The Essential Kafka: Definition, Distention, and Dilution in Legal Rhetoric

Abstract

This Article presents a case-study evaluation of rhetorical invocations of Franz Kafka as they appear in American legal arguments. Drawn from an analysis of 1,069 legal documents (rulings, briefs, and commentary), the data indicate that 90% of appeals to Kafka arise in one of three principal rhetorical modes: “authority,” “absurdity,” and “predicaments,” constituting what we might think of as the “essential” Kafka. Within these modes, however, certain allusions to Kafka demonstrate a phenomenon that I refer to as “distention,” particularly as invocations exhibit one or more basic tendencies toward expansion, enervation, discordance, and conflation in meaning, ultimately tending to dilute the rhetorical maneuver of the precision and integrity it might otherwise reserve—and deserve. As we will see though, the implications of this case study in the (d)evolution of a legal rhetorical device extend well beyond the instant concern and invite us to think more broadly and seriously about the significance of definitions in legal arguments, especially as they shape the central policy and political questions of our day (e.g. the practices sustaining the “War on Terror”).