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LEGAL THEORY

BLOOMIAN POETICS IN LAW SCHOOLS

Kenji Yoshino (1994). ‘What’s Past is Prologue: Precedent in Law and Literature,’ Yale Law Journal, Vol. 104, pp. 471-510.

It may appear at first sight that this paper by Kenji Yoshino is on Roe v Wade (1973) or about abortion rights in general but it is not. It is actually an attempt to apply Harold Bloom’s theory of poetic creation, ‘the anxiety of influence,’ in the context of what in the law is known as stare decisis – i.e. the doctrine of precedents.1 It is related to a strand in the ‘law and literature’ movement in American law schools that reads legal texts as though they were literary texts. The basic assumption in the law and 1 There is a vast literature on stare decisis in legal theory. What most theorists who invoke this term are trying to explain is its persistence as a legal mechanism that mediates between the forms of stability, continuity, and change in the common law. One of the earliest papers on this theme was by Dean Roscoe Pound (1941). ‘What of Stare Decisis?’ Fordham Law Review, Vol. 10, No. 1, pp. 1-13. For a more recent introduction to the concept of stare decisis from a member of the judiciary, see Justice Lewis F. Powell Jr. (1990). ‘Stare Decisis and Judicial Restraint,’ Washington and Lee Review, Vol. 47, No. 2, pp. 1-10. Justice Powell of the Supreme Court is mainly preoccupied in this lecture with the need to proceed with modesty and caution when the Court attempts to overturn precedents given that it might affect the Court’s legitimacy as an institution. The whole question of how ‘binding’ previous decisions of the Supreme Court are however is not the same for all types of cases and areas of the law. Brian C. Kalt (2004), for instance, differentiates between the different levels of adjudication in ‘Three Levels of Stare Decisis: Distinguishing Common Law, Constitutional and Statutory Cases,’ Texas Law Review, Vol. 8, pp. 277-281. Needless to say, the Courts have more leeway in overturning precedents in constitutional law. A detailed analysis of the basic assumptions in stare decisis, the difference between binding and non-binding precedents, and the relationship between ‘precedential courts’ and ‘decisional courts’ is available in James Hardisty (1979). ‘Reflections on Stare Decisis,’ Indiana Law Journal, Vol. 55, No.1, pp. 41-69.

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literature movement is that the fundamental distinction in terms of critical method is between reading ‘for’ the law in literature and reading the law as literature. In the former approach, literary critics identify legal themes in literary texts and examine them to see if there are any insights therein that are worthy of being shared with members of the legal community. In the latter approach, law professors use their literary skills to interpret legal texts from a stylistic point of view.2 The reason that they do this – especially in the context of judicial opinions – is that it makes it possible for them to identify the rhetorical construction of the law. It turns out that judicial opinions – including, most famously, Justice Holmes’ dissent in the Lochner case (1905) - cannot be understood merely in terms of their formal construction and longevity without seeking recourse to a theory of rhetoric.3 That then is the give-and-take between law and literature, and the main justification for this movement, in American law schools. Literary critics try to ‘augment’ the legal consciousness – as Harold Bloom might put it - by identifying, explicating, and interpreting literary texts that can serve as a source of valuable insights for lawyers. Law professors, for their part, will try to imbibe the techniques of stylistic analysis from those who interpret poems for a living. They will however read judicial opinions as though they were poems rather than mainly read poems like literary critics do.4 Given that Harold Bloom is the leading literary critic of his generation, it is not surprising that his colleagues at Yale should attempt

2 For an introduction to law and literature, see C. R. B. Dunlop (1991). ‘Literature Studies in Law Schools,’ Cardozo Studies in Law and Literature, Vol. 3, No. 1, pp. 63-110. Jack M. Balkin and Sanford Levinson explain how law and literature can be situated within legal humanities as a whole in ‘Law and Humanities: An Uneasy Relationship,’ in Yale Journal of Law and Humanities, Vol. 18, pp. 155-187.3 See Judge Richard A. Posner (1986). ‘Law and Literature: A Relation Reargued,’ Virginia Law Review, Vol. 72, pp. 1351-1392. Judge Posner’s interest in the stylistic analysis of judicial opinions is developed further in Richard A. Posner (1995). ‘Judges’ Writing Styles (And Do They Matter?), University of Chicago Law Review, Vol. 62, pp. 1421-1449. 4 Harold Bloom explains what it means to read a poem in The Art of Reading Poetry (New York: Perennial, 2004). See also Harold Bloom (2000). How to Read and Why (London: Fourth Estate), passim.

