James Boyd White
Keep Law Alive
Durham, North Carolina:Carolina Academic
Press, 2019, 184 pp.
ISBN:978-1-5310-1507-7
«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
mention.
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
Forewordxiii
Legal Knowledge as an Art: Reading (and Writing) a
Statute3
What Lawyers Know 4
The Lawyer as Writer 7
The Model Penal Code 10
Codifying the Criminal Law11
Interpretation12
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 Opinion23
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
Expression100
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
Irrationality125
Human Slavery128
Democracy and Empire 130
Difficulty and Responsibility in the Face of Evil135
Reading Augustine’s Confessions 138
Translations138
The Narrative139
Transformations140
Failure and Conversion141
After the Narrative 142
Memory143
Time143
Genesis144
The Modern Lawyer 145
Antigone Voilée147
Afterword155
Works Cited161
Cases Cited165
James Boyd Whiteis the L. Hart Wright Collegiate Professor of Law Emeritus at the
University of Michigan Law School.
