The University of New Hampshire Law Review Volume 3 Number 2 Pierce Law Review Article 6 May 2005 Ordeal by Trial: Judicial References to the Nightmare World of Franz Kafka Parker B. Potter Jr. Law clerk to the Hon. Steven J. McAuliffe, Chief Judge, United States DistrictJudge for the District of New Hampshire; Adjunct Professor, University of New Hampshire School of Law Follow this and additional works at: https://scholars.unh.edu/unh_lr Part of the Arts and Humanities Commons, and the Law Commons Repository Citation Parker B. Potter, J. , Ordeal by Trial: Judicial References to the Nightmare World of Franz Kafka, 3 Pierce L. Rev. 195 (2005), available at http://scholars.unh.edu/unh_lr/vol3/iss2/6 This Article is brought to you for free and open access by the University of New Hampshire – Franklin Pierce School of Law at University of New Hampshire Scholars' Repository. It has been accepted for inclusion in The University of New Hampshire Law Review by an authorized editor of University of New Hampshire Scholars' Repository. For more information, please contact [email protected]. File: Potter-Macroed Created on: 4/26/2005 12:02:00 PM Last Printed: 5/18/2005 10:50:00 AM Ordeal by Trial: Judicial References to the Nightmare World of Franz Kafka PARKER B. POTTER, JR.∗ Franz Kafka’s novel The Trial is firmly entrenched in the modern con- sciousness as an exemplar of judicial indifference to the most basic rights of citizens to understand the nature of criminal proceedings directed against them. Yet, Kafka was not mentioned in an American judicial opin- ion until forty years after his death in 1924. Since the mid 1970s, however, Kafka’s name has appeared in more than 400 opinions written by Ameri- can state and federal judges. Judges have used Kafka to criticize bureau- cratic absurdity, unfair tribunals of all sorts, and even their own col- leagues on the other side of an appellate decision, and to empathize with litigants. Some judges referring to Kafka have taken great pains to explain their understanding of Kafka and the application of his fiction to the case being decided, while others have exercised considerable creativity, linking Kafka to other literary figures such as George Orwell, using Kafka as a character in their opinions, or seeing the facts of a particular case as be- longing in Kafka’s fictional world. Kafka’s name has such power that at least four lines of cases have coalesced around particularly well-phrased references to Kafka. I. INTRODUCTION Over the last twenty-five years, Franz Kafka’s place in the American judicial canon has undergone a dramatic metamorphosis: once a seldom- cited popgun whose name rarely appeared in judicial opinions, Kafka has become a rhetorical howitzer.1 To date, more than 400 judicial opinions contain references to the celebrated Czech author.2 The first of those opin- ∗ The author is a law clerk to the Hon. Steven J. McAuliffe, Chief Judge, United States District Judge for the District of New Hampshire. Potter is also an Adjunct Professor at Franklin Pierce Law Center in Concord, New Hampshire, from which he holds a J.D. 1. Douglas E. Litowitz, Franz Kafka’s Outsider Jurisprudence, 27 L. & Soc. Inquiry 103, 104 (2002) (citing Christine Bell, Teaching Law as Kafkaesque, in In Tall Stories? Reading Law and Lit- erature 11 (John Morison & Christine Bell eds., Dartmouth Press 1996)) (“Kafka is already safely ensconced in the ‘canon’ of law and literature.”). 2. On March 12, 2004, a Westlaw search of the ALLCASES database using the search term “Kafka!” yielded an astonishing 961 hits. Even after filtering out cases in which the Kafka that trig- gered the hit was an attorney or a party, there remained well over 400 cases in which a writing judge referred to Franz Kafka the Czech author. (As for the Kafka hits not involving the author, in nearly 100 195 File: Potter-Macroed Created on: 4/26/2005 12:02:00 PM Last Printed: 5/18/2005 10:50:00 AM 196 PIERCE LAW REVIEW Vol. 3, No. 2 ions was written in 1963,3 nearly forty years after Kafka’s death, and the tenth did not appear until 1972,4 but after that tentative beginning, judicial interest in Kafka picked up quickly and has continued unabated; since January 1, 2000, more than eighty judicial opinions containing references to Kafka have been issued by federal and state courts in the United States. This article surveys judicial references to Franz Kafka from 1963 to the present. Its basic purpose is to showcase those opinions in which judges have been particularly thoughtful or creative in their invocations of Kafka and his writing. In other words, my focus is more on striking legal writing than on profound legal or literary analysis.5 Thus, this article is like a scoop of tuna salad; I have written the mayonnaise that holds together a generous helping of judicial albacore. In addition to spotlighting sparkling writing, I cannot help but tell a few terrific tales; some of