15-1 Duong

ARTICLES
LAW IS LAW AND ART IS ART AND

SHALL THE TWO EVER MEET? — LAW
AND LITERATURE: THE COMPARATIVE
CREATIVE PROCESSES
BY WENDY NICOLE DUONG†
I. SUMMARY
On a limited scope, this Article provides a reassessment of the “Law
and Literature” movement1 in legal academic discourse. On a much broader
scope, the Article attempts to join the ongoing dialogue among authors who
have written on jurisprudence and philosophy,2 as well as on the esoteric
field called “the philosophy of legal language.”3 This dialogue has
consisted of, inter alia, topics such as law and philosophy,4 law and
linguistics,5 law and art,6 rhetoric and legal interpretation,7 or legal
† Assistant Professor of Law, University of Denver Sturm College of Law.

1
JAMES BOYD WHITE, THE LEGAL IMAGINATION: STUDIES IN THE NATURE OF LEGAL THOUGHT AND
EXPRESSION (1973).For a typical recapture of social issue debates arising out of literary text by Law
and Literature legal scholars, see generally, James McBride, Revisiting a Seminal Text of the Law &
Literature Movement: A Girardian Reading of Herman Melville’s Billy Budd, Sailor, 3 MARGINS 285
(Fall 2003); HERMAN MELVILLE, BILLY BUDD, SAILOR 108 (Harrison Hayford & Merton M. Sealts, Jr.
eds., Univ. Chicago Press 1962) (1924).
2
See, e.g., Oliver Wendell Homes, The Path of Law, 110 HARV. L. REV. 991 (1897); H.L.A. HART, THE
CONCEPT OF LAW (2d ed. Clarendon Press Oxford 1994). See also Frederick Schauer, The
Jurisprudence of Reasons, 85 MICH. L. REV. 847 (1987) (reviewing Dworkin’s Law’s Empire); GARY
MINDA, POSTMODERN LEGAL MOVEMENTS: LAW AND JURISPRUDENCE AT CENTURY’S END (N.Y.U.
Press 1995); RADICAL PHILOSOPHY OF LAW: CONTEMPORARY CHALLENGES TO MAINSTREAM LEGAL
THEORY AND PRACTICE (David S. Caudill & Steven Jay Gold eds., Humanities Press Int’l, Inc. 1995).
3
See, e.g., LAW AND LANGUAGE (Frederick Schauer ed., NYU Press 1993); Frederick Schauer,
Interpretation Symposium: Philosophy of Language and Legal Interpretation, 58 S. CAL. L. REV. 399
(1985). See also J.L. AUSTIN, PERFORMATIVE/CONSTATIVE IN THE PHILOSOPHY OF LANGUAGE (J.
Searle ed., 1971); James Boyd White, Thinking About Our Language, 96 YALE L.J. 1960 (1986-87).
The developing philosophical debate on legal language dates back to the philosophy of the late Ludwig
Wittgenstein. LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS (G.E.M. Anscombe trans., 2d
ed. 1958). Wittgenstein intimated that all philosophical problems are ultimately problems of language.
See also Dennis Patterson, Law’s Pragmatism: Law as Practice and Narrative, 76 VA. L. REV. 937
(1990) (relating Wittgenstein’s pragmatism on the “following of rules” to legal interpretation and the
viewing of law as a practice).
4
See, e.g., Jeremy Waldron, Vagueness in Law and Language: Some Philosophical Issues, 82 CAL. L.
REV. 509 (1994). Accord Timothy A.O. Endicott, Vagueness in Law, 3 LEGAL THEORY 37, 37-63
(1997); See Patterson, supra note 3.
5
See, e.g., ZENO VENDLER, LINGUISTICS AND THE A PRIORI, in LINGUISTICS IN PHILOSOPHY (Cornell
Univ. Press 1967). See also Lawrence M. Solan, Law, Language, and Lenity, 40 WM. & MARY L. REV.
57 (1998) (presenting a linguistic approach to statutory interpretation).
6
See, e.g., ADAM GEAREY, LAW AND AESTHETICS (John Gardner ed., Hart Publishing 2001); LAW AND
THE IMAGE – THE AUTHORITY OF ART AND THE AESTHETICS OF LAW (Costas Douzinas & Lynda Nead
1
2 Southern California Interdisciplinary Law Journal [Vol. 15:1
hermeneutics — a school of legal scholarship said to be needed to improve

the understanding of law as interpretation.8 The "speaking to authors" or
“joining the broader dialogue,” however, is done solely to support my
hypothesis regarding the interplay between law and literature, rather than to
comment directly on arguments already raised by jurisprudence theorists or
legal language philosophers.
In the following pages, I seek to establish the following six
propositions:
1. As disciplines, law and the literary art share commonalities. For
example, both disciplines depend and thrive on the artful use of language.
Both disciplines can, and have, become effective tools for advocacy and
social reform. Law can benefit from the craft of the literary art, and can
borrow therefrom. Conversely, the drama of the law practice and notions of
jurisprudence can, and have, become a rich source of material for the
literary artist to explore human nature and society.
2. Yet, in my view, these two disciplines remain divergent and
incompatible in three core aspects: (i) the mental process of creation and
the utilization of facilities, (ii) the work product or output, and (iii) the
raison d'etre of law versus art. For example, the mental process and
utilization of facilities inherent in law has little to offer the creation of art,
and the two creative processes are antagonistic and hence should not
intermingle or be treated as the same. In fact, the rationality and logic
properties of law — the objective of rendering certainty to future outcomes
that are uncertain in order to maintain order — will interfere with, and can
even destroy, the creation of art.
3. Notwithstanding the incompatibility between law and the literary
art, the two disciplines do meet in one domain: the use and study of
rhetoric. It is in rhetoric that the craft of the literary art is exercised, and
law can benefit from such craft. Rhetoric has been, and should always be,
an essential part of lawyering. When used in the context of law, the art and
craft of persuasion inherent in the study and use of rhetoric helps produce
and stimulate social activism, which is undoubtedly an integral function of
eds., Univ. Chicago Press 1999). See also Roger Berkowitz, Rriedrich Nietzsche, The Code of Manu,
and The Art of Legislation, 24 CARDOZO L. REV. 1131 (2003) (discussing artistic creation in the context
of analyzing Nietzsche’s art of legislation); J.M. Balkin & Sanford Levinson, Interpreting Law and
Music: Performance Notes on the ‘Banjo Serenader’ and ‘The Lying Crowd of Jews’, 20 CARDOZO L.
REV. 1513 (1999) (discussing and comparing law and music); Jonathan Turley, Art and the
Constitution: The Supreme Court and the Rise of the Impressionist School of Constitutional
Interpretation, 2004 CATO SUP. 69 (2004) (using various schools of the visual art to discuss
constitutional theories).
7
See, e.g., LAW’S STORIES – NARRATIVE AND RHETORIC IN LAW (Peter Brooks & Paul Gerwirtz eds.,
Yale Univ. Press 1996); Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 HARV. L. REV.
417 (1899); DONALD DAVIDSON, INQUIRIES INTO TRUTH AND INTERPRETATION (Clarendon Press
Oxford 1984). See also, e.g., Patterson, supra note 3; Neil MacCormick, Argumentation and
Interpretation in Law, 6-1 RATIO JURIS 16 (1993); Dworkin, Interpretive Concepts, in LAW’S EMPIRE
(Harvard Univ. Press 1986); LAW AND INTERPRETATION: ESSAYS IN LEGAL PHILOSOPHY (Andrei
Marmor ed., Clarendon Press London 1995); Delia B. Conti, Narrative Theory and the Law: A
Rhetorician’s Invitation to the Legal Academy, 39 DUQ. L. REV. 457 (2001).
8
See, e.g., LAW, INTERPRETATION AND REALITY – ESSAYS IN EPISTEMOLOGY, HERMENEUTICS AND
JURISPRUDENCE (Patrick Nerhot ed., Kluwer Academic Publishers 1990).
2005] Law is Law and Art is Art and Shall the Two Ever Meet? 3
law. The art of persuasion and its natural product — social activism — help
influence judicial officers and legislators, who are the principal and official
drafters of legal language. In that sense, the elements and attributes of the
literary art have their place in law.
4. Notwithstanding the obvious social utility of the literary craft when
it is used as part of law, the creative process involved in each discipline
remains antagonistic to each other. This notion should ring a note of
caution for the responsible lawyer, drafter, and user of legal language. In
this regard, the Law and Literature (L&L) movement of the past decades
has not done justice to the scholarly discourse. Nor has it enhanced the
understanding of practitioners in either field — law or art. (By
practitioners, I mean those who must engage in the relevant creative
process; I do not mean just the legal practitioners of the law profession.)
The reason for this shortcoming is explained in my fifth proposition below.
5. Although scholars in the L&L movement recognize the differences
and similarities between law and art, they all stand in the shoes of the
readers and speak from the perspective of interpretation. They neglect the
perspective of the artist, the nature of the artistic creative process, and the
incompatibility inherent in legal creation versus artistic creation. This
oversight is due, inter alia, to the fact that L&L scholars are all thinkers,
lawyers, readers, even literary critics or connoisseurs of art, but they
probably don't live their lives as creative artists. Missing from the debate is
the voice of the serious creative artist who actively and on a daily basis
becomes involved in the creation of art as the essence of existence. The
L&L scholars should recognize and examine these two antagonistic
creative processes because they add to the understanding of interpretation
and help set constraints when law borrows the craft of the literary art for
advocacy and persuasion.
6. Gradual changes and the expansion of legal scholarships in past
decades have created new dimensions for the interplay between law and the
literary art. The art of storytelling — the cornerstone of fables, folklores,
mythologies, and fiction — is making its way into the “narrative” form of
legal scholarships as this form emerges under great scrutiny, suspicion, and
controversial debates. But in order to gain and retain acceptance, the
“narrative” form must be done extremely well, with dignity, responsibility,
9
and the kind of ethical constraint that typifies the role of a jurist. At the
same time, the narrative must be well-crafted to create the sense of
“suspended disbelief” expected of the audience of the arts. This remains the
most complex challenge for the “narrative” advocate and practitioner
because the two antagonistic creative processes — law versus art — must
somehow be reconciled and harmonized into a final product that represents
the relative quest for truth (characteristic of law), rather than the freedom of
imagination (characteristic of novelistic writing). Hence, the marriage
between law and art in the “narrative” form is indeed a paradox.
Nonetheless, the narrative legal writer must undertake this internally
9
Jack L. Sammons, The Radical Ethics of Legal Rhetoricians, 32 VAL. U. L. REV. 93 (1997).
paradoxical challenge, because legal writing is not about what seems

interesting to the free spirit of the writer. It is about examination,
reexamination, thinking, rethinking, reforming, and re-reforming a societal
structure via the use of rationality and balance, rather than the
sensationalism of emotional appeal.
Consequently, in the decades to come, if the L&L movement is to
flourish into a “renaissance” tour de force, it needs to focus on the study of
the antagonistic creative processes that separate the lawyer from the literary
artist, in such a way that concrete suggestions can be made to the future
generation of legal writers who utilize the “narrative” form to present,
explain, and interpret an exceedingly complex world inside, as well as
outside, the judicial system and the ivory tower. More specifically, the L&L
movement of the 21st century should act to lend credence, texture,
suggestions, value and dignity to the narrative form as a new species of
legal scholarship, and to harmonize and render systematic the
understanding of, as well as the interplay between, law and the literary art.
My Article explores, explains, and advocates for the above six
propositions.
II. SOME INTRODUCTORY NOTIONS: ART, LAW, LANGUAGE,

