1 Prigg V. Pennsylvania, 41 US. (16 Pet.) 539 (1842); Dred Scott v. Sandford, 60 US. (19 How.) 393 (1856).Google Scholar

2 Olmstead V. United States, 277 US. 438 (1928); United States v. White, 401 US. 745 (1971).Google Scholar

3 See Levinson, Sanford, “Conversing about Justice,” 100 Yale L.J. 1855 (1991); Tushnet, Mark, “Translation as Argument,” 32 Wm. & Mary L. Rev. 105 (1990).Google Scholar

4 A program with no quarters on campus that cannot hire its own faculty, that has financial support measured in hundred of dollars, and that shares administrative support with other interdisciplinary programs.Google Scholar

5 Regina Austin, “Sapphire Bound,” 1989 Wis. L. Rev. 539 (1989); Bell hooks, Taking Back: Thinking Feminist, Thinking Black (Boston: South End Press, 1989); Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge, Mass.: Harvard University Press, 1987), and id., Toward a Feminist Theory of the State (Cambridge, Mass.: Harvard University Press, 1989); Mari Matsuda, “Affirmative Action and Legal Knowledge: Planting Seeds in Plowed-up Ground,” 11 Harv. Women's L.J. 1 (1988); Martha Minow, “Pluralisms,” 21 Conn. L. Rev. 965 (1989); id., “The Supreme Court, 1986 Term—Foreword: Justice Engendered,” 101 Harv. L. Rev. 10 (1987); id., “Interpreting Rights: An Essay for Robert Cover,” 96 Yale L.J. 1860 (1987); And her most recent work, Making All the Difference (Ithaca, N.Y.: Cornell University Press, 1990); Judy Scales-Trent, “Black Women and the Constitution: Finding Our Place, Asserting Our Rights,” 24 Harv. C.R.-C.L. L. Rev. 9 (1989); Joan Wallach Scott, “Deconstructing Equality-versus-Difference; Or, The Uses of Poststructuralist Theory for Feminism,” 14 Feminist Stud. 33 (1988); and id., Gender and the Politics of History (New York: Columbia University Press, 1988); Elizabeth Schneider, “The Dialectic of Rights and Politics,” 61 N.Y.U.L. Rev. 589 (1986); Hortense Spillers, Conjuring: Black Women, Fiction and Literary Tradition (Bloomington: Indiana University Press, 1988); Joan Williams, “Deconstructing Gender,” 87 Mich. L. Rev. 747 (1987); Patricia Williams, The Alchelmy of Race and Rights (Cambridge, Mass.: Harvard University Press, 1991). This list does not pretend to be exhaustive; and I am not insisting that the various authors' views are necessarily to be preferred over White's just because they are expressed by women. I am suggesting that his characterization of academic prose is incorrect and slights the enormous contribution of women to both literary and legal critical theory.Google Scholar

6 Frank Kermode, ed., Selected Prose of T. S. Eliot 293–94 (New York: Harcourt Brace Jovanovich, 1975) (“Kermode, Eliot”).Google Scholar

7 Id. at 294.Google Scholar

8 Louis Landa, ed., Gulliver's Travels and Other Writings by Jonathan Swift 368 (Boston: Houghton Mifflin Co., 1969).Google Scholar

9 A. Dwight Culler, ed., “The Function of Criticism,”In Poetry and Criticism of Matthew Arnold 257 (Boston: Houghron Mifflin Co., 1961) (“Culler, Matthew Arnold”).Google Scholar

10 Id., “The Study of Poetry” 311.Google Scholar

11 Kermode, Eliot 304.Google Scholar

12 Id. at 293–94.Google Scholar

13 Id at 38–39.Google Scholar

14 In selecting Supreme Court opinions as a way of reading our culture, White makes the assumption that these precedents have a normative and prescriptive cultural value; that the narrative they construct is natural, predictable, and inevitable; and that they have inherent authority qua precedents. For a fuller account of this cultural narrative, see my “Easy Cases, Hard Cases, and Weird Cases: Canon Formation in Law and Literature,” 21 (2–3) Mosaic: An Interdisciplinary Journal of Inquiry 60 (1988).Google Scholar

15 Frank Lentricchia, After the New Criticism 109 (Chicago: University of Chicago Press, 1980) (“Lentricchia, New Criticism”).CrossRefGoogle Scholar

16 Id. at 109.Google Scholar

17 But see White's rejection of exactly this position in his account of Arnold's theory of translation: “There is no position outside of culture from which the original can be experienced or described. It is read by one of us, translated by one of us, speaking to the rest of us” (at 252).Google Scholar

18 Cleanth Brooks, The Well Wrought Urn 213 (New York: Harcourt, Brace & World, 1947) (“Brooks, Well Wrought Um”).Google Scholar

