Legal Writing and Disciplinary Knowledge-Building: A Comparative Study
Douglas M. Coulson*
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I. Introduction
In recent decades, many scholars have studied professional academic writing in the disciplines to better understand how the textual practices of different disciplines reflect particular forms of knowledge-building activity.1 Based on the work of philosophers in the Anglo-American and Continental hermeneutic traditions as well as the work of scholars studying how knowledge is generated in disciplinary communities, such studies have arrived at a general consensus that the textual practices of professional academic writing in the sciences and the humanities tend to occupy opposite ends of a knowledge-building continuum, the sciences more abstract and communal in their knowledge-building activities, the humanities more particularistic and individualistic, and the social sciences somewhere in the middle.2 This recent scholarship has not significantly studied legal writing, however, which has received little rhetorical study from legal scholars themselves.3 During the last half century, legal studies has embraced the work of numerous other disciplines—including economics, political science, moral philosophy, literary theory, Marxism, gender studies, cultural studies, cultural anthropology, structuralism, and poststructuralism, among others. Because of this disciplinary inclusiveness, the knowledge-building activities reflected in the textual practices of legal writers present a particularly interesting and potentially challenging subject for comparison with other disciplines.4 Such comparative studies are not only likely to increase our understanding of the discipline-specific rhetoric of law,5 but may also contribute to the study of the relationship between professional writing and disciplinarity generally.
In this article, I examine Susan Peck MacDonald’s recent study of disciplinary knowledge-building in Professional Academic Writing in the Humanities and Social Sciences and apply the methods used in her study and other studies of professional writing in the disciplines to analyze a sample of law review and journal articles involving a discrete legal question that is currently emerging in the United States and internationally, specifically, how and when arbitration may be compelled in disputes involving nonsignatories to an arbitration agreement. The purpose of this study is to identify the knowledge-building activities of a discrete legal discourse community and to compare the knowledge-building activities of that community to the knowledge-building activities of professional writing in other disciplines in order to identify the position the law review and journal articles occupy on the disciplinary knowledge-building continuum.6 In my conclusion, I also offer reflections on the findings of the study and its implications for the application of interdisciplinary studies to legal writing.
II. The Disciplinary Continuum and Legal Studies
Susan Peck MacDonald’s Professional Academic Writing in the Humanities and Social Sciences, which received the Conference on College Composition and Communication’s Best Book Award in 1995, provides a useful starting point for a comparative study of the relationship between the textual practices and knowledge-building activities of professional academic writing in the disciplines.7 MacDonald builds on the work of Anglo-American philosophers in the hermeneutic tradition, such as Thomas Kuhn, Stephen Toulmin, and Richard Rorty, and on prior disciplinary studies by Charles Bazerman, Tony Becher, David Kolb, and Richard Ohmann, all of whom focus on process and community in the social construction of disciplinary knowledge.8 The work of these scholars emphasizes the process by which a community of practitioners “gives reasons for its choices, carries on negotiation and persuasion within the community, and selects some problems and solutions as superior to others on the basis of shared disciplinary understandings.”9 MacDonald claims that this focus enables us to understand “situational variations in academic writing more clearly,” but “only if we identify cohesive discourse communities.”10 Accordingly, MacDonald concludes that case studies of discrete disciplinary subfields are particularly useful to understanding how disciplinary knowledge is constructed because by allowing us to “isolate discourse communities of writers who read, cite, and are influenced by each other’s work,” such case studies increase the possibility of identifying a working discourse community “rather than merely an abstract ‘community’ that may have no consistent patterns of common communication.”11 MacDonald proposes that a focus on the textual practices of such discourse communities provides greater descriptive power to discourse analysts, easier access for novices trying to enter the discourse of a community, better pedagogical methods for professionals trying to initiate novices into a discourse community, and better methods for professional writers to reflect on their writing practices than would a focus on philosophies, interpretations, or concepts alone.12
To illustrate this approach to disciplinary knowledge-building, MacDonald analyzes the textual practices of professional academic writing in the disciplinary subfields of infant attachment psychology, colonial New England social history, and Renaissance New Historical literary criticism. She frames her analysis by initially positing that the textual practices of academic discourse communities may be considered on a continuum reflecting the degree to which the communities foreground their knowledge-building goals and practices as reflected in the following text-level patterns of variation:
• variations from disciplinary compactness to disciplinary diffuseness,
• variations in explanatory versus interpretive goals,
• variations from conceptually driven to text-driven in the relation between generalization and particular, and
• variations in the degree of epistemic self-consciousness explicit in the texts.13
