учебный год 2023 / 797009
.pdfThe Yale Law Journal Company, Inc.
What's Past Is Prologue: Precedent in Literature and Law Author(s): Kenji Yoshino
Source: The Yale Law Journal, Vol. 104, No. 2 (Nov., 1994), pp. 471-510 Published by: The Yale Law Journal Company, Inc.
Stable URL: http://www.jstor.org/stable/797009
Accessed: 26/09/2008 05:04
Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use.
Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at http://www.jstor.org/action/showPublisher?publisherCode=ylj.
Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission.
JSTOR is a not-for-profit organization founded in 1995 to build trusted digital archives for scholarship. We work with the scholarly community to preserve their work and the materials they rely upon, and to build a common research platform that promotes the discovery and use of these resources. For more information about JSTOR, please contact support@jstor.org.
The Yale Law Journal Company, Inc. is collaborating with JSTOR to digitize, preserve and extend access to
The Yale Law Journal.
http://www.jstor.org
What's Past Is Prologue:
Precedent In Literatureand Law
Kenji Yoshino
On June 29, 1992, the joint opinion of Planned Parenthood v. Casey' "spectacularly failed to overrule"2 the holding of Roe v. Wade.3The writers of the joint opinion suggested that stare decisis, or the legal doctrine mandating that precedent be followed, disciplined their analysis, and that they were bound by Roe's holding regardless of their personal opinions on whether the Constitution protects a woman's choice to have an abortion.4 Chief Justice Rehnquist's opinion, on the other hand, maintained that stare decisis did not compel upholding Roe and asserted that Roe should be overruled.5 The
1. 112 S. Ct. 2791 (1992). At issue in Casey were five provisions of the PennsylvaniaAbortion Control Act of 1982, as amendedin 1988 and 1989. The Act (1) requiredthat a providerof abortion services supply a woman with certaininformationat least 24 hoursin advanceof an abortionprocedure and obtain the woman's informedconsent priorto performingthe procedure;(2) requiredthat a minor obtainthe consent of a parentpriorto undergoingan abortionprocedure,unless the minorqualifiedfor a
judicial bypass of the parentalconsent requirement;(3) requiredthata physician,priorto performingan abortionprocedureon a marriedwoman,obtainhersigned statementthatshe had notifiedherhusband;(4) defined the parametersof a "medicalemergency"that would excuse compliance with the consent and notificationrequirements;(5) mandatedthat facilities providingabortionservices comply with certain
reportingrequirements.Before these provisions took effect, petitionersbroughta suit challenging the
of each |
provision |
of the Act and |
and |
relief. 112 S. Ct. at |
constitutionality |
|
seeking declaratory |
injunctive |
2803. The district court held all five provisions of the Act unconstitutionaland entered a permanent injunctionagainstenforcement.PlannedParenthoodv. Casey,744 F.Supp. 1323(E.D. Pa. 1990).The court of appeals affirmed in part and reversed in part, upholdingall of the provisions except the husband-
notification |
PlannedParenthoodv. |
Casey, |
947 F.2d682 |
(3d |
Cir. |
1991). |
|||||||
|
The |
requirement. |
|
|
|
|
|
|
|||||
|
|
Courtissuedfive |
The |
|
authored |
Justices |
|||||||
and |
|
Supreme |
|
opinions. |
|
|
joint opinion, |
|
by |
|
O'Connor,Kennedy, |
||
Souter,upheld |
all of the |
provisionsexcept |
the husbandnotification |
|
|
112S. Ct. at 2803-38 |
|||||||
|
|
|
|
|
|
requirement. |
(opinionof O'Connor,Kennedy,and Souter,JJ.).The remainingfouropinionsall concurredin partin and dissentedin partfrom this result.JusticeStevenscontendedthatpartsof the firstrequirement(concerning content-basedcounselingandthe 24-hourwaitingperiod)were unconstitutionalandshouldbe struckdown, but thatthe Act was otherwiseenforceable.Id. at 2838-43 (Stevens,J., concurringin partand dissenting in part).JusticeBlackmunarguedthatall five of the provisionswere unconstitutionaland shouldbe struck
down. Id. at 2843-55 (Blackmun,J., concurringin thejudgmentin part,concurringin part,and dissenting in part).Chief JusticeRehnquist(joinedby JusticesScalia,Thomas,andWhite)arguedthatall five of the provisions were constitutionaland should be upheld.Id. at 2855-73 (Rehnquist,C.J., concurringin the judgment in part and dissenting in part).Justice Scalia (joined by Chief Justice Rehnquistand Justices Thomas and White) advocatedthe same result.Id. at 2873-85 (Scalia, J., concurringin the judgmentin
partand dissentingin part).
