Something Else: More Shakespeare and the Law

By Daniel J. Kornstein

Something Else is a sequel to Daniel J. Kornstein's classic 1994 study of Shakespeare and the law Kill All the Lawyers? The author found he had more something else to say on the subject. Written in the same crisp, lucid, and witty style as his previous critically acclaimed and highly influential book on Shakespeare, Kornstein's new book continues his illuminating, original, and entertaining explorations of the Bard and the law.

In Something Else Kornstein probes new Shakespeare territory with insight and eloquence, but without academic. He analyzes from a fresh perspective, and devastatingly picks apart, Mark Twain's "evidence" that Shakespeare could not have written the plays because he was not a lawyer. Kornstein submits for the reader's verdict moot court briefs based on Hamlet and The Merchant of Venice. A timely chapter on Coriolanus shows how that rarely performed play explains much about democracy and elections in America. The author's discussion of Henry V and the law of war will rivet everyone's attention with its relevance to recent history and current events.

Other chapters look at why Shakespeare never mentions Magna Carta in King John, comment on the many crooked judges in Shakespeare's plays, untangles The Comedy of Errors, tries to solve the mystery of Richard III and the princes in the Tower. In a whimsical final chapter, the author imagines a conversation

• Language: English
• Publisher: AuthorHouse
• Release date: Jan 10, 2012
• ISBN: 9781463446239

Daniel J. Kornstein

Daniel J. Kornstein practices law in New York City. A graduate of Yale Law School, he has published several other books on legal subjects, and his writings have been cited by a number of courts, including the U.S. Supreme Court.

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© 2012 Daniel J. Kornstein. All rights reserved.

No part of this book may be reproduced, stored in a retrieval system, or transmitted by any means without the written permission of the author.

Published by AuthorHouse 1/5/2012

ISBN: 978-1-4634-4623-9 (e)

ISBN: 978-1-4634-4624-6 (dj)

ISBN: 978-1-4634-4625-3 (sc)

Library of Congress Control Number: 2011914208

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Contents

PREFACE

CHAPTER 1

CHAPTER 2

CHAPTER 3

CHAPTER 4

CHAPTER 5

CHAPTER 6

CHAPTER 7

CHAPTER 8

CHAPTER 9

CHAPTER 10

BY THE SAME AUTHOR

The Music of the Laws

Thinking Under Fire

Kill All the Lawyers?

The Elsinore Appeal (co-author)

Partial Verdicts

Unlikely Muse

FOR MY GRANDSON

CHASE SUMNER RIDDER

Tarry a little. There is something else… .

The law hath yet another hold on you.

The Merchant of Venice, 4.1.302, 344.

PREFACE

We are never done with Shakespeare. He is so large and deep, so subtle and profound, so full of insight and understanding, that we keep making new discoveries and having new thoughts about him and his plays. Shakespeare burrows into our conscious and subconscious, rattling around in there for a while, until some new connection is made, until a new nerve synapse is created, and we have an idea that had not come to us before. Just when we think we have said all we have to say about Shakespeare, we get another thought and find something else to say. I learned that lesson for myself, and it led to this book.

This volume is a sequel of sorts to a book of mine published by Princeton University Press in 1994 about Shakespeare and the law. For the title of that earlier book, I drew on the most famous line in Henry VI Part 2, and, adding a crucial question mark, called it Kill All the Lawyers? and subtitled it Shakespeare’s Legal Appeal. In that book I discussed a number of Shakespeare’s plays and explored how they might be interpreted under our contemporary American law. I thought I had put into Kill All the Lawyers? all of my ideas on the subject. I thought I had exhausted the topic. I was wrong.

I had more, I had something else, to say. As the years passed since 1994, I found other issues that intrigued me about Shakespeare and the law. I could not let go of the topic, not completely. It kept on fermenting in my mind. My day job as a full-time practicing lawyer continued to bring home to me the relevance of Shakespeare’s plays to my profession. And watching the plays from time to time vividly demonstrated to me the legal significance of a line or a scene. In short, I was not yet done with Shakespeare and the law.

This little book is the result. It is the something else I had to say; hence the title. It is a grab-bag of comments on various legal aspects of the Bard’s plays. What ties them together, however, what unifies them, is the theme of Shakespeare and the law.

