Continuing in a showcase of law review articles you might want to read comes Todd Henderson’s Citing Fiction. Like Professor Alex Long’s piece on the most frequently cited musicians, Henderson’s article takes a look at how judges utilize literature to spice up their opinions. The author goes to pains to refine his methodology to remove instances of the bastardized Orwellian and Kafkaesque and takes a separate look at references made for literary effect — that is those employed rhetorically to evoke an emotional response in the reader. Can you imagine, an emotional response in a judicial opinion? How novel. Here’s your top ten and note that Shakespeare gets kicked down a peg or two from one column to the other.

Author Frequency of Citation Frequency of Citation for Literary Effect
1. George Orwell 61 45
2. William Shakespeare 35 7
3. Franz Kafka 34 25
4. John Milton 20 11
5. Homer 14 11
6. Geoffery Chaucer 14
7. Oscar Wilde 14
8. John Donne 9
9. Robert Bolt 9
10. Albert Camus 8

Honorable mentions: Dostoevsky, Voltaire, and Faulkner. A few more findings:

  • “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.”

Todd Henderson’s Citing Fiction.