Lessons in Legal Literacy: Democratizing Legal Critique as a Means of Resisting Racial Injustice

On the afternoon of August 9, 2014, an 18-year-old African American man lay dead on a street in Ferguson, Missouri. A police officer had shot him at least six times during an altercation that no one on the scene could quite understand or explain. The young man, Michael Brown, was unarmed. Moments earlier, he had taken a few packages of cigarillos from a convenience store – it is not clear whether that action was a theft or the retrieval of his own property from an earlier trip to the same store. At worst, it was a petty crime and the type of offense that, on another day or in another town, might have elicited a stop and possibly an arrest. On this day, in this town, Michael Brown could hardly have imagined that he was putting his life in danger when he reached behind the counter and took the cigarillos without paying for them. Nevertheless, Brown was dead moments later, following a struggle at the window of Darren Wilson’s police cruiser and a brief pursuit in the street. The entire interaction between Brown and Wilson lasted just 90 seconds. ¹

In the days that followed, protesters took to the streets of Ferguson, outraged amid reports that Wilson had shot the unarmed Brown while Brown’s hands were raised in surrender. ² Police responded to the protests in full force, brandishing billy clubs and riot shields. The aftermath of Michael Brown’s death included a three-month grand jury hearing, which failed to produce an indictment of Darren Wilson, and a U.S. Department of Justice investigation into civil rights violations by the Ferguson Police Department. The violence in Ferguson thus provoked intense debate about the killing of Michael Brown, the function of law enforcement, and the nature of protest in general. To this day, the mere word “Ferguson” conjures associations not only with Michael Brown, but also with police violence, institutionalized racism, and the birth of the Black Lives Matter movement.

Despite this uptick in public awareness and debate, there nevertheless remains a cultural gap across which people continue to debate the very existence of racial injustice in the United States. Rhetorics of colorblindness and post-racial politics continue to compete with examples of both illegal and legalized racism ranging from police violence and mass incarceration to anti-Muslim and white supremacist political campaign discourse. ³ Paradoxically, evidence of racial injustice is increasingly visible, public, and overt, even as public opinion appears increasingly divided on both the existence and degree of racial injustice in the United States. Even a term such as “racial injustice” exposes several semantic and philosophical problems inherent in this cultural landscape. The American legal system does not purport to eradicate or even name racial justice; rather, it sets the terms on which specific types of behavior constitute unacceptable – some might say, unjust – levels of discrimination, prejudice, and bias.

This commentary first uses the case of Michael Brown to provide an example of how law and the humanities – and particularly literary analysis – can do some of the cultural and scholarly labor of naming and toppling the architecture of oppressive and racist legal institutions and proceedings. A close reading of Ferguson grand jury materials thus posits humanist critique of law as one means of identifying and resisting racial injustice. With that example in mind, the second part of this commentary examines possibilities for equipping non-practitioners and non-scholars with the methodological tools of similar legal humanist critique. Using my own experience as an undergraduate educator, I demonstrate how legal humanities work in the classroom has the potential to empower laypeople as competent legal critics. I argue that the skills associated with legal humanist critique give way to broader conversations about law and justice.

Law and humanities work thus offers particular promise for reckoning with a cultural problem like racial injustice – the scope and shape of which extends outside legal institutions and legal texts, infiltrating the prosaic and the material as well as the theoretical. For vulnerable populations, contending with racial injustice frequently occurs on the level of the body and the ways that one takes up space in the world, the ways that one literally comes into contact with law or law enforcement. For the vulnerable, racial “injustice” is not a concept capable of redress; it is the constant threat of physical violence and economic oppression. Thus, the interpretation of legalized racial injustice brings into relief what Robert Cover alluded to when he wrote that “[l]egal interpretation takes place in a field of pain and death.” ⁴ For privileged populations on the other hand (taking into account that privilege itself takes many forms), contending with racial injustice often means re-learning and de-familiarizing accepted narratives of racial justice and narratives of American law as a sacred cultural institution.

