Professor Todd Henderson (U. Chicago Law School) has posted an interesting article on SSRN, Citing Fiction, 11 Green Bag 2d 171 (2008). He provides many illuminating facts about judges citing literary works:
A comprehensive survey of over 2 million federal appellate opinions over the past 100 years reveals only 543 identifiable citations or references to works of fiction. Of these, less than half – 236 – were employed rhetorically to evoke an emotional response in the reader. This type of citation, which I’ll call a “literary” citation, occurs in only about 1 out of every 10,000 federal appellate opinions.
Todd’s data is quite interesting, but I disagree with how he frames his essay and some of the conclusions he draws. Todd writes:
[A] central claim of the law and literature movement (which I’ll refer to as “the Movement”) is that reading fiction can provide judges with knowledge about how to solve real world problems. For example, Professor Martha Nussbaum writes 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.” If this is true and the Movement has had a significant effect on law, one would expect to see an increase in the use of literature in judicial opinions, since judges routinely cite to works that have a direct impact on their decisionmaking. We should also expect to see works cited for the reasons the Movement wants them to be – to reveal that the fiction has evoked feelings of pity and empathy for the less fortunate and given a voice to traditionally marginalized segments of society. Neither of these things is true.
Unpacking this paragraph, I see the following claims: (1) whether the law and literature movement “has had a significant effect on law” can be assessed by instances when literature has a “direct impact” on judicial decisionmaking; (2) “central” claims of the law and literature movement are that literature makes judges more ethical or empathetic and that literature provides judges with “knowledge about how to solve real world problems”; and (3) citations will demonstrate whether literature has a “direct impact” on a judge’s decisionmaking.
Let’s begin with the first claim: Whether the law and literature movement “has had a significant effect on law” can be assessed by instances when literature has a “direct impact” on judicial decisionmaking.
This claim begins with an assumption that having a significant effect should be measured by having a direct impact. But it is unclear why the significant effect must be a direct impact rather than an indirect one. Reading Orwell’s 1984 might help shape how judges perceive surveillance and government power. Will it directly affect their decisions? Probably not, if direct effects mean that but for reading Orwell’s book, a judge inclined to decide a case one way will now decide it another way. But it might have helped shaped a judge’s mindset along with other works of literature and a number of other social and cultural experiences. It might have an indirect effect. The difficulty is that looking for direct impact is far too demanding a requirement.
On to the second claim: “Central” claims of the law and literature movement are that literature makes judges more ethical or empathetic and that literature provides judges with “knowledge about how to solve real world problems”
I quarrel with the argument that a “central” claim of the law and literature movement is to make judges more empathetic or ethical, or to give them “knowledge about how to solve real world problems.” I don’t think that literature necessarily makes one more moral, ethical, or empathetic. Nor do I think that literature provides specific “solutions” to problems. Literature can provide a critique or commentary about the law. It can develop thinking, reasoning, and interpretive skills. It can provide insight into jurisprudential questions, and it can help people see between the lines, be more nuanced, recognize ambiguity, see different interpretations, and so on.
While there are some in the law and literature movement who have claimed that literature makes lawyers more ethical or empathetic, most have not made such claims. Todd’s quote from Martha Nussbaum doesn’t suggest she makes these claims. Instead, Nussbaum seems to be saying that literature can contain ethical teachings and that it embodies them in concrete situations. I agree with this. The fact that literature can illustrate an ethical prescription by embodying it in concrete situations doesn’t mean that the reader will necessarily agree with the ethical prescription. Moreover, much literature is not dogmatic about any particular ethical or moral view — it often demonstrates the ambiguities and tensions in various ideas. Literature is not the same as a philosophical or political argument. It is often more suggestive and ambiguous.
Finally, it’s time to turn to the third claim that I’ve parsed out of Todd’s essay: Citations will demonstrate whether literature has a “direct impact” on a judge’s decisionmaking.
The legal academy has a fetish over citations. Because it is so fun and easy to play around with Westlaw, we can now readily do studies about citations. This data is quite interesting, but it is tempting to make too much of it.
What exactly does the lack of citations to literature mean? First, even if a literary work had a “direct impact” on a judge’s decision, I doubt in many cases the judge would admit this. Judges often read and rely on law review articles they never cite. Judges might be informed by history, philosophy, sociology, economics, etc. and might not cite to such works. What would we think of the judge who writes: “For the reasons stated in Dickens’ works, I hereby conclude that this case should be decided in favor of the ‘little guy’”? Does a judge who is heavily influenced by a particular philosophy need to cite to specific philosophical works? So a judge influenced by Rawls might never cite to Rawls. Judge Richard Posner is influenced by pragmatism, yet he doesn’t cite to works by William James or John Dewey in every opinion in which he employs pragmatic ideas. The bottom line is this: Cites don’t necessarily prove influence or impact, or the lack thereof. They show how many times something has been cited to. People often read much more into cites than they should.
The influence of literature is quite indirect. It provides ideas and fodder for thought. But rarely does it have a direct bearing on any particular case. It doesn’t hold any particular authority over the judge. It’s not precedent. It doesn’t provide a syllogistic argument or complete analysis of a particular problem. But it still might be influential. A judge might reason, interpret, think, and perceive things differently for having read certain works of literature. There’s no easy way to measure this.
So that ends my critique, but on the positive side, I did find some really interesting facts in Todd’s article:
* “In the Seventh Circuit, Judges Posner and Easterbrook combined for nearly all citations to fiction, and over 80 percent of all references to George Orwell.”
* “On the Supreme Court, Justices Brennan and Douglas accounted for most references to Orwell. Judges have favorite authors or themes, and they cite to them again and again.”
* [O]f the 110 Supreme Court justices who have served, only 21 have ever cited to the authors or works in this survey. The leading Supreme Court fiction citers are Justices Douglas, Stevens, Brennan, and Rehnquist, each of whom has cited to fiction around five times. These four justices account for almost 50 percent of all Supreme Court citations to fiction.”
* “About half of all citations are about the law’s delay, the definition of legal terms, and the role of courts in our system, not about generating empathy for litigants.”
* The most frequently cited authors are “George Orwell (61 citations); William Shakespeare (35); Franz Kafka (34); John Milton (20); Homer, Chaucer, and Oscar Wilde (14 each).”
* “[J]ustices appointed by Democrats or with an otherwise liberal voting record made almost 80 percent of all literary citations.”
* “In the Supreme Court, nearly three-quarters of literary citations are in dissenting or concurring opinions (63 percent in dissenting; 27 percent in majority; and 10 percent in concurring). In the circuit courts, by contrast, the reverse is largely true, with about 64 percent in majority opinions and 36 percent in dissenting and concurring opinions.”
I’m pleased to see Orwell and Kafka as being among the most-cited literary works. I once wrote about how conceptions of information privacy and computer databases are framed in terms of Orwell and how they might better be framed in terms of Kafka.
Originally Posted at Concurring Opinions
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.