Frank Pasquale on Law and Language
Frank Pasquale has a very interesting post on Concurring Opinions on James Boyd White's When Words Lose Their Meaning.
White's solution to such a dilemma is to call for the use of language that is "literary--merging fact, value, and reason, fusing the particular and the general, uniting thought and emotion, logic and image--rather than theoretical or conceptual" (229). He insists that "the law is less a branch of the social sciences than of the humanities in that it seeks not to be a closed system but an open one" (273). That may well be an overreaction to the types of Law & Econ and CLS dominant at the time he wrote the book (1984). But it is a good guiding sentiment for how we allow the specialized vocabularies of other fields of knowledge to inform our work. . . . and how much confidence we should have in the degree of fit between our own conceptual apparatus and a messy world.
White's project for language is more constructive than that of Derrida, J. Hillis Miller, or even Stanley Fish (whose interpretive community argument is similar to White's textual community). But it's striking to me your note about when the book was written and its historical context. Compare it to now, with the rise of ELS and the comparative stagnation of other critical theories. Even CRT now is more heavily influenced by the social sciences (social network theory, behavioral psychology, implicit cognition) than the humanities. Whither textual deconstruction or "storytelling"?
What's interesting is that White was making an argument for a "literary" use of language as applied to the law, which would imply the support of constructive narrativity. Ironic when you think that at the same time the dominant project in the literature departments was to trash text, just as CLS trashed legal rules. Still, if law is more like the humanities than the social sciences, then it could do worse than to pick a discipline that (whether decontructionist or constructivist) was always concerned with the interpretation of language rather than metrics.
I say all of this, but for my SJD I'm going to do an organizational theory and an empirical project on the FMLA. Such is the current trend in my department.
If I have time I'll try to do a more developed follow up post here.