As Christopher Tomlins writes in discussing the relationship of law to justice, the two exist in “codependent” relation to one another; for Tomlins, justice itself is a historical concept. ⁵ In practice, law reveals changing notions of “justice” through the things it deems permissible or impermissible. Under what conditions may individuals and businesses refuse service to potential customers or refuse to hire prospective employees? When is it permissible for police officers to use deadly force against civilians? Under whose authority is a person legible as a subject, a legal person entitled not only to punishment under law but also protection in the name of law? These are the questions that law answers, though it rarely announces itself so explicitly.

These questions also put pressure on the boundaries of law itself, making it difficult to discern where law ends and interpretation of law begins. Similar questions arise around the border between legal theory and legal praxis, or between judicial/legislative law and law enforcement. When considered from some point of abstraction or theorization, the porousness of these boundaries complicates the project of critique. It is perhaps most helpful here to think of law as the multi-faceted social contract by which we, as members of the nation-state, have agreed to be governed. Law is that body of rules and the codes of conduct that dictate the terms on which we interact with one another and the extent to which we have a right to be left alone. I use “law” to include all positive law such as statutes, regulations, and judicial opinions, but I also understand that term to be a referent for the various legal institutions and actors charged with upholding and applying law. Those institutions include legislatures, courts, and perhaps most relevantly here, law enforcement organizations and officials. Thus, law’s presence is both theoretical and material – it is a system of ideas that comprise what we may describe as “justice,” as well as the structures that enforce and apply those ideas. As discussed here and suggested by the Michael Brown case, however, legal systems nevertheless may become agents and instruments of injustice.

By contrast, when I refer to “law and the humanities,” or “the legal humanities,” I refer to the interdisciplinary scholarly community that targets the intersections between legal scholarship/practice and the humanities. Law and humanities scholarship seeks to develop a rich understanding of how these distinct disciplinary fields actually consist of overlapping contours, content, and political investments. Knowledge production in law and the humanities frequently strives for a humanist critique of legal events or a legal analysis of fictional or textual representations of law. In this piece, however, I am thinking more specifically about the overlap between the legal humanities and the so-called public humanities, which consider the humanities as part of the collective political and cultural landscape. Because the public humanities understand art and cultural production as part of our collective memory, the legal humanities are particularly capable of identifying and critiquing law as one of our most significant cultural institutions.

The case of Michael Brown is particularly instructive here because his death rehearses the immediate, intense physical danger of racial injustice, and its aftermath demonstrates the need for collectively re-learning and re-crafting deeply ingrained cultural narratives about law. Almost immediately, Michael Brown’s death became a site of contested narratives of racial justice and injustice. Was Darren Wilson justified in shooting him? Did Brown somehow invite lethal force? What could have transpired in just a minute and a half that could explain the loss of a life over a few packs of cigarillos? Brown’s reported posture of surrender further complicated the efforts to make sense out of his death. The subsequent grand jury proceedings, which failed to produce an indictment of Darren Wilson, purported to be a referendum on these events surrounding Brown’s death.

Grand jury proceedings, though not trial proceedings and thus technically not evidence of guilt or innocence, frequently take the shape of preliminary trials. Such was the case in Ferguson where, by failing to indict Wilson, the grand jury thus foreclosed a host of legal questions that might have been raised in a full trial. For all practical purposes, a failure to indict was the equivalent of a “not guilty” verdict at trial – it operated to exonerate Wilson’s actions, cloaking the use of lethal force within the range of permissible, legal violence against civilians and building a legal narrative about the criminality and inherent danger of black civilians in particular.

The prosecutor, Robert McCulloch, explicitly invoked the language of narrative in his description of the grand jury investigation. In evaluating the grand jury’s function, McCulloch claimed, “It is the duty of the grand jury to separate fact from fiction.” ⁶ McCulloch’s characterization is noteworthy not so much for its inaccuracy – indeed, all juries deal with fact, whether through grand jury investigations or trial findings – as for its uncritical adoption of the language of narrative and fictionality into grand jury duties. On the one hand, McCulloch suggests that the grand jury’s province is solely that of fact-finding and an extraction of “true” facts from fictitious or “false” ones. For McCulloch, this process is one of sifting and sorting, a sense-making protocol that encodes information as either true or false, real or imagined, actual or fabricated.

