Why Do So Many Judges Cite Jane Austen in Legal Decisions?
It is a truth universally acknowledged that Jane Austen quotes and references are constantly showing up in court
If you enjoy reading Electric Literature, join our mailing list! We’ll send you the best of EL each week, and you’ll be the first to know about upcoming submissions periods and virtual events.
In February 1998, Kimberly Hricko murdered her husband after beginning an affair with Brad Winkler. Kimberly fell for Brad, according to Judge William Horne of the Court of Special Appeals of Maryland, at a party where Brad “appeared at the edge of the crowd, like Darcy in Pride and Prejudice … an enigmatic new figure.” Apart from his initial appearance, Brad did not resemble Jane Austen’s beloved character: he aggressively pursued a married woman, something the honor-bound Lord of Pemberly would never have done. He was not particularly wealthy. And, most damning, Brad was described as “sweet.” The comparison with Darcy does nothing to shed light on Brad — but it wasn’t meant to. Rather, the judicial opinion cites Pride and Prejudice to portray Kimberly as a woman wrapped up in a dangerous fantasy.
As Judge Horne’s operose prose nicely demonstrates, judicial opinions are themselves works of literature with rich hypertextual potential. Most obviously, these texts cite the legal opinions that came before them, what we know as “precedent.” But the judges who pen these decisions also draw on their own literary experiences as they write the law. The authors they most frequently cite are predictable: the likes of Shakespeare, Kafka, and Melville, writers who explicitly tackle legal themes and whose works are enshrined in the Western canon. Unsurprisingly, female authors are largely ignored in legal decisions. All of the references to Toni Morrison, Virginia Woolf, Edith Wharton, Amy Tan, and Margaret Atwood combined come nowhere close to the number of direct citations to Charles Dickens, not to mention uncited allusions to the best and worst of times. But a few women have broken through. Apart from J.K. Rowling, who appears in a number of judicial decisions because of her own litigiousness, the most-cited female authors include Harper Lee, Mary Shelley, and Jane Austen. Only the last, though, is cited not only for one work but across her entire oeuvre.
Since the first published citation to Emma in 1978, Jane Austen’s works have been invoked 27 times in American legal decisions, including references to Mansfield Park, Northanger Abbey, and, of course, Pride and Prejudice. In many decisions, Jane Austen herself is mentioned apart from any specific text. She has appeared in municipal, state, and federal court opinions. And she is equally cited by male and female judges. Like so many other aspects of contemporary American culture, from the Romantic comedy to cosplay, Jane Austen has influenced the court. But what does she mean to the judges who read her?
After reading every available opinion, I’ve come to a rather banal but beautiful conclusion: Jane Austen is cited as an authority on the complexity of life, particularly with regard to the intricacies of relationships. Alternatively, judges cite Austen as a shorthand for erudition and sophistication, to demarcate who is a part of high society (often, lawyers) and who is not (often, defendants), reflecting the novelist’s popular reception. To reach this conclusion, I omitted a few cases that referenced Jane Austen without engaging her works or what they stood for. This included one case involving a litigant who changed her name to Austen out of an appreciation for the author, and two lawsuits initiated by Jane Austen scholars who were denied tenure — which for my own peace of mind, I was happy to exclude.
Half of the published legal opinions that cite Jane Austen don’t engage with her work beyond the first line of Pride and Prejudice: “It is a truth universally acknowledged that a single man in possession of good fortune must be in want of a wife.” This approach relies on the Austen quotation to underscore the legal writer’s intellect and the certainty of his or her claim. For instance, in a medical malpractice case, the court denied the plaintiff’s cause of action because “it is a truth universally acknowledged that she who comes into equity must come with clean hands.” Or the far more upsetting quotation from New Jersey Superior Court Judge Clarkson Fischer: “it is a truth universally acknowledged, that leaving an infant unattended in a filled bathtub constitutes gross negligence.” Sometimes the glib citation to the opening line of Pride and Prejudice is simply to add literary flair to judicial prose, as in a 2008 opinion from the United States Tax Court: “it is a truth universally acknowledged, that a recently widowed woman in possession of a good fortune must be in want of an estate planner.” Is it?
You’d be right to notice a gendered aspect to the quotations. Men don’t seem to reawaken judges’ memories of Austen’s prose — even if single ones in possession of good fortunes are the original subject of the oft-repeated line. Jane Austen more often comes to mind when a woman is in court. But the same phrase is trotted out for cases involving inanimate objects, too. “It is a truth universally acknowledged,” wrote one judge in a decision concerning the New York State Thruway Authority, “that the only ‘functional relationship’ between the Thruway and the canals is that the former rendered the latter obsolete.” In all of the cases, the judges add a footnote or in-line citations to Austen, proudly announcing the literary heritage of their own textual production.
Beyond revealing a desire for judicial panache, these facile citations of Austen’s memorable prose cast the judicial opinion-writer as a supercilious character. The judge becomes the very kind of snob we’d expect to find in an Austen novel: someone who claims something ambiguous is obvious, like the history of canals.
At other times, Jane Austen is used to highlight the legal subject’s sophistication, or lack thereof. In a decision denying the appeal of a murder conviction, a judge on the California Court of Appeal quoted the vulgar, slang-filled conversation that preceded the fatal encounter. But he first explained the dialogue was “not what you would find in a Jane Austen novel.” In case there was any doubt as to the appellant’s character, the general reference to Austen’s oeuvre paints him as a lowlife not refined enough for nineteenth-century English literature, let alone a retrial.
