The Importance of Choosing Literary References Wisely
posted by Daniel Solove
Over at WSJ blog, Dan Slater writes about a Fair Housing Act case involving a condo association that prohibited all objects in hallways. A Jewish resident challenged the rule under the Fair Housing Act because his mezuzah was removed, claiming the rule discriminated against his religion. The 7th Circuit held for the condo association, concluding that the rule was “neutral with respect to religion” since it applied to all objects.
In dissent, Judge Wood noted a very unwise use of a Shakespearian reference in the Defendants’ brief:
Indeed, especially given the fact that the question in this case is whether a trier of fact could conclude that the defendants were intentionally discriminating against the Blochs, it was shocking to read at the end of their supplemental brief that “[t]hroughout this matter, Plaintiffs have been trying to get their ‘pound of flesh’ from Defendants due to personal animosity between Lynne and Frischholz.” Perhaps the defendants have not read Shakespeare’s Merchant of Venice lately and thus failed to recall that the play is about a bitter Jewish moneylender, Shylock, who agreed to loan funds to a man he loathed (Antonio—who spit on him because he was Jewish) only upon a promise that if the loan was not paid in time, Shylock would be entitled to carve a pound of flesh from Antonio. At the end of the play, after the disguised Portia defeats the contract by pointing out that Shylock is not entitled to shed any blood while he takes his pound of flesh, Shylock is punished by losing half of his lands and being forced to convert to Christianity. This is hardly the reference someone should choose who is trying to show that the stand-off about Hallway Rule 1 was not because of the Blochs’ religion, but rather in spite of it.
July 11, 2008 at 8:03 pm
Posted in: Law and Humanities
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Responses (5)
A.J. Sutter - July 11, 2008 at 10:27 pm
By suggesting that perhaps the Defendants (and their counsel) had not read the play or understood its relevance, despite their having put ‘pound of flesh’ in quotes, sounds like the judge was being way too nice.
reader - July 12, 2008 at 1:43 pm
Give me a break. Most lawyers don’t know the origin of terms like “pound of flesh,” and to suggest that this was somehow intentional, or even merely “unwise,” goes too far.
They put it in quotes because it’s a saying and they were using it in a legal brief. Is everyone supposed to look up the literary or cultural origins of every proverb or saying they use, lest they offend a delicate Shakespeare fan?
another reader - July 12, 2008 at 3:54 pm
Is everyone supposed to look up the literary or cultural origins of every proverb or saying they use, lest they offend a delicate Shakespeare fan?
No. I think there’s a difference between missing context and missing the boat altogether. “Pound of flesh” is a specific reference and means something other than just “an unreasonable demand.” Just as in ordinary writing, it’s best not to use words you don’t know the meaning of (e.g. “penultimate” doesn’t mean “really ultimate,” as some people think), the same goes for literary references.
A.J. Sutter - July 12, 2008 at 10:07 pm
Sadly, I stand corrected. I thought Shakespeare was still read in US high schools; evidently, an introduction to his work was absent from the education of some readers of even this erudite blog.
As “reader” might glean from reading simply the quote from the judge, though, the point isn’t about offending “delicate Shakespeare fan[s],” it’s about an offensive ethnic and religious slur. Again, I’m amazed that this needs pointing out, especially to anyone in or entering the legal field.
Katie - July 15, 2008 at 12:06 am
Most lawyers don’t know the origin of terms like “pound of flesh,”
They don’t? Seriously? Maybe law schools need to look into requiring some sort of pre-law curriculum to ensure that their students – who will use words for a living – have some idea of their connotations.
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