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NY Times, TVWeek

Can a Fictional Character Be Used to Set a Legal Precedent? The U.S. Supreme Court Will Decide

Aug 22, 2016  •  Post A Comment

In a case focusing on a novel that has been adapted into feature films, TV movies, stage productions and a radio play, the U.S. Supreme Court will examine whether a fictional character can set a legal precedent.

The novel is John Steinbeck’s “Of Mice and Men,” published in 1937. The novel features a character, Lennie Small, who has limited mental abilities.

“In 2002, the Supreme Court barred the execution of the intellectually disabled. But it gave states a lot of leeway to decide just who was, in the language of the day, ‘mentally retarded,'” The New York Times reports. “Texas took a creative approach, adopting what one judge there later called ‘the Lennie standard.’”

The report notes: “The Lennie in question is Lennie Small, the dim, hulking farmhand in John Steinbeck’s ‘Of Mice and Men.’”

Lennie has been played by, among others, Lon Chaney Jr., in a 1939 theatrical adaptation, Randy Quaid, in a 1981 TV movie, and John Malkovich, in a 1992 feature film.

The Times notes that even though Lennie is fictional, Judge Cathy Cochran of the Texas Court of Criminal Appeals wrote in 2004 that the character should be a legal touchstone.

“Most Texas citizens might agree that Steinbeck’s Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt” from the death penalty, Cochran wrote. “But, does a consensus of Texas citizens agree that all persons who might legitimately qualify for assistance under the social services definition of mental retardation be exempt from an otherwise constitutional penalty?”

The Times adds: “This fall, in Moore v. Texas, No. 15-797, the United States Supreme Court will consider whether the Court of Criminal Appeals, Texas’ highest court for criminal matters, went astray last year in upholding the death sentence of Bobby J. Moore based in part on outdated medical criteria and in part on the Lennie standard.”

of mice and men 1939 movie poster

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