Imprescindible porque vital

James Boyd White

Keep Law Alive

Durham, North Carolina:Carolina Academic
Press, 2019, 184 pp.


«My idea
in this book is to express my sense of what law is like at its best—how it
works, what it offers us, and what it requires of us, both as lawyers and as
citizens, and what it would mean to lose it. I want to do this at this time in
history because, as I say immediately below, I think the law as we know it is
subject to serious threats today, threats I elaborate both explicitly and
implicitly in the body of the book.

The book begins
with an immersion in legal thinking of a kind I believe to be of a high and
traditional order, and ends with the recognition of another sort of thinking
and being which I think may help us live with and respond to the threats I

In it I speak
from a world—the world of law and democratic government in which I grew up and
was educated and led most of my working life—that is now in peril in our
country. This world was built upon the imperfect but real assumption that our
polity is a constitutional democracy, based upon a fundamentally reliable
electoral process, and that, with all its defects—some of them serious
indeed—law is an institution that should be treated with utmost respect as an
essential and valuable part of our public world.»


Acknowledgments xi


Legal Knowledge as an Art: Reading (and Writing) a

What Lawyers Know 4

The Lawyer as Writer 7

The Model Penal Code 10

Codifying the Criminal Law11


Putting the Code to Work14

Conflicts of Discourse and of Purpose15

Facing Tensions and Contradictions18

Legal Knowledge as an Art: Reading (and Writing) a
Judicial Opinion

Schenck v. United States25

Abrams v. United States28

Holmes’s Opinion in Dissent 31

The Beginnings of First Amendment Law34

Difficulty and Paradox37

An Act of Imagination39

Legal Knowledge as a Writer’s Knowledge41

What’s Wrong with our Talk about Race? 45

Huckleberry Finn46

The Problem of Race-Talk 48

The National Narrative50

What Is Race?52

The Unique Experience of African Americans54

Stereotype vs. Malevolence58

Abstract Judicial Language61

The “Cost” to the White Student62

How Should We Think about Race?63

Civil War Amendments64

“State Action”66

Justice Douglas69

Which Race?71

The “Fact” of “Race”74

The Language of War 75

Tensions Defining the Art of Law 81

Law as Language 82

Tensions in Legal Thought and Expression 85

Between Legal Language and Ordinary Language85

Between Law and Other Specialized Languages88

Between Opposing Lawyers89

Between Competing but Plausible Readings of the Law91

Between Substance and Procedure93

Between the Particular and the General94

Between Law and Justice95

Between the Past and Present — and the Future Too97

Addressing These Tensions in Writing 97

Consequences 98

The Law Is Not the Rules98

The Law Is Not Policy99

The Law Establishes a Set of Possibilities for Original Thought and

The Law Is an Art of Mind and Language102

What Does This Mean about Justice? 103

Law, Economics, and Torture107

Making the Rich Richer 109

The Consumer Dream and the Ideology of the Market110

Advertising and Propaganda112

The Fact of Empire113

Democracy at Work115

The Disappearance of Law 115

The Courts and the Law Schools116

Cost-Benefit Analysis119

What Law Can Be120

Dehumanization 122

The Propaganda of Torture123

“The Need for Information”124


Human Slavery128

Democracy and Empire 130

Difficulty and Responsibility in the Face of Evil135

Reading Augustine’s Confessions 138


The Narrative139


Failure and Conversion141

After the Narrative 142




The Modern Lawyer 145

Antigone Voilée147



Works Cited161

Cases Cited165

James Boyd Whiteis the L. Hart Wright Collegiate Professor of Law Emeritus at the
University of Michigan Law School.

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