Exploring Shakespeare and the law is extremely useful and beneficial. I am struck, writes NYU law professor Kenji Yoshino in his excellent 2011 book A Thousand Times More Fair: What Shakespeare’s Plays Teach Us About Justice, by how many contemporary issues of justice Shakespeare does illuminate. I completely agree. I also agree with Professor Yoshino that Shakespeare’s work stimulates conversation about justice that might not otherwise be possible. That is why I had to write the book you are holding in your hands.

The first chapter considers, from the point of view of legal proof, what Mark Twain has to say about who wrote Shakespeare’s plays. The next two chapters consist of moot court briefs based on Hamlet and The Merchant of Venice. Then comes an essay on Coriolanus as a study in democratic theory. After that follow chapters on The Comedy of Errors; the unethical judges in Shakespeare’s plays; Shakespeare’s views, as glimpsed in Henry V, on the law of war; and Richard III and the mystery of the princes in the Tower. The final chapter is an imaginary encounter between Shakespeare and a modern literary agent descended from Christopher Marlowe.

As Portia tells Shylock, I now say to you: Tarry a little. There is something else… . The law hath yet another hold on you.

Some portions of this book originally appeared in somewhat different form in the Tennessee Law Review (chapter 1) and the New York Law Journal (chapters 2 [briefs for Hamlet], 3 [briefs for Shylock], 4-7 and 9).

CHAPTER 1

The Never-Ending Riverboat Debate

(Or Mark Twain on the Shakespeare Authorship Question)

Shakespeare stands on a pedestal high above world literature. He bestrides English literature like a colossus. So exalted is his status that it makes him a prime target, an easy mark, for contrarians or those seeking to make their own reputation by challenging the champion. As a result, some people want to knock Shakespeare off his lofty perch, and so they ask barbed questions.

One such question is: Who wrote Shakespeare? It is an old question, centuries old in fact, a vexing, perplexing, and nagging question, and one that never dies.

Probing further, interested people want to know: Was the unschooled country bumpkin from Stratford the true author of all those wonderful plays, sonnets, and poems filled with scholarly references, intimate knowledge of human nature, and far-reaching experience of the world? Or was it someone else, whose education, professional training, and life experience were a more probable and fertile soil for such literary works to grow in? These intriguing inquiries form the core of the Shakespeare authorship debate.

The authorship debate continues unabated and with great energy even to this day. Almost four hundred years after Shakespeare’s death in 1616, we still wonder and argue over the authorship question. The public controversy over the 2011 film Anonymous illustrates the point. The premise of that film is that the plays and poems traditionally attributed to William Shakespeare are actually the work of Edward de Vere, seventeenth Earl of Oxford. Reaction to the movie was swift. Almost immediately, the film’s premise was vigorously challenged. A hoary form of literary birtherism, fiction that wants to confuse itself with fact, were just two of the more colorful criticisms published in the New York Times. The one I liked best called the movie a vulgar prank on the English literary tradition, a travesty of British history and a brutal insult to the human imagination.

But despite such dismissive comments, the controversy is very much alive. Experts still write erudite books on the subject, the most notable of recent ones being James Shapiro’s excellent book Contested Will: Who Wrote Shakespeare? and Stephen Greenblatt’s Will in the World. Even learned justices of the U.S. Supreme Court take sides, publishing their extracurricular opinions in law review articles, speeches, and moot courts. Although I am an unrepentant, unreconstructed Stratfordian, some people whose judgment I respect favor the Oxfordian thesis. In short, many of us do not seem to tire of the arguments pro and con, even if — or precisely because — there is no definitive, universally accepted, answer. The quest itself fascinates.

Such a long-running, inconclusive debate might benefit from a creative, innovative approach. Suppose we let our minds relax a little bit and try to come up with a different entry point into the authorship controversy. Suppose we search for a happy metaphor. After all, a powerful metaphor can excite the imagination; a vivid new image can leave an indelible imprint on the mind. It stays there and supplies a fresh way of thinking about a stale subject.

