Shylock’s appeal: illegal contracts, specific performance and damages

Cover of New Yorker magazine, Dec 22 & 29, 2008.I learn from this week’s New Yorker (cover, left) that the Cardozo School of Law of New York’s Yeshiva University that Shylock was finally able to appeal the judgment rendered against him in Shakespeare’s The Merchant of Venice (advance notice | poster (pdf) | YU news story | photos).

A Jewish moneylender in Renaissance Venice, Shylock had made a loan to Antonio, in default of which he would be entitled to a pound of Antonio’s flesh. Antonio defaulted, and Shylock sought specific performance. But, after Portia’s advocacy on behalf of Antonio, the Duke of Venice ruled that Shylock was entitled to a pound of flesh but not a drop of blood, and refused both specific performance and damages in lieu. More than that, for seeking to take Antonio’s life, Shylock was disgraced and forced to convert to Christianity, and his property was forfeit (though half was ultimately settled upon his daughter Jessica, who had converted to Christianity and eloped with her suitor, Lorenzo).

A classic courtroom drama, the trial has long been a staple of the Law and Literature movement (two of my favourite books of essays on this fascinating branch of jurisprudence are Freeman and Lewis (eds) Law and Literature (Current Legal Issues, vol 2, OUP, 1999); and Hanafin, Gearey and Brooker (eds) Law and Literature (Blackwell, 2004)); a full volume of Cardoza Studies in Law and Literature has been devoted to the intricacies of Shylock v Antonio (1596-1598) (and I’ve even – cheesily – quoted some of its famous lines elsewhere on this blog). Now, more than 410 years later, an appeal by Shylock against the Duke’s judgment in Antonio’s favour was organised by Richard Weisberg, a doyen of the Law and Literature movement, and recent author of “The Concept and Performance of ‘The Code’ in ‘The Merchant of Venice'” (SSRN).

The appeal was heard by a stellar panel of judges made of up of Floyd Abrams, Anthony Julius, Julie Peters, Richard Posner, Jed Rakoff, Dianne Renwick and Bernhard Schlink. Michael Braff, for the appellant, argued that Shylock was entitled to repayment of the loan, plus interest; but he no longer sought specific performance. In reply, Daniel Kornstein, for the respondent, argued that Antonio was not bound by his agreement with Shylock on the grounds that it was tainted by illegality. Although the majority – Abrams, Peters, Rakoff, Renwick and Schlink – held that public policy forbids enforcing a contract in a way that enforcement leads to one party’s death, they nevertheless allowed Shylock’s appeal and ordered repayment of the loan. Posner (a noted critic of the Law and Literature movement) and Julius – unswayed either by Portia’s advocacy in the court below or by Braff’s arguments on appeal – dissented.

This will make for an entertaining discussion in class when we come to consider illegal contracts!

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