Marlowe’s Faustus: Contract As Metaphor?

In Law and Literature: A Misunderstood Relation, Judge Richard Posner writes that "legal matter in most literature on legal themes is peripheral to the meaning and significance of the literature" and that "legal knowledge is often irrelevant to the understanding and enjoyment of literature on legal themes." This is the case, he says, at least of knowledge of "lawyer's law," because it is too temporary and local to be converted into great literature, and because it tends to have only metaphorical value for author and reader. In the same passage, Posner makes an exception for Marlowe's Doctor Faustus, a play about a restless man who sells his soul to the devil for a finite period of infinite power and pleasure. Posner's subsequent discussion of Faustus, however, not only fails to persuade the reader of the importance of the legal aspects of the play, but also closes (contrary to his promise) by consigning the renowned contract with the devil to the role of a "metaphor for commitment." While I am in substantial agreement with Judge Posner on the usually peripheral role of law in literature, I hope here both to strengthen the case for the importance of law in Faustus and to disagree with his decision ultimately to relegate the Faustian contract to merely metaphorical status.

Critics have thoroughly treated questions about Faustus's author, date, and text, plus a variety of Reformation concerns; they have debated over what the play means by hell and spirit; whether the play is tragedy or not, morality, quasi-morality, inverted morality, inverted Pascatian wager, satire, or allegory; and have written impressive histories of the Faust legend. In his introduction to a Marlowe symposium in 1968, Brian Morris explained that the failure there of any of the papers to study Faustus might have been due to the fact that prior efforts had "exhausted invention." Although Morris's comment did not slow production of Faustus scholarship, that scholarship still lacks a study of the sale of Faustus's soul that is sufficiently attentive to its legal aspects, which do illuminate what is permanent, essential, and general. Others' efforts to interpret Faustus's contract, including those of Max Bluestone, Cleanth Brooks, Douglas Cole, Sara Munson Deats, A. L. French, Walter Greg, J. W. Smeed, and Robert West provide only glimpses of its workings.

This is not to suggest that literature's susceptibility to technical legal interpretation determines its quality. The addition of legal themes may make literature more complex, but not necessarily better. In most instances, legal knowledge will not lead a reader to insights that knowledge of a different kind would not. Faustus, however, is outside this general rule. A lawyer's reading of the complex relations between Faustus, Lucifer, and his agent Mephostophilis makes the play more expressive in that the application of legal knowledge allows us to see more clearly that the contract celebrates the assertion of self against servitude to God. Such an inverted, unorthodox, or blasphemous reading of Faustus presupposes the existence of devils and of hell, a commodifiable soul, and an enforceable scheme of contract remedies. To reject these presuppositions, or to view the contractual relations solely as metaphorical, makes the contract needlessly lengthy and distracting, and the play comparatively uninteresting.

"I Quit This Court.": Is Justice Denied in Arthur Miller’s The Crucible?

"I denounce these proceedings, I quit this court." Thus, at the end of Act Three, the Reverend John Hale punctuates the painful climax of The Crucible, Arthur Miller's memorable play about the Salem witch trials. And who in the audience would fault Hale's condemnation? Denied fair judgment, protagonist John Proctor has fallen the court's latest victim in a witch hunt that has already claimed Proctor's wife, his friends, and his neighbors. Proctor and the others, none of them witches, will hang with Salem's approval and at its behest on the basis of "spectral evidence" produced by frightened children and a vengeful young woman. The accusers, in turn, have been spurred to their ruinous false charges by a rapacious, petty, and vindictive citizenry. The morally guilty – judge Danforth, Abigail Williams, Reverend Parris and the rest – seem to have triumphed. Proctor, his wife Elizabeth, Rebecca Nurse, and seventeen others, all legally guiltless in the eyes of the audience, will perish. Hale is correct to recoil, and surely the audience is correct to empathize with such a response to brutal inequity.

The unhappy judgment visited upon Proctor and his fellow victims has prompted several critics to view the play as an icy commentary on a flagrantly unjust legal system. Leonard Moss, focusing on the play's trial scene, characterizes the proceedings as "an unjust trial of a just man." Benjamin Nelson, contrasting The Crucible's trial scene with that appearing in Bernard Shaw's St. Joan, notes that Miller's exposition of Salem justice fully eradicates any line that may be drawn between reason and lunacy. Others point to the "twisted logic" of the legal proceedings the play depicts and to its portrayal of an "irrational" exercise of authority.

But such reactions clearly miss the mark if we are to read The Crucible as a tragedy. Proctor is far more the victim of his own inaction and pride than he is of a "trial without sense." To regard him as a victim of legal injustice renders him a pathetic, as opposed to a tragic, figure. And the proceedings and legal method that Miller present teach us very little about formal injustice.