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to learn from and then deploy his theory of the anxiety of influence to read both literary texts and legal texts.5 The application of the reading techniques, or the revisionary ratios in Bloomian poetics, makes it possible to de-familiarize our received notions of a judicial opinion and its dependence on precedents as a structuring device.6

The main difficulty in doing so however is that Bloomian poetics is not easy for even literary critics to master - let alone faculty from another area altogether; there is however no harm in attempting to do so. Amongst the law professors who were the first to understand the significance of Harold Bloom’s theory of poetry as a point of entry into the doctrine of precedents in law schools were Paul Gewirtz, David Cole, and Kenji Yoshino. Since these are attempts at pioneering work the reader should not quibble about the finer points of methodology, but focus on whether such attempts are worth the effort and in identifying precisely what sort of insights are at stake in doing so. I say this because only the revisionary ratios of ‘clinamen’ and ‘apophrades’ (the latter in a negative form) are usually invoked when Bloomian poetics is applied in the context of legal theory. I invoke the ratio that Blooms terms ‘tessera’ in this essay in addition to those listed above. Harold Bloom however demonstrates how the entire revisionary schema can be applied – as he does – to read poets like Robert Browning, John Milton, and Ralph Emerson in his A Map of Misreading. Nonetheless, insofar as these law professors can be shown to be doing something important within the purview of the law and literature movement, those who come after them within the tradition of

5 The embryonic version of Bloomian poetics is available in Harold Bloom (1997). The Anxiety of Influence: A Theory of Poetry (New York and Oxford) and an application of the theory to actually read poems can be found in Harold Bloom (2003). A Map of Misreading (New York and Oxford: Oxford University Press). 6 There is already a tradition of applying theories from outside the law to the concept of stare decisis. So, for instance, both communications theory and cost-benefits analysis have been applied to explain the different dimensions of stare decisis. Martin Shapiro (1972). ‘Toward a Theory of Stare Decisis,’ Journal of Legal Studies, Vol. 1, pp. 125-134 is an attempt to apply communications theory to the concept of stare decisis. The cost-and-benefits approach is best exemplified in Jonathan R. Macey (1989). ‘The Internal and External Costs and Benefits of Stare Decisis,’ Chicago-Kent Law Review, Vol. 65, pp. 93-134.

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literary and legal scholarship can make whatever improvements in methodology or choice of texts that they deem appropriate. In fact, that is how Kenji Yoshino relates his own paper to those of Paul Gewirtz and David Cole who were the first to deploy Bloomian poetics in law schools. Yoshino sees himself as being both influenced by, and improving in however modest a way, previous attempts to deploy Bloomian poetics at Yale Law School. In this paper Kenji Yoshino attempts to compare the function of the anxiety of influence in literary texts with a judicial opinion like Planned Parenthood v Casey (1992). This case set itself the task of coming to terms with a dominant legal precedent like Roe v Wade (1973), but could not because it found itself flooded by its precursor text. Yoshino refers to this textual phenomenon as a negative form of apophrades. This is the case for both the legal text and literary texts that he invokes which try unsuccessfully to improve upon strong precursors like William Shakespeare’s Hamlet and The Tempest.

The Justices of the U.S. Supreme Court had a chance to overturn the Roe precedent in 1992, but did not do so. Why not? That is the question that Kenji Yoshino tries to answer. There is however a difference between trying to answer such a question within mainstream approaches to the law as opposed to attempting an answer within the law and literature movement. In mainstream approaches it is just a question of counting the votes. If those who want to overturn a precedent cannot get at least five votes on their side from the nine members, the precedent rules even though precedents are not binding in the Supreme Court to the extent that they are in the lower courts. Why then does the Supreme Court say so much about the importance of precedents in its opinions? Why doesn’t it boldly overturn whatever it feels like overturning? While there is a vast literature on these types of controversial cases in law schools that explain the rationale for why the Supreme Court did not overturn the Roe decision, Yoshino concentrates in this paper mainly on the rhetorical construction of the both the joint opinion of the Justices and the Chief Justice’s dissent in terms of how the ephebe relates to a precursor’s text. The precursor text, as should be obvious from this line of argument, is the

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Roe opinion of 1973. The joint opinion is in favour of stare decisis while the dissent is not.

