399. Ihde, supra note 81, at 14.
400. E.g., Massuro, supra note 25, at 2100 n.11 (suggesting that the popularity of "voice" in legal writing "likely stems from Carol Gilligan's rather astonishingly popular work, In a Different Voice."). Certainly Gilligan's work is not irrelevant to this trend, but I believe that it is more a symptom of change than a cause.
401. In this section of the paper, "we" generally refers to Americans as a whole, not Americans as members of any particular gender, racial, ethnic, or religious group. See supra note 46.
402. See Ong, supra note 174, at 136-38 (suggesting an aural renewal which he terms "secondary orality"); Cynthia Ozick, "The Question of Our Speech: The Return to Aural Culture," in Metaphor and Memory 146 (1991); Stephen Toulmin, Cosmopolis: The Hidden Agenda of Modernity 186-88 (1990).
403. Robin T. Lakoff, "Some of My Favorite Writers Are Literate: The Mingling of Oral and Literate Strategies in Written Communication," in Spoken and Written Language: Exploring Orality and Literacy 239, 242 (Deborah Tannen ed., 1982).
404. In this sense we are becoming not so much "illiterate" but "aliterate"; an "aliterate" being "a person who knows how to read hut who doesn't choose to read." Bernice E. Cullinan, "Inviting Readers to Literature," in Children's Literature in the Reading Program 2, 11 (Bernice E. Cullinan ed., 1987).
405. Roger Cohen, "If the Written Word Is Really Dying Who Is Patronizing the 'Superstores'?," N.Y. Times, Sept. 30, 1990, at E6. At the same time, it has been asserted that "[e]ighty percent of the books in this country are read by about 10% of the people." Jane M. Healy, Endangered Minds: Why Our Children Don't Think 23 (1990).
406. Preston Hoffman, "A Change of Voice: The Art of the Spoken Word," Libr. J., Nov. 15, 1991, at 39, 39-43; Richard Zoglin, "A Real Tape Turner," Time, Aug. 29, 1994, at 73 (noting that "[r]etail sales for audio books . . . reached $1.2 billion in 1993, Up 40% from the year before); see also Sven Birkerts, "Close Listening," in The Gutenberg Elegies: The Fate of Reading in an Electronic Age 141 (1994) (considering the implications of listening to literature, instead of reading it).
407. Liz Horton, "Magazines Bid for Ears as Well as Eyes of Readers," Folio, Feb. 1992, at 43.
408. "This is the age of music . . . . Music was not . . . that important for the generation of students preceding the current one. Allan Bloom, The Closing of The American Mind 68-70 (1987).
409. Evy H. Anderson, "The Spell of the Storyteller," Publishers Wkly., Feb. 15, 1993, at 28; Glenn Collins, "When the Writers Read, the Readers Listen," N.Y. Times, Oct. 23, 1989, at C15; Diana J. Schemo, "After the Beats: A New Generation Raises Its Voice in Poetry," N.Y. Times, Sept. 26, 1994, at B1.
410. Corey Seymour, "Now Ear This," Rolling Stone, Aug. 5, 1993, at 59. In a fascinating article on the Suya Indians of central Brazil, anthropologist Anthony Seeger has suggested a connection between a society's habits of bodily ornamentation on the one hand and its sensory bias on the other. Anthony Seeger, "The Meaning of Body Ornaments: A Suya Example," 14 Ethnology 211 (1975). The Suyas decorate the mouth and ears, which Seeger interprets as evidence of their aurality. Id. at 212. If he is right, then the American practice referred to in the text may well be something more than a passing cosmetic trend.
411. See generally Thomas J. Lo, "The Supreme Court's Recent Stand on Dial-a-Porn Regulations: 'Honey, I Shrunk the First Amendment,'" 19 W. St. U. L. Rev. 431 (1992). In 1988, phone sex services grossed $2.4 billion. Id. at 433 n.13.
412. Tony Schwartz, The Responsive Chord 51 (1973).
413. For a discussion of the potential impact of "talking books" on the policy and mission of traditional libraries, see Virgil L.P. Blake, "Something New Has Been Added: Aural Literacy and Libraries," in Information Literacies for the Twenty-First Century 203 (Virgil L.P. Blake & Renee Tjoumas eds., 1990).
414. Judy K. C. Van Wagner, "Sound Art," Arts Mag., Sept. 1984, at 19.
415. Thomas J. Meyer, "Go to the Movies. And Shut Up!," N.Y. Times, Sept. 11, 1991, at A27; Richard Sandomir, "A Tragedy of Manners at the Movies," N.Y. Times, June 5, 1992, at C1.
416. Mari J. Matsuda, "Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction," 100 Yale L.J. 1324,1333-48 (1991). See, e.g, Fragrante v. Honolulu, 699 F. Supp. 1429,1431 (1987) (where a person with what was described as a "heavy Filipino accent" was denied employment on the grounds that he "[w]ould be difficult to understand over the telephone").
417. See, e.g., Harlan Lane, When the Mind Hears: A History of The Deaf (1984); Oliver Sacks, Seeing Voices: A Journey into the World of the Deaf (1989); Michele-Lee Berko, "Comment, Preserving the Sixth Amendment Rights of the Deaf Criminal Defendant," 97 Dick. L Rev. 101 (1992).
418. See, e.g., Randy Lee, "Equal Protection and a Deaf Person's Right to Serve as a Juror," 17 N.Y.U. Rev. L. & Soc. Change 81 (1989-1990) (discussing Pennsylvania's success at incorporating deaf individuals in juries).
419. See Schwartz, supra note 412, at 9.
420. Mary G. Porter & I. Willis Russell, "Among the New Words," 59 Am. Speech 159, 163-64 (1984).
421. Sara Tulloch, The Oxford Dictionary of New Words 22 (1991); Fred Shapiro, "Coinage of Psychobabble," 59 Am. Speech 373 (1984).
422. Tulloch, supra note 421, at 124.
423. Perhaps not surprisingly, the latter phrase is actually the older of the two, having been recorded as early as the fifteenth century. Christine Ammer, Have a Nice Day-No Problem!: A Dictionary of Cliches 384 (1992).
424. Lakoff, supra note 403, at 245; see also Daniel J. Boorstin, "The Decline of Grammar: The Colloquial Conquers the Classroom," in The Americans: The Democratic Experience 451 (1973).
425. Ruth Behar, "Dare We Say 'I'? Bringing the Personal into Scholarship," Chron. Of Higher Educ., June 29,1994, at B1.
426. Lakoff, supra note 403, at 254-55.
427. Clayton, supra note 294, at 376 (citing as examples Paul Auster, Moon Palace (1989); John Irving, The World According to Garp (1978); Cynthia Ozick, The Messiah of Stockholm (1987); Philip Roth, The Counterlife (1986) and other works).
428. For recent instances of writing presented as an opportunity for "listening," see G.R.F. Ferrari, Listening To The Cicadas: A Study in Plato's Phaedrus (1987); Peter D. Kramer, Listening to Prozac (1992); David Lamb, A Sense of Place: Listening to Americans (1993); Thomas Newkirk, Listening In: Children Talk about Books (and Other Things) (1992); Mickey Pearlman, Listen to Their Voices: Twenty Interviews with Women Who Write (1993); Brian Stock, Listening for the Text: On the Uses of the Past (1990); William L. Sullivan, Listening for Coyote: A Walk Across Oregon's Wilderness (1988).
For recent instances of writing presented as "voice," see Daniel L Alkon, Memory's Voice: Deciphering the Mind-Brain Code (1992); Robert A. Beauregard, Voices of Decline: The Postwar Fate of US Cities (1993); Confronting Environmental Racism: Voices from the Grassroots (Robert D. Bullard ed., 1993); Immigrant Voices: New Lives in America, 1773-1986 (Thomas Dublin ed., 1993); Saul D. Slapikoff, Consider and Hear Me: Voices from Palestine and Israel (1993); Voices from the Battlefront: Achieving Cultural Equity (Marta M. Vega & Cheryll Y. Greene eds., 1993); Voicing Our Visions: Writings by Women Artists (Mara R Witzling ed., 1991).
For recent instances of writing presented as "conversation," see Anthony Aveni, Conversing With The Planets: How Science And Myth Invented The Cosmos (1992); William H. Calvin & George A. Ojemann, Conversations With Neil's Brain: The Neural Nature of Thought and Language (1994); Conversations on Communication Ethics (Karen J. Greenberg ed., 1991); Jay L. Robinson, Conversations on the Written Word: Essays on Language and Literacy (1990); Edward Teller et al., Conversations on the Dark Side of Physics (1991).
429. For recent examples of constructed nonfiction dialogues, see Walter Adams & James W. Brock, Adam Smith Goes to Moscow: A Dialogue on Radical Reform (1993); Global Voices: Dialogues in International Relations (James N. Roseman ed., 1993); Jane Jacobs, Systems of Survival: A Dialogue on the Moral Foundation of Culture and Politics (1992); Michael J. Katz, Socrates in October: Dialogues on Incondensable Complexity (1987); David B. Myers, Marx and Nietzsche: The Reminiscences and Transcripts of a Nineteenth Century Journalist (1986); David Weinberger, Nuclear Dialogues (1987); Alastair Fowler, "Writing Criticism and Making Poems," 21 New Literary Hist. 1 (1989); Jerome McGann, "Revision, Rewriting, Rereading; or 'An Error [Not] in The Ambassadors,'" 64 Am. Literature 95 (1992). Other recent nonfiction dialogues are transcripts of actual interviews. See, e.g., Backtalk: Women Writers Speak Out/Interviews with Donna Perry (Donna Perry ed., 1993); David Breskin, Inner Views: Filmmakers in Conversation (1992); Noam Chomsky, Chronicles of Dissent: Interviews with David Barsamian (1992); Bill Moyers, A World of Ideas (Andie Tucher ed., 1989); Alexander Neubauer, Conversations on Writing Fiction: Interviews with Thirteen Distinguished Teachers of Fiction Writing in America (1994). A similar growth in the number of published dialogues and transcripts has been noted in contemporary Japan. See Masao Miyoshi, "Thinking Aloud in Japan," Raritan, Fall 1989, at 29.
430. Recall the central role of speech in discovery, cross-examination, and trial advocacy in general.
431. Thus, "[t]here is nothing novel or mysterious about stories in law [as a whole]. Lawyers are storytellers . . . ." Milner S. Ball, "The Legal Academy and Minority Scholars," 103 Harv. L. Rev. 1855, 1859 (1990).
432. Thomas E. Baker, "Proposed Intramural Reforms: What the U.S. Courts of Appeals Might Do to Help Themselves," 25 St. Mary's L.J. 1321, 1337 (1994); Daniel J. Meador, "Toward Orality and Visibility in the Appellate Process," 42 Md. L. Rev. 732,738-47 (1983).
433. See, e.g, George I. Wallach, "The Declining 'Sanctity' of Written Contracts-Impact of the Uniform Commercial Code on the Parol Evidence Rule," 44 Mo. L. Rev. 651 (1979).
434. Eleanor Swift, "The Hearsay Rule at Work: Has it Been Abolished De Facto by Judicial Decision?," 76 Minn. L. Rev. 473 (1992).
435. See generally Michael J. Mannheimer, "The Fighting Words Doctrine," 93 Colum. L. Rev. 1527 (1993).
436. Laurence H. Eldredge, The Law of Defamation 82-86 (1978).
437. Grey, supra note 63, at 224.
438. It has been noted that with the advent of Court TV, "law comes to life; it becomes a living, breathing matter of debate and arguments." Joshua Lazerson, "Court TV: Can It Increase the Understanding of Law and the Legal Process?," 76 Judicature 57 (1992). Thanks to Simon & Schuster, members of the public can now buy audiotapes of their favorite broadcast cases. See, e.g, The Menendez Murder Trial (1 Courtroom Cassettes 1994).
