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71 Docket D1 (2023)

handle is hein.journals/dock71 and id is 1 raw text is: Buffalo Law Review THE DOCKET VOLUME 71 SEPTEMBER 2023 NUMBER 1 Why Law Isn't Jazz: A Response JAMES A. GARDNERt Every now and then, critics of some development in American law become so demoralized by the insensitivity of courts to the usual kinds of legal critique that they turn in frustration to critical metaphors drawn from the arts. Sometimes, these metaphors have been drawn from literature on the theory that the literary imagination can help us . .. conceive a new and better legal regime.1 At other times, the metaphors have been musical.2 In the most recent entry in this genre, Jazz Improvisation and the Law: Constrained Choices, Sequence, and Strategic Movement within Rules, Professor William Buzbee argues that a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation.3 In making this claim, Professor Buzbee, a musician himself, composes, as it were, a kind of fugue weaving together two practices law and jazz-that are not ordinarily thought compatible, or even similar. t Bridget and Thomas Black SUNY Distinguished Professor of Law and Research Professor of Political Science, University at Buffalo Law School, The State University of New York. Thanks to Guyora Binder, Charles Calleros, Jorge Fabra-Zamora, Paul Linden-Retek, Jay Mootz, and Jack Schlegel for comments on an earlier draft. 1. GUYORA BINDER & ROBERT WEISBERG, LITERARY CRITICISMS OF LAW 3-4 (2000). 2. See, e.g., Sanford Levinson & J.M. Balkin, Law, Music, and Other Performing Arts, 139 U. PA. L. REv. 1597 (1991). 3. William W. Buzbee, Jazz Improvisation and the Law: Constrained Choice, Sequence, and Strategic Movement within Rules, 2023 ILL. L. REv. 151, 153 (2023). D1

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