Recent Supreme Court decisions such as Atkins v. Virginia and Lawrence v. Texas specifically address the linkages between shifting cultural attitudes and the evolution of law. In this Article, I examine the mutually constitutive relationship between legal and cultural developments from a historical perspective and illustrate the necessity of looking to sources that I define as outlaw texts in order to access invaluable information about the process of legal change.
To demonstrate how a study of outlaw texts can enrich our understanding and critical consideration of law and legal history, this Article presents detailed analyses of specific examples of nineteenth-century women's narrative advocacy. The outlaw texts examined in the Article include narratives of nonfiction and fiction. While critical race, feminist, and cultural study of law scholars have emphasized the importance of looking beyond official legal texts such as statutes, judicial opinions, and legislative histories, this Article breaks new ground by arguing that this expanded inquiry also should include a heretofore unacknowledged source of legal history - the novel. The novel was the most popular form of women's writing in the nineteenth century and, as this Article shows, an important public legal forum for women. By providing a space where women's stories could be told and read, calling into question the law's claim to truth, and creating new knowledge through the shared tellings of women's experiences, nineteenth-century novels performed what today we would call feminist jurisprudence.
Outlaw texts, whether real-life or fictional narratives, document the everyday effects and negotiations of law that ultimately influence how the law is revised and refined. With respect to the nineteenth century, these texts are records of experiences and perspectives that clearly were driving the significant legal reforms that took place at this time in the areas of married women's property, divorce, child custody, and domestic abuse.
Through its specific study of the historical performance of feminist jurisprudence and early women's advocacy, this Article contributes to our knowledge of women's important but often overlooked roles in legal history. With its cross-disciplinary approach to what constitutes a legal text, as well as its analyses of the legal work performed in novels such as Wuthering Heights, this Article also suggests new and invigorating directions for the law and literature movement. But, most significantly, this Article concludes that the study of outlaw texts has broader implications for the study of law and legal education than its potential impacts on certain specialized fields. Outlaw texts bring into sharp focus the omissions of certain views, arguments, and experiences from traditional legal texts; they also illuminate the ways in which legal outsiders have produced, contested, and transformed law and legal meanings.
Kalsem, Kristin (Brandser), "Looking for Law in All the Wrong Places: Outlaw Texts and Early Women's Advocacy" (2003). Faculty Articles and Other Publications. 12.