439. See, e.g., John S. Elson, "The Case Against Legal Scholarship or, If the Professor Must Publish, Must the Profession Perish?," 39 J. Legal Educ. 343 (1989); Odeana R. Neal, "The Making of a Law Teacher," 6 Berkeley Women's L.J. 128,132 (1990-91).
440. Steven I. Friedland, "Towards the Legitimacy of Oral Examinations in American Legal Education," 39 Syracuse L. Rev. 627 (1988).
441. For a light-hearted discussion of this phenomenon, see Rodolfo Sacco, "Organizing a Scholarly Congress," 40 J. Legal Educ. 279 (Arthur Rossett & Renata Paolini trans., 1990).
442. See, e.g., Steven I. Friedland, "The Use of Appellate Case Report Analysis in Modern Legal Education: How Much Is Too Much?," 10 Nova L.J. 495 (1986) (suggesting, inter alia, that law schools pay more pedagogical attention to the skill of listening); McKenzie, supra note 25.
443. See, e.g., Meador, supra note 432; Stephen M. Simon & Bertrand Poritsky, "Judicial Trial Skills Training," 37 J. Legal Educ. 428 (1987).
444. For example:
This Article draws on over two years of interviews and discussions with people in the paper industry. It includes many quotations from employees to describe the dynamics, both internal and institutional, that make a cooperative, high performance strategy effective. Hearing the voices and listening to the experiences of those whose interests labor law and policy are intended to promote gives a unique and valuable perspective on labor law and labor relations.
Getman & Marshall, supra note 22, at 1806; see also John M. Conley & Wllliam O'Barr, Rules Versus Relationships: The Ethnography of Legal Discourse (1990); Julius G. Getman, "A Story of Voice," 55 U. Pitt. L. Rev. 973 (1994); Ann M. Gill, "The Oral Tradition of Gerry Spence in Pring v. Penthouse," 17 Sw. U. L. Rev. 693 (1988); Sally E. Merry, "The Discourses of Mediation and the Power of Naming," 2 Yale J.L. & Human. 1 (1990); Austin Sarat & William L.F. Felstiner, "Lawyers and Legal Consciousness: Law Talk in the Divorce Lawyers' Office," 98 Yale L.J. 1663 (1989); and the more than 400 other articles and books collected under the heading "Spoken Language in Legal Settings," in "Judith N. Levi, Language and Law: A Bibliographic Guide to Social Science Research in the USA," in 4 Teaching Resource Bull. 1 (1994).
445. See, e.g., Matsuda, supra note 416; Carolyn R. Matthews, "Comment, Accent: Legitimate Nondiscriminatory Reason or Permission to Discriminate," 23 Ariz. St. L.J. 231 (1991); Mary E. Mullin, "Comment, Title VII: Help or Hindrance to the Accent Plaintiff?," 19 W. St. U. L. Rev. 561 (1992).
446. See, e.g., Symposium, "Alternative Dispute Resolution," 3 J. Contemp. Legal Issues 1 (1989-1990).
447. See Richard Delgado, "Words that Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling," 17 Harv. C.R.-C.L. L. Rev. 133 (1982); Kent Greenawalt, "Insults and Epithets: Are They Protected Speech?," 42 Rutgers L. Rev. 287 (1990).
448. See Thomas C. Grey, "Do We Have an Unwritten Constitution 7," 27 Stan. L. Rev. 703 (1974-75); Thomas C. Grey, "Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought," 30 Stan. L. Rev. 843 (1978); Grey, supra note 63; Wayne D. Moore, "Written and Unwritten Constitutional Law in the Founding Period: The Early New Jersey Cases," 7 Const. Commentary 341 (1990); Sherry, supra note 206.
449. See, e.g., Kathryn Abrams, "Hearing the Call of Stories," 79 Cal. L. Rev. 971 (1991); Jane B. Baron, "Intention, Interpretation, and Stories," 42 Duke L.J. 630 (1992); Robert M. Cover, "The Supreme Court, 1982 Term - Foreword: Nomos and Narrative," 97 Harv. L. Rev. 4 (1983); Delgado, supra note 25; James R. Elkins, "The Stories We Tell Ourselves in Law," 40 J. Legal Educ. 47 (1990); Christopher P. Gilkerson, "Poverty Law Narratives: The Critical Practice and Theory of Receiving and Translating Client Stories," 43 Hastings L.J. 861 (1992); David R. Papke, "Discharge as Denouement: Appreciating the Storytelling of Appellate Opinions," 40 J. Legal Educ. 145 (1990); Carol M. Rose, "Property as Storytelling Perspectives from Game Theory, Narrative Theory, Feminist Theory," 2 Yale J.L. & Human. 37 (1990); Thomas Ross, "The Richmond Narratives," 68 Tex. L. Rev. 381 (1989); Vicki Schultz, "Telling Stories About Women and Work: Judicial Interpretation of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument," 103 Harv. L. Rev. 1749 (1990).
450. See, e.g., Jody Freeman, "Constitutive Rhetoric: Law as Literary Activity," 14 Harv. Women's L.J. 305 (1991); White, supra note 23.
451. See, e.g., John J. Bonsignore, "In Parables: Teaching Through Parables," 12 Legal Stud. Forum 191 (1988); Robert A. Burt, "Constitutional Law and the Teaching of the Parables," 93 Yale L.J. 455 (1984).
452. See, e.g., Lawrence Joseph, "Theories of Poetry, Theories of Law," 46 Vand. L. Rev. 1227 (1993); James B. White, "The Judicial Opinion and the Poem: Ways of Reading, Ways of Life," 82 Mich. L. Rev. 1669 (1984).
453. See, e.g., Mary L. Ciampe, "The I and Thou: A New Dialogue for the Law," 58 U. Cin. L. Rev. 881 (1990); Amy H. Kastely, "Cicero's De Legibus: Law and Talking Justly Toward a Just Community," 3 Yale J.L. & Human. 1 (1991); Robert J. Lipkin, "Kibitzers, Fuzzies, and Apes Without Tails: Pragmatism and the Art of Conversation in Legal Theory," 66 Tul. L. Rev. 69 (1991).
454. See, e.g., Alfred C. Aman, Jr., "Studying Music, Learning Law: A Musical Perspective on Clinical Legal Education," 13 Cornell L. Forum 8 (1987); Jennifer Jaff, "Law and Lawyer in Pop Music: A Reason for Self-Reflection," 40 U. Miami L. Rev. 659 (1986); Johnson & Scales, supra note 20; Gary Minda, "Phenomenology, Tina Turner and the Law," 16 N.M. L. Rev. 479 (1986); Peter R. Teachout, "The Soul of the Fugue: An Essay on Reading Fuller," 70 Minn. L. Rev. 1073 (1986); and other articles cited infra notes 567-77.
455. See, e.g., Martha G. Duncan, "In Slime and Darkness: The Metaphor of Filth in Criminal Justice," 68 Tul. L. Rev. 725, 753-54 (1991); Martha Minow, "Questioning Our Policies: Judge David L. Bazelon's Legacy for Mental Health Law," 82 Geo. L.J. 7, 11 (1993); Daniel J.H. Greenwood, "Beyond Dworkin's Dominions: Investments, Memberships, the Tree of Life, and the Abortion Question," 72 Tex. L. Rev. 559, 612 (1994) (reviewing Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthansia, and Individual Freedom (1993)); and other examples cited infra note 607.
456. See, e.g., Alfieri, supra note 27, at 662 n.8; Ball, supra note 29, at 2295; David R. Dow, "When Words Mean What We Believe They Say: The Case of Article V," 76 Iowa L. Rev. 1, 62 (1990); Ronald R. Garet, "Meaning and Ending," 96 Yale L.J. 1801, 1811 (1987); and other examples cited infra note 606.
457. See Derrick Bell et al., "Racial Reflections: Dialogues in the Direction of Liberation," 37 UCLA L. Rev. 1037 (1990); Andrew W. McThenia, Jr., "Telling a Story About Storytelling," 40 J. Legal Educ. 67 (1990); and the many other examples cited infra note 610.
458. See, e.g., Emily F. Hartigan, "The Power of Language Beyond Words: Law as Invitation," 26 Harv. C.R.-C.L. L. Rev. 67, 76-77 (1991); and other examples cited infra note 613.
459. See, e.g., Louis J. Sirico, Jr., "Vietnam Haiku," 74 Cornell L. Rev. 1228 (1989); and the other examples cited infra note 614. The new poetry has had a mixed reception. One scholar has graphically commented that "if Archibald MacLeish ever got a look at some of the political 'poetry' appearing in publications like the Cornell Law Journal [sic] he would puke." Arthur Austin, "Commentary on Jensen's Commentary on Commentary," 24 Conn. L. Rev. 175, 181 (1991).
460. See, e.g., Americo R. Cinquegrana, "Dancing in the Dark: Accepting the Invitation to Struggle in the Context of 'Covert Action', the Iran-Contra Affair and the Intelligence Oversight Process," 11 Hous. J. Int'L L. 177 (1988); Katherine H. Federle, "Looking for Rights in All the Wrong Places: Resolving Custody Disputes in Divorce Proceedings," 15 Cardozo L. Rev. 1523 (1994); David Fraser, "What's Love Got to Do With It? Critical Legal Studies, Feminist Discourse, and the Ethic of Solidarity," 11 Harv. Women's L.J. 53 (1988); Peter Gabel & Duncan Kennedy, "Roll Over Beethoven," 36 Stan. L. Rev. 1 (1984); Steven H. Hobbs, "We Are Family: Changing Times, Changing Ideologies and Changing Law," 14 Cap. U. L. Rev. 511 (1985); Lisa Perrochet & Ugo Colella, "What a Difference a Day Makes: Age Presumptions, Child Psychology, and the Standard of Care Required of Children," 24 Pac. L.J. 1323 (1993); W. Wylie Spicer, "Ch-Ch-Changes: Stumbling Toward the Reasonable Expectations of the Assured in Marine Insurance," 66 Tul. L. Rev. 457 (1991); Erik S. Jaffe, "Note, 'She's Got Betty Davis['s] Eyes': Assessing the Nonconsensual Removal of Cadaver Organs Under the Takings and Due Process Clause," 90 Colum. L. Rev. 528 (1990). For a list of similar articles that have recently appeared in Canadian law journals, see Vaughan Black & David Fraser, "Cites for Sore Ears (A Paper Moon)," 16 Dalhousie L.J. 217, 218 n.7 (1993)
461. See, e.g., Ronald R. Garet, "Dancing to Music: An Interpretation of Mutuality," 80 Ky. L.J. 893, 925, 928 (1991-92); Philip N. Meyer, "'Fingers Pointing at the Moon': New Perspectives on Teaching Legal Writing and Analysis," 25 Conn. L. Rev. 777, 785, 788 (1993); Minda, supra note 454, at 489, 493; Martha Minow, "Words and the Door to the Land of Change: Law, Language, and Family Violence," 43 Vand. L. Rev. 1665, 1695-99 (1990); and the other examples cited infra note 608. The most recent edition of the Harvard Bluebook notably contains guidelines (under the new heading "Sound Recordings") on how to reference popular songs, and provides sample cites to the works of David Bowie, the Beatles, and Kate Bush. The Bluebook: A Uniform System of Citation 124-25 (15th ed. 1991).
462. See, e.g., Ann Scales, "Feminist Legal Theory: Not So Scary," 2 UCLA Women's L.J. 1, 9 n.26 (1992); Kim L. Scheppele, "Foreword: Telling Stories," 87 Mich. L. Rev. 2073, 2073 n.3 (1989).