According to MacDonald, these text-level patterns of variation primarily relate to the degree of particularism in the subject of inquiry, the humanities being more concerned with particulars and the sciences with abstract universals.14 In the sciences, research areas are typically generated through a small number of well-defined problems simultaneously pursued by a wide array of researchers with the goal of reaching a consensus, and MacDonald calls such problem-centered, communal inquiries of the sciences “compact,” compared with the “diffuse” disciplines of the humanities, in which scholars more often re-interpret and re-evaluate a relatively discrete set of texts using new critical and historical lenses with the goal of reaching a wide range of alternative interpretations.15 According to MacDonald, researchers in the sciences also tend to provide general explanations of phenomena compared with the more individualistic interpretations of the humanities.16 Further, because in the sciences researchers are generally guided by conceptual issues rather than by phenomenal material such as texts, the sciences are more “conceptually driven” than the humanities, which tend “to be rooted in phenomena, data, or texts which are potentially worth knowing about for their own sake.”17 Therefore, MacDonald proposes that the relationship between abstract conceptualizations and particular phenomena in the sciences and the humanities may be diagrammed as, respectively, a triangle and an inverted triangle, the sciences moving “down the ladder of abstraction from concept to particular data” and the humanities moving from particulars “upward to a broadening set of abstract conceptualizations (the inverted triangle).”18 In addition, the sciences reflect a high degree of what MacDonald calls “epistemic accounting,” which refers to the use of language explicitly directed toward the knowledge-building goals of a disciplinary community, by, for example, explicitly identifying the problem under study, prior research and the state of the community’s knowledge regarding the problem, and a shared conceptual terminology compared to the more narrative or anecdotal approach of the humanities.19
MacDonald first reviewed the articles in her study for these text-level patterns of variation, but also conducted an analysis of the relative particularism or abstraction of the nouns in the subject position of the sentences in the articles to compare with the text-level patterns of variation.20 Because the text-level patterns of variation are created through language, MacDonald proposes that we should expect to find traces of these text-level patterns at the sentence level, and sentence-level differences having consequences at the text level, in a reciprocal relation.21 She argues that the continuum of particularism and abstract universalism in the knowledgebuilding activities of academic disciplines suggests forms of analysis particularly suitable to the analysis of sentence subjects because the sentence subject is “the syntactic element that creates a sense of agency; it is the most important spot for determining what a writer is writing about and how questions about epistemology, construction, or agency enter into the writer’s thinking,” and decisions about how to represent agency become particularly complex in disciplinary contexts where there are numerous options for who or what should be the focus of agency.22 Accordingly, MacDonald quantitatively analyzed the appearance of sentence subjects containing phenomenal and epistemic referents and found that “taken together, these sentence-level findings parallel the text-level tendencies: . . . the differing emphasis on negotiating knowledge claims within a research community and the differing degrees of [generalization and] particularism.” MacDonald claims this finding shows “some of the potential of this method for examining how approaches to knowledge making may vary in ways that are parallel at textand sentence-level.”23
Since at least the late 1960s and early 1970s, if not before, legal studies have embraced scholarship from both ends of the disciplinary continuum posited by scholars such as Toulmin, Bazerman, Becher, MacDonald, and others, in a proliferation of “interdisciplinary” legal studies ranging from the application of literary theory to law by Law and Literature scholars, to the application of economics to law by Law and Economics scholars, to the application of the theories and methodologies of numerous other disciplines.24 Prior to this interdisciplinary trend, however, the task of “doctrinal” legal scholarship was, in the words of Richard Posner, simply to “extract a doctrine from the line of cases or from statutory text and history, restate it, perhaps criticize it or seek to extend it, all the while striving for ‘sensible’ results in light of legal principles and common sense.”25 Although this form of legal scholarship, known as “doctrinal” to distinguish it from the “anti-doctrinal,” interdisciplinary variety, has significantly declined in prominence in the legal academy in the wake of the interdisciplinary trend, it nonetheless remains a prevalent form of legal scholarship today in terms of the quantity of publication in articles, treatises, casebooks, and textbooks.26 Thus, in the leading law reviews more titles such as “The Constitutional Right to Make Medical Treatment Decisions: A Tale of Two Doctrines,” or “The Kerr Principle, State Action, and Legal Rights,” appear than titles such as “The Value of Irony: Legal Orthodoxy and Henry James’s Washington Square,”27 and many have claimed that interdisciplinary studies have even less influence on legal practice, so that Richard Posner is not alone in concluding that the longterm viability of interdisciplinary legal scholarship “depends on the ability of the practitioners of this scholarship to influence practice, rather than merely to circulate their ideas within the sealed network of a purely academic discourse.”28
One example of such interdisciplinary legal scholarship, the Law and Literature movement, began as a field of organized study in the 1970s, but did not fully emerge as an interdisciplinary movement until the 1980s.29 In 1973, James Boyd White invited his students “to see what the lawyer does as a literary activity, as an enterprise of the imagination.”30 The Law and Literature movement has since supported a wide range of scholarship on the importance of narrative and oral forms of discourse, textual interpretation, and contextualization and empathy in law, leading “away from a view of law as formal, mechanized rule-making, and . . . instead toward all the possibilities, probabilities, ambiguities and doubts that life possesses.”31 In addition, Law and Literature scholars have advocated that because law is inherently involved in the creation and interpretation of texts, legal writing may benefit from a study of the literary imagination and the methods of literary criticism.32 Applications of storytelling to legal argument have coalesced in the Applied Legal Storytelling movement, which held its first conference in July 2007,33 and the Law and Literature movement has recently expanded into the broader disciplinary formation of Law, Culture, and the Humanities, as scholars have recognized that humanistically oriented legal studies share common interests.34