On the other hand, however, McCulloch alludes – perhaps unintentionally – to the limitations on any fact-driven discourse of logic. His reductive characterization of data as either fact or fiction loses traction under the slightest pressure. What of “facts” that are genuinely disputed by two parties? How does a grand jury or a trial jury account for which version of the “facts” is the most accurate and therefore the least fictional? Moreover, what of facts that are presented to juries in ways that predispose jury members to reach certain conclusions or that confirm various biases? When “facts” are presented as self-evident but are undeniably subject to the pressures and conditions of authorial gestures, how else to characterize a legal proceeding other than “fictional”? ⁷ The discursive moves that attempt to conceal an authorial hand do not however disqualify legal proceedings from belonging to a system of carefully constructed meaning.

Setting aside the question of “fictionality” as it pertains to inaccuracy or falsity, constructions of meaning – authorship – in the context of legal proceedings thus take on different dimensions. In this light, legal proceedings might be read as artifacts that are shaped by cultural narratives and simultaneously act upon those narratives. Consequently, proceedings claiming to be engaged in fact-finding begin to look less like the discovery or confirmation of “truth” than the traces and outgrowths of deeply ingrained cultural narratives. The Ferguson grand jury’s failure to indict Darren Wilson is often cited as one such example of cultural narratives dominating the legal outcome – in that case, cultural stereotypes and narratives about black criminality are suspected to have undermined the legal process by effectively cosigning Wilson’s use of violence against Michael Brown.

Indeed, documents from the Ferguson grand jury investigation raise far more questions than they answer about what happened to Michael Brown on August 9, 2014. Before offering specific examples from the Ferguson grand jury materials, it may be helpful here to provide some context on grand jury procedure. Prosecutors typically convene grand juries in order to obtain indictments and proceed to the trial stage for criminal prosecutions. During grand jury investigations, prosecutors provide jurors with documentary evidence and examine witnesses. The putative defendant is not a party to grand jury proceedings, which are conducted in secret; the “defendant” may not cross-examine witnesses in grand jury proceedings, though he or she may, in rare circumstances, testify before the grand jury. ⁸ As directed by the prosecutors in the Ferguson case, the jurors were tasked with determining whether probable cause existed to justify a trial of Darren Wilson for his use of lethal force against Michael Brown. Rather than determining guilt or innocence, this lower legal standard determines the existence of sufficient evidence to warrant a full criminal trial; moreover, the grand jury selects which specific criminal charge(s), if any, should proceed to the trial stage.

In the Ferguson grand jury proceeding, prosecutors prepared indictments for the following crimes: murder in the first degree, murder in the second degree, and voluntary manslaughter. ⁹ As noted, the grand jury failed to return an indictment for any of those crimes. Following regular procedure, the Ferguson prosecutors prepared summaries of the relevant laws for the grand jurors, including the elements of proof for each crime. The grand jurors then began their deliberations, consulting volumes of witness transcripts, as well as the documentary evidence they received during the proceedings. Those documents included a medical examiner’s reports concerning Brown’s autopsy and postmortem examination, toxicology reports for Michael Brown, and other law enforcement and forensic items connected to the investigation of the shooting. Significantly, because Wilson alleged that Brown had assaulted him, some of the documentary evidence lists Wilson as “VICTIM” and Brown as “SUSPECT,” ¹⁰ despite the fact that the jury was considering whether or not to indict Wilson for Brown’s murder and not vice versa. Thus, by framing Brown as potential criminal and Wilson as victim, the law enforcement records produce conflicting narratives of culpability, criminality, and victimhood.

