Law and Literature Part 18

An important question is how detailed the prosecution's narrative of admissible prior-crimes evidence may be. The greater the detail is, the more the defendant's character is besmirched; the less the detail, the less convincing "the tale," in Souter's words. To protect the defendant and secure corrective justice, the prosecution is forbidden to tell its story with the richness of detail likely to be found in a fictional narrative. In most stories, character is as important as plot; so Rule 404(b), despite its exceptions, curtails storytelling.

Character evidence is more freely admissible in the sentencing phase of a criminal case; we saw examples in chapter 3. A defendant's propensity to commit crimes is a material element in deciding how severely he is to be punished. His life story is therefore relevant to his sentence. The Supreme Court has magnified the story element in the sentencing phase of capital cases by insisting that the defendant be permitted to tell a noholds-barred story of his life in an effort to persuade the jury that he should not be put to death, but that the victim's family be allowed to tell the absent victim's story in order to balance the defendant's story.14 These stories differ from the narratives created by the presentation of evidence of guilt and innocence in not being anch.o.r.ed to a factual issue, such as whether the defendant actually committed the crime he is charged with. They are competing sob stories, and allowing them to determine whether a person shall be executed invites the criticism that Plato made of poetry-it submerges reason in a pool of undisciplined emotion.15 (I return to the issue of sentencing statements below.) Like trials, judicial opinions have a story element (as do lawyers' briefs)-the narrative of the facts of the case that after an introductory Payne v. Tennessee, 501 U.S. 808 (1991).

Kenji Yos.h.i.+no, "The City and the Poet," 114 Yale Law Journal 1835 (2005).

sentence or two opens most opinions. Since the disputes that give rise to lawsuits unfold in time, and likewise the suits themselves, it often is both feasible and attractive to structure a judicial opinion as the story of the parties' dispute that gave rise to the suit and of the parties' contest in the lower court, so that chronology rather than logic or argument organizes the opinion. This is where the detective story reenters the picture. A detective story has a double narrative: "backwards in time, the story of the circ.u.mstances leading up to the mystery, and forward in time, the progress of the investigation that reveals it . . . Managing these two chronologies lies at the heart of all crime fiction."16 And so it is with the judicial opinion. It goes back in time to narrate the events that have brought the parties before the court for judgment and forward in time to tell the story of the court's resolution of the dispute. The skillful judge, like the skillful detective story writer, keeps the reader reading by deferring announcement of the resolution to the end of the opinion.

Cardozo's narratives are celebrated for their literary skill, shown chiefly in the clever highlighting of some facts and the suppression of others, but they open him to the charge of confusing law with fiction. (Learned Hand's summations of literary plots in his copyright opinions are comparably distinguished displays of narrative skill, but less tendentious.) Cardozo's opinion in Palsgraf v. Long Island R.R.17 announced the rule that a careless injurer is not liable in tort to an unforeseeable victim. An unknown man trying to board the defendant's train dropped a bundle of fireworks between the platform and the track when he was jostled by the conductor who was helping him to board. The fireworks exploded, destroying part of the platform and injuring 13 people standing on it. Mrs. Palsgraf was standing next to a scale that was 10 to 30 feet from the explosion18 and it fell on her, either from the force of the explosion or, more likely, from the rush to the exit by the panicked crowd.

Cardozo altered the facts. He placed Mrs. Palsgraf "at the other end of the platform many feet away," implying that she was standing at least 100 and more likely 200 or 300 feet from the explosion rather than 10 to 30 16. Heather O'Donoghue, "Shades of Lady Dedlock: Victorian Literary Imitations in Crime Fiction," Times Literary Supplement, Aug. 15, 2008, p. 19.

162 N.E. 99 (N.Y. 1928). See my book Cardozo: A Study in Reputation 3348 (1990).

Id. at 3536; Andrew L. Kaufman, Cardozo 298 (1998).

*feet. And he omitted all reference to the explosion's magnitude, to the fact that other persons standing on the platform had been injured, and to the possibility that the scale had been knocked over by the fleeing crowd. The effect of these alterations and omissions was to create the appearance of a freak accident and an unforeseeable victim (the basis of the court's rejection of her claim)-for how likely is it that an explosion of fireworks would knock down a heavy iron scale at the other end of the platform from where the explosion occurred? The accident becomes at once mysterious, fascinating, and absurd in Cardozo's storytelling hands-as well as more strongly supportive of his legal conclusion than the real facts would have been.

He went too far in altering facts to improve the story; factual accuracy should constrain legal storytelling. But subject to that constraint, the only details that should be included in a judicial opinion, as Cardozo knew and writers of fictional stories would advise, are those that contribute to the effect the judge is trying to create. If judges would go through their opinions carefully before publication and delete all details that did nothing for the opinion, the quality of judicial opinions would soar. The situation is different for the brief writer, who cannot be sure which facts will be important to the judges and who knows that they can dig facts omitted from the brief out of the trial record and who therefore wants to give his own spin to all the possibly relevant facts.

Judges must also know when not to tell stories. The Supreme Court in Brown v. Board of Education was right to forgo narrating the history of the oppression of black people in the South, even though that history was essential to understanding the evils of segregated schooling. Such a narrative would have made it even more difficult than it was for southern whites to accept the decision. The omission ill.u.s.trates the prudential approach to justice that we first glimpsed in chapter 1, in Agamemnon's handling of Hecuba's case. The Supreme Court's reliance in the Brown decision on social science in lieu of narrative has been criticized sharply and often; how ironic, but how telling, that its choice should be defended in a book on legal narrative!19 19. Sanford Levinson, "The Rhetoric of the Judicial Opinion," in Law's Stories, note 4 above, at 187.

