The Judicial Opinion as Literary Genre

Abstract

The tendency in combinations of law and literature has been to reach for similarities and conflations in method, theme, and approach. This search for similarities has helped legal scholars to think past the assumed autonomy of their field. In the long run, however, with growing general recognition of the complementary relation of law to other disciplines, there may be a greater need for combinations of law and literature that do just the opposite-combinations that keep in mind the conceptual integrity of distinct disciplines. This essay seeks to demonstrate the value of just such an approach. Instead of tracing connections, the aim here will be to use literary criticism to identify ways in which the law provides its own peculiar kinds of statement. Since the most creative and generally read literary form in the law is the appellate judicial opinion, we will concentrate on that form for purposes of demonstration. Indeed, a literary treatment of the appellate opinion may prove doubly useful. Judicial writing is often so wrapped in legal paraphernalia as to seem an hermetically sealed and therefore mysterious genre to the general reader. Our ultimate goal, then, is to identify and clarify the appellate judicial opinion as a distinct literary genre within the larger civic literature of the American republic of laws.