One document, however, generates a particularly troubling narrative. Grand jurors in Ferguson received several materials connected with Michael Brown’s autopsy and post-mortem examinations. These documents provide detailed descriptions, in clinical terms, of Brown’s body and its condition following his fatal shooting. In addition to these medical reports, a “medicolegal investigator” in the Medical Examiner’s office also prepared a Narrative Report of Investigation. That report describes the body as discovered at the scene and summarizes the events preceding the shooting as reported by members of the St. Louis County Police Department.

The admissibility of autopsy and medical examiner reports has been contentious as a general legal historical matter, splitting courts on the question of whether and when the admission of such documents violates the Confrontation Clause. In the Ferguson case, prosecutors advised the grand jurors, “In any actual criminal trial, the report of the medical examiner, the police reports . . . none of those [are] admissible in a trial because the report itself is hearsay.” ¹¹ It is unclear whether the medical examiner reports would be admissible pursuant to a hearsay exception or the testimonial authentication of the person(s) who prepared them. In any case, however, the grand jury had access to such documents in their deliberations regarding possible indictments of Wilson. These reports thus ostensibly informed the narrative constructed for and by the grand jury in their decision to decline further criminal prosecution of Wilson in connection with Brown’s death. That narrative dehumanizes Michael Brown and legitimizes Darren Wilson’s authority.

In the Narrative Report of Investigation (2), the St. Louis County Medical Examiner offers a physical description of Brown’s corpse, followed by another description of the reported events leading up to Brown’s death. The report states in part:

The deceased became belligerent towards Officer WILSON. As Officer WILSON attempted to exit out of his patrol vehicle the deceased pushed his door shut and began to struggle with Officer WILSON, during the struggle the Officers [sic] weapon was un-holstered. The weapon discharged during the struggle.

The deceased then ran down the roadway. Officer WILSON then began to chase the deceased. As he was giving chase to the deceased, the deceased turned around and ran towards Officer WILSON. Officer WILSON had his service weapon drawn, as the deceased began to run towards him, he discharged his service weapon several times. ¹²

On first glance, this narrative summary is mere bureaucratic formality. The medical report, in addition to being a forensic record, is bolstered by the weight attached to medical professional discourse, which is often accepted automatically and uncritically as scientific, rigorous, and therefore “true.” The Narrative Report appears on stationery that reads “Saint Louis County Health,” a visual detail that suggests a medical, as opposed to a law enforcement record (despite the fact that the contents of the report make clear that it relies on testimony from police officials). If anything, the technical and medical elements of the report’s language cloak the text behind layers of abstraction. The language of science, medicine, and government displace the political, the cultural, and the human.

The St. Louis County Medical Examiner’s report exemplifies how these abstractions of technical or professional language support illusory characterizations of neutrality in the fact-finding process. This particular report is remarkable for the efficiency with which it disposes of Michael Brown – both in name and in body. Despite having previously identified Brown by name at the outset of the report, this particular section refers to Brown solely as “the deceased.” Of course it is possible that the substitution of “the deceased” streamlines report templates and offers consistency and efficiency in the report drafting process. In contrast, however, the report consistently and repeatedly names Officer Wilson, capitalizing his surname for emphasis. Thus, the discrepancy in naming conventions for Brown and Wilson takes on narrative significance, whether intentional or not. The report slyly evacuates Brown’s identity and subtly legitimizes Officer Wilson. Brown’s personality is repeatedly erased, replaced instead with a signifier for the absence of personhood (“the deceased”). Rather than a noun, Brown is an adjective – dead. By contrast, Wilson is a person worthy of naming, of notice. He exists in the report as a proper noun that includes the modifier “Officer,” a reminder of his status as a government actor. If the report were a work of literary fiction, Wilson would emerge as the main character, as he is the only living person in the text. By contrast, the narrative reduces Brown to a nameless corpse, a thing whose personality precedes the narrative in time and therefore resides outside the text.

