Re: the post about using literary references to bolster an argument, a three-judge panel for the DC court of appeals selected a brilliant Lewis Carrol quote to underscore the absurdity of the Bush administration's position that detainees can be kept in Gitmo with little or not evidence. Bush lawyers, employing the ever-popular repetition strategy (it works well in law school), contended that because accusations made against a Chinese Muslim appeared in three separate secret reports, they must therefore be true.
The court's answer, courtesy of the NYTimes:
"The court compared that to the absurd declaration of a character in the Lewis Carroll poem 'The Hunting of the Snark': 'I have said it thrice: What I tell you three times is true.' "
Avid readers, Disney-movie watching children, and hallucinogen aficionados around the world will understand the potency of this reference.
Monday, June 30, 2008
Thursday, June 26, 2008
Big Fish to Fry, or Shoot
The last week in June is a wonderful week: the Supreme Court hands down its sexiest opinions of the year and I have a birthday. This particular week has carried some mixed blessings, however, both for me and the left-leaning followers of the court. Perhaps as a harbinger of things to come, I got into a nasty car accident yesterday in which my beloved Volvo crumpled underneath a burly Chevy pickup. Mixed blessing #1: I was fine, the car was totaled. The rest of yesterday and this morning has followed a similar pattern.
Mixed blessing #2: While waiting for my insurance agent to call me back, I checked out SCOTUSblog and was thrilled to read that the justices held Louisiana's child rape death penalty law unconstitutional. Soon after, the court struck down the punitive damages award in the Exxon Valdez case. Choice quote from Stevens's dissent:
"In light of Exxon's decision to permit a lapsed alcoholic to command a supertanker carrying tens of millions of gallons of crude oil through the treacherous waters of Prince William Sound, thereby endangering all of the individuals who depended upon the sound for their livelihoods, the jury could reasonably have given expression to its 'moral condemnation' of Exxon's conduct in the form of this award"
Mixed Blessing #3: The court ruled that we Americans enjoy an individual right to own guns. I live in Texas ipso facto I knew that already. So is this inherently a mixed blessing? Although we can now relish the joys of armed protection, we might have to grapple with some attendant paranoia that the grumpy guy stuck in traffic might be packing a Glock in his glove compartment.
Mixed blessing #2: While waiting for my insurance agent to call me back, I checked out SCOTUSblog and was thrilled to read that the justices held Louisiana's child rape death penalty law unconstitutional. Soon after, the court struck down the punitive damages award in the Exxon Valdez case. Choice quote from Stevens's dissent:
"In light of Exxon's decision to permit a lapsed alcoholic to command a supertanker carrying tens of millions of gallons of crude oil through the treacherous waters of Prince William Sound, thereby endangering all of the individuals who depended upon the sound for their livelihoods, the jury could reasonably have given expression to its 'moral condemnation' of Exxon's conduct in the form of this award"
Mixed Blessing #3: The court ruled that we Americans enjoy an individual right to own guns. I live in Texas ipso facto I knew that already. So is this inherently a mixed blessing? Although we can now relish the joys of armed protection, we might have to grapple with some attendant paranoia that the grumpy guy stuck in traffic might be packing a Glock in his glove compartment.
Monday, June 23, 2008
Dereliction of Duty
This past week has been pretty hectic and I apologize for not getting any posts up. Here are some links to tide you all (y'all) over until I have some time to write:
1) Mike, this will partially answer your question about why the vote in Boumediene was so close. Basically, Kennedy has taken over the swing position from O'Connor.
2) It's Supreme Court week over at Slate.com and Dahlia Lithwick, Walter Dellinger, et al have some great commentary on this year's important decisions. I like this one in particular because it chides Scalia for attempting to use fear-mongering as a constitutional argument.
3) In the wake of the Boumediene decision, the Bush administration has been scrambling to figure out how to successfully prosecute cases against Guantanamo detainees in civilian courts. The solution? Re-write the evidence against the detainees.
4) I finished Warlock by Oakley Hall over the weekend. Everyone should read it, not just Pynchon fans. And thematically, it's eerily relevant to the war on terror.
1) Mike, this will partially answer your question about why the vote in Boumediene was so close. Basically, Kennedy has taken over the swing position from O'Connor.
2) It's Supreme Court week over at Slate.com and Dahlia Lithwick, Walter Dellinger, et al have some great commentary on this year's important decisions. I like this one in particular because it chides Scalia for attempting to use fear-mongering as a constitutional argument.
