Literary References

OPENING STATEMENT

Their Use by Judges

BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

This column reports on research into the use of literary references and allusions by judges in judicial opinions. The research was done by Professor Kristin B. Gerdy Kyle and reported in her article, Big Brother, Othello, and Dogs that Don’t Bark: The Use of Literary Allusion in Federal Appellate Opinions. 1 First the background, then the research and results.

The Research

Relying on lists of the most significant literary works, authors, characters, and settings from the 1800s to the 2000s, Professor Kyle searched Lexis and Westlaw databases of federal appellate opinions from 1997 to 2012. She found 470 federal appellate opinions using literary references during the 15-year period. She recognized judicial writers were using the literary references and allusions in four broad ways: factual comparisons of the case’s circumstances or parties to literary circumstances or characters; borrowed eloquence—using a literary reference for variation, reader engagement, and rhetorical force; thematic introductions, which open opinions and set a tone or theme for the analysis; and as support for legal reasoning. 2

The Results

One hundred sixty-seven federal appellate judges and justices used literary references during the period, with the top three users being Judge Bruce Selya of the First Circuit, Judge Sidney R. Thomas of the Ninth Circuit, and Justice Antonin Scalia of the Supreme Court. The most frequently cited authors, in order, will not surprise anyone:

• William Shakespeare (26 different plays)

• George Orwell

• Sir Arthur Conan Doyle

• Charles Dickens

• Franz Kafka

• Lewis Carroll 3

And here are the six most frequently mentioned characters and settings, in order:

• Sherlock Holmes

• the case of Jarndyce v. Jarndyce in Dickens’s Bleak House

• the scarlet letter from Nathaniel Hawthorne’s novel of that name

• Lewis Carroll’s Wonderland

• The fairytale character Goldilocks

• George Orwell’s Big Brother 4

The literary authors (68) referenced in the judicial opinions are a who’s who of writers, both classic and popular. 5 Besides those named above, here are some of my favorites: Agatha Christie, William Faulkner, Herman Melville, Edgar Allan Poe, J.K. Rowling, Dr. Seuss, Upton Sinclair, and Voltaire.

One hundred sixty-seven federal appellate judges and justices used literary references during the 15-year period, with the top three users being Judge Bruce Selya of the First Circuit, Judge Sidney R. Thomas of the Ninth Circuit, and Justice Antonin Scalia of the Supreme Court.

Should Judges Use Literary References?

Professor Kyle rightly notes that judges may hesitate to use literary allusion in judicial opinions. Why? Three key reasons: Using literary allusion may seem to flaunt the writer’s superior knowledge—never an inviting technique for readers. In addition, their use may alienate a portion of the audience that does not understand the allusion. And some readers opine literary allusions are too trivial and frivolous for serious endeavors like judicial-opinion writing. 6

Still, the practice has its defenders, among whom is the legal-writing expert Bryan Garner, who says that literary allusions, “‘if not too arcane, can add substantially to the subtlety and effectiveness of writing.’” 7 Another was the renowned legal scholar Charles Alan Wright, who argued that literary allusions make the written work more interesting, as long as “‘their basic thrust [would] be understood even by readers who are not familiar with [the underlying literary text].’” 8

Does the same advice apply to practitioner writing? Maybe. However, judicial writing differs from practitioner writing in one main way: Although judges may desire to persuade their readers, they are ultimately announcing a decision, whereas practitioners are engaged almost entirely in persuasion.

Next month I’ll report on research into literary references in appellate briefs and offer advice and commentary on their use. AL

Footnotes

1. 2020 S. Cal. Interdisciplinary L.J. 427 (2020).

2. Id. at 440-51.

3. Id. at 440-41.

4. Id. at 441 n.108.

5. Id. at 454-55 (Appendix A).

6. Id. at 437-38.

7. Id. at 438 (citing Bryan A. Garner, A Dictionary of Modern Legal Usage 342 (2d ed. 2012).

8. Id. at 437 (citing Charles Alan Wright, Literary Allusion in Legal Writing: The Haynesworth-Wright Letters, Scribes J. Legal Writing 1, 1 (1990).