Despite the refusal to call Brown by his name, the report nevertheless reminds the reader relentlessly of Brown’s deadness. Taken out of the context of an awkward bureaucratic document, sentences such as “The deceased then ran down the roadway,” and “The deceased became belligerent . . .” are striking and horrific – they appear to describe supernatural or paranormal events in which a dead body is re-animated and activated into unnatural, zombie-like movements. Though Michael Brown only actually became “the deceased” after being fatally shot, the report figures him as a corpse even in the events that preceded his death. In the hands of the medical examiner, Michael Brown is dead even before his altercation with Darren Wilson – and his deadness is wrapped up in the implicit characterization of him as a criminal accused of threatening or assaulting a police officer. The report thus manages to chip away at Brown’s humanity and his personhood even while it makes him culpable for his own death.

Despite the fact that the report’s author almost certainly did not intend to characterize Brown as a zombie or walking corpse, the technical bureaucratic language of the medical report coaches readers into accepting these bizarre constructions of language as ordinary or commonplace. The normalization of the report’s language in turn normalizes the effect that the language creates – in this case, the characterization of Michael Brown as devoid of personality, identity, and by extension, legal personhood. Consistent with the toxicology report described above, this Narrative Report ultimately tends to characterize Wilson as the victim and Brown as the suspect.

I do not mean to claim that the medical examiner’s report was outcome-determinative in the grand jury’s decision not to indict Darren Wilson. Rather, my goal here is to offer an example of the extent to which even apparently neutral bureaucratic materials constantly engage in the project of narrative-building. Because the process of narrative-building is so diffuse, so cloaked beneath various forms of professional rhetoric, its reconstruction often demands a careful readerly eye. Ultimately, one need not look solely to judicial opinions and statutes for evidence of legalized racism and violence. Rather, even the legal materials that explicitly claim not to be offering legal narratives are frequent participants in the process of generating and altering the narrative arcs that constitute what we often only belatedly recognize as Law.

This specific medical report and the national conversation surrounding Michael Brown’s death thus raise a host of troubling questions about the relationship between law and law enforcement in contemporary American culture, particularly regarding how these institutions, through language, coalesce around black bodies. Why does American legal culture repeatedly figure black bodies as the living dead, and how does legal language leach out into larger cultural narratives about race and violence? What is the role of language and literary production in both shaping and interpreting law? The act of interpreting these artifacts as texts makes visible, by contrast, the potential of the legal humanities to unpack and critique legal institutions. By close reading a prosecutor’s public remarks or a medical examiner’s autopsy report, one begins to trace multi-disciplinary connections and trends that offer a fuller picture of how racism manifests in institutions, how it defies scrutiny, and ultimately how it does violence.

The act of close reading not only transforms the engagement with law into literary interpretation but also makes visible the theoretical, historical, and even sociological dimensions of legal culture. The equation of Michael Brown with a criminally culpable animated corpse might not accrue such significance, for instance, if black persons in the United States were not historically and repeatedly subjected to similar characterizations in law – as non-persons, as civilly dead, as criminal. Close reading, then, helps make sense of how and why certain populations have historically been vulnerable to legalized violence, it traces the legacy of earlier iterations of legalized violence, and it demonstrates law’s fallibility as well as its brutality. The yield of close reading in particular is a mode of sense-making that is portable across disciplinary divisions. While this interpretive strategy is typically the domain of literary critics and theorists, it demonstrates more generally the utility of the humanities in interpreting law’s machinations – particularly because those outside the legal profession nevertheless remain objects of law’s power and regulatory authority.

In addressing racial injustice in the United States, law and humanities work thus offers several specific interventions. First, law and the humanities has the potential to destabilize and disrupt the rhetoric of “fact,” one of law’s most pervasive technologies. Discourses of fact, as described above, obscure analysis and interpretation – inherently subjective processes of reasoning – beneath claims to the existence of a discoverable objective or essential truth. By destabilizing this rhetoric of fact and calling attention to the inherently interpretive nature of law, the legal humanities can offer sharper critiques of legal texts and legal institutions. While legal proceedings often must prioritize fact-finding as part of a fair adjudication process, the legal humanities are able to critique the rhetoric of fact-finding as itself contributing to various inequities and examples of injustice in legal institutions.