INTERPRETATION, AND THE CREATIVE PROCESS
In the Langdell Library of Harvard Law School, hidden and separate
from the somber and monotonous rows of hard-bound U.S. Reports, there
lies, inconspicuously on a bottom shelf, a modest book with a dull red
cover. The thin, compact volume lists some one hundred and twenty written
works that were once censored or banned due to their contents. Among the
reasons given for censorship were the "cheapening of female virtues" and
societal standards of decency. The list includes a number of literary giants:
Leo Tolstoy, Vladimir Nabokov, Charles Baudelaire, Guillaume
Appollinaire, James Joyce, Jean Jacques Rousseau, Honoré de Balzac,
Gustave Flaubert, William Faulkner, D. H. Lawrence, Henry Miller, and
our own contemporary, Toni Morrison.10
The list of banned books illustrates one concrete consequence of text
interpretation. Interpretation necessarily includes, and is tempered by, the
emotional reaction of readers based on their existing system of beliefs.11 If
it were not for the interpretation made by the authority, there would not be
any issue or necessity for censorship or ban. The authority construed the
text to constitute some threat of destruction to existing norms. One cannot
help but ask: What transpires in the interpretation of text that can exude
such fear of harm and attribute such power to words? What is involved in
10
See DAWN B. SOVA, BANNED BOOKS: LITERATURE SUPPRESSED ON SEXUAL GROUNDS (Ken
Wachsberger ed., Facts On File, Inc. 1998).
11
See DONALD DAVIDSON, Belief and the Basis of Meaning, in INQUIRIES INTO TRUTH AND
INTERPRETATION 141-54, 183-98, 245-64 (Clarendon Press Oxford 1984); Donald Davidson, A Nice
Derangement of Epitaphs, reprinted in TRUTH AND INTERPRETATION: PERSPECTIVES ON THE
PHILOSOPHY OF DONALD DAVIDSON 433-446 (Ernest LePore ed., Basil Blackwell Ltd. 1984).
the artistic creative process that prompts artists to stretch limits, blind
themselves against moral norms, and explore or articulate social and
political taboos at tremendous risk?
The list also strikes a note of discordance between law and art,
portraying literary artists as breakers of norms and defiants of culture —
those exhibitionists who disrobe the human soul and lay bare its nakedness.
On the other hand, law is seen as the gloved hand: that well-groomed,
uniform-clad social agent who suppresses artistic expressions and molds
human conduct. Artists are deviants; lawyers, conformists, and judges
speak the voice that dictates behavior. At the same time, the United Nations
Universal Declaration of Human Rights (UDHR)12 speaks of freedom and
liberty for all humankind, by declaring the unequivocal space the state must
preserve as inviolate for the universal human (the UDHR’s concept of right
universalizes what a human can do, and what the state cannot do). So,
where is the declaration and invite of freedom? Law or art?
In the 1970s, James Boyd White's The Legal Imagination appeared to
mark the birth of the Law and Literature (L&L) movement,13 initiating,
perhaps, the scholarly debate on the divergence, analogies, and similarities
between the two disciplines. Concurrently, there has been a breed of
lawyers–turned–novelists, of which Harvard Law School supplied its share
of the species (Richard Henry Dana, James Russell Lowell, Henry James,
Owen Wister, Arthur Train, Archibald MacLeish, Scott Turow, J. Osborne,
James Alan McPherson). But long before these phenomena, Cardozo's Law
and Literature14 had already analyzed the literary properties of judicial
opinions, and Wigmore had already declared that lawyers should learn from
great literary works to understand human nature.15 The interplay between
law and literature in Anglo-Saxon society has historical roots dating back to
depictions of the legal system by Shakespeare and Dickens.
This “coming together” of law and literature reminds me of the cliché
saying, “Tous les chemins se mènent a Rome” (all routes lead to Roma). I
think of words, or language, as one such "Roma capital” for the two
disciplines — the meeting point of law and the literary art.16 Language and
the author's function become the common domain for law and art.17 In
12
Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc A/810 (Dec. 10, 1948).
13
JAMES BOYD WHITE, THE LEGAL IMAGINATION: STUDIES IN THE NATURE OF LEGAL THOUGHT AND
EXPRESSION (Little Brown & Company 1973). Other distinguished contributors to the movement are
Richard A. Posner and Richard Weisberg. See, e.g., RICHARD POSNER, LAW AND LITERATURE: A
MISUNDERSTOOD RELATION (Harvard Univ. Press 1988); RICHARD POSNER, LAW AND LITERATURE
(1998); Richard A. Posner, Law And Literature: A Relation Reargued, 72 VA. L. REV. 1351 (1986);
Richard A. Posner, Judges’ Writing Styles (And Do They Matter?), 62 U. CHI. L. REV. 1421 (1995);
RICHARD WEISBERG, POETHICS AND OTHER STRATEGIES OF LAW AND LITERATURE (Columbia Univ.
Press 1992).
14
BENJAMIN N. CARDOZO, Law and Literature, in LAW AND LITERATURE AND OTHER ESSAYS AND
ADDRESSES 3 (1931).
15 JOHN WIGMORE, INTRODUCTION TO JOHN MARSHALL GEST, LAWYERS IN LITERATURE vii (1913).
16
I distinguish between “visual art” (where a medium like paint/canvas becomes the tool of expression),
“performing art” (where the artist’s body and physical facilities become the tool of expression), and
“literary art” (where words become the tool of expression). Although the tools are different, in the
purest form of artistic creation, they should all serve the same function.
17
Piyel Haldar, Literature Within the Law, 32 NEW FORMATIONS 183 (1997).
language, the artist and the lawyer meet, where they are greeted by the
philosopher, who raises questions such as whether the normative rules of
language should be imported substantively into law beyond grammar and
syntax,18 or whether law inherits the indeterminacy of language and hence
the open-endedness of interpretation.19 But just because they can all find
and share Roma, does this mean that they can be friends? In some ways,
yes. (In fact, they have borrowed crafts, techniques, and material from each
other.) In other ways, I suggest no. This is because in the process of
creating their work products, lawyers and philosophers travel courses that
are different and even counter-productive to the creative process of the
artist — whose journey can also do havoc to law and philosophy when
applied there.
Another “Roma capital” exists for law and literature. It is in (i) the
domain of the reader or interpreter of text — the receiving end of the work
product; and in (ii) the task of advocacy or persuasion — that which will
influence and shape the end result, produce consequences, impact and
prompt the reader or interpreter to action, or induce a change of belief. As
law professor Wetlaufer points out, rhetoric is the art (as per Aristotle) or
craft (as per Plato) of persuasion, which has been treated as synonymous
with lawyering.20 Here, I agree with Richard Posner, the judge and law
professor whose book, Law and Literature, brought the L&L movement
into focus.21 Posner thinks that the study of literature has very little to
contribute to the interpretation of constitutions and statutes. Yet, it can
contribute to the understanding, improvement, shaping, and hence,
interpretation of judicial opinions. But just because the study of literature
can be relevant in the shaping of judicial opinions, does it mean the
creative process is the same for judges, who write opinions, as it is for
literary artists, who write fiction? I submit, no. I would even venture to say,
absolutely not, because these two creative processes are mutually exclusive
and antagonistic to each other.
18
See generally KENT GREENWALT, LAW AND OBJECTIVITY (Oxford Univ. Press 1992).
19
See, e.g., Linda Ross Meyer, When Reasonable Minds Differ, 71 N.Y.U. L. REV. 1467 (1967)
(examining legal indeterminacy via the use of language and meaning of Rule 11 and the qualified
immunity doctrine). See also LAW AND INTERPRETATION: ESSAYS IN LEGAL PHILOSOPHY, supra note 7.
20
Gerald Wetlaufer, Rhetoric and its Denial in Legal Discourse, 76 VA. L. REV. 1545 (1990). Wetlaufer
teaches law at the University of Iowa, known as the nation's best training ground for creative writers.
The University of Iowa initiated the Project on the Rhetoric of Inquiry. See also THE REPUBLIC OF
PLATO (A.D. Lindsey trans., 1950) (In the allegory of the cave, Socrates used light and dark to discuss
the physical and the intellectual. Fiction was used to develop an argument, and storytelling was used to
create one of the best known stories of classical philosophy).
21
Interestingly, Posner wrote not only about law and literature, but also law and economics. See, e.g.,
RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW (2003); RICHARD A. POSNER, THE ECONOMICS OF
JUSTICE (1981). As Wetlaufer correctly points out, Posner’s work was from the perspective of the reader
of literature. See Wetlaufer, supra note 20, at 1564 n.50. Posner did not compare literature to law from
the standpoint of the creator, although he recognized some differences in the creative processes between
law and art. See generally, RICHARD POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION,
supra note 13; RICHARD POSNER, LAW AND LITERATURE, supra note 13.
III. DEFINITION AND CONCEPTUAL FRAMEWORK

But before I can defend my hypothesis, I must first do what I believe
my modest and embryonic understanding of analytical philosophy has
taught me to do: engage in the raising and asking of questions and the
setting of parameters. According to Moravcsik, analytical philosophy is the
raising of questions within a discourse.22 Knowledge? What is meant by
knowledge? Art? What is meant by art? And the same inquiry can be raised
for law or rhetoric. Outside the context of philosophy, and within the
narrow, mundane, yet systematic focus of a lawyer, this means the listing of
defined terms and the setting forth of a common understanding of key
concepts that underlie the construct of my hypothesis.23
A. LAW, THE RHETORIC OF LAW, AND THE PARAMETERS OF LEGAL
DECISION MAKING
Law in this Article refers to the legal system as a whole (and not just
the legal profession, the practice of law, legal authority/precedents, legal
concepts, or legal documents). Law is viewed by Wetlaufer as a "serious
business . . . conducted on a field of ‘pain or death.’"24 Thinking like
lawyers, therefore, is important to the legal pedagogue, as the process may
reinforce the legitimacy and dignity of the legal system itself. So, argues
Wetlaufer, the rhetoric often chosen for the law profession is the
anti-rhetoric!25
On the other hand, the text that matters to law often encompasses more
than just legal precedents. Quite often, in the congested court docket, the
winning brief provides the roadmap of legal authorities and supplies the
persuasion force for the judicial opinion to sustain appellate review and to
aid public understanding. Judges (as human beings with passion, emotions
and prejudices, living in a multi-faceted society), also read and hear other
things besides legal precedents. They listen to the voices of social
movements, and bring their total experience and beliefs into the bench — a
“synthetic” model of judicial decision-making confirmed by the pragmatist
school of thought in language philosophy. According to Holmes, the life of
law has not been logic; it has been experience.26 The Anglo-American legal
22
See Julius M. Moravcsik, Art and “Art,” in MIDWEST STUDIES IN PHILOSOPHY VOL. XVI:
PHILOSOPHY AND THE ARTS 302 (Peter French, Theodore Uehling, Jr. & Howard Wettstein eds., Univ.
of Notre Dame Press 1991).
23
Definitions may be the beginning point for the drafter of a complex commercial contract, which often
includes a “definition of terms” section, and even for an appellate lawyer handling a complex litigation
and a massive record (an appellate brief may also contain “defined terms.”) Definitions, however, are
of little concern to the artist, who leaves the job of defining and labeling her vision to readers.
According to Barthes, the “death” of the author is the “birth” of the reader; the “evaporation” of
meaning as textual matters are interpreted: “A text’s unity lies not in its origin but in its destination.”
ROLAND BARTHES, The Death of the Author, in IMAGE-MUSIC-TEXT 142-148 (Stephen Heath trans.,
1977).
24
See Wetlaufer, supra note 20, at 1545 (quoting Robert Cover, Violence and the Word, 95 YALE L.J.
1601 (1986)).
25
See id.
26
See OLIVER WENDELL HOLMES, JR., THE COMMON LAW 5 (Mark DeWolfe Howe ed., 1982) (1963);
Oliver Wendell Holmes, Jr., The Theory of Legal Interpretation, 12 HARV. L. REV. 417 (1899).
system allows room for the judge’s “synthetic” decision-making — under

various legal standards of appellate review, the discretion of trial judges is
not reviewable in the absence of abuse. In such a sacred zone of judicial
discretion, judges can bring their notion of morality into decision-making:
Moral judgment can place constraint upon legal interpretation and a moral
end can be part of law itself.27 Accordingly, social activism, the rhetoric of
language, and the emotional enticement of ideals, can all legitimately be
injected, directly as well as indirectly, into legal decision-making.
B. “ART,” “ART,” AND “ART”

Proponents of the L&L movement advocate the incorporation of certain
attributes of the literary art into law,28 concluding that art and law overlap
at least minimally through the use of rhetoric. The argument, while sound
in practice, can be criticized as intellectually sloppy, because it
marginalizes the distinction between art and craft in the use of language.
The distinction, however, is far from clear, because (as in the case of a
dancer inseparable from her dance) both art and craft manifest themselves
in the same medium: words. Further, when something is so well-crafted or
done, and delivered with so much finesse, aesthetic style, and distinction, it
becomes an art. Hence, we have in our daily lives, for example, all kinds of
art (lowercase) from the art of French cooking or the art of ballroom
dancing, to the art of conversation or discourse.29
It is possible, therefore, to have the art of law, independent of the
rhetoric use of language, and hence to achieve aesthetic beauty in judicial
opinions without compromising the purpose and function of law.
(Wetlaufer illustrates this point in his "anti-rhetoric" theory by identifying
the restrained rhetoric of law, which can be broadened and abstracted into
the art of law, rather than the pure, commonly labeled "rhetorical" style,
which includes, but is not limited to, the colorful, action-packed, or
emotion-based language borrowed from the literary art.)30 According to
Wetlaufer, the art of law is the skilled and respectable exercise of
constraint, or the dignity created by the anti-rhetoric.31 Further, one often
looks to the constraint of law for a sense of order, and order has been
associated with aesthetics since Socrates' time. So, the order of law can be
the aesthetic beauty in law.
27
See DWORKIN, supra note 7, at 45-86, 176-224; H.L.A. Hart, Positivism and the Separation of Law
and Morals, 71 HARV. L. REV. 593 (1958); HART, supra note 2, at 124-53; Oliver Wendell Holmes, Jr.,
The Path of the Law, 10 HARV. L. REV. 457, 465-66 (1897).
28
Art can also be an institution or a practice, just like law or medicine, although society does not
officially license artists. The privileges and recognition bestowed — the name recognition and label-
fixing that render prestige and acceptance in the artistic circle — all set constraints and institutionalize
art. See Moravcsik, supra note 22. The institutionalized meaning of art is not part of this Article.
29
Accord Roger Berkowitz, Rriedrich Nietzsche, the Code of Manu, and the Art of Legislation, 24
CARDOZO L. REV. 1131 (2003) (discussing artistic creation in the context of analyzing Nietzsche’s art of
legislation); Alfred C. Aman, Jr., Celebrating Law and the Arts, 2 GREEN BAG 2D 129 (1999)
(comparing lawyers to artists by referring to the craft of law: “Lawyers, like artists, must have the
techniques of their craft well in hand, but the goal is not technique for technique’s sake...”).
30
See Wetlaufer, supra note 20.
31
But the art found in any craft well done is a narrow, yet more popular
and concrete notion of art as the term is used in ordinary language. Such art
should be distinguished from the art expressed in the specific work
products of creative artists — that direct "rare vision" and manifestation of
beauty (which often expresses not only the artist's vision and her internal
struggle, but is also universalized into the human quest for beauty). The art
of Van Gogh, Mozart, or Baudelaire falls under the latter category. For the
purpose of this Article, this universal notion or expression of the human
quest for beauty is manifested in the specific end product of a creative
artist, called Art (capitalized).
C. VARIOUS MEANINGS OF RHETORIC AND ITS RELATIONSHIP TO “STYLE”

In the study of rhetoric, several authors associate rhetoric with style.32
When rhetoric is well done, one can even call it the art of style. According
to Professor Richard Lanham, rhetoric is not arts, but “copies of arts,” or
the “quasi-arts.”33 Lanham thus sees rhetoric as a departure from truth or
seriousness, and considers his rhetorical man an actor, with "drama as his
reality public."34 The Homo Rhetoricus is trained not in reality, but in the
manipulatation of reality. An ease, a playful quality, a notion of pleasure,
and sentimentalism are attached to Lanham's rhetoric ideal of life. (This
concept is equivalent to the cliché characterization that the true artist is
perpetually a child!)
Style suggests form instead of substance. In his “law and literature”
analysis, Posner, likewise, acknowledges the difference between literary
form and literary meaning, which in his view often are inseparable in the
use of language.35 When style is so exquisitely and expertly done, it can
become the aesthetics — the very beauty that elevates an act into an art.
Rhetoric, therefore, should fall under the narrower meaning of art
(lowercase), as in the notion of a craft exquisitely well done. One can thus
view rhetoric as referring to the craft of literature as opposed to Art itself
(as in the creation of Art in Baudelaire’s or Emily Dickinson’s poetry).
More specifically, in the view of the rhetoric researcher, style can be
purpose-oriented and purpose-driven. For example, Wetlaufer speaks of
32
See RICHARD A. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION, supra note 13, at
270-81. Accord Brett G. Scharffs, The Character of Legal Reasoning, 61 WASH. & LEE L. REV. 733
(2004) (discussing craft and rhetoric). See also WILLEM J. WITTEVEEN, Cicero Tells a Story On
Narration and Rhetorical Reflection, in LAW AND LITERATURE PERSPECTIVES (Bruce Rockwood ed.,
Peter Lang Publishing 1996); Michael Frost, Greco-Roman Analysis of Metaphoric Reasoning, 2 LEGAL
WRITING J. LEGAL WRITING INST. 113 (1996); Michael Frost, Introduction to Classic Legal Rhetoric: A
Lost Heritage, 8 S. CAL. INTERDISC. L.J. 613 (1999); Michael Frost, Ethos, Pathos & Legal Audience,
99 DICK. L. REV. 85 (1994); Linda Berger, Applying New Rhetoric to Legal Discourse: The Ebb and
Flow of Reader and Writer, Text and Context, 49 J. LEGAL EDUC. 155 (1999); Kristen K. Robbins,
Paradigm Lost: Recapturing Classical Rhetoric to Validate Legal Reasoning, 27 VT. L. REV. 483 (2003)
(discussing classic rhetoric and exploring styles and substantive aspects of rhetoric as applied to legal
reasoning, legal writing, and legal interpretation).
33
RICHARD A. LANHAM, THE MOTIVES OF ELOQUENCE: LITERARY RHETORIC IN THE RENAISSANCE 1-
35 (1976).
34
Id. at 4.
35
See generally Posner, Law and Literature: A Relation Reargued, supra note 13.
rhetoric as being “discipline-specific.”36 One such species of rhetoric is the

rhetoric of law. (He goes on to discuss the rhetoric of law teaching, and the
rhetoric of friendship or client courtship when law is treated as a business
enterprise by practitioners.) Wetlaufer thus envisions rhetoric in a broad,
generic sense, referring to the style of language or presentation, or any craft
well done to suit a purpose, thereby acknowledging the many species of
rhetoric.37 I construe Wetlaufer’s theory of rhetoric as a deconstruction and
a discipline-dependent reclassification of rhetoric.
With respect to the use of language, the analysis is even more complex,
because beyond the issue of art and craft, we also have the conventions of
linguistics, semantics, and compliance with all types of
interpretandum-interpretans transformation rules (interpretandum is the
text that constitutes the object of interpretation; interpretans is the
interpreter’s paraphrastic statement of that text’s meaning),38 as well as the
philosopher Donald Davidson’s notion of “literal meaning” (Davidson
advocates that any text will have a “literal meaning” based purely on
semantics, that is independent of context).39 Accordingly, when L&L
proponents advocate the use of rhetoric in law, unless they suggest an
open-endedness to the search for truth (as some philosophers do), they are,
in effect, only advocating the borrowing of a literary craft for the drafting
and usage of legal language.
At the same time, Lanham suggests in his rhetorical ideal that rhetoric
can go beyond the use of Language, and can become a way of life, an
attitude, a modus operandi.40 In law, rhetoric can also be used in the total
performance of advocacy, not just in words. When used to study rhetoric on
such a broader dimension, the L&L movement may potentially implicate
and open the door to the restructuring or rethinking of jurisprudence
beyond the handling of text.
As part of background-building, I next want to explain the existing
scholarly debate regarding the place of the literary art and language
philosophy in law, which may set the tone for a rethinking of jurisprudence
— the possibility, or emergence, of a substantively “aesthetic approach to
law or jurisprudence.”
36
See Wetlaufer, supra note 20, at 1548-1550.
37
Id.
38
Scott Brewer, Note, Figuring the Law: Holism and Tropological Inference in Legal Interpretation, 97
YALE L.J. 823 (1988).
39
See Donald Davidson, A Nice Derangement of Epitaphs, supra note 11, at 434-36.
40
See LANHAM, supra note 33. Accord KENNETH BURKE, A RHETORIC OF MOTIVES (1960) (the theory
of dramatism establishes man as a symbol-using creature); WALTER R. FISHER, HUMAN
COMMUNICATION AS NARRATION: TOWARD A PHILOSOPHY OF REASON, VALUE AND ACTION 5 (1987)
(extending Burke’s premise that man is fundamentally a symbol-using creature; arguing that man’s
dramatic nature makes him a storytelling animal beyond the use of symbols).
IV. THE DEFENSE OF ART IN LAW: POSSIBILITY OF AN