2.KathleenM. Sullivan, Foreword:The Justices of Rules and Standards,106 HARV.L. REV.22, 24-25 (1992).
3.410 U.S. 113 (1973).
4.112 S. Ct. at 2812 (opinionof O'Connor,Kennedy,and Souter,JJ.).
5.Id. at 2855 (Rehnquist,C.J., concurringin the judgmentin partand dissentingin part).
471
472 The Yale Law Journal [Vol. 104: 471
Rehnquist opinion further implied that the joint opinion invoked the doctrine of stare decisis as a convenient way of implementing individual Justices' political predilections while allowing those Justices to avoid accountability for their controversial views on abortion.
This Note argues that the law-and-literature movement can shed light on the manner in which the Casey opinions treat precedent. Part I provides the theoretical background to a comparison of precedent in law and literature. First, it briefly situates this Note in the law-and-literature movement; second, it outlines two theories concerning the treatment of precedent, one from literature (Harold Bloom's "anxiety of influence"6) and one from law (stare decisis); finally, it describes a prior attemptby David Cole to apply the anxiety of influence to the legal field.7 Part II critiques Cole's theory and shows how the remainder of this Note provides a more precise synthesis of the literary and legal theories. Part III describes two of the subversive strategies developed by Bloom: apophrades and clinamen. Part IV applies these two strategies to two literary texts: Tom Stoppard's Rosencrantz and Guildenstern Are Dead8 and Aime Cesaire's Une Tempete.9Part V shows that both of these subversive
strategies are applicable, with some qualifications, to the Casey opinions. Part VI contrasts the consequences of these strategies in the literary and legal fields.
I.PRECEDENTIN LITERATUREANDLAW
A.The Law-and-Literature Movement
The law-and-literature movement has its Anglo-American antecedents in
the nineteenth century. In that period, English lawyers wrote about the
depiction of the legal system by Shakespeare, Dickens, and other famous writers; Wigmore argued that lawyers should read literature to learn about
human nature; and Cardozo analyzed the literary style of judicial opinions.0l Until the publication in 1973 of James Boyd White's The Legal Imagination," however, law and literature did not emerge as a distinct and self-conscious field.'2 Subsequently, Robert Weisberg divided the law-and- literature movement into two branches-law-in-literature and law-as- literature.'3 This distinction has been widely adopted.14 Law-in-literature
6. HAROLD THE ANXIETYOF INFLUENCE:A THEORYOF POETRY BLOOM, (1973).
7.David Cole, Agon at Agora: CreativeMisreadingsin the FirstAmendmentTradition,95 YALEL.J.
857 (1986).
8.TOM STOPPARD, ROSENCRANTZ AND GUILDENSTERN ARE DEAD (1967).
9.AIME CESAIRE, UNE TEMPfTE (1969).
10. RICHARD A. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION 12 (1988).
11.JAMESB. WHITE,THE LEGALIMAGINATION(1973).
12.POSNER,supra note 10, at 12.
13. |
Robert Weisberg, The Law-Literature Enterprise, I YALEJ.L. & HUMAN. 1, I (1988). |
14. |
See discussion and sources cited in Gretchen A. Craft, Note, The Persistence of Dread in Law and |
Literature, 102 YALE L.J. 521, 523-24
1994] |
|
Past Is Prologue |
473 |
||||
considersliterature"about" |
|
|
|
Kafka'sThe |
Camus'The |
||
|
|
legal subjects(e.g., |
|
Trial, |
|||
Stranger, |
or Lee's To Kill A |
|
|
and law "about"literature |
|||
|
Mockingbird) |
|
(e.g., |
||||
laws |
concerningdefamation,obscenity, |
or |
|
|
on |
||
|
|
copyright).'5Law-as-literature, |
the other hand, subdividesinto two concerns:the study of rhetoricin legal writingandthe applicationof literarytheoryto the law.'6For example,White describeshow literature'sdiscourseaboutdevicessuchas metaphor,ambiguity,
and |
irony |
enhancesan |
of |
Dworkin |
|
|
understanding |
legal argument.'7Similarly, |
arguesthatbecauseliterarytheoryis moredevelopedthanlegal theory,literary theorycan offer new insights into legal texts.'8
Bloom's anxiety of influence, as shown below, is both a taxonomy of rhetoricaldevices thatauthorsuse to subvertprecedent,anda theoryaboutthe
writershaveto theirpredecessorsBy. consideringthe applications relationship
of this theory to the law, this Note situates itself squarelyin the law-as- literaturemovement.