In contrast to the more humanistic approach to law recognized by the Law, Culture, and the Humanities movement, for centuries formalist legal scholars have approached law as a science, advocating precisely the sort of “formal, mechanized rule-making” activity that Law and Literature scholars have critiqued. The key concept of legal formalism is the belief that judges deduce legal decisions from statutes, rules, and precedents by using formal logic, particularly syllogistic reasoning.35 Hans Kelsen is particularly emblematic of this view, describing his Pure Theory of Law as “objectivist and universalistic,” its aim
to conceive each individual [legal] phenomenon in its systematic context with all others—to conceive in each part of the law the function of the total law. . . . [T]he law is an order, and therefore all legal problems must be set and solved as order problems. In this way legal theory becomes an exact structural analysis of positive law, free of all ethical-political value judgments.36
Similarly, many English and American jurists have approached law as a science, including Edward Coke, Francis Bacon, William Blackstone, James Kent, Joseph Story, John Austin, and Christopher Columbus Langdell.37 Indeed, formalism has been a perennial impulse in legal history, leading to such grand systematic statements of the law as Justinian’s Institutes and Blackstone’s Commentaries, influencing generations of jurists.38
Accordingly, for purposes of studying the disciplinary knowledgebuilding activities of legal discourse, it may be useful to consider the Law, Culture, and the Humanities movement as representative of the humanities and to consider legal formalism as representative of the sciences on the disciplinary knowledge-building continuum proposed by scholars such as Toulmin, Bazerman, Becher, MacDonald, and others. In proposing this comparison, however, it is important to recognize that important distinctions exist between the formalist approach to law as a science and the empirical and logical sciences.39 A jurist does not observe physical phenomena like an empirical scientist or verify the truth of normative propositions through experience. Instead, according to legal formalists, the truth value of legal propositions lies in their correspondence to “certain ethical principles accepted as criteria to regulate action in a particular society.”40 Unlike the empirical and logical sciences, legal scholars “are not attempting to describe an allegedly objective reality, and most of them are not even attempting to discover real meanings embedded in authoritative texts,” but instead their goal is “to address prescriptions to public decision-makers.”41 What formalist jurisprudence has in common with the sciences is not empirical methods or formal logic, but the critical function of constructing a rigorous language of well-defined terminology and rules for the use of language, such that jurisprudence becomes “essentially an analysis of language, more precisely of the language through which the legislator expresses himself through normative propositions.”42 For this reason, many legal scholars have compared legal theory to linguistics, a “system of norms conceived as a grammar of legal validity,”43 and Peter Goodrich has even argued that modern formalist jurisprudence parallels the development of formalism in modern linguistics.44 Bearing these distinctions in mind, however, these positions within legal studies provide useful analogues for purposes of comparing various forms of legal writing to other forms of academic writing on the knowledge-building continuum posited by scholars such as Toulmin, Bazerman, Becher, MacDonald, and others in their studies of the disciplines.45
III. The Articles Studied
Fourteen articles published between 1995 and 2007 in various law reviews and law journals in the United States were selected for this study and are listed in Appendix A. I selected the articles because they constitute a discrete disciplinary subfield of legal scholars addressing a newly emerging legal question, specifically, how and when arbitration may be compelled in disputes involving nonsignatories to an arbitration agreement, including issues related to multiparty and class arbitrations. Because the articles all examine the same newly emerging legal question, they are particularly well suited to comparing the disciplinary knowledge-building activities of a discrete legal discourse community with the knowledge-building activities of various disciplines studied previously. Most of the articles in the sample provide biographical information on their authors, who are primarily active legal practitioners employed in law firms, government agencies, or legal industry organizations,46 but also include two law professors,47 two law students,48 and one Ph.D. candidate with a prior J.D.49 The articles vary widely in length, with the shortest a mere four pages50 and the longest a booklength 159 pages.51 I also selected five of the articles as a representative subsample for purposes of conducting a quantitative analysis of their sentence subjects according to the methodology used by Susan Peck MacDonald in Professional Academic Writing in the Humanities and Social Sciences.52 The five articles in the subsample not only cover a range of dates and authors representative of the sample as a whole, but a comparison of their text- and sentence-level features with those of the other articles in the sample indicates sufficient similarity for purposes of the study.
* © Douglas M. Coulson 2009. Mr. Coulson is an Assistant Instructor in the Rhetoric Department at the University of Texas at Austin, where he is also pursuing a Ph.D. in English. Before beginning his doctoral work at the University of Texas at Austin, Mr. Coulson received his J.D. from Tulane Law School in 1999 and practiced business and commercial litigation in the Houston Office of Kasowitz, Benson, Torres and Friedman LLP. This article arose out of a Spring 2008 graduate seminar in Reading, Writing, and Arguing in Academic Disciplines taught by Davida Charney at the University of Texas at Austin. Mr. Coulson would like to particularly thank Davida Charney for her generous support and thoughtful comments on this project both during and after the seminar, and would also like to thank Richard E. Coulson for his helpful comments and conversation regarding the article, Jamie P. Cooper for providing a helpful citation, and the two anonymous peer reviewers for their constructive comments on the original publication manuscript.