“AESTHETIC” APPROACH TO LAW
A. RHETORIC, THE SHAPING OF JUDICIAL OPINION, AND THE ELEMENT OF

TRUTH
In Posner’s view, both judicial opinions and literature belong to
rhetoric communication.41 (This classification, as I will explore later,
understates the artistic creative process. For example, the creation of
literature involves more than just the manipulation of style or figures of
speech. It also involves, for example, an emotional honesty and a selection
of sense-memory impression or recollection that goes much deeper than the
manifestation of a purpose-driven style.) Nonetheless, Posner’s
oversimplified classification does reduce the overlap between law and art
to the core zone of rhetoric. Posner complains that lawyers and political
scientists do not study style enough, and posits that style should play a
more organic role in judicial drafting, beyond ornament. According to
Posner, the artistic use of visual or tactile imagery in the literary art is of
tremendous help to lawyers when they strive to drive home a point in legal
argument.42 Modern judicial writing can incorporate the artifactual quality
of the literary art. Principles of literary criticism can be used to achieve
aesthetic integrity in judicial opinions, to understand their nature and
contents, and hopefully to reduce the number of poorly drafted opinions.
(Although Posner embraces the eloquence of Holmes, he does not explain
what constitutes a poorly drafted opinion that may be improved by the
literary craft of rhetoric.)43
Wetlaufer, on the other hand, is concerned that the plasticity of
indeterminate text, which is characteristic of artistic language, may disserve
law, and suggests that this literary style may predispose lawyers to become
ineffective readers of legal text.44 Further, rhetoric commitments may
interfere with the single-minded pursuit of truth or the even-handed,
detached application of law that should govern courtroom behaviors.
Wetlaufer, however, implicitly acknowledges that the search for truth
requires the type of openness that calls decision-makers away from closure,
into the direction of complexity, contingency, and uncertainty, all of which
are characteristics of an “aesthetic approach” toward law.45 Lawyers and
judges should serve law itself, whereupon justice becomes the client.
Without exposure to the power of rhetoric, lawyers and judges tend to
accept the legitimacy of the existing system and the righteousness of
existing solutions, allowing the status quo, rather than the pursuit of justice,
to become their client or constituent. Their predisposition not to dance with
words can deny them the multiplicity of perspectives, and make them ill-
equipped to inspire people or to transform conditions (as compared to, for
41
See Posner, supra note 13 , at 1375-88.
42
Id. at 1390.
43
Id. at 1379-85.
44
See Wetlaufer, supra note 20, at 1591.
45
See id.
example, Martin Luther King, Jr.’s speech, which has helped transform a
nation and, since then, has continued to resonate).
Posner stops at style and does not reexamine the search for truth
fundamental to law. In contrast, Wetlaufer, hints at the possibility of
rethinking jurisprudence in analyzing the rhetoric of law.46 I read in
Wetlaufer an implicit challenge to lawyers’ commitment to the rhetoric of
law — specifically their dignified, consistent denial of rhetoric. This “anti-
rhetoric” commitment predisposes them toward the direction of closure,
coercion, rationality, and the rigid ascertainment of one true meaning of
text that shuts out the relationship between law and “compassion,
reciprocity, . . . community . . . truth . . . and possibility of justice.”47
Similarly, Holmes’s “anti-logic theory” resonates with this complex
multiplicity of law and legal decision-making, pointing out the significant
role that the “inarticulate” and “intuitive” play in judges’ discernment of
law.48
The pragmatist language philosopher also hints at the possibility that
rhetoric can be more than just style or form. Rhetorical declarations can
have their own meaning or truth, even in the Davidsonian “literal
meaning.” Admitting the dramatic quality of rhetoric, Lanham nonetheless
sees the rhetorical ideal as integral to us (rather than as a mere constructed
phoniness for the sake of discussion). He sees the struggle between our two
selves: We cannot be free of our rhetorical self, as the rhetorical self is part
of the central self that balances our social self and makes our social life
amusing and tolerable. The rhetorical ideal allows for a revision of truth, or
a creation of a new reality.49 As such, rhetoric has the capacity of becoming
the substantive truth to the performer as well as the recipient, and no longer
just a question of form or style. When used in law, rhetoric has the potential
of creating legal reality.50 As Lanham suggests, what people cannot get in
their daily life, they get elsewhere. For example, it can be obtained in a
rhetorical reality where ornament can be more honest than plainness, and
rhetoric sincerity is possible when “we become maximally self-conscious
about the artifice which rules us.”51 Language has the property of “rich
resources for play,” and style is the essential ability to draw connections
when constructing reality — the fundamental components of life.52
On the other hand, because emotions, feelings, and sentiments are
intangible, they cannot be verified empirically the way we can ascertain
that snow is white and coal is black. Hence, the rhetoric style can become,
46
See id.
47
Id. at 1597.
48
See HOLMES, THE COMMON LAW supra note 26, at 5 (“The felt necessities of the time, the prevalent
moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices
which judges share with their fellow men…”).
49
See LANHAM, supra note 33, at 28 (“From serious premises, all rhetorical language is suspect; from a
rhetorical point of view: transparent language seems dishonest, false to the world.”).
50
See David M. Zlotnick, The Buddha’s Parable and Legal Rhetoric, 58 WASH. & LEE L. REV. 957
(2001) (using Buddhism’s concept of relative truths to rethink constructed legal reality in
jurisprudence).
51
See Lanham, supra note 33, at 31.
52
Id.; KENNETH BURKE, THE PHILOSOPHY OF LITERARY FORM 139-67 (2d ed. 1967) (1941).
as Lanham and Burke suggest, the way to construct the reality of the
“heart” elements such as emotions or sentiments.53 In the Western
Shakespearean culture, a man in love may repeat that Juliet is the sun. In a
Buddhist culture, an Eastern poet sees his lover's face as the only reality
and the rest of the world as an illusion that fades away. (A Buddhist, the
poet tends to see his world through filmy eyes, with fog covering all four
corners of Earth and only dissolving when his lover's face comes into focus
before the lens of his blurred eyes. The Buddhist culture views life as an
illusion such that enlightenment means stepping out of such fog!) Standing
an ocean apart, both men seem to describe the same truth: the depth of their
emotion toward an object of love. Both draw connections to construct a
reality that is real to them and true to their feelings, but there is no way to
verify their declarations empirically, and so, under the Davidsonian
standard of “literal meaning,” the poetic truth may fail.54
Legal language may resist rhetoric, but the law is also the profession of
rhetoric.55 Wetlaufer suggests that the particular rhetoric embraced by the
law operates through the systematic denial that rhetoric is being used, and
this “rhetorical” denial is purposely made to build credibility.56 Wetlaufer’s
rhetoric of law, therefore, is the contrast in form to other dramatic,
novelistic, or poetic rhetoric that may characterize the creative arts. If this
is so, shouldn’t we watch out for potential falsehood, not in rhetoric, but in
the denial of rhetoric? Isn’t this an affirmation of Lanham’s theory that
ornament (in his example of a woman wearing makeup to draw attention to
her eyes) may be more honest than plainness (i.e., a woman without
makeup whose eyes are not looked to)? I think that seeing the multiplicity
and relativity of truths asserted in law rather than a “literal” approach
focusing solely on empirical validation is in effect a rethinking of
jurisprudence.
B. SOCIAL ACTIVISM AND THE ELEMENT OF PERSUASION
Persuasion and advocacy are also the business of law. In social
activism, an advocate can describe empirically that 1000 men have been
killed (empirically verifiable), and/or he can express, or add, his passion for
justice and his outrage at brutality by way of rhetoric (non-verifiable). Is
the latter less truthful or having less realism than the former, simply
because it deals with his honestly felt intensity of emotion? Isn’t it
disheartening to think of Martin Luther King, Jr.’s speech as merely a
clever tool of persuasion, a style of enticing support, and a less than truthful
rendition of his aspiration, passion, and desire for a better world? These are
dimensions of the intangible that cannot otherwise be expressed without the
freedom afforded by emotion-driven rhetoric.57 The creative literature
embraces the depiction of human emotions as dimensions of truth that
53
See id.
54
See Davidson, supra note 39.
55
See Wetlaufer, supra note 20, at 1554.
56
Id., at 1555.
57
Id.
should also be told in law. The recognition that there is something

inherently truthful about the fictitious world of literature and the creation of
art, even if it is the result of the striking of fantasy, gives room for
substantive rhetoric — not just a matter of style — to aid and promote
social activism in the law. The fear and suspicion of rhetoric should not be
directed at the truths about the intangible it portrays, but rather at the
purpose for which rhetoric is employed.
Accordingly, to serve the multi-dimensional search for truth, great
judges should be prepared to meet the indeterminate nature of language
expressed through the power of rhetoric. Great judges are often great
rhetoricians.58 But what value does the open texture of artistic language add
to the system of law? Posner raises the question, but he does not thoroughly
defend the benefit of literature to law beyond the offering of rhetorical
devices.59 He recognizes, as does Wetlaufer, that “rhetoric is important in
law because many legal questions cannot be resolved by logical or
empirical demonstration.”60 Rhetoric, therefore, helps create social reform.
(For example, Posner points out that 85 years after the Lochner decision,
the Supreme Court concluded that the case was wrongly decided. The
Holmes dissent, which became the core for such change of view, according
to Posner, was a memorable rhetoric masterpiece that challenged the
legitimacy of the status quo; otherwise, it would have been forgotten.)61
The striving for immortality in art and its examination of the relativity of
truth may just coincide with the ultimate objectives of law, and to the extent
rhetoric helps nurture these goals, its value should outweigh any fear
regarding possible prejudice, sensationalism, or deviation from truth.
Democratic disbursement of ideas will balance out and minimize those
risks.
C. LANGUAGE INTERPRETATION THEORIES

Certain language interpretation theories, when applied to law, can
enrich the legal advocate’s role and ability to communicate. For example,
although both Fish’s anti-formalism and Davidson’s “passing theory” of
interpretation confirm the incompatibility between law and art (these
theories are explored immediately below), these theories also point to the
overlapping, interdependent zone of interpretation that exists in both law
and art. Specifically, an “aesthetic approach” to legal interpretation may
change the outlook toward the function of persuasion in the law, and hence
may strengthen the role of social activism in the law.
Fish, for example, does away with the “literal meaning” of language,
advising us to go down the “anti-formalist road” and in effect abandon the
58
See RICHARD A. POSNER, Law and Literature: A Relation Reargued 72 VA. L. REV. 61, 81 (1986),
reprinted in LAW AND LITERATURE: TEXT AND THEORY 61, 81 (Lenora Ledwon ed., Garland 1996)
(“[S]ome great judges are distinguished rhetoricians.”).
59
See generally id.
60
Id. at 1383.
61
For an overview of Supreme Court rhetoric, see Beverly Wall, Supreme Court Rhetoric: Explorations
in the Culture of Argument and the Language of the Law (April 13, 1992) (unpublished Ph.D.
dissertation, University of North Carolina at Greensboro).
rigidity of author’s intention, because “intention themselves can be known

only interpretively, the meanings that follow . . . will always be vulnerable
to the challenge of an alternative specification.”62 The effect of persuasion,
according to Fish, will help accomplish the interpretation of the drafter’s
intent – that means intent must be interpretively established through the
effect of persuasion. In the process of interpretation, literal meaning will be
replaced with context (or what Fish calls the “interpretive communities.”)63
Thus, Fish prefers the boundless implications in interpretation, which
coincide with the richness, open texture, and contextual nature perceived in
artistic language. The anti-formalistic road does away with the rigid
expectation of finite, clear meanings, or the standard of pure rationality
often found in the general discourse of law. The preference for irrationality
— the state of being subject to persuasion — opens the gateway to artistic
language interpretation and enables the rendering of an “aesthetic
approach” to law, where the only constraint to interpretation is that set by
the contextual nature of language.
Likewise, despite his heavy semantic orientation, Davidson’s A Nice
Derangement of Epitaphs64 seems to refute the existence of the “first”
meaning of language -- one that is systematic, shared, and governed by
learned conventions or regularities, easily jumping out “first” at the
reader.65 Instead, Davidson hypothesizes the following: The interpreter
brings into the conversation a prior theory based on his belief of what the
speaker intends to say.66 But during the conversation, he adjusts and alters
his theory to deal with new evidence or the unknown (including Sheridan’s
Malapropism -- the ludicrous blunders of language that may paradoxically
spice up the conversation and invite originality).67 There, the interpreter
uses the “passing theory” to interpret meaning, which does not always
correspond to his linguistic competence, but is derived from his past
experience in communication.68 If communicators’ “passing theories”
coincide, there is common understanding.69 (The Davidsonian “passing
theory” is consistent with his “principle of charity” and, of necessity, must
be ad hoc. Simply stated, in Davidson’s “principle of charity,” the reader
charitably ennobles the author by assuming that no detail of the message is
mindless, accidental, or simply the result of a mistake or an oversight —
generously interpreting the text to give the author the best of intent.
Davidson’s “principle of charity” enables the ultimate end of perfect
communication — the social utility of preserving meaningful interaction or
the “good order” of our world. His “principle of charity” hypothesizes a
62
STANLEY E. FISH, DOING WHAT COMES NATURALLY: CHANGE, RHETORIC, AND THE PRACTICE OF
THEORY IN LITERARY AND LEGAL STUDIES 1-33 (1989); STANLEY E. FISH, IS THERE A TEXT IN THIS
CLASS: THE AUTHORITY OF INTERPRETIVE COMMUNITIES 303-21, 356-71 (1980).
63
See, e.g., FISH, DOING WHAT COMES NATURALLY: CHANGE, RHETORIC, AND THE PRACTICE OF
THEORY IN LITERARY AND LEGAL STUDIES, supra note 62, at 303.
64
DONALD DAVIDSON, A Nice Derangement of Epitaphs, in TRUTHS AND INTERPRETATION:
PERSPECTIVES ON THE PHILOSOPHY OF DONALD DAVIDSON 433-45 (Ernest LePore ed., 1986).
65
See id.
66
See id. at 441.
67
See id.
68
See id. at 442.
69
See id.
rational communicator, just as the law presumes the existence of a