B. TheAnxietyof Influenceand StareDecisis
Precedentoccupiesthe literaryandlegal fieldsin the formof two different theories:the literarytheoryof the anxietyof influenceandthe legal theoryof staredecisis. HaroldBloom formulatedthe anxietyof influencein a tetralogy:
The Anxiety of |
Influence,'9 A |
Map of |
Misreading,20Kabbalah and |
||||||
and |
Poetry |
and |
|
The |
theory |
claims that all |
poets |
||
Criticism,2' |
|
Repression.22 |
|
|
(writers)grapplewith the anxietythateverythingthey write is influencedby their powerful predecessors.In orderto become great, Bloom asserts,poets
mustbreakfree of this influence conducting of their by "strongmisreadings"
predecessors-that is, by subvertingthe meaningof theirpredecessors'texts
in orderto maketheirown contributions. |
casts the |
|
|
Bloom, misreadingFreud, |
|
as the fatherandthe |
as the "belatedson."23 |
|
predecessor-poet |
usurping-poet |
|
15. See Weisberg,supra note 13, at I; see also POSNER,supra note 10, at 5-6, |
18. |
16.Craft,supra note 14, at 524 n.7.
17.WHITE, supra note 11, at 56-77; id. at 81 ("While the traditionalmeans of controlling a
language-by metaphor,irony,andambiguity-are likely to be of little use to us as lawyers,or of use only
in |
special ways, |
we |
may |
be able to learnmuchfromthem ...."); |
see also POSNER, |
note 10, at 272 |
|||||
|
|
humble |
of |
|
supra |
|
|||||
|
in |
to |
|
|
suchas wills, deeds,indentures,and |
||||||
("[E]ven |
regard |
|
comparatively |
specimens |
legal writing |
|
contracts;there,repetition,and even archaism,may serve to remindthe signatoriesof the gravityof their commitmentand to impartemphases that assist interpretation.... [Judicialopinions] are unavoidably rhetorical....").
18. RONALDDWORKIN,A MATTEROF PRINCIPLE148 (1985) ("Not all of the battleswithin literary
criticismare |
edifying |
or even |
but |
moretheoriesof |
have beendefended |
|
|
comprehensible, |
many |
interpretation |
in literaturethanin law ... ."). 19. BLOOM,supra note 6.
20. HAROLDBLOOM,A MAP OF MISREADING(1975).
21. HAROLDBLOOM,KABBALAHAND CRITICISM
(1975).
22.HAROLDBLOOM,POETRYAND REPRESSION:REVISIONISMFROMBLAKETO STEVENS(1976).
23.In subsequentdiscussions of Bloom's framework,this Note refersto the usurperas the son and to the precursoras the fatherto retainthe Freudian(and Oedipal)resonancesof those terms.The use of these termsis not meantto imply thatwomen cannotoccupy eitherof the roles.
474 |
The Yale Law Journal |
[Vol. 104: 471 |
Bloom's |
theory is a literary theory in that it describes |
how a poem |
achieves meaning. Helen Vendler maintains that Bloom's theory allows readers to see poems
for what they are, part of a perpetual struggling dialogue between generations, temperaments, wills, and perceptions, all couched in a fraternity of shared and contested language, unintelligible unless the common usage of that language, and the problems to which it gives rise, are perceived, weighed, and appreciated.... Each poet turns in passing, and makes valedictory utterances toward his predecessors, using and revising the languages they bequeathed to him, while charging successors to take up his language made lucky by the Muse's favor.24
As Vendler indicates, Bloom argues that poems achieve meaning by situating themselves in an aesthetic genealogy, providing in turn a history for their successors. The system is simultaneously communal and adversarial: Poets provide each other with context while vying with one another for supremacy.
