I think the answer is yes.

James R. Elkins asks:

My question is this: Is there a way to make use of the imagined spaces in which we read-read as students of law, read novels for pleasure-and perceived chasm between pleasure and work? Is there a middle ground of reading, a strategy for reading, that would allow a student of law to think about reading law cases as literature and reading novels as if they might be of central importance in the way one becomes a lawyer? Is there a way to read law for pleasure and novels as instructive vocational texts? If so, we may find in “lawyers and literature,” that we’ll need to redefine pleasure and purpose; we redefine what it means to be a reader of law and of literature.

Someone must have traduced Maher A. . . .

Scott Finet, in one of the most frequently cited law review articles ever published — Franz Kafka’s The Trial as Symbol in Judicial Opinions — wrote in 1988 of literature in law. Specifically, he discussed the ways judges use references to The Trial, concluding that in writing opinions they used the novel’s depiction of Joseph K.’s encounter with an utterly arbitrary and incomprehensible legal system to illustrate their own system’s rationality and fairness:

This article will show how judges make references to The Trial in published decisions as a symbol of their commitment to the shared value of rational choice. Their references to The Trial seem to be an effort to resolve, on a symbolic level, the contradictions between the ideology of an orderly, rational legal decision making process and the sometimes incongruent workings of that process. This is not to say that the decision making process is or is not always predictable and based on rational choice, but that judicial decision makers, in an effort to legitimize themselves and the process, attempt to convince those affected by their decisions that the process is predictable and based on the shared value of rational choice.

Thus, Finet described one way judges frequently use The Trial – to discuss someone who is faced with the need to find the reason for his predicament. For example, a criminal defendant might be seeking the reasons for his prosecution, something Joseph K. was never able to discover:

In the cases that refer to The Trial one often encounters the supplicant who seeks information and resolution to his or her quest just as Joseph K. did in The Trial. The role of the information seeker can be played by the plaintiff or the defendant. Judges cite The Trial to demonstrate that they, unlike the illegitimate court in The Trial, are committed to the shared value of rational choice and that they will provide a resolution to the supplicant’s search.

Finet article is now over 20 years old.  I wonder what he’d make of the predicament faced by Guantanamo detainees, some of whom, we’re told, are too dangerous to release but can never be prosecuted because no U.S. court will allow the admission of evidence obtained by torture.   Even more to the point, perhaps, is the case of Canadian Maher Arar, arrested by U.S. officials on a stopover in New York, sent (via “rendition”) to Syria, and tortured there for a year before it was realized he was an innocent Canadian. And last year a U.S. court established that Mr. Arar could not sue in U.S. courts to establish that U.S. officials “acted illegally by removing him to Syria so that Syrian authorities could interrogate him under torture.” The Trial is not so much a contrast here; Mr. Arar found himself in New York’s Kennedy airport in a situation much like Joseph K. did at the very beginning of Kafka’s novel:

Someone must have traduced Joseph K., for without having done anything wrong he was arrested one fine morning.

Law in Art/Law as Art

I’ve taught in law schools for 13 years. Before that I practiced in New York City for over 11. What I’ve largely found is that lawyers have little use for law professors, and law professors have little use for lawyers.  Where I am this year, the University of Detroit Mercy Law School, is an exception to this rule, and a rare one.  The far more common, if strange, disconnect between the academic world and the world of practice is illustrated by the academic field known as “Law and LIterature.”  Wikipedia accurately describes Law and Literature as both the study of law in literature and of the literary characteristics of legal writing.:

The law and literature movement focuses on the interdisciplinary connection between law and literature. Believed to have originally begun as a subcategory of jurisprudence, the movement encompasses the complementary ideas of law in literature and law as literature.

The problem, as Daniel J. Kornstein, a writer and a lawyer, is that the law and literature movement has had no impact on the practice of law:

The greatest shortcoming in Law and LIterature to date has been its failure to reach and engage the practicing lawyer. For the most part, Law and Literature has remained firmly entrenched in legal academia, its realm of origin. The shirtsleeve lawyer is essentially untouched.

I have from the start intended for this blog in large part to remedy this lack of connection between literature, and other arts, and the practice of law. Just as the Law and Literature movement examines both law in literature and law as literature, I try to focus on law in creative endeavors and law as a creative endeavor. I suppose part of what drives me to do so is that I have taught primarily first year law students, and they, like most people, have given very little thought to the art they have encountered and only begin under my watch to understand that, perhaps primarily, I am training them to be artists, not technocrats.