In other words, though precedents are not absolutely binding in the Supreme Court from a theoretical point of view, in practice it is not easy to get rid of a dominant precedent because of the doctrine of stare decisis. That is why an analysis of the actual opinions in which the Justices flirt with the possibility of overturning a precedent does not lead to any aggressive moves on their part as we might expect to be the case.7 Why is this important? It is important because Bloomian poetics might lead us to expect that the ephebe will necessarily try to escape the clutches of his precursor. An uncritical application of Bloomian poetics will lead to the wrong prediction on our part. We might expect the Supreme Court to get involved in a power struggle with previous Courts and overturn as many precedents as it has the political capital for in order to dominate in the here-and-now, but that hardly ever happens. The Supreme Court has an enormous sense of restraint. The impression however that such a thing is happening, or is about to happen shortly, is related to the fact that the few precedents that do get overturned get much more publicity than the any number of cases that are quietly reaffirmed along the model of stare decisis. So if that is what an empirical analysis of court opinions will show to be the case, then, what is the justification in invoking Bloomian poetics in which the focus is on the ephebe rather than on the precursor? That then is the question which confronts Kenji Yoshino and he is not in denial about this problem in invoking a theory of influence from literary criticism where the poets – unlike the members of the judiciary – simply fight it out for supremacy. 7 What is really at stake in this context is whether the courts will lose their legitimacy if they give up on stare decisis. That is why when they do, in fact, overturn precedents; they pay as much deference to the concept of stare decisis as possible. This amounts to asking, in other words, whether the appellate courts take their own past decisions seriously or not and how exactly they go about identifying the circumstances in which they will depart from precedent. See for instance Henry P. Monaghan (1979). ‘Taking Supreme Court Opinions Seriously,’ Maryland Law Review, Vol. 39, pp. 1-26. For a recent treatment of this theme, see Judge Richard A. Posner (2008). ‘The Supreme Court is a Political Court,’ How Judges Think (Cambridge and London: Harvard University Press), pp. 269-323.

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How Kenji Yoshino sets out to re-calibrate Bloomian poetics is what will explain whether or not the theory of the anxiety of influence will be able to generate insights about how any given judicial ‘Bench’ relates to its precursors. The term ‘precursor’ has to be qualified here because it is not necessarily the precursor’s text that is in the locus of anxiety. It could very well be the literary persona of the precursor as well though this element is not formally addressed in Bloomian poetics. Bloom does briefly mention the role played by John Milton in this context in a way that is reminiscent of T. S. Eliot – a Bloomian precursor in relating ‘tradition to individual talent’ and who mentions the role played by John Donne and the texts of the metaphysical poets as a source of his own anxiety of influence.8 When Bloomian poetics is invoked in the context of judicial opinions, however, the persona of the precursor must be taken into account as should be obvious in the case of Justices like John Marshall, Oliver Wendell Holmes Jr., Louis Brandeis, Benjamin Cardozo, Felix Frankfurther, Earl Warren, and many others who were the dominant jurists of their generation.9 So, broadly speaking, even if we do not agree with every single point that Kenji Yoshino will make in this paper, we have to concede that he is onto something right. So, for instance, this kind of analysis can be relevant even in the context of how policy is determined by an institution and how it relates to both its dominant precursors and precursor texts. Just to be sure that Kenji Yoshino is doing something worthwhile in terms of his critical approach – whatever his conclusions may be - let us compare his trajectory for the Supreme Court with that of the Federal Reserve to determine its validity.

Some of the Bloomian questions that we might want to ask which are of relevance in recent years to the Fed’s policy direction might be the following: How do members of the Federal Open Market Committee relate to a precursor text like Walter Bagehot’s Lombard Street in the wake of 8 T. S. Pearce (1969). T.S. Eliot (New York: Arco), Literary Critiques Series, p. 26.9 A good exposition of the role played by these members of the judiciary is available in G. Edward White (1988). The American Judicial Tradition: Profiles of Leading American Judges (New York and Oxford: Oxford University Press).

