Legal Commentary

Yesterday's NY Times contains this memoir by Reynolds Price recounting and reflecting on his time at Oxford in the '50s as a Rhodes Scholar (yes, yes, it also contains a review of that other book).  Price was my teacher at Duke in the early '90s and an absolutely wonderful man.  One could take Milton with Price or with Stanley Fish.  Fish was part of the hot literary theory circle that included such other giants of postmodernity as the self-described "cultural Marxist" Frederic Jameson.  At the time, all of this was truly the cat's meow of the English and literature departments, and its tentacles wriggled far and deep into the intellectual culture; philosophy, romance languages, even classical languages -- all were affected.  As a result I gravitated away from him and it when it came to Milton, preferring by temperament the more traditional approach of scholars like Price and the late Wallace Fowlie, whose Proust class was a delight (in retrospect, in light of Professor Fish's subsequent anti-textualist forays, it might have been worthwhile to absorb him in his own literary milieu). 

The Times review led me to wonder whether memoir has ever been a mode of writing that caught fire in legal academic circles.  There is admittedly something of the self-referential in memoirs, more than a bit of navel-gazing, and the form has traditionally been reserved for wiser and older souls as a kind of sunset piece of self-indulgence.  The review points out that the memoir has recently been vulnerable to frauds who invent psychosocial traumas and claim them as autobiography.  Given these unsavory developments, is there anything of value in memoir for the legal academic?

My neophyte sense is that the answer for most would be no as things presently stand.  Legal academics tend to lead scholarly lives facing outward -- they are ever oriented toward the world's common business.  And the business of law is policy, what is good for us all.  The picture of the self that emerges from legal scholarship is of utility, extroversion, and au courantisme.  As a general guiding ethos, this is entirely as it should be.  Law is a practical endeavor and policies must be perpetually conceived, discarded, reconceived, and re-discarded to feed the world's gargantuan hunger for the next best plan.  No one, least of all the lawyer, stands outside that world.

But taken as an imperative, as a necessary attitude toward scholarship from which one ought never to deviate, can this ethos take on a life of its own?  Does it begin to resemble a kind of Project Runway for the legal academy?  Perhaps something is lost when one's own peculiar contributions (now outdated, defunct, and displaced) to the soup of intellectual experience are forgotten -- forgotten willfully so as to make way (clear out!) for the unabating parade of new ideas.   

The memoir may offer something here.  As that form of writing most directly devoted to the recollection and preservation of past experience -- to memory -- the memoir is a form that requires an inward turn.  At its best, the memoir demands that its writer chip off the incrustations of the conventional categories of success and gaze backward, attempting a synthesis of past ideas and experiences all at once.  One might say that the memoir may be one avenue -- maybe a fruitful one -- to reach a mode of scholarship that has much in common with the history of ideas, where the writer is intimately familiar both with the history and the ideas. 

Taken this way, the memoir may offer future generations of legal historians a different sort of primary source -- one that was written self-consciously.  Naturally, when one writes a memoir, when one delves into one's own past to achieve this synthesis, what is excavated and ultimately produced will be confused and overlaid with strata of accretions and emotional souvenirs.  It will be decidedly "impure."  But to return for a moment to Proust, at least part of the value of any type of writing, including legal academic writing, I suppose, lies exactly in the expression of a single person's unique sensibilities -- those that are particular to him or her and unrepeatable.  The aim of memoir ought to be to recapture and synthesize those memories in a fresh light, the mellow light of later experience.  One kind of objection to this idea would be that memoir is useless because we know so much more now than we did then; yes, and our memories are what we know.   Another type of objection would be that the legal memoir would not contain anything that anyone would care to read.  Maybe the best response is the example of Proust himself -- the episode of the madeleine, once evoked, provoked an inexhaustibly beautiful torrent.  Admittedly, Proust did not write memoirs.  Perhaps the form of legal writing that I am imagining is something else.        

Footnote: Whatever the cogency of these musings, it is probably best to wait a good decade or two before "going memoir."  The legal academic memoirist ought to have achieved a certain seasoning for this to be a plausible enterprise.  And yes, there is vanity in the memoir.  But I wonder very much whether it is any greater than the vanity in the more usual forms of legal academic writing.