Deborah Yaffe

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By Deborah Yaffe, May 3 2018 01:00PM

Apparently, judges just love Jane Austen.


Or so Ohio State University Professor Matthew H. Birkhold claims in a recent article in the online journal Electric Literature. Birkhold argues that, while judicial references to such canonical male authors as Shakespeare, Kafka, Melville, and Dickens predominate, Austen tops the list for female writers.


Sort of, anyway: “The most-cited female authors include Harper Lee, Mary Shelley, and Jane Austen,” Birkhold writes. “Only the last, though, is cited not only for one work but across her entire oeuvre.”


Since Harper Lee only wrote one book and Mary Shelley only wrote one that anyone outside of a graduate program has ever heard of, this Austen-as-judge’s-pet trope is starting to look a tad questionable, and we’re only in the second paragraph. Things get even sketchier in the next one, when Birkhold tells us that, since the first judicial reference to Emma in 1978, Austen’s “works have been invoked” twenty-seven times, not to mention the “many” references to Austen that don’t quote any specific text.


Across American courts at all levels and across all jurisdictions, then, we’ve got a single published Austen citation roughly every eighteen months, plus an unspecified number of more general mentions. Offhand, it doesn’t sound like a groundswell, especially when it turns out that half those twenty-seven citations are of the painfully ubiquitous “It is a truth universally acknowledged that [fill in the blank]” variety.


So I’m skeptical of the premise, but – go ahead! Explain why judges mention Jane Austen, however often they do!


Turns out that judges are a lot like pretty much everyone else who goes around mentioning Jane Austen. Either she’s a relationship expert -- “Jane Austen is cited as an authority on the complexity of life, particularly with regard to the intricacies of relationships,” Birkhold writes – or she’s an all-purpose symbol of classiness, refinement, and social distinction: “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.”


Can’t argue with the relationship-expert part: obviously, we Janeites think Our Author has profound insight into what makes families and romantic partnerships tick. But I can’t help giggling at the class part.


It’s not just that Austen’s novels often interrogate the very notions of class that too many readers (and, apparently, judges) attribute to her – although, of course, they do.


It’s that, in Austen’s day, many of those who made their living in the law were not considered of the highest social rank. Think of the Bingley sisters, sneering at the Bennet girls’ Uncle Phillips, “an attorney in Meryton.” Getting your hands dirty in the law was just a step above (gasp!) making a living in trade.


Though probably the Bingleys would have thought better of Uncle Phillips if he’d been a judge.


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