Christina Frohock, University of Miami School of Law – Reading Lolita as a Sentencing Memorandum

Classic novels can carry many meanings.

Christina Frohock, professor of legal writing and lecturer in law at the University of Miami School of Law, explores one.

Christina M. Frohock is on the faculty of the University of Miami School of Law, where she teaches Legal Communication and Research Skills.  Her scholarship includes law review articles on habeas corpus, constitutional law, copyright law, military law, wire fraud, witness interviews, federal privilege strategies, and legal fiction.  She is also the author of a book, Small-Town GTMO, that analyzes the legality of the Guantánamo naval station and describes her experiences on the base.  Prior to joining Miami Law, she practiced civil litigation at Sullivan & Cromwell LLP in New York City and at White & Case LLP and Kenny Nachwalter, P.A. in Miami.  She earned her B.A. with Honors in Philosophy from the University of North Carolina, her M.A. in Philosophy from the University of Michigan, and her J.D. magna cum laude from New York University School of Law.

Reading Lolita as a Sentencing Memorandum

Legal fiction is popular, and fiction-writing techniques are a powerful tool in the law.  Lawyers take a page from novelists and focus on identifying a narrative within the law.  A motion to dismiss, for example, might showcase the persuasive power of storytelling.  The story emerges from the law.  Now let’s take a different perspective on legal fiction.  Let’s invert the focus and identify the law within a narrative.

Consider Vladimir Nabokov’s classic novel Lolita, a work of fiction but not obviously of law.   We can read that novel as a prolonged sentencing memorandum.  In criminal law, a defendant facing sentencing may file a memorandum to explain exceptional circumstances justifying leniency.  In Lolita, the narrator Humbert Humbert is a defendant facing trial for raping his stepdaughter Dolores Haze and killing his nemesis Clare Quilty.  Humbert Humbert dies in pretrial detention.  But he leaves behind a prison memoir as an explanation of his crimes and a plea for leniency in court and public opinion—echoing the structure and goal of a criminal defendant’s sentencing memorandum.  In Lolita, the law emerges from the story.  The legal document and the narrative become one, with a distinct point of view in favor of the criminal defendant.

This unity between law and narrative reveals a deep, essential goal shared by both genres: garnering sympathy.  Any notion of law without sympathy thus rings hollow.  And this essential link between law and sympathy shines a new light on the law’s role to promote justice.  Justice must be measured at least partly as an expression of sympathy rather than solely as a cold calculation of costs and benefits.  In the end, reading Lolita as a sentencing memorandum highlights both the “legal” and the “fiction” aspects of “legal fiction” and illuminates the humanity in all criminal sentencing.

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