The variety of narrative techniques in literature is notable.20 They include narrators who are obtuse and others who are omniscient; narrators who have access to the minds of one character but not another (in Henry James's novel The Golden Bowl, for example, the narrator is inside the Prince's head in the first half of the book and inside the Princess's head in the second half ); the use of a character rather than the narrator as a "focalizer" (a person through whose eyes or ears the events of the story are perceived); the construction of an implied author (who may be different from both the real author and the narrator); the doubling of the narrative (in King Lear, for example, the story of Gloucester and his sons doubles the story of Lear and his daughters-and in Hamlet there is a quadruple narrative, corresponding to the four avengers) and the different kind of doubling that we noted in connection with the detective story; and finally the handling of time: when literary narratives begin and end, as they often do, in medias res, the surface or foreground story does not coincide chronologically with the implied or background story that generates it. The background story occupies a decade in the Iliad and two decades in the Odyssey, while in both epics the foreground story is over in weeks or months. Even when background and foreground do coincide, the tempo of the narrative is bound to be irregular. Some events that pa.s.s quickly in real time are narrated in leisurely fas.h.i.+on while others, which would take much longer to unfold in real time, are skipped over rapidly. The choice of what to place in the foreground and what to leave in the background (whether alluded to, narrated in flashback, narrated in flash-forward, or a.s.sumed to be already known to the reader) depends on con 20. See, for example, Brooks, note 4 above; Binder and Weisberg, note 7 above, ch. 3; Irene J. F. de Jong, Narrators and Focalizers: The Presentation of the Story in the Iliad (2d ed. 2004); de Jong, A Narratological Commentary on the Odyssey (2001); Robert Alter, The Pleasures of Reading in an Ideological Age, ch. 6 (1996); Kenneth L. Walton, Mimesis as Make-Believe: On the Foundations of the Representational Arts, ch. 9 (1990); Wallace Martin, Recent Theories of Narrative (1986); Wayne C. Booth, The Rhetoric of Fiction (2d ed. 1983), esp. ch. 6; Seymour Chatman, Story and Discourse: Narrative Structure in Fiction and Film (1978); A. M. Bowie, "Introduction," in Herodotus, Histories, vol. 8, pp. 1, 1822 (2007); Gerald Prince, "Narratology," in The Johns Hopkins Guide to Literary Theory and Criticism 524 (Michael Groden and Martin Kreiswirth eds. 1994). Chapter 4 of Anthony G. Amsterdam and Jerome Bruner, Minding the Law (2000), is a good introduction to the theory of narrative, and chapter 5 applies the theory to Supreme Court opinions and compares them to literary narratives. See also Jerome Bruner, Making Stories: Law, Literature, Life, ch. 2 (2002).

*siderations of pace, emphasis, contrast, and how far the author wants, by leaving much of the story in the background, to let the reader's imagination roam.

Yet the light that the rich scholarly literature on literary narrative and the striking exemplars of such narrative can cast on law is dim. Legal narratives lack the subtlety and complexity of literary ones. In part this is because judges are not chosen on the basis of their writing ability. But there is also the constraint that the facts of a case place on the judicial fancy, though we saw Cardozo evading it. The official character of the judicial opinion, and the fact that it must explain what is generally an either-or decision (affirm or reverse, in the case of appellate opinions), are further constraints. All these things make it difficult to imagine a judicial narrative that would incorporate more than the simple storytelling precepts (simple to list, not so simple to execute) that I enumerated in chapter 9- awareness of audience, building to a punch line, maintaining suspense, carefully selecting and arranging facts, projecting a strong narrative voice.

Think of the unexpected modulation of Edith Wharton's novel The House of Mirth from comedy to tragedy, the extraordinary ending of Moby-d.i.c.k that gains so much of its force from the languors that precede it, and the narrative techniques skillfully deployed by Kafka in "The Metamorphosis" and "The Judgment." As Fredric Jameson explains, when Gregor dies, the very tonality of the novella is transformed. From the confinement situation, the world is reborn; from death we s.h.i.+ft to life, the springtime, the walk in the country, the very rebirth of the daughter herself. This ending (or coda) is indeed the most euphoric and paradisal moment in Kafka, a vision of a new heaven and earth into which the family tentatively steps forth in their Sunday best: for this is now, for the first time, a world without guilt, this last having been loaded onto the scapegoat Gregor and driven out into the wilderness . . . What should have been a study in unrelieved dreariness becomes a joyous and redemptive celebration of life itself . . . Indeed, one is tempted to think that the whole baleful Gregor narrative was itself required 'merely' to motivate and enable this extraordinary and life-enhancing euphoria.21 21. Jameson, The Modernist Papers 98 (2007).

The narrative structure of "The Judgment" can be "seen as a simple alternation, in which a first position, in which Georg is subject, seeing the world on the outside (in some contentment with it), is then submitted to the opposite logical possibility, in which he becomes object, and is then seen successively through the judging eyes of the father, the friend, the outside world."22 Think of the narrative twists and turns in Joyce's long short story "The Dead." The story begins with a noisy, bustling family Christmas party attended by Gabriel Conroy, a Dublin schoolteacher who writes a literary column for a local newspaper. With him is his wife, Gretta, who hails from Connacht, the picturesque but underdeveloped west of Ireland, far from Dublin. Gabriel is conscious of being better educated, more intellectual, than the other guests. He is Anglicized, sensitive, and somewhat awkward and insecure.

The party ends and Gabriel and his wife go to a local hotel to spend the night. Gabriel is feeling amorous; there is the sense of a second honeymoon in the air, a second wedding night. But his wife is distant, unresponsive. A song sung at the party had brought back to her the memory of Michael Furey, a sick boy who when they were young in Connacht had been in love with her and died-for her-when he left his sickbed on a rainy night to visit her. He was 17. "To love a cause or a person more than life is the action of the hero and the G.o.d, and Michael is so identified. Gabriel the Dubliner has been incapable of such sacrifice."23 His wife falls asleep, and he thought of how she who lay beside him had locked in her heart for so many years that image of her lover's eyes when he had told her that he did not wish to live. Generous tears filled Gabriel's eyes. He had never felt like that himself towards any woman but he knew that such a feeling must be love. The tears gathered more thickly in his eyes and in the partial darkness he imagined he saw the form of a young man standing under a dripping tree . . . It had begun to snow again. He 22. Id. at 103.

23. Florence L. Walzl, "Gabriel and Michael: The Conclusion of 'The Dead,'" in James Joyce, Dubliners: Text, Criticism, and Notes 423, 438 (Robert Scholes and A. Walton Litz eds. 1976).

*watched sleepily the flakes, silver and dark, falling obliquely against the lamplight. The time had come for him to set out on his journey westward. Yes, the newspapers were right: snow was general all over Ireland . . . It was falling, too, upon every part of the lonely churchyard on the hill where Michael Furey lay buried. It lay thickly drifted on the crooked crosses and headstones, on the spears of the little gate, on the barren thorns. His soul swooned slowly as he heard the snow falling faintly through the universe and faintly falling, like the descent of their last end, upon all the living and the dead.24 And so the story ends. At first the reader thinks it is going to end when the party ends. Then he thinks it will end when Gretta falls asleep. It twice restarts, ending far from where it began. It began in a bright, convivial, crowded room and ends with Gabriel's solitary brooding, silent in the snow-silenced night, on the pa.s.sion symbolized by Michael's name ("fury") and the wild west of Ireland where Michael died. Gabriel's "journey westward" is metaphorically a journey to the setting sun, to death. For what he is brooding over is that he has never experienced pa.s.sion. He is, in a sense, one of "the dead"-it is the final twist in an intricate narrative, and delivers an emotional punch that a judicial narrator could not hope to deliver. As in the case of interpretive techniques, narrative techniques beyond the simplest are field-specific.

