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B. ChiefJustice Rehnquist'sOpinion

Like Tempete, the Rehnquist opinion employs a strategy of direct subversion. Just as Cesaire's prologue indicates that precedent will be

subverted,the Rehnquistopinionaversat the outsetthat"authentic principles

of stare decisis do not requirethatanyportionof the reasoningin Roe be kept intact."'51As in Tempete,the Rehnquistopinion both reveals its precedent

to be and swerves away from its substantiveweaknesses. arbitrary

1. Arbitrariness

Tempete'sprologue shows The Tempestto be arbitraryby raising the curtain on players who have not yet become characters.The device is metadramatic,in that it draws attentionto the play as a play ratherthan

self-consciousattentionto the way in which theaterproducesmeaning,to the usuallysubmergedworkingsof the dramaticinstitution.While clinamendoes not requiresuch a move, it perhapssuggestsit-one way in which to show a

Similarly, Rehnquist's opinion attemptsto show that Roe is arbitraryby embarkingon a metalegal discussion of stare decisis. Rather than simply attacking Roe on its merits, the Chief Justice's opinion considers the underlyingdoctrineof staredecisis thathas given Roe powerover subsequent cases.

Chief JusticeRehnquistarguesthatRoe was arbitraryby comparingit to

Plessyt52 and Lochner,153thereby reminding the reader that the Court is not infallible. In doing so, however,the opinion mustbe carefulto stave off the chargethatit is advocatingthatprecedentcan be overruledwhenevera judge disagrees with it. As the joint opinion argues, "[t]he Court's power lies . . . in

overcome this objection by arguingthat legitimacy is rooted not in public perception but in a reign of reason. First, the opinion insulates its own

conceptionof the Court'slegitimacyfrom public perception,arguingthat"it may be doubtedthatMembersof this Court,holdingtheirtenureas they do

151.Id. at 2860-61 (Rehnquist,C.J., concurringin the judgmentin partand dissentingin part).

152.Plessy v. Ferguson, 163 U.S. 537 (1896) (holdingthatlegislatively mandatedracialsegregation

racialseparationtreatsblack race as inferior).

153.Lochner v. New York, 198 U.S. 45 (1905) (imposing substantivelimitationson wealth and welfare regulationthat restrictedeconomic autonomy).

154.112 S. Ct. at 2814 (opinionof O'Connor,Kennedy,and Souter,JJ.).

155.Id. at 2815.

504 The Yale Law Journal [Vol. 104: 471

public protests.""56Having thus severed legitimacy from public perception,

the Rehnquistopinion then roots that legitimacy in principle, arguingthat principledoverrulingsenhancetheCourt'slegitimacy.Specifically,the opinion maintainsthat in Plessy and Lochner, "the court enhanced its statureby acknowledgingand correctingits error,apparentlyin violation of the joint

opinion's 'legitimacy'principle."'57

Second, the Rehnquistopinion shows that Casey followed Roe in an arbitrarymanner,by showing thatstaredecisis did not dictatethatprecedent be followed.'58 The Rehnquist opinion construes the "prudential and

Rehnquistopinion states thatthe joint opinion'srelianceargumentis flawed

makes nothing more than "generalizedassertions"that Americans have "orderedtheir thinking and living around"Roe;'60 (2) the joint opinion uprootsthe trimesterframework;'16and (3) the simple fact that a generation or more had grownaccustomedto the rules laid down in majordecisions has not preventedthe Courtfrom correctingerrorsin othercases such as Plessy or Lochner.162 The Rehnquist opinion then criticizes the joint opinion's

whetherto departfromstaredecisis in a constitutionalcase, thata decisionbe

(women become pregnant,fetuses become viable, women give birth)do not compel the invocationof staredecisis.'64

2.Swerving

In clinamen,the poet follows "receiveddoctrinealong to a certainpoint, andthen deviates,insistingthata wrongdirectionwas takenatjust thatpoint, and no other."'65Tempete swerves from The Tempest by stressing

156.112 S. Ct. at 2862 (Rehnquist,C.J., concurringin the judgmentin partand dissentingin part).

157.Id. at 2863.

158.While Roe is the precedentunderscrutiny,the Rehnquistopinionalso recognizesthatthe joint opinionwill be precedentfor futurecases. The Rehnquistopinionthusarguesnotonly thatRoe was wrong, but also that the joint opinion furtherdistortedRoe.

159.Id. at 2808 (opinionof O'Connor,Kennedy,and Souter,JJ.).

