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Legal Reimaginations – Notes from the North on engaging with Indigenous Legal OrdersJames Boyd White’s The Legal Imagination sits within reaching distance on my bookshelf. It is the original 1973 yellow hardcover version. The spine is a bit ripped, the binding loose in places, there are scribbles in the margins, and post-it notes are liberally scattered throughout the book. Some pages (oh, the horror!) even bear witness to an inappropriately close encounter with a coffee cup. It has the look of a book that has spent time in the hands of a student. And that is exactly what it is.
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Reencountering texts: James Boyd White, legal reading, and bringing back the humanJames Boyd White’s work is ultimately about language, in its many forms and multifarious instantiations. Given the breadth of his writing – from Augustine,1 to George Herbert,2 to the power of speech3 and the limits of language4 – his work and its impact extends far beyond the law. As lawyers and legal scholars, however, we should pay homage to his particular contribution to legal education, which is probably the most meaningful to our field, and in many cases to us personally.5 In this paper, I therefore wish to highlight one of White’s most important contributions to legal thought—that learning the language of the law has distinct costs for us—and consider some of its implications. I argue that perhaps the greatest and most significant loss we experience in learning the language of the law is the ability to encounter text simply as a reader. Instead, lawyers learn a reading style that is utilitarian, extractive, narrow, and entirely purpose driven. It is useful in legal argument and practice to read this way, but it is limiting—so limiting, indeed, that it risks us losing touch entirely with the open, curiosity-based, humanistic reading of texts that we did before our lives in the law. I argue that White’s scholarship lets us see and diagnose this problem, and—in its creative, broad, and humanistic engagement with a variety of texts—helps us reengage with text as a reader rather than only as a lawyer. In other words, White brings the human back, and shows us how to live as lawyers who are still deeply connected to the human world we practice in, and that is shaped by our practice.
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The Legal Imagination and The Protestant (Dis) EstablishmentLet me begin with the contention that The Legal Imagination is a quintessentially liberal imagination—or, to borrow Trilling’s term, The Liberal Imagination. As such it is intimately related to what once was widely referred to as the Liberal Establishment, otherwise known as the Eastern or Northeast Establishment4—or, more significantly, the Protestant Establishment.5 What I propose to do here is to take seriously the Protestant dimension of the so-called Establishment and its intellectual culture that I think is reflected, with great nuance, in Jim’s remarkable book.
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All the Law and the Prophets: The Legal Imagination as Prophetic ImaginationLegal speech and prophetic speech are commonly configured as diametrically opposed to each other. A lawyer stands graceful and impeccably groomed, calmly proffering measured arguments. A prophet stands unkempt and askew, spewing wild denunciations. Prophets hotly condemn the law and the legal system, while lawyers coldly dismiss prophetic accusations as unhinged and impractical. This view of the respective roles of law and prophetic discourse is entrenched in Anglo-American social criticism. The great nineteenth-century British critic Matthew Arnold distinguished between the rhetorical styles of Hellenism and Hebraism, the language of “sweetness and light” and the language of “fire and strength,” respectively.1 The former is the objective and precise language of rational analysis, the language of the courtroom; the latter is the ardent articulation of protest and resistance, the language of the soapbox.
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The (Still) Unexplored Possibilities of a Poetics of LawIn this contribution to the symposium celebrating the Fiftieth Anniversary of James Boyd White’s The Legal Imagination, I have accepted White’s invitation in the last chapter of his magisterial book to think about poems and judicial opinions as compatible acts of imagination and meaning making. White asks brilliant questions, and his book is full of them, each a nugget of insight and also a prod that asks the reader to think harder, think deeper, revisit her first thoughts, to perhaps change her mind, and above all, with guidance, to educate herself. In this chapter of the book, White is chiefly interested in “how the legal imagination expresses itself in the judicial opinion,” and he frames that interest around a set of provocative questions about the form of the judicial opinion, what it demands, how it tells its story, how it manages its structural tensions, its constraints and possibilities, and the complex expectations that are brought to it.