463. James D. Gordon, "A Dialogue About the Doctrine of Consideration," 75 Cornell L. Rev. 987, 993 n.48 (1990). For an analogous instance of "Hear e.g.," see C. Garrison Lepow, "Deconstructing Los Angeles or a Secret Fax from Magritte Regarding Postliterate Legal Reasoning: A Critique of Legal Education," 26 U. Mich. J.L. Ref. 69, 122 n.222 (1992) (citing a radio program).
464. For instance, a search in the LEXIS/NEXIS database yielded 23 articles using the contraction "couldn't" that appeared in the Stanford Law Review between 1988 and 1992, as compared with only 8 articles using the same contraction between 1983 and 1987. Similar searches over the same periods for the Harvard Law Review, the Yale Law Journal, the Michigan Law Review, and the Virginia Law Review yielded figures of 9 versus 5, 22 versus 16, 24 versus 13, and 10 versus 2, respectively. Search of LEXIS, Lawrev library, Allrev file (Jan. 15, 1994).
465. See, e.g., Peter "Lushing, Capital Punishment: A Disputation," 42 Ark. L. Rev. 105 (1989); Scott Burris, "Note, Death and a Rational Justice: A Conversation on the Jurisprudence of John Paul Stevens," 96 Yale L.J. 521 (1987); and the many other examples cited infra notes 556, 557, 611.
466. See, e.g, "Appendix-Transcript of Proceedings," 15 Nova L. Rev. 795 (1991); "Church/State Symposium-Questions and Answers," 22 Cumb. L. Rev. 663 (1991-92); "Discussion," 45 Stan. L. Rev. 1577 (1993); Stanley Ingber, "The Demise of Dialogue: Commentary on Perry and Nagel," 55 Alb. L. Rev. 583 (1992); "Seminar, Leveraged Buyouts and Lenders' Risks," 21 Seton Hall L. Rev. 918 (1991); Symposium, "Defining the Corporate Constituency: Panel Discussion," 59 U. Cin. L. Rev. 467 (1990). The presence of such features in a variety of reputable law reviews counters the notion that they might be the last refuge for editors of marginal law reviews lacking quality "orthodox" submissions.
467. E.g., Jean Stefanic, "The Law Review Symposium Issue: Community of Meaning or Re-inscription of Hierarchy?," 63 U. Colo. L. Rev. 651 (1992).
468. E.g., Erik M. Jensen, "Law Review Correspondence: Better Read than Dead?," 24 Conn. L. Rev. 159 (1991).
469. For instance, the literal meaning of "symposium" is "a convivial meeting for drinking, conversation, and intellectual entertainment." 17 Oxford English Dictionary 464 (2d ed. 1989).
470."As a wider range of new material reached the public through telephone, radio, film, records, and television, we developed a stronger orientation toward the auditory mode of receiving and processing information." Schwartz, supra note 412, at 13.
471. "As the predominant form of communication shifts . . . legal metaphors . . . change to reflect the changes in communication." Katsh, supra note 182, at 406 n.14.
472. Some scholars have characterized the mid-nineteenth-century telegraph as an aural technology, but that mechanism was at best only incidentally aural. Not only were its audible clicks incomprehensible to anyone untrained in code, but it was used to send messages that generally started out and ended up in writing.
473. Don Gifford, The Farther Shore: A Natural History of Perception, 1798-1984, at 52 (1990).
474. R. Murray Schafer, "The Industrial Revolution," in The Tuning of The World 71 (1977).
475. "The object of study in linguistics is not a combination of the written word and the spoken word. The spoken word alone constitutes the object." Quoted in Robert Hopper, Telephone Conversation 37 (1992).
476. In one drawing, Saussure depicted the spoken voice travelling from the mouth of one party to the ear of another along what looked very much like telephone wires. Id. at 36.
477. Kenneth Douglas, "Masterpieces of the Modern World," in 2 The Continental Edition of World Masterpieces 993, 994 (Maynard Mack et al. eds., 3d ed. 1974); Roy Park, "'Ut Pictura Poesis'. The Nineteenth-Century Aftermath," 28 J. Aesthetics & Art Criticism 155 (1961).
478. W.B. Yeats, "Literature and the Living Voice ," in Explorations 202 (1962).
479. On antiocularism and aurality in Kierkegaard's writings, see Ellul, supra note 119, at 37-39. On antiocularism in Nietzsche, see Sarah Kofman, Nietzsche and Metaphor 105 (1993). Jacques Derrida has actually suggested that "[a]ll of Nietzsche's investigations . . . are coiled in the labyrinth of an ear. Jacques Derrida, Spurs: Nietzsche's Styles 43 (Barbara Harlow trans., Univ. of Chicago Press 1979) (1978).
480. Victor Zuckerkandl, Sound and Symbol: Music and the External World 254 (1956). For a brief discussion of "auditory material" in Husserl's Phenomenology of Internal Time Consciousness, see Ihde, supra note 81, at 57.
481. "If one thinks about the history of visual art, one realizes that there are almost no representations of sound or music in painting or sculpture. This lack of images of course makes sense because the forms involve mutually exclusive sensory systems: one cannot see hearing, or hear seeing." Craig Adcock, "Marcel Duchamp's Gap Music: Operations in the Space Between Art and Noise," in Wireless Imagination: Sound, Radio, and The Avant-Garde 105, 128 (Douglas Kahn & Gregory Whitehead eds., 1992) [hereinafter Wireless Imagination].
482. See generally Jessica Prinz, "The Text in the Eye," in Art Discourse/Discourse In Art 1 (1992); E.H. Gombrich, "Image and Word in Twentieth Century Art," 1 Word & Image 213 (1985)
483. On the aurality of Futurist painting (from a Futurist perspective), see generally Carlo Carra, "The Painting of Sounds, Noises and Smells ," in Futurist Manifestos 111 (Umbro Apollonio ed., 1973). For a more recent academic discussion of the same subject, see Jane Sharp, "Sounds, Noises, and Smells: Sensory Experience in Futurist Art," in The Futurist Imagination 16 (Anne C. Hanson ed., 1983).
484. Marcel Duchamp, "The 1914 Box," in Salt Seller: The Writings Of Marcel Duchamp (Marchand Du Sel) 22, 25 (Michel Sanouillet & Elmer Peterson eds., 1973).
485. See generally Jerome Ashmore, "Sound in Kandinsky's Painting," 35 J. Aesthetics & Art Criticism 329 (1977); H.L.C. Jaffe, "Syntactic Structure in the Visual Arts," in Structure in Art and in Science 137 (Gyorgy Kepes ed., 1965).
486. Rosalee Goldberg, "Performance: A Hidden History," in The Art of Performance: A Critical Anthology 24, 27-29 (Gregory Battcock & Robert Nickas eds., 1984).
487. See 2 John H. Wigmore, Wigmore on Evidence § 795, at 103 n.5 (2d ed. 1923) (discussing 1905 and 1906 cases in which phonographic evidence was introduced to establish the nature of noises made by trains going past plaintiffs' properties).
488. In this respect, Holmes differed from his literary father, who had always sought to encourage and continue dialogue. It might be argued that while the elder Holmes's style reflected a lingering affection for aural experience and exchange which in the early to mid-nineteenth century had not yet passed altogether out of fashion, the younger Holmes's approach was the by-product of a more visualist late-nineteenth-century culture that was notably more impatient with aural transactions and habits. See Gibian, supra note 183.
489. Roscoe Pound, "Law in Books and Law in Action," 44 Am. L. Rev. 12, 15 (1910).
490. Frank Biocca, "The Pursuit of Sound: Radio, Perception and Utopia in the Early Twentieth Century," 10 Media, Culture & Soc'Y 61, 62 (1988) [hereinafter Biocca, Pursuit of Sound]. In 1928, one commentator observed that
[f]ormerly the only music a man heard, week-in-week-out, was the church organ on Sunday, or his daughter's practice hour when he got home too early, with maybe a couple of phonograph records thrown in on a Saturday night. Now he hears several hours of assorted music a week.
Frank Biocca, "Media and Perceptual Shifts: Early Radio and the Clash of Musical Cultures," 24 J. Popular Culture 1, 8 (1990).
491. By 1925, just a few years after the beginning of the American "radio craze," the New York Times was reporting a surge in musical instrument sales. Trade publications carried headlines like "America Musically Now Comes of Age"; "This is the Golden Age of Music in the United States"; and "Radio is Doing a Good Job in Music." In 1928, The Musician observed that "the nation . . . is becoming more and more tone minded." Quoted in Biocca, Pursuit of Sound, supra note 490, at 66.
492. See generally Alexander Walker, The Shattered Silents: How the Talkies Came to Stay (1986). The introduction of the sound track "changed the structure of movies. . . . Narrative became even more important, and character development, difficult in the silent movie, became central. Steven Lubar, Infoculture 205 (1993).
493. See generally Biocca, Pursuit of Sound, supra note 490.
494. On the battlefields of France,
[t]he invisibility of the enemy, and the necessity of hiding in the earth, the layered intricacy of the defense system, the earshattering roar of the barrage and the fatigue caused by the day and night shifts, combined to shatter those stable structures that can customarily be used to sequentialize experience. Hearing became much more important than vision as an index of what was real and threatening.
Eric J. Leed, No Man's Land: Combat & Identity In World War I, at 124 (1979). On the postwar European critique of visuality, see generally Martin Jay, "The Disenchantment of the Eye: Surrealism and the Crisis of Ocularcentrism," 7 Visual Anthropology Rev. 15 (1991).
495. On the "fundamentally oral" nature of puns, see John Fiske, Understanding Culture 112 (1989).
496. For example: "In the beginning is the world, in the middle is the sound-dance and thereinafter you're in the unbewised again . . . ." James Joyce, Finnegans Wake 378.29 (1939).
497. See generally Karl F. Zender, "Faulkner and the Power of Sound," 99 Pub. Mod. Language Ass'n 89 (1984).
498. Thus, Eliot's Four Quartets and Pound's Cantos. See generally George Steiner, Language and Silence 29 (1967).
499. On the oral dimension of Pound's writing and work, see generally Max Nanny, Ezra Pound: Poetics for an Electric Age(1973).
500. Donald Hall, The "Poetry Reading: Public Performance/Private Art," 54 Am. Scholar 63, 64 (1984-85). Frost's own words help to explain his enthusiasm for recitation: "The ear is the only true writer and the only true reader. . . . [S]entence sounds are very definite entities. They're apprehended by the ear. They're gathered by the ear from the vernacular. The most original writer only catches them fresh from talk where they grow spontaneously." Quoted in Schwartz, supra note 412, at 120.
501. E.g., W.C. Fields and Mae West.
502. E.g., Jack Pearl ("Baron Munchausen"), Bert Gordon (the "Mad Russian"), Harry Einstein ("Parkyakarkus"), not to mention the comedic denizens of Fred Allen's Allen's Alley radio program.
503. E.g., Clark Gable, Katharine Hepburn, and Cary Grant. See generally Alan Havig, Fred Allen's Radio Comedy 5 (1990); Walker, supra note 492, at 198.
504. On "melody" in the early history of Gestalt, see George W. Hartmann, Gestalt Psychology: A Survey of Facts and Principles 9-12 (1935).
505. John D. Caputo, "The Thought of Being and the Conversation of Mankind: The Case of Heidegger and Rorty," in Hermeneutics and Praxis 248, 255 (Robert Hollinger ed., 1985). In this early work, however, Heidegger was not consistent in his use of aural metaphors, and indeed abandoned them at a critical moment in his analysis.
