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What's Past Is Prologue: Precedent in Literature and Law

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What's Past Is Prologue: Precedent in Literature and Law What's Past Is Prologue: Precedent In Literature and Law Kenji Yoshino On June 29, 1992, the joint opinion of Planned Parenthood v. Casey' "spectacularly failed to overrule ' 2 the holding of Roe v. Wade.' The writers of the joint opinion suggested that stare decisis, or the legal doctrine mandating that precedent be followed, disciplined their analysis, and that they were bound by Roe's holding regardless of their personal opinions on whether the Constitution protects a woman's choice to have an abortion.' Chief Justice Rehnquist's opinion, on the other hand, maintained that stare decisis did not compel upholding Roe and asserted that Roe should be overruled.5 The 1. 112 S. Ct. 2791 (1992). At issue in Casev were lise proisions of the Pcnnsylhamni Abortion Control Act of 1982. as amended in 1988 and 1989 The Act (1) required that a prosider of abortion services supply a woman with certain information at least 24 hours in advance of an abortion procedure and obtain the woman's informed consent prior to performing the procedure. (2) required that a minor obtain the consent of a parent prior to undergoing an abortion procedure, unless the minor qualified for a judicial bypass of the parental consent requiremcnt; (3) required that a ph)sician. poor to performing an abortion procedure on a married woman, obtain her signed statement that she had notilted her husband. (4) defined the parameters of a "medical emergency" that whould excuse compliance uith the consent and notification requirements; (5) mandated that facilities providing abortion sen.,ices compl) with certain reporting requirements. Before these provisions took effect, petitioners brought a suit challenging the constitutionality of each provision of the Act and seeking declaratory and injunctise relief 112 S Ct at 2803. The district court held all five provisions of the Act unconstitutional and entered a permanent injunction against enforcement. Planned Parenthood v. Case). 744 F Supp. 1323 (E.D Pa 1990) The court of appeals affirmed in part and reversed in part. upholding all of the pros isiuns except the husband- notification requirement. Planned Parenthood v. Casey. 947 F2d 682 (3d Cir 1991) The Supreme Court issued five opinions. The joint opinion, authored b) Justices O'Connor. Kennedy, and Souter, upheld all of the provisions except the husband notilication requirement 112 S Ct at 2803-38 (opinion of O'Connor, Kennedy, and Souter JJ.). The remaining four opinions all concurred in part in and dissented in part from this result. Justice Stevens contended that parts of the first requirement (concerning content-based counseling and the 24-hour waitng period) were unconstitutional and should be struck dou n. but that the Act was otherwise enforceable. Id. at 2838-43 (Ste ens. J . concumng in pan and disenting in part). Justice Blackmun argued that all five of the provisions were unconstitutional and should be struck down. Id. at 2843-55 (Blackmun, J.. concumng in the judgment in part. concumng in part. and dissenting in part). Chief Justice Rehnquist (joined by Justices Scalia. Thomas. and White) argued that all he of the provisions were constitutional and should be upheld. Id. at 2855-73 (Rehnquist. CJ . concumng in the judgment in part and dissenting in part). Justice Scalia (joined by Chief Justice Rehnquist and Justices Thomas and White) advocated the same result. Id at 2873-85 (Scalia. J . concumng in the judgment in part and dissenting in part). 2. Kathleen M. Sullivan. Foreword: The Jusice of Rules and Standards. 106 HARv L. REv 22. 24-25 (1992). 3. 410 U.S. 113 (1973). 4. 112 S. Ct. at 2812 (opinion of O'Connor. Kenned, and Souter. JJ 5. Id. at 2855 (Rehnquist, C.J.. concumng in the judgment in part and dissenting in part) HeinOnline -- 104 Yale L.J. 471 1994-1995 The Yale Law Journal [Vol. 104: 471 Rehnquist opinion further implied that the joint opinion invoked the doctrine of stare decisis as a convenient way of implementing individual Justices' political predilections while allowing those Justices to avoid accountability for their controversial views on abortion. This Note argues that the law-and-literature movement can shed light on the manner in which the Casey opinions treat precedent. Part I provides the theoretical background to a comparison of precedent in law and literature. First, it briefly situates this Note in the law-and-literature movement; second, it outlines two theories concerning the treatment of precedent, one from literature (Harold Bloom's "anxiety of influence"6) and one from law (stare decisis); finally, it describes a prior attempt by David Cole to apply the anxiety of influence to the legal field.7 Part 11 critiques Cole's theory and shows how the remainder of this Note provides a more precise synthesis