The incomparable richness of the palette available to the literary writer is brought out in Erich Auerbach's famous comparison of narrative techniques in the Odyssey and the Old Testament: On the one hand [in the Odyssey] fully externalized description, uniform illumination, uninterrupted connection, free expression, all events in the foreground, displaying unmistakable meanings, few elements of historical development and of psychological perspective; on the other hand [in the Old Testament], certain parts brought into high relief, others left obscure, abruptness, suggestive influence of the unexpressed, 'background' quality, multiplicity of meanings and the need for interpretation, universal-historical claims, development 24. James Joyce, "The Dead," in id. at 175, 214.

of the concept of the historically becoming, and preoccupation with the problematic.25 Although few of these choices are available to the writer of a legal brief or a judicial opinion, judges and lawyers could learn from literature to avoid the worst sins against narrative, such as the piling on of irrelevant details, or the judge's announcing the decision at the outset of his opinion with the result that the opinion not only lacks even a modic.u.m of suspense but seems rationalization rather than exploration. And Supreme Court Justices could learn not to respond explicitly to a dissenting opinion. It has become the custom (imitated by many other appellate judges) for the author of the majority opinion to add footnotes in which he tries to refute the points made by the dissent. The result is a rupture in the majority opinion's narrative. The author is signaling his readers that his opinion is not self-contained; that they must pause to read another opinion and then come back and finish his. A skillful narrator would paraphrase the dissent's criticisms in his opinion without attribution, so that instead of stating in a footnote that the dissent was wrong to disagree with the majority he would state in the text that while the majority's position could be criticized on thus-and-so ground, the criticism would be unsound. The narrative flow would not be broken and the reader would not be sent scurrying to another opinion.

At the same time that judges' narrative skills have eroded-further evidence of the decline of the literary culture in America-storytelling has emerged as a genre of legal scholars.h.i.+p.26 Fiction by law professors on le 25. Auerbach, Mimesis: The Representation of Reality in Western Literature 19 (1957).

26. See, for example, Symposium, Legal Storytelling, 87 Michigan Law Review 2073 (1989); Pedagogy of Narrative: A Symposium, 40 Journal of Legal Education 1 (1990); Nancy L. Cook, "Outside the Tradition: Literature as Legal Scholars.h.i.+p," 63 University of Cincinnati Law Review 95 (1994); William N. Eskridge Jr., "Gaylegal Narratives," 46 Stanford Law Review 607 (1994); Arthur Austin, "Evaluating Storytelling as a Type of Nontraditional Scholars.h.i.+p," 74 Nebraska Law Review 479 (1995); Robert L. Hayman Jr. and Nancy Levit, "The Tales of White Folk: Doctrine, Narrative, and the Reconstruction of Racial Reality," 84 California Law Review 377 (1996); Wendy Nicole Duong, "Law Is Law and Art Is Art and Shall the Two Ever Meet? Law and Literature: The Comparative Creative Processes," 15 Southern California Interdisciplinary Law Journal 1, 3440 (2005).

*gal themes is not entirely new,27 but the scale of the new legal narratology and its predominantly oppositional character are new. Some legal narratologists, such as Derrick Bell, write outright fiction, in his case science fiction stories. Others write stories that purport to be autobiographical and so are offered as literally true. Yet not only are the stories unverifiable, but the story mode, and sometimes specific details, undermine their veracity.28 Critical race theorists and radical feminists tell stories of oppression intended to stir the reader to a more vivid awareness of the suffering of the downtrodden.29 But they are wielding a two-edged sword, because victim impact evidence in capital cases likewise "consists of stories of victimized and silenced people, who are the usual concern of many in the [legal] storytelling movement."30 Defenders of legal narratology resist this point.31 They oppose capital punishment; and allowing victim impact statements increases the number of cases in which it is imposed. But if the defendant is to be allowed to plead for mercy it is hard to see why the absent victim should be forbidden to plead for justice. Think of the ghost of Hamlet's father, or the Commendatore in Don Giovanni, and contrast those examples with the asymmetrical treatment of murderer and victim in The Stranger.

The legal narratologists are ambivalent about the role of emotion in the legal process. They think it fine that a criminal defendant at his sentenc See, for example, Norval Morris, Madness and the Criminal Law, chs. 1, 3 (1982); Morris, The Borstal Boy and Other Parables of the Law (1992); Lon L. Fuller, "The Case of the Speluncean Explorers," 62 Harvard Law Review 616 (1949).

Anne M. Coughlin, "Regulating the Self: Autobiographical Performances in Outsider Scholars.h.i.+p," 81 Virginia Law Review 1229 (1995). Literature professors are turning to autobiography as well. See Adam Begley, "The I's Have It: Duke Professors Affirm Themselves," Lingua Franca, MarchApril 1994, p. 54.

See Cook, note 26 above. See also Representing Women: Law, Literature, and Feminism 357, 358 (Susan Sage Heinzelman and Zipporah Batshaw Wiseman eds. 1994); Derrick A. Bell, Gospel Choirs: Psalms of Survival for an Alien Land Called Home (1996); Bell, "Who's Afraid of Critical Race Theory?" 1995 University of Illinois Law Review 893, 906 (1995).

Paul Gewirtz, "Victims and Voyeurs: Two Narrative Problems at the Criminal Trial," in Law's Stories, note 4 above, at 135, 143.

See, for example, Susan Bandes, "Empathy, Narrative, and Victim Impact Statements," 63 University of Chicago Law Review 361, 392 n. 156 (1996); Martha C. Nussbaum, "Equity and Mercy," 22 Philosophy and Public Affairs 83, 119, 121 n. 93 (1993).

ing hearing should use the story of his life to awaken the jury's sense of pity but are appalled when the prosecutor uses the story of the victim's life to awaken the jury's retributive sense, although the prosecutor is merely restoring the emotional balance. Susan Bandes tries to resolve the dilemma by declaring retribution a bad emotion-the "crude pa.s.sion for revenge . . . a thirst for undifferentiated vengeance."32 And Martha Nussbaum points out that revenge is a primitive emotion, because (she argues) it abstracts from the particulars of the individual wrongdoer.33 Revenge is primitive, is instinctual, as also is love, of which compa.s.sion for a criminal is a diluted form. If primitiveness disqualifies an emotion from playing a role in sentencing, out should go the defendant's plea for pity. Nor are emotions of repulsion categorically inferior to those of attraction. Would it have been right, had Hitler been brought to trial, to let him tell the story of his deprived childhood and the disappointments of early adulthood and being ga.s.sed in World War I and so forth while excluding all statements by his victims concerning their sufferings at his hands? The strongest objection to giving rein to feelings of revenge-that revenge lacks measure or discrimination because the victim or a member of his family is the self-appointed judge and jury-has no force when the issue is merely whether victim impact statements can be considered by a disinterested judge or jury.