Heidegger initiates his departure from tradition by grounding knowledge in the world via attunement, yet at the point where the primordial access to the world which attunement bestows becomes fully fledged, reflexive, and representable knowledge, he shifts his metaphoric base to that of sight. This allows Heidegger to "keep the connection going" with the tradition of philosophy and to enjoy the rights of representation which this tradition bestows.
Frances Dyson, The Silencing of Sound: Metaphysics, Technology, Media 38 (1993) (unpublished Ph.D. dissertation, University of Technology, Sydney) (on file with author); see also David M. Levin, "Decline and Fall: Ocularcentrisim in Heidegger's Recording of the History of Metaphysics," in Modernity, supra note 75, at 186, 194 (asserting that in spite of his implicit and explicit criticisms of Western vision-based thinking, Heidegger ultimately is "not at all antiocular.").
In 1929, two years after the publication of Being and Time, the merican philosopher John Dewey launched a more forthright attack on what he called "the spectator theory of knowledge. " John Dewey, "The Quest for Certainty: A Study of the Relation of Knowledge and Action," in 4 John Dewey: The Later Works, 1925-1953, at 1, 19 (Jo Ann Boydston ed., 1984).
506. On Buber and dialogue generally, see Ronald C. Arnett, Communication and Community: Implications of Martin Buber's Dialogue (1986); Maurice S. Friedman, Martin Buber: The Life of Dialogue (1955). On actual speech as the key to Buber's ideal of dialogic relation, see Steven Kepnes, The Text as Thou: Martin Buber's Dialogical Hermeneutics and Narrative Theology 65-67 (1992).
507. In his classic work, Problems of Dostoyevsky's Poetics, Bakhtin wrote: "To be . . . means to communicate dialogically. When dialogue ends, everything ends." Quoted in Robert Stam, Subversive Pleasures: Bakhtin, Cultural Criticism, and Film 187 (1989). On Bakhtin and the concept of dialogue in general, see Michael Holquist, Dialogism: Bakhtin and His World (1990).
508. On the initial revival of the idea of "polyphony" in pre-World War I poetics, reflecting yet again the modern alliance between poetry and music, see Stephen Kern, The Culture of Time and Space: 1880-1918, at 72 (1983). On the use of "polyphony" by one of Bakhtin's contemporaries, Polish philosopher Roman Ingarden, see Curtis, supra note 78, at vii.
509. Christopher Schiff, "Banging on the Windowpane: Sound in Early Surrealism," in Wireless Imagination, supra note 481, at 139.
510. Klee once remarked that the task of painting was "not to render the visible, but to make visible" a personal philosophy which directly empowered and legitimized this type of work. Quoted in Jaffe, supra note 485, at 143.
511. See Gerald Eager, "The Missing and Mutilated Eye in Contemporary Art," 20 J. Aesthetics & Art Criticism 49 (1961); Jeanne Siegel, "The Image of the Eye in Surrealist Art and Its Psychoanalytic Sources, Part One: The Mythic Eye," Arts Mag., Feb. 1982, at 102.
512. See, e.g., Donald R. Graham, "Defamation and Radio," 12 Wash. L. Rev. 282 (1937); Lawrence Vold, "The Basis for Liability for Defamation by Radio," 19 Minn. L. Rev. 611 (1935).
513. In 1927, Karl Llewellyn used radio to plead publicly for a commutation of the death sentences of Sacco and Venzetti. William Twinning, Karl Llewellyn and the Realist Movement 345 (1973). Gleason Archer, the founding Dean of the "evening" Suffolk Law School in Boston, appears to have been the first person regularly to use radio as a tool of public legal education: in 1930 and 1931, he delivered a series of thirty-six talks on law over a network of stations associated with NBC. The talks are collected in Gleason Archer, Laws That Safeguard Society (1931). Llewellyn, Roscoe Pound, John Wigmore, and Learned Hand later spoke on various subjects in the series The Lawyer and the Public, sponsored by the American Bar Association and broadcast on the Columbia network in 1933 and 1934. "A.B.A. Broadcasts," 9 Cal. St. B.J. 265 (1934); "The American Bar Association Goes on the Air," 8 Cal. St. B.J. 52 (1933).
514. See generally James W. Wesolowski, "Before Canon 35: WGN Broadcasts the Monkey Trial," 2 Journalism Hist. 76 (1975).
515. See Mitchell Dawson, "Broadcast Trials?-Yes," The Rotarian, Oct. 1937, at 14; "Radio Out of Police Court," Variety, Dec. 9, 1936, at 38; Judge William H. Schaeffer, "Broadcasting Traffic Trials," Am. City, July 1935, at 77.
516. See Jerome Frank, "What Constitutes a Good Legal Education?," 19 A.B.A. J. 723 (1933); Jerome Frank, "Why Not a Clinical Lawyer-School?," 81 U. Pa. L. Rev. 907 (1933); see also Jerome Frank, "A Plea for Lawyer Schools," 56 Yale L.J. 1303 (1947) [hereinafter Frank, "A Plea"].
517. Jerome Frank, Law and the Modern Mind 118-19 n.9 (Anchor Books 1963) (1930). In a 1949 essay, Frank raised the option of "talking movies" again after quoting one judge as saying that
a stenographic transcript . . . fails to reproduce tones of voice and hesitations of speech that often make a sentence mean the reverse of what the mere words signify. The best and most accurate record [of oral testimony] is like a dehydrated peach; it has neither the substance nor the flavor of the peach before it was dried.
Jerome Frank, "Facts Are Guesses," in Courts on Trial: Myth and Reality in American Justice 14, 23 (1949) [hereinafter Courts On Trial]; see also United States v. Rubenstein, 151 F.2d 915, 921 n.5 (2d Cir. 1945) (Frank, J., dissenting); Jerome Frank, "The Upper-Court Myth," in Courts On Trial, supra, at 222, 224. In the late 1980s, almost sixty years after Frank first made his proposal, a number of Kentucky courts began treating videotapes as the sole and official form of trial record. Collins & Skover, supra note 394, at 538-39.
518. Anon Y. Mous, "The Speech of Judges: A Dissenting Opinion," in A Man's Reach: The Philosophy of Judge Jerome Frank 35, 36-37 (Barbara F. Kristein ed., Greenwood Press 1977) (1965) (article originally published at 20 Va. L. Rev. 625 (1943)). In 1947, this oralist philosophy probably played a role in leading Frank to give up the then standard practice of referring to himself in the third person in his own writings, and to adopt instead the conversational first-person pronoun "I." This, he commented, "abandons the impersonal disguise and frankly reveals the personal character of the statements." Frank, "A Plea," supra note 516, at 1303 n.2.
519. Anon Y. Mous, supra note 518, at 46-47.
520. Id. at 42. In another article, Frank declared that "Cardozo's style is unpleasantly ornate, baroque, needlessly intricate, a barrier at times to understanding his meaning." Jerome N. Frank, "Some Reflections on Judge Learned Hand," 24 U. Chi. L. Rev. 666, 672 (1957). In this latter piece, Frank praised Learned Hand for the same reasons he had singled out Black, Douglas, and Jackson. He noted that another judge had said of Hand that "he never knew a man whose writings so conveyed the life of his talk." Id. at 674.
521. Helvering v. Gregory, 69 F.2d 809, 811 (2d Cir. 1934).
522. Jerome Frank, "Words and Music: Some Remarks on Statutory Interpretation," 47 Colum. L. Rev. 1259, 1267 (1947). See supra note 504 and accompanying text.
523. K.N. Llewellyn, "On the Good, the True, the Beautiful, in Law," 9 U. Chi. L. Rev. 224, 250 (1941-1942); see also Karl N. Llewellyn, The Common Law Tradition 183, 246-47 (1960).
524. Llewellyn, supra note 523, at 230. In this context it may not be irrelevant that Llewellyn frequently regaled gatherings of law teachers with songs on legal subjects, the most famous of which was his ballad "The Common Law Tradition". This "hobby" suggests that, although Llewellyn was at some level capable of seeing a connection between law and music, he did not believe the two could be seriously compared or combined.
525. Frank, supra note 522.
526. Id. at 1262-64.
527. Jerome Frank, "Say It with Music," 61 Harv. L. Rev. 921 (1948).
528. Carleton K. Allen, Law in the Making 45 (3d ed. 1939).
529. The ABA's instrument for silencing the courts was Canon 35 of the Canons of Judicial Ethics, which read in part: "Proceedings in court should be conducted with fitting dignity and decorum. The . . . broadcasting of court proceedings degrade[s] the court and create[s] misconceptions with respect thereto in the mind of the public and should not be permitted." Quoted in Oscar Hallam, "Some Object Lessons on Publicity in Criminal Trials," 24 Minn. L. Rev. 453, 465 (1940). For a reprint of the ABA report which led to the adoption of Canon 35, see id. at 477-508.
530. "Before [the recording improvements of the 1940s] there was considerable practical difficulty in studying spoken language . . . . There was therefore an understandable bias towards studying written language . . . . Michael Stubbs, Language and Literacy: The Sociolinguistics of Reading and Writing 23 (1980).
531. Roger Silverstone, The Message of Television: Myth and Narrative in Contemporary Culture 34-48 (1981). In this connection it is noteworthy that "talk shows" (Oprah, Donahue, etc.) draw some of the largest TV audiences. See also Susan Stamberg, "Visual Era or No, Voices Are Back in the Picture," N.Y. Times, Aug. 26, 1990, at H25 (discussing the importance of voices in TV and movie animation).
532. As this Article is being written, television advertisements are trumpeting the advantages of electronic voice-recognition technology for computer and telephone users. On computer voice-recognition and voice-generation, see S. Joy Mountford & William w. Gaver, "Talking and Listening to Computers," in The Art of Human-Computer Interface Design 319 (Brenda Laurel ed., 1990); Nicholas Negroponte, "Talking to Computers: Time for a New Perspective," Wired, Feb. 1994, at 134 ("[F]ifteen years from now, the bulk of our interaction with computers will he through the spoken word.").
533. See, e.g., Lin Emery & Robert Moriss, "Kinesone 1: A Kinetic Sound Sculpture," 19 Leonardo 207 (1986); Bill Fontana, "The Relocation of Ambient Sound: Urban Sound Sculpture," 20 Leonardo 143 (1987).
534. Goldberg, supra note 486, at 26.
535. See, e.g., Michel Chion, Audio-Vision: Sound on Screen (Claudia Gorhman ed. & trans., Columbia Univ. Press 1994) (1990); Sound Theory/Sound Practice (Rick Altman ed., 1992).
536. See generally Jay, supra note 85; Caputo, supra note 505, at 254-55. Richard Rorty has argued that "[w]e must get the visual, and in particular the mirroring, metaphors out of our speech altogether. Richard Rorty, Philosophy and the Mirror of Nature 371 (1979).
537. French political economist Jacques Attali has penned what might he described as a provocative "manifesto" for this diverse group: "For twenty-five centuries, Western knowledge has tried to look upon the world. It has failed to understand that the world is not for beholding. It is for hearing. It is not legible, but audible." Jacques Attali, Noise: The Political Economy of Music 3 (Brian Massumi trans., Univ. of Minn. Press 1985) (1977).
538. Quoted in David M. Levin, The Listening Self: Personal Growth, Social Change and the Closure of Metaphysics 17 (1989). On Heidegger's use of aural metaphors in his later work, see also Hannah Arendt, The Life of the Mind: Thinking 122 (1978).
539. Hans-Georg Gadamer, Truth and Method 420 (Garett Barden & John Cumming eds., Crossroad Publishing 1975) (1960); see also George H. Taylor, Textualism at Work (forthcoming 1995) (manuscript at 215, on file with author) ("[I]t remains one of hermeneutics' major contributions-one all the more powerful in today's world-that it adopts as a fundamental posture that of hearkening, hearing, listening.").