1 See e.g. Charles Bazerman, Shaping Written Knowledge: The Genre and Activity of the Experimental Article in Science (U. Wis. Press 1988) [hereinafter Bazerman, Shaping Written Knowledge]; Tony Becher, Academic Tribes and Territories: Intellectual Enquiry and the Cultures of Disciplines (Open U. Press 1989); Susan Peck MacDonald, Professional Academic Writing in the Humanities and Social Sciences (S. Ill. U. Press 1994); Richard Ohmann, English in America: A Radical View of the Profession (Oxford U. Press 1976); Stephen Toulmin, Human Understanding: The Collective Use and Evolution of Concepts (Princeton U. Press 1972) [hereinafter Toulmin, Human Understanding]; Charles Bazerman, What Written Knowledge Does: Three Examples of Academic Discourse, 11 Phil. Soc. Sci. 361 (1981) [hereinafter Bazerman, What Written Knowledge Does]; Davida Charney, A Study in Rhetorical Reading, in Understanding Scientific Prose (Jack Selzer ed., U. of Wis. Press 1993); Jeanne Fahnestock, Rhetoric of Science: Enriching the Discipline, 14 Technical Commun. Q. 277 (2005); Jeanne Fahnestock & Marie Secor, The Rhetoric of Literary Criticism, in Textual Dynamics of the Professions (Charles Bazerman & James Paradis eds., U. Wis. Press 1991); Christina Haas, Learning to Read Biology: One Student’s Rhetorical Development in College, 11 Written Commun. 43 (1994); David Kolb, Learning Styles and Disciplinary Differences, in The Modern American College (Arthur W. Chickering ed., Jossey-Bass, Inc. 1981); Greg Myers, The Social Construction of Two Biologists’ Proposals, 2 Written Commun. 219 (1985); Jane Rymer, Scientific Composing Processes: How Eminent Scientists Write Journal Articles, in 2 Advances in Writing Research 211 (David Jolliffe ed., Greenwood Publg. Group 1988); Sharon Stockton, Writing in History: Narrating the Subject of Time, 12 Written Commun. 1 (1995); James E. Warren, Literary Scholars Processing Poetry and Constructing Arguments, 23 Written Commun. 202 (2006); Laura Wilder, The “Rhetoric of Literary Criticism” Revisited, 22 Written Commun. 76 (2005).
2 See e.g. Bazerman, Shaping Written Knowledge, supra n. 1; Becher, supra n. 1; MacDonald, supra n. 1; Ohmann, supra n. 1; Toulmin, Human Understanding, supra n. 1; Bazerman, What Written Knowledge Does, supra n. 1; Kolb, supra n. 1.
3 See e.g. Peter Goodrich, Legal Discourse: Studies in Linguistics, Rhetoric and Legal Analysis 1 (Palgrave Macmillan 1987) (“Despite the glaringly obvious fact that both legal theory and legal practice are, and have always been, heavily dependent upon the tools of rhetorical and linguistic analysis, no coherent or systematic account of the relationship of law to language has ever been achieved.”) [hereinafter Goodrich, Legal Discourse]; Linda L. Berger, Applying New Rhetoric to Legal Discourse: The Ebb and Flow of Reader and Writer, Text and Context, 49 J. Leg. Educ. 155, 166 (1999) (“Although legal reading processes have been studied, little research has focused on legal writing processes.”); Christine B. Feak, Susan M. Reinhart & Ann Sinsheimer, A Preliminary Analysis of Law Review Notes, 19 English for Specific Purposes 197, 198 (2000) (expressing surprise to find “little relevant research” on the writing of research or seminar papers in law schools); Judge Alex Kozinski, Foreword, in Eugene Volokh, Academic Legal Writing: Law Review Notes, Seminar Papers, and Getting on Law Review 2 (2d ed., Found. Press 2005) (“This book fills a void in the legal literature . . . .”); Deborah L. Rhode, Legal Scholarship, 115 Harv. L. Rev. 1327, 1327 (2002) (“On the relatively infrequent occasions like this one, when we are explicitly invited to discuss legal scholarship, . . .); Barbara J. Shapiro, Classical Rhetoric and the English Law of Evidence, in Rhetoric & Law in Early Modern Europe 54 (Victoria Kahn & Lorna Hutson eds., Yale U. Press 2001) (“Given the long-standing association between law and rhetoric, there has been surprisingly little real study of the impact of rhetoric on the Anglo-American legal tradition.”); Gerald B. Wetlaufer, Rhetoric and Its Denial in Legal Scholarship, 76 Va. L. Rev. 1545, 1555 (1990) (describing his examination of the discipline-specific rhetoric of law as a “preliminary investigation”); Frances J. Ranney, Reading, Writing, and Rhetoric: An Inquiry Into the Art of Legal Language 7 (unpublished Ph.D. dissertation, Feb. 1998, Miami University) (microformed on UMI No. 9804361) (available at 58 Dissertation Abstracts Intl. 3115A) (“Only a small portion of current legal scholarship draws substantially on rhetoric, in either its ancient or modern formulations.”). Similarly, in significant respects legal discourse analysis has only recently begun to emerge as a field of inquiry. See e.g. Heikki E.S. Mattila, Comparative Legal Linguistics 6 (Christopher Goddard trans., Ashgate Publg. 