Abstract
In his 1917 essay, “Art as Technique,” the Russian literary theorist and critic Viktor Shklovsky coined the term “defamiliarization.” Shklovsky argued that one purpose of art was to overcome the “deadening effects of habit” by presenting familiar aspects of existence, including social conventions like marriage and property ownership, in unfamiliar ways that would encourage readers to reexamine them. Analogy and displacement were among the methods he cited as a means of disrupting an entrenched perspective. Advocates for legal change often face the challenge of overcoming the judicial “habit” of deferring to prior decisions that favor the status quo. Given the heavy reliance of our legal system on immediate precedent as a basis for decision-making, it is worth considering techniques that artists have used to “shake up” similarly deep-rooted social conventions. This article considers how advocates can use the literary techniques outlined in Shklovsky’s article to shed light on conscious or unconscious biases in the law, or as a means of overcoming adverse precedent. Part I of the article summarizes Shklovsky’s “Art as Technique”; Part II notes some examples from art and literature that illustrate the use of defamiliarization techniques; Part III examines how these techniques have been used to address unfavorable precedent and/or judicial or societal biases in high-profile cases, such as Bowers v. Hardwick, Romer v. Evans, and Atwater v. City of Lago Vista.