160.Id. at 2862 (Rehnquist,C.J., concurringin thejudgmentin partand dissentingin part)(quoting opinionof O'Connor,Kennedy,andSouter,JJ.,id. at 2809). Rehnquist'sopiniondoes not addressthe issue of workability.Scalia's opinionarguesthatthe only reasonRoe was workablewas its trimesterframework, which Casey abandoned.Id. at 2881 (Scalia,J., concurringin thejudgmentin partanddissentingin part).

161.Id. at 2860 (Rehnquist,C.J., concurringin the judgmentin partand dissentingin part).

162.Id. at 2862.

163.Id. at 2861.

164.Id.

165.BLOOM,supra note 6, at 29 (emphasisomitted).

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3. Conclusion

As in Tempete,the Rehnquistopinion both shows the precursorto be

provides a better basis for legitimacy than does a slavish adherence to precedentfor the sakeof publicopinion.Thenit considersthe weaknessof the

to precedent. It does not, however, obviate the need to conform to the

be accepted not in spite of, but ratherbecause of, the overt natureof the subversion.

VI. THEDIVERGENCEOFLITERATUREANDLAW:

RECONSIDERINGTHE CASEYJOINTOPINION

Until this point,thisNote has arguedthatlaw andliteraturearecloserthan Cole made them appear,in that rhetoricaldevices used in the anxiety of

literatureand transfersit withoutqualificationto the law. Because law and literaturevary in their consequences,however,the value of creativityin the

of literarycreativity,such as judicialrulingswrittento parodypoetryor film, show thatsuch creativitydoes not have a presumptivelypositive value in the law. Quite the contrary,creativityof this sort is stronglydisfavored.More subtle forms of creativity,such as that used in the Caseyjoint opinion, can also have negativeconnotationsWhile.judicialcreativityis notperse harmful, it should not be celebrated without qualification.By presenting a biased accountof legal creativity,Cole's frameworkobscuresthe potentialdrawbacks of unconstrainedinnovation.

In Cole's account,all writers,includingpoets andjudges, have egos that drive them to misreadtheirpredecessors.Society, however,has independent interestsin the roles of judges and poets thatshapethe degree to which this

andoriginalityin poets, the expressionof an individual'sego is allowed,even encouraged;social and individualexpectationsof the poet's ego are aligned.

Because society values consistency and stabilityin judges, however,judges experiencea tension between social expectationandpersonalego.

While Cole accuratelycharacterizesthe tension between creativityand legitimacyin the judge's role, he incorrectlyimplies thatcreativityshouldbe

as signifying the artist's soaring above a constrainingpast, arguing that "greatnessrequires a break from precedentand an ability to command a following; bowing to authoritysimply does not fit under any definitionof 'greatness""70Cole thus uses "greatness"to describe creativity alone, thereby effectively precluding the achievement of greatness by judges exhibitingany restraint.

Cole might counterthatby calling creativity"great"he is simply taking a definitionfrom literatureand applyingit to its most similaranaloguein the

two ways. First, Bloom presentscreativityas the essence of greatliterature: The term "creativity"cannot be transferredto another field without its powerfullypositive connotation.Second,Cole borrowsBloom's terminology to give legal legitimacya negativeconnotation,arguingthat"theJusticefinds legitimacy in a kind of ploddingbelatedness."171

Cole's simple mappingof literaryvalues onto legal values is reductive because it overlooks a fundamentaldifference in the effects of writers'

endeavorsin literatureand law. MargaretJane Radin cautions "againstany easy metaphoricalequationof law and literature,because of its tendencyto obscure the violence of the law .... Authoritative regulations command, not invite."172The distinctionappearsmost clearly on the rare occasions when

judges infuse their rulings with the literaryvariety of creativity,such as a ruling'73written as a parody in verse of Edgar Allen Poe's The Raven,174

literary parodies of literary texts,177these legal parodies of literary texts occasion an anxietyspecificto the law:the fearthatcreativityhas come at the expense of due process. As if to respondto this anxiety,the judge in The Raven case points out that the ruling is favorableto the only party to the bankruptcyproceeding,so that his ruling is comparativelyharmless.In the

the ruling would be adverse to one of them. However, the judge protects

170.Cole, supra note 7, at 867 n.33.

171.Id. at 866.

172.JaneRadin, "Afterthe Final No ThereComesa Yes".A Law Teacher'sReport,2 YALE Margaret

J.L. & HUMAN253,. 265 (1990), quotedin Craft,supra note 14, at 525.

173.In re Love, 61 B.R. 558 (Bankr.S.D. Fla. 1986) ("Now my motion caused me terror/ A dismissalwould be error./ Upon considerationof ? 707 (b) in anguishloudI cried/ The court'ssua sponte motion to dismiss under? 707 (b) is denied.").

