So what about literary theory and business? The big problem with the theoretical side of law and literature for my purposes is that most of it focuses on public law, where you’ve got that big enchilada, the Constitution. On the transactional side there is no corresponding fundamental text to interpret. I take a few different approaches.
The most promising angle seems to me to be narrative theory. As an introduction, we’re reading Sanford Levinson, Owen Fiss, and Robert Cover’s Nomos and Narrative (am I crazy to be assigning this?). Next, in the quest for a text to interpret, there are some folks reading Delaware corporate opinions as literature, or at least, as rhetoric: Ed Rock, David Skeel, Sean Griffith & Myron Steele. Oh, and we’re reading Barbarians at the Gate. I know, I know, it’s nonfiction. But, as we’ve discussed, it’s hard to find good dramatic depictions of deals, and if we’re talking narrative strategies, then BATG is relevant, for sure. I’ve recommended it for years with the promise that it “reads like a novel.” From there, I hope we'll talk about the stories corporate lawyers tell: to the other side, to a company's shareholders, to target shareholders, to the SEC.
Then I turn to law and lit approaches with a transactional or economic bent. Fish’s The Law Wishes to Have a Formal Existence discusses the parol evidence rule, contractual ambiguity, contracts implied in law, and Judge Kozinski’s efforts in Trident Center to stabilize the plain meaning of words against the threat of ambiguity posed by the California Supreme Court’s opinion in Pacific Gas & Electric Co. Robin West, in Authorial Autonomy and Choice, contrasts Richard Posner’s depiction of the parties to a contract as consensual wealth maximizers with the representation of the individual in the work of Franz Kafka. Posner roars against the outrage of being read as literature, firing back first with an article, and then a book titled Law and Literature: a Relation Reargued. Finally, the grandfather of Law and Literature, James Boyd White, reviews Posner’s book in What Can a Lawyer Learn from Literature?, taking issue with Posner’s fundamental conception of what literature is. I know the students may be less than thrilled to see so many law review articles on the syllabus. I’m crossing my fingers that this series of scholarly scuffles translates into some interesting classroom discussions.
When I proposed the course, I confess I was worried about finding material, but I have over 13 sessions’ worth already. I’d still welcome any further suggestions, though...
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1. Posted by Joan Heminway on July 3, 2008 @ 16:19 | Permalink
This certainly has been a great way for you to get suggestions on teaching materials! I have three other suggestions. (1) Read Mae Kuykendall's No Imagination: The Marginal Role of Narrative in Corporate Law, 55 Buffalo L. Rev. 537 (2007). She makes some interesting points that may give you discussion topics, at the very least. (2) My colleague, Judy Cornett, coauthored (with my deceased colleague, Jerry Phillips) a law & lit book, Sound and Sense: A Text on Law and Literature. The Table of Contents includes a nifty assortment of items that may give you ideas. (3) Lincoln Caplan wrote a book entitled Skadden: Power, Money and the Rise of a Legal Empire. My recollection is that it's not a really scintillating read, but it's from roughly the same era as Barbarians at the Gate, so some of it also may be usable.
Sounds like a great course. Have a ball with it.