15 November 2012


'Law is not Turgid and Literature not Soft and Fleshy: Gendering and Heteronormativity in Law and Literature Scholarship' by Greta Olson in 36 Australian Feminist Law Journal (2012) 65-86
uncovers a pattern of gendering in Law and Literature research that has contributed to limited understandings of the disciplines, taken singly, as well as to the projection of a heteronormative script on their relations to one another. This includes the troping of literature as feminine and that of law as masculine, and the emplotment of their relationship as that of an initially antagonistic yet ultimately satisfying heterosexual romance. Accordingly, actual forms of discrimination towards women are confused with contradictory images of a feminized literature as an empathetic, eloquent and morally superior woman. This idealized image of literature is figured as initially suffering under the regime of rationalistic, masculinized law but then reforming ‘him’ through the power of love. To posit law as a man and literature as a woman is to elide their similarities and reify their differences. After assembling evidence of gendering in US American Law and Literature work and to a lesser degree in British critical jurisprudence, the essay outlines historical reasons for why it is problematic to think of literature as morally uplifting and feminine and law as ‘brutish’ and masculine. Instances of ethical and contingent applications of law speak against any monolithic narrative that suggests that literature is inherently more morally conscious. Literature has proven to be a privileged forum for doing the police work of enforcing the gender binary as well as for maintaining other social divisions. In closing, the essay describes strategies to degender Law and Literature in an effort to move the conversation forward. 

Olson comments that -
What then might be some less sexist and heteronormative trajectories for Law and Literature? In the first case connections need to be made between specific legal cultures and the projections of gendered divisions onto these cultures’ laws and literary texts. Indivisible from their socio-historical contexts, law and literature need to be addressed in terms of their discursive and processual interrelatedness. This emphasis on overlaps may be pursued under the rubric of Law and Literature. Yet as the remarks above have shown, the pattern of idealising and feminising literature and derogating law as unfeeling and masculine appears to be a powerful template in Law and Literature. A slippage between categories occurs, and differences are reiterated rather than contested. In the case of much US American work, stereotypes about women and women’s better moral character endemic to the nineteenth-century novel are projected onto an anthropomorphised version of literature. In British critical jurisprudence, the feminised absolute Other is confused with gendered subalterns who suffer under prevailing legal practices. 
What then might be some strategies for avoiding the limitations of the gender binary? Firstly, Law and Literature need to address literature and its institutions with similarly critical perspectives as those that have been taken to law. The monolithic rendering of law as ethically challenged and manly and literature as a repository of teaching the ‘good’ and feminine has failed to address the latter’s enmeshment in hierarchies of power. One needs to be just as canny about the ideological commitments of literature and literary valuations as one is critical of abuses of law. I contend that the critique of law that has been consistently undertaken in Law and Literature scholarship during the last forty years has not been matched by a similarly critical interrogation of literature from within the interdiscipline. Secondly, I would advocate a move towards understanding both law and literature as cultural practices that manifest themselves in texts. This might help practitioners to avoid resorting to the gendered figurations of literature that have proven to be so dominant. Another strategy for degendering Law and Literature may be to concentrate on medial forms other than the nineteenth-century realist novel. A certain distrust of what might be called the medial and visual turn in legal practice that is amply apparent, for example in Richard Sherwin’s work, may absolve scholars from idealising and feminising The Sopranos (1999-2007) or CSI (2000-) as much as they might be inclined to do a Dickens novel. 
In this essay I have sought to uncover two discursive patterns of gendering in Law and Literature scholarship. In the first instance the novel or literary prose is equated with a morally superior woman, or, in more psychoanalytic work, with a more ethical feminine Other. This pattern necessarily involves figuring law as an ethically stunted man. In the second case the gendering transpires less obviously: the novel becomes the locus of speech for feminised persons who have had injustices done to them in legal practices. Alternatively, in postmodern jurisprudence that is informed by an ethics of alterity, the face of the Other is imagined as a feminised subaltern, an eloquent suffering Other who calls law to a justice of contingency. This gendering works prescriptively to reinforce not only disciplinary divisions between law and literature but also to reify what many individuals experience as the prison house of the man/woman binary. Furthermore, gendering in Law and Literature functions to enforce a heteronormative script that suggests that both law and literature will remain unfulfilled unless they complete one another erotically. Law, I want to argue, is not inherently ‘turgid and hard’ and literature is not intrinsically ‘soft and fleshy’: it also partakes in maintaining social distinctions that involve access, privilege and material goods. 
I wish to reiterate that my purpose in this essay has not been to equate the feminist critique of law with the heteronormative gendering that transpires in Law and Literature scholarship. Whether a critique of the assumption that the legal subject is a man with property or the sexist assumptions that have been at the basis of many laws and legal cases dealing with abortion, rape, marriage, custody rights and taxation, this work has methodically opened up legal practice to a recognition of areas of former occlusion. Rather I have wanted to show that the gendering of law as masculine and literature as feminine does a disservice to individual men and women and those persons who do not readily fit into these identity assignments. It also fortifies existing disciplinary boundaries within Law and Literature rather than dismantling them. This gendering reifies assumptions about difference that may in turn reinforce forms of prejudice that will enter through another door. We are back to a low point in gender theory that ‘men are from Mars and women from Venus’. My suggestion for the future of Law and Literature is that we depart from a reliance on the tropes of the romance narrative, that we acknowledge both law’s and literature’s different and overlapping histories of gendering subjects in narrow and prescriptive ways. Let us move on then to a degendered form of dialogue.