This Article proposes a novel reading of The Crucible as a commentary on the law. I suggest that to read Miller's play as an indictment of the legal process is to read it wrongly. My thesis is that the legal decisions depicted in The Crucible, however monumentally unfair and unwelcomed, are not necessarily unjust. Rather, from the standpoint of legal positivism, one can regard them as almost compelled. They result from the legitimacy Miller's Satemites attach to their system of law and from the straightforward deductive application of accepted norms to adduced facts," even facts of the spectral variety.

My goal is to demonstrate that the best lessons one learns from The Crucible have little to do with bad law or law badly applied. Instead, as in all great tragedies, the best lessons flow from viewing a heroic figure confronting, and then conquering, the feebly understood self. I have divided this Article into two parts. In Section I, I present a synopsis of the play's plot. I have decided to review the entire story line rather than to focus only on scenes of legal interest because such scenes are best understood within the context of the play's entire setting and development. Section II implicates two tasks. First, I offer a description of a construct of legal reasoning that I believe is best suited for understanding the legal decision making depicted in the play. Second, with this construct in mind, I analyze the decision making in hopes of offering a sensible and proper interpretation.

Comment: The Emerging Fixed Cramdown Rate Regime: A Market-Driven Argument for Effective Fixed Rates in Bankruptcy Cramdown

Chapter 11 of the Bankruptcy Code (the Code) is a delicate statutory dance that balances an effort to resuscitate the debtor corporation against a desire to protect the interests of its creditors. In the ideal chapter 11 world, all concerned parties would unanimously approve reorganization plans. However, a system that depended upon unanimous approval would allow any individual creditor to hold a reorganization plan hostage and either block the reorganization or extort a fee for its approval. At a minimum, such a system would result in increased bargaining costs, and at worst it would create bargaining failures that would prevent efficient reorganizations. The Code provides a protection against this sort of behavior by allowing the court, under certain circumstances, to "cramdown" a reorganization plan on unwilling creditors.

These cramdown proceedings raise an important question: when courts cramdown a reorganization plan, what interest rate should they impose on secured creditors? Courts have largely taken a discretionary approach to this problem. They have employed several related methodologies to gauge the correct interest rate for each particular fact pattern before them.

One advantage of this discretionary approach is that it allows courts to more accurately match cramdown interest rates to the risks associated with particular debtors. To the extent that secured creditors are "innocents" in the cramdown process, this accuracy provides the most equitable result because it compensates secured creditors for the risks they incur by continuing to hold a claim against the reorganized firm. However, this accuracy comes at a price. The discretionary approach requires a case-by-case fact inquiry which can be costly and time-consuming. Furthermore, under this approach, when ex ante creditors and debtors negotiate a loan, they face significant uncertainty about the potential costs of bankruptcy and reorganization.

This Comment examines the advantages and disadvantages of various discretionary approaches courts have adopted. It will argue that courts should determine cramdown rates with an alternative rules-based approach. After courts satisfy the basic requirements of the statutory language, they can calculate cramdown rates by focusing on ex ante effects rather than on a search for case-by-case accuracy. This approach implies that the cramdown rate should be fixed or linked to a particular predictable standard (e.g., the contract, prime, or treasury rate). While the proposed approach may be less accurate at a case-by-case level, this Comment will argue that a predictable cramdown interest rate allows parties to adjust their contracts ex ante to reflect the risks and costs of a cramdown. Thus, a perfectly or highly predictable cramdown interest rate may yield results similarly equitable to those achieved under a discretionary approach. Further, this rule-based approach is less costly and time-consuming than a case-by-case inquiry. This Comment concludes by examining the likely consequences, positive and negative, of a shift by bankruptcy courts to such a rule-based approach and the factors that should drive the choice of the particular fixed rate.

Comment: Inconsistent Verdicts, Issue Preclusion, and Settlement in the Presence of Judicial Bias

This Comment examines the effects of offensive, non-mutual issue preclusion in the presence of judicial bias. If a litigant has litigated an issue and lost, issue preclusion permits a later court to use the prior judgment to preclude the litigant from relitigating the issue. Courts may treat that issue as conclusively established against the litigant in future litigation.

Issue preclusion prevents courts and litigants from wasting time and money considering issues that have already been litigated and reduces the possibility of inconsistent verdicts, which create considerable embarrassment for the legal system. But issue preclusion is not without costs. One possible casualty is accuracy. Issue preclusion may enhance the risk associated with a lawsuit by possibly preserving an anomalous judgment or by making a compromise verdict the basis of extensive liability in subsequent cases.

