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Hailed in its first edition as an “outstanding work, as stimulating as it is intellectually distinguished” (New York Times), Law and Literature has handily lived up to the Washington Post’s prediction that the book would “remain essential reading for many years to come.” This third edition, extensively revised and enlarged, is the only comprehensive book-length treatment of the field. It continues to emphasize the essential differences between law and literature, which are rooted in the different social functions of legal and literary texts. But it also explores areas of mutual illumination and expands its range to include new topics such as the cruel and unusual punishments clause of the Constitution, illegal immigration, surveillance, global warming and bioterrorism, and plagiarism. In this edition, literary works from classics by Homer, Shakespeare, Milton, Dostoevsky, Melville, Kafka, and Camus to contemporary fiction by Tom Wolfe, Margaret Atwood, John Grisham, and Joyce Carol Oates come under Richard Posner’s scrutiny, as does the film The Matrix. The book remains the most clear, acute account of the intersection of law and literature.
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Law and Literature
Law and Literature THIRD EDITION
Richard A. Posner
Harvard University Press Cambridge, Massachusetts . London, England 2009
Copyright © 1988, 1998, 2009 by the President and Fellows of Harvard College All rights reserved Printed in the United States of America Excerpts from “Easter 1916,” “The Second Coming,” “The Wild Swans at Coole,” and “Leda and the Swan” by William Butler Yeats are reprinted with the permission of Simon & Schuster from The Collected Works of W. B. Yeats, Volume 1: The Poems, Revised and edited by Richard J. Finneran, copyright 1919, 1924 and 1928 by Macmillan Publishing Company, renewed 1947 and 1952 by Bertha Georgie Yeats and 1956 by Georgie Yeats; and by permission of A. P. Watt Ltd. on behalf of Michael Yeats. Excerpts from “The Waste Land” and “Little Gidding” by T. S. Eliot are reprinted from T. S. Eliot, Collected Poems 1909–1962, copyright 1936 by Harcourt Brace & Company, copyright © 1964, 1963 by T. S. Eliot, and Four Quartets, copyright 1943 by T. S. Eliot and renewed 1971 by Esme Valerie Eliot, by permission of Faber and Faber Ltd. and Harcourt Brace & Company. The excerpt from The Sweeniad by Victor Purcell is reprinted by permission of Routledge Ltd. Library of Congress Cataloging-in-Publication Data Posner, Richard A. Law and literature / Richard A. Posner.—3rd ed. p. cm. Includes bibliographical references and index. ISBN 978-0-674-03246-0 (alk. paper) 1. Law in literature. 2. Law and literature. 3. Legal stories—History and criticism. I. Title. PN56.L33P67 2009 8099.933554—dc22 2008035602
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Contents
Preface Critical Introduction
xi 1
Part I. Literary Texts as Legal Texts
1. Reflections of Law in Literature
21
Theoretical Considerations 22 The American Legal Novel 35 The Law in Popular Culture 51 Camus and Stendhal 60 Farcical Trials 70
2. Law’s Beginnings: Revenge as Legal Prototype and Literary Genre
75
The Logic of Revenge 75 Revenge Literature 86 The Iliad and Hamlet 99
3. Antinomies of Legal Theory
124
Jurisprudential Drama from Sophocles to Shelley 124 Has Law Gender? 163
4. The Limits of Literary Jurisprudence
170
Kafka 170 Dickens 187 Wallace Stevens 191
5. Literary Indictments of Legal Injustice Law and Ressentiment 195 Romantic Values in Literature and Law 197 Billy Budd, The Brothers Karamazov, and Law’s Limits 211
195
viii l Contents
6. Two Legal Perspectives on Kafka
229