3) In the wake of the Boumediene decision, the Bush administration has been scrambling to figure out how to successfully prosecute cases against Guantanamo detainees in civilian courts. The solution? Re-write the evidence against the detainees.
4) I finished Warlock by Oakley Hall over the weekend. Everyone should read it, not just Pynchon fans. And thematically, it's eerily relevant to the war on terror.
Thursday, June 12, 2008
Detainees 3, Bush 0; Also, I <3 David Souter
Huge news from SCOTUS today: the justices ruled 5-4 that Guantanamo detainees are entitled to "prompt habeas corpus hearings," holding §7 of the Military Commission Act unconstitutional. This is the THIRD rebuke that the Bush administration has received from the Court over the handling of enemy combatants. Asked about the ruling while making his final European tour, Bush said that he did not agree with the majority opinion and grudgingly stated that he would abide by the Court's ruling. I put aside my "work" work this morning in order to sift through the 130+ page behemoth of an opinion and here are my findings:
1) Justice Kennedy's majority opinion is a paean to the importance of habeas corpus. He offers a thorough historical exegesis of the writ to support the argument that only extraordinary circumstances allow for a justified invocation of the Constitution's Suspension Clause. The problem, he notes, is that the writ was never formally suspended— the Bush administration simply maintains that habeas does not apply to enemy combatants, and, in the event that it does, the Military Tribunals are an adequate proxy for protecting the detainees constitutional rights. Therefore, the majority in effect challenges the Bush administration to either invoke the Suspension Clause and deny everyone the right to habeas hearings on the grounds that the nation faces imminent wartime dangers, or acknowledge that habeas privileges apply to enemy combatants held in Guantanamo: the Suspension Clause "ensures that, except during periods of formal suspension, the judiciary will have a time tested device, the writ, to maintain the delicate balance of government that is itself the surest safeguard of liberty." As far as review is concerned, Kennedy writes that, "where a person is detained by executive order, rather than, say after being tried and convicted in court, the need for collateral review is most pressing." This is the crux of the detainee cases: there ability of detainees to bring evidence in their defense is limited, if not non-existent. The Military Tribunals are not an acceptable substitution for the minimum requirements of habeas precisely because they limit the detainees' ability to produce evidence and challenge their detentions. In one particularly well-written sentence Kennedy describes the court's position: "we do consider it uncontroversial that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to the erroneous application or interpretation of relevant law."
2) Over the weekend, I read "The Nine," Jeff Toobin's amazing book on the Supreme Court, and I now feel like I have some insider information about the justices' personalities (the book is kind of like US Weekly for SCOTUS nerds). That being said, it seems like Kennedy restrained himself in the Boumediene opinion. Whereas some of his other opinions are rife with flowery, abstract propositions about the fundamental nature of certain liberties, he sticks to a relatively concrete analysis of habeas. This approach allows the majority opinion to deflect some Scalia's originalist-grounded criticisms.
3) Here's why I love David Souter: in his concurrence, he emphasizes that the court is not playing politics but rather applying time-tested Constitutional principles in an effort to remedy the very real injustices that the Guantanamo detainees have endured: "Today's decision is no judicial victory, but an act of perserverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to the prisoners and to the Nation."
3) John Roberts is a smart man, and the first few lines of his dissent made me wonder if my liberal sympathies got the best of my reasoning. His principle line of attack is that the majority never answers the proper threshold question in this case: what rights do enemy combatants have? In particular, what due process rights apply to enemy combatants? Because I felt guilty about slacking off at work for two hours to read the majority and concurring opinions, I only got through the first couple paragraphs of Roberts's dissent. So what I'm about to offer is a very tentative answer to the two questions that he poses. First, it is implicit in Kennedy's opinion that enemy combatants are entitled to habeas privileges. There is precedent to support the applicability of habeas to foreign nationals captured abroad and held by the US military so this seems simple enough. Second, regarding due process, Roberts is mistaken about the priority of his threshold test. Procedural due process rights are typically invoked only after formal charges have been leveled as the parties begin the process of holding a trial. In these enemy combatant cases, however, the issue is rather whether or not a prisoner's detention may be legally justified. Before procedural due process can be invoked, the court must address the status of the detention. Roberts appears to confuse judicial hearings that assess the soundness of the indefinite detention with criminal trials. Again, this is a very cursory analysis, so I hope that some of my law school friends read this and weigh in.
