Law scholars’ new book explores masculinity in law and literature

When Profs. Martha Nussbaum and Saul Levmore asked six prominent judges to contribute to their new book, American Guy: Masculinity in American Law and Literature (Oxford University Press), they received nuanced essays reflecting on the complex role that masculinity plays in American law and literature.

“Judges are multidimensional, interesting people with a lot to say. They can be introspective about how their own pasts affect their judging and their attitudes toward the rest of the world,” said Levmore, the William B. Graham Distinguished Service Professor of Law. “I edited Janice Rogers Brown, and I found her work really moving. I feel like a good friend of hers now, and I’ve never met her. We had this exchange of emails and thoughts about the world and morals. Judges don’t really get a chance to talk about that. They can be a little bit afraid to write about things other than their own judicial opinions.” 

The book, which grew out of a 2012 law-and-literature conference, includes 16 essays that use American literature—from Herman Melville’s story “Bartleby, the Scrivener: A Story of Wall Street” to F. Scott Fitzgerald’s The Great Gatsby to Wallace Stegner’s Angle of Repose—to explore cultural ideas about manliness and how they relate to the law.

The judicial contributors, who joined the project after the conference, explored topics ranging from the decline of masculinity (Law School Senior Lecturer Richard A. Posner, a judge on the Seventh Circuit Court of Appeals) to the tension between traditional, heroic masculinity and the anti-heroic allure of saying no (William Alsup, a U.S. district judge in California in a deeply personal essay about Melville’s Bartleby). Judge J. Harvie Wilkinson III, of the Fourth Circuit Court of Appeals, explored solitude, including his own yearning for it—and the ability of a judge to find it in the occasional lone dissent. 

“It was Saul’s brilliant idea to get the judges involved,” said Nussbaum, the Ernst Freund Distinguished Service Professor of Law and Ethics. “He got these judges excited about this. And they really did what we asked them to do.”

Masculinity is a rich topic for law-literature analysis, Levmore and Nussbaum noted in their introduction, because legal concepts are replete with references to the “average man” and the “reasonable man,” as well as standards, such as “in the heat of passion,” that are undoubtedly influenced by the view that a  “man” is rugged, solitary and quick to defend his own. 

“There are lots of areas of law where there are gender concepts that are being used,” Nussbaum said. “Family law has implicit conceptions of what’s the mother’s job, what’s the father’s job. The idea was to go through different areas of law and think about how normative cultural notions of masculinity affect things, for good or for bad.”

The book, which features a variety of voices and scholars and is the third in a series of law-literature investigations at the Law School, is divided into two sections. The first deals with the iconic “manly man,” and the second looks at “outsiders,” such as Jews, gays and empathetic men. One essay, by Richard H. McAdams, the Bernard D. Meltzer Professor of Law, examines certain qualities exhibited by Atticus Finch in Harper Lee’s To Kill a Mockingbird, including courage, shrewd empathy, and a simultaneous expression of both manly and unmanly traits. 

“We put this essay in the second half of the book, but it just as well could have been in the first,” Levmore said. “From the point of view of most of the world, Atticus Finch is an outsider. He’s in the South, and, although it turns out he can shoot a gun, he doesn’t work the way people around him work, and you don’t get the sense that he has any adult friends; he’s an outsider. But to people like us—academics, lawyers, judges—he’s a total insider. He’s a smart guy who wears glasses, who’s quick with the witty responses, and on the weekends he can pick up a shotgun and shoot it.”

Levmore and Nussbaum appreciated McAdams’ interpretation of empathy as something that can be strategic as well as altruistic—and was displayed in both forms by Finch.

“You think of empathy as something soft and womanly and involved with taking care of people,” Nussbaum said. “But lawyers use empathy to destroy, and they’ll tear apart a witness because they have an empathetic understanding of where that person is coming from. It’s the aggressive, ‘manly man’ side of empathy that comes out.”

The editors each contributed essays of their own in the second section, with Levmore using William Faulkner’s story “Barn Burning” to examine the “unmanly” choice to betray a family member in favor of the greater good, and Nussbaum taking on Jewish norms of masculinity with an analysis of UChicago alumnus Philip Roth’s story, “Eli, the Fanatic.”

American Guy is the second book Levmore and Nussbaum have edited together; The Offensive Internet: Speech, Privacy, and Reputation (Harvard University Press) was released in 2011. They are writing their next project, a collection of essays on aging, in its entirety.

—Adapted from a story from the University of Chicago Law School website.