"Oppositionist" legal storytelling is vulnerable to the charge that it feeds the stereotype of women and blacks as incapable of rigorous thought, as limited to emoting, to "mere rhetoric" that seals them into a self-created ghetto-the ghetto of complaint. There is also the question of the typicality of the stories that the oppositionists tell.34 In a nation of 300 million people almost every ugly thing that can happen will happen. To react sensibly to such things on the plane of policy one has to know their frequency-a matter for social science rather than for storytelling. The oppositionists should realize this. They complain with some justice that Bandes, note 31 above, at 398. Why "undifferentiated"?

Nussbaum, note 31 above, at 8990. Odd that abstraction should be thought primitive.

34. Daniel A. Farber and Suzanna Sherry, "Telling Stories Out of School: An Essay on Legal Narratives," 45 Stanford Law Review 807 (1993). Cf. Toni M. Ma.s.saro, "Empathy, Legal Storytelling, and the Rule of Law: New Words, Old Wounds," 87 Michigan Law Review 2099 (1989).

*the conservative opponents of the political correctness movement and affirmative action exaggerate the frequency of the abuses they denounce.

A defendant who in his plea for mercy tells a harrowing story of childhood abuse and neglect implicitly a.s.serts a causal connection between the events narrated and the criminal act for which he is to be sentenced; the story has no relevance otherwise. But to a.s.sert is not to prove, and the proof is not supplied by the story, which may be appealing to credulous and sentimental intuitions about fall and redemption. Most people who have miserable upbringings nevertheless do not become murderers; how then can upbringing be the cause of murder? Oppositionist storytellers evade the question of personal as distinct from social responsibility, as in the following comment on the fact that black men commit a disproportionate number of rapes: "Black women have simultaneously acknowledged their own victimization and the victimization of black men by a system that has consistently ignored violence against women while perpetrating it against men."35 So black men are off the hook.36 Victim stories "adhere to an unspoken norm that prefers narratives of helplessness to stories of responsibility, and tales of victimization to narratives of human agency and capacity."37 Yet they are said by the same author to have value in "disrupting these rationalizing, generalizing modes of a.n.a.lysis [legal doctrine, economic a.n.a.lysis, and philosophical theory] with a reminder of human beings and their feelings, quirky developments, and textured vitality."38 How the downtrodden are to benefit from the disruption of systematic thinking about their problems is not explained.

What white person, heretofore unsympathetic or only tepidly so to the plight of American blacks, is going to be changed by reading Derrick Bell's story "The s.p.a.ce Traders"?39 s.p.a.ce aliens offer gold and other valuable resources in exchange for all the blacks in the United States. The Const.i.tution is quickly amended to provide that "without regard to the Angela P. Harris, "Race and Essentialism in Feminist Legal Theory," in Representing Women, note 29 above, at 106, 121 (footnote omitted).

Harris actually implies that white women are complicit in the rape of black women by black men. See id. at 120121.

Martha Minow, "Stories in Law," in Law's Stories, note 4 above, at 24, 32.

Id. at 36.

In Bell, Faces at the Bottom of the Well: The Permanence of Racism 158 (1992).

language or interpretations previously given any other provision of this doc.u.ment, every United States citizen is subject at the call of Congress to selection for special service for periods necessary to protect domestic interests and international needs." The story ends: The last Martin Luther King holiday the nation would ever observe dawned on an extraordinary sight. In the night, the s.p.a.ce Traders had drawn their strange s.h.i.+ps right up to the beaches and discharged their cargoes of gold, minerals, and machinery, leaving vast empty holds. Crowded on the beaches were the inductees, some twenty million silent black men, women, and children, including babes in arms. As the sun rose, the s.p.a.ce Traders directed them, first, to strip off all but a single undergarment; then, to line up; and finally, to enter those holds which yawned in the morning light like Milton's "darkness visible." The inductees looked fearfully behind them. But, on the dunes above the beaches, guns at the ready, stood U.S. guards. There was no escape, no alternative. Heads bowed, arms now linked by slender chains, black people left the New World as their forebears had arrived.

(p. 194) Blacks in the United States are in no danger of losing their citizens.h.i.+p. Many whites, it is true, oppose affirmative action, multiculturalism, bloc voting, and black victimology and are disgusted by the social pathologies of the inner city-drugs, crime, gangs, gun-toting preteens, AIDS, teenage mothers, welfare dependency, crack babies, babies born out of wedlock, cynical and corrupt-sometimes crazy-political leaders.h.i.+p, antisemitism, credulity. But Bell has nothing to offer to the solution of these problems, from which, indeed, an emphasis on white racism and black victimhood distracts. "The s.p.a.ce Traders" will make some of its white readers write off Bell as a hysteric and others feel complacent about their own racial feelings because they do not support the sale, disfranchis.e.m.e.nt, or expulsion of the black population of the United States.

An admirer of Bell's story calls it a "parable" that "reverses an a.s.sumed view of progress toward racial harmony and requires us to confront the fact that this history operates in our present and may presage our fu *ture."40 But has there been no racial progress in the United States? Was the situation of American blacks better before the Civil War? In 1950? Has the fact that they were once enslaved determined their future irrevocably? One can imagine a dystopian novel that would make the re-enslavement of blacks emblematic of their present and likely future condition, but to write such a novel would require the literary skill of a Huxley, an Orwell, or an Atwood.