Second, the legal humanities emphasize reading law as narrative, often as a form of narrative that influences or pre-determines specific legal outcomes, and especially as historically freighted narrative that never occurs without dragging immense histories along behind it. Legal historians such as Hendrik Hartog, for instance, understand law as an interplay between positive law and everyday social practices that disrupt those legal codes in ways that evolve over time and may or may not be reflected in the language of specific legal texts. ¹³ For Hartog and others working on law’s contextual situation, the interrogation of law benefits from a multi-faceted and broad-based examination of cultural practices that might otherwise be characterized as “outside” law. The legal humanities, unbound by rules of precedent and admissibility that limit law in practice, may consider law not only as a profession or system of adjudication but also as a cultural institution. Thus, rather than focusing on the admissibility of the Michael Brown autopsy materials, for instance, a legal humanities approach might focus on the historical stereotypes of black criminality that shape the creation and reception of such documents.

Finally, law and the humanities work has the potential to empower those who are not necessarily humanities scholars, lawyers, or legal historians. I argue specifically for using legal humanities to develop legal literacy among undergraduates and laypeople, to empower them as competent legal critics. Additionally, laypeople are themselves potential future defendants, witnesses, and jurors in legal proceedings. Cultivating legal literacy as a form of citizenship also prepares these future legal actors to identify and avoid biases in the legal process. In the following portion of this commentary, I offer a specific example from my own experience as an instructor of undergraduates to demonstrate the reach of law and the humanities outside the academy and the potential for teaching legal literacy within an undergraduate humanities curriculum.

I recently taught a freshman writing seminar entitled Feminist Jurisprudence: Women in Law and Literature in my university’s Women’s and Gender Studies Program. These required first-year seminars are taught in small sections across the disciplines; while the content and course approach varies by instructor, each seminar must prioritize writing pedagogy. I was approached to teach this seminar on account of my experience as a lawyer and my research at the intersection of law and literature. Drawing on my own subject interests, I elected to teach a highly intersectional version of this course, emphasizing the connections between race and gender and tracing the long legacy of slavery in U.S. legal culture and literature. In creating the syllabus, I curated a selection of texts that included slave narratives, judicial opinions, statutes and regulations, novels, short stories, and essays. While our course materials covered a range of disciplines and genres, literary analysis was the primary skill or methodology that I asked my students to use in their engagement with the readings.

As the final research project for the course, each student located a relatively recent Supreme Court decision on gender and/or sexuality with which they disagreed. After researching and selecting their decisions, students then wrote dissenting opinions that largely mirrored the format of actual dissents: students wrote statements of fact, summaries of the procedural history and the majority opinion’s legal reasoning, and their own proposals for how the underlying case should have been decided. I submitted this assignment with considerable trepidation about its feasibility for a group of college freshmen, most of whom had only just read a judicial opinion for the first time in our course.

The assignment challenged students in several ways. First, it asked students to demonstrate several different writing skills – summary, analysis, and creative argument. Second, it required students to be proficient legal readers and at least moderately proficient legal researchers. While I assured students that they were not expected to master complicated legal histories or constitutional theories, it was evident that students would need to amass at least enough legal knowledge to understand the contours of their chosen cases, to identify possible gaps in legal reasoning, and to offer an alternative framework for deciding the underlying case. All things considered, the assignment would be a tall order for a first-year law student, much less a first-year undergraduate. As a lawyer and a scholar, I created the assignment with considerable skepticism about the ability of non-practitioners to engage in rigorous legal analysis, and I prepared myself to suspend the evaluation of legal rigor in favor of evaluating students’ general ability as writers and analysts.