19 Id. at 214.Google Scholar

20 For a comparable statement about paraphrase, see Brooks, Well Wrought Um 197: “it is highly important … that we see that the paraphrase is not the real core of the meaning which constitutes the essence of the poem …. Indeed, whatever statement we may seize upon as incorporating the ‘meaning’ of the poem, immediately the imagery and rhythm seems to set up tensions with it, warping and twisting it, qualifying and revising it.”.Google Scholar

21 Let me cite, specifically, his reading of Robert Frost's “A Dust of Snow” as an example of this allegiance to New Critical terminology: “If you read this poem aloud you will feel the tension between the force of its meter and rhyme, both of which work on the principle of recurring form and variations;” and again: “The black crow is given visual significance by its juxtaposition with the white snow and the green hemlock;” and again: “this poem creates a tension between the sense that it represents an experience that is external to it— the fall of the snow—and the sense that it is itself a new experience, in language, with a meaning of its own” (at 5–7 passim; my italics). Readers familiar with New Critical readings will recognize the buzz words-tension, juxtaposition, recurring form, and the sense of the autonomous poetic text. I am not suggesting that White's reading of the poem is wrong or inaccurate—although in concentrating on the tensions, juxtapositions, oppositions, and other formal characteristics, his reading erases the wittiness, the gently ironic self-deprecation of the speaker, despite the fact that he insists on the poem as a performance. I am suggesting that his reading is, finally, not very interesting because he misses the ironic possibilities inherent in all New Critical readings—the capacity of language to turn on itself, which is precisely the capacity exploited in poststructuralist readings. Because White doesn't sufficiently recontextualize the poem, either in the general cultural context of the late 1980s or in the specific critical context of contemporary poetic theory, what might be revitalized in a contemporaneous context remains confined by the past readings.Google Scholar

22 “The Function of Criticism,” in Culler, Matthew Arnold 337 (cited in note 9).Google Scholar

23 See Lentricchia's objection (New Criticism 109) to the New Critical conception of selfhood: “what constitutes us in the present … [is] perfectly constitutive of the past.”.Google Scholar

24 The phrase “equally entitled” begs a host of questions about what constitutes equality. Does White mean equality as in theoretically possessing the same rights? Does he mean theoretically able to argue with equal skill and force before the court? Does he mean practically endowed with the necessary economic and social attributes to have access to the court? An example of where having access to the courts and the legal system might mean exactly the opposite of having equality in any of its many forms can be found in the case that Toni Morrison fictionalizes in Beloved (New York: Signet, 1987). In 1856 Margaret Garner, an escaped slave from Kentucky, slit the throat of her daughter and tried to kill her other three children, after she and her husband were captured in Ohio. Acting under pressure from Abolitionists, the state of Ohio requested jurisdiction over Garner; they hoped to try her for manslaughter and thus, ironically, establish that she was not merely property but had the full rights of other citizens in Ohio. A federal judge overruled the state and ordered the Garners returned to their Kentucky owner, who promptly sold them to a slave owner in New Orleans. It would be hard to argue that at any stage of these legal proceedings Margaret Garner stood before the court as an equal entitled to have her case “adjudicated by neutral standards.” Even the action of the Abolitionists, while supportive of her rights as a citizen, disregards her claim to difference, both by race and by gender.Google Scholar

25 For clear evidence of the inadequacy of inherited legal language to deal with moral issues, witness the struggle of legal and civil authorities to restrict racist speech and protect the First Amendment rights of the individual. For example, recently a federal judge rejected George Mason University's argument that Sigma Chi fraternity should be suspended for two years because it had run an “ugly woman” context in which a white man came out in black face, wearing a black wig with curlers and pillows tied to his chest and buttocks. The university contended that the skit was disruptive and should not be considered protected speech. Federal Judge Claude M. Hilton of the U.S. District Court for the Eastern District of Virginia, wrote that the “skit contained more than a kernel of expression; therefore, the activity demands First Amendment protection.” Anthony DePalma, N.Y. Times, 29 Aug. 1991, sec. A, at 25.Google Scholar