William Eskridge, another law professor, begins a book that advocates the legalization of h.o.m.os.e.xual marriage with the love story of two lesbians, plaintiffs in the lawsuit in Hawaii that years before the Supreme Judicial Court of Ma.s.sachusetts invalidated the legal prohibition of h.o.m.os.e.xual marriage in that state placed the issue of such marriage on the policy agenda.41 He tells us about Ninia Baehr, "fawnlike," with "brown eyes that engulf you with understanding and alert sympathy," and Genora Dancel, whose "broad, dimpled smile and friendly, easygoing disposition belie her serious work ethic." Ninia's mother tells Ninia about her friend Genora: "I hear she's a lesbian. I'd be happy if she were your friend, too. Why don't you meet her?" After a brief courts.h.i.+p, Genora "popped the question, 'Will you marry me?' A microsecond later Ninia answered, 'Yes!'"42 Eskridge is an able legal scholar and his book makes a powerful intellectual case for his position. But the story of Ninia and Genora is neither emotionally nor aesthetically convincing. It is a tale in which "true love" runs truer, smoother, and more cliched ("microsecond" is what Polonius would have called a "vile phrase") than anything likely to be encountered outside a Harlequin romance or Gerty MacDowell's fevered imagination. Only the credulous or the already convinced will take the story of Ninia and Genora at face value. The art of Eskridge's book lies elsewhere-in the patient, measured tone in which he states the case for legalizing h.o.m.os.e.xual marriage. The implied author that the book creates is a more effective refutation of the h.o.m.os.e.xual stereotypes that stand George H. Taylor, "Derrick Bell's Narratives as Parables," 31 New York University Review of Law and Social Change 225, 250 (2007).

41. See Baehr v. Lewin, 852 P.2d 44 (Hawaii 1993).

William N. Eskridge Jr., The Case for Same-s.e.x Marriage: From s.e.xual Liberty to Civilized Commitment 12 (1996).

athwart Eskridge's goal than the Norman Rockwell ice-cream-parlor normalcy of his model lesbian couple.

There is enough fiction in law already. I refer not to legal fictions, which are white lies designed to disguise legal creativity as continuity, or to hypothetical cases designed to test the limits of legal doctrines, but to the self-serving and often phony stories, told by litigants and witnesses and faithfully transcribed, that are repeated in briefs and find their way into appellate opinions because they were accepted by credulous judges or jurors or for procedural or tactical reasons simply were not challenged.43 Law is deficient in fact rather than fiction. Its narratives are unreliable, and this leads Holocaust deniers to "evoke the rhetoric of attorneys practiced in the art of adversarial litigation . . . By casting the trial as a truth-seeking device, the [deniers] are thus able to present the most tendentious and partisan hyperbole as a proper contribution to public debate and historical instruction." Yet criminal justice "has long been dedicated to values such as protecting the dignity and autonomy of the accused that may actually disable the pursuit of truth in a particular case"44-the trial, in other words, suffers from the same epistemological inadequacies as narrative, which it employs and resembles. Recall how Rule 404(b) of the Federal Rules of Evidence truncates the narrative of guilt in a trial. Supreme Court Justices who partic.i.p.ate in mock trials of A notable example is the famous right to privacy case Melvin v. Reid, 297 Pac. 91 (Cal. App. 1931). The none too plausible facts recited in the court's opinion, and ever since used as Exhibit A to the case for recognizing a broad right of privacy-see, for example, William L. Prosser, "Privacy," 48 California Law Review 383, 392 (1960)-were taken from the plaintiff 's complaint, without any independent verification. The defendant had decided to accept the factual allegations of the complaint for the sake of argument and argue that even if they were true, the plaintiff had no case in law. According to the complaint, a prost.i.tute, shortly after being acquitted of murder, was completely rehabilitated, married, and became an exemplary, virtuous housewife. Seven years later the defendants made a movie of her lurid past, using her maiden name, and immediately all her new friends dropped her. It is not an impossible scenario, but it is a little too pat, like the story of Ninia and Genora, to ring true. A cynical version of Mrs. Melvin's story is told in Raymond Chandler, Farewell, My Lovely (1940).

These quotations are from Lawrence Douglas, "The Memory of Judgment: The Law, the Holocaust, and Denial," 7 History and Memory 100, 109110 (1996).

*Shakespeare's authors.h.i.+p45 confer legitimacy on a misuse of trial procedure that undermines standards of historical accuracy.

And "stories contribute no independent moral insight of their own."46 As Catharine MacKinnon puts it, making my point about the two-edged character of storytelling, "Stories break stereotypes, but stereotypes are also stories, and stories can be full of them . . . [T]here is much to be said for data . . . Lies are the ultimate risk of storytelling as method. This may be embarra.s.singly non-postmodern, but reality exists . . . It is my view that the major conflicts of our time are over the real and only secondarily over versions of it and methods for apprehending it."47 MacKinnon is reacting to the frivolousness of postmodernism and its claim that all reality is constructed-everything is a story told from a particular viewpoint (as Hamlet said, "there is nothing either good or bad but thinking makes it so" [II.2.24950])-which tends to occlude the perception of real suffering.

The pitfall of narratology into which MacKinnon herself has stumbled is that of atypicality. She is a magnet for the unhappy stories of prost.i.tutes and p.o.r.nographic actresses. Even if all these stories are true (though how many are exaggerated? Does MacKinnon know?), whether they are representative is the question that must be answered to decide what the law should try to do about the suffering narrated in them. When there is unlikely to be a complaining witness, a crime is difficult to prevent or deter without the government's curtailing civil liberties in order to increase the probability of detection. That is a cost and before it is borne the advocate of suppression should be asked for evidence that the crime in question causes widespread rather than merely isolated harm..

Robert Weisberg emphasizes "the utility of narrative in promoting Irvin Molotsky, "You-Know-Who Wrote the Plays, Judges Say," New York Times, Sept. 26, 1987, p. 1; Amy E. Schwartz, "Three Justices, a Poetry-Starved Crowd and Shakespeare," Was.h.i.+ngton Post, Oct. 14, 1987, p. A19. See also Veralyn Kinzer, "Not Guilty! Chief Justice, IU Law Prof Exonerate Richard III," Indiana University Homepages, www.iuinfo.indiana.edu/ homepages/1108/1108text/king.htm (visited July 8, 2008); Ray Moseley, "Royal Reckoning: After More Than 400 Years, the Wives of Henry VIII Get Their Due at Mock Trial," Gazette, July 19, 2000, p. A1.

46. Anthony Kronman, "Leontius' Tale," in Law's Stories, note 4 above, at 54, 56.

MacKinnon, "Law's Stories as Reality and Politics," in Law's Stories, note 4 above, at 232, 235.

symbolic national or group ident.i.ty over abstract ideological or governmental structure."48 The trial of John Brown altered the terms of the slavery debate and paved the way for Lincoln's redefinition of national purpose. Brown "transformed himself from a man of questionable character, a f.e.c.kless loser in both business and the military, into a mythic hero by artfully blending legal rhetoric, courtroom dramaturgies, and shards of junk culture from popular American romances."49 Weisberg admires such theatrics but recognizes that they are a misuse of the trial process. They turn a trial into a circus and by doing so reveal the dangers in confusing trial with theater, law with literature. And in Weisberg's reference to the utility of narrative in promoting a symbolic national ident.i.ty and transforming a man of questionable character into a mythic hero, we may sense an allusion to the master evil narrativist of our century. Hitler told his rapt audiences an emotion-charged story of the betrayal and humiliation of the nation.