My skepticism was ultimately misplaced. I was pleasantly surprised at the end of the semester to read a collection of sophisticated, nuanced, and remarkably legal interpretations of Supreme Court decisions, as well as equally creative proposals for how better to decide a range of pressing legal questions. Despite having assumed that non-practitioners – college freshmen no less! – would be unable to engage in legal analysis, I discovered that my students had become gifted in legal analysis as well as close reading. My experience reading their work encouraged me about the possibility of pursuing an agenda of legal literacy for non-practitioners and laypeople. Beyond educating people about their own legal rights and duties – undoubtedly a critical tool in combatting racial injustice – I believe that law and humanities education can be an instrument of empowerment, enabling laypeople to engage in legal critique, authorizing them to access and analyze legal materials that are typically only read by practitioners or legal scholars. Moreover, my experience with this group of college freshmen also suggests that law students would likewise benefit from greater pedagogical attention to the textual and literary dimensions of legal texts and, in particular, judicial opinions. ¹⁴

Efforts to combat racial injustice will particularly benefit from empowerment through legal-literary critique. First, many of the populations most vulnerable to racial injustice have historically been excluded from legal practice and/or academe. Thus, some of the groups most imperiled by legalized racism are also least likely to receive academic instruction in how to effectively resist or combat institutional strategies of oppression and discrimination. Second, racial injustice in the 21st century tends to operate under the cloak of professional discourse, claims of neutrality, and facially colorblind language – by being attentive in particular to the way that law acts through language, literary analysis of law has the unique potential to expose the instruments and architecture of white supremacy. Given that I identify several possible interventions for law and humanities in these issues, I offer my sense of how my students were able, over the course of a semester, to develop the skills necessary to complete their final research assignment with such facility and sophistication. ¹⁵

Despite the portability of close reading and literary analysis, I do not mean to suggest that it can or should be taught in a one-size-fits-all fashion without regard for the medium, genre, or context of the text under consideration. As a literature instructor, I frequently encounter students who resort instinctively to the language of authorial intention, lingering on un-prove-able speculations about what a literary author intended or did not intend to leave encoded in a novel, poem, or short story. Consequently, I typically spend a great deal of time impressing upon students the subtle distinction between claiming on the one hand what an author intends versus, on the other hand, what a text does. Having now taught judicial and legislative materials in several English courses, I have also noticed, however, that the impulse toward authorial intention is rarely in evidence when students encounter a legal material. Students understand that these materials are the products of human hands, but they are much less willing to discuss legal texts in these terms; they tend, instead, to simply talk about what the law is or isn’t.

Having recorded this distinction in student engagement with literary and legal texts, I consciously embarked on my semester in the freshman writing seminar with the goal of de-consecrating legal texts for students, calling attention to the texts’ authorial dimensions almost insistently. Rather than adopting common legal language regarding the actions of “the Court,” I instead referred to Supreme Court decisions by the name of the authoring justice (as a lawyer, that rhetorical gesture frequently made me surprisingly uncomfortable). In our discussion of Buck v. Bell, 274 U.S. 200 (1927), I repeatedly referred to Justice Holmes’s authorship, asking students questions about “Holmes’s description” of the relevant facts rather than employing the more common Socratic practice of asking students to simply identify the relevant facts listed in the opinion. As a general matter, I broke down the elements of a judicial opinion for students, walking them through some of the legal nuance, while insisting on it as a text hospitable to literary interpretation.

Although students had not read the Racial Integrity Act of 1924, for example (a statute central to the issue and holding in Buck v. Bell), students’ gaps in legal historical knowledge were overcome or at least matched by their literary analysis and close reading – students identified the way that the facts of Buck v. Bell appeared to have been selected from a larger universe of plausible (and arguably more “accurate” facts available to Justice Holmes). By understanding a judicial opinion as a set of literary and legal choices – as opposed to a culturally sacred emanation of legal wisdom and truth – students were, surprisingly, much better equipped to engage in legal analysis. In learning to recognize the rhetorical choices in a judicial opinion, students were able to efficiently locate the sites of potential logical pressure or fallibility. Thus, close reading emerged as a tool for engaging in legal critique through the disruption and de-familiarization of the rhetoric of “fact.” A simpler way of describing this readerly process is to note that students learned to engage with facts as social or linguistic constructions. Reading legal facts as social constructions, however, has particular implications for engagement with issues of racial injustice in the United States.