The anxiety of influence is also a taxonomy of the various rhetorical positions a poet's text can take in relation to that of his predecessor. Bloom
outlines six relationships that texts have with their precedents-all |
of which |
entail a misreading of what has gone before-that allow the poet |
to create a |
place for himself. These "revisionary ratios" include: clinamen, or swerving, where the poet seeks to correct an error in the preceding text; tessera, or completion, where the successor fills out lacunae in the predecessor's work; kenosis, or emptying out, where the iconoclastic son demystifies the godlike father by showing him to be as fallible as the son; daemonization, where the successor adopts the antithesis of the precursor;askesis, where the poet curtails his gift to truncate the precursor's achievement in a milder form of kenosis; and apophrades, where the successor so overwhelms the predecessor that he reverses the father-son relationship.25
The term and concept of precedent are more comfortably situated in the discourse of law than they are in literature. "Precedent" is a term of art,
defined by Black's Law Dictionary as:
An adjudged case or decision of a court, considered as furnishing an example or authority for an identical or similar case afterwards arising on a similar question of law. Courts attempt to decide cases on the basis of principles established in prior cases. Prior cases which are close in facts or legal principles to the case under consideration are called precedents. A rule of law established for the first time by a
24.HELENVENDLER,Defensive Harmonies:On HaroldBloom, in THE MUSICOF WHATHAPPENS: POEMS,POETS,CRITICS49, 56-57 (1988).
25.BLOOM,supra note 6, at 14-16.
1994] |
Past Is Prologue |
475 |
court for a particulartype of case and thereafterreferred to in deciding similarcases.26
The doctrinestatingthatcourtsmustadhereto precedentis called staredecisis et non quieta movere,27 or stare decisis. Unlike the anxiety of influence, the
doctrineof staredecisis is |
|
ratherthan |
Whereas |
|||
|
|
|
prescriptive |
merelydescriptive. |
||
the |
anxiety |
of influence |
|
detectsa |
that |
exists, stare |
|
merely |
|
relationship |
already |
decisis invents one by mandatingthatcourtsfollow previousdecisions.
The doctrineof staredecisis developedin the infancyof Englishcommon law; "[h]istoriansagree thatBracton'sNote Book, containingone of the first collections of English decisions, gave early impetus to the doctrine."28As early as 1454, Chief JusticePriscotstatedthatprecedentshouldbe followed for a particularcase, arguingthat"[i]f this plea were now adjudgedbad ...
it would assuredlybe a bad exampleto the young apprenticeswho studythe YearBooks, for they would never have confidencein theirbooks if now we were to adjudge the contraryof what has been so often adjudgedin the Books."29In his Commentariesof 1765, Blackstoneformallyarticulatedthe doctrine,statingthat"it is an establishedrule to abideby formerprecedents,
where the |
same |
points |
come |
again |
in |
The doctrine was |
|
|
|
|
litigation."30 |
substantiallyin place by the end of the eighteenthcentury.3'
In its developedformin Englishcommonlaw,the doctrineof staredecisis requiredthatprecedentbe followedby: (1) all lowercourtsafterpromulgation by a superiorone; (2) the Houseof Lordsafterits own priordecisions;(3) the Courtof Appealafterits own decisions;and(4) courtsafterdecisionsof courts
of coordinate |
The doctrinehas |
allowed, however,for |
authority.32 |
historically |
certainexceptions.Specifically,precedentneednotbe followed if: (1) the rule laid down in the previous case was plainly unreasonableand inconvenient;
(2) anothercourtof equal authorityhad handeddown a conflictingdecision; or (3) the part of the precedentcited was not a principlenecessaryfor the decision of the case.33
Following the American Revolution, a major goal of American legal
educatorswas to relieveAmerican |
|
|
of the |
necessity |
of |
followingEnglish |
||||
|
|
judges |
|
|
||||||
|
The doctrine of |
stare decisis was modified to |
require |
strict |
||||||
precedents.34 |
|
|
|
|
|
|
|
|
||
26. |
1176 |
(6th |
ed. |
1990). |
|
|
|
|
|
|
BLACK'SLAWDICTIONARY |
|
|
Robert A. Sprecher,The |
|||||||
27. |
"[T]o stand by the decisions and not to disturbsettled points ..." |
Developmentof the Doctrine of StareDecisis and the Extentto WhichIt ShouldBe Applied,31 A.B.A. J. 501, 501 (1945).