540. Following the French philosopher Paul Ricouer, George Taylor has lately suggested that "the hermeneutic posture is to be contrasted with more prevalent models that examine a text on the basis of an analytic grid brought to and imposed upon a text-a differentiation that may crudely he termed one between understanding and explanation." Taylor, supra note 539 (manuscript at 215 n.335).
541. See, e.g., Gadamer, supra note 539, passim. On Gadamer and conversation/dialogue, see Francis J. Ambrosio, "Gadamer, Plato, and the Discipline of Dialogue," 27 Int'L Phil. Q. 17 (1987).
542. See, e.g, Jurgen Habermas, Moral Consciousness and Communicative Action (Christian Lenhardt & Shierry W. Nicholsen trans., MIT Press 1990) (1983).
543. See, e.g., Michael Oakeshott, "The Voice of Poetry in the Conversation of Mankind," in Rationalism and Politics and Other Essays 197 (1962).
544. See, e.g., Rorty, supra note 536.
545. See, e.g, Richard J. Bernstein, Beyond Objectivism and Relativism: Science, Hermeneutics, and Praxis (1983).
546. See Thomas Docherty, After Theory: Postmodernism/Postmarxism 16 (1990) ("[P]ostmodernism prioritizes the aural; it . . . works against the specular and even against theory or speculation in order to re-install the lost sense of hearing; it shapes itself around the model of the labyrinthine ear."). Martin Jay has recently suggested a fascinating link between the antispecular (and, in Docherty's terms, pro-aural) aspect of postmodernism and "the intense fascination with Judaism that gripped many French intellectuals in the 1970s and 1980s." Jay, supra note 85, at 546.
547. See generally Lanham, supra note 267, at 55-96.
548. "We had all been listening to the radio, a voice of incessant utterance, orally communicating fact and intention and persuasion, borne on the airwaves to our ears. Here was a new type of demand on our attention, even a new force exercised over our minds." Eric Havelock, The Muse Learns to Write: Reflections on Orality and Literacy From Antiquity to the Present 30 (1986).
549. Claude Levi Strauss, The Raw and the Cooked: Introduction to A Science of Mythology I (1969).
550.Post-modern anthropology is the study of man "talking." . . . Post-modern anthropology replaces the visual metaphor of the world as what we see with a verbal metaphor in which world and word are mutually implicated . . . . Postmodern anthropology is thus the end of an illusion. It ends the separation of word and world created by writing . . . .Stephen A. Tyler, "Post-Modern Anthropology," in Discourse and the Social Life of Meaning 23 (Phyllis P. Chock & June R. Wyman eds., 1986); see also Dennis Tedlock, "The Analogical Tradition and the Emergence of a Dialogical Anthropology," in The Spoken Word and the Work of Interpretation 321 (1983); James Clifford, "Introduction: Partial Truths," in Writing Culture: The Poetics and Politics of Ethnography l, 9 (James Clifford & George E. Marcus eds., 1986); Steven Webster, "Dialogue and Fiction in Ethnography," 7 Dialectical Anthropology 91 (1982).
551. See, e.g., Brown & Gilligan, supra note 251, at 26 (emphasizing how "[w]orking with audio-tapes . . . enables US to sound and re-sound, trace and retrace voice(s) through the interview process").
552. Louis Starr, "Oral History," in Oral History: An Interdisciplinary Anthology 3-21 (David K. Dunaway & Willa K. Baum eds., 1984). In the late 1980s, oral history became the subject of an annual survey in the prestigious Journal of American History.
553. See, e.g., Felix S. Cohen, "Dialogue on Private Property," 9 Rutgers L. Rev. 357 (1954); Glenn W. Ferguson, "Vocabulary, Veil, and Vested Interest: A Dialogue," 10 J. Legal Educ. 87 (1957); Henry M. Hart, Jr., "The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic," 66 Harv. L. Rev. 1362 (1953); Yale Kamisar, "The Right to Counsel and the Fourteenth Amendment: A Dialogue on the 'The Most Pervasive Right' of an Accused," 30 U. Chi. L. Rev. 1 (1962).
554. Law reviews are not, of course, the only forums in which law professors publish dialogues. See, e.g., Bruce Ackerman, Social Justice in the Liberal State (1980).
555. The presence of almost all of these dialogues in older primary (as opposed to newer secondary or "spin-off") university law reviews suggests that this phenomenon is not simply the result of the late proliferation of law reviews in general.
556. See, e.g., Stanley A. Freedman & Ward Smith, "Non-Price Competition by the Monopolist Under Section 2 of the Sherman Act: A Dialogue," 14 U. Tol. L. Rev. 469 (1983); Friedland, supra note 440; Andreas F. Lowenfeld & Linda J. Silberman, "Choice of Law and the Supreme Court: A Dialogue Inspired by Allstate Insurance Co. v. Hague," 14 U.C. Davis L. Rev. 841 (1981); Norman Redlich, "Hugo Black Enters His Hundredth Year: Some Heavenly Reflections on the Constitution," 38 Ala. L. Rev. 357 (1987); John W. Van Doren & Patrick T. Bergin, "Critical Legal Studies: A Dialogue," 21 New Eng. L. Rev. 291 (198-586).
557. See, e.g, Burris, supra note 465; Jerome M. Culp, Jr., "Toward a Black Legal Scholarship: Race and Original Understandings," 1991 Duke L.J. 39; Richard Delgado, "Derrick Bell and the Ideology of Racial Reform: Will We Ever Be Saved?," 97 Yale L.J. 923 (1988) (reviewing Derrick Bell, And We Are Not Saved: The Elusive Quest For Racial Justice (1987)).
558. Prior uses of these and other aural metaphorical terms in modern American legal literature are scattered and tend to stand out by virtue of their isolation. See, e.g, Alexander M. Bickel, The Morality of Consent 111 (1975) (discussing the endlessly renewed educational conversation" between the public and the Supreme Court on the terms of public obedience to judicial rulings); James B. White, The Legal Imagination: Studies in the Nature of Legal Thought and Expression 215-18 (1973) (describing as "conversation" the ongoing process of statutory interpretation and application).
559. See, e.g., Ackerman, supra note 554.
560. See, e.g., Cover & Aleinikoff, supra note 27.
561. See, e.g., Burt, supra note 451.
562. See, e.g., James B. White, When Words Lose Their Meaning (1984)
563. See, e.g., Stephen J. Burton, Introduction to Law and Legal Reasoning (1985).
564. See, e.g., Menkel-Meadow, supra note 387.
565. See, e.g, Michelman, supra note 27.
566. Searches of INFOTRAC/LEGALTRAC, February 1994.
567. Mark Fleischer, "Note, The Interpretive Process and People v. Marotta A Search for Safety in the Shadow Between Concept and Reality," 58 S. Cal. L. Rev. 1051 (1985).
568. See, e.g., Floyd Abrams, "Content Neutrality: Some Thoughts on Words and Music," 10 Harv. J.L. & Pub. Pol'y 61 (1987); Dean Robert L. Misner, "Songlines for the Lawyer," 29 Wlllamette L. Rev. 1 (1993).
569. Abrams, supra note 20, at 2; Teachout, supra note 454.
570. Calmore, supra note 390; John H. Ely, "Another Such Victory: Constitutional Theory and Practice in a World Where Courts Are No Different from Legislatures," 77 Va. L. Rev. 833, 837 n.10 (1991) ("On the Constitution as a Lead Sheet").
571. Sanford Levinson & J.M. Balkin, "Law, Music, and Other Performing Arts," 139 U. Pa. L. Rev. 1597 (1991).
572. Jerry J. Phillips, "Law as Ornamentation," 10 Thomas M. Cooley L. Rev. 499 (1993).
573. Search of INFOTRAC/LEGALTRAC, February 1994.
574. For a recent titular use of the related term "resonance," see Durham, supra note 23.
575. Abrams, supra note 20 (article entitled "Sing Muse: Legal Scholarship for New Law Teachers").
576. Alan E. Brownstein, "Harmonizing the Heavenly and Earthly Spheres: The Fragmentation and Synthesis of Religion, Equality, and Speech in the Constitution," 51 Ohio St. L.J. 89 (1990).
577. Weisbrod, supra note 29 (article entitled "Practical Polyphony: Theories of the State and Feminist Jurisprudence").
578. See supra note 94 and accompanying text.
579. Again, reference to legal scholars from these particular groups is not meant to be definitive. The same point could be made about a growing number of (as yet comparatively few) Native American and Asian American legal writers. The reader who is interested in manifestations of aurality in Asian American legal scholarship should see Robert S. Chang, "Toward an Asian-American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space," 81 Cal. L. Rev. 1241 (1993); Carolyn Jin-Myung Oh, "Questioning the Cultural and Gender-Based Assumptions of the Adversary System: Voices of Asian American Law Students," 7 Berkeley Women's L.J. 125 (1992). Chang's article (notably the first to call for an "Asian American Legal Scholarship") is remarkable not just for its repeated use of aural metaphors, but for its metaphorically musical structure, featuring both a "Prelude" and a "Coda."
580. Mari J. Matsuda, "Public Response to Racist Speech: Considering the Victim's Story," 87 Mich. L. Rev. 2320, 2324 (1989).
581. As a general matter, one wonders to what extent the causes of traditionally marginalized, relatively more aural American groups have been assisted by the development of the new cultural aurality and the new aural technologies discussed in the preceding section of this Article. For instance, to what extent have the new technologies encouraged feminism and civil rights by making it literally easier for American women and African Americans to make their voices heard (here consider the fundamental effect of broadcast speeches and demonstrations on the fortunes of both movements)? Analogously, to what extent has the new cultural aurality encouraged American men and whites to take those voices more seriously than they took them before?
582. For the powerful and moving story of how considerations of diversity and community have lately prompted one Jewish American legal scholar to bring more of his faith to his teaching, see Bruce Levine, "An Issue of Professional Identity," 32 Washburn L.J. 35 (1992).
583. Angel, supra note 337, at 802. Compare this to the 1950 figures discussed supra in the text accompanying note 337.
584. Cynthia F. Epstein, Women in Law 434 (2d ed. 1993).
585. In 1980 to 1981, there were 123 African American law professors in "majority-operated" law schools; by 1986, there were 187 (constituting 3.7% of the total). Allen J. Webster, Jr., "The Need for More African American Law Professors," Nat'L B.A. Mag., July-Aug. 1993, at 1. Over the same period, the number of Hispanic law faculty members increased from 24 to 33. Richard H. Chused, "The Hiring and Retention of Minorities and Women on American Law School Faculties," 137 U. Pa. L. Rev. 537, 556 (1988). By 1991 to 1992, the sum of Hispanic law faculty members had risen to 81. Rex Bossert, "The Hiring of Hispanic Faculty Is Up 25 Percent," L.A. Daily J., Jan. 10, 1992, at 1.
586. See Mary I. Coombs, "Outsider Scholarship: The Law Review Stories," 63 U. Colo. L. Rev. 683, 691 (1992).
587. Thus, Jewish law has been described as a "contrast case": antihierarchical, egalitarian, communitarian, based on mutual obligations instead of rights, etc. See Suzanne L. Stone, "In Pursuit of the Counter-Text: The Turn to the Jewish Legal Model in Contemporary American Legal Theory," 106 Harv. L. Rev. 813, 818-19 (1993); see also Steven F. Friedell, "The 'Different Voice' in Jewish Law: Some Parallels to a Feminist Jurisprudence," 67 Ind. L.J. 915 (1992).