As demonstrated in the case of Michael Brown, there is a tendency both among lawyers and laypeople to assume that facts arrive in legal contexts unproblematically and that they exist in obvious or apparent distinction from legal principles. In other words, facts are analogized to raw data that is somehow beyond manipulation or even dispute. In the context of racial injustice, this discourse of fact is particularly pernicious and difficult to parse. The rhetoric of fact may, for instance, unintentionally incorporate characterizations of African Americans as dangerous, criminal, or even sub-human. Problematizing the nature of legal “facts” and pointing out the inclusion or exclusion of certain facts as an authorial choice is a critical step in exposing the ways that legal rhetoric can mask or actively participate in mechanisms of racial injustice.

Applying close reading and literary analysis to legal materials also encourages students to understand law as narrative – and specifically to understand law as an ongoing narrative history that is constantly subject to adaptation, modification, and editing. My students’ grasp of law’s narrative dimensions was one of the most noticeable reasons that their final papers succeeded. Over the course of the semester, we attended to these narrative dimensions in both micro and macro terms. We addressed the narrative of fact within individual opinions, as previously discussed, but we also traced several legal histories. In the context of reproductive rights, for example, students listened to oral arguments from Griswold v. Connecticut, 381 U.S. 479 (1965) as a first step in understanding the history of Roe v. Wade, 410 U.S. 113 (1973). By establishing the history of a landmark decision such as Roe v. Wade, students unpacked the incremental nature of legal change through precedent, and they learned to anticipate how a single court opinion might extend into future rulings with different circumstances, or how legalization of a specific conduct might establish a gateway to legalizing other conduct.

The implications here are obvious for interventions in issues of racial injustice. Recent works such as Michelle Alexander’s The New Jim Crow and Ava DuVernay’s film 13th have narrated the problem of mass incarceration as a contemporary trace or legacy of legalized slavery. The disproportionate effect of mass incarceration on communities of color is visible only through a combination of sociological data and an intimate understanding of the complex legal and political histories surrounding slavery and its abolition. Understanding current legalized means of racial discrimination depends, therefore, on thinking of law as a broad cultural narrative freighted with a long and complicated history. Close reading and literary analysis are thus opportunities to bring these long histories into the consideration of specific rhetorical or linguistic conventions of legal texts.

Finally, understanding these nuanced narrative, historical, and literary dimensions of legal materials empowers new populations to act as skilled legal critics and citizens. Despite assumptions that legal interpretation demands years of training and study, a compressed project of legal education and legal literacy-building is possible by incorporating legal study into the humanities more frequently and consistently. After a single semester of partial legal study (at least half of my course was devoted to reading and discussing works of literary fiction and non-fiction essays), my freshman students had developed and refined their skills as sophisticated legal critics. Their final projects considered issues ranging from sexual orientation discrimination to employer-provided coverage of contraception to statutory provisions regarding paid maternity leave.

Despite my cautions against getting lost in a sea of incomprehensible legal research, each student traced at least a partial legal history based on the cases cited in the majority opinion, as well as conducting outside academic research regarding the specific issue under consideration. In several cases, students read and interpreted state or federal statutes that were the subject of their chosen opinions, and other students acquainted themselves with standards of constitutional interpretation. In short, the single most important preparation for legal research and analysis appears to have been the development of strong close reading and analytical skills that students then transported into a variety of related but distinct legal contexts.

Given the tendency of racial violence and injustice to lurk behind language that claims colorblindness or racial equality, it is especially critical to nurture these interpretive skills in those who live and work outside the legal profession and the academy. Competent citizenship can hardly be expected to include legal research skills – however, general facility with constitutional principles and, most importantly, literacy about the methods and pitfalls of legal reasoning and legal rhetoric can empower laypeople to engage more actively with law and to identify the sometimes unexpected ways that law perpetuates racial injustice even as it claims to do the opposite. The real yield of law and humanities work, therefore, is its potential to demystify law while recognizing law’s capacity for progress as well as terrible violence.