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What's worse than citing foreign law? Citing Shakespeare

The good folks over at Concurring Opinions have previewed a new article that will be soon be published in my favorite law journal, the Green Bag. Prof. Todd Henderson of the University of Chicago has investigated the extent to which works of literary fiction are cited in appellate court decisions. Here are some of his findings:

• 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)."
• "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."
• "[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."
• "[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."

We Democrats are such latte-drinking elitists, we always want to show off our good grades in English class. And Justice Brennan? He wrote so many dissenting opinions, he probably ran out of good material. He had to rely on citing fiction. None of this comes as a surprise to me, except maybe the last finding.

Once again, the Green Bag rocks!

Full post as published by Supreme Dicta on April 10, 2008 (boomark / email).