Wednesday, June 20, 2007

Kafkaesque Jurisprudence

In my FindLaw column today, I describe the Supreme Court's treatment of the petitioner in Bowles v. Russell as almost literally Kafkaesque. I call attention to a scene in the penultimate chapter of The Trial, which includes an allegory that comes reasonably close to the treatment of Bowles. Nor does the connection appear to be entirely accidental. For a forthcoming book, my colleague Jack Greenberg and noted Kafka scholar Stanley Corngold have collected Kafka's work product as a lawyer (his day job), and have traced interesting connections between that work and his fiction.

I am hardly the first person to complain about a Kafkaesque legal decision. A Westlaw search in all federal cases revealed 187 uses of the term by courts. But that only puts Kafka in at best fourth place for dystopic fiction writers by my calculation. Dickens does slightly better: discounting duplicates, the term "Dickensian" or "Bleak House" appears in 204 cases. George Orwell does better still, with 224 references to "Orwellian." But the champion by a long shot is Joseph Heller. Although the terms "Hellerian" and "Helleresque" do not appear to exist, a remarkable 1,533 federal cases use the term "Catch-22." Any other writers I've missed?