учебный год 2023 / 797009

510 The Yale Law Journal [Vol. 104: 471

describing and analyzing legal opinions. Because the law has not developed such a vocabulary on its own, these terms can usefully be employed to identify and discuss rhetorical strategies in the law.

This Note has also sought to distinguish the anxiety of influence as it operates in literature and in law by pointing to the different functions and

consequences of texts in the two disciplines. The positive value of creativity in literature cannot be transposed onto the law, where creativity must be balanced against due process. In failing to make this distinction between literature and law, Cole uncritically applauds the lack of candor exhibited by certain judicial opinions. By modifying Cole's framework, this Note has underscored the importance of remaining alert to potential abuses, as well as uses, of precedent.

In a larger sense, this Note has been as much an extension of Cole's analysis as a critique of it. The law-and-literaturemovement has been criticized for its lack of prescriptive implications. Judge Posner has stated that:

The relationship between literature and law is less tidy [than that

between law and economics], because there is no central theory of literature that can be taken and applied to a body of law; because

there is no central programmaticthrust,whether positive or normative, to the law and literature movement ...

Although this Note has made necessary adjustments to Cole's framework, it

joins Cole in arguing that literary theory has prescriptive implications for an understanding of the law. While certain convergences between law and literature may be little more than adventitious, the rhetorical and theoretical

183. POSNER,supra note 10, at 1.