'Text Work as Identity Work for Legal Writers: How Writing Texts Contribute to the Construction of a Professional Identity' by Shelley Kierstead & Erika Abner in 9 Legal Communication & Rhetoric: JALWD (2012) indicates that
 The authors conduct an analysis of a number of first year and practitioner legal writing texts in order to examine whether and how these texts focus on the development of a legal identity: in particular, through the creation of a personal, professional, or discoursal voice. The question of creation of a legal identity is significant, in part, because of the increased focus on teaching and learning professionalism and professional behaviors, both within law schools and in practice. The authors conclude that there is a limited focus within the texts on the identity work inherent in learning to write with authority under conditions of uncertainty. The social practice of writing tends to be under-emphasized.
Kierstead & Abner comment that
The legal writing literature is consistent with the literature on doctoral students in its limited focus on the identity work inherent in learning to write with authority under conditions of uncertainty; the social practice of writing receives relatively little attention. 
Within the context of the three apprenticeships described earlier in this work, first-year writing texts provide quite strong coverage of the first apprenticeship - learning to “think like a lawyer.” Additionally, in providing samples and directions for writing particular legal documents, they provide a good foundation for students to begin engaging in the second apprenticeship of technical expertise, though the conflation of good legal writing with good writing might be seen to underplay the extent to which the development of this expertise requires hard work with a unique writing approach. Further, the texts tend to underestimate the extent to which actual work within the community of practice will affect the development of technical writing competence. 
Consistent with other accounts of legal education,  the first apprenticeship does seem to overshadow the other two within the texts. Though first-year texts make some reference to professional responsibility and client service, these references are minimal compared to the coverage of legal analysis and formulas for completing legal writing tasks. There seems to be room for attention to further linkages between personal values and interests, and how these factors work with others to shape the written products that ultimately represent the lawyer to the rest of the profession, and potentially to broader audiences. There is also, we argue, potential for the texts to adopt a more nuanced teacher–learner approach that recognizes the multi-faceted, recursive nature of the writing process. The practitioner texts do address all of the three apprenticeships: the intellectual aspects of writing, the skills aspects of writing (generally the purpose of each book), and either implicitly or explicitly, the identity aspects of writing. Lawyers are positioned as powerful in their control over writing through their ability to confuse, to hide, to manipulate, to create clarity, or to persuade. The identity aspects of these texts also include a component of what we can only describe as the “self-loathing lawyer”: lawyer-authors who apparently find their community to be populated by a particular kind of malefactor. The texts may also promote the expert–novice relationship between author and new lawyer, based on the author’s considerable experience. Students are encouraged to embrace the authors’ views of effective legal writing, whatever it may be, as an antidote to a prevailing culture of poor writing. The message to students and lawyers is that if they do not make the effort to write well, they are implicated in the community’s indifference to good writing. 
A number of interesting trends and contrasts emerge from the legal writing literature. Writer’s “voice” tends to receive a similar degree of coverage in both the first-year and practitioner texts. Contrasts emerge, however, in relation to the representation of the legal writer. The range of descriptions found within practitioner texts is not replicated in the first-year texts, which tend to quite consistently characterize the writer as a problem solver. Likewise, the negative rationales for poor legal writing found within the practitioner texts do not appear within the first-year texts. These “disconnects” seem likely to create dissonance for young professionals in still-early stages of identity development. Neither set of texts explicitly recognizes the depth of transitional issues in writing in school and writing at work. 
The findings within this study are important at a number of levels. At a very basic level, they clarify that texts do contain both spoken and unspoken messages that have the potential to contribute to the manner in which professional identity is shaped. An awareness of these messages provides rich potential for discussion with students and for students to engage with the identity question, including their acknowledgment of “self” as part of the writing process. The simple (yet express) articulation for students that they are entering into a new discourse community that is difficult, and at times unsettling, may decrease the extent to which many of them feel alienated from law, particularly within their first year of study. Introducing students to “templates” for legal documents such as memoranda and advice letters after they have become familiar with legal analysis skills and legal language more generally may allow them to recognize the connection between personal and professional written identity before they are asked to become conversant with technical document format requirements. (There is, after all, no requirement that specific kinds of legal documents be taught in the first year even if there is a requirement that legal writing be taught in the first year.) Further, recognizing legal writing as difficult work that does not necessarily flow naturally from one’s prior writing experience can be empowering to the struggling legal writer. Identifying for upper-year students the challenges of multi-functionality, complexity, and power relations that they can expect to face when transitioning into a work setting has the potential to better prepare them for their post–law school career. Students may need to understand how to manage the advice literature that minimizes or denigrates lawyers’ commitment to a professional identity that includes effective writing. 
Similarly, practitioner texts could assist new lawyers by acknowledging and surfacing the transition issues from writing in school to writing at work, in particular, by identifying the multiple power relations inherent in many documents. Such texts could provide support for the complexity of learning about document rhetoric - audience, purpose, and tone - across a range of document types. Given the nature and complexity of lawyers’ writing, simplified frameworks are only marginally useful. Rather than rely primarily on the author’s individual experience (while valuable), authors could investigate and provide evidence-informed rules and guidelines. Finally, authors could provide positive representation of lawyers as problem framers and problem solvers within an ethical approach to the administration of justice and the creation of relationships.