588. On the relationship of this majoritarian "loss of confidence" to the new wave of Jewish legal writing in particular, see Stone, supra note 587, at 818.
590. See, e.g., Michael A. Olivas, "The Chronicles, My Grandfather's Stories, and Immigration Law: The Slave Traders Chronicle as Racial History," 34 St. Louis U. L.J. 425 (1990).
591. Regina Austin, "Sapphire Bound!," 1989 Wis. L. Rev. 539, 543.
592. Keeping in mind this term's general application to individuals from various "Outgroups . . . who have suffered historical under-representation and silencing in the law schools" (Mari Matsuda, "Affirmative Action and Legal Knowledge: Planting Seeds in Plowed-Up Ground," 11 Harv. Women's L.J. 1, 1 n.2 (1988)), I pointedly extend it in this Article to include Jewish American legal scholars as well as the female, African American, and Hispanic legal scholars to whom it is typically applied.
593. This term was coined by W.E.B. Du Bois who, ironically perhaps, expressed it via visual metaphors:
the Negro is a sort of a seventh son, born with a veil, and gifted with second sight in this American world,-a world which yields him no true self-consciousness, but only lets him see himself through the revelation of the other world. It is a peculiar sensation, this double-consciousness, this sense of always looking at one's self through the eyes of others, of measuring one's soul by the tape of a world that looks on in amused contempt and pity. One ever feels his twoness,-an American, a Negro; two souls, two thoughts, two unreconciled strivings; two warring ideals in one dark body, whose dogged strength alone keeps it from being torn asunder.
W.E.B. Du Bois, "The Souls of Black Folk ," in Writings 357, 364-65 (Nathan Huggins ed., 1986).
594. Some scholars have notably described this "double consciousness" as being, in a metaphorical sense, "bilingual." For a brief discussion of this overall phenomenon, see Bender, supra note 348, at 18.
595. Neal, supra note 439, at 133. Compare supra note 284 (on the privileging of aural over visual experience in African American culture).
596. Angela Harris, "Women of Color in Legal Education: Representing La Mestiza," 6 Berkeley Women's L.J. 107, 110-11 (1990-91).
597. See, e.g., Delgado, supra note 447; Charles R. Lawrence III, "If He Hollers Let Him Go: Regulating Racist Speech on Campus," 1990 Duke L.J. 431; Matsuda, supra note 580.
598. See, e.g., Patricia A. Cain, "Teaching Feminist Legal Theory at Texas: Listening to Differences and Exploring Connections," 38 J. Legal Educ. 165 (1988); Carrie Mendel-Meadow, "Women as Law Teachers: Towards the 'Feminization" of Legal Education,' in Humanistic Education in Law: Monograph III 16, 21-22 (1981); Tidwell & Linzer, supra note 22, at 813-14 (1991); Stephanie M. Wildman, "The Classroom Climate: Encouraging Student Involvement," 4 Berkeley Women's L.J. 326 (1989-90); Stephanie M. Wildman, "The Question of Silence: Techniques to Ensure Full Class Participation," 38 J. Legal Educ. 147 (1988).
599. See, e.g., Barbara Bezdek, "Silence in the Court: Participation and Subordination of Poor Tenants' Voices in Legal Process," 20 Hofstra L. Rev. 533 (1992); Eve Hill, "Alternative Dispute Resolution in a Feminist Voice," 5 Ohio St. J. On Disp. Resol. 337 (1990); Merry, supra note 444; Janet Rifkin, "Mediation from a Feminist Perspective: Promise and Problems," 2 Law & Ineq. J. 21 (1984); White, supra note 230.
600. Where our tradition is oral, anticipating that the story will change with every new teller and listener, the law gives primacy to the words within the four corners of the contract or evidentiary record, making time stand still and silencing the storyteller who comes with news of events or understandings that preceded or followed the written word. Lawrence, supra note 390, at 2279.
601. See, e.g., Alice K. Dueker, "Diversity and Learning: Imagining a Pedagogy of Difference," 19 N.Y.U. Rev. L. & Soc. Change 101, 110 (1991-1992) ("Although the success of many practicing lawyers will be based more on oral than written presentations . . ., little or no credit is given for such skills.").
602. One of the most difficult presumptions I must strive to overcome . . . is one of the primary presumptions of legal academia: that writing is the most significant act that someone in the profession can undertake, that those who write, and are published, are somehow smarter than those who primarily want to engage in the verbal exchange of ideas, or teaching. Neal, supra note 439, at 132.
603. See e.g., Matsuda, supra note 416; Matthews, supra note 445; Mullin, supra note 445; Beatrice B. Nguyen, "Accent Discrimination and the Test of Spoken English: A Call for an Objective Assessment of the Comprehensibility of Non-native Speakers," 81 Cal. L. Rev. 1325 (1993); see also Janet E. Ainsworth, "In a Different Register: The Pragmatics of Powerlessness in Police Interrogation," 103 Yale L.J. 259 (1993).
604. The authority and danger attributed to the spoken word tends to be greatest in completely oral cultures, and least in highly visualist communities: "in an oral culture, which knows words only in their natural habitat, that is, the world of sound, words necessarily carry with them a special sense of power. For sound [unlike sight] always indicates the present use of power. Walter J. Ong, "Foreword" to Pedro L. Entralgo, The Therapy of the Word in Classical Antiquity at xiii (L.J. Rather & John M. Sharp eds. & trans., Yale Univ. Press 1970) (1958).
605. Among feminist scholars, see, for example, Clare Dalton, "An Essay in the Deconstruction of Contract Doctrine," 94 Yale L.J. 997 (1985); Minow, supra note 20; Margaret J. Radin, "The Pragmatist and the Feminist," 63 S. Cal. L. Rev. 1699 (1990); Scales, supra note 387. On the psychological and evocatively aural impact of the first person, see Scheppele, supra note 462, at 2074 ("Articles [that] break taboos [and] . . . speak with the power of 'I' . . . engage you in a conversation with this named author, this real person, whose struggles and thoughts are revealed in the words on the page."). As late as the mid-1980s, however, adoption of this strategy invited rejection of submissions made even to women's law reviews. See, e.g., Heather R. Wishik, "Reverie," 16 N.M. L. Rev. 495, 500 (1986) (referring to a first-person article eventually published in the Berkeley Women's Law Journal).
606. For instances of poems quoted in recent feminist legal writing, see Dalton, supra note 605, at 1010 n.24; Hartigan, supra note 458, at 109, 110; Matsuda, supra note 244, at 622, 623; Minow, supra note 20, at 1908 n.198, 1911, 1 913 n.218; Celina Romany, "Ain't I a Feminist?," 4 Yale J.L. & Feminism 23, 31 (1991); Scales, supra note 387, at 1384; Judy Scales-Trent, "Using Literature in Law School: The Importance of Telling and Reading Stories," 7 Berkeley Women's L.J. 90, 90, 96-97 (1992).
For instances of poems quoted in African American and Hispanic legal writing, see Derrick Bell, Faces at the Bottom of the Well 15 (1992); Calmore, supra note 390, at 2156; Kate N. Day, "Lost Innocence and the Moral Foundation of Law," 1 Am. U. J. Gender & L. 165, 182-83 (1993); Leslie G. Espinoza, "Masks and Other Disguises: Exposing Legal Academia," 103 Harv. L. Rev. 1878, 1886 n.39 (1990); Linda S. Greene, "Tokens, Role Models, and Pedagogical Politics: Lamentations of an African American Female Law Professor," 6 Berkeley Women's L.J. 81, 87-88 (1990-91); Harris, supra note 596, at 111-12; Hobbs, supra note 460, at 511; Neal, supra note 439, at 133 n.11; Adrien K. Wing, "Brief Reflections Toward A Multiplicative Theory And Praxis Of Being," 6 Berkeley Women's L.J. 181, 181 (1990-1991).
607. For instances of parables quoted in Jewish American legal scholarship in particular, see Burt, supra note 451, at 467, 470; Laurence H. Tribe, "Seven Deadly Sins of Straining the Constitution Through a Pseudo-Scientific Sieve," 36 Hastings L.J. 155, 157 (1984); Steven L. Winter, "The Cognitive Dimension of the Agon Between Legal Power and Narrative Meaning," 87 Mich. L. Rev. 2225, 2226 (1989) [hereinafter Winter, Cognitive Dimension]; Steven L. Winter, "Transcendental Nonsense, Metaphoric Reasoning and the Cognitive Stakes for Law," 137 U. Pa. L. Rev. 1105, 1115-16 (1989).
608. For instances of songs quoted in feminist legal writing, see Austin, supra note 591, at 576-77; Finley, supra note 21, at 900; "Caroline Forell, Stopping the Violence: Mandatory Arrest and Police Tort Liability for Failure to Assist Battered Women," 6 Berkeley Women's L.J. 215, 215 (1990-1991); Emily F. Hartigan, "Derridoz Law Written in Our Heart/ Land: 'The Powers Retained by the People,'" 67 Tul. L. Rev. 1133, 1195 (1993); Jennifer Jaff, "Against the Flow," 6 Wis. Women's L.J. 119, 134 (1991); Mari Matsuda, "Looking to the Bottom: Critical Legal Studies and Reparations," 22 Harv. C.R.-C.L. L. Rev. 323, 398 (1987); Scales, supra note 465, at 9 n.26; Maureen A. Sweeney, "Between Sorrow and Happy Endings: A New Paradigm of Adoption," 2 Yale J.L. & Feminism 329, 329 (1990); Brenda Waugh, "A Theory of Employment Discrimination," 40 J. Legal Educ. 113, 129 n.26 (1990).
For instances of songs quoted in African American or Hispanic legal writing, see Derrick Bell, And We are Not Saved: The Elusive Quest for Racial Justice 54-56, 258 (1987); Bell, supra note 606, at 31, 178; Austin, supra note 591, at 576-77; Derrick Bell, "The Last Black Hero: A Chronicle of Interracial Love and Sacrifice," 8 Harv. Blackletter J. 275, 289 (1991); Richard Delgado, "Rodrigo's Chronicle," 101 Yale L.J. 1357, 1366 (1992); Judy Scales-Trent, "Black Women and the Constitution: Finding Our Place, Asserting Our Rights," 24 Harv. C.R.-C.L. L. Rev. 9, 9 (1989).
609. For a lament on the frequent segregation of these portions from the rest of the "traditional" scholarly text, see Robin West, "Love, Rage and Legal Theory," 1 Yale J.L. & Feminism 101 (1989).
610. On the disproportionate importance of stories in outsider legal scholarship generally, see Delgado, supra note 25; Scheppele, supra note 462. For examples of legal storytelling by feminists, see Abrams, supra note 449, at 973; Marie Ashe, "Zig-Zag Stitching and the Seamless Web: Thoughts on 'Reproduction' and the Law," 13 Nova L. Rev. 355 (1989); Susan Estrich, "Rape," 95 Yale L.J. 1087 (1986); Matsuda, supra note 416, at 1333; Carol Weisbrod, "Divorce Stories: Readings, Comments and Questions on Law and Narrative," 1991 B.Y.U. L. Rev. 143.
For examples of African American legal storytelling, see Bell, supra note 606; Taunya L. Banks, "Two Life Stories: Reflections of One Black Woman Law Professor," 6 Berkeley Women's L.J. 46 (1990-91); Greene, supra note 606; Lawrence, supra note 41.
For examples of Hispanic legal storytelling, see Delgado, supra note 608; Gerald P. Lopez, "Lay Lawyering," 32 UCLA L. Rev. 1 (1984); Olivas, supra note 590; Juan Martinez, "Book Review," 9 Harv. Blackletter J. 163 (1992) (reviewing Patricia J. Williams, The Alchemy of Race and Rights (1991)).