28.Id.
29.Y.B. 33 Hen. 6, pi. 41 (1454), quotedin Sprecher,supra note 27, at 502.
30.1 WILLIAMBLACKSTONE,COMMENTARIES69 (Thomas M. Cooley ed., Chicago, Callaghan & Co.,
3d ed. 1884) (1765), quotedin Sprecher,supra note 27, at 502.
31.Sprecher,supra note 27, at 502.
32.Id.
33.Id. at 503.
34.CRAIG E. KLAFTER,REASONOVERPRECEDENTS:ORIGINSOF AMERICANLEGALTHOUGHT67
(1993).
476 The Yale Law Journal [Vol. 104: 471
adherence to precedents establishedby American courts while permitting
English precedents |
to be |
This |
modification |
exemplifies |
the |
|
questioned.35 |
|
|
argumentthatthereare two kinds of staredecisis: strictandrelaxed.36Under the strict form, judges are obliged to follow the earlierdecisions of certain other courts.37The relaxed doctrine,on the other hand, requiresonly that judges "give some weight to past decisions on the same issue."38
Overtime, Americandoctrinehas become increasinglyrelaxedeven with
regard |
to American |
two new |
exceptions |
to those |
|
precedents,incorporating |
|
retained from English doctrine. First, the Supreme Court stated that the decision of whether stare decisis "shall be followed or departedfrom is a question entirely within the discretion of the court."39 In exercising this discretion,the SupremeCourthas been particularlywilling to suspendthe
of staredecisis in cases involvingthe U.S. Constitutionbecause requirements
correctingerrorsin constitutionalinterpretationthroughlegislative action is nearly impossible.40Second, the Americandoctrineof staredecisis came to permitjudges to consider the "spiritof the times."41Thus, it is accepted under Americandoctrinethat the judge functionsas a law makerwho can considersocial, economic, andpoliticalchange.42
More exceptions were added piecemeal, such that two commentators
argued |
in 1935 that "'the modernand |
present |
trendis characterized |
the |
|
by |
overrulingand distinguishingof precedentsto an extent thatwould strikean
English judge |
and |
lawyer |
as |
The extent to which the |
|
|
revolutionary."'43 |
currentdoctrineof staredecisis compelsdecisionsis a matterof some debate. At one extreme, lower courts have refused to follow precedentset by the SupremeCourt,as in a case whereDistrictJudgeBrevardHandrejectedthe Supreme Court's holding that, in the context of school prayer, the First
Amendment'sEstablishmentClauseconstrains |
thefederal |
and |
only |
government |
not the states.44At the otherextreme,courtshave adheredto precedenteven while criticizing it.45Commonly, though, the doctrine of stare decisis is
35.Id. at 67-68.
36.See, e.g., RONALDDWORKIN,LAW'SEMPIRE24 (1986) (recognizingand discussingdistinction).
37.Id.
38.Id. at 25.
39.Hertz v. Woodman,218 U.S. 205, 212 (1910), quotedin Sprecher,supra note 27, at 503.
40.Sprecher,supra note 27, at 503-04.
41.Id. at 504.
42.Id.
43.Id. at 503 (quotingAlbertKocourek& HaroldKoven, Renovationof the CommonLaw Through StareDecisis, 29 ILL. L. REV. 971, 976 (1935)).
44.Jaffreev. Boardof Sch. Comm'rs,554 F. Supp. 1104, 1128(S.D. Ala.) ("ThisCourt'sindependent review of the relevanthistoricaldocuments... convincesit thatthe UnitedStatesSupremeCourthas erred in its readingof history."),aff'd in part and rev'din part sub nom.Jaffreev. Wallace,705 F.2d 1526 (1Ith
Cir. 1983), cert. denied,446 U.S. 926 (1984), cited in EvanH. Caminker,WhyMustInferiorCourtsObey SuperiorCourtPrecedents?,46 STANL. . REV.817, 819 (1994).