2006) (“In the modern sense, legal linguistics is a discipline that has only recently become established.”); Roger W. Shuy, Discourse Analysis in the Legal Context, in The Handbook of Discourse Analysis 437 (Deborah Schiffrin, Deborah Tannen & Heidi E. Hamilton eds., Blackwell 2001) (“In the 1990s, forensic linguistics, in the broader sense, seems to have flowered, with important general collections of articles on language and law, and books on the language of the courtroom, bilingualism in the courtroom, and aircraft communication breakdown.”) (citations omitted); Gail Stygall, Narrative Discourse Analysis and Legal Texts, in Discourse Studies in Composition 262 (Ellen Barton & Gail Stygall eds., Hampton Press 2002) (“[T]ypically, we have studied neither legal discourse nor narrative in professional settings.”); Ronald R. Butters, Forensic Linguistics Comes of Age, 68 Am. Speech 109 (1993) (reviewing Language in the Judicial Process (Judith N. Levi and Anne Graffam Walker eds., Plenum Press 1990) and Roger W. Shuy, Language Crimes: The Use and Abuse of Language Evidence in the Courtroom (Blackwell 1993)).
4 See Richard A. Posner, Legal Scholarship Today, 115 Harv. L. Rev. 1314, 1316 (2002) [hereinafter Posner, Legal Scholarship Today].
5 As Gerald Wetlaufer has recently noted, this may provide insight into important features of the law itself, including the law’s “urge to reduction and certainty,” “the sufficiency and consequences of our narrative practices,” “how we lawyers constitute ourselves through our rhetoric,” “the idiosyncratic ways in which we privilege certain academic disciplines while shunning others and the further ways in which we transform those disciplines to which we grant our attention,” as well as “important questions about legal pedagogy.” Wetlaufer, supra n. 3, at 1552–53.
6 See MacDonald, supra n. 1; Fahnestock & Secor, supra n. 1; Wilder, supra n. 1.
7 See generally Ellen L. Barton, Empirical Studies in Composition, 59 College English 815 (1997) (reviewing MacDonald, supra n. 1, and related works); Book Review, 47 College Composition & Commun. 439 (1996) (reviewing MacDonald, supra n. 1).
8 See MacDonald, supra n. 1, at 13. For specific works studying the disciplinary continuum on which MacDonald bases her methodology, see Bazerman, Shaping Written Knowledge, supra n. 1; Becher, supra n. 1; Toulmin, Human Understanding, supra n. 1, at 95 (discussing Oliver Wendell Holmes, Jr.’s The Common Law and Edward H. Levi’s Introduction to Legal Reasoning regarding the legal reasoning of common law judges and noting that “we shall be characterizing the general processes by which conceptual populations develop historically, in the same kind of way that common-law historians have characterized the historical development of legal concepts”). Tony Becher builds on Charles Bazerman’s work regarding universalism and particularism in academic discourse, and both Bazerman and Becher build on Thomas Kuhn’s conclusion in The Structure of Scientific Revolutions that scientific knowledge is shaped by the interactions of members of academic communities. See Bazerman, Shaping Written Knowledge, supra n. 1, at 4 n. 3; Becher, supra n. 1, at 10, 13–14; Thomas Kuhn, The Structure of Scientific Revolutions ((U. Chi. Press 1962).
9 MacDonald, supra n. 1, at 13.
10 Id. at 13.
11 Id. at 13–14.
12 See id. at 7.
13 Id. at 14, 21–22.
14 See id. at 19, 25.
15 Id. at 22–27 (“Richard Ohmann has argued, for instance, that because science is arranged in a hierarchy of theories linked to central questions, specialists may work upon very small parts of those problems for the sake of improving the generality and economy of theories. . . . Literary research, Ohmann argued, works on different principles because there is no system of central principles by which to order and condense phenomena—nor would literary scholars want to do away with the complexity or uniqueness of literary works.”) (citing Ohmann, supra n. 1, at 9, 13); cf. Warren, supra n. 1, at 224 (“Rather than allowing the professional discourse to direct their research, these [literary] scholars said they jealously guard the originality of their enquiries, only later considering how their results might fit into a body of existing knowledge.”).
16 See MacDonald, supra n. 1, at 32–36.
17 Id. at 35–37.
18 Id. at 40, 45 (“[T]he particulars of literary texts are complex enough to enable divergent abstractions to be built upon them,” while infant attachment researchers “have been able to abstract ‘attachment’ from the complexity of phenomena in order to examine its role.”).