“reasonable person.” Davidson concludes that communication is possible
because of the parties’ linguistic ability to converge on a “passing theory”
from time to time to enable speech transactions. There are no strict rules
that dictate this ability, which derives from wit, luck, wisdom, and rules of
thumb from private knowledge, enabling the interpreter to cope with and
absorb new data and new situations. Davidson advises us that this renewal
ability is not solely based on rigid shared conventions or a well-defined
shared structure that the interpreter can acquire and then apply. This may
explain why varied and individualized interpretations of literature are
possible, as the individualized possibilities are indeterminate. If Davidson
is correct, then it is this ad hoc, unique linguistic ability based on fluid prior
experience that enables readers to grasp, appreciate, and form
interpretations of artistic originality when the author dances with
language.70
D. THE "CHAIN NOVEL"/"CHAIN OF LAW" THEORY
Philosophers have also attempted to analogize literary critique
techniques to legal interpretation. For example, Dworkin believes that
when faced with two competing interpretations of literary text, the literary
reader chooses the one that makes the work better to him.71 Dworkin feels a
judge should do the same with statutes and constitutions. (Here, Dworkin
obviously has adopted Davidson's “principle of charity.”) In examining
literary and legal interpretation, Dworkin devises the “aesthetic hypothesis”
(applicable to art) and the comparable “political hypothesis” (applicable to
law).
Under Dworkin's “aesthetic hypothesis,” a reader interprets artistic
work to arrive at the best work of art. In Dworkin's view, when applied to
law, the study of literary interpretation may be helpful or necessary to
arrive at the best legal analysis, and to accord the legal text the best moral
result regardless of what the original intent might have been.72 Intent of the
drafter, according to Dworkin, is often an artificial construct by the
interpreter. Here, Posner bluntly criticizes Dworkin's blanket assumption
that literary interpretation should apply to law across the board, accusing
Dworkin of changing legislators into the "unacknowledged poets of the
world."73 Constitutions and statutes, according to Posner, should have
determinate meaning. Posner regards the Davidsonian “principle of
charity” as the "hypothesis of total coherence," which ennobles the author
by assuming that no detail of the artistic work is accidental or should
constitute a mistake or oversight. Posner concludes that our legislators do
not rise to the level of literary geniuses and should not be so ennobled.74
70
See id.
71
See RONALD DWORKIN, How Law is Like Literature, in LAW AND LITERATURE: TEXT AND THEORY
29, 32, 34 (Leona Ledwon ed., 1996).
72
Id. at 40-41.
73
See POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION, supra note 32, at 218.
74
Id.
Dworkin, nonetheless, views theory of art and theory of interpretation

as reciprocal, and hence his “aesthetic hypothesis” is dependent upon
artistic theories. For example, literary work must be critiqued in relation to
its literary genre. The restraint placed upon the “aesthetic hypothesis,”
reasons Dworkin, should be the coherence and integrity for the piece of art,
or its theoretical character.75 The literary theory may be the product of
critics, but the artist also envisions a tacit theory for her work; otherwise,
she would not have created it a certain way. But in the final analysis,
literary interpretation should be detached and independent of authors. "A
genuinely created world must be independent of its creator."76
Because of his view toward the role of artistic theory in interpretation,
Dworkin envisions a scenario where the artist interprets while creating, and
the critic creates while interpreting. Using the model of "group chain
writing" for the creation of a novel, Dworkin devises the "chain of law"
theory for legal interpretation. He analogizes the role of the legal
interpreter to that of a "chain artist" who must write the next chapter of a
novel, based on a previous chapter already written by someone else, during
which process she must interpret and create at the same time.77 The artist
has given up her freedom of devising from scratch and is bound by the
"precedential" effect of the previous chapter. Yet she must somehow
individualize such effect to her invention, which must follow the general
scheme. According to Dworkin, this framework explains how difficult
cases are decided in law—a continued application of principles to varied
sets of facts. In Dworkin’s view, interpretation of law must also reflect
value in political terms to arrive at the best principle or policy. Doctrinal
history serves as constraint for the "fit" of legal decisions. The integrity and
coherence of the system of law — how much of the prior law should
dictate results — will also help set boundaries. The interpreter will try to fit
his decision within the doctrinal history, but may also turn to his own
political theory for interpretation and creation. Hence, under Dworkin's
“political hypothesis,” the best interpretation depends on the judge's total
system of beliefs, based on both history and ideals. Legal interpretation,
therefore, is political, yet individualized. This “political hypothesis,” which
allows for skepticism in law, governs legal decision-making and renders the
process analogous to literary interpretation.78
Fish attacks the validity of Dworkin's "chain enterprise." He rejects
Dworkin's notion that the very first writer in the chain has already given up
her freedom by committing to the "chain." According to Fish, the writer is
both freed and restrained by the choices she has made. Thus, Fish affirms
the "author's function" — it is the author who renders credibility to the
work and affects its interpretation as well as its acceptance.79 Fish also
75
See generally Dworkin, supra note 71.
76
BARTHES, , supra note 23, at 142-47. See also DWORKIN, supra note 7, at 45-86, 176-224; MICHEL
FOUCAULT, What is an Author?, in TEXTUAL STRATEGIES: PERSPECTIVES IN POST-STRUCTURALIST
CRITICISM 141-60 (Josue V. Harari ed., 1979).
77
See Dworkin, supra note 71, at 39.
78
See id. at 44-46.
79
See generally FOUCAULT, supra note 76, at 141-60.
refutes Dworkin's idea that the drafter's intention is private property.80

Rather, in Fish's view, intention constitutes the form of conventional
behavior made possible by the general structure of the enterprise itself.
Reading and rereading cannot be independent of the author.81 Since
interpreting and assigning intention are simultaneous, when applied in the
legal context, Fish's theory of interpretation would place heavy emphasis
on precedence and the rule-of-law system, and necessitates the deciphering
of the drafter's original intent. Fish’s theory is inapposite to the literary art,
where, as the creative text is received, the experience of interpretation is
tailored to the particular reader and becomes personalized, and the author
often disappears.82
I have just summarized some of the scholarly and philosophical debates
regarding language interpretation that overlays both law and art, for the
purpose of landscaping the background for my hypothesis. In my view,
neither Fish nor Dworkin adds much insight into the interplay or
divergence between law and art in terms of the creative processes. Dworkin
"borrows" a literary model to discuss law, and Fish criticizes the model
chosen.
The model borrowed is indeed a simplistic one. In reality, the "chain"
novel is a method often adopted by commercial groups, most likely in
Hollywood, in order to meet the time and concept demand of the film
industry. One can criticize it as the mass production assembly line of
entertainment products. It hardly represents the norm, or the mental
processes of serious, thoughtful, and creative writers in the "mainstream
literary" genre. These writers may work in writers' groups, only for the
purpose of obtaining input to open new paths and sharpen the craft, but not
to co-write. The job of a creative writer has often been characterized as a
lonely, isolated internal journey (Dworkin recognizes this but still resorts to
the popular model of "chain" writing.)83 Further, Dworkin's "literary
theory" constraint is artificial and applies only to the written work of the
professional critics. Literary interpretation and appreciation is often a
personal experience. The individual reader, who is not a literary critic
writing for the New York Times, quite often silently brings into the process
of interpretation her beliefs, desires, sense of self, and sense of the world,
and projects herself onto the work. At times, she may not even care which
theory or genre characterizes the work she is enjoying.
V. THE INCOMPATIBILITY BETWEEN LAW AND ART

Having said that an “aesthetic approach” to law will stimulate
rethinking of jurisprudence by causing us to ponder upon our own fixation
80
See generally Stanley Fish, Working on the Chain Gang, 60 TEX. L. REV. 551 (1982).
81
See STANLEY E. FISH, DOING WHAT COMES NATURALLY: CHANGE, RHETORIC, AND THE PRACTICE OF
THEORY IN LITERARY AND LEGAL STUDIES, supra note 62, at 1-33; FISH, IS THERE A TEXT IN THIS
CLASS: THE AUTHORITY OF INTERPRETIVE COMMUNITIES, supra note 62, at 303-21, 356-71.
82
See BARTHES, supra note 23, at 142-47.
83
See Ronald A. Dworkin, “Natural” Law Revisited, 334 U. FLA. L. REV. 165 (1982); RONALD
DWORKIN, supra note 58; DWORKIN, Interpretive Concepts, in LAW’S EMPIRE, supra note 7.
with the empirical, one-dimensional truth, and having concluded that

rhetoric is helpful to persuasion and social activism that are part of law, I
must nonetheless stress the issue of constraint. This is due to the fact that
overall, law and art remain distinctively incompatible. The
cross-disciplinary travel, therefore, must be tempered with caution and the
constant awareness of disingenuous possibilities occasioned by the L&L
movement itself (which will be explored later). I will not attempt to
articulate what the rules of constraint should be, as that will be outside of
the contemplated scope of this Article. Here, I will focus instead on
identifying the properties of art versus law that justify the need for
constraint.
A. TWO DISTINCTIVE AND ANTAGONISTIC CREATIVE PROCESSES

Neither Davidson (a semanticist) nor Fish (a pragmatist) grasps the
principle element of serious artistic creation — the traveling of the
sensual/sensory path by someone who experiences, and is not just an
observer. This is because both Fish and Davidson are men of rationality,
although their theories may arguably reject a learned structure or rational
approach toward interpretation (i.e., the ad hoc "passing theory" of
Davidson and the anti-formalist road of Fish). As philosophers, they are
accustomed to rationalizing and generalizing in order to articulate their
respective theories. Likewise, Welaufer's description of rhetoric
commitments in law is the living proof of his rational approach to law—a
brilliant cerebral product that illustrates the very principle of clarity,
directness, and consistency, which he views as characteristics of the
rhetoric of law.84
But unlike law or philosophy, creative literature is not about arriving at
theories or a generalized conceptualization. In fact, in literary training,
generalization and conceptualization are bad habits that interfere with good
creative writing. "Show, not tell" is the motto of creative artists, and to that
I must add: "show by way of the senses and images, not by explaining or
narrating summarized facts." For example, the literary artist does not state
he is terribly depressed; instead, he describes how he cannot get out of bed
in the morning, how he raises a revolver to his temple, how he holds the
weapon, and how the coldness of the metal feels to his skin. The literary art
is a journey of sensual particularity, constructed through the spontaneous,
moment-to-moment, sense-memory impression or recollection of the
human experience, fully and freely utilizing, among other things, image
and thought association (as well as stream of consciousness).85 The
common observation that artistic writing is action-packed and utilizes
action verbs is just the natural result of the sense- and image-induced state
84
See Wetlaufer, supra note 20, at 1551, 1588.
85
“Sense-memory recollection” is an acting method championed by the actress Uta Hagen for theater
training. See UTA HAGEN WITH HASKEL FRANKEL, RESPECT FOR ACTING 52-59 (1973). Similarly,
Pulitzer winner Robert Olen Butler, Professor of Creative Writing at Florida State University, advocates
a moment-to-moment, subconsciously driven rendering of sense-memory recollection and sublimation
as an approach to fiction writing. Author’s interview with Robert Olen Butler, Professor of Creative
Writing, Fla. State Univ., in Lake Charles, La. (1998).
of mind and vision, whereupon the artist's eyes see movements and travel
with the fluidity of scenes.86 To journey the sensual/sensory path, the
literary artist must submerge herself in her subconsciousness and allow her
senses, vision, and emotions to lead her. The destination is often a surprise.
The rational mind is abandoned. Emotions, visions, and senses take over.
The mind only stays to synthesize for the purpose of utilizing language and
constructing sentences, and even so sentences are often spoken through
characters or narrators in their mood, state of mind, culture, and
perspective, as characters take on lives of their own separate from the
creator-artist. The reality created is analogous to Lanham's “rhetorical
ideal,” and characters are often described as "living outside" the author
during the creative process.87
My hypothesis above is not entirely without support from the existing
literature. Although the L&L scholars and philosophers have not focused
concretely and specifically on the antagonistic creative processes between
law and art, they have recognized the uniqueness of spontaneity and the
subconsciously driven nature of artistic creation, which together segregate
art from law. For example, as an avid reader, Posner recognizes the
subconscious impulses of the creative literature. He acknowledges that
literature is prompted by emotion, not by knowledge, and that the great part
of literary creation occurs unconsciously — invention often results in "an
unconscious blur," and painstaking revisions often do not follow a
conscious plan.88 Quite frequently, Posner points out, the author cannot
explain why she did what she did.89
Dworkin acknowledges, too, the spontaneous and boundless nature of
artistic creation. The meaning and nature of artistic works are not fixed, and
that is the characteristic of art.90 The artist's submergence into the
subconscious mind has also appeared in Davidson's work, and is
encompassed in a phenomenon called "James Joyce refining himself out of
existence." Although Davidson recognizes the spontaneity and bypassing of
rationality that artists like Joyce embrace, Davidson (being the philosopher)
tries to rationalize it within his semantic theory. He observes that "James
Joyce's conception of artistic freedom required that he not be the slave of
settled meanings, . . . established styles and tastes . . . ."91 The artistic
bypassing may also apply to grammar and spelling. The semanticist in
Davidson cannot stand this, so he rationalizes that the writer (unlike a
painter) cannot ignore what his readers already know or assume about the
86
JAMES BOYD WHITE, The Judicial Opinion and the Poem: Ways of Reading, Ways of Life, in LAW
AND LITERATURE TEXT AND THEORY, (Lenora Ledwon ed., Garland 1996).
87
An extreme example of this segregation between author and imagined characters is typified in the
classic short story, La Horla, by the French “king” of short stories, Guy de Maupassant. In La Horla, a
man’s imagination becomes his reality – an entity that is born out of his internal journey and descending
into madness. See GUY DE MAUPASSANT, La Horla, in THE NECKLACE AND OTHER SHORT STORIES
(Foachin Neugroshel trans., Dover Publications 2003).
88
See POSNER, supra note 58, at 69-71.
89
Id.
90
See DWORKIN, supra note 7, at 45-86, 176-224.
91
DONALD DAVIDSON, James Joyce and Humpty Dumpty, in PHILOSOPHY AND THE ARTS 1, 4 (Peter
French, Theodore Uehling & Howard Wettstein eds., 1991); DONALD DAVIDSON, INQUIRIES INTO
TRUTH AND INTERPRETATION 141-54, 183-98, 245-64 (1984); DAVIDSON, supra note 11, at 433-45.
words he uses, concluding that Joyce has not "refined himself out of
existence," but rather, by the “violent originality” of his language, has
simply “shifted the burden of understanding and insight onto his bemused
readers.” The creative energy is thus forced upon the reader by the writer's
abrupt and original use of language. By engaging his reader, the author
appears invisible, and the interpreter becomes involved in the creative task
— a recreation of the original creation! According to Davidson, Joyce only
doubles his distance from the reader. He does not really “refine himself out
of existence.”92
Lanham likewise recognizes the difference in the creative processes of
the two disciplines. Quoting Buffon, he describes a method of writing in
which:
[Y]ou (the writer) possess your subject fully, reflect upon it sufficiently to
see clearly the order of your thoughts, to put them in a continuous order of
which each point represents a single idea. And once you have taken up
your pen, it must follow from point to point without wandering . . . It is
this that makes a style rigorous, lends it unity, paces it and this alone will
render it exact and simple, balanced and clear.93
This kind of methodical writing is more indicative of the type of
rationality and logic that predominates legal work products, akin to
Wetlaufer's “rhetoric of law.” Having described this type of rational
writing, in defense of his “rhetorical ideal,” Lanham then poses the
question, "Who writes this way?"94 He points to a different kind of writing
in which the writer "depends on the suggestive powers of language,"
"surrender[s] [herself] to language,” and "shuttle[s] continually between a
nominalist universe and a realistic one."95 Lanham's distinction and
description of his "rhetoric reality" — where intuition becomes the new
form of objectivity and opaqueness may substitute for clarity, outlines the
periphery of the divergence between law and art.
Wetlaufer also sets out the premises that separate law from art. Judicial
opinions emphasize the rule of law, and seek closure and dispute resolution.
Literature, on the other hand, invites open texture, presents multiple voices,
and appeals to contingency, emotions and imagination. In legal writing, the
goal is to render black or white that which is gray. Literary writing, on the
other hand, is the pursuit of a vision, wherever it leads.96 Wetlaufer also
leads us to the divergence that exists in scholarship, pedagogy, and critical
studies between the two disciplines.97 Unlike legal scholarship, literary
scholarship does not seek to identify one true meaning, one objective truth,
or a right answer. Arguments in literary scholarship are usually less
92
See Davidson, James Joyce and Humpty Dumpty, supra note 91, at 10-12.
93
LANHAM, supra note 33, at 23.
94
Id.
95
Id.
96
97
See generally Wetlaufer, supra note 20.
coercive, less linear, and less exertive of step-by-step control over readers
and audience.98
Law is cerebral. Art is sensory. Law tells. Art shows. Law rationalizes.
Art feels. Law renders definitude. Art explores infinity. The
characterizations can go on and they may not be new. Artists are trained to
get in touch with their senses and show them in language. Lawyers are
trained to be rational and to will or pattern logic into language. “The
training of lawyers is a training in logic. The processes of analogy,
discrimination, and deduction are those in which they are most at home.
The language of judicial decision is the language of logic . . . . The logical
method and form flatter that longing for certainty and for repose which is in
every human mind . . . .”99
The key differences, therefore, lie principally in the creative processes.
However, the L&L movement of the past decades might have skipped the
incompatibility in order to make law and literature into a "happy couple,"100
or at least “an odd couple” with reconcilable differences!
The overlapping zone between law and art is possible, as identified by
the L&L movement, only because the artist must use language to put her
audience in fictive time and place and achieve what is known in the
performing arts as a sense of suspended disbelief, where "success . . . is
measured by the faithfulness of the imitation."101 The same test of
believability exists in the literary art. This explains why rhetoric, when
applied to law, is often characterized as the ethical appeal of truth -- the
advocate who persuades must win the audience's confidence in her
commitment and conviction, in the truth of her speech, and in the sense of
personal identification with the ills or threat of harm she seeks to eradicate.
While the goals may be shared, lawyers who are rhetoricians get there by
consciously arranging their discourse, a task that involves logic, rationality,
planning, and conceptualization. The artist, on the other hand, gets there by
surrendering to the impulses of the senses. The difference in the path
traveled is too fundamental to envision a happy marriage between the two.
The lawyer's path to successful persuasion is more like an accomplished
mission, a purpose set and achieved. In contrast, the artist's path to
persuasion — the attainment of believability in the great art — is natural
and spontaneous like a discovery. Art then becomes as broad as an attitude,
a way of living and working, an existence, a manner of traveling, and an
approach to creation that sets it far apart from structured legal thinking and
writing that can be planned and shaped ahead of its own birth.
Those who advocate an interdisciplinary approach to art and law often
resort to the observation that the two disciplines should naturally intertwine
98
For example, Wetlaufer describes the traditional Kingsfieldian or D'Amatoian legal pedagogue's
viewpoint as follows: Legal education should mean assault of the mind, exposing the students' sloppy
ways of thinking and lazy mental attitude, capitalizing on their mental and psychological insecurity, the
humiliation of not knowing the answer, and their anti-pleasure experiences. Wetlaufer calls this method
of law teaching the “pedagogy of assault” See id. at 1578-79.
99
Holmes, supra note 26, at 465-66.
100
THE HAPPY COUPLE: LAW AND LITERATURE (J. Neville Turner & Pamela Williams eds., 1994).
101
LANHAM, supra note 33, at 1, 18.
because the human mind does not work in concrete departmentalization.