174.EDGARALLENPOE, The Raven, in COMPLETEPOEMSAND SELECTEDESSAYS71 (Richard Gray ed., 1993).

175.Noble v. BradfordMarine,Inc., 789 F. Supp.395, 397 (S.D. Fla. 1992) (holdingthatdefendant's

must "partyon" in state court).

176.WAYNE'SWORLD(Paramount1992).

177.See, e.g., HECHT,supra note 76.

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himself by presentingthe issue as a simple statuteof limitationsquestion.If a rulingin this genre treatedan issue of law thatwas more ambiguous,such

out of keeping with the judicial functionandthe gravityof the situation. All rulingsin this genre,to differingdegrees,set the distinctionsbetween

literaryand legal texts in relief. The distinctionis one betweenliterarytexts, which are not coercive and which thereforecan misreadwith abandon,and legal texts, which are coercive and which therefore must constrain any misreading.As Gewirtzstates:

Whenpoets misreador distortthe pastas partof the creativeprocess,

Thus legal texts can rfeverbe self-containedand self-justifyingin the manner of some literarytexts.

The SupremeCourthas yet to issue a rhymedopinion;poetryis probably not the kind of creativity the nation need fear from its highest judges. Nevertheless,as the foregoingdiscussionof Caseydemonstrated,the Courthas used more subtlevarietiesof legal creativity.The Caseyjoint opinionwas an instanceof such creativity:Like Rosencrantz,thejoint opinionboth appeared faithful to precedentand subvertedit. As in the case of a rhymedparody,

merely persuadedsome readersto view Hamletdifferently,Casey removed

Cole recognizesthatthe pursuitof creativityin the law often encourages a lack of candor,because of the doctrineof staredecisis: "TheJustice . . .

must both misread,in orderto make space for his or her contribution,and

seen above, however,Cole uniformlypraisesthis lack of candor,so long as it is successful.Giventhe consequencesof Casey,Cole's celebrationof this lack of candor is suspect. As Guido Calabresistates in the context of statutory

interpretation:

178.Gewirtz,supra note 48, at 667.

179.While it is beyondthe scope of this Note to explorethe effects of Casey,these effects areclearly

now restrictabortiondecisions checked only by the very ambiguous"undueburden"standard.Moreover, the bright-linerule of the trimestersystem has been abandoned.

180. Cole, supra note 7, at 868.

arein a positionto employthe absolutesto maskwhatthey aredoing, to hide whose intereststhey aretradingoff. Andtoo often suchhiding becomes self-serving or exploitative. If a court denies that it is modifying or forcingreview of a statuteit deems out of phase, it is usuallymoreable to serve its own ends thana courtthatmustopenly admitwhat it is doing andjustify its behaviorrationally.8'

This analysis has clear implicationsfor the joint opinion,which can be seen

This is not to say thatthe joint opinion'slack of candorwas inevitablybad. There may be situationsin which candor,or creativityin general,shouldbe traded off against other values: The joint opinion could have rationally sacrificedsome candorin orderto preservethe legitimacyof the Court.

Cole's analysisis flawedbecauseit preventsthe readerfrom even asking questionsaboutthe valueof candorin rulingssuchas thejoint opinion.While a judge may not errin being disingenuous,as long as she hadcorrectreasons for being so, an academic surely errs if she does not point out that such a trade-offis being made.'82The most harmfulaspectof Cole's analysisis that it takes the presumptivelypositive connotationcreativityenjoys in literature and applies it to law. This uncritical appropriationobscures creativity's negativeramificationsin the law.

CONCLUSION

Precedentoccupies a seminalplace in bothliteratureandlaw, as reflected in the theories of the anxiety of influence and of stare decisis. Cole's descriptionof how the anxietyof influencecan be used to describethe law is a valuablecontributionto the law-as-literaturebranchof the law-and-literature

movement.This Note has soughtto refineCole's analysisin two ways. First, it considered Bloom's six revisionaryratios, as well as Bloom's general Freudiandynamic of misreading.This analysis applied two of the ratios to literaryas well as to legal texts, examininghow apophradesworkedin both Rosencrantzand in the Caseyjoint opinion,andhow clinamenfunctionedin

both Tempeteand in the Rehnquistopinion. Such analysis moves beyond Cole's generalobservationthatsimilaritiesbetweenlegal andliterarytreatment of precedentexist, to show thatBloom's theorycan work in similarways in both literatureand law. The analysis also suggests that the taxonomy of rhetorical strategies developed by Bloom can provide a vocabulary for