Brooks on Dying Declarations @Princeton

Peter Brooks, Center for Human Values, Princeton University, is publishing Dying Declarations in Fictional Discourse and the Law (Hans J. Lind, ed., New York and London: Routledge, Forthcoming). Here is the abstract.

In Chavez v. Martinez, where a police officer interrogated a badly wounded—blinded and partially paralyzed—suspect undergoing treatment in the emergency room, Justice Kennedy evoked the ancient doctrine of “dying declarations,” which provides an exception to the exclusion of hearsay evidence in the case of words spoken where “the expectation of almost immediate death will remove all temptation to falsehood.” In a context once marked by the fear of eternal damnation, the brink of death was considered to produce the truth. One can find in the Ordinary of Newgate’s Accounts—containing confessions from those about to be hung at Tyburn—material that may both confirm and throw some doubt on the unconstrained truth of the dying declaration. But here I am especially concerned with deathbed scenes in the nineteenthcentury novel as moments of the transmission of truth—or sometimes a kind of cosmic lie. My examples are drawn from Balzac, Dickens, Collins, and Conrad.

Download the essay from SSRN at the link.

The Relevance of Literature to Social Science (and Law)

Dustin A. Zacks, King, Nieves & Zacks, PLLC, has published A Response to Epstein: Honoré De Balzac's Rise and Fall of Cesar Birotteau and Literature's Relevance to Social Science at 36 Whittier Law Review 283 (2015). Here is the abstract.

Richard Epstein has questioned whether the literature is useful to the social sciences. In his 2002 remarks considering George Orwell, Epstein rails against the utility of consulting literary accounts as authority to establish, both factually and scientifically, any specific state of affairs. Rather, he argues that authors tend to overgeneralize from their personal experiences that literary predictiveness is fatally non-falsifiable, and that literature, accordingly, cannot be trusted as a source of authority for lawyers or social scientists. Although several of Epstein’s arguments are well-founded and may be appropriate in regards to certain authors, the works of Honoré de Balzac may disprove the universality of Epstein’s claims. Balzac’s compendium of dozens of novels and short stories known as the Comedie Humaine, documenting every conceivable aspect of life under the French Restoration, provides relevant points of interest to legal scholars, particularly in light of Balzac’s training as a lawyer. Balzac’s tale of a bankrupt merchant, The Rise and Fall of Cesar Birotteau, is a uniquely valuable work to emphasize the value of literature to legal scholars. Birotteau’s encounters with the French bankruptcy process paint a historically accurate picture of the state of French law during the Restoration. Perhaps even more noteworthy than its value as a primer of legal history, though, is Balzac’s precise description of the social and physical effects of debt and bankruptcy. These empirically verified observations in narrative fiction directly contradict Epstein’s insistence that literature should not necessarily be considered accurate, normative, or otherwise relevant to legal theory. This article’s case study of Balzac’s Cesar Birotteau demonstrates the accuracy of his French bankruptcy depictions and of his references to social and physical effects of bankruptcy that have been borne out by empirical literature. Furthermore, Balzac’s dissections of each side of bankruptcy debates foreshadowed questions that scholars continue to raise today. In this manner, Balzac’s forceful novel stands in direct contradiction to Epstein’s arguments that literature cannot, or perhaps should not, be trusted to contribute to legal scholarship and debates.

Download the article from SSRN at the link.