Discussing "battered women's" stories that reveal that "victims of domestic abuse are not pa.s.sive and helpless, but insubordinate and indomitable" (like Kate until the end of The Taming of the Shrew), Binder and Weisberg observe that "these texts achieve their subversive effect not by opposing reason with experience, but by offering reasons to replace one narrative 'construction' of experience with another."50 But mention of "reasons" does not sort well with Binder and Weisberg's uncritical admiration51 for one of the best-known victim narratives, Patricia Williams's Alchemy of Race and Rights,52 an autobiographical account of the travails of a black woman law professor.

Autobiography is an unreliable source of truth,53 yet Williams wants the authority of literal truth as well as the emotional punch of fiction in the following description of an episode at a Benetton clothing store: "Buzzers are big in New York City. Favored particularly by smaller stores 48. Weisberg, "Proclaiming Trials as Narratives: Premises and Pretenses," in Law's Stories, note 4 above, at 61, 77.

Id. at 79, summarizing Ferguson's discussion of the trial, note 10 above.

Binder and Weisberg, note 7 above, at 245.

Id. at 257260.

Patricia J. Williams, The Alchemy of Race and Rights: Diary of a Law Professor (1991).

Andrew Hudgins, "An Autobiographer's Lies," 65 American Scholar 541 (1996).

*and boutiques, merchants throughout the city have installed them as screening devices to reduce the incidence of robbery: if the face at the door looks desirable, the buzzer is pressed and the door is unlocked. If the face is that of an undesirable, the door stays locked. Predictably, the issue of undesirability has revealed itself to be a racial determination," as Williams discovers one Sat.u.r.day afternoon when she was shopping in Soho and saw in a store window a sweater that I wanted to buy for my mother. I pressed my round brown face to the window and my finger to the buzzer, seeking admittance. A narrow-eyed, white teenager wearing running shoes and feasting on bubble gum glared out, evaluating me for signs that would pit me against the limits of his social understanding. After about five seconds, he mouthed "We're closed," and blew pink rubber at me. It was two Sat.u.r.days before Christmas, at one o'clock in the afternoon; there were several white people in the store who appeared to be shopping for things for their mothers. (pp. 4445) The power of this story lies in its compression, in its vivid contrasting of the narrator's round brown face with the sales clerk's narrow eyes and pink bubble gum, in its use of physical exclusion as a metaphor for social exclusion, in its suggestion that the least significant of whites (the gum-chewing, bubble-blowing, teenage sales clerk) is comfortable with exercising power over an older and more accomplished black, and in its elegant summation of the clerk's reaction to her ("evaluating me for signs that would pit me against the limits of his social understanding"). But is the story true? Did Williams, a mature woman, really press her face against the store window,, or is she embroidering the facts for dramatic effect-making the insult to her seem graver because it shattered her childlike eagerness and innocence? And how does she know that the sales clerk refused to admit her to the store because she is black? Her evidence is that since Christmas was approaching it was unlikely that the store had closed, and that there were other shoppers in the store. The second point has no force. Stores usually stop admitting customers before the ones already in the store have left-otherwise the store might never be able to close. The first point is stronger. Although many stores close early on Sat.u.r.day, the likelihood that a Benetton store in New York City during the Christmas shopping season would be one of them is slight. Yet Williams does not suggest that she tried to find out whether the store was open or that she saw customers admitted after she was turned away. The absence of a sign indicating that the store was closed would be some evidence that it was open, but she does not mention a sign. Many stores list their hours on the front door. Did the Benetton store? She does not say.

Her anger may reflect the uncertainty that confronts blacks in their encounters with whites. Not every disappointment that a black person encounters is a result of discrimination, yet often it is impossible to determine which ones are and which ones are not. We like to know where we stand with other people, and that can be difficult for blacks in their dealings with whites. (In a parallel incident, Oprah Winfrey was refused entry to a Hermes store in Paris after closing time, she claimed because of her race, though Hermes denied that.54) But if this is what the Benetton episode is about-the psychology of the American black-Williams should have said so.

I am not being a fusspot in insisting on the distinction between fact and fiction. Benetton is not a fiction. It is a real company accused in print of unlawful behavior.

Williams had said at the beginning of her book, in defense of doing legal scholars.h.i.+p in the form of storytelling, "that one of the most important results of reconceptualizing from 'objective truth' to rhetorical event will be a more nuanced sense of legal and social responsibility" (p. 11). I am wary of the scare quotes around "objective truth" and of the term "rhetorical event." Is she warning that the difficulty of proving racial discrimination is so great that we must give up on factual inquiry and accept stories that present fears and suspicions as proven facts? Or does she want to marry the authority of truth to the charm of fiction? Apparently the latter. An admirer has said that Williams believes that "truth is a contested term, determined by positionality, deployed by those in power for 54. Robin Givhan, "Oprah Winfrey and the View from Outside Hermes' Paris Door," Was.h.i.+ngton Post, June 24, 2005, p. C1. There was no doubt that the store was closed, but there were people in the store and Hermes acknowledged that celebrities were sometimes admitted after closing time.

purposes not always immediately visible, and toyed with in her own work as part of her larger attempt to disrupt mainstream exercises of discursive power."55 Another admirer has said that Williams "conveyed her complex arguments about white racism with stories that sometimes purported to be historical, but which actually may not have been factually accurate."56 Fictional Depictions of Lawyers We know from earlier chapters that lawyers make frequent appearances in literature. The literary treatment of lawyers can be a source of insights for real lawyers and law students. Do with Me What You Will has a great scene of a lawyer's coaching a witness (Marvin Howe coaching the teenage Jack Morrissey), and Intolerable Cruelty has hilarious coaching scenes. I mentioned the clever cross-examination in the court-martial in The Caine Mutiny, though examination and cross-examination rather lose their flavor on the printed page. Ilene Durst finds in a novel by Nadine Gordimer useful reminders of the importance of a lawyer's demonstrating empathy and tact in dealing with clients.57 My Cousin Vinny is particularly rich in practice tips: how a criminal defendant's lawyer must stand his ground against a hostile judge, even at the cost of exasperating the judge, because the lawyer's primary audience is the jury, not the judge; how cross-examination on peripheral matters can sow serious doubts about a witness's credibility; how props can be used effectively in cross-examination (the tape measure that demolishes one of the prosecution's eyewitnesses); how to voir dire, examine, and cross-examine expert witnesses; the importance of the Brady doctrine (which requires the prosecution on request to provide the defense with Kathryn Temple, "Law's Hidden Face: Reading Narrative Jurisprudence and Its Critics," in Law and Literature Perspectives 353, 365 (Bruce L. Rockwood ed. 1996).