45. See United States v. Childress,715 F.2d 1313 (8th Cir. 1984) (criticizingbut following Swain v. Alabama,380 U.S. 202 (1965)), cited in Caminker,supra note 44, at 863.
1994] |
|
|
Past Is Prologue |
|
477 |
nullified |
through |
less visible |
As |
Justice O'Connorhas |
stated, |
|
|
subterfuges.46 |
|
judges "'know how to mouth the correctlegal rules with ironic solemnity while avoidingthose rules' logical consequences."'47
C. Cole'sApplicationof the Anxietyof Influenceto the Law
The seminal place occupiedby precedentin literatureand law invites a comparisonof the function of precedentin both fields. The theory of the anxietyof influencewas firstappliedto law by ProfessorPaul Gewirtzin his article Remedies and Resistance.48David Cole subsequentlyexplored the theoryat greaterlength in his articleAgon at Agora: CreativeMisreadingsin
theFirstAmendmentTradition,whichprovidestheframework this critiquedby
Note. Cole firstarguesthatthe theoryof the anxietyof influenceappliesto all writers,not just to writersof literature:
Bloom's revisionaryratiosneednotbe limitedto poeticrelations.The
anxiety of influenceafflicts all writerswho seek to asserta voice or identity.Any act of interpretation,moreover,requiresthe articulation of a point of view belongingto the individualreader.Bloom's model
implies thatall pointsof view arein some sense revisionaryandthat
those individualswhomwe consider or "influential" "great,""strong,"
are those whose views standout as most revisionary.49
Since Bloom's revisionaryratios are simply rhetoricaldevices to overcome precedent,they are not limited to the literaryfield. Cole's argumentfinds supportin Bloom's statementthat his theory of poetic influencerepresents "partof the largerphenomenonof intellectualrevisionism,"50which includes "politicaltheory,psychology,theology,law, [and]poetics."51
Cole further contends that, given the general applicability of the revisionaryratios to all rhetoric,it is not surprisingthat the six revisionary ratios
suggest parallelsbetween the poetic and legal functions.The gentle corrective movement [clinamen] appears to describe the type of
|
|
|
the more |
|
developmentcontemplatedby precedentialincorporation; |
in the |
|||
extremerevision |
describesthe momentof |
victory |
||
antithetical |
[apophrades] |
|
||
overruled.Twomethodsof |
misreading |
|||
struggle,precedent |
|
46.Caminker.supra note 44, at 819.
47.Id. (quoting TXO Prod. Corp. v. Alliance Resources Corp., 113 S. Ct. 2711, 2742 (1993)
(O'Connor,J., dissenting)).
48.Paul Gewirtz,Remediesand Resistance,92 YALEL.J. 585, 666-67 (1983).
49.Cole, supra note 7, at 865; see also Gewirtz,supra note 48, at 666.
50.BLOOM,supra note 6, at 28.
51.Id. at 29 (emphasisadded).
478 |
The Yale Law Journal |
[Vol. 104: 471 |
which fall betweenthese extremesalso have specialrelevanceto the legal model.52
Cole recognizes that the rhetorical strategies specified by Bloom have analoguesin the law; thusjudges as well as poets may applythese ratios.
To say actorsin bothfields mayapplythe ratios,however,does not mean that they apply them in the same way. Cole points out thatjudges and poets
generally |
have |
|
to |
|
diametricallyopposedrelationships precedent: |
||
The demands of |
social stability and legal predictabilityturn the |
anxietyof influenceon its head;wherethe poet suffersanxietyat the prospectthathe or she will not escape fromthe precursor'sshadow, the judge's immediateanxiety arises from the threatthat his or her rulings will not be accepted unless they appear consistent with precedent.The poet'sjob is to breakfrom the past;the judge's duty is to conformto the past.53
Cole thus arguesthat society makesdissimilardemandson poets andjudges that affect their relationshipsto precedent.Society asks the poet to provide originality,therebycolludingin the poet's pursuitof subversion.On the other hand,society asks thejudge for stabilitythroughthe doctrineof staredecisis, providinga countervailingforce to thejudge's desireto rule accordingto her
predilections.