611. For examples of "outsider" dialogue, see Culp, supra note 557; Delgado, supra note 557; Delgado, supra note 25; Richard Delgado & Helen Leskovac, "The Politics of Workplace Reforms: Recent Works on Parental Leave and a Father-Daughter Dialogue," 40 Rutgers L. Rev. 1031 (1988); Dinesh Khosla & Patricia Williams, "Economies of Mind: A Collaborative Reflection," 10 Nova L.J. 619 (1986). The various "chronicles" of Derrick Bell and Richard Delgado are too elaborate to be placed in this category; somewhat arbitrarily, I prefer to treat them as stories.
612. E.g., Victor Bolden, "Judge Not, That Ye May Not Be Judged: A Dramatic Call for a More Enlightened Approach to Judicial Decision-Making in Race Discrimination Cases," 7 Harv. Blackletter J. 33 (1990).
613. For examples of outsider parable, see Patricia J. Williams, The Alchemy of Race and Rights (1991); David Hall, "The Constitution and Race: A Critical Perspective Epilogue," 5 N.Y.L. Sch. J. Hum. Rts. 425 (1988); Hartigan, supra note 458; Martha Minow, "Some Realism About Realism: A Parable for the Fiftieth Anniversary of the Federal Rules of Civil Procedure," 137 U. Pa. L. Rev. 2249 (1989).
614. For examples of outsider poetry, see Mary E. Griffith, "Sexism, Language, and the Law," 91 W. Va. L. Rev. 125, 149-51 (1988); Judy Scales-Trent, "Commonalities: On Being Black and White, Different, and the Same," 2 Yale J.L. & Feminism 305 (1989-90); Waugh, supra note 608, at 113; Heather Wishik, "To Question Everything: The Inquiries of Feminist Jurisprudence," 1 Berkeley Women's L.J. 64, 71 (1985); Wishik, supra note 605, at 495. The popularity of original poetry among feminist legal scholars is such that a number of the leading women's law journals now devote special attention to that form. See, e.g., 16 Harv. Women's L.J. 275-78 (1993); 1 Hastings Women's L.J. 6, 152 (1989); 2 Tex. J. Women & Law 145-49 (1993).
615. Delgado, supra note 25, at 2436. More generally, see Humez, supra note 246, at 126-27 ("[A]ny distinctively female use of literary forms or style is very likely to reflect women's longer and fuller immersion in the world of the spoken word, as well as gender-specific spoken-arts traditions developed in relation to family, social, and work roles.").
616. "The use of stories to make a point is, of course, a well-known African tradition . . . ." Derrick Bell, "The Final Report: Harvard's Affirmative Action Allegory," 87 Mich. L. Rev. 2382, 2394 (1989). See also Lawrence, supra note 390, at 2278; Neal, supra note 439, at 134 ("I suspect that some of the storytelling in the new written scholarship produced by people of color is an attempt . . . to bridge a gap between oral traditions and written traditions.").
617. Bell, supra note 608, at 55. Somewhat more generally, it has lately been argued that Bell's use of shifting perspective and self as a subject of interrogation [in Faces at the Bottom of the Well: The Permanence of Racism] "evokes the blues form which deploys the highly individual voice of the artist, as commentator and participant in shared history and present condition, to connect with, mirror, affirm, and transform the collective as an act of both individual and community self-definition." Cheryl I. Harris, "Book Note, Bell's Blues," 60 U. Chi. L. Rev. 783, 786 (1993) (reviewing Derrick Bell, Faces at the Bottom of the Well: The Permanence of Racism (1992)).
618. Delgado, supra note 25, at 2436; see also Olivas, supra note 590, at 440.
619. Olivas, supra note 590, at 425, 427.
620. Cover, supra note 449, at 6 n.9.
621. Delgado, supra note 19, at 109.
622. I am certainly not the first to notice this. See, e.g., Eloise A. Buker, "'Lady' Justice: Power and Image in Feminist Jurisprudence," 15 Vt. L. Rev. 69 (1990) (briefly discussing the prevalence of the metaphors of "voice" and "silence" in feminist jurisprudence).
623. Menkel-Meadow, supra note 387, at 49.
624. Dalton, supra note 605.
625. Phelps, supra note 28, at 1102; Schneider, supra note 28, at 622.
626. See, e.g., Catherine A. MacKinnon, Towards a Feminist Theory of the State (1989).
627. See, e.g., Minow, supra note 20.
628. See, e.g., Matsuda, supra notes 244 and 608.
629. See, e.g., Mary Ann Glendon, Abortion and Divorce in Western Law (1987). For a discussion of Glendon's metaphorical use of "storytelling" and "conversation" in this book, see Katharine T. Bartlett, "Storytelling," 1987 Duke L.J. 760 (book review).
630. See, e.g., Ruth Colker, Abortion and Dialogue (1992); Ruth Colker, "Feminist Litigation: An Oxymoron? - A Study of the Briefs Filed in William L. Webster v. Reproductive Health Services," 13 Harv. Women's L.J. 137 (1990).
631. See, e.g., Rose, supra note 449.
632. See, e.g., Alison G. Anderson, "Lawyering in the Classroom: An Address to First Year Students," 10 Nova L.J. 271 (1986); Hodges, supra note 29; Ramsey, supra note 19.
633. Minow, supra note 20, at 1912.
634. Weisbrod, supra note 29, at 1018.
635. Emily F. Hartigan, "Law and Mystery: Calling the Letter to Life Through the Spirit of the Law of State Constitutions," 6 J.L. & Religion 225, 225-26, 237-38 (1988) (emphasis added).
636. Jerome M. Culp, Jr., "You Can Take Them to Water but You Can't Make Them Drink: Black Legal Scholarship and White Legal Scholars," 1992 U. Ill. L. Rev. 1021, 1021 (emphasis added).
637. Id. at 1026; see also Jerome M. Culp, Jr., "Posner on Duncan Kennedy and Racial Difference: White Authority in the Legal Academy," 41 Duke L.J. 1095, 1100 (1991).
638. Culp, supra note 636, at 1028.
639. Jerome M. Culp, Jr., "Firing Legal Canons and Shooting Blanks: Finding a Neutral Way in the Law," 10 St. Louis U. Pub. L. Rev. 185, 187 (1991).
640. Culp, supra note 636, at 1033.
641. Williams, supra note 613, at 55, 150, 154, 201.
642. Day, supra note 606, at 175.
643. Quoted in Dale Russakoff, "Lani Guinier Is Still Alive and Talking," Wash. Post, Dec. 12, 1993, Magazine, at 14, 19 (identifying the "metaphor of conversation" as central to Guinier's thought and legal language).
644. Calmore, supra note 390, at 2134. For another, albeit less-extended, instance of music-as-metaphor in recent African American legal scholarship, see Beverly M.M. Charles, "'The Lord Don't Like No Ugly.' - Racism in America," 10 Nat'L Black L.J. 333, 346 (1988) (reviewing Derrick Bell, And We are Not Saved: The Elusive Quest for Racial Justice (1987)) ("Bell's characters sing a song which harmonizes with the melodies deep within the breasts of the descendents of slaves in this country. . . . Black people hear the refrains; we hear Jeremiah's lament that we are not saved . . . .").
645. See, e.g., Richard Delgado, "Norms and Normal Science: Toward a Critique of Normativity in Legal Thought," 139 U. Pa. L. Rev. 933, 937, 942, 953, 957, 959-62 (1991).
646. For instance, in a recent piece, he described the empowerment of minority law professors as "giv[ing] them a voice strong enough that all could hear." Richard Delgado, "The Inward Turn in Outsider Jurisprudence," 34 Wm. & Mary L. Rev. 741, 767 (1993).
647. Steven Winter has for instance acknowledged the "liberating effect" that Cover's work had on him: "For a long time, my traditional education in the extensive Jewish canon was abandoned like a piece of old furniture in a musty attic. Cover's work has shown me how the intellectual abundance of these materials can be a profound source of analytic insight." Winter, Cognitive Dimension, supra note 607, at 2225 n.3.
648. Cover, supra note 449, at 4.
649. Robert M. Cover, "The Folktales of Justice: Tales of Jurisdiction," 14 Cap. U. L. Rev. 179 (1985).
650. Minow, supra note 20, at 1913 n.219 (referring to one of Buber's books as assigned reading in Cover's Yale seminar on "Myth, Law and History").
651. Cover & Aleinikoff, supra note 27.
652. Robert Cover, "Obligation: A Jewish Jurisprudence of the Social Order," 5 J.L. & Religion 65, 69 (1987).
653. Id. at 68.
654. Burt, supra note 451, at 487-88. On Burt's tendency in this and other works to employ metaphors drawing on Jewish religious practice or experience, see Thomas L. Shaffer, "Judges as Prophets," 67 Tex. L. Rev. 1327, 1338-40 (1989).
655. Stone, supra note 587, at 820 n.30 (discussing the significance of S'vara, Fletcher's journal on Jewish law and philosophy).
656. Fletcher, supra note 24.
657. Id. at 1632. In this context, Robert Cover's aural metaphors for law-"dialogue," "voice," and "cacophony"-become especially appropriate. Behind them one can almost hear the literal voices of generations of rabbis, forever debating one another in synagogue and temple.
658. Russakoff, supra note 643, at 16.
659. This last, and admittedly disparate, group would include (although it is not limited to) disciples of CLS, civic republicanism, and postmodernism.
660. See generally Cover, supra note 449; Delgado, supra note 19; Michelman, supra note 27; Martha Minow & Elizabeth V. Spelman, "In Context," 63 S. Cal. L. Rev. 1597 (1990); Catherine Wells, "Situated Decisionmaking," 63 S. Cal. L. Rev. 1727 (1990).
661. Matsuda, supra note 580, at 2324; Calmore, supra note 390, at 2171.
662. For a feminist version of the attack on abstraction and "grand theory," see Fineman, supra note 215, at 28-29.
663. See Drucilla Cornell, "Toward a Modern/Postmodern Reconstruction of Ethics," 133 U. Pa. L. Rev. 291 (1985); Hill, supra note 599; Robin West, "Jurisprudence and Gender," 55 U. Chi. L. Rev. 1 (1988); West, supra note 609.
664. For a description of the CLS analysis of bias which relates that analysis to an older realist critique, see David S. Caudill, "Disclosing Tilt: A Partial Defense of Critical Legal Studies and a Comparative Introduction to the Philosophy of the Law-Idea," 72 Iowa L. Rev. 287, 292-93 (1987). For a feminist analysis of the problem of bias, see Fineman, supra note 215, at 31.
665. See Lynne N. Henderson, "Legality and Empathy," 85 Mich. L. Rev. 1574 (1987); Mari J. Matsuda, "When the First Quail Calls: Multiple Consciousness as Jurisprudential Method," 11 Women's Rts. L. Rep. 7 (1989); Minow, supra note 397, at 76, 79-80; Martha L. Minow & Elizabeth V. Spelman, "Passion for Justice," 10 Cardozo L. Rev. 37, 52 (1988). But see also Massuro, supra note 25.
666. "Rather than choosing one point of view over another, courts might recognize that the existence of multiple, self-believed, plausible accounts is an important fact of the case that deserves some attention. If a dispute occurs across a perceptual fault line where people with different backgrounds, understandings and expectations have a disagreement, then the presence of different versions is a clue that there is more at stake here than the violation of a particular legal rule." Scheppele, supra note 462, at 2097; see also Minow, supra note 397, at 77. CLS scholars initially broached the concept of multiperspectivity by speaking of traditional law's "indeterminacy," i.e., its inability to provide "one right answer." See Gabel & Kennedy, supra note 460; Matsuda, supra note 665.