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Sparking The Legal Imagination in Theory and Practice: a Humanistic Approach to LawJames Boyd White’s The Legal Imagination has been with me since I first read it when I was working on my dissertation in the early 1990s. Perhaps this opening sentence does not augur well for an impartial reflection on the impact of The Legal Imagination on the study and practice of law that the editors of this special issue envisage. To justify it, I add that while I then thought that as an academic I understood the book theoretically, it wasn’t until I became a judge that I understood its lessons for legal, and more specifically judicial practice. That is why, by way of introduction, I indulge in a small archeological and archival exercise, privileged as I have been to have had many conversations with the man himself when writing my dissertation. For one trained in a continental European civil law jurisdiction with an emphasis in legal education on codified law, The Legal Imagination seemed odd to say the least. As one Dutch reviewer remarked, “This is the most unusual book in our field that I have ever had in my hands . . . The title does not explain anything, the subtitle not much more, and the rather detailed ‘Preface’ and ‘Introduction to the Student’ do not provide a clear presentation.”3 To me, The Legal Imagination seemed to me a rich but daunting Pandora’s Box of suggestions for making a life for oneself in and with law.
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Death and Discretion: Some Thoughts on LivingFifty years ago, James Boyd White inspired a quiet revolution in the world of legal studies. He encouraged lawyers to think more deeply about questions of law and justice by drawing upon the humanities, which provided sources and methods well beyond those that the legal academy then recognized as legitimate ways of thinking and talking about law.1 Among other things, Professor White insisted that there was a morality to authentic legal argument and decision making that required a close and engaged reading of texts, an understanding of community, and an openness to being persuaded by others.2 It was a courageous move, particularly in the early 1970s, when many academic lawyers still thought that their job was simply to teach students to “think like a lawyer,” in the narrow and instrumental sense in which they understood it. Even those who took a slightly broader view – who recognized that the social sciences might add value to legal studies – found little to be said in favor of the humanities. At best, they thought that the unpacking of fuzzy concepts like “justice” or “fairness” might be appropriate (if ultimately pointless) work for a philosophy or political science department, but not for a law school. At worst, they thought that legal decision making was simply an exercise of power, that judges were effectively unconstrained by law, and that it made no sense to study closely the reasons that judges give for their decisions because those reasons are not the drivers of decisions, but merely post hoc justifications for outcomes reached for other reasons and on other grounds. Or they implicitly (and sometimes explicitly) invoked utilitarian concepts such as efficiency as if those concepts could provide an adequate substitute for “justice.”
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Reading for Law in Barry Unsworth’s Sacred HungerThe contestation between a humanist, ethical law and a dehumanizing, profit-exalting law animates the plot and is dramatically embodied in the principal characters of Barry Unsworth’s Sacred Hunger.1 In the process, the novel illuminates the three intertwined concerns central to James Boyd White’s The Legal Imagination: how language constitutes cultures, communities, and selves; how politics and ethics are encoded in different ways of talking about other people (as objects or “means to an end” rather than “centers of autonomy and value”); and how forms of inherited speech and expression both constrain and enliven the imagination.2 The fact that Sacred Hunger is a historical novel about Britain’s role in the slave trade—a literature of realities—adds layers of complexity to its legal imaginations.
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Law and Linguistic Moves: Refugee Law and The Displaced Person’s Commission, 1948-1950White’s Legal Imagination is a magnificent work within the law and humanities canon. It has long been hailed for its interdisciplinarity and the penetrating questions it asks law students, lawyers, and scholars about the process of writing, reading, lawyering, and the legal profession. Even with its stunning interdisciplinarity, it has been less overtly influential in the field of legal history. Yet, the Legal Imagination has much to say to the legal historian in terms of the process of writing legal history and the questions that legal historians might bring to their work, especially for those writing about the legal profession. White emphasizes how lawyers, like all of us, use language and tell stories that are always incomplete and capable of multiple meanings. Such resounding incompleteness is especially true for legal historians who are continually analyzing archival documents which convey vastly incomplete, even false, stories. Such documents are often only fragments which can be pieced together by the historian in multiple ways, forming different stories. Using such documents, legal historians then attempt to create our own always incomplete and lacking narratives that often only gesture at the “truth.” Legal historians are always trying to capture what is the unexpressed story in our primary documents. Often, it is the silences of our documents through which our stories emerge. Such stories are often illusive – a shadow or a ghost like one of those photographs of the paranormal – visible depending upon the viewer’s perspective, open to interpretation, deeply ambiguous. In fact, for the legal historian who studies the history of the legal profession – what lawyers do, how they think, how they understand themselves, the myths that they tell, and who might even be considered part of the legal profession – constructing such narratives can feel Herculean. The legal historian is searching for the type of interiority and intentionality, with which the Legal Imagination asks its readers to engage, and which lawyers seem to fight at every turn.
