Roark, Loneliness and the Law: Solitude, Action and Power in the Living Speech of James Boyd White

Marc Lane Roark, University of Tulsa, has posted a new paper, Loneliness and the Law: Solitude, Action, and Power in the Living Speech of James Boyd White. Here's the abstract:

The law is filled with empty spaces - what is not written; what is not said but meant; what is unsayable or unprintable. This article describes the spaces that such emptiness creates in both individual lawyers and in the law. The article begins by considering the elements of the legal idea: the action, needed to move the idea into consciousness, and the power conveying the idea's strength to the community. Proceeding from this framework, part one focuses on the loneliness that fosters legal ideas. Describing four types of loneliness: Indeterminacy, Resentment, Contemplation, and Exile, the article considers how these types of loneliness are revealed in the jurisprudence surrounding the African-American (Plessy v. Ferguson to Brown v. Board of Education) and the Asian American (Yick Wo and Korematsu) equality lines of cases. The article argues that the silent spaces of these opinions reveal as much as the written opinions.

Part 2 considers the action of the idea - both the movement of the idea from the consciousness to the material world, and the realization every lawyer comes to that his work is mere repetition. Focusing on the same line of cases, this part demonstrates how even the cases that suppose a positive change in the law, are repetitious in some ways of the past. The article suggests that the recognition of this repetition, is not only necessary but unavoidable for the lawyer-scholar to define himself.

Finally, Part 3 describes the power of the idea, lifting it out of the constraints of the material and into the spaces of the normative. Utilizing the description of place and space, the article captures the essence of grounding normative ideas into materiality and vice versa. The article however contains a cautionary tale in that certain ideas, when they become normative, can leave manifestations already materialized left to wither alone and with no normative identity (or an identity long passed). Utilizing the analogy of law as liturgy, the Article suggests that the silent spaces both tell us what the law is and what the law is not - revealing the true character of the material manifestation.