Decision-making and information-processing are based on both emotions
and logic, and hence, the creative processes between law and art can be
shared. In the absence of scientific empirical studies that follow and record
the human mind as it creates legal products versus artistic products, as a
proposition, this argument seems to mix separate issues and concepts,
consisting of overgeneralization, assumptions, and misapplication of
logical reasoning, as diagramed below:
Proposition: Human = Emotions + Logic (where the Human represents
the Creative Process)
Assume: Emotions = Art
Assume: Law = Logic
Therefore, Human = Art + Law
Therefore, Creative Process = Art + Law
Therefore, Creative Process of Art = Creative Process of Law Æ
Erroneous Conclusion
James Boyd White makes an effort to bring law and art together in
what he calls the “poetics of law,” showing the striking similarity between
the ways the disciplines are taught.102 Here he is talking about critical
studies (the receiving end of art) and not creative writing (the origination of
art). He, however, forgets that the gift of art cannot be taught. Only the
craft of art and certain disciplines or exercises relating thereto can be
drilled. Law, on the other hand, is all learned behavior, although certain
lawyering talents, of course, like any other skills, depend on natural
inclination and God-given gift.
White also points out that the reading of both poetry and legal opinions
is done for conceptualization, external association and contrast,
acknowledgment of inconsistency and tension, openness to ambiguity and
uncertainty, and characterization of value and merits or demerits.103 These
are properties of the type of commitment to multiple voices and anti-
bureaucratic reading that ultimately lead to the ascertaining of aesthetic
value and truth. By naming these properties, White likens poems to judicial
opinions, and legal thinking to the literary experience.104 Assuming that all
of these common properties could empirically be proven, they are stated
from the recipient's standpoint (i.e., the interpretive process), not the
originator's standpoint (i.e., the creative process). It is important to
segregate and deconstruct the two processes. After all, an understanding of
the creative process as an independent segment in the human experience
will undoubtedly assist in the formulation of interpretation theories
necessary to both art and law.
102
See WHITE, supra note 86, at 5.
103
Id. at 9.
104
Id. at 6-7.
More importantly, the concepts and ideas articulated by White describe

the human mind consciously at work — from concretization to abstraction.
They do not, and cannot be used to describe the artistic creation at the
subconscious level.105 Great art derives from the subconscious pursuit of a
deeply felt vision to explore the complexity of life and of humans. The
pursuits of judges and lawyers are not left to the subconscious mind,
despite the obvious presence of intuitive judgment. Legal thinking and
legal products are guided by the rational deliberation of techniques and
goals. They are neither ad lib, ad hoc, nor spontaneous.
White's ultimate objective is to advocate that lawyers read law like
literature, looking for contextual relation between text and culture, between
speaker and audience. He is a pragmatist who does not believe in radical
interpretation or literal meaning. Instead, he views language as uncertain,
remade, and continuous. He does touch upon a common ground of law and
art: what he terms as the "many-voicedness" that occurs in the integration
of thought and feeling—the total common experience.106
B. THE DIFFERENCE IN OUTPUT OR WORK PRODUCT
Lanham's "opaqueness" observed in artistic language does not mean an
abandonment of elaborate, vivid particularity. (It simply means, inter alia,
the possibilities of multiple realities).107 Because of the need for
particularity and believability, the artist's use of language must be
particularized in spontaneous response to her sensual/sensory path, which
brings us to the following important distinction between artistic output and
legal output. Legal language is mapped out in a scheme of arguments and
logic, in accordance with Wetlaufer's rhetoric of law, while artistic
language is moment to moment. The best way to illustrate this is by
discussing specific examples. Obviously a novel is different from a court
opinion, so in the comparison, we will disregard substance. But let us focus
on the properties that account for the differences in output.
Posner cites the Lochner dissent108 as a masterpiece of rhetoric and an
illustration of how art could be incorporated into law for purposes of
persuasion. In Posner's view, the Lochner dissent is closer to the free style
of art than the legal restraint of law and probably would have received a
low grade in law school at the turn of the 20th century. It was not logically
organized, nor thoroughly researched. It did not follow the standard
methodology of legal reasoning which usually entails the sharp
identification of issues, scrupulous treatment of precedents, or tracing of
the majority opinion or factual record. However, none of these perceived
flaws affect the dissent's power of persuasion.109
105
Id.
106
See id. at 17.
107
See Lanham, supra note 33.
108
Lochner vs. New York, 198 U.S. 45, 74 (1905) (Holmes, J., dissenting).
109
POSNER, supra note 58, at 77-82.
Yet, under close scrutiny, the Lochner dissent is not at all a statement of
art, but at best an illustration of the art of law (using the terminologies and
definitional concepts that I set forth under Part II of this Article). To begin,
its author, Oliver Wendell Holmes, states a generalization: "This case is
decided upon an economic theory which a large part of the country does
not entertain."110 The statement, as Posner points out, exudes confidence
and serenity, immediately drawing readers' attention by putting them on the
defense, and building suspense by invoking their curiosity. Ethical appeal,
the plain style, the simple man's style are all rhetorical tools — the artifice
of sophisticated intellectuals who seek to persuade or Wetlaufer’s rhetoric
of law discussed earlier. Yet, Justice Holmes’s beginning sentence is
precisely what artists would avoid — the generalization of a concept
devoid of sense-memory recollection. Even with all of its strong points,
Holmes's opening sentence is not, and cannot be based on the senses.
Let us compare it with the opening of Nabokov's famous-infamous
Lolita, which consists of pure deliberate exploration of the senses, images,
and emotions, all in a moment-to-moment rendition: "Lolita, light of my
life, fire of my loins. My sin, my soul. Lo-lee-ta: the tip of the tongue
taking a trip of three steps down the palate to tap, at three, on the teeth. Lo.
Lee. Ta."111 The writing of Holmes is intellectual deliciousness, while
Nabokov's prose is sensual. Setting aside the obvious incompatibility in the
subject matter addressed, the generalization of Holmes's rhetoric versus
Nabokov's deliberate, elaborate exploration of the senses, sound, and vision
are irreconcilable and require different states of mind as well as different
preparation. For law, the preparation is rationalization and organization. For
art, it is subconscious submergence. At best, law may borrow from art its
appeal to emotions and playfulness with language achieved as a craft
consciously applied. But law cannot, and should not, borrow the creative
process from which springs the beauty that makes a piece of writing the
literary art.
A likely place where art and law can meet is the statement of facts in
lawyers' briefs. Teachers of courtroom and appellate advocacy stress the
need for the statement of facts to be persuasive, advising lawyers to use
innovative narratives, and to cast facts in the best light for their position,
although they must trace the "neutral" factual record. But even there, in the
freer format of the statement of facts, the moment-to-moment nature of art
cannot dictate the style for the factual summary demanded by law.
Returning to Holmes, even with all its rhetorical power and conscious
disregard of conventional legal writing principles, the Lochner dissent did
not exhibit the moment-to-moment approach found in the following
passage from Albert Camus’ L'Etrangere. Here, Camus depicts a senseless
murder on a sun-drenched Algerian beach, the site of a tragedy that he
describes as "the nakedness of man faced with the absurd:”112
110
Lochner, 198 U.S. at 75 (Holmes, J., dissenting).
111
VLADIMIR NABOKOV, LOLITA 9 (NY Penguin 1996).
112
I have chosen Camus’s "L'Etrangère" because of its heavy philosophical and moral orientation
(exploring issues of choices, coincidences, and the human conditions in the background of a criminal
[T]he Arab drew his knife and held it up to me in the sun. The light shot
off the steel and it was like a long flashing blade cutting at my forehead.
At the same instant the sweat in my eyebrows dripped down over my
eyelids all at once and covered them with a warm, thick film. My eyes
were blinded behind the curtain of tears and salt. All I could feel were the
cymbals of sunlight crashing on my forehead and, indistinctly, the
dazzling spear flying up from the knife in front of me. The scorching
blade slashed at my eyelashes and stabbed at my stinging eyes. That's
when everything begin to reel. The sea carried up a thick, fiery breath. It
seemed to me as if the sky split open from one end to the other to rain
down fire. My whole being tensed and I squeezed my hand around the
revolver. The trigger gave; I felt the smooth underside of the butt; and
there, in that noise, sharp and deafening at the same time, is where it all
started. I shook off the sweat and sun. I knew that I had shattered the
harmony of the day, the exceptional silence of a beach where I'd been
happy. Then I fired four more times at the motionless body where the
bullets lodged without leaving a trace. And it was like knocking four
quick times on the door of unhappiness.113
Such a moment-to-moment rendition of facts, focusing on senses and
imageries, has not been characteristic of the factual description that
typically makes its way into a statement of fact in a brief. The inherent
constraint of law consciously disregards and discards the
moment-to-moment description and concentrates, instead, on thrift and
emphasis.
Holmes, however, was known to be more daring with the aesthetic
aspect of his legal writing. In one of his speeches, he spoke of "a ragbag
full of general principles — a throng of glittering generalities, like a swarm
of little bodiless cherubs fluttering at the top of one of Correggio's
pictures."114 Here he was employing the craft of a creative artist by
bringing particularized images to life. But art is more than just the creation
of imageries. Where desired, the imageries connect to reactive emotions,
pushed to the limit, explicit or implied, leading to exploration of
dimensions not readily verifiable by science such as dream sequences and
even the unproven — an adventure the law may not be willing to embrace.
The imaginative and creative forces of legal argument, no matter how
brilliant, simply are curtailed and cannot be allowed to surpass the logical
structure of thoughts built on empirical truths; otherwise, the system of
regulated conduct breaks down. Art expands dimensions of imagination by
following impulses. Law restricts them to rationality and literal reality.
The difference between art and law is not one of fiction versus
non-fiction. The following passage of creative non-fiction writing,
illustrates the connection of images to reactive emotions laid bare, even if
justice system). On its face, this orientation seems to lend the work more readily to law. Yet, as Camus's
passage illustrates, similarities in contents and subject matter are totally irrelevant to the incompatibility
in the mental products.
113
ALBERT CAMUS, ESTRANGER, (Matthew Ward trans., First Vintage International Edition 1989).
114
OLIVER WENDELL HOLMES, JR., The Use of Law Schools, in COLLECTED LEGAL PAPERS 35, 42
(1920).
they appear irrational or suggestive of fantasia. Again, the

moment-to-moment rendition of facts observed below is unfit for the
summarized and expository style of a legal brief (unless the lawyer is
quoting to challenge the mental capacity of a subject):
I could not forget those big blooms of whitish, ivory petals, large
enough to fill up a porcelain winter melon soup bowl that could
feed five adults. My aunt would place the blue and white
translucent bowl out on the mossy porch to collect rainwater. She
would pick a fresh bloom, severing it from its grainy, long stem
with a pair of scissors. I could still hear the tiny, shrieking sound
of the blades, opening and closing in the midair. She would put
the bloom inside the bowl and place it on the rosewood table that
faced the ancestral altar. The scent filled up the room, lingering
upon white lace curtains and alongside the edges of dark
furniture that shone with lemon juice. Every day, my aunt
squeezed lemon on the wood and polished it with a damp cloth,
so I could smell lemon in the air, along with the sweet scent of
the fresh, white bloom. I always thought the dark furniture
looked so sad behind those closed shutters, sorrowful and stern
like the pair of eyes of my dead mandarin grandfather, staring
from his black and white picture down to the porcelain bowl
where the flower floated. I imagined the flower would turn into a
woman's face, smooth and white, with painted brows like two
slanting ink strokes. Like a faint stream of smoke, she curled
herself out of the bowl and materialized into my mother, with all
that long, black hair floating behind her back. She wore white
silk pajamas, the soft fabric reminding me of the velvety, light,
smooth texture of the white bloom petals. Her naked feet, rosy
and slender, raised above the floor as she floated through the
darkroom. She walked around me, circling me with the shadows
of her arms. And then my dead grandfather, too, would come
alive, walking out of his black-and-white frame to place his
dehydrated, freckled hand on my forehead, the long, curled
fingernails dragging across my temples like the touch of a dry
bamboo branch. And I would faint.
I avoided the altar room by spending my days in the front yard,

at times drunk in the sweet smell of those white blooms. I called
them my "wild magnolias." At the sound of the wind, they fell
onto the damp ground, and I picked them up and placed them in
a bamboo basket. I had a little shovel, and tried to replant those
blooms into a flower bed that followed the half-moon shape of
my bedroom window, directly underneath it. I dug and placed
their stems in the soft soil. When I saw earthworms, I would
throw the shovel and run back to the house, crying into my
palms. I did not like seeing those reddish brown creatures,
shaped like chopsticks, yet moving underneath the ground,

mixed in with the soft soil and crawling through the cracks
between my fingers. I did not want to see my shovel stabbing
them and cutting them in half, each half still convulsing as
though grasping for life. My tears flowed because I saw them
living and dying. I held my hands together and in the middle of
my palms, I saw a clear little pond. In it I could see shadows of
the reddish creatures wiggling in despair. Even in death, they still
moved, at least for a few minutes.
I cried into the pond of my palms because I knew with my

shovel, I had killed them.115
The common belief that good legal writing can be transferred to

creative writing and vice versa is a misconception. The more one writes
eloquently in accordance with the rationalized arrangement of thoughts to
produce the expository narratives and argumentative discourses required in
the law, the less one becomes accustomed to the instinctive,
moment-to-moment response to free flowing sense-memory impression or
recollection necessary for artistic creation. Fundamental writing crafts are
transferred and shared across disciplines, but only at a superficial level,
including elements such as the fluency of expressions, the mastery of
linguistic and semantic rules or propositions, word choices, and metaphors,
etc. But the creative journey is so different for the two disciplines that a full
and consistent engagement in law can incapacitate art, despite the common
skills with language. The analytical and logical properties of legal thinking
can condition the artist, interfering and blocking her sensory path or
subconscious submergence. When the interference is maximized, it
becomes a force of destruction.
C. THE RAISON D'ETRE OF LAW VERSUS ART