667. One feminist scholar has described this as involving a commitment to "narrativity of meaning," as opposed to "atemporality." Radin, supra note 605, at 1707.
668. See, e.g., White, supra note 23, at 688. Many feminist legal scholars sensitive to the significance of process notably describe their works as instances of "methodology" (a dynamic term that highlights process) rather than "theory" (a static term that highlights product). See Fineman, supra note 215, at 27.
669. Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law 7-11 (1990); Finley, supra note 21, at 899, 902; Mari J. Matsuda, "Pragmatism Modified and the False Consciousness Problem," 63 S. Cal. L. Rev. 1763, 1771 (1990); Radin, supra note 605, at 1707.
670. "Both [sound and sight], of course, are necessary in human living and are complementary. The issue here is simply that the stress on one or the other develops quite different intellectual systems. P. Joseph Cahill, Mended Speech: The Crisis of Religious Studies and Theology 35 (1982).
671. Ihde, supra note 322, at 249.
672. Julian Jaynes, The Origin of Consciousness in the Breakdown of the Bicameral Mind 96 (1976).
673. "Sight isolates, sound incorporates." Ong, supra note 174, at 72.
674. Id. at 101.
675. Walter J. Ong, Rhetoric, Romance and Technology 284 (1971); see also Brown & Gilligan, supra note 251, at 20 ("Voice is inherently relational."); McLuhan, supra note l, at 241 ("[T]he world of sound is essentially a unified field of instant relationships.").
676. Ong, supra note 75, at 123.
677. Lori Breslow, "The Mediated 'I': The Consequences of Communications Technology for the Conceptualization of the Self" 39 (1989) (unpublished Ph.D dissertation, New York University) (on file with author).
678. Ihde, supra note 81, at 79; see also Levin, supra note 538, at 32.
679. "The area that the unaided ear can effectively cover in the course of daily living is quite limited. Up to twenty feet the ear is very efficient. At about one hundred feet, one-way vocal communication is possible, at somewhat slower rate than at conversational distances, while two-way conversation is very considerably altered. Beyond this distance, the auditory cues with which man works begin to break down rapidly." Hall, supra note 370, at 41.
680. David Reisman, The Oral Tradition, The Written Word, and the Screen Image 34 (1956).
681. "[L]istening, . . . unlike sight, involves a turning toward the Other. An epistemology of listening compels us towards dialogue rather than detachment." O'Fallon & Ryan supra note 22, at 896-97.
682. Jaynes, supra note 672, at 97.
683. On the relationship between sound and presence, see Ong, supra note 75, at 114.
684. See generally David R. Olson, "The Cognitive Consequences of Literacy," 27 Canadian Psychol. 109 (1986).
685. Lipkin, supra note 453, at 109.
686. Ong, supra note 75, at 129.
687. David Howes & Constance Classen, "Sounding Sensory Profiles," in Varieties, supra note 48, at 257, 265.
688. Marshall McLuhan & Eric McLuhan, Laws of Media: The New Science 55 (1988).
689. Ackerman, supra note 166, at 219.
690. See supra note 375 and accompanying text.
691. Ackerman, supra note 166, at 219-20.
692. Ihde, supra note 81, at 84.
693. Jonas, supra note 108, at 137; Ong, supra note 75, at 112.
694. In this context, "[w]hat . . . sound immediately discloses is not an object but a dynamical event at the locus of the object, and thereby mediately the state the object is in at the moment of that occurrence." Jonas, supra note 108, at 137.
695. Chidester, supra note 368, at 7.
696. See the discussion of Frye, id. at 12.
697. Keller & Grontworski, supra note 87, at 221.
698. Carpenter & McLuhan, supra note 45, at 67.
699. See supra notes 401-69 and accompanying text.
700. See, e.g., Friedell, supra note 587, at 944-49 (discussing the similarity between "feminist" values and traditional Jewish legal values); Jeanne L. Schroeder, "Feminism Historicized: Medieval Misogynist Stereotypes in Contemporary Feminist Jurisprudence," 75 Iowa L. Rev. 1135 (1990) (emphasizing the correspondence between contemporary feminist values and the values embraced by medieval men); Sherry, supra note 387 (pointing out that "feminist" or "feminine" values have much in common with "republican" values that were articulated hy seventeenth- and eighteenth-century English and American males); and Williams, supra note 388 (noting the overlap between "women's" values and the values articulated by some of the twentieth century's most culturally and intellectually progressive men). It is extremely interesting to note that all of the male groups with which feminists seem to share a common normative ground have lived in cultural environments significantly infused or re-infused with aurality.
701. Williams, supra note 388, at 806 (disputing-in light of their nonexclusivity-the notion that any values can be labelled essentially "feminine" or "feminist" per se).
702. See generally Belenky et Al., supra note 251, at 93-99, 149; Nancy Chodorow, The Reproduction of Mothering: Psychoanalysis and the Sociology of Gender (1978); Gilligan, supra note 255; Jean B. Miller, Toward a New Psychology of Women (1976); Anne W. Schaef, Women's Reality: An Emerging Female System in the White Male Society (1981); Bate, supra note 241, at 303-05; Bonnie J. Dow & Mari B. Tonn, "'Feminine Style' and Political Judgment in the Rhetoric of Ann Richards," 79 Q. J. Speech 286 (1993); Patricia A. Sullivan, "Women's Discourse and Political Communication: A Case Study of Congressperson Patricia Schroeder," 57 W. J. Comm. 530 (1993).
703. See, e.g., Ruth Colker, "Feminism, Theology, and Abortion: Toward Love, Compassion and Wisdom," 77 Cal. L. Rev. 1011 (1989); Christina A. Littleton, "Reconstructing Sexual Equality," 75 Cal. L. Rev. 1279 (1980); Elizabeth M. Schneider et al., "'Feminist Jurisprudence - The 1990 Myra Bradwell Day Panel," 1 Colum. J. Gender & L. 5, 11-13 (1991); West, supra note 663; and the works of other feminist legal scholars cited supra notes 659-69.
704. For example, on the importance of subjective commitment and personal perspective in African American culture, see Kochman, supra note 287, at 20-25; Henry L. Gates, Jr., "Introduction" to Bearing Witness: Selections from African-American Autobiography in the Twentieth Century 3 (Henry L. Gates, Jr. ed., 1991). In a recent law review article, Charles Lawrence indirectly suggested a personal connection between aurality and subjectivity in these terms:
I feel an immediate kinship with the tradition that [African American historian incent] Harding describes and names "the Word." It is a tradition of teaching, preaching, and healing . . . .
. . . .
By contrast I am struck by the strong sense of alienation that I have felt from the role of "scholar" . . . . I sense that the primary source of my resistance to this role lies in the question as to whether the character of this tradition is in direct opposition to that of the Word. The scholar is "objective." . . . He is guided by an orthodoxy that equates objectivity with emotional disengagement, cognitive distance, and moral indifference.
Lawrence, supra note 390, at 2238 (footnote omitted). Lawrence goes on to discuss African Americans' cultural concern with personal perspective and subjectivity. Id.
705. See, e.g., Williams, supra note 613; Calmore, supra note 390; Culp, supra note 390; Lawrence, supra note 390.
706. See generally Boman, supra note 85; Friedell, supra note 587.
707. See, e.g., Robert A. Burt, "Precedent and Authority in Antonin Scalia's Jurisprudence," 12 Cardozo L. Rev. 1685 (1991); Cover, supra note 449; Cover supra note 649; Fletcher, supra note 24; Jacobson, supra note 326.
708. Note, for instance, the jurisprudential impact of the Conference on Critical Legal Studies, first held in 1977 and later reconvened annually; the annual Feminism and Legal Theory Conferences run by Martha Fineman; the Conference on Critical Race Theory, 1989; and a variety of other "critical" gatherings mentioned in Coombs, supra note 586, at 692. On the intersection of aural and visual, oral and written in this type of environment, see generally Deborah Tannen, "The Commingling of Orality and Literacy in Giving a Paper at a Scholarly Conference," 63 Am. Speech 34 (1988).
709. Thus, "feminist legal writers who have written about particular injuries increasingly include some version of the narrative [i.e., the story] of their own victimization. We do this, I think, because of our conviction that these narratives are essential to the substantive analysis we are trying to convey." West, supra note 609, at 107 (footnotes omitted).
710. Delgado, supra note 25, at 2413. Using actual sound (speech or song) to communicate or insinuate critical concepts or values is even more ideologically provocative. As Gary Minda has observed in the context of music:
knowing the words, singing along and having your body rhythmically in tune with the music can create an experience which goes beyond the abstract, analytical descriptions of what the song . . . can mean when considered alone on a printed page. The intersubjective feelings evoked by listening to the music . . . can be a way for experiencing counterculture-an experience of social relations which is different from the everyday experiences captured by one's "professional" life as a lawyer, law student or law professor.
Minda, supra note 454, at 490 (footnote omitted). Over the last twenty years, a number of law professors-Paul Wohlmuth at San Diego, Karl Johnson and Ann Scales at New Mexico, and John Calmore at Loyola-have played music and sung songs in the classroom for precisely this reason.
711. "The metaphor[ ] . . . of . . . conversation enable[s] a conception of community connections forged through the exchange of words in the struggle for meaning." Minow, supra note 20, at 1881. In the discipline of psychology, Lyn Mikel Brown and Carol Gilligan have analogously written:
Our effort to find ways of speaking about human experience in a manner that re-sounds its relational nature . . . as well as the ever-changing or movingthrough-time quality of the sense of self and the experience of relationship, has led us to shift the metaphoric language psychologists traditionally have used in speaking of change and development from an atomistic, positional, architectural, and highly visual language of structures, steps, and stages to a more . . . musical [i.e., aural] language of movement and feeling . . . .
Brown & Gilligan, supra note 251, at 23.
712. The terms "polyphony" and "polyphonic" "are applied to 'many-sound' or 'manyvoiced' music, i.e., music in which instead of the parts marching in step with one another, . . . they move in apparent independence and freedom though fitting together harmonically. Percy A. Scholes, The Oxford Companion to Music 820 (John O. Ward ed., 10th ed. 1970).
713. For a rare instance of legal scholars deliberating at length on the theoretical appropriateness and utility of an aural metaphor ("listening"), see O'Fallon & Ryan, supra note 22.
714. Thus, "feminist and minority legal scholars have used voices and story-telling as metaphors to argue for a jurisprudence grounded in the reality of personal and social experience." Martha I. Morgan, "Founding Mothers: Women's Voices and Stories in the 1987 Nicaraguan Constitution," 70 B.U. L. Rev. 1, 3 (1990). On the normative (as opposed to the sociological) attraction of aural metaphors for feminists generally, see Love, supra note 255, at 95:
In their efforts to avoid the trio distance/domination/normalization, feminist epistemologists mix metaphors, opening vision up to, imbricating it with, voice(s). The sound of voices draws them away from the epistemological terrain of the foundationalist/antifoundationalist debate. They move toward politics, towards the extra-foundational space that debate reveals. However, the continued dominance of visual imagery, the association of knowing with seeing, obscures and slows that movement. An exploration of differences between these senses suggests that voice is a better metaphor for a political epistemology and the democratic politics accompanying it.
Both these comments may profitably be compared with the metaphoric strategy adopted earlier in this century by "critical" Continental philosophers such as Martin Heidegger: "Ocular metaphors presuppose distance and detachment, and Heidegger is constantly replaying them in aural terms which stress the belonging of Dasein to Being. . . . Ocular metaphors give way to aural ones in order to regain our sense of the primordial belonging of thought to Being, of man to world." Caputo, supra note 505, at 255.