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The People of California vs. Juan de Dios Ramírez VillaJames Boyd White’s 1972 book The Legal Imagination announced that law and literature are disciplines that share imaginative and intellectual commitments. He also presented them as good, if quarrelsome, partners in legal education and the development of a humane legal system. Inspired by White’s vision and audacity, I set forth an extended literary analysis of a 1997 California death penalty case. This exercise contemplates the relationship between the legal opinion and the essay, considering them not only cousins but also antagonists whose differences consist in their relative abilities to wander. The rules that limit the legal opinion do not fetter the essayist, and here I take that opportunity to more fully imagine the scenes and arrogations that led to the murder of a seventeen-year-old boy in the mid-1990s and to contemplate that killing’s presence in a larger political and ecological landscape. The most pressing and literally questing inquiries this essay divulges concern the roles that the oil and pesticide industries played in a young man’s death, another man’s life sentence, and the criminal justice system generally.
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The Devotion of the Turtle Dove: The Aesthetics of the Legal Sacred in Anthony Trollope’s The Eustace DiamondsI am delighted to be included in this symposium to celebrate The Legal Imagination on its fiftieth anniversary. I was a student in Professor White’s class on civil procedure in my first quarter in law school—fifty years ago. He taught us common law pleading! Common law pleading was at once bizarrely alienating and revelatory. This was law. And I finished my legal education with The Legal Imagination in the spring of 1976. Some fifteen years later, after I had quit practicing law, Professor White served on my PhD examining and dissertation committees at the University of Chicago Divinity School. I now have the enormous pleasure of introducing graduate students in religious studies to his work. White’s writing speaks in a special way to those studying Islamic law who see in his work a humane approach to law that resonates with their efforts at repair of the western misunderstandings of Islamic law in contemporary scholarship. So, thank you, Jim. From me and from my students. This symposium celebrates the founding of a field now known as law and literature, but the field has always had a third implicit partner, religion. I will make that third partner more explicit here, drawing on my own field, law and religion.
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Law, Literature, and The Legal ImaginationLaw and literature occupies an unusual place among the interdisciplines in the legal academy. Various interdisciplinary conjunctions have found a home on law faculties over the last half-century or so, such as law and economics, law and sociology, and law and psychology, more recently supplemented by law and neuroscience.1 Most law professors could summarize the aims of scholarship fairly accurately in these areas. For instance, if asked to propose a topic for a new article, even someone who rarely reads work in law and psychology could probably offer a plausible example—maybe not an example that scholars in that area would find compelling, but at least one that they would not reject as inapposite. Law and literature has had a place in the legal academy for about the same amount of time, as this symposium attests, and yet those who do not read current scholarship in this field tend to have a vague or even misinformed understanding of what the work entails. Having outlasted the many predictions of its demise, the field nevertheless suffers from a strange kind of identity crisis—not because of anxieties or doubts among those who write in this area, but because of confident but misguided accounts that others would offer when describing the field.
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Dissenting AuthorityThis essay explicates J.B. White’s rhetorical conception of authority as a potentially collaborative achievement and contrasts it with the conception of authority as surrender of judgment prevailing in legal philosophy. On White’s view, authority is not an instrument held and deployed, but is conferred, like respect. This conception of authority illuminates three puzzles concerning the relationship between dissent and legal authority. First, Legal Positivism’s purportedly descriptive account of law insists it must claim an authority to govern independent of justice and assent. Yet law’s language is replete with justice-based appeals for popular assent. White’s reading of the practice of legal authority better explains this evidence. Second, liberal moral philosophers often take value dissensus as evidence that legal authority is necessarily illegitimate. Yet the language of radical dissenters often makes an appeal for legal authority rather than anarchy. White’s conception of legal authority as a practice of public reason better accounts for radical aspirations to claim authority. Third, a conventional account of precedent implies dissents are pointless, because they can have no legal authority. Yet White’s conception of authority as collaborative engagement explains how dissenting voices contribute authority to law. Law earns our allegiance by remaining open to contestation, and by inviting rather than repressing our critical judgment.