Artists seldom set moral boundaries for their vision. For example,
because of the sensory pursuit, literary writers often wander into the
domain of human sexuality and the torment of the soul, including moral
ambivalence, in order to explore deeper dimensions of human truths. This
is not necessarily done as a crusade, protest, or in the hope of sending any
kind of moral statement to society. Instead, it may just be the natural next
step of the path inside the senses and the resulting self-questioning and
testing as the artist gets into her art. The tension between society and the
artist's inner quest manifests itself in the development of First Amendment
case law, ranging from issues of privacy to the control of obscenity, where
the standard of law can very well be based on "seeing," and not on
"telling."116
115
Anonymous, The Coffins of Cinnamon, unpublished manuscript, on file with author.
116
See Jacobellis v. Ohio, 378 U.S. 184, 197 (1963) (Stewart, J., concurring) (“I know it [pornography]
when I see it, and the motion picture involved in this case is not that.”).
Posner agrees that art does not always preach nor aim to make readers
into better persons, recognizing, therefore, the dubious issue of morals in
art.117 For example, descriptions of Satan can borderline on blasphemy, and
artists are frequently drawn to the political extremes, stretching and
challenging norms, not necessarily because they want to preach, but simply
because of the artistic urge to pursue visions endlessly. A sense of amorality
can attach to artistic creation. Artists want admiration of their self-
expression and audience involvement in the reality of their vision, but a
moral end is not necessarily the raison d'etre of art. As overused as it has
been, the phrase "L'Art pour L'Art" (art for the sake of art) still has
significance in the realm of the creative field, serving to defend the
amorality of art.118 In contrast, the concept of justice is clearly at the core of
law. For example, Dworkin is adamant that politics is at the heart of law.119
With his advancement of the aesthetic hypothesis-political hypothesis
dichotomy, Dworkin frowns upon the intentionalists, criticizing them for
narrowing interpretation by restraining it to the author's intention (a
possible rival against his “aesthetic hypothesis”).120 Applying this to law
means that Dworkin would belittle the importance of legislative intent.
Posner appears offended by Dworkin's suggestion that literary
interpretation can work for constitutional or legislative interpretation. In
expressing his displeasure, Posner contributes to the contrast between law
and art by comparing legislative interpretation to literary critiques. Too
many differences exist between the raison d'etre of literature and the
enactment of legislation to permit fruitful analogies or disciplinary crossing
to broaden interpretation.121 Considering the incompatibility in the creative
processes and output discussed above, I wholeheartedly agree with Posner.
To illustrate, Posner contrasts the deciphering of the drafter's intention
in constitutional interpretation against the reading of a political or social
intention into a poem by Yeats.122 The same contrast can be made in
reading a patriotic motive into Chopin's Mazurka or Valse Polonaise for the
purposes of enjoying Chopin; neither Yeats nor Chopin created his art with
the intention to dictate principles or provide authoritarian guidance to
anyone. Nor do we read Yeats or listen to Chopin to find political
messages. On the other hand, the framers of the Constitution wrote words
117
See Posner, supra note 13; Posner, supra note 21.
118
Existentialist philosopher Jean-Paul Sartre suggests, however, that pure aesthetic is not an adequate
test for good literature. "[N]obody can suppose for a moment that it is possible to write a good novel in
praise of anti-Semitism . . . I’d like to know a single good novel whose express purpose was to serve
oppression, a single good novel which has been written against Jews, negroes [sic], workers, or colonial
people.” JEAN-PAUL SARTRE, WHAT IS LITERATURE? 64, n.1 (Bernard Frechtman trans., Philosophical
Library 1949) (1948). Thus, the morally vicious cannot be aesthetically great.
119
Dworkin raises the inquiry whether politics should be part of art or literature interpretation. See
RONALD DWORKIN, A Matter of Principle (1985), reprinted in How Law is like Literature, in LAW AND
LITERATURE: TEXT AND THEORY, supra note 71, at 29, 45. Fish says that it is not, concluding that art,
politics, and law unite in philosophy. See STANLEY FISH, DOING WHAT COMES NATURALLY: CHANGE,
RHETORIC, AND THE PRACTICE OF THEORY IN LITERATURE AND LEGAL STUDIES (Duke Univ. Press
1989), reprinted in Working on the Chain Gang: Interpretation in Law and Literature, in LAW AND
LITERATURE: TEXT AND THEORY 47 (Lenora Ledwon ed., Garland 1996).
120
See Dworkin, supra note 71, at 36-39.
121
See RICHARD POSNER, LAW AND LITERATURE 218-19 (1998).
122
See Posner, supra note 58, at 1363.
for reasons of asserting authority and guidance to society, and if we read

the Constitution, it is with a specific purpose that stands vastly apart from
the aesthetic experience. In literary appreciation, the author disappears.
Trying to "dig" the author's intentions out of the creative work may or may
not enhance our appreciation of it. In fact, when we interpret literature, we
are constructing our own view or projection of our reaction to it. But in the
legal context, conscious incorporation of readers' projections may wreak
havoc upon the system of law, in addition to the artificial and irresponsible
nature of the effort. For example, substituting the judge's mind for the
legislator's intent has farther-reaching implications than imprinting the
interpretation of the literary critic upon a poem. Contrary to the legal
decision-maker, the literary critic is not following precedents. The literary
critic’s interpretation can be a new product of creativity that stands on its
own in the literary discourse.
Artists are not necessarily theorists who want to form normative or
prescriptive authority for life. In art, the author is frequently "demoted" to a
mythical function.123 Readers are not concerned about the author as a
regulator of conduct, but instead, individualize their experience
independent of the author's voice. The voice of law, on the other hand,
commands obedience and disregards individual preferences, creating either
an invisible "reasonable man" who exemplifies proper conduct in tort, or an
"imaginary bad man" who considers the legal consequences of his
actions.124 The world of law is one of authority and hierarchy, which in
Walt Whitman's view, is the antithesis of democracy.125 At the same time,
the ultimate rewards of law versus those of art are also vastly different. The
general voice of law is oriented toward specific application and vindication,
whereas the value or immortality of art lies in its popularity or universality,
i.e., its capability of meaning different things to different people.
D. THE POTENTIALLY MISLEADING NATURE OF THE L& L MOVEMENT OF
THE PAST DECADES
To the extent the L&L movement casts judicial opinions and legal
writing as a literary experience, it can be misleading and create the risk that
the literary artistic creative process will be misunderstood. This
misunderstanding can predispose legal drafters to disregard the constraint
of law, enable lawyers to belittle the restraining nature of the legal process,
and distract them, not only from the purpose of closure in dispute
resolution, but also in the development of precedents for future application
in a common law system. In judicial drafting, it may mean the unnecessary
creation of dicta that confuse future litigants and undermine the doctrines
of justiciability or case-in-controversy. The L&L movement thus brings
risks, as well as benefits, into the law. To understand the risks, it is
worthwhile to explore several observations about the movement.
123
See Barthes, supra note 23, at 142-47. See also Michel Foucault, supra note 76, at 141-60.
124
See Holmes, supra note 7.
125
See WALT WHITMAN, Preface to the 1855 edition of Leaves of Grass, COMPLETE POETRY AND
COLLECTED PROSE 17-18(3d prtg. 1982); Wetlaufer, supra note 20, at 1597 n.166.
First, L&L proponents recognize the "incidental nature" of the

movement. Posner agrees that the movement resulted from the
displacement of students and teachers of the humanities into law, the
decline in the job market for the humanities, and the increase in law school
enrollment and size of law faculties. Proponents of the movement have
included students of literature who turn to law school and end up teaching
courses in law and literature as law professors.126 Posner also attributes the
movement to the trend of "deconstructing" literature, resulting in doubt
expressed against the objectivity of law.127 Efforts to "deconstruct" legal
language occasion the opportunity to view legal text as literary text,
resulting in the discovery of "a reciprocal relationship” between the two.
128
But again, this result represents the perspective of the critic, interpreter,
or reader—not the creator.
Second, emphasis is misplaced regarding the interplay between law and
literature. One culprit was the phenomenon of "Law in Literature" (the
sources of which include Antigone and The Merchant of Venice, as well as
the frequent treatment of legal and jurisprudence themes in fiction,
including John Grisham's commercial popular novels).129 Posner also
mentions two other phenomena that tie law to fiction in society, and which
he correctly excludes from his L&L comparative analysis: the "occasional
fiction writing by lawyers designed to illuminate real legal problems,"130 or
the description of legal events by fiction writers. But mutual illumination is
not the primary objective of law or art. This, Posner readily agrees to.131 If
one really wants to know about law, one does not seek out a novel on
lawyers. If one really wants to know about immortal aesthetic value that
survives the Darwinian test of time, one does not seek judicial opinions,
which in essence, are resolutions of time-sensitive disputes. "Law in
Literature," or vice versa, does not at all compare the creative processes.
(The L&L movement started by James Boyd White is said to consist of two
strands: Law in Literature advocates the “Great Books” approach,
whereupon lawyers are encouraged to study legal subjects and legal issues
in the classics of Western literature. Law as Literature uses the theoretical
practices of literary criticism as a medium to analyze legal texts and
explore the rhetorical style of law.132 Neither strand speaks to the
comparative creative processes between law and art.)
Third, it is true that law influences art, and vice versa, but those
influences do not mean the two disciplines commingle. Any discipline can
126
See TEREE E. FOSTER, But is it Law? Using Literature to Penetrate Societal Representations of
Women, in BEYOND PORTIA: WOMEN, LAW AND LITERATURE IN THE UNITED STATES 310 1997).
127
128
See ELIZABETH TOBIN, Imagining the Mother's Text: Toni Morrison's Beloved and Contemporary
Law, in BEYOND PORTIA: WOMEN, LAW, AND LITERATURE IN THE UNITED STATES, supra note 126, at
142.
129
See PETER ROBSON, Images of Law in the Fiction of John Grisham, in TALL STORIES? READING LAW
AND LITERATURE 201 (John Morison & Christine Bell eds., 1996).
130
HILDE HEIN, Law and Order in Art and Law, in LAW AND LITERATURE PERSPECTIVES, supra note 32,
at 109; POSNER, supra note 58, at 1354.
131
132
See HEIN, supra note 130; GARY MINDA, POSTMODERN LEGAL MOVEMENTS – LAW AND
JURISPRUDENCE AT CENTURY’S END 149 (N.Y. Univ. Press 1995).
influence another discipline, as the total knowledge about the human

experience is by its nature interdisciplinary. Hilde Hein explains the impact
of law on art when the U.S. Supreme Court was asked to define "parody" in
connection with copyright disputes.133 In such a case, a court was asked to
instigate or adopt an aesthetic notion and to give it a social and legal
texture. Conversely, Hein speaks of how literary concepts such as “point of
view, framing, emphasis, elliptical reference, and allusion by omission”
have their place in both art and law.134 But again, these are tools of craft,
only demonstrating what one can do with language. These narrative and
rhetorical techniques do not shed light on the creative process itself. Lastly,
Hein points out how artistic works such as Uncle Tom's Cabin and The
Jungle influenced the shaping of law.135 This may confirm the social value
of artistic works -- there is something inherent in the creative literature that
invites readers to participate in the responsibility of historical judgment and
to view the creative literature as a force for institutional and social
reform.136 Posner calls this the "literary indictment of legal injustice,"
whereupon literature picks up where law falls apart or creates gaps or
deficiencies.137 So, law and literature may ultimately serve humans the
same way, but this is not to say that the process of creating Uncle Tom's
Cabin was the same as, or analogous to, Cardozo's opinions.
Like others in the L&L movement, Hein advocates an "aesthetic order”
to law. She goes as far as to state that poetry should be a positive model for
law, without explaining how this is to be accomplished.138 As an example,
she notes the use of rhetoric in a question raised by feminists in the context
of examining anti-date rape law -- "which part of NO is it that you don't
understand?"139 Again, Hein's "aesthetic order" refers solely to the use of
language by highly skilled and inventive practitioners of craft. The creation
of the literary art requires much more than a conscious exercise of language
skills and cleverness. It requires expression of the genuine timbre of
emotions and a sensual and sentimental outlook toward the recording of the
human experience, both of which are absent or excised from legal
language.
Fourth, over the past few decades, a parallel and convenient
relationship has existed between the L&L movement and other scholarly
trends (e.g., the deconstruction movement) as well as other social
developments in America. For example, the L&L movement has afforded
feminists the opportunity to reexamine gender relations from a historical
background140 or in the contemporary context,141 while combining their
133
See HEIN, supra note 95, at 118.
134
Id.
135
See HEIN, supra note 130.
136
See Posner, supra note 58; Brook Thomas, Cross Examination of Law and Literature (Cambridge
Univ. Press 1987). See also HEIN, supra note 130.
137
138
See HEIN, supra note 130, at 119.
139
Id. at 122.
140
See Lynne Marie DeCicco, Women and Lawyers in the Mid-19th Century English Novel, in 25
STUDIES IN BRITISH LITERATURE (Edwin Mellen Press 1996). For a broader perspective of rethinking
feminist jurisprudence based on theories of language beyond the contours of the L&L movement, see
love of literature with their love of law.142 On the other hand, the
excitement of feminists over the prospect of using art innovatively to
improve feminist legal education and to enhance understanding of issues
such as motherhood and child abuse is an implicit recognition of the
existing "emotionless" nature and status of law.143
Fifth, how law and art meet in the commercial world of entertainment
is a case of human nature: our love, taste and flare for the sensational, the
unusual, the profane, and the absurd. Authors who surveyed historical legal
development note that the fascination with sex and violence narrated in the
law was documented as early as the 18th century — passages from 18th
century court transcripts were at times oddly reminiscent of novels.144 One
author called these coincidences the “fictions of law,”145 a title that
paradoxically combines two mutually exclusive concepts.146 The
commercialization of law has blurred the line between the legal and literary
experience for an unknowing consumer public, while the television era and
the growth of the entertainment industry have increasingly intensified the
public’s interest in the sensational. Trials have become a source of audience
fascination, and law can be as notoriously exciting as action novels, veiling
the mundane nature of the majority of the practice. The fascination has
transcended national boundaries — the world has always held certain
curiosity for affluent America's criminal justice system and its various
social issues such as race or gender conflicts, which have become the topic
of artistic treatment even internationally since the 1950s and 1960s.147
Last, as Posner recognizes, the players of the law are competent
professionals, eloquent and skilled in language and orator performances,
but are not necessarily the geniuses of literature.148 Art, in its truest sense, is
not a field for the mediocre; nor does it offer a comfort zone for the
well-trained. Infusing the standard of one into the other can easily result in
unintended disingenuousness. The L&L movement has the potential either
to hurt or to help the public image of lawyers and the profession as they are
portrayed in more popularized art or entertainment avenues. In summary,
the L&L movement should aim to perfect the art of law by incorporating
the craft of art into law, rather than undertaking the incongruent task of
reconciling and balancing the incompatible creative processes of art and
law.
Bruce A. Arrigo, Rethinking the Language of Law, Justice, and Community: Postmodern Feminist
Jurisprudence, in RADICAL PHILOSOPHY OF LAW: CONTEMPORARY CHALLENGES TO MAINSTREAM
LEGAL THEORY AND PRACTICE 88, (David S. Caudill & Steven Jay Gold eds., Humanities Press 1995).
141
See TOBIN, supra note 128, at 140.
142
See BEYOND PORTIA: WOMEN, LAW AND LITERATURE IN THE UNITED STATES, supra note 126.
143
See MELISSA HARRISON, A Time of Passionate Learning, Using Feminism, Law, and Literature to
Create a Learning Community, in BEYOND PORTIA, supra note 126, at 327.
144
See BETH SWAN, FICTIONS OF LAW: AN INVESTIGATION OF THE LAW IN 18TH CENTURY ENGLISH
FICTION 13 (1997).
145
See id.
146
See id.
147
One example was Sartre's “Le Putain Respectueuse,” which has been criticized as a poor attempt by
an outsider-philosopher to depict America and its racial relations in stereotypic terms. See JEAN PAUL
SARTRE, The Respectful Prostitute, in NO EXIT AND THREE OTHER PLAYS 249 (L. Abel trans., Vintage
Books 1949).
148
VI. THE CHALLENGE OF THE “PARADOX”: ART AND CRAFT IN

