Citing Fiction

Abstract:     
This short essay surveys the citation to literature in federal appellate and Supreme Court opinions. The primary findings are:

(1) citations to fiction are extremely rare: only 1 in every 10,000 appellate opinions cites to fiction;

(2) citations are primarily about judges and their world, not that of the less fortunate, despite the encouragement of the latter by proponents of the law & literature movement;

(3) citations are to very few authors: Orwell, Kafka, and Shakespeare account for the bulk of citations, but only Orwell and Kafka are frequently cited in a manner that might be deemed literary or emotion-evoking;

(4) citations are made by very few judges;

(5) citations are about 5 times more likely in the Supreme Court than in other appellate courts; and

(6) citations are used for rhetorical persuasion: fiction is used by liberal justices more than conservative ones, in politically contentious cases more than mundane ones, and in dissenting opinions more than majority ones.

The essay also examines the literary use of some citations to fiction, finding that it can be a powerful device for conveying a political message, but also that this use is, likely to the dismay of the law and literature movement, very, very rare.

Keywords: judges, judicial opinions, literature

Accepted Paper Series