More to come.
1) Justice Kennedy's majority opinion is a paean to the importance of habeas corpus. He offers a thorough historical exegesis of the writ to support the argument that only extraordinary circumstances allow for a justified invocation of the Constitution's Suspension Clause. The problem, he notes, is that the writ was never formally suspended— the Bush administration simply maintains that habeas does not apply to enemy combatants, and, in the event that it does, the Military Tribunals are an adequate proxy for protecting the detainees constitutional rights. Therefore, the majority in effect challenges the Bush administration to either invoke the Suspension Clause and deny everyone the right to habeas hearings on the grounds that the nation faces imminent wartime dangers, or acknowledge that habeas privileges apply to enemy combatants held in Guantanamo: the Suspension Clause "ensures that, except during periods of formal suspension, the judiciary will have a time tested device, the writ, to maintain the delicate balance of government that is itself the surest safeguard of liberty." As far as review is concerned, Kennedy writes that, "where a person is detained by executive order, rather than, say after being tried and convicted in court, the need for collateral review is most pressing." This is the crux of the detainee cases: there ability of detainees to bring evidence in their defense is limited, if not non-existent. The Military Tribunals are not an acceptable substitution for the minimum requirements of habeas precisely because they limit the detainees' ability to produce evidence and challenge their detentions. In one particularly well-written sentence Kennedy describes the court's position: "we do consider it uncontroversial that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to the erroneous application or interpretation of relevant law."
2) Over the weekend, I read "The Nine," Jeff Toobin's amazing book on the Supreme Court, and I now feel like I have some insider information about the justices' personalities (the book is kind of like US Weekly for SCOTUS nerds). That being said, it seems like Kennedy restrained himself in the Boumediene opinion. Whereas some of his other opinions are rife with flowery, abstract propositions about the fundamental nature of certain liberties, he sticks to a relatively concrete analysis of habeas. This approach allows the majority opinion to deflect some Scalia's originalist-grounded criticisms.
3) Here's why I love David Souter: in his concurrence, he emphasizes that the court is not playing politics but rather applying time-tested Constitutional principles in an effort to remedy the very real injustices that the Guantanamo detainees have endured: "Today's decision is no judicial victory, but an act of perserverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to the prisoners and to the Nation."
3) John Roberts is a smart man, and the first few lines of his dissent made me wonder if my liberal sympathies got the best of my reasoning. His principle line of attack is that the majority never answers the proper threshold question in this case: what rights do enemy combatants have? In particular, what due process rights apply to enemy combatants? Because I felt guilty about slacking off at work for two hours to read the majority and concurring opinions, I only got through the first couple paragraphs of Roberts's dissent. So what I'm about to offer is a very tentative answer to the two questions that he poses. First, it is implicit in Kennedy's opinion that enemy combatants are entitled to habeas privileges. There is precedent to support the applicability of habeas to foreign nationals captured abroad and held by the US military so this seems simple enough. Second, regarding due process, Roberts is mistaken about the priority of his threshold test. Procedural due process rights are typically invoked only after formal charges have been leveled as the parties begin the process of holding a trial. In these enemy combatant cases, however, the issue is rather whether or not a prisoner's detention may be legally justified. Before procedural due process can be invoked, the court must address the status of the detention. Roberts appears to confuse judicial hearings that assess the soundness of the indefinite detention with criminal trials. Again, this is a very cursory analysis, so I hope that some of my law school friends read this and weigh in.
More to come.
Monday, June 9, 2008
Housekeeping
I've gotten a couple of e-mails asking a) what the hell the title of the blog means; and b) what significance the descriptive quote has. So, here are some quick answers.
a) I just shortened the title to Exclusio Unius from the cumbersome Expressio unius est exclusio alterius, which is legalese/legal latin/incomprehensible jargon. If you haven't looked it up on wikipedia yet, it is a canon of statutory construction that means "the express mention of one thing excludes all others." I first learned about it in my 1L ConLaw class in the context of the dormant commerce clause, which is the theory that the individual states are prohibited from regulating interstate commerce because the constitution explicitly gives the federal government that power. Exciting! I like it because it gives me an air of authority that, with only one year of legal education under my belt, I don't exactly have.