19 See id. at 12, 47–50.
20 See id. at 147.
21 See id.
22 Id. at 148–49, 152 (emphasis in original).
23 Id. at 169.
24 See Posner, Legal Scholarship Today, supra n. 4; see also Richard A. Posner, Law and Literature (rev. & enlarged ed., Harv. U. Press 1998) [hereinafter Posner, Law and Literature].
25 Posner, Legal Scholarship Today, supra n. 4, at 1316; cf. Robert W. Gordon, Lawyers, Scholars, and the “Middle Ground,” 91 Mich. L. Rev. 2075, 2080 (1993) (“Currently a good deal of legal scholarship and teaching simply carries on the ‘classical’ project of trying to find a theory that will effectively organize and rationalize the cases better than the official doctrine does.”); Christopher D. Stone, From a Language Perspective, 90 Yale L.J. 1149, 1154 (1981) (“The base level [of legal scholarship], commanding the bulk of the energy, aims at conventional intellectual housekeeping: summarizing, unveiling common underlying elements, smoothing apparent inconsistencies and propounding advances and retreats, usually within modest bounds.”).
26 David A. Hollander, Interdisciplinary Legal Scholarship: What Can We Learn From Princeton’s Long-Standing Tradition?, 99 Law Lib. J. 771, 774 (2007) (“Although the doctrinal method was attacked as early as the 1880s (by Oliver Wendell Holmes, among others), it became the standard of legal education and scholarship, and today remains, if no longer dominant, a largely prevalent methodology.”); Posner, Legal Scholarship Today, supra n. 4, at 1317, 1321; Rhode, supra n. 3, at 1339.
27 Don Herzog, The Kerr Principle, State Action, and Legal Rights, 105 Mich. L. Rev. 1 (2006); Jessie Hill, The Constitutional Right to Make Medical Treatment Decisions: A Tale of Two Doctrines, 86 Tex. L. Rev. 277 (2007); Ticien Marie Sassoubre, The Value of Irony: Legal Orthodoxy and Henry James’s Washington Square, 95 Cal. L. Rev. 1027 (2007).
28 Posner, Legal Scholarship Today, supra n. 4, at 1317; cf. Peter Brooks, Narrative Transactions—Does the Law Need a Narratology? 18 Yale J.L. & Human. 1, 2, 28 (2006) (“I am not aware that all this story talk has made any difference to legal actors. . . . What [the ‘law and literature’ movement] might better do, I believe, is demonstrate to legal studies that it has analytic instruments in its toolkit that might actually be of some use with the legal plumbing.”); Mark Tushnet, Legal Scholarship in the United States: An Overview, 50 Modern L. Rev. 804, 814 (1987) (“[W]hatever is the case in legal theory, by far the bulk of a practising lawyer’s work proceeds on the assumption that the stated legal rules are clear enough to justify a firm prediction about what is likely to happen,” which suggests that the allied disciplines “face no insurmountable barriers to expanding their role in law schools,” but have “marginal application to legal practice.”).
29 See Posner, Law and Literature, supra n. 24; James Boyd White, The Legal Imagination (U. Chi. Press 1973); Julie Stone Peters, Law, Literature, and the Vanishing Real: On the Future of an Interdisciplinary Illusion, 120 Publications Modern Lang. Assn. 442, 443 (2005). Although initially an American phenomenon, the Law and Literature movement has expanded to include significant British and European scholarship. See e.g. Michael Freeman & Andrew Lewis, Law and Literature (Oxford U. Press 1999); Ian Ward, Law and Literature: Possibilities and Perspectives (Cambridge U. Press 1995); Melanie Williams, Empty Justice: One Hundred Years of Law, Literature and Philosophy (Cavendish 2002); Anne Simonin, Eloge de l’eclectisme: Penser le Champ “Droit et Literature” a partir des listes de “Legal Novels” (1900–1987), 37 Textyles 12 (2007). The European Network for Law and Literature was recently founded by a judge and law professor in the Netherlands and a literary scholar in Germany, Erasmus University Rotterdam, European Network for Law and Literature, http://www.eurnll.org/ (last accessed June 19, 2009), and the University of Bergen recently founded the Nordic Network for Law and Literature, with participants from legal and literary institutions in Finland, Norway, Sweden, and Denmark, NordForsk, Rett og Litteratur—Law and Literature, http://littrett.uib.no/index .php?ID=Nyheter&lang=Eng (last accessed June 19, 2009). European academic journals have also prominently featured Law and Literature scholarship in special editions such as that of the journal Cycnos of the University of Nice Sophia Antipolis, which published a special edition on “Droit et Littérature” in 2002. 19 Cycnos (2002).
