Law Office Management
Apr. 2, 2011
Shakespeare in Law
Ben Pesta reviews A Thousand Times More Fair: What Shakespeare Teaches Us About Justice.
Although generations of lawyers have been Shakespeare fans, Shakespeare seems to have been no fan of lawyers. He set Hamlet, at Ophelia's grave, to mock: "Why might not that be the skull of a lawyer? Where be his quiddits now, his quillets, his cases, his tenures and his tricks?" He named the Lord Chief Justice "Shallow" in Henry IV, Part 2, and sent him to Fleet prison with the rascal Falstaff. And he coined the first lawyer joke in Henry VI, Part 2, as Dick the Butcher's prescription for establishing the ideal state: "The first thing we do, let's kill all the lawyers." In A Thousand Times More Fair, author Kenji Yoshino, a constitutional law professor at New York University, examines nine plays that depict (sometimes metaphorically) the legal process, drawing parallels between the plays and contemporary issues of law and justice. Yoshino argues that The Merchant of Venice (his book's title comes from Portia's speech to Bassanio) can be read as an indictment of sophistry, and he compares Portia's skill to President Bill Clinton's evasions ("It depends on what the meaning of the word is is") during l'affaire Lewinski. Yoshino is tougher on poor Portia than almost any other scholar. Most think Portia is an exemplary advocate. Bassanio is certainly in for an interesting life, married to a woman who can think and talk rings around him. Yoshino reads Measure for Measure, the other obviously "legal" play, as an argument for proportionality in the judicial process. The exemplary character here is Escalus, who finds a balance, as his name implies, between Vienna's draconian laws and Angelo's lax enforcement and mechanical application of judicial restraint ("It is the law, not I, condemn your brother"). The author hears echoes in Justice Sonia Sotomayor's confirmation hearings, with their tension between President Obama's announced "empathy" criterion and the conservative view that (in Chief Justice Roberts's words), "Judges are like umpires. Um-pires don't make the rules; they apply them." Yoshino, a strong Sotomayor supporter, doesn't believe this, and he doesn't believe that Roberts does either. Yoshino argues that Titus Andronicus, with its eleven murders, a rape, a premature burial, and two decapitations (if Quentin Tarantino had been Shakespeare, he would have written this play), exemplifies the tension between the rule of law and the blood feud, to which Yoshino likens the wars in Afghanistan and Iraq. Othello recalls the evolution of the fact-finding process, from trial by battle, ordeal, and compurgation to the modern jury. Macbeth reminds us that "[j]ustice is not a natural phenomenon but a fragile human achievement;" King Lear, of the "unavoidable injustice of death." A Thousand Times More Fair bears impeccably pedigreed back-cover blurbs, from both the worlds of law (Stevens, J. and Judge Richard A. Posner) and of Shakespeare scholarship (Harold Bloom and Stephen Greenblatt). Even readers who might debate some of its analogies will agree that it is a remarkably imaginative and scholarly work. It reminds us that in Shakespeare's time, like our own, the law and ideas of justice were in flux. Some scholars once believed that Shakespeare had done time as a law clerk during his "lost years." That would certainly account for his cynicism about the legal process, but his work actually contains no greater proportion of legal references than that of his contemporaries. The Elizabethan-Jacobean period was a litigious era. Then, as now, celebrity trials and big-time litigation were news. Shakespeare was a man for all time, but he was also a man most firmly placed in his own. Ben Pesta is a white collar and criminal defense lawyer in Century City. His writing has appeared in Esquire, Playboy, Rolling Stone, the Los Angeles Times, and the American Bar Association Journal.
Kari Machado
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