Traditionally, under the rule of mutuality, courts only applied issue preclusion in cases in which both parties had litigated in the previous suit. However, federal courts now allow non-mutual issue preclusion. Under non-mutual issue preclusion, a court treats an issue as conclusively established even though only one of the litigants was a party to the prior litigation. Thus, non-mutual issue preclusion requires a party that expects to litigate an issue more than once to consider not just the costs of a judgment in the present case, but also the effects of the judgment on all future suits involving the same issue. Federal courts allow non-mutual issue preclusion to be used both defensively and offensively. Under defensive, non-mutual issue preclusion, when a plaintiff has previously litigated an issue and lost, courts permit the defendant to use the prior judgment defensively by treating the issue as established conclusively against future plaintiffs. Under offensive, non-mutual issue preclusion, when a defendant has previously litigated an issue and lost, courts permit new plaintiffs to use the prior judgment offensively, and they treat the issue as established conclusively against the defendant. Therefore, under offensive, non-mutual issue preclusion, if a defendant loses a case which turns on an issue that will be determinative in future cases, the defendant may be liable for the harms suffered by all future plaintiffs. This Comment focuses on offensive, non-mutual issue preclusion. Offensive, non-mutual issue preclusion is generally seen as more controversial than defensive, non-mutual issue preclusion because it may increase litigation and result in unfairness to a defendant.

The Supreme Court's decision in Parklane Hosiery Co. v Shore permitted offensive, non-mutual issue preclusion, but placed important limits on its use." Commentators have failed to consider carefully the effect of Parklane's limitations." Furthermore, these commentators have failed to consider seriously the effects of issue preclusion in the presence of judicial bias." I address these deficiencies by examining one of the important limitations that Parklane places on offensive, non-mutual issue preclusion. Parklane held that courts should not apply issue preclusion when prior verdicts are "inconsistent" with one another. I will examine the effects of different interpretations of the "inconsistent" verdicts limitation. In particular, I will examine the effects of this limitation in the presence of judicial bias-when plaintiffs share a common issue but do not have the same chance of prevailing on that issue.

I conclude that issue preclusion's impact on plaintiffs' and defendants' desire to settle or litigate depends on how courts interpret the "inconsistent" verdicts limitation. If the court in one prior case held for the defendant, but another court in a similar case held for the plaintiff, a subsequent court might or might not determine that the verdicts are inconsistent and so might or might not refuse to use the second decision to preclude the defendant from arguing an issue. In either case the defendant's expected liability would be greater than if offensive, non-mutual issue preclusion were not permitted. However, the increase in a defendant's expected liability due to offensive, non- mutual issue preclusion will be reduced if courts interpret "inconsistent" so that one verdict for a defendant substantially reduces the chance that the defendant will be precluded from arguing an issue if a subsequent plaintiff wins.

I also demonstrate that the "inconsistent" verdicts limitation heightens the effect of any bias in the judicial system. The limitation creates an incentive for defendants to settle with plaintiffs who have an above-average probability of victory, and it reduces the incentive to settle with plaintiffs who have a very low relative probability of victory. As a result, issue preclusion helps those plaintiffs who benefit from discrimination and may hurt those plaintiffs who suffer most from discrimination.

In Section 1, I discuss the initial abandonment of mutuality and the importance of a party's "full and fair opportunity to litigate." In Section II, I discuss the Supreme Court's "inconsistent" verdicts limitation and how the lower courts have interpreted the limitation. In Section III, I present a model for evaluating the effects of issue preclusion.

I explain my basic conclusions in a number of different ways. In Section IV, I present the analysis in verbal form and explain the intuition. In Section V, I present a numerical example to provide a sense of the magnitude of the effects. In Section VI, I present the results algebraically to explain the intuition in yet another medium. Readers who find the notation of this Comment cumbersome should be able to grasp the central themes without reading Section VI.

Comment: American Indian Gaming Enterprises and Tribal Membership: Race, Exclusivity, and a Perilous Future

Indian tribes today face a fundamental, largely unrecognized dilemma. On the one hand, they must control population growth to apportion the benefits of gaming revenue to deserving tribal members and thereby sustain reservation economic development. A strict blood quantum requirement for tribal membership offers a simple, efficient way of doing this. On the other hand, if tribes continue to abide by current blood quantum membership requirements, they face two equally bleak prospects: shrinking population and political bases and stricter federal court or congressional scrutiny of tribal laws.

This Comment will seek to explain and resolve this dilemma. Section I introduces the scope of tribal gaming enterprises and describes their use as a means of economic development on reservations. Section II describes the dilemma posed by such economic development and the ironic reinforcement it gives to racial conceptions of Indian identity. Section III examines anthropological and historical studies of Indian identity in hopes of better understanding why most Americans, including many American Indians, currently view Indian identity solely in racial terms.

In Section IV, this Comment will recommend that Indian tribes act for themselves to resolve the dilemma presented by gaming success by adopting inclusive, cultural standards for tribal membership. The success of tribal gaming enterprises provides tribes with a historic opportunity to reject racial conceptions of Indian identity and instead establish independent perceptions of tribal history, culture, and ethnicity. Gaming tribes will, however, have no incentive to adopt such culture-based membership requirements unless those requirements can duplicate the efficiency of blood quantum tests. Durational residency requirements – as part of larger culture-based tribal membership standards – can duplicate the efficiency of blood quantum tests and solve the gaming dilemma. Only by adopting such membership requirements can tribes hope to sustain economic development by means of gaming revenue while also enlarging Indian political power and avoiding federal legal encroachments on tribal sovereignty.