Photo provided by Gardere Wynne
Lawyers interested in the more substantive variety of summer reading might want to check out Randy Gordon's Rehumanizing Law: A Theory of Law and Democracy, which came out earlier this year from University of Toronto Press. Gordon, a litigation partner specializing in antitrust work at Gardere Wynne Sewell in Dallas, also has doctorates in English and legal theory. The book explores the relationship between narrative storytelling and the law, suggesting ways to "rehumanize law by reconnecting it to its narrative roots," as Gordon says below.
In addition to his practice, Gordon is an adjunct professor at the Dedman School of Law and a lecturer in English at Southern Methodist University. He is working on another book, as well.
Lawdragon: Can you explain to our readers your motivation for writing this book?
Randy Gordon: I had been thinking about aspects of the book for over twenty years, and I finally got to the point in my career where I could undertake a research and writing project of this scope. At bottom, I suppose that I was hoping to stitch together some of my disparate interests, which range across literature and legal theory. Accordingly, I set out to offer a practical synthesis of legal and non-legal theories that had interested me for a long time and put meat to the bones of what can seem like literary or philosophical abstractions.
LD: I realize this is the huge subject of your book, but can you give a flavor of the types of conclusions or thoughts you have related to the connection between narratives and the law?
RG: You're right that most of the book in one way or another relates to the law-narrative connection, so let me briefly explain why I think that connection is important. When we think of "law" in a popular sense, we think of "rules" or the institutions that make or enforce those rules (Congress, the police, courts, etc.). But where do these rules come from and what makes them legal rules? A legal philosopher might respond by saying something like, "Law is institutional normative order" (Neil MacCormick). That seems fine. But each of the three words in this definition carries a second-order connotation that reveals as much about law's nature as its first-order denotation. To wit: Institutions have walls - sometimes literal, sometimes figurative - that keep things out. Norms are abstractions, distillations, and purifications that leave things out. Orders are systems, and systems seal things out. What are these "things" that wind up outside the law (or, perhaps more to the point, must fight to get in)?
There are many possible answers, but the one that I am concerned to examine in my work arises from narrative, which is one of the most fundamental modes of human expression. By keeping narratives at a distance or delay, law loses (and has indeed lost) some of its essential humanity. My project is, then, an attempt to explain the relationship between law and narrative, and - in the end - to suggest ways to rehumanize law by reconnecting it to its narrative roots and certain cognates in the humanities. To do this, I retell dozens of law-stories within a theoretical framework derived from literary, legal, and political theory.
LD: What practical lessons do you see for lawyers practicing today?
RG: As I mentioned before, my goal is, in part, to give practical import to concepts that are often left at a high level of abstraction. Here are two examples. First, it is something of a commonplace that law has a narrative dimension. But I don't think anyone has shown exactly (and by that I mean, among other things, at the level of process) how and why stories can become laws - and why others do not, for that matter. I do this with both legislation and common law.
Second, using T. S. Eliot's "Tradition and the Individual Talent" as a springboard, I strike an analogy between the act of literary writing and the act of judging, the latter of which is influenced by what the advocate does. Just as a poet must balance past and present, so must a judge. In the context of judging, this means that one must attend to the past (e.g., precedent) but also re-judge that past in light of the present. The advocate's job is to make this process easier by illuminating a compelling route to decision. Ultimately, I try to show that story telling - when considered as a method of arguing - can expand our understanding of how some laws come to be, other laws come to be changed, and how many laws come into democratic institutions in ways that strengthen and perpetuate those institutions.
My next book, which I'm just getting into, will focus on what it is that practicing lawyers do, so I'll have much more to say on this topic.
LD: Please talk a little bit about your education, as there are not many lawyers with a PhD. in English. How did your interest in literature and drama join up with your interest in the law?
