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Lying in "The Heart of Midlothian"
The Killers Among Us
Lord Byron In Court
The Development of Nineteenth Century Legal Thought

Posted: 08 Jun 2011 09:36 AM PDT

Julia Ann Simon-Kerr, University of Chicago Law School & Yale University Law School, has published Pious Perjury in Scott's The Heart of Midlothian, in Gender, Law and the British Novel (Alison LaCrois & Martha Nussbaum eds., Oxford University Press, 2011). Here is the abstract.

Lying in court was a practice routinely used in the eighteenth century justice system to mitigate the severity of its criminal laws. Dubbed "pious perjury" by Blackstone, witnesses and juries often violated their oaths in order to avoid imposition of the death penalty. The practice was so common that it formed a central piece of the argument for law reform during the period when Scott was writing The Heart of Midlothian. Reformers argued that the laws were being grossly under-enforced because so many juries were mitigating sentences or freeing defendants through pious perjury. True to this practice, the men surrounding Scott's heroine, Jeanie Deans urge her to perjure herself to save her sister, who has been wrongly accused of infanticide. Her sister, Effie, will be acquitted if Jeanie swears that Effie told her of her pregnancy. Jeanie's refusal to lie forms the dramatic core of the novel. By creating a heroine whose major strength is her truthfulness in a public realm, Scott intervenes both in the novelistic tradition of female heroism and in the contemporary discourse on law reform.

Download the abstract from SSRN at the link.

The Killers Among Us

Posted: 08 Jun 2011 09:19 AM PDT

Theodore Dalrymple writes for City Journal about Stephen Griffiths, the self-described "Crossbow Cannibal," whose dissertation at the University of Bradford focused on homicide studies, and who apparently did empirical research for it by killing and eating women. Mr. Griffiths was sentenced to life in prison after pleading guilty to three murders in 2010. More here from the Guardian.

Lord Byron In Court

Posted: 08 Jun 2011 09:05 AM PDT

Leslie Katz has published Lord Byron, Copyright and the Demons of the Law. Here is the abstract.

On six separate occasions between 1816 and 1823, legal proceedings were begun or, at least, contemplated for the purpose of stopping the sale of an unauthorized edition of a published work that had been written by Byron. The paper discusses those six occasions.

On a further five occasions between 1816 and 1824, legal proceedings were begun that involved Byron's literary output (or claimed literary output) in some other way. The paper discusses those five occasions too.

The paper includes four satirical prints showing respectively Byron, John Cam Hobhouse, Lord Chancellor Eldon and William Benbow, which prints were created by leading printmakers of the day.

Download the paper from SSRN at the link.

The Development of Nineteenth Century Legal Thought

Posted: 08 Jun 2011 09:03 AM PDT

Simon Stern, University of Toronto Faculty of Law, has published The Analytical Turn in Nineteenth-Century Legal Thought. Here is the abstract.

This essay seeks to account for the introduction of the analytical method into Anglo-American legal thinking in the 19th century and to identify some of the doctrinal consequences of this mode of problem-solving. I focus on a particular sense of analysis – the disaggregation into components of seemingly unified entities, not previously seen as composites. On this view, a discussion of U.S. law as involving federal law and state law does not involve analysis, but a discussion of privacy as including decisional and spatial aspects would involve analysis. The term "analysis" long predates the nineteenth century, but had previously been used by lawyers to mean "investigation" or "classification" rather than disaggregation. Drawing on research by John Pickstone, I show that the technique, though not unheard of before the 19th century, was taken up in a wide array of scientific disciplines circa 1780-1840, particularly in chemistry. This helps to explain its diffusion into other intellectual spheres, including law.

The nineteenth-century analytical revolution had a profound effect on the Anglo-American legal system, its doctrines, and its approach to problem-solving, to such an extent that modern lawyers' views about their professional competences, and their beliefs about what constitutes a persuasive legal argument, would be radically different without this feature. The analytical approach is evident in contemporary thinking about statutory drafting and interpretation, constitutional law, and administrative law, as well as the common law. Because it is beyond the scope of a single essay to delineate these effects fully, I focus here on the changes associated with the introduction of elements into nineteenth-century jurisprudence, in a pattern that reveals some of the most visible results of the analytical approach.

Part I discusses the rise of analysis in science and the law around the beginning of the nineteenth century. Part II shows how issue preclusion (in res judicata) was reconceived in the course of the nineteenth century, morphing from a doctrine focused on the relitigation of particular facts, to a doctrine concerned with legal issues, now understood as involving legal conclusions based on facts. Part III addresses the reconceptualization of criminal offenses as consisting of "elements," a development that led to new ways of thinking about burdens of proof and the role of mens rea in criminal liability. A concluding section reflects briefly on the implications of this approach to legal science. The argument shows that legal science may be profitably studied not only by looking at the statements of lawyers such as David Hoffman, Simon Greenleaf, and George Sharswood, who took pains to insist that they were being scientific, but also by looking to particular instances in which lawyers adopt scientific methods, even if they do not call attention to this practice, and even if they make no claims about legal science.

Download the essay from SSRN at the link.