Posner on Literature

Judge Richard A. Posner has expanded the scope of his writing. We have previously known him as one of the leaders in law and economics. He is now moving into the field of law and literature. His offering is an article, Law and Literature: A Relation Reargued, which has been published in the Virginia Law Review.

As one might expect, he performs intelligently. Posner is well read in literature; he displays a genuine love for that which he has read; and he writes with wit and grace. In short, in law and literature, as in law and economics, Posner is a force to be reckoned with. The evidence for these assertions can be found in the article: his comments on W.B. Yeats’ poems Easter 1916 (pp. 1363-64, 1366) and The Second Coming (pp. 1378-79) demonstrate his skill as a reader of poetry; his literary analysis of Justice Holmes’ dissent in the Lochner case (pp. 1379-85, 1389-90) shows that he can apply these literary skills to a reading of judicial opinions.

However, I must utter a “however.” As I read Posner (and I would recommend others read him) he builds his analysis on the base of several dichotomies that seem to be drawn from ordinary common sense. One of the dichotomies is the distinction of pleasure versus instruction. Another is form (or style) versus content. Yet another is science versus rhetoric. These several dichotomies are linked into a logic that provides the structural underpinning for Posner’s analysis; my caveat is that the logic of these dichotomies limits rather than strengthens his analysis. This is my conclusion, so let me now start at the beginning.