Robin West, "Const.i.tutional Fictions and Meritocratic Success Stories," 53 Was.h.i.+ngton and Lee Law Review 995, 998 (1996). See also Daniel A. Farber and Suzanna Sherry, Beyond All Reason: The Radical a.s.sault on Truth in American Law, ch. 5 ("The a.s.sault on Truth and Memory") (1997); Coughlin, note 28 above.

Durst, "The Lawyer's Image, the Writer's Imagination: Professionalism and the Storyteller's Art in Nadine Gordimer's The House Gun," 13 Cardozo Studies in Law and Literature 299 (2001). And not only with clients. See Note, "Being Atticus Finch: The Professional Role of Empathy in To Kill a Mockingbird," 117 Harvard Law Review 1682 (2004).

any exculpatory evidence that the prosecution has); how to dress for a trial; contrasting methods of conducting a jury trial; and more. It is no surprise that clips from My Cousin Vinny are used in many CLE (continuing legal education) courses and in law school courses in evidence and in trial advocacy.

Consistent with the Aristotle-Wigmore conception of literature as a source of representative as distinct from historical truth, fictional lawyer stories provide a particularly good vehicle for the study of legal ethics.58 A standard cla.s.s in legal ethics tends like most law school cla.s.ses to make heavy use of hypothetical cases, because the essence of a case law system (which is still our system) is the application of the holdings of previous decisions to new cases that differ in some particulars from the previous ones; the challenge is to determine the significance of the deviation. There are excellent fictional treatments of lawyers' ethical dilemmas, by both nonlawyers like Edith Wharton59 and lawyer-writers like Louis Auchincloss (and Kafka-remember lawyer Huld in The Trial), because ethical dilemmas are a dimension of legal practice that is both familiar to every lawyer and easy for a layperson to grasp. The coaching of witnesses, as in Do with Me What You Will and Intolerable Cruelty, raises ethical questions-in particular, at what point does it cross over into suborning perjury? (In both works it does.) Fictional treatments of issues of legal ethics provide a rich alternative to the hypothetical cases that a law teacher might think up.

Literature's potential value for the practice of law goes beyond the portrayal of lawyers. The possibility explored in chapter 9 of improving judi William Domnarski, "Law and Literature," 27 Legal Studies Forum 109 (2003). See David S. Caudill, "Wolfe's Bonfire of the Vanities as a CLE Ethics Text," 57 Shenandoah 216 (2007); Kieran Dolin, "Continuing Negotiations: Law and Literature in Short Stories by Louis Auchincloss," 15 Law and Literature 189 (2003); Carrie Menkel-Meadow, "Can They Do That? Legal Ethics in Popular Culture: Of Characters and Acts," 48 UCLA Law Review 1305 (2001); Tim Dare, "Lawyers, Ethics, and To Kill a Mockingbird," 25 Philosophy and Literature 127(2001). Auchincloss's remit, it should be noted, is much broader than legal ethics. See Domnarski, "Trouble in Paradise: Wall Street Lawyers and the Fiction of Louis Auchincloss," 12 Journal of Contemporary Law 243 (1987).

See Deborah Hecht, "Representing Lawyers: Edith Wharton's Portrayal of Lawyers and Lawyering in The Touchstone and Summer," in Literature and Law 83 (Michael J. Meyer ed. 2004).

*cial opinion writing by greater sensitivity to literary values should interest the practicing lawyer as well, since lawyers as well as judges are rhetoricians. Literature might be drawn on in a course in legal writing60 and even in a course in courtroom advocacy; I give an ill.u.s.tration in the last section of this chapter. Law schools require first-year students to take courses in legal writing, but the emphasis is on learning the different genres of legal writing (briefs, memos, etc.) and how to do the research required for them rather than on style and narrative.

The culprits responsible for lawyers' neglect of writing skills include the legal culture itself, which uses jargon and stilted expression to overawe the laity. But the main culprit is the decline that I have several times mentioned of the literary culture. It has many causes. The biggest is the rise of strong compet.i.tors to literature: films, television, video games, iPods, e-mail, online chat rooms, the Internet. But the universities have played their part by allowing their literature departments to become excessively specialized and lopsidedly political. The political correctness movement, which has an iron grip on many college and university English departments, has combined with aspirations to profundity and rigor appropriated from Continental philosophy and from American social science, and with leftist politics, to banish literary values from many a literature cla.s.sroom. Serious literary journalism, the kind that T. S. Eliot, Edmund Wilson, and George Orwell did (and before them Samuel Johnson and William Hazlitt), has not disappeared; nor the kind of literary criticism that English professors such as Cleanth Brooks, C. S. Lewis, R. P. Blackmur, and Robert Penn Warren wrote to be intelligible to the general reader. But both genres are in a decline that is symptomatic of the decline of literary culture generally, though some distinguished creative writers, such as David Lodge, Joyce Carol Oates, Cynthia Ozick, John Updike, Margaret Atwood, and James Wood, and some distinguished professors of literature, such as Harold Bloom, Christopher Ricks, and Helen Vendler, continue to write lucid literary criticism addressed to an audience not entirely composed of academics.

60. As proposed in Marcia Carnavan, "Using Literature to Teach Legal Writing," 23 Quinnipiac Law Review 1 (2004). See also Joel R. Cornwell, "Languages of a Divided Kingdom: Logic and Literacy in the Writing Curriculum," 34 John Marshall Law Review 49 (2000).

Especially p.r.o.nounced is the decline in the number of literary journalists who are neither creative writers nor academics. John Gross is one of the few living examples of that vanis.h.i.+ng breed. It was Gross who forty years ago presciently described the pressures on literary criticism (including journalism) exerted by science, social science, the ma.s.s media, and the growth of the universities and resulting academification of criticism.61 Randall Jarrell had noted even earlier that "the highly literate have proportionately less time to devote to literature than they did."62 Of the 100 public intellectuals mentioned most frequently in the media between 1995 and 2002, only five were literary critics, and only one of those, Joyce Carol Oates, is still alive.63 Specialization, which has become the norm for academic literary criticism, may actually weaken an already weak field by repelling the best minds, which may find the prospect of having to focus on a narrow slice of a weak field in order to get ahead unappealing. Specialization should come after the free-ranging, free-spirited innovators have laid the groundwork for a research program.

