Recommended Citation
Kristin B. Gerdy Kyle, Big Brother, Othello, and Dogs that Don’t Bark: The Use of Literary Allusion in Federal Appellate Opinions, 29 S. Cal. Interdisc. L.J. 427 (2020).
Document Type
Law Review Article
Abstract
Unlike a fish, in the words of Justice Elena Kagan, a literary5 allusion is not “a discrete thing that possesses physical form”6 distinguishable from other expressive devices. Instead, literary allusions can take many forms, be used for many purposes, and have various effects on the reading audience. If the most basic form of a fish is the common goldfish in a bowl, then the most basic judicial literary allusion is a reference to a well-known story in a judicial opinion that is used to make a comparison in a reader’s mind. But just as there are many types of fish (and Dr. Seuss introduces us to ever so many of them), there are many types of judicial allusions. And just like fish, those allusions come in different shapes and sizes, with different flavors, colors, and strengths. Part II will introduce the theory behind literary allusion including a discussion of what such allusions are, how they impact a reader’s understanding of a text, and why they can be effective in persuasive writing. Part III will focus specifically on the use of literary allusions in judicial opinions, including the debate over whether such allusions have a role in judicial writing. Part IV summarizes and analyzes the results of an empirical study of federal appellate opinions from 1997-2012 that invoke literary allusions. Part V analyzes several specific literary allusions from federal appellate opinions and critiques their efficacy in furthering the opinion’s argument.
Publisher
University of Southern California
Publication Title
Southern California Interdisciplinary Law Journal