26 Robin West points to exactly this problem in her critique of White's account of cultural texts. “Communities, Texts, and Law: Reflections on the Law and Literature Movement,” 1 Yale J.L & Hum. 129 (1988). West argues that there are two problems with one of White's “most persistent claims … [that] the ideals advanced by the community's critic, as well as the moral code embraced and followed by the community, derive not from aggregated preferences, but from the shared texts through which the community and the critic both derive their collective identities” (id at 138). First, West points out that “‘textual critics’ vision … is unduly bound by the very texts he sets out to criticize. The result is social criticism which is constrained and stunted by the texts it criticizes” (id.). As an example of this “stunted” social criticism, West refers to Huck Finn's limited moral vision in Twain's The Adventures of Huckleberry Finn: “No less than his virtues, Huck's moral blindness is entirely the product of his immersion in his community's texts” (id. at 140). The second problem West identifies with White's “moral textualism”(id. at 132) is a consequence of the first: the limited social vision of the critic, confined within his community's texts, will “dehumanize outsiders, as will the criticism that is grounded in those texts”(id at 140). Thus, in Huckleberry Finn, “[w]e do not hear the story from Jim's point of view because Jim is definitionally outside the textual community. Jim has almost no voice”(id.) West compares Huckleberry Finn with Toni Morrison's Beloved: The story of Twain's Jim, the escaped slave, is told from the point of view of the white, free, marginal, critical, but textually included boy. Morrison's Beloved is told from the point of view of the excluded and objectified black slave women. Twain's story gives voice to the critical reflections of the “textually marginalized”: Huck may be marginal to his society but he is an integral part of it. Morrison's story, in contrast, gives voice to the textually excluded. Beloved is told from the point of view of the community's object.… The “object” of Huck's story becomes the “subject” of Sethe's story in Morrison's novel. (Id. at 141). As West succinctly remarks: “By defining ‘community’ by reference to our ‘texts’ we blind and deafen ourselves to expressions of pain inflicted on those whom the community's texts exclude, violate or objectify”(id. at 145). West's own critical narrative, however, tends to repeat that same erasure of identity and history that she has objected to in White's cultural criticism. Certainly Toni Morrison's Beloved allows the voice of the slave as subject to be heard; but to suggest that we have had to wait until 1987 to hear this voice is to reinscribe that version of literary history which enforces the very silencing West appears to reject. There were many texts authored, published, and read by black women, both enslaved and freed, that can testify to a literary tradition that existed, vibrantly and defiantly, alongside the dominant tradition. I don't dispute West's point that many were, and continue to be, “written out of the legal, cultural and human texts of the dominant community” (id. at 154). However, she goes too far when she suggests that being written out of the dominant culture is the equivalent of being “simply unable to participate, as reading, literate, critical subjects in any fashion in our cultural texts” (id.). Such a claim rehearses, once again, a narrative of cultural history that allows the dominant culture to retain its dominance by erasing the collective identifies of other communities, selectively recognizing the contributions of individual members of that community as exceptions. West's argument would be more convincing if, rather than citing two contemporary black women writers—Patricia Williams and Toni Morrison—she were to engage with that tradition out of which those writers emerge. See, e.g., Ann Allen Shockley, Afro-American Women Writers, 1746–1933: An Anthology and Critical Guide (G. K. Hall & Co., 1989); Joanne M. Braxton, Black Women Writing Autobiography: A Tradition within a Tradition (Philadelphia: Temple University Press, 1989); The Schomburg Library Collection of 19th Century Black Women Writers (Oxford: Oxford University Press, 1988); Vilma Potter, A Reference Guide to Afro-American Publications and Editors, 1827–1946 (Iowa City: Iowa State University Press, 1991); Dorothy Sterling, Black Foremothers (New York: Feminist Press, 1988); And Irvine Garland Penn, The Afro-American Press and Its Editors (New York, 1891). For an incisive analysis of exclusion and women of color, see Angela Harris, “Race and Essentialism in Feminist Legal Theory,” 42 Stan. L. Rev. 581 (1990).Google Scholar

27 Lentricchia, New Criticism 110 (cited in note 15).Google Scholar

28 Id. at 109.Google Scholar

29 Brooks, Well Wrought Urn 217 (cited in note 18).Google Scholar

30 See Lawrence Tribe's Abortion: The Clash of Absolutes (New Haven, Conn.: Yale University Press, 1990).Google Scholar

31 For an account of how legal education responds to such tensions, see David Sokolow's “From Kurosawa to (Duncan) Kennedy: The Lessons of Rashomon for Contemporary Legal Education,” 1991 Wis. L. Rev. 969.Google Scholar

32 For example, here he speaks of the virtue of using the activity of translation as a model for ethical and political thought: Even to attempt to translate is to experience necessary but instructive failure. In this sense translation forces us to respect the other—the other language, the other person, the other text—yet it nonetheless requires us to assert ourselves, and our own languages, in relation to it. It requires us to create a frame that includes both self and other, both familiar and strange; in this I believe it can serve as a model for all ethical and political thought. (At xvii). This is, indeed, as White himself describes his prose, couched in “somewhat Delphic form” (at 4). White's key terms-intellectual integration, translation, transformation, many-voicedness—all suffer from this same level of generality. The problem is that such vagueness makes it as difficult to disagree with these sentiments as it is to imagine how one would enact them in critical practice.Google Scholar