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the financial crisis? 10 In what ways is Ben Bernanke subject to the ‘anxiety of influence’ in relation to a precursor like Benjamin Strong of the New York Fed? Hafer’s contention is that if Benjamin Strong had lived on, he would have known what to do about the Great Depression. This is too much of a coincidence; it is almost as though Ben Bernanke set out to complete what was ‘unrealized’ in Strong’s life in the context of the Great Depression. This trajectory is akin to the Bloomian revisionary ratio of tessera in which the ephebe tries to complete what the precursor could not.11 Ben Strong and Ben Bernanke don’t merely share a name; they partake of similar patterns of thinking along with an abiding passion to save the economy from the effects of a depression.12 Or, to invoke another instance from central banking, how is Mark Carney of the Bank of England affected by his precursor Montague Norman? Is Mark Carney’s preoccupation with ‘stability’ in the monetary and financial system really ‘reducible’ to the financial crisis of 2008? Is it not also related to the fact that Montague Norman had a nervous breakdown when he was Governor of the Bank of England and had to be shunted off to Europe to recover?13 Could it really be the case that Mark Carney does not reflect on the difference between the stability attributed to the Governor of the Bank of England and to the Bank of England itself? That is why it is important to note that Mark Carney does not really aspire to be in the locus of stability as such. Stability is what he wants for ‘systemically important 10 See Neil Irwin (2013). ‘Lombard Street, Rule Britannia, and Bagehot’s Dictum,’ The Alchemists: Inside the Secret World of Secret Bankers (London: Headline Publishing Group), pp. 26-34.11 Rik W. Hafer (2005). ‘Strong, Benjamin (1872-1928),’ The Federal Reserve System: An Encyclopaedia (Westport, CT & London), pp. 361-362. See also Liaquat Ahmed’s profile of Benjamin Strong in, ‘A Safe Pair of Hands, The United States: 1914,’ Lords of Finance: 1929, The Great Depression, and the Bankers Who Broke the World (London: William Heinemann, 2009), pp. 45-60.12 Ben S. Bernanke (2000). Essays on the Great Depression (Princeton: Princeton University Press).13 Liaquat Ahamed mentions this problem in the first page of his ‘Introduction,’ to the Lords of Finance: 1929, The Great Depression, and the Bankers Who Broke the World (London: William Heinemann, 2009), pp. 1-22 and profiles Montague Norman in pp. 23-33.

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stakeholders’ and institutions in the banking and financial system. That is however not the locus that he seeks as Governor of the Bank of England. What he really seeks is to be in the locus of ‘meta-stability’ – i.e. a Governor who can suture the gap, if required, between the locus of the Governor and the locus of the Bank of England. That is the element of ‘excess’ which Mark Carney seeks to generate in terms of mental health to stabilize the financial system as a whole. 14

How did Mark Carney realize the enormity of the demands that would be made on him? Is it not because Montague Norman had a nervous breakdown and the matter had to be kept a secret from the international media lest it destabilize the markets? How different would it be if Montague Norman did not have a nervous breakdown? Or, if nobody knew that to be the case? Would it not make Mark Carney’s job a lot easier? So is it really the case that Mark Carney has to ‘merely’ stabilize the system? Is it not rather the case that he is also trying to retroactively stabilize a former Governor of the Bank of England? That then is exactly what Harold Bloom means by the trope of apophrades in his theory of the anxiety of influence where the latter text or poet is able to completely subsume the precursor text. Another way of putting this is to say that in the wake of the impact made by Mark Carney – under the aegis of ‘stability,’ any historian of the Bank of England cannot but re-assess Montague Norman’s stint from Mark Carney’s point of view. That is exactly the case with the Federal Reserve’s communications policy as well. When Ben Bernanke sets out the Fed’s communications policy at the Cato Institute, he begins with a critique of Montague Norman’s non-existent communications policy for the Bank of England.15 Both Ben Bernanke and Mark Carney 14 For a lucid account of the concept of stability in the financial system, see Robert J. Shiller, ‘Policy Makers in Charge of Stabilizing the Economy,’ Finance and the Good Society (Princeton and Oxford: Princeton University Press, 2012), pp. 111-118.15 Ben S. Bernanke (2007). ‘Federal Reserve Communications,’ 25th Annual Monetary Conference, Cato Institute, Washington DC, November 14th is available at:

http://www/federalreserve.gov/newsevents/speech/bernanke/bernanke20071114a.htm

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demonstrate an ability to do more than Montague Norman in ways that Bloomian poetics will explain in terms of ratios like clinamen, tessera, and apophrades. These are just two specific instances of the applicability of a theory of poetic influence and the forms of anxiety that it engenders in the context of monetary policy-making, but it is possible to invoke many more examples if required to explain the uses of Bloomian poetics outside the history of poetry.

I wanted to share these insights of mine with readers in the context of recent events as a preface to what Kenji Yoshino has to teach us in this paper. I hope that it has become obvious that while Bloomian poetics began with a theory of poetic influence and the anxiety that such forms of influence engender in the ephebe, it does not have to limit itself within the history of poetry. Its applications in areas outside poetry can be justified without difficulty. That is however not to say that Bloomian poetics should be applied directly. We have to be careful - as Kenji Yoshino points out – to differentiate between how poets relate to each other as opposed to those seeking to resolve disputes in the law or formulating monetary policy interventions within the financial system. As long as we are able to relate the similarities and differences between these discourses, there is no reason why we cannot go ahead with what Paul Gewirtz, David Cole, and Kenji Yoshino have to share with us on the important role that Bloomian poetics can play in law schools.

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This review essay has been more in the form of a preface to Kenji Yoshino than a full-fledged exposition because I do not want to deny the reader the pleasure of actually reading this engaging text and making up his own mind.

SHIVA KUMAR SRINIVASAN