30 White, supra n. 29, at xix.
31 Robert L. Hayman & Nancy Levit, Jurisprudence: Contemporary Readings, Problems, and Narratives 267 (West 1994).
32 See e.g. id. at 268 (“Storytelling is not limited to depictions of law in fiction, but instead incorporates stories into law. In law review articles and essays, legal books and speeches— media previously characterized by a formal, objective style and depersonalized technical discourse—authors are telling stories . . . .”); Joel R. Cornwell, Languages of a Divided Kingdom: Logic and Literacy in the Writing Curriculum, 34 John Marshall L. Rev. 49, 51, 75 (2000) (“Legal Writing must contribute to a new interdisciplinary study of law by cultivating literary imagination and incorporating interpretive methods of literary criticism,” and “Legal Writing courses, if they are to be taught well, must contain a strong element of literary criticism.”); Wendy Nicole Duong, Law Is Law and Art Is Art and Shall the Two Ever Meet? Law and Literature: The Comparative Creative Processes, 15 S. Cal. Interdisc. L.J. 1, 2 (2005–06) (“Law can benefit from the craft of the literary art, and can borrow therefrom.”); Walker Gibson, Literary Minds and Judicial Style, 36 N.Y.U. L. Rev. 915, 915 (1961) (“[C]ertain terms and attitudes familiar to modern students of literature and language can be of direct and practical use to writers of legal compositions.”); Posner, Law and Literature, supra n. 24, at 266 (“It might not be the worst method of teaching legal writing to assemble an anthology of descriptions of legal doctrine found in works of imaginative literature.”); Richard A. Posner, Law and Literature: A Relation Reargued, 72 Va. L. Rev. 1351, 1392 (1986) (“[B]ecause . . . [law] is a technique tied to the creation and interpretation of texts, the practice of law can gain from sympathetic engagement with literature.”).
33 See e.g. Brian J. Foley, Applied Legal Storytelling, Politics, and Factual Realism, 14 Leg. Writing 17 (2008).
34 See Peters, supra n. 29, at 451.
35 See Hayman & Levit, supra n. 31, at 11; Chaim Perelman, Law, Logic, and Epistemology, in Justice, Law, and Argument (William Kluback trans., D. Reidel 1980).
36 Hans Kelsen, Pure Theory of Law 191–92 (Max Knight trans., U. Cal. Press 1989); see also Iain Stewart, The Critical Legal Science of Hans Kelsen, 17 J. L. & Socy. 273 (1990).
37 See Stephen M. Feldman, American Legal Thought From Premodernism to Postmodernism: An Intellectual Voyage 52 (Oxford U. Press 2000); Hayman & Levit, supra n. 31, at 12; Richard T. Bowser & J. Stanley McQuade, Austin’s Intentions: A Critical Reconstruction of His Concept of Legal Science, 29 Campbell L. Rev. 47, 82 (2006); Howard Schweber, The “Science” of Legal Science: The Model of the Natural Sciences in Nineteenth-Century American Legal Education, 17 L. & Hist. Rev. 421, 421–22, 426–28 (1999).
38 See Daniel J. Boorstin, The Mysterious Science of the Law: An Essay on Blackstone’s Commentaries Showing How Blackstone, Employing Eighteenth-Century Ideas of Science, Religion, History, Aesthetics, and Philosophy, Made of the Law at Once a Conservative and a Mysterious Science 3 (Beacon Press 1941) (“In the fourteen centuries since Justinian’s Institutes, Blackstone’s Commentaries are the most important attempt in western civilization to reduce to short and rational form the complex legal institutions of an entire society. And Justinian’s role in the reception of the civil law in western Europe was Blackstone’s in the reception of the common law in America.”); see also Morton J. Horwitz, The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy 10 (Oxford U. Press 1992) (“Every complex legal system presents a structure of classification and categorization that reveals many of its dominant concerns and points of tension and contradiction.”); Mattila, supra n. 3, at 7 (“Legal research science goes back to Rome and, as to research methods, to ancient Greece. This involved creating a conceptual system of law, which presupposes clarifying connections between concepts.”); cf. Bowser & McQuade, supra n. 37, at 82 (“Legal scholars should assist the legal enterprise in shaping a genuine legal science, the order of notions of the law using forms apt for law itself.”).
39 See Norberto Bobbio, The Science of Law and the Analysis of Language, in Law and Language: The Italian Analytical School 22, 35 (Zenon Bankowski, Simona Stirling & Anne Pirrie trans., Deborah Charles Publications 1997) (noting “the long standing disquiet jurists have always felt in comparing their own inquiry with what, at different times, has been acknowledged as science”).
40 Id.
41 Edward L. Rubin, The Practice and Discourse of Legal Scholarship, 86 Mich. L. Rev. 1835, 1854 (1988); cf. Lloyd L. Weinreb, Legal Reason: The Use of Analogy in Legal Argument 141 (Cambridge U. Press 2005) (“There are a number of reasons to reject so doctrinaire (if not, indeed, mechanical) a view of the judicial function, not least its tendency to treat the prescriptive content of the law and the descriptive statements of science as equivalent.”); Bobbio, supra n. 39, at 35 (“It is precisely because these propositions are normative, that is, they regulate future behavior and do not represent something that has already happened, that they have a purely ideal rather than an actual truth.”).
