The Shakespeare Conference: SHK 19.0688 Wednesday, 24 December 2008
From: Alan Horn <
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Date: Wednesday, 17 Dec 2008 08:11:00 -0500
Subject: New Yorker Talk of the Town Piece: Retrying Shylock's Case
RETRIAL
by Lizzie Widdicombe
DECEMBER 22, 2008
The other night at the Cardozo School of Law, a group of distinguished
legal minds got together to settle a dispute over a loan default. The
lender wasn't Citibank or Countrywide -- it was Shylock, from
Shakespeare's "The Merchant of Venice." His last trial, English majors
may recall, didn't go so well. (He was publicly humiliated, and was
forced to convert from Judaism to Christianity; the authorities handed
over his estate and half his money to his enemies.) Modern audiences
tend to view his treatment at the hands of the Venetian court as unfair
-- the scholar and critic A. David Moody wrote that "it seems to involve
a reversal of the right order of things" -- and so Richard Weisberg, a
professor of law and literature at Cardozo ("Poethics," "When Lawyers
Write"), decided to give him an appeal.
"Lawyers were one of the first groups, along with theatre directors, to
see Shylock's position," Weisberg, who takes a pro-Shylock reading of
the play, said last week. "Shylock really has the best lines -- there
isn't a lot of argument about that -- but in the nineteenth century a
prominent German legal philosopher, Rudolf von Jhering, was among the
first to argue that he actually had the better legal case." This was an
exhibition hearing (Weisberg arranged a similar one for Melville's Billy
Budd in 2006), but the legal lineup was extremely legit. Hearing the
case: the First Amendment expert Floyd Abrams; Jed S. Rakoff, a federal
district judge in New York; Justice Dianne T. Renwick, of the Appellate
Division of the New York State Supreme Court; the federal appeals-court
judge Richard Posner; the Columbia literature professor Julie Peters;
Bernhard Schlink, the law professor and novelist; and Anthony Julius,
best known as Princess Diana's divorce lawyer.
The appeal was held in the Cardozo moot courtroom, before a sold-out
crowd that seemed to be equal parts lawyers and Shakespeare nuts.
Actors did a CliffsNotes version of the play, focussing on the trial
scene. Quick refresher: Renaissance Venice, a different era in
Judeo-Christian relations. Shylock, a Jewish moneylender, lends three
thousand ducats to the Christian merchant Antonio, so that Antonio's
friend can use it to woo the wealthy Portia. Shylock, who hates Antonio,
demands a "pound of flesh" as collateral. Some things go wrong, and
everyone ends up in court, where Portia, disguised as a doctor of law,
gets Antonio off the hook and gets Shylock charged with attempted
murder. The staging was contemporary: Antonio wore a suit;
Shylock carried a briefcase.
After a short reception -- sushi, wine, California wraps -- the seven
judges took the bench to hear arguments from lawyers for Shylock and
Antonio. They were dressed as if for brunch (sweaters, turtlenecks),
and a few jotted down notes. Michael Braff, a partner at Kaye Scholer,
argued, on Shylock's behalf, that his client should get his money back,
plus interest. (He did not press for "specific performance"-the pound of
flesh that Shylock had been shouting about in the play. "After four
hundred years, my client has had time to reconsider," Braff said.)
Daniel Kornstein, a partner at Kornstein Veisz Wexler & Pollard,
represented Antonio, and he attacked the validity of the pound-of-flesh
agreement. He brandished a detailed brief that he had written, which
compared the agreement to "a tainted C.D.O." and Shylock to a predatory
lender.
"If it please the court," Kornstein said, "this is a case about an
illegal contract."
"What's illegal about it?" Judge Rakoff interrupted. "As you well know,
there is a virtual obesity epidemic in this country, and to remove a
pound of flesh is wholly to the public good."
"Not by a knife wielded by your sworn enemy," Kornstein said. He brought
up Shylock's ulterior motives -- "the deep hatred" he had for Antonio.
"What does that have to do with anything?" Floyd Abrams asked. "Why
should we even consider that in deciding whether to enforce the contract?"
"It adds color," Kornstein said. He went back to the pound of flesh.
"The contract, on its face, contains a clause that is such a penalty
that no civilized society-not even Venice, New York, here -- would
enforce it."
A woman in the audience called out, "They would in Venice, California."
To skip, "Law & Order" style, to the rulings: the judges were split, but
they came out, five to two, in Shylock's favor. Schlink, Rakoff, Abrams,
Peters, and Renwick said that he deserved to be repaid his three
thousand ducats, though they differed on the question of interest.
(Schlink, on the pound of flesh: "It was Antonio's obligation to
deliver," but "our public policy forbids enforcing a contract in a way
that enforcement leads to one party's death.") Posner and Julius voted
to let Antonio keep the money.
Portia, admired by many readers for her "quality of mercy" speech, was
reprimanded by the judges for impersonating a doctor of law. "The trial
was a travesty," Abrams said, of Shakespeare's litigation scene.
"Beautiful sometimes, funny sometimes, and ugly sometimes, but that
judgment is not something that we sitting here today can enforce."
Posner said, "I'm particularly critical of Antonio's conduct. His
failure to insure his cargoes was completely irresponsible." Renwick
said that the whole thing made her think of the rickety deals that got
us into the current financial mess -- "the dangers of going into a
contract with someone who has covert ideas and interests" -- and
suggested that all the parties were at fault. Posner agreed: "This is
one of those cases in which we've just heard very fine lawyers argue the
cases, but the litigants are all disreputable people. This is often
true, particularly in the twenty-first century."
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