“NARRATIVE” LEGAL SCHOLARSHIP AND “PERSONAL
STATEMENT” ADVOCACY
The incompatibility between law and art, especially in their respective
creative processes, makes any combination thereof a true paradox.
Overcoming the paradox becomes the internal challenge for those who
wish to combine the two disciplines. In my view, those challengers take on
a “double life.”
There emerges in legal scholarship and advocacy the proper place
where such paradoxical challenge must be undertaken. The past decades
have witnessed certain innovative additions to traditional legal scholarship,
one of which is the experimental “narrative” form, which includes both
real-life stories, fictionalized stories, and personal statements based on the
author’s experience, similar to creative nonfiction in the literary art.149 The
“how it was for me” style injected into legal writing such “personal” things
as authors’ “narratives,” “anecdotes,” “perspectives,” and “feelings.” In the
case of the truly brave, this personalized approach has even made its way
into these challengers’ lectures and classroom teaching, all at the great risk
of rejection and alienation.150 Some of the recognized heroes and heroines
of the “narrative” movement include Patricia Williams, Catharine
MacKinnon, Martha Fineman, Mari Matsuda, Derrick Bell, and Richard
Delgado. For purposes of this Article, “storytelling” and “narratives” are
used interchangeably to include all of these newer forms of legal
discourse.151
For example, Professor Joyce A. Hughes describes herself in print as
the “first Black woman to be a tenure-track law professor at any white law
school.152 She elaborates on her family history: her father was the “first
Black professor golfer to reside in Minnesota”; her mother was the “first
Black girl to attend Minnesota Girl State” and the “first Black, male or
female, to be on a Minnesota television news broadcast.”153 She then
discusses her experience of being interviewed at the Dorsey Whitney law
firm in Minnesota.154 Her personal story ends with the personal message of
rhetoric and inspiration when she states that the P.S. to her remarks stands
for “Perseverance and Self-Assessment” and “Personal Success.”155 In
149
See, e.g., Jean Love, The Value of Narrative in Legal Scholarship and Teaching, 2 J. GENDER RACE
& JUST. 87 1998) (commenting on female law professors’ papers written in narrative tradition as a lead,
in order to relate author’s own story).
150
See Richard Delgado, Storytelling for Oppositionists and Others: A Plea for Narrative, 87 MICH. L.
REV. 2411, 2412 (1988). According to Delgado, “professors who teach in nonstandard fashion
sometimes evoke strong reactions of rejection from their students.” Id. at 2412 n.7 (citing Derrick Bell,
The Price and Pain of Racial Perspective, STAN. L. SCH. J. May 9, 1986, at 3. ) The same risk exists
with legal scholarship.
151
See, e.g., Shauna Van Praagh, Stories in Law School: An Essay on Language, Participation, and the
Power of Legal Education, 2 COLUM. J. GENDER & L. 111 (1992) (discussing the narrative and
storytelling movements in legal writing and teaching).
152
Joyce A. Hughes, Black and Female in Law, 5 RUTGERS RACE & L. REV. 105, 107 (2003). The
author uses the uppercase/lowercase style to refer to ethnic identity.
153
Id. at 105, n.1-2.
154
See id. at 111.
155
Id. at 115.
another example, the narrative form enabled readers of legal writing to

personalize and identify with the painful experience of a trailblazer, one of
the first female law professors in the ladder and culture of legal
academia.156 There, the narrative form uniquely authenticated what the
author describes as her “greatest gain” — “a feeling of validation,” which
supported her conclusion that “women and minorities did not succeed by
accident.”157 Likewise, Susan Estrich begins her Yale Law Review article
with her personal story of being a rape victim.158 William Eskridge, an
openly gay male law professor, readily acknowledges the value of telling
stories within the traditional mode, as well as the “rupturing” of societal
status quo.159 Patricia Williams wrote books of stories based on her life
experience as a black woman who is a “victim,” “observer,” and
“collaborator” of discrimination.160 The pioneer storytellers have embraced
the narrative form as the equivalent of eyewitness testimony without the
formality of an oath. To them, the pages of law reviews turn into an
authentic courtroom performance without the anxiety or contradiction of
cross-examination. Storytelling has also reaffirmed the place of rhetoric
communication in the law.161
The injection of storytelling techniques into legal scholarship has
enabled important historical documentation and written debates within the
legal community, especially for race and gender relations. Examples
include the “Latino story” at Harvard Law School, in which students, over
several years, attempted to campaign for the hiring and retention of “Third
World” or “colored” law professors.162 The Harvard story instigated a
limited trend of other “stories out of law school” or “stories in law school”,
which advocate the power of storytelling in legal education.163 As such,
storytelling has also been associated with, typecast as, and limited to the
struggle for gender, racial and other so-called “subversive group” reform in
the law and within legal academia. Cast in a more general light, storytelling
has been viewed as part of a larger intellectual movement expressing deep
dissatisfaction with, and rebelling against, the rigid abstraction of legal
scholarship.164 The tenet of the L&L movement is incorporated to support
the argument that emotions, empathy, and human stories should be woven
into the tapestry of legal scholarship.
156
See Ellen K. Solender, The Story of A Self-Effacing Feminist Law Professor, 4 AM. U. J. GENDER
SOC. POL’Y & L. 249 (1995) Ellen Solender was Professor Emerita of Law at Southern Methodist
University at the time her article was published.
157
Id. at 263.
158
See Susan Estrich, Rape, 95 YALE L.J. 1087 (1986).
159
See William Eskridge, Jr., A History of Same-Sex Marriage, 79 VA. L. REV. 1419 (1993).
160
See generally PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS (1991); PATRICIA J.
WILLIAMS, THE ROOSTER’S EGG (1995).
161
See Richard K. Sherwin, A Matter of Voice and Plot: Belief and Suspicion in Legal Storytelling, 87
MICH. L. REV. 543 (1988); Conti, supra note 7.
162
See Luz E. Herrera, Challenging a Tradition of Exclusion: The History of an Unheard Story at
Harvard Law School, 5 HARV. LATINO L. REV. 51 (2002).
163
See, e.g., Van Praagh, supra note 151; Elizabeth J. Samuels, Stories Out of School: Teaching the
Case of Brown v. Voss, 16 CARDOZO L. REV. 1445 (1995).
164
See Toni M. Massaro, Empathy, Legal Storytelling, and the Rule of Law: New Words, Old Wounds?
87 MICH. L. REV. 2099 (1989).
In any event, over time, the narration of personal accounts and

storytelling have helped to legitimize and popularize the use of the “first
pronoun” in legal discourse, even in cases where the author has not fully
utilized the “narrative” or “personalized experience” style and form.
Examples can be seen in articles dealing with the interrelation between law
and American pop culture,165 and other pieces suggesting new positions
advanced by the writers, beyond the traditional analysis and review of case
law. Overall, when the realism of the “first and third pronouns” is used in
storytelling, such literary craft enables legal scholarship to take on the
voice of literary protagonists, rather than the traditionally restrained tone
and style of a Ph.D. thesis.
More specifically, the narrative form has been associated with feminist
methods,166 primarily because feminist accounts describing rapes, battered
women, and other stories by and about women are most effectively told in
narratives.167 Further, right or wrong, feminist jurisprudence may tend to
regard the traditional voice of law as the male voice, and hence, feminist
narratives serve the purpose of injecting a different voice into legal
scholarship.168 In race relations, the narrative form has been referred to as
“the voice of color.”169 The underlying notion is that women and people of
color — the “oppressed” — should be able to write in a different voice
because of differences in perspectives that cannot be readily comprehended
by the mainstream, unless the experience is personalized.170 More recently,
the narrative form has also become a forum for scholarship by Asian
American writers, a group that stereotypically has remained less vocal. The
narrative form illuminates the Asian American story, attracting writers who
have broken out of their “silent minority” shell,171 and who have
successfully combated the cultural stereotype that Asian Americans resist
the publicity of personal experience and prefer the communal spirit,
thereby avoiding outsiders’ attention to the individual self. Richard
Delgado calls this trend the “legal stories” of the “outgroups,” (referring to
their existence outside of the mainstream voice, which is described as the
“ingroup”). In Delgado’s words, the trend creates a “counter-reality” to
165
See, e.g., Nancy B. Rapoport, Dressed for Excess: How Hollywood Affects the Professional Behavior
of Lawyers, 14 NOTRE DAME J.L. ETHICS & PUB. POL’Y 49 (2000) (discussing the portrayal of lawyers
in films).
166
See Carrie Mendel-Meadow, Feminist Legal Theory, Critical Legal Studies, and Legal Education or
The Fem-Crits Go to Law School, 38 J. LEGAL EDUC. 61, 62 (1988); Daniel A. Farber & Suzanna
Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 STAN. L. REV. 807, 810-11
(1993).
167
See Kathryn Abrams, Hearing the Call of Stories, 79 CAL. L. REV. 971 (1991) (examining feminist
narrative scholarship as distinctive form of critical legal discourse).
168
See CAROL GILLIGAN, IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN’S
DEVELOPMENT (1982).
169
See, e.g., Alex M. Johnson, Defending the Use of Narrative and Giving Context to the Voice of
Color: Rejecting the Imposition of Process Theory in Legal Scholarship, 79 IOWA L. REV. 803, 804,
806-07 (1994) (criticizing Professors Farber and Sherry’s attempts to evaluate Narratives and Critical
Race Theory legal scholarships against conventional standards).
170
See Farber & Sherry, supra note 166, at 809-10.
171
See, e.g., Robert S. Chang, Toward an Asian American Scholarship: Critical Race Theory, Post-
Structuralism, and Narrative Space, 1 ASIAN L.J. 1 (1994); Anthony S. Chen, Beyond Modernism and
Postmodernism: Working Notes Towards an Asian American Legal Scholarship, 4 ASIAN L.J. 97 (1997).
“subvert the ingroup reality” typified by “scholarly, footnoted articles.”172

The “counterstorytelling” by the “outgroup” supplements or counteracts the
mainstream story. An “outgroup,” according to Delgado, is any group
whose consciousness is other than that of the dominant one.173 The
counterstory is usually a negative one, told by outsiders who are viewed as
the complainers — the dominant ingroup sees the glass as “half full,” while
the ethnic minority outgroup sees the glass as “half empty.”174
Delgado argues that since the underdogs of today can be the pioneer
reformers of tomorrow, at the point of status quo, they must be allowed to
resort to innovation in order to initiate changes. Stories, parables,
chronicles, and narratives are powerful means for destroying mindset —
“the bundles of presuppositions . . . against a background of which legal
and political discourse takes place.”175 Delgado calls this phenomenon the
“eyeglasses we have worn a long time. They are nearly invisible; we use
them to scan and interpret the world . . . .”176 These tools become our eyes
and we can no longer take them off and examine them, because it means
undoing ourselves. Other pioneer legal writers, such as Derrick Bell, view
this new approach to legal writing as a way to “shatter complacency and
challenge the status quo.”177
As early as 1989, Delgado had already stressed that in order to be
effective, the storytelling approach of the outgroup had to be non-coercive
and designed to “invite the reader to suspend judgment,” listen to the
message, and then decide whether to welcome the writer’s version of truth
as the real truth.178 Narratives must be “insinuative, not frontal,” and should
offer a contrast to the “coercive” discourse that characterizes traditional
legal writing.179 Here, I think that Delgado is obviously referring to the
sense of “suspended belief” that measures the success of the creative arts—
the audience watching a stage performance or a movie must be made to
suspend their disbelief in order to get into the story and believe that it is
real, at least during the performance. The goal of creating the audience’s
suspended disbelief is the core climactic essence of the performing arts.
Delgado thus recognizes and adopts the power of “willing suspension of
disbelief”180 as the standard for measuring effective narrative legal writing,
equating the standard governing the new form of legal writing to the
traditional standard applicable for the evaluation of the creative art. He
goes on to conclude:
172
Richard Delgado, Rodrigo’s Final Chronicle: Cultural Power, the Law Reviews, and the Attack on
Narrative Jurisprudence, 68 S. CAL. L. REV. 545 (1995); Delgado, Storytelling for Oppositionists and
Others: A Plea for Narrative, supra note 150, at 2411-12.
173
See Delgado, supra note 150, at 2412, n.8.
174
See id. at 2412-13.
175
Id. at 2413 (emphasis added).
176
Id.
177
Delgado, Storytelling for Oppositionists, supra note 150, at 2414.
178
Id. at 2415.
179
Id.
180
Id. at n.22 (citing David O. Friedrichs, Narrative Jurisprudence and Other Heresies: Legal
Education at the Margin, 40 J. LEGAL EDUC. 3 (1990)).
Stories humanize us . . . Telling stories invests text with feeling, gives

voice to those who were taught to hide their emotions. Hearing stories
invites hearers to participate, challenging their assumptions, jarring their
complacency, lifting their spirits, lowering their defenses.
Stories are useful tools for the underdog because they invite the
listener to suspend judgment, listen for the story’s point, and test it against
his or her own version of reality. This process is essential in a pluralist
society like ours, and it is a practical necessity for underdogs: All
movements for change must gain the support, or at least understanding, of
the dominant groups, which is white.
Traditional legal writing purports to be neutral and dispassionately
analytical, but too often it is not. In part, this is so because legal writers
rarely focus on their own mindsets, the received wisdoms that serve as
their starting points. . . . The supposedly objective point of view often
mischaracterizes, minimizes, dismisses, or derides without fully
understanding opposing viewpoints. Implying that objective, correct
answers can be given to legal questions also obscures the moral and
political value judgments that lie at the heart of any legal inquiry.181
Delgado further notes, “[s]tories enable us to begin to reform thought