42 Bobbio, supra n. 39, at 35, 37–38 (“We can see how it is possible to move from a conception of science as a means of getting at the truth to one which aims at a systematic and rigorous reordering of concepts for practical ends. Legal research on property can be described as rigorous when all the rules which we consider necessary in order to be able to use the word have been established.”); cf. Feldman, supra n. 37, at 53 (“To American jurisprudents, law was a science because, most important, it was a rational system of principles.”); Cornwell, supra n. 32, at 70 (“Legal language . . . maintains a comparatively high level of abstraction, and connotes a scientific method.”).
43 Goodrich, Legal Discourse, supra n. 3, at 39; see also Bobbio, supra n. 39, at 36, 41, 43 (“[L]egal analysis is conducted within the narrowly circumscribed limits of a particular language. The rules of transformation are determined in advance, independently of the jurist’s will. This is what we mean when we say that legal language is a closed language.”); Cornwell, supra n. 32, at 70 (“To the formalist, the objective quality of the rule of law depends upon the proper translation of a human conflict into legal concepts which then determine judgments as a matter of formal relations within a larger system of concepts, all represented, however imperfectly, in human language.”); George P. Fletcher, The Grammar of Criminal Law: American, Comparative, and International vol. I, 8 (Oxford U. Press 2007).
44 See Goodrich, Legal Discourse, supra n. 3, at 35; but cf. Bernard S. Jackson, Making Sense in Jurisprudence 127 (Deborah Charles Publications 1996) (noting that Jean Piaget’s interpretation of Kelsen emphasizes dynamic features of Kelsen’s thought in contrast to Goodrich’s emphasis of static features and concluding that both interpretations are “eminently debatable”).
45 Cf. Hayman & Levit, supra n. 31, at 267 (“At one end of the spectrum are textualists, who suggest that legal texts have stable meanings, which afford little or no room for the infusion of any personal values of the interpreter. Texts, according to this view, are capable of only a narrow range of possible legitimate interpretations. At the other extreme are those who argue that texts, and perhaps all utterances, are subject to various indeterminacies of meaning. Some of these theorists contend that no objective meaning resides within texts, but that meaning is manufactured significantly or exclusively by the interpreter. In the middle are those who maintain that there are some social, contextual, and linguistic constraints on interpretation.”); Paul W. Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship 23 (U. Chi. Press 1999) (discussing the “dialectic of the abstract and the particular” in legal scholarship).
46 See Michael H. Bagot, Jr., & Dana A. Henderson, Not a Party, Not Bound? Not Necessarily: Binding Third Parties to Maritime Arbitration, 26 Tul. Mar. L.J. 413 (2002); Michael F. Hoellering, Consolidated Arbitration: Will It Result in Increased Efficiency or an Affront to Party Autonomy, 52 Dis. Res. J. 41 (Jan. 1997); James M. Hosking, Non-Signatories and International Arbitration in the United States, 20 Arb. Intl. 289 (2004) [hereinafter Hosking, Non-Signatories and International Arbitration]; James M. Hosking, The Third Party Non-Signatory’s Ability to Compel International Commercial Arbitration: Doing Justice Without Destroying Consent, 4 Pepp. Dis. Res. L.J. 469 (2004) [hereinafter Hosking, The Third Party Non-Signatory’s Ability to Compel]; Carolyn B. Lamm & Joceyln A. Aqua, Defining the Party—Who Is a Proper Party in an International Arbitration Before the American Arbitration Association and Other International Institutions, 34 Geo. Wash. Intl. L. Rev. 711 (2002–03); Jan Paulsson, Arbitration Without Privity, 10 ICSID Rev. 232 (1995); John M. Townsend, Nonsignatories and Arbitration: Agency, Alter Ego, and Other Identity Issues, 3 ADR Currents 19 (Sept. 1998); Dwayne E. Williams, Binding Nonsignatories to Arbitration Agreements, 25 Fran. L.J. 175 (2006).
47 See Anthony M. DiLeo, The Enforceability of Arbitration Agreements By and Against Nonsignatories, 2 J. Am. Arb. 31 (2003); Bernard Hanotiau, Problems Raised by Complex Arbitrations Involving Multiple Contracts—Parties—Issues, 18 J. Intl. Arb. 251 (2001).
48 See Michael P. Daly, Student Author, Come One, Come All: The New and Developing World of Nonsignatory Arbitration and Class Arbitration, 62 U. Miami L. Rev. 95 (2007); Jeff DeArman, Student Author, Resolving Arbitration’s Nonsignatory Issue: A Critical Analysis of the Application of Equitable Estoppel in Alabama Courts, 29 Cumb. L. Rev. 645 (1998–99).
49 See Matteo M. Winkler, Arbitration Without Privity and Russian Oil: The Yukos Case Before the Houston Court, 27 U. Pa. J. Intl. Econ. L. 115 (2006).
50 See Charles Lee Eisen, What Arbitration Agreement? Compelling Non-Signatories to Arbitrate, 56 Dis. Res. J. 40 (July 2001).
51 See Hanotiau, supra n. 47.
52 The subsample includes Daly, supra n. 48; DiLeo, supra n. 47; Townsend, supra n. 46; Williams, supra n. 46; and Winkler, supra n. 49.
53 MacDonald, supra n. 1, at 157.