Law And Literature: Third Edition

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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 For Charlene 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