structures by means of which we create our world...The task is akin to
making a bed while still lying in it . . . .”182 Finally he warns, “[t]here are
dangers in storytelling, particularly for the first-time storyteller . . . the
hearer of an unfamiliar counterstory may reject it, as well as the storyteller,
precisely
183
because the story unmasks hypocrisy and increases discomfort . .
..”
The danger indicated by Delgado presents a double burden.
Unsuccessful storytelling means that both the story and the storyteller are
rejected.184 This danger is overcome if the advocate-writer can create a
sense of suspended disbelief and empathy in her audience.185 If the story is
accepted, the storyteller or actor may get the Oscar for credibility as well.
Accordingly, literary and dramatic or rhetoric skills, the exercise of craft,
genuineness, and authenticity all become crucially important in the art of
storytelling in the law. Readers of legal storytelling must believe and
respect, no more and no less than a literary reader who is drawn into a
novel and cannot put it down, submerging herself in the plot, identifying
herself with certain characters, and interpreting text as it relates specifically
181
Delgado, supra note 150, at 2440-41. Accord Robin West, Jurisprudence as Narrative: An Aesthetic
Analysts of Modern Legal Theory, 60 N.Y.U. L. REV. 146 (1985); Jeff Adams, THE CONSPIRACY OF
THE TEXT: THE PLACE OF NARRATIVE IN THE DEVELOPMENT OF THOUGHT (Rom Harré ed., 1986);
Patricia Meisol, The Feminist Takes on the Fundamentals of Law, L.A. TIMES, Oct. 7, 1988, at V8
(quoting West: “We need to flood the market with our own stories until we get [the] point across.”)
182
Delgado, supra note 150, at 2439 n.83.
183
Id. at 2440 n.87 (emphasis added).
184
Accord Deborah L. Rhode, The Profession and Its Discontents, 61 OHIO ST. L.J. 1335, 1353 (2000)
(“The problem is compounded by the disincentives to raise it; a common response is to shoot the
messenger. Women who express concerns learn that they are ‘overreacting’ or exercising ‘bad
judgment.’”).
185
See, e.g., Abrams, supra note 167, at 972 (“[F]eminist narrative scholars cannot rest contented with
the ambivalence of their audience.”).
to her. The story serves as a bridge to those who share a similar vision, or
as a means for inciting change among those who do not. Without the
audience’s suspended disbelief, the actor, the novelist and the “narrative”
legal writer all fail. It is in this highly demanding and successful creation of
the audience’s suspended disbelief that law and art meet.
Put differently, in the process of communication and interpretation, the
end result of persuasion must be accomplished via the creation of a change
in the attitude and belief system of the message recipient. In a way, the
storytelling must somehow fill a conscious or subconscious need and desire
to know in the readers, no matter how unpopular, unfamiliar, or unexpected
the story may seem to be. If the story told does not meet this emotional
need or invoke this intellectual curiosity, the story will fall upon deaf ears
and the task of advocacy will not be accomplished.
At the same time, the narrative must be restrained with a sense of
mission and adherence to truth. For example, feminist narratives may
contain certain aesthetic value and features like creative nonfiction, yet
they cannot lose sight of the overall political agenda or their social
objectives. As more literary techniques are employed in the writing of legal
narratives and statement-of-fact advocacy, greater constraint must be
exercised to preserve the analytical component of legal scholarship.186
Storytelling must be accompanied with legal analysis and/or concrete
suggestions for legal reform, and must be tested against standards of
truthfulness and typicality. At the same time, the writer-advocate must be
ready to challenge those standards and create new ones in order to change
the status quo, and to abolish or rewrite unchallenged assumptions taken as
justifications in themselves.187 In Delgado’s words, “the task is akin to
making the bed while still lying in it.”188 But in the end, the aesthetic order
of law must prevail as the total ambiance for written work, and the craft of
fictional art must be tempered with the value of truth, because law reviews
are not meant to be novels, no matter how heart-wrenching or beautifully
created. Legal writing is, after all, about the relative search for truth and the
mission of law. “Creative” legal writing is about new statements of
intellectual honesty in stretching the limits of acceptability and normative
formation. As suggested by Mary Coombs, at the end of the day, outsider
scholarship is judged in its ability to advance the interests of the people of
that discrete community.189 It is “art for that discrete society” and not “art
for the sake of art.”
186
See id. at 1016-17.
187
See Farber & Sherry, supra note 166 (evaluating standards for assessing storytelling legal
scholarship, including validity issues and truthfulness). But see Jane B. Baron, Resistance to Stories, 67
S. CAL. L. REV. 255 (1994) (challenging Farber and Sherry’s views as accepting the status quo standards
of truthfulness as valid, which is the very assumption the narrative form seeks to abandon). Cf. Johnson,
supra note 169 (criticizing Farber and Sherry’s attempts to evaluate Narratives in Critical Race Theory
legal scholarships against conventional standards).
188
Delgado, supra note150, at 2439 n.83.
189
See Mary I. Coombs, Outsider Scholarship: The Law Review Stories, 63 U. COLO. L. REV. 683, 713
(1992) (noting that in judging quality of outsider scholarship, one must include the analytical
component).
Where the narrative consists of personal experience, it should

constitute and carry equal, if not more, weight than footnotes, due to the
authenticity of the author’s tale. It should also enhance credibility and add
realism to both the argument and analysis that flow from the discussion.
The value of the narrative form should be its truth value and, as such,
should be a resource, not a liability, for the legal community as well as for
social justice.190 Nonetheless, just as in the case of the inherent suspicion
bestowed upon rhetoric as a matter of dramatic style, the emotionalism and
personal subjectivity of the author’s perspective in the narrative form runs
against Lanham’s “anti-rhetoric” of law. Storytelling, therefore, has been
considered a risky scholarly endeavor, at best constituting the type of
anecdote that does not occupy a privileged or dignified place in the law.191
One can argue that in its best form and intent, the narrative style should
bring realism, vividness, and authenticity to legal scholarship and advocacy
(except that storytelling in legal scholarship does not have the “sworn
under oath” characteristics of witness testimony). The argument does not
change the reality of today’s legal academia: storytelling puts the writer
under the “scrutiny of credibility” test, and the writer must overcome an
inherent presumption of incompetence, intellectual laziness, and lack of
neutrality in order to gain the respect of his or her peers — a burden
perhaps equally serious, if not even more onerous than the penalty of
perjury. To achieve the sense of suspended disbelief in the targeted
audience, the legal writer must undo the paradox between law and art and
bring them into harmony. She must become the performing artist who
delivers her words onto the page, and dances with them, while believing in
their authenticity and truth.
VII. CONCLUSION AND A FINAL THOUGHT

In summary, the merging of law and art via the internal journey that
produces the creative process is next to impossible, due to the striking
differences in these two separate paths that can be antagonistic to each
other. Yet, it is feasible to develop an “aesthetic approach” to law by
elevating standards of persuasive techniques to the level expected of the
creative arts — producing a sense of suspended disbelief in the audience
without violating the truth and order-seeking mission of law — a
combination of rhetoric and restraint, a reconciliation between flare and
thrift. This “aesthetic approach” to law can only be achieved via the
borrowing of craft or techniques, not by merging or altering the two
internal mental creative processes. Where the craft is exercised so artfully,
the spirit of art can become the spirit of law. This is the challenging future
of the “narrative” form of scholarship and storytelling advocacy.
190
See Gary Chartier, Comment, Righting Narrative: Robert Chang, Poststructuralism, and the
Possibility of Critique, 7 ASIAN PAC. AM. L.J. 105, 130 (2001).
191
See Mark Tushnet, The Degradation of Constitutional Discourse, 81 GEO. L.J. 251, 260 (1992)
(observing that narratives in legal scholarship are like anecdotes told by talented journalists). See also
David A. Hyman, Lies, Damned Lies, and Narrative, 73 IND. L.J. 797 (1998) (providing an overview of
anecdotal evidence and the consequences of narratives in the legislative arena as an empirical
foundation for evaluating the “boom” of the narrative form in legal academia).
But even outside the realm of storytelling as advocacy, there is a need

for lawyers and judges to better understand and master the craft of the
literary art and language theories, without embarking upon the unrealistic
and misplaced ambition of creating novels in law reviews, appellate briefs,
or judicial opinions. The need exists because the current state of legal
scholarship may call for improvement. The veteran jurist and prominent
proponent of the L&L movement, Richard Posner, recently spoke
sorrowfully and critically about the current status of legal scholarship.192
The context for his lament was his disappointment with the current law
review system — a system run by law students, not peer review, and
motivated by law students’ stylistic and formalistic concerns rather than by
substantive legal expertise.193 In such a system, observes Posner, the author
frequently suffers through numerous rounds of students’ stylistic revisions
that make little sense and bear little relevance to the substantive quality of
scholarship or the artful use of language.194 “[T]oo many articles are too
long, too dull, and too heavily annotated, and . . . many interdisciplinary
articles are published that have no merit at all,” Posner complains.195
Curiously, his exasperation directed at the law review system happens to
reflect the increasing lack of “art and craft” in the creation of legal articles,
especially in hybrid, interdisciplinary pieces. These pieces result from
various “Law and Something” movements, in which Posner himself has
ardently participated. The uncertainty in the future of narrative legal
scholarship, coupled with the need for improvement in the quality of legal
writing as a whole, should serve as an impetus for the rejuvenation of the
L&L movement toward a fresher horizon.
In summary, judicial interpretation and decision-making, as well as
legal writing and advocacy, should all rest on the total human experience.196
If creative literature influences legal decision-making and legal writing, it
will do so as part of the multi-forces of life that shape the judge's and the
lawyer’s minds and pens. Works falling under the L&L movement will
always have a presence and a place in legal and interdisciplinary scholarly
literature.197 Yet, such an influence by virtue of the natural forces of society
is not dominant enough to overcome the integral distinction in the creative
processes between law and art; nor is the influence sufficient for lawyers to
conclude that the muse of art has crept into the domain of law, leaving her
distinctive footsteps and lending her creative process to judicial drafting
and legislative interpretation. She can lend her craft to judicial opinions to
a limited degree, as Holmes and Cardozo have done, but that's about all!
At the originating point, law and art stand vastly apart due to
antagonistic creative processes. At the receiving end, in the process of
192
See Richard A. Posner, Against the Law Reviews, LEGAL AFFAIRS, Nov.-Dec. 2004, at 57.
193
See id.
194
See id. at 58.
195
Id.
196
See Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 HARV. L. REV.. 417 (1899).
197
See, e.g., PETER BROOKS, TROUBLING CONFESSIONS: SPEAKING GUILT IN LAW AND LITERATURE
(2000) (using law and literature to explore the place of confessions within Anglo-American
criminology).
interpretation, an “aesthetic approach” may enrich the law and even

occasion the rethinking of jurisprudence. In between the creative process at
one end and the interpretive process at the other end, the element of
persuasion will inject art into law, via the lending of craft, and only to the
degree necessary to enable social activism by ardent advocates. The
“narrative” form is but one form of legal scholarship and advocacy, and can
become the future “meeting point” — the “Roma capital” — for law and
art. To further this goal, expanded courses on law and literature should be
part of the legal curriculum. When used, narratives and personalized
accounts must be done well, with the distinguished craft of literature and
the type of authenticity that can bring about a skeptical audience’s
suspended disbelief.
But the most practical, day-to-day effect of my hypothesis regarding
the law-art distinction is one point that I have not yet mentioned and want
to use as the ending highlight for this Article. The effect of my hypothesis
regarding the antagonistic nature of the “law versus art” creative processes
should be most felt in the career orientation of future lawyers or artists or
those lawyers who are still hoping for their first break in literature.198 Law
should not be the refuge for those who are not strong enough to take the
risks of art. Just because rhetoric and social issues can straddle the two
domains does not mean that great artists are practicing law, or that great
jurists are writing literary novels. Just because Crime and Punishment adds
to our knowledge of the legal system does not mean Dostoevsky has
become a legal scholar, nor does it mean that James Madison is a novelist.
199
Neither art nor law is a discipline in which one can dabble and hope to
achieve greatness. Those who claim they are successfully combining both
are reducing the pursuit to a hobby, or a means of making a living, no more
ennobling, no less demeaning than writing a commercial murder thriller or
running a restaurant. The incompatibility in the creative processes demands
forceful choices and utmost devotion to one field to the exclusion of the
other. Any illusion that Art is Art and Law is Law but the two can meet
successfully in one life as “dual professions,” in most cases, is the mere
consolation of one who is blessed with the skills and talent for dancing with
words, but cannot make a commitment to a full-time artistic career nor take
its consequences. To protect the sanctity and integrity of the
sensual/sensory path to her art, which, under my hypothesis, is antagonistic
to the generalization and rationalization of the lawyer's mind, even the most
gentle artist would probably agree with Shakespeare: "The first thing we
do: Let's kill all the lawyers."200
198
I am not talking about another John Grisham here, but rather another John Steinbeck, who took on
many blue-collar jobs before he received the Nobel Prize.
199
Farber & Sherry, supra note 166, at 845.
200
WILLIAM SHAKESPEARE, THE SECOND PART OF HENRY VI 100 (William Montgomery ed., Penguin
Books 2000) (1967).

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ARTICLES

LAW IS LAW AND ART IS ART AND

† Assistant Professor of Law, University of Denver Sturm College of Law.

hermeneutics — a school of legal scholarship said to be needed to improve

paradoxical challenge, because legal writing is not about what seems

II. SOME INTRODUCTORY NOTIONS: ART, LAW, LANGUAGE,

III. DEFINITION AND CONCEPTUAL FRAMEWORK

system allows room for the judge’s “synthetic” decision-making — under

B. “ART,” “ART,” AND “ART”

C. VARIOUS MEANINGS OF RHETORIC AND ITS RELATIONSHIP TO “STYLE”

rhetoric as being “discipline-specific.”36 One such species of rhetoric is the

IV. THE DEFENSE OF ART IN LAW: POSSIBILITY OF AN

A. RHETORIC, THE SHAPING OF JUDICIAL OPINION, AND THE ELEMENT OF

should also be told in law. The recognition that there is something

C. LANGUAGE INTERPRETATION THEORIES

rigidity of author’s intention, because “intention themselves can be known

rational communicator, just as the law presumes the existence of a

Dworkin, nonetheless, views theory of art and theory of interpretation

refutes Dworkin's idea that the drafter's intention is private property.80

V. THE INCOMPATIBILITY BETWEEN LAW AND ART

with the empirical, one-dimensional truth, and having concluded that

A. TWO DISTINCTIVE AND ANTAGONISTIC CREATIVE PROCESSES

because the human mind does not work in concrete departmentalization.

More importantly, the concepts and ideas articulated by White describe

they appear irrational or suggestive of fantasia. Again, the

I avoided the altar room by spending my days in the front yard,

shaped like chopsticks, yet moving underneath the ground,

I cried into the pond of my palms because I knew with my

The common belief that good legal writing can be transferred to

C. THE RAISON D'ETRE OF LAW VERSUS ART

for reasons of asserting authority and guidance to society, and if we read

First, L&L proponents recognize the "incidental nature" of the

influence another discipline, as the total knowledge about the human

VI. THE CHALLENGE OF THE “PARADOX”: ART AND CRAFT IN

another example, the narrative form enabled readers of legal writing to

In any event, over time, the narration of personal accounts and

“subvert the ingroup reality” typified by “scholarly, footnoted articles.”172

Stories humanize us . . . Telling stories invests text with feeling, gives

Delgado further notes, “[s]tories enable us to begin to reform thought

Where the narrative consists of personal experience, it should

VII. CONCLUSION AND A FINAL THOUGHT

But even outside the realm of storytelling as advocacy, there is a need

interpretation, an “aesthetic approach” may enrich the law and even

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