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ForwardIt is my honor to introduce twelve essays, themselves honoring the 50th anniversary of James Boyd White’s momentous The Legal Imagination: Studies in the Nature of Legal Thought and Expression.1 The weightiness of the 1000-page, hardcopy, 45th Anniversary Edition (2018) is matched only by the wisdom and wittiness of its author.2 In his introduction to the September 2023 Symposium Fifty Years of the Legal Imagination: A Symposium in Honor of James Boyd White, White explains the moments, the questions, the tensions, and the conjunctions that in younger days led him to his teaching of law and humanities. As both his introduction and the essays that follow attest, his work is above all a contribution to the learning of law. I mean that in a double sense: the “learning of law” as how one comes to know law and also as what law knows. Over and over, White invites us to recognize the many ways in which knowing and doing law are matters of language, which one can always learn to do better.
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The Humanities and Law SchoolI encountered James Boyd White about a year after law school, not during. It was a late springtime trip down to the Seminary Co-op at the University of Chicago. There, a new arrival: White’s Heracles’ Bow. I was hooked. Since then, only my direct mentors have had greater influence over how I think about, and practice, law. Moreover, one of his later books, Living Speech, influenced greatly how I think about almost everything.
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The Origins of the Legal ImaginationI want to say at the outset that I feel honored beyond imagining at this celebration of the fiftieth anniversary of my book, and all the more because it is you who have set this up—so many beloved friends over the years and others who will surely become friends. I thank you deeply. As I wondered about what I might say this morning, I thought perhaps you would be interested in where this truly odd book, with its 986 pages of readings and questions, came from.
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Fostering the Intellectual Virtue of Civility in Online ContextsCivility provides norms for engaging in discourse on topics that yield harm or benefit to others, affect the conditions of our lives, and drive public policy—in short, on topics that matter, morally and politically. While discourse on moral and political matters is already difficult in face-to-face and interpersonal conversations, online interactions through social media pose unique challenges for interactions and exchanges. Using research from philosophy, psychology, behavioral economics, and computer science, I explain how the intellectual virtue of civility can be fostered within individuals as a developed trait of internalized norms to guide how one engages with others when evaluating beliefs and contentious issues. Like the development of any virtue, the development of civility takes time, practice, and effort, but it can be fostered even in online contexts through the careful contextualization of experience and practiced behaviors. Altering tech design through the use of goal setting, nudges, gamification, and in-group priming allows for repeatable behaviors to be practiced and modified. Shifting from a focus on policies for content moderation to a focus on users’ choices within online interactions—and deeper consideration for how designs affect users’ options, choices, and agency—allows us to capitalize on insights from moral psychology and education to see new ways forward in combatting incivility in online contexts.
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In the American Tempest: Democracy, Conspiracy, and MachineNo one can be certain precisely what “democracy” is, but everyone seems to agree that it is in danger. Since the beginning of the pandemic, warnings of “toxicity,” “vitriol,” and other ill humors infecting the body politic have invaded mass media and political discourse, while the foundations of our civic order—“truth,” “facts,” and “civility”—have been seen to erode to the point of collapse. Although the exact cause of the present rupture in the social and epistemic fabric is hard to pinpoint, many observers seem to agree that the internet is to blame. Online algorithms are found to spread “misinformation” and “disinformation,” while anointed experts attribute unexpected outcomes of public events, from election results to the verdicts in defamation suits, to online campaigns by malicious “bots.” A New York Times opinion piece from June 2021 warned readers against examining or analyzing claims found online, since the impulse towards curiosity “allows grifters, conspiracy theorists, trolls and savvy attention hijackers to take advantage of us.” The atmosphere of confusion and distrust not only pervades public discourse in the English-speaking world, but increasingly spills beyond it; the phrase “fake news” has entered, untranslated, into political discourse in France, where a law criminalizing false statements online fuels an acrimonious debate.