b) My constitutional law professor was a man named Lino Graglia, a hard-headed, erudite Brooklynite. He subscribes to the school of thought known as constitutional originalism à la Justices Thomas and Scalia and if the name Robert Bork rings a bell, you might find it interesting that Graglia describes himself as "Borkier than Bork." Consequently, one of his pet peeves is 14th amendment jurisprudence, especially the infamous theory that the 14 amendment encompasses a "penumbra" that gives rise to emanations such as the right to privacy, the right to bodily autonomy, and, by extension, the right to have an abortion. I'm pro-choice, so I like the practical outcome of this theory, but I understand Graglia's point that it might be a bit of a stretch to divine a right to autonomy from the 14th amendment (more on this later). In class, he likened those justices who invoke the "mystical" penumbra to astrologists, and the quote that I use as the blog description is from his lecture on Roe v. Wade.
a) I just shortened the title to Exclusio Unius from the cumbersome Expressio unius est exclusio alterius, which is legalese/legal latin/incomprehensible jargon. If you haven't looked it up on wikipedia yet, it is a canon of statutory construction that means "the express mention of one thing excludes all others." I first learned about it in my 1L ConLaw class in the context of the dormant commerce clause, which is the theory that the individual states are prohibited from regulating interstate commerce because the constitution explicitly gives the federal government that power. Exciting! I like it because it gives me an air of authority that, with only one year of legal education under my belt, I don't exactly have.
b) My constitutional law professor was a man named Lino Graglia, a hard-headed, erudite Brooklynite. He subscribes to the school of thought known as constitutional originalism à la Justices Thomas and Scalia and if the name Robert Bork rings a bell, you might find it interesting that Graglia describes himself as "Borkier than Bork." Consequently, one of his pet peeves is 14th amendment jurisprudence, especially the infamous theory that the 14 amendment encompasses a "penumbra" that gives rise to emanations such as the right to privacy, the right to bodily autonomy, and, by extension, the right to have an abortion. I'm pro-choice, so I like the practical outcome of this theory, but I understand Graglia's point that it might be a bit of a stretch to divine a right to autonomy from the 14th amendment (more on this later). In class, he likened those justices who invoke the "mystical" penumbra to astrologists, and the quote that I use as the blog description is from his lecture on Roe v. Wade.
Airport Notes
I flew to Philadelphia this weekend and had hoped to get some posts up, but it turns out that you have to pay to get internet access in airport terminals— something like five bucks an hour. That's a 1 1/4 gallons of gas! Or a beer at the airport bar! Tired from a day of work/travel and overwhelmed by the sprawling Atlanta airport, I chose the beer. I would be interested to see what Cass Sunstein might think of that choice. He's got a new book in which he directs his behavioral economics gaze at libertarian paternalism. An interesting review of the book that also offers some insight into the direction that Obamanomics might be headed can be found here.
Anyway, I wanted to make a couple more comments about interdisciplinary studies, post-modern intellectual smorgasbords, etc.
1) One of my undergrad professors used to say that Friedrich Schiller was a crappy philosopher because he wrote poetry and that he was a crappy poet because he fancied himself a philosopher. An argument for intellectual purity?
2) Martha Nussbaum wrote a book review in the New Republic (couldn't get the link to work) about philosophers who tackle Shakespeare. Her conclusion: it can be done, just avoid the Phil 101 line of questioning. But there is a difference between the critical standards that Nussbaum outlines in her review and the pop-intellectualism of say, "The Simpsons and Philosophy." Both the complex, nuanced approach and the facile approach have their pros and cons. That's why most worthwhile book reviews consider the author's purpose and intended audience— does the author want to contribute to an ongoing academic inquiry? Or does he want to provide a general philosophical overview using a well-known pop-culture icon as an illustration?
3) Finally, re: TNR/NYRB/New Yorker type publications, do they cater to/breed dilettantes? And is that a bad thing? First, the articles written by academics can be so dense that only a similarly knowledgeable professional will catch all of the references; the rest of us wikipedia them and like to think that we're smarter for it. Second, the staff writers sometimes seem like they heavily rely on wikipedia and/or that Phil 101 course they took as an undergrad at some east coast liberal arts school. My thought, though, is that if you have varied interests, this is one of the best ways to be exposed to a lot of information/ideas/arguments short of going back to grad school.
Anyway, I wanted to make a couple more comments about interdisciplinary studies, post-modern intellectual smorgasbords, etc.
