Lawyer as Writer

The Lawyer as Writer & The Legal Imagination

If you are interested in the lawyer as writer, the place to begin is the preface and introduction to James Boyd White's The Legal Imagination: Studies in the Nature of Legal Thought and Expression ( Boston : Little, Brown and Co., 1973).

In The Legal Imagination, White focuses on traditional subjects—reading and writing—but finds that he must create "a new subject" [xix], "a study of what lawyers and judges do with words." [xxxi]. White sets out to explore how lawyers and judges "traditionally conceive of and talk about experience" and how these "modes of thought and expression can be mastered—and perhaps modified—by an individual mind." [xix] [All citations in parenthesis are to The Legal Imagination]

White's conception of this "new subject" of reading and writing, properly conceived, "cover[s] the whole of one's education." [xix]. White insists that, "To ask how to read and write well is to ask practically everything, one might say, and indeed a legal education could be defined by saying that one learns to read and write the professional language of the law, to master a set of special ways of thinking and talking." [xxxi]

White considers, in passing, the possibility that he is working in the field of jurisprudence but explicitly avoids this characterization of his project. [xxi]. White may be doing what we would today call "narrative jurisprudence," but in the early 1970s, he saw his work as an inquiry into the nature of the legal mind and imagination.

White's genius, in my view, lies in the way he juxtaposes the mundane—reading and writing–with the more exotic sounding—"legal imagination." For White, in this early work, and throughout his prolific writings, we are asked to consider law as an "activity of the imagination" [xxi] and the writing of judges and lawyers "as a literature of the imagination." [xxi]

White begins with a set of diagnostic questions:

(1) "[W]hat does it mean to give yourself such an education, to learn to think and speak like a lawyer? You will see that the question so stated has two obvious branches: how do you do it, in what does the lawyer's art consist? And what does it signify to have mastered that art—what have you gained, what lost?" [xxxi]

(2) "What are the consequences of learning to function" in the way that lawyers do?

(3) "What does it mean to learn to think and speak like a lawyer?" [xix]

In response to these questions, White proposes a series of writing activities in which "the student is asked to write as lawyer, judge, and legislator, and to reflect as a mind and a person on what he has done, to speak in his own voice about his experience of writing and thinking. He is asked to see what the lawyer does as a literary activity, as an enterprise of the imagination, with respect to which both success and failure—if he can define them—are possibilities for him." [xix-xx]

This way of writing allows the student to compare the literature of law with other forms of literature. [xix]. By attending to the way we read and write as lawyers, we see better how the lawyer ethic works and how it fails. White argues that "one is responsible for what one does and writes" and goes on to note that the possibilities of success and failure must be defined by the student of law and "[h]e must judge for himself what these possibilities are." [xx]

We judge possibilities of success and failure by looking both inside and outside the profession. White steers clear of the hermetic world of traditional approaches to legal writing. He seeks to "establish a way of looking at the law from the outside, a way of comparing it with other forms of literary and intellectual activity . . . ." [xx]. We learn what law leaves out, what is missing from legal writing and legal education by turning to other forms of literature. Indeed, it is this comparative turn, the move outside law, that is "meant to give us a common sense of what legal literature leaves out, of what others do that the law does not . . . ."

There is a "genuine difficulty" associated with using language the way lawyers attempt to use it. [xxxi]. "At every stage, the lawyer speaks to experience and in doing so defines anew the limits and capacities of his own imagination, defines himself as a person and a mind." [xxxi]

For White, the goal of legal education is not turning out a skilled technician but rather a "lawyer writer" with an "independent intelligence and imagination." A lawyer who takes writing—any form of writing—seriously must develop an intelligence and imagination that draw on literature and modes of thought (what White calls "literary and intellectual activity") that exist beyond law.

I am drawn to White's project for a number of reasons:

Accessible: It speaks to the "general reader" in contrast to one well-versed in law or literature. White wants his project to be one that the general reader can follow [xx]; taking into account one's "ordinary experience of life" [xxi] White is confident he has produced a "self-teaching book." [xxiii]

Practical: White's work is presented in modest form—"a course in reading and writing." [xix]. It focuses on the most common of experiences—success and failure [xix]; he does not try to "articulate a general theory of literary analysis or anything like it" but rather, seeks a "common sense" understanding of what law leaves out. [xx]

Intellectual/Philosophical: White's project is an an exercise in thinking about lawyering—a lawyer theory of practice—although White never calls it a theory. He encourages a way of thinking about law by focusing on the meaning of what we do. He encourages the student to see law "as a part of a larger individual and personal life." [xx]/ The project "takes as its subject [the student's] own intellectual life in the law." [xxxi]

Experiential: White looks at how students experience the intellectual activities associated with becoming a lawyer; "urging the student to bring together the various elements of his own education (however disparate they may seem to be." [xx]. The student is encouraged to draw on "his own experience of social and personal life. Again and again, he is asked to talk about his life as a lawyer by comparing it with his life as a person, to connect what he is doing with what he knows." [xx]. The student is being asked "to come to terms with" her own experience and to "write about it." [xxxi]

