humble and polishes the thinking power.