RG: I'm of course not the first lawyer to note that the performative aspects of the law are more important than the textual ones because legal texts no more constitute the social practice of law than sheet music or scripts constitute the social practice of music or drama. For those with dramatic inclinations, then, law-as-performance is a more useful analogy than the more familiar law-as-literature comparison because the latter obscures important features of legal practice. Most important, I think, is the observation of people like J.M. Balkin and Sanford Levinson that legal practice is built on a triangular relationship among law-creating institutions, law-interpreting institutions, and persons affected by law interpretations. Performing arts share this structure in the form of author, performer, and audience. Merely reading a text collapses the roles of interpreter and audience and, thereby, diminishes the public aspect of a social practice.
More generally, works of literature are cultural artifacts, and some of them gain secondary status as part of our general storehouse of shared knowledge. Lawyers and judges reach into this storehouse from time to time and pull out novels, poems, and plays, to which they then allude as part of their rhetorical strategies in particular cases. In this context, literary works operate as a sort of shorthand:Bleak House stands for judicial inefficiency or litigation's procedural mazes, The Merchant of Venice for the limits of contract formation or enforcement, 1984 for doublespeak or governmental intrusions on privacy, etc. Second, if we extrapolate a bit from these citation-to-literature examples, we find that they are part of a wider law-and-literature intersection - namely, that between law and rhetoric. All this is to say there is a deep and natural link between literature (especially drama) and the law, so I've never really seen literature and law as separate "disciplines," even though modern universities treat them as if they were (and study them in separate buildings!).
LD: What specifically drew you into antitrust and competition law?
RG: Two things, really. First, it has a level of complexity that usually warrants careful analysis of whatever market is at issue, which gives me a chance to learn about new industries and how they do business. Second, it is highly interdisciplinary, which I find appealing, and affords me opportunities to work with leading experts in economics and other disciplines. I suppose that I'm a life-long student, always on the lookout for a chance to learn something new.
LD: Are there ways in which your expertise in critical theory and drama has helped your practice?
RG: Absolutely. In addition to developing an understanding of the performative aspects of law that I just mentioned, I would emphasize the training that you receive in literary studies. The sort of close reading of literary texts - as well as the analytical writing that goes along with it - that you are taught to practice in advanced humanities studies is directly transferable to law practice. The critical theory piece of the puzzle is especially important because it focuses you on, among other things, the limits of language, the construction of arguments, and the omnipresence of rhetoric.
LD: What legal matters are keeping you busy these days?
RG: Mostly antitrust and RICO cases, with an occasional class action thrown in. I also do a fair amount of antitrust counseling (especially on pricing and distribution issues), which has exposed me to over two dozen new industries in the last couple of years. I'm also the general counsel of a global trade association serving the semiconductor industry, which affords me opportunities to think internationally about a very dynamic and fundamental piece of the world economy - that's a real treat.
LD: Being a partner at a firm is obviously a full-time job. How and why have you made time for teaching?
RG: The "how" is fairly easy: My children are grown so I have more free time than I once did. And I enjoy teaching and writing more than playing golf, watching TV, or whatever else I could be doing with my time outside the office, so that's what I do.
The "why" is more complicated: Over 50 years ago, C.P. Snow examined the rise of what he called the "two cultures." He meant this metaphor to capture what he saw as an inability to communicate between (to comprehend across, really) communities of scientists, on the one hand, and literary intellectuals, on the other. Snow's analysis seems apt to me as a way of considering the much decried law school/law practice divide. There never was, of course, a "golden age" of American law in which legal academics and practicing lawyers toiled together harmoniously in the Garden of Justice. But I think that the whole enterprise has suffered as (1) law schools have become increasingly untethered from practical considerations and (2) law practice has moved to a model that is increasingly commercially focused. So I see it as something of an obligation - as a practicing lawyer - to do what I can to bridge (in a very small way, of course) this gulf by teaching and writing as much as I can.
LD: Is there a book you are reading this summer that you would recommend to our readers?
RG: I'm teaching a literature course this fall at SMU called "Americans in Paris" that I haven't taught in several years, so I'm rereading some old friends like Hemingway's The Sun Also Rises and Fitzgerald's Tender Is the Night. I never tire of the novels from that place and era.