Personal: White looks first, not to the role of law in society, but how law becomes of interest to "an intelligent and educated person" who could be doing something else. [xxxii]. White's project involves an exploration of "what makes the law and the life of the lawyer interesting." [xxxiii]. "To what extent, if you are to be really fine lawyer, must your mind be cast in a mold set by others?" [xxxiv]. White asks students "to make the most insistent demands for a life of self-expression that you can. You will discover for yourself what limits there may be upon you freedom." [xxxiv]

Pedagogical: The project is conceived as a "course"; The Legal Imagination is addressed to students, to those who have set out to study law. White explains that he addresses the book to the individual student rather than the usual anonymous reader: "I find this form of address congenial, in part because it seems to me to be itself a way of teaching: to address someone as an ideal student, as if he were someone he is not (and you are not), is a way of expressing a view of what you are trying to do, of what you wish you both were, and it may exert some pressure in the right direction. That my own voice is somewhat more personal here than is usually the case is a reflection of an attempt to define a candid relationship with the student, not a claim for the value of my own idiosyncrasies. The hope is that the student will respond in kind, that he will be less timid about exposing his own individuality . . . . One of my purposes is to encourage the student to make a life of his own in the law, to resist the pressures to conform to the expectations of others." [xxiii].

Rhetorical: White focuses on how we talk about our experience in and of law; the book, the questions proposed, and the way of proceeding are all "invitations to talk"; what it means to "speak in a language of rules"; a study that makes every "act of self-expression" a subject; focus on the speaking and writing of lawyers in the role of counselor, advocate, legislator, and judge and contrast this role-defined talk and language with the way you "talk in your own voice about what lawyers do." [xxxi-xxxii]

Reflective: White presents questions rather than conclusions. The student "is asked to turn and look back on his life and talk about it" and ask, "Where do I go now?" [xxi]; to think about the future, a future defined in the way the law would define us. [xxi, xxxi, xxxv]. The student is "asked to collect himself for the moment and imagine his future." [xxi]. White finds the "ultimate question" to be "how an intelligent and educated person can possibly spend his life working with the law, when life is short and there is so much else to do." [xxxii]

Ethical: White persistently explores the question of judgment, seeking to have the student draw on his "independent intelligence" [xx], assuming that students have an "independent mind." [xxi]. He avoids conclusions and seeks to "define responsibilities." The goal is to have the student "come to some new awareness of his place in the world, of his powers and obligations." [xxi]

Ecological: White argues that nothing of the student's education is "irrelevant until it is shown to be. One who knows about biology or mathematics or music ought to be able to draw connections between these activities and the law . . . ." "The idea is that law should be compared not just with literature but with anything that the reader knows . . . ." [xx] White invites the student to "bring into play anything that he knows or is." [xxi]. The idea is to get the student to turn and look at her life and "take a position from which he can say that his whole education (including his legal education to date) lies within his ken . . . ." [xxi]

"[O]ne has the feeling about a legal argument that it involves everything. The moment arrives when the law will act upon life, will declare its final simplification and pass on. What choices of argument has the lawyer, what of explanation has the judge. Of all that could be said about what has happened, what will each in his brief half-hour choose to say? This sense that the life of the lawyer somehow involves everything, and that much of it is never stated or even talked about, may be taken as a starting point for this course." [xxxiii]

Psychological: White sets out "to build a class around the writing of students" and "to subject their egos and emotions to considerable strain, especially where the recurring questions are perplexing and important ones—what sort of life can I make for myself as a lawyer? How do I define myself and my future in what I write?" [xxii]

"[Y]ou are encouraged to express the peculiarity, the individuality, of your own intellectual and emotional experience as a lawyer." [xxxiii]

One area in which a lawyer is given an opportunity to excel includes "sensitivity to the emotional qualities of a human relationship." [xxxiv]

Community: In describing his teaching, White adopts practices that suggest "we are all colleagues here." [xxii]. He reaches out to all readers (to a "general reader" in contrast to the specialist) and invites students to disregard writings they do not find worthwhile and purpose other topics instead. He invites talk among student colleagues and reading of papers outside class. White's sense of community is inclusive because it focuses on the "what makes the law and the life of the lawyer interesting." By focusing on lawyers and what they do with language "makes room for the pursuit of virtually any interest you may have in the life of the lawyer." [xxxiii]

Notes

1. The photo of James Boyd White is from the dust jacket of his book, From Expectation to Experience: Essays on Law & Legal Education (Ann Arbor: University of Michigan Press, 1999).

2. James Boyd White's books include: When Words Lose Their Meaning: Constitutions and Reconstitutions of Language, Character, and Community (Chicago: University of Chicago Press, 1984); Heracles' Bow: Essays on the Rhetoric and Poetics of the Law (Madison: University of Wisconsin Press, 1985); Justice as Translation: An Essay in Cultural and Legal Criticism (Chicago: University of Chicago Press, 1990); Acts of Hope: Creating Authority in Literature, Law, and Politics (Chicago: University of Chicago Press, 1994); The Edge of Meaning (Chicago: University of Chicago Press, 2001). James Boyd White's books are required reading for those who seek a humanistic view of law, lawyering, and legal education.

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