More than half a century ago, Cleanth Brooks published his famous book of literary criticism, The Well Wrought Urn, consisting of close readings of several well-known poems.64 The New Critics, as we know, were much taken with the metaphysical poets, and the high point of Brooks's book is a close reading of "Canonization," one of Donne's most famous love poems. Recently a professor of literature named Ramie Targoff published a book on Donne65 that treats Donne's love poetry at length though it does not discuss "Canonization." Targoff 's book is a fine scholarly achievement-well written (and not defaced by jargon), thoroughly re Gross, The Rise and Fall of the Man of Letters: A Study of the Idiosyncratic and the Humane in Modern Literature 285302 (1969). Randall Jarrell spotted the trend even earlier. See his essay "The Age of Criticism," published in 1952 and reprinted in Jarrell, No Other Book: Selected Essays 281 (Brad Leithauser ed. 1999). On the tension between academic and journalist literary critics, see also Edmund Wilson, "Reexamining Dr. Johnson," in Wilson, Literary Essays and Reviews of the 1930s & 40s 667 (2007 [1944]).

62. Jarrell, note 61 above, at 288.

Richard A. Posner, Public Intellectuals: A Study of Decline 432434, 439 (paperback ed. 2003) (tabs. 5.3e, 5.5e). On the tension between the different genres of literary criticism, see Ronan McDonald, The Death of the Critic 7681 (2007).

Brooks, The Well Wrought Urn: Studies in the Structure of Poetry (1947).

Targoff, John Donne, Body and Soul (2008).

searched, thoughtful, imaginative.66 She argues, contrary to scholars who have regarded Donne as a Neoplatonist who therefore believed that the highest love is purely spiritual (as it was for Plato), that Donne throughout his career believed that body and soul are one and inseparable in love. (That is the theme of "Canonization.") The difference between Brooks's book,and specifically his discussion of Donne's poem, and Targoff 's book is that Brooks, who though a distinguished professor of English at Yale did not have a Ph.D., wrote for a mixed audience-academics, students, the general reader-and he made you want to read Donne, or read more Donne, or reread Donne with greater understanding and enjoyment, whereas Targoff writes for scholars of early modern English literature. Someone else who chances on the book may read it and think well of it, but unless he has esoteric religious or philosophical interests the experience of reading it will not quicken his interest in reading Donne's poetry.

The political correctness movement has convinced a great many academics to sacrifice style to the imperative of avoiding any possible offense. In the case of English departments this means distorting the literary canon by throwing out works of literature that offend modern left-liberal or multicultural sensitivities. On the law side the delegation of judicial opinion writing to law clerks (itself a result in part of the decline of the literary culture and in part of workload pressures) has been matched by the delegation of most brief writing to law firms' most junior lawyers. Writing well is no longer seen as having a professional payoff.

The Funeral Orations in Julius Caesar In chapter 9 we caught glimpses of superb forensic rhetoric in literary works that were not about law at all. The apogee of such rhetoric is Antony's speech at the funeral of Julius Caesar in Act III of Shakespeare's play; it belongs in this chapter because it is less scrupulous than we would expect a judicial opinion to be; effectiveness is pretty much the sole criterion for evaluating lawyers' advocacy.

Antony's oration is preceded by Brutus's, which is elaborately wrought, with careful use of repet.i.tion and ant.i.thesis-as in "Not that I loved Cae 66. I cited her book in chapter 9 in discussing Donne's poem "A Valediction: Forbidding Mourning."

sar less, but that I loved Rome more" (III.2.2122). But its rhetorical structure is so conspicuous that the listener is made immediately aware that he is hearing an oration. That awareness opens an emotional gap between audience and speaker that is widened by the oration's brevity, prose form, and chaste cla.s.sical balance. Brutus-very much in character-forbears to stir the pa.s.sions of the mob. He also fails to elaborate the charge of Caesar's ambition, saying merely "but, as he was ambitious, I slew him" (III.2.2627). (And notice how he buries the charge in a subordinate clause.) This omission will make it easy for Antony to "refute" the charge.

Brutus's speech, while elegant, is maladroit. One clue is that someone in the crowd shouts in response to the speech, "Let him be Caesar" (III.2.50)-showing that he's missed the point. And Brutus fails to stay for Antony's speech, and thus loses the opportunity to rebut him. Legal advocates be warned! An appellant's lawyer must never fail to reserve time for reb.u.t.tal, whether or not he uses it; for if he does not reserve it the appellee's lawyer, knowing there will be no refutation, will have a better chance of getting away with twisting the facts and law in his favor when it is his turn to speak, and so he will be more likely to attempt that.

Antony's speech-much longer than Brutus's, and in verse rather than prose-begins with a double falsehood: "I come to bury Caesar, not to praise him" (III.2.76). He did come to praise Caesar, and not to bury but to resurrect him by loosing his revenging spirit on the conspirators. Antony's rhetorical problem is that as he starts speaking the crowd is still with Brutus. He must win their confidence and undermine Brutus's standing. So right after saying that he will not praise Caesar he complains ever so gently about the unfairness of funeral obsequies in which only the faults of the dead man can be recited (III.2.7779): "The evil that men do lives after them;/The good is oft interred with their bones./So let it be with Caesar." He continues to emphasize his own good faith by a.s.suring the audience that "Brutus is an honorable man." But the repet.i.tion of this formula, mingled with reminders of Caesar's great accomplishments, causes the refrain to become increasingly, and eventually savagely, ironic (III.2.123129): O masters! If I were disposed to stir Your hearts and minds to mutiny and rage, *I should do Brutus wrong, and Ca.s.sius wrong, Who, you all know, are honorable men. I will not do them wrong; I rather choose To wrong the dead, to wrong myself and you, Than I will wrong such honorable men.

By this point "honorable men" has become redefined as "ungrateful traitors"-a good example, by the way, of how context can alter ostensibly plain meaning.

Antony uses suspense to raise the crowd's emotional temperature even higher. He refuses at first to read Caesar's will and instead invites the crowd to gaze on Caesar's wounds. Still using suspense to good rhetorical effect he describes the wounds in loving detail before exhibiting them. By stressing Brutus's ingrat.i.tude to Caesar he makes it seem as if Caesar had died of a broken heart (III.2.182187): For Brutus, as you know, was Caesar's angel. Judge, O you G.o.ds, how dearly Caesar loved him! This was the most unkindest cut of all; For when the n.o.ble Caesar saw him stab, Ingrat.i.tude, more strong than traitors' arms, Quite vanquished him. Then burst his mighty heart.