1) One of my undergrad professors used to say that Friedrich Schiller was a crappy philosopher because he wrote poetry and that he was a crappy poet because he fancied himself a philosopher. An argument for intellectual purity?
2) Martha Nussbaum wrote a book review in the New Republic (couldn't get the link to work) about philosophers who tackle Shakespeare. Her conclusion: it can be done, just avoid the Phil 101 line of questioning. But there is a difference between the critical standards that Nussbaum outlines in her review and the pop-intellectualism of say, "The Simpsons and Philosophy." Both the complex, nuanced approach and the facile approach have their pros and cons. That's why most worthwhile book reviews consider the author's purpose and intended audience— does the author want to contribute to an ongoing academic inquiry? Or does he want to provide a general philosophical overview using a well-known pop-culture icon as an illustration?
3) Finally, re: TNR/NYRB/New Yorker type publications, do they cater to/breed dilettantes? And is that a bad thing? First, the articles written by academics can be so dense that only a similarly knowledgeable professional will catch all of the references; the rest of us wikipedia them and like to think that we're smarter for it. Second, the staff writers sometimes seem like they heavily rely on wikipedia and/or that Phil 101 course they took as an undergrad at some east coast liberal arts school. My thought, though, is that if you have varied interests, this is one of the best ways to be exposed to a lot of information/ideas/arguments short of going back to grad school.
Thursday, June 5, 2008
Transition
I was eating lunch yesterday with a fellow summer intern from Yale Law School and we struck up a conversation about the merits of interdisciplinary approaches to legal education. We both agreed that although these often theory-heavy analyses stoke our intellectual fires, they might not be much help to those law students who want to be monster litigators, tax lawyers, etc. because the law is fundamentally a practical profession. But I still like to think that interdisciplinary study contributes to a deeper understanding of the law and has practical consequences for public policy. Heck, theory might be even be useful in practical, professional legal situations. For example, law and economics might provide some helpful analytic approaches to determine the best way to assign remedies in the event of a breach of contract. Likewise, law and philosophy and a knowledge of legal history would be handy if you find yourself arguing an 8th amendment case in front of the Supreme Court (ahem, Guantanamo. . . ). The glaring problem with my position is that theory/interdisciplinary analysis becomes more "useful" only as you work your way up the legal food chain, i.e. as you take on high profile clients/argue and brief cases at the federal appellate level.
So what about the study of law and literature?
M. Todd Henderson recently wrote a blog post talking about a law and literature class that he took with Martha Nussbaum when he was a student at UChicago. The ostensible goal of the course was to increase the students' capacity for empathy, an idea grounded in an Aristotelian-influenced belief that the study of literature provides insights into the human condition. By extension, increased empathy will spur judges and policy makers—those at the top of the legal food chain—to make better legal and policy decisions.
In a paper that analyzes judicial decisions for literary references (available here), Henderson concludes that literature has had a very small impact on judges, noting that in over 2 million opinions, there were only 543 references to works of fiction and that of those, only 236 "were employed rhetorically to evoke an emotional response in the reader". Henderson concedes that, "of course, a simple count of citations will not definitively answer the question of whether particular works of literature have influenced judicial decisions." This concession leaves the door open for the possibility that literature might have a significant impact on a judge's worldview and implicitly influence his rulings.
One explanation for the paucity of judicial literary references might be that that literature is not an accepted legal authority. Lawyers and judges continually refer to sources of authority, some of which carry more weight than others, and legal arguments are often judged on their ability to properly use this hierarchy. At times, however, the law “runs out,” and other sources of authority must fill the void. Social sciences like psychology and economics are popular, as are history and, to a lesser extent, philosophy. The appeal of these authorities— especially of the social sciences— is that they are easily transposed into syllogistic arguments. The critical study of literature, however, is different, because it allows for different historical, sociological, and philosophical interpretations of works of fiction. Additionally, because the law struggles to maintain at least the veneer of impartiality, it is highly skeptical of “subjectivity,” which receives far more sympathy in literary criticism. I would like to agree with Martha Nussbaum that, “the novel constructs a paradigm of a style of ethical reasoning … in which we get potentially universalizable concrete prescriptions by bringing a general idea of human flourishing to bear on a concrete situation.” But I also think that the law rejects literary insights into the human condition as being authoritative precisely because they don’t exhibit the same “transparent” universiality that the social sciences are perceived as having.