the real-world stories that have inspired judges to turn to Kafka demonstrate the adage that truth can sometimes be stranger than fiction. Part II is a brief introduction to Kafka’s life and literary work, from a legal perspective. Part III reviews the first ten judicial references to Kafka. Part IV examines some of the ways in which judges have referred to Kafka in their opinions. Part V explores four lines of cases, each of which fea- tures the same felicitously phrased reference to Kafka. cases from 1952 through 1982, a party was represented by attorney Anne G. Kafka, first of New York City, later of Mineola, and finally, of Patchogue. The next most prolific Kafka attorney, Gerald A., has been the attorney in a mere twenty-six reported cases.). While a detailed geographical analysis of judicial references to Kafka lies beyond the scope of this article, several trends deserve brief mention. Of the dozens of federal and state courts that have issued opinions containing references to Kafka, none has been more prolific than the California Court of Appeals which has published more than twenty-five Kafka opinions, authored by nearly twenty different justices. The Connecticut Court of Appeals runs a distant second, with an even dozen Kafka opinions, all in a single line of cases (see infra pt. V(C)). The New York Supreme Court checks in next, with eleven Kafka opinions. (However, when considered in sum, the lower courts of New York (the Supreme Court, the Supreme Court Appellate Division, the Family Court, the New York City Civil Court, and the Surrogate’s Court) account for a total of twenty Kafka references). Among state su- preme courts, California is the clear Kafka leader, with ten opinions. On the federal side, the Southern District of New York leads the way, with twenty Kafka opinions, written by nineteen different judges. The District of the District of Columbia is second, with fifteen Kafka opinions by eight judges, fol- lowed by the Northern District of Illinois, with ten Kafka opinions by six judges. (And the Bankruptcy Court for the Northern District of Illinois has contributed another seven Kafka opinions, by only three judges. See infra pt. V(B)). In the Circuits, the D.C. Circuit heads the list with seventeen Kafka opin- ions by twelve judges, followed by the Second Circuit, with sixteen opinions by thirteen judges, and the Ninth Circuit, with fourteen opinions by twelve judges. While it seems understandable that Kafka is big in Washington, New York, and Chicago, it is somewhat surprising, if not alarming, that he has found so much favor in the Golden State. 3. U.S. v. Hughes, 223 F. Supp. 447 (S.D.N.Y. 1963). It is not surprising that the first reported opinion with a reference to Kafka was written by a judge from the Southern District of New York, given that court’s history of prolific Kafka citation. 4. State v. Blake, 495 P.2d 905, 909 (Kan. 1972). 5. For a more analytical view of judicial uses of Kafka, see Scott Finet, Franz Kafka’s Trial as Symbol in Judicial Opinions, 12 Leg. Stud. Forum 23 (1988). File: Potter-Macroed Created on: 4/26/2005 12:02:00 PM Last Printed: 5/18/2005 10:50:00 AM 2005 ORDEAL BY TRIAL 197 II. FROM KAFKA TO KAFKAESQUE Franz Kafka was born in 18836 and was a lifelong resident of Prague,7 where he died of tuberculosis in 1924, one month shy of his forty-first birthday.8 After a brief attempt at studying chemistry at the Royal and Imperial German Karl-Ferdinand University in Prague,9 Kafka switched from chemistry to law, “completed the eight-semester program in due course and received his doctorate in law on June 18, 1906, at the age of twenty-two.”10 After receiving his degree, Kafka accepted a non-legal position with an insurance company,11 and within months, he embarked on a fourteen-year career as “an attorney for the state agency responsible for administering the workers’ compensation scheme in Prague,”12 known as the Workers Accident Insurance Institute for the Kingdom of Bohemia.13 Kafka retired from the Institute in 1922 on disability, and died two years later. 14 While Kafka toiled by day at the Institute, he wrote in the afternoons and evenings, often long into the night.15 He “holds a special fascination for legal scholars because he was a practicing lawyer who often wrote about law and legal systems.”16 Among Kafka’s most important works on legal subjects are his novel, The Trial, and his short story, “In the Penal Colony.”17 The Trial “is the story of the arrest, trial, and execution of Josef K., the chief clerk of a large bank, who never learns the nature of the charges leveled against him nor the identity of the accusatory body.”18 “In the Penal Colony” recounts an explorer’s visit to a tropical penal colony to witness an execution carried out with an apparatus called “the harrow,” which used needles to physically engrave a convicted person’s sentence 19 onto his or her body over the course of twelve hours.