Kafkaesque Jurisprudence
In my FindLaw column today, I describe the Supreme Court's treatment of the petitioner in Bowles v. Russell as almost literally Kafkaesque. I call attention to a scene in the penultimate chapter of The Trial, which includes an allegory that comes reasonably close to the treatment of Bowles. Nor does the connection appear to be entirely accidental. For a forthcoming book, my colleague Jack Greenberg and noted Kafka scholar Stanley Corngold have collected Kafka's work product as a lawyer (his day job), and have traced interesting connections between that work and his fiction.
I am hardly the first person to complain about a Kafkaesque legal decision. A Westlaw search in all federal cases revealed 187 uses of the term by courts. But that only puts Kafka in at best fourth place for dystopic fiction writers by my calculation. Dickens does slightly better: discounting duplicates, the term "Dickensian" or "Bleak House" appears in 204 cases. George Orwell does better still, with 224 references to "Orwellian." But the champion by a long shot is Joseph Heller. Although the terms "Hellerian" and "Helleresque" do not appear to exist, a remarkable 1,533 federal cases use the term "Catch-22." Any other writers I've missed?
I am hardly the first person to complain about a Kafkaesque legal decision. A Westlaw search in all federal cases revealed 187 uses of the term by courts. But that only puts Kafka in at best fourth place for dystopic fiction writers by my calculation. Dickens does slightly better: discounting duplicates, the term "Dickensian" or "Bleak House" appears in 204 cases. George Orwell does better still, with 224 references to "Orwellian." But the champion by a long shot is Joseph Heller. Although the terms "Hellerian" and "Helleresque" do not appear to exist, a remarkable 1,533 federal cases use the term "Catch-22." Any other writers I've missed?
posted by Michael C. Dorf @ 7:15 AM
11 Comments:
At 9:31 AM,
Caleb said…
Dostoyevsky? I imagine "Crime and punishment" might get referenced every once in a while.
At 9:35 AM,
md said…
Too bad to see that Ionesco only gets three references and Camus only a few more. Absurdist and existentialist writers have great allusive potential for so many federal cases. I bet Judge Hercules would know to cite them (but I bet he wouldn't choose to, give his unfailingly sunny view of the law).
At 9:36 AM,
egarber said…
So what if a statute requires that some component must be proven to a jury by a mere prep. of evidence, but a judge instructs jurors to use the "beyond a reasonable doubt" standard instead?
An appeals court would certainly read that as valid grounds to over-turn the lower body, I would imagine.
Why be so stringent about a supposed "jurisdictional" technicality, when it can be easily proven that the judge misinterpreted the law and misled a defendant -- the same way he misled the jury in the example above?
I'm sure there's an obvious answer. As a non-lawyer, all I can do is ask questions :)
At 10:24 AM,
Tam said…
This post has been removed by the author.
At 3:02 PM,
Sobek said…
I got 1587 Westlaw hits for "lewis carroll" OR (alice /s wonderland). I don't have time to verify that they're all applicable, but that's a substantial number.
At 4:26 PM,
Michael C. Dorf said…
good one, sobek. the problem with this methodology, of course, is you have to come up with ideas and then check them, so you're vulnerable to missing something. until you harness the power of the internet!
At 5:12 PM,
Sobek said…
536 hits for "through the looking glass"
And of course there's the famous case where the judge quotes from Billy Madison:
http://law.wisc.edu/blogs/wisblawg/2006/03/judge_quotes_scene_from_billy.html
May God have mercy on your soul.
At 10:31 PM,
Benjam said…
i thought the findlaw article was really top-notch. in it, you write that:
Opposition to arbitrary exercises of power by the bureaucratic state has been one of the hallmarks of the conservative tradition in Anglo-American thought for over two centuries.
after reading that, i thought to myself that
hostility to rights of the accused has been one of the hallmarks of the conservative tradition in Anglo-American thought for two generations.
clearly, the latter tendency is stronger at work on this court. i suspect that the conservatives take comfort in knowing, deep in their hearts, that whatever the legal issues involved bowles was really "a bad guy."
more justification than justice in my view.
At 3:00 AM,
Sobek said…
211 hits for "mary shelley" OR frankenstein.
Only three hits for "bram stoker," and two of those aren't literary references at all -- they deal with the rights to films based on Stoker's work.
91 hits for "jekyll /s hyde"
13 hits for "dostoevsky," but there may be a transliteration problem.
It's curious that two of the most popular gothic works of all time garner far fewer hits than the relatively more obscure Kafka.
At 2:57 PM,
Neil H. Buchanan said…
Benjam commented: "[H]ostility to rights of the accused has been one of the hallmarks of the conservative tradition in Anglo-American thought for two generations."
This was very much my take on the 10th Circuit's Republican-appointed judges (especially W's judges) when I was clerking (in 2002-03). At least one such judge took this anti-outsider attitude beyond criminal law into employment law, immigration law, tort law, contract law, etc., such that I thought the following was a reasonable summary of his decision-making rule: The weaker party always loses.
At 9:05 PM,
Frank said…
Great column. I agree, this decision is a monument to arbitrary & unaccountable power.
I can see, in administrative settings, some rationale for preventing an agency from estopping itself on policy positions (due to the need to preserve flexibility). But any reasonable person would assume that a district court itself is the authoritative interpreter of the procedural deadlines it issues.
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