I write poetry." Also, since 1976, when I was admitted to practice before a state bar, I have served as a law clerk for a justice of a state supreme court, practiced, and mostly taught law. About the time that I began law school, while I was writing poems that would appear in my first book, an extraordinary change in jurisprudence began to occur, one which focused on legal language as something more than a medium for conveying singular meaning. This legal theory has become as important as any since legal realism. Because I also have written essays and re- views about literary and social issues,' I've followed it with wonder. Because I consider poetry to be, in part, an expression of a theory of language and meaning, and, as a lawyer, I look at legal texts as a profound source of political morality and economy, I've read it with scrutiny.
The difference between a literary and a legal text is fundamental. Legal texts include a language of wealth distribution, of rights, of whether to incarcerate or kill those who commit crimes. They result from, and in, socially institutionalized power. Literary texts, at most, express it. But law involves language. Legal texts must be interpreted. Theoretical intersections of language, interpretation, and meaning have become an integral part not only of twentieth century poetics, but of jurisprudence as well.
My first objective in this essay is to present certain theories of poetry that have developed this century as part of "modernism." In the introduction to The Necessary Angel, his Essays on Reality and the Imagination, Wallace Stevens (a modernist poet who doubled as a surety bond lawyer) said: "One function of the poet at any time is to discover by his [or her] own thought and feeling what seems . . . to be poetry at that time." My focus will be on what poetry has to say about language at the end of the modernist century.
I then will talk about certain theories of law. My emphasis will be on those theories that involve the way lawyers think about language and meaning. In a practical context, I will explore these theories by analyzing opinions in Planned Parenthood of Southeastern Pennsylvania v. Casey, the United States Supreme Court's recent landmark decision on a woman's constitutional right to choose to terminate a pregnancy. I hope to show that much of the jurisprudential conflict and confusion about legal texts these days--even at the level of the Supreme Court--can be seen more clearly if juxtaposed against certain notions of poetic modernism.
Theories of Poetry, Theories of Law,
46 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol46/iss5/4