May 30, 2018

Asses and Idiots and Dickens, Oh, My! @TheNLJ

Marcia Coyle examines the uses of Dickensian quotes in legal opinions in this piece for The National Law Journal, pointing out that Justice Alito's insertion of the phrase "the last is a ass--a idiot in the recently decided Collins v. Virginia is the latest appearance in a series that includes Justice Brennan's use in In re Sawyer, and Justice Stevens' in Califano v. Goldfano. Now Justice Ginsburg argued that case before the Court, by the way.

The phrase is a popular one with the judiciary. I'll cite just two other cases. See Judge Brorby, in dissent in Guidry v. Sheet Metal Workers Nat'l Pension Fund (10th Circuit) (he also cites Sam Ervin, "The rain it raineth on the just/And also on the unjust fella:/But chiefly on the just, because/The unjust steals the just's umbrella." And see Stone v. Essex County Newspapers, Inc (Massachusetts Supreme Judicial Court).  

The question thus arises whether the burden of adducing "clear"evidence on an issue is less than the burden of adducing "clear and convincing" evidence on an issue. If these phrases are not mere rhetoric, then each must set a precise, independent standard. If we hold, as the court apparently does, that one implication of the existence of such precise, independent standards is that juries must be instructed to find facts according to those standards, we raise the spectre of requiring trial judges in defamation cases to instruct juries as to four separate and distinct burdens of proof, falling variously on the plaintiff and defendant. That is to say that since the court today defines "clear and convincing" evidence as that which would satisfy a burden somewhere between those imposed by the ordinary preponderance of the evidence and reasonable doubt standards utilized in civil and criminal cases, and since "clear" evidence is presumably stronger than a preponderance of the evidence but not so strong as "clear and convincing" evidence, then a trial judge must instruct the jury as to the meaning of: (1) "a preponderance" of the evidence, by which most of the facts in issue must be found, (2) "beyond a reasonable doubt," so that the standard can help define other terms, (3) "clear and convincing" evidence, by which malice must be proved, and (4) "clear" evidence, by which the public character of the plaintiff's personality must be proved. A juror listening to a judge instructing him to draw such fine distinctions in his levels of belief would likely agree with Mr. Bumble: "If the law supposes that, . . . the law is a ass, a idiot."

On Charles Dickens and the law here's a selected bibliography.

Robert Coles, Charles Dickens and the Law, 59 The Virginia Quarterly 564 (Fall 1983).

Thomas Alexander Fyfe, Charles Dickens and the Law (Lawbook Exchange, 2006 (reprint 1910).

William S. Holdsworth, Charles Dickens as a Legal Historian (Lawbook Exchange, 1995) (reprint).

Anny Sadrin, Parentage and Inheritance in the Novels of Charles Dickens (Cambridge University Press, 1994)

Larry M. Wertheim, Law, Literature, and Morality in the Novels of Charles Dickens, 20 Wm. Mitchell L. Rev. 111 (1994).

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