In white-collar cases, Jane Austen is strategically deployed to suggest litigants should have been more sophisticated. In a fraud case involving friends who formed a partnership that went awry, the court checked one litigant’s expectations as naïve, turning to Jane Austen for support. Citing Emma, that “business . . . may bring money, but friendship hardly ever does,” the court concluded that had the litigant “been mindful of the words of Jane Austen,” he may not have become embroiled in the lawsuit. In another case from 2017, the judge cited the plaintiff’s enjoyment of “books written by Jane Austen” as proof that she was not entitled to social security benefits for her mental impairments. One has to wonder whether the plaintiff’s enjoyment of the Divergent series would have been used in the same way.
In still other instances, Jane Austen is referenced to highlight the sophistication of both the judge and litigant. In a gender discrimination case in which a female plaintiff alleged that her managers “did not tolerate intelligent and articulate female subordinates,” Judge Richard Cardamone, writing for the Second Circuit Appeals Court, quoted Northanger Abbey. “A woman especially, if she have the misfortune of knowing anything, should conceal it as well as she can.” Through the citation, the judge implicitly aligned the allegedly aggrieved party with a clever Austen protagonist and used Austen’s satire to shine a spotlight on the misdeed. Precisely this harmfully suppressive behavior, the judge expounded, is what the civil rights law at stake aimed to end.
When they are not citing Jane Austen for her cultural cachet, judges commonly reference the author as a reminder that appearances can be deceiving. As one California Superior Court judge wrote in a legal malpractice case: “Sometimes, however, one must get the whole story in order to have an accurate picture of events. The seemingly haughty and prideful Fitzwilliam Darcy turned out to be a pretty nice guy by the end of Jane Austin’s Pride and Prejudice.” The judge misspells Austen’s name, but his point is still valid: life is complicated.
Fortunately, many judges see Jane Austen as citable expert on complex matters, especially those concerning the bonds of family and community. A Pennsylvania Superior Court decided that a divorced mother could not relocate out of the township because her son would be separated from his paternal half-siblings. Arguing that relationships within a nuclear family can “sustain and nourish a child for a lifetime,” the judge cited Mansfield Park: “Children of the same family, the same blood, with the same first associations and habits, have some means of enjoyment in their power, which no subsequent connections can supply….” Never mind that more current sociological and psychological studies might have made the same point. Jane Austen is the persuasive authority on relationships.
This was similarly true for a justice on the Supreme Court of North Dakota. In a concurring opinion in a divorce case, Judge Carol Kapsner noted that “Jane Austen would be astounded” if the court punished the female divorcée for considering future financial security as part of her decision to marry her once-husband. Echoing Elizabeth Bennett, Judge Kapsner continues: “Perhaps at twenty-five one enters marriage considering only love; one would be foolish to do so at fifty.” In her reading of Jane Austen’s novels, the judge takes away a lesson about what should rightly be considered when deciding to wed.
More often, though, judges cite Jane Austen to demonstrate the complexity and impenetrability of relationships, especially seen from the outside. In a decision from the Louisiana Appeals Court, Judge Paul Bonin cited Emma in a dispute over whether an incapacitated man’s wife or niece was his designated curatrix. Specifically, to explain why the court found it unnecessary to reinvestigate the factual disputes among the family members, the judge quoted, “Seldom, very seldom, does complete truth belong to any human disclosure; seldom can it happen that something is not a little disguised or a little mistaken.” Writing from a Cleveland municipal court, a judge deciding a small claims dispute between a boyfriend who loaned money to his now ex-girlfriend cited the same passage. She ultimately concludes of the Emma citation, “This is particularly true where two individuals are in a romantic relationship and, upon breaking up, find that their recollections may honestly but quite sharply differ.” Jane Austen provides the words for the realities of life that are hard to describe. And her work offers judicial opinion-writers a source — notably, one other judges accept as an authority — to justify their beliefs about what it means to be human.
My favorite legal citation to Jane Austen comes from a case involving a sex offender who challenged a sentence that required him to inform his probation officer when he entered into a significant relationship. “What makes a relationship ‘romantic,’ let alone ‘significant’ in its romantic depth,” Judge Barrington D. Parker wrote for the U.S. Court of Appeals for the Second Circuit, “can be the subject of endless debate that varies across generations, regions, and genders. For some, it would involve the exchange of gifts such as flowers or chocolates; for others, it would depend on acts of physical intimacy; and for still others, all of these elements could be present yet the relationship, without a promise of exclusivity, would not be ‘significant.’ The history of romance is replete with precisely these blurred lines and misunderstandings.” The judge’s claim is something we all know to be true. But how do you prove it? The opinion then directs the reader, “See, e.g.” Jane Austen’s Mansfield Park. From the judge’s own reading, Mansfield Park is legal proof that it is impossible to demarcate when a relationship becomes significant. What else but literature could make this point? And who, besides Jane Austen, could make it so convincingly?
Writing in his diary about Jane Austen in 1826, the Scottish novelist Walter Scott remarked that she “had a talent for describing the involvements and feelings and characters of ordinary life,” further extolling Austen’s “exquisite touch, which renders ordinary commonplace things and characters interesting.” Judicial citations to Austen confirm Scott’s assessment. When they are not borrowing Austen’s eloquent words to elevate their own writing or make it more entertaining, judges borrow her language and ideas to support their conclusions about the human condition. Caroline Bingley may not mean it in Pride and Prejudice when she declares “there is no enjoyment like reading!” But, fortunately, it appears that American jurists disagree, especially when it comes to Jane Austen.