Therefore,while the poet needonly contendwiththe anxietyof influence, the judge must contendwith both the anxietyof influenceandthe anxietyof illegitimacy,as raisedby the doctrineof staredecisis:
Because the poet's authorityrests explicitly on originality,the poet may seek to evade the inescapableinfluenceof his or her precursors by an overt misreading.The Justice,however,mustboth misread,in orderto make space for his or her contribution,and appearnot to
misread,in orderto drawon the authorityof precedent.54
52. Cole, supra note 7, at 865. It should be noted thatCole incorrectlyimplies that Bloom lists the revisionaryratios in ascendingorderof subversiveness:
At one extreme, the young poet merely swerves from the line established by his or her precursor;the new text appearsas a gentle correctivemovement,developing the idea of the precursoralong a slightly differentline. At the other extreme,the ephebe's misreadingis so
strong |
thatthe |
workis viewed thereafter |
as an elaborationon it. The new |
poet |
|
|
precursor's |
only |
|
recapturespriorityover his precursor,so that the precursor'spoetry now reads as if it were always alreadyindebtedto the new poet's work.The latertext so stronglyrevealsthe essence
of the |
|
work thatthe |
seems to have imitatedthe |
ephebe; |
the son becomes father |
|
prior |
precursor |
|
||
to the father. |
|
|
|
||
Id. at 864-65 |
(footnotes omitted). Nothing in Bloom's analysis suggests that clinamen, the first ratio |
describedabove, is more "gentle"thanapophrades,the second ratiolisted above, northatthe intervening ratiosbecome more radicalas they move away fromthe formertowardthe latter.Indeed,as shown below,
clinamencan be just as radicala strategyof subversionas apophrades.
53.Id. at 867.
54.Id. at 868; see also Gewirtz,supra note 48, at 667.
1994] |
Past Is Prologue |
479 |
Thus, Cole arguesthatwhatdistinguishesthe greatjudge from the greatpoet
is |
that, |
unlike the |
poet, |
the |
judge |
cannot |
overtly |
rebelfromhis |
but |
|
|
|
|
|
precursors |
rathermust act covertly.
Finally, Cole contends that society ironically celebrates judges who successfullysubvertprecedentby overcomingthe obstaclessociety has placed in theirpath:
[M]uch as we value order and predictabilityin the law, we also celebrate those judges whose strong, creative visions eventually capturethe allegiance of the legal and social culture.A judge who
commandsa |
an |
thatcoversno new |
|
majorityby adopting |
interpretation |
groundwill probablynotbe rememberedas great;to be great,ajudge mustbothbreakfromprecedentandultimatelysucceedin havinghis
or her views accepted.5
Underthis formulation,thejudge shouldcareonly aboutsocial perceptionof his faithfulnessto precedentratherthanhis actualfidelityto those priorcases:
The appearanceof legitimacy is fungiblewith legitimacyitself. The "great"
judge |
is one who acts as law's motorwhile |
to be its mirror. |
|
pretending |
Cole's argumentcan thus be summarizedas follows: The anxiety of influenceappliesto all writers,andthus appliesto judges as well as to poets; because of differing social expectationsof their roles, judges are bound by
precedentto a greaterdegreethanarepoets;greatjudges,however,mustbreak from precedent in the mannerof poets; nevertheless,great judges cannot overtlybreakfromprecedentbecausethey mustappearto cleave to it. Cole's synthesis is powerfulbecause it shows that the distinctionbetween law and
literature is |
not |
as |
sharp |
as it |
may |
have |
More |
|
|
|
|
|
originally appeared.56 |
specifically,in its applicationof the theoryof the anxietyof influenceto the law, Cole's analysis shows that Bloom's theory of poetry may accurately characterizethe strugglethatjudges face in dealingwith legal precedents.
II.A NEW APPLICATIONOF THE ANXIETY OF INFLUENCETO THE LAW
A.Critiqueof Cole'sApplication
Any synthesisof theoriesfromtwo differentfields mustbe carefulnot to
fall into the |
all |
studies-that of |
forcing |
the |
|
trapthreatening |
interdisciplinary |
|
two fields closer together or furtherapart than they actually are. Posner outlines this dangerin the contextof the law-and-literaturemovement:
55.Cole, supra note 7, at 867; see also Gewirtz,supra note 48, at 667.
56.Cole, supra note 7, at 858.