There are, however, near-universal, or at least Western, characteristics of the human condition that are poignantly described in literature. Shakespeare comes to mind and I’m willing to bet that a reference to Lady Macbeth will generally be construed in only one way. No surprise then that Shakespeare and his works are among those most frequently cited by judges. Other literary themes, embodied in a single word or phrase, are commonly accepted as having rhetorical force, “Orwellian” being the best example. Notwithstanding the dearth of literary citations in judicial opinions, the general acceptance of these literary themes/characters/insights provides advocates with valuable argumentative tools. And, for those advocates who argue for a particular conception of human flourishing, perhaps in an appellate court or a policy setting, literature may bolster their case: Ayn Rand for the conservative individualists, the Grapes of Wrath for the liberal socialists. Therefore, that judges don’t explicitly cite works of fiction in their decisions doesn’t preclude advocates from effectively using literary references to make legal arguments. So the study of law and literature might actually have some practical benefits to lawyers, even if it's only applicable in a few limited situations. And if Nussbaum is right that reading fiction improves ethical reasoning, well, there's an argument for all lawyers to start reading novels.
And that’s my long-winded discussion of literature and the law. I have to spend a lot of time in airports this weekend, so I hope to get another couple posts up soon.
So what about the study of law and literature?
M. Todd Henderson recently wrote a blog post talking about a law and literature class that he took with Martha Nussbaum when he was a student at UChicago. The ostensible goal of the course was to increase the students' capacity for empathy, an idea grounded in an Aristotelian-influenced belief that the study of literature provides insights into the human condition. By extension, increased empathy will spur judges and policy makers—those at the top of the legal food chain—to make better legal and policy decisions.
In a paper that analyzes judicial decisions for literary references (available here), Henderson concludes that literature has had a very small impact on judges, noting that in over 2 million opinions, there were only 543 references to works of fiction and that of those, only 236 "were employed rhetorically to evoke an emotional response in the reader". Henderson concedes that, "of course, a simple count of citations will not definitively answer the question of whether particular works of literature have influenced judicial decisions." This concession leaves the door open for the possibility that literature might have a significant impact on a judge's worldview and implicitly influence his rulings.
One explanation for the paucity of judicial literary references might be that that literature is not an accepted legal authority. Lawyers and judges continually refer to sources of authority, some of which carry more weight than others, and legal arguments are often judged on their ability to properly use this hierarchy. At times, however, the law “runs out,” and other sources of authority must fill the void. Social sciences like psychology and economics are popular, as are history and, to a lesser extent, philosophy. The appeal of these authorities— especially of the social sciences— is that they are easily transposed into syllogistic arguments. The critical study of literature, however, is different, because it allows for different historical, sociological, and philosophical interpretations of works of fiction. Additionally, because the law struggles to maintain at least the veneer of impartiality, it is highly skeptical of “subjectivity,” which receives far more sympathy in literary criticism. I would like to agree with Martha Nussbaum that, “the novel constructs a paradigm of a style of ethical reasoning … in which we get potentially universalizable concrete prescriptions by bringing a general idea of human flourishing to bear on a concrete situation.” But I also think that the law rejects literary insights into the human condition as being authoritative precisely because they don’t exhibit the same “transparent” universiality that the social sciences are perceived as having.
There are, however, near-universal, or at least Western, characteristics of the human condition that are poignantly described in literature. Shakespeare comes to mind and I’m willing to bet that a reference to Lady Macbeth will generally be construed in only one way. No surprise then that Shakespeare and his works are among those most frequently cited by judges. Other literary themes, embodied in a single word or phrase, are commonly accepted as having rhetorical force, “Orwellian” being the best example. Notwithstanding the dearth of literary citations in judicial opinions, the general acceptance of these literary themes/characters/insights provides advocates with valuable argumentative tools. And, for those advocates who argue for a particular conception of human flourishing, perhaps in an appellate court or a policy setting, literature may bolster their case: Ayn Rand for the conservative individualists, the Grapes of Wrath for the liberal socialists. Therefore, that judges don’t explicitly cite works of fiction in their decisions doesn’t preclude advocates from effectively using literary references to make legal arguments. So the study of law and literature might actually have some practical benefits to lawyers, even if it's only applicable in a few limited situations. And if Nussbaum is right that reading fiction improves ethical reasoning, well, there's an argument for all lawyers to start reading novels.
And that’s my long-winded discussion of literature and the law. I have to spend a lot of time in airports this weekend, so I hope to get another couple posts up soon.
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