We have at hand just such a happy, powerful image for the Shakespeare authorship debate. And we can thank the celebrated author of Tom Sawyer and Huckleberry Finn for it. It is a charming and stimulating image drawn from life on the Mississippi River that Mark Twain wrote so much about. It is an image that contemplates a giant of American literature commenting on the giant of English literature.

A NEW METAPHOR

Imagine a twist on the famous episode of Huck Finn and his friend the runaway slave Jim rafting down the Mississippi. Conjure instead a small boat moving forever along what Twain called a monstrous big river, so big it seems to have neither beginning nor end. Call it, because it is everlasting, the River of Time. The boat has only two people on it, ordinary people without much formal education (like Huck and Jim), but (unlike Huck and Jim) each with a deep, abiding, amateur’s love of Shakespeare. As the boat floats on the great River of Time, the two riders take turns reading Shakespeare’s plays aloud to each other. And they endlessly talk and vigorously argue about who wrote those plays.

This never-ending riverboat debate is a good, memorable, Mark Twain-inspired image for considering the controversy over who wrote Shakespeare. The source of this helpful metaphor is worth investigating.

The Mississippi River was where, one hundred and fifty years ago, a young Mark Twain had wonderful adventures and piloted steamboats. Up and down that mighty river, Twain tells us, he discussed, and discussed, and discussed, and disputed and disputed and disputed the Shakespeare authorship question. For the next fifty years, up until his death, the creator of Huckleberry Finn and Tom Sawyer was interested in the Shakespeare authorship debate. Twain took a controversial stand in that debate, drawing on Shakespeare’s legal references to conclude that the author was not the uneducated, contemporaneously uncelebrated Man from Stratford, but instead a prominent, practicing London lawyer with a literary bent, probably Francis Bacon.

Yet Twain’s contribution to the debate has been neglected for far too long. His contribution is important despite the doubt he unintentionally cast on his own conclusion about Shakespeare’s identity. In fact, Twain’s doubt should become an instructive part of the debate. In short, trying to solve the evidentiary puzzle of who wrote Shakespeare requires at least a nodding acquaintance with Mark Twain’s testimony, and Twain’s evidence deserves to be carefully weighed in the balance.

REVERSING THE PREMISE OF INTELLECTUAL BIOGRAPHY

The premise of intellectual biography is that the life illuminates the work, but this premise is not universally accepted. It is itself actually rather controversial. One school of literary thought, which lists Flaubert, Proust, and the New Critics among its members, thinks that biography is irrelevant when interpreting the literary work. Instead, they say, the work yields its meaning only through close reading. According to this school, only the author’s work counts, not the author. The author must make posterity believe that he or she never existed.

A competing school disagrees and finds it difficult to separate the work from the life. After all, a writer writes out of his or her whole life experience, and the world wants to know how poems, stories, paintings, music, and great plays come into being. Sainte-Beuve, the nineteenth-century French critic, famously used a biographical method that disassociated the author from his or her work. If the large number and great length of today’s literary biographies are any guide, readers want to link books to their authors by penetrating authors’ lives and knowing as much about them as possible.

The pendulum swings back and forth between critical focus on the work and the life. To paraphrase the first two lines of Yeats’ poem The Choice, sometimes literary critics are forced to choose the life or the work. Whatever the utility or eventual outcome of this controversy, each side in the debate presumes that one knows whom the author is — that the author is in fact identifiable. In the case of Shakespeare’s works, however, this is a problem. We have the works — the plays and poems — attributed by tradition to one Shakespeare. But — aye, there’s the rub — we are, if we are candid with ourselves, not absolutely sure who Shakespeare really was. We simply do not know for certain who wrote Shakespeare’s works.

This uncertainty over Shakespeare’s true identity has fueled the authorship debate — a centuries-old controversy of varying interest and intensity. Some people, de facto followers of the New Critics, do not care that much who wrote the Shakespeare plays. For them, the works themselves are all that matter, and echoing the Bard, say in effect that an author by any other name would write as sweet. However, for many others — those who believe in the premise of intellectual biography — the authorship debate is crucial, endlessly fascinating, and bears heavily on the meaning of the works themselves. We will know the plays better and understand and appreciate them more, some say, if we know about the life of the person who wrote them. Knowledge of events