The Yale Law Journal

June 2005

The City and the Poet

Kenji Yoshino
114 Yale L.J. 1835 (2005)

Although it is a contemporary of law and economics, law and literature has never secured widespread uptake in the legal academy. In this Article, Professor Yoshino explains the relative anemia of the discipline and prescribes a cure. Law has an incentive to distance itself from literature, which is tainted by its perceived falsity, irrationality, and seductiveness. Yet as a textual practice, law has difficulty distinguishing itself from literature more broadly construed. Law and literature is a fraught enterprise because law must struggle with the seeming necessity and impossibility of banishing the literary from its confines.

Yoshino argues that this struggle between law and literature is so fundamental it has become an archetype. He takes Plato's banishment of the poet from the city as his paradigm case, arguing that the Platonic opposition between poetics and philosophy is an ancient analogue of the current opposition between law and literature. And while Plato's censorship of the poet is one of his most reviled ideas, Yoshino endorses Plato's approach, which can be distilled into three normative claims: (1) Literature cannot be permitted to conflict with the core functions of the state; (2) literature cannot evade accountability to those core functions by asserting an ineradicability defense that posits the impossibility of evicting literature; and (3) literature can be granted a place in the law only if it can mount a virtue defense that demonstrates that literature serves, rather than subverts, those core state functions.

Yoshino then applies the Platonic paradigm to two contemporary law-and-literature conflicts: the Supreme Court's banishment of victim-impact statements from capital trials and scholarly calls to evict personal narratives from legal scholarship. He concludes that Plato's functionalist approach provides a guide to the proper relationship between law and literature that could resolve these specific conflicts and more generally reinvigorate the field.