of the literary and legal theories. Part II describes two of the subversive strategies developed by Bloom: apophrades and clinamen. Part IV applies these two strategies to two literary texts: Tom Stoppard's Rosencrantz and Guildenstern Are Dead8 and Aim6 C~saire's Une Tempete.9 Part V shows that both of these subversive strategies are applicable, with some qualifications, to the Casey opinions. Part VI contrasts the consequences of these strategies in the literary and legal fields. I. PRECEDENT IN LITERATURE AND LAW A. The Law-and-Literature Movement The law-and-literature movement has its Anglo-American antecedents in the nineteenth century. In that period, English lawyers wrote about the depiction of the legal system by Shakespeare, Dickens, and other famous writers; Wigmore argued that lawyers should read literature to learn about human nature; and Cardozo analyzed the literary style of judicial opinions."J Until the publication in 1973 of James Boyd White's The Legal hnagination," however, law and literature did not emerge as a distinct and self-conscious field. 2 Subsequently, Robert Weisberg divided the law-and- literature movement into two branches-law-in-literature and law-as- literature.13 This distinction has been widely adopted. 14 Law-in-literature 6. HAROLD BLOOM, THE ANXIETY OF INFLUENCE: A THEORY OF POETRY (1973). 7. David Cole, Agon at Agora: Creative Misreadings in the First Amendment Tradition, 95 YALE L.J. 857 (1986). 8. ToM STOPPARD, ROSENCRANTZ AND GUILDENSTERN ARE DEAD (1967). 9. AIMt C SAIRE, UNE TEMPtE (1969). 10. RICHARD A. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION 12 (1988). I1. JAMES B. WHITE, THE LEGAL IMAGINATION (1973). 12. POSNER, supra note 10, at 12. 13. Robert Weisberg, The Law-Literature Enterprise, I YALE J.L. & HUMAN. I,I (1988), 14. See discussion and sources cited in Gretchen A. Craft, Note, The Persistenceof Dread in Law and Literature, 102 YALE L.J. 521, 523-24 (1992). HeinOnline -- 104 Yale L.J. 472 1994-1995 19941 Past Is Prologue considers literature "about" legal subjects (e.g., Kafka's The Trial, Camus' The Stranger, or Lee's To Kill A Mockingbird) and law "'about" literature (e.g., laws concerning defamation, obscenity, or copyright).' 5 Law-as-literature, on the other hand, subdivides into two concerns: the study of rhetoric in legal writing and the application of literary theory to the law.' 6 For example, White describes how literature's discourse about devices such as metaphor, ambiguity, and irony enhances an understanding of legal argument.' 7 Similarly, Dworkin argues that because literary theory is more developed than legal theory, literary theory can offer new insights into legal texts.'" Bloom's anxiety of influence, as shown below, is both a taxonomy of rhetorical devices that authors use to subvert precedent, and a theory about the relationship writers have to their predecessors. By considering the applications of this theory to the law, this Note situates itself squarely in the law-as- literature movement. B. The Anxiety of Influence and Stare Decisis Precedent occupies the literary and legal fields in the form of two different theories: the literary theory of the anxiety of influence and the legal theory of stare decisis. Harold Bloom formulated the anxiety of influence in a tetralogy: The Anxiety of Influence,' 9 A Map of Misreading,1'o Kabbalah and Criticism,2' and Poetry and Repression.2 The theory claims that all poets (writers) grapple with the anxiety that everything they write is influenced by their powerful predecessors. In order to become great, Bloom asserts, poets must break free of this influence by conducting "strong misreadings" of their predecessors-that is, by subverting the meaning of their predecessors' texts in order to make their own contributions. Bloom, misreading Freud, casts the predecessor-poet as the father and the usurping-poet as the "belated son."2' 15. See Weisbeg, supra note 13, at I: see also POSNER. stqra note 10. at 5-6. IS 16. Craft, supra note 14, at 524 n.7. 17. WHITE, supra note II, at 56-77: id. at 81 t"While the traditional means of controlling a language-by metaphor, irony, and ambiguity-are likely to be of little use to us as lawsers. or of use onl) in special ways, we may be able to learn much from them , "). see also POStLR. supra note 10. at 272 ("[Elven in regard to comparatively humble specimens of legal writing such as %%ill,. deeds, indenture,,, and contracts; there, repetition, and even archaism. may serve to remind the signatones of the grasity of their commitment and to impart emphases that assist interpretation. lJudicial opinonsi are unasoidably rhetorical .... "). 18. RONALD DWORKIN. A MATTER OF PRINCIPLE 148 (1985) (-Not all of the battle, ssithm literaO criticism are edifying or even comprehensible, but many more theories of interpretation have been defended in literature than in law .... "). 19. BLOOM, supra note 6. 20. HAROLD BLOOM.
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