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The Case for Designing Tech for Social Cohesion: The Limits of Content Moderation and Tech RegulationBased on nearly 60 interviews with staff at tech companies, critics of big tech, civil society groups impacted by tech-amplified social media, and new tech startups, research revealed three distinct but complementary narratives or approaches to thinking about polarization and social cohesion in digital spaces. The “User-Centered” Narrative describes harmful content online as generated by users, with social media products and search engines acting as a mirror of society. Several interviewees described the defeating feeling of playing “whack a mole” against the growing tide of individual and state-sponsored industrialized harmful digital content. This narrative points to the need for content moderation on user-generated content and digital media literacy to help the public navigate information and communication on the internet. The “Tech Design Regulation” Narrative describes harmful content as amplified by tech product designs including the affordances and algorithms that are optimized for user engagement, advertising, and shareholder profit. Many social media companies optimize their product designs for user engagement to maximize their ad-based profits. Machine learning algorithms promote emotionally alarming and divisive content which tends to garner more attention, just as cars slow down driving past a car accident and as news outlets use the “if it bleeds, it leads” principle to prioritize alarming news. From this point of view, some tech products incentivize harmful content that drives toxic polarization. This narrative presses for government regulation to extend beyond privacy to regulating tech profit models, algorithms, affordances, and designs that amplify toxic content. The “Social Cohesion by Design” Narrative describes tech products that amplify and scale social cohesion by designing affordances and algorithms optimized for these purposes. These digital products can support human agency to participate in civic action, bridge divided communities, and build trust between the public and institutions. The first half of this article provides explores the complex relationship between toxic polarization and digital spaces and analyzes these three frames or paradigms for understanding the role of digital spaces in toxic polarization. The second half of the paper focuses on examples and case studies of “social cohesion by design” also known as "peacetech."
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An Empirical Investigation of Arbitrator Race and Gender in U.S. ArbitrationFor decades, the United States system of arbitration has been subject to nearly constant public criticism. Calling arbitration a rigged judicial system, consumer and employee rights groups have voiced opposition to the practice of “forced arbitration” whereby millions of Americans are contractually required to resolve disputes in arbitration rather than in litigation. On top of the concerns over the unfairness of forced arbitration itself, recent attention has been drawn to the lack of racial and gender diversity within the arbitrator profession. When women and racially marginalized plaintiffs are forced to arbitrate their employment discrimination or consumer-based claims in the arbitral forum, that they may have no meaningful access to arbitrators that look like them seems additionally problematic. Scholars in the field have argued back and forth about the root of the diversity problem. Is it a labor supply problem? In other words, are parties to arbitration open to hiring marginalized arbitrators but there are just not enough to choose from? Or is it a labor demand problem? In other words, when women and arbitrators of color are available, are they chosen at rates consistent with their white male counterparts? Or, are both supply and demand problems at work? Because much of the scholarly diversity conversation has been based on anecdotal information and survey data which don’t cover the full population of U.S. arbitrators, these basic questions are still unanswered. This paper contributes to the literature by using an originally-collected data set of arbitrator race, ethnicity and gender from the two largest arbitration firms in the U.S., Judicial Arbitration and Mediation Services (“JAMS”) and the American Arbitration Association (“AAA”). The data were collected using public data sources and cutting-edge machine learning techniques. This is the first-ever scholarly effort to empirically estimate the race and ethnicity of arbitrators for both the JAMS and AAA populations. The analysis presents estimates of the demographic profile of the supply of U.S. arbitrators and the demographic profile of the subset of arbitrators that are actually selected to arbitrate—with a special focus on the extent to which under-selection is happening. The study has four main findings. First, along the supply dimension, women and people of color are underrepresented amongst JAMS arbitrators, both relative to the U.S. population and relative to the population of American lawyers and judges. The extent of the underrepresentation for both groups is significant, though it is more severe for arbitrators of color than for female arbitrators. For AAA arbitrators, I find an even greater degree of underrepresentation for Black arbitrators. Second, along the demand dimension, I find different results for JAMS and AAA. For JAMS, I find that, conditional on being selected to arbitrate at least once in the sample period, Asian and Black arbitrators receive fewer cases than their proportional share, and female arbitrators receive slightly more cases than their proportional share. Moreover, arbitrators that were formerly judges receive more cases than their proportional share. For AAA, the selection analysis is hampered by limited data availability. However, the data that I do have suggest that diverse neutrals are selected for cases at a rate that is at or above their proportional share. Third, given the first two results, my data suggest that diversity issues exist both along the labor supply dimension and the labor demand dimension within U.S. arbitration. Fourth and finally, I find that future empirical diversity work in arbitration will be severely hindered unless more and better data are available to researchers. The study concludes by offering concrete and specific recommendations for how and why better data should be collected and made available to the public.
