67 CBJ 317. SHAKESPEARE IN THE LAW.

• Author: By WILLIAM DOMNARSKI (fn*)

Connecticut Bar Journal

Volume 67.

67 CBJ 317.

SHAKESPEARE IN THE LAW

317SHAKESPEARE IN THE LAWBy WILLIAM DOMNARSKI (fn*)What a difference a preposition makes. If my title had been Shakespeare and the Law rather than Shakespeare in the Law, readers would be justified in groaning loudly and wondering, with some irritation, why we need another article on the subject. After all, there has been a wide array of articles on Shakespeare and the law from both literary and legal scholars examining the depiction and application of law in the plays themselves(fn1) My interest instead is in Shakespeare as he appears in judicial opinions, the law itself. With computer research we can answer not only quantitative questions about the frequency with which Shakespeare has been cited - the questions of what, when' where, and by whom - we can also determine the context in which he is cited or quoted. What we make of this information is beyond the ken of computers and must, ultimately, rest with the reader. But since it's Shakespeare we are talking about, the quantitative information - especially learning what of Shakespeare has been quoted - is by itself interesting.

Shakespeare has been cited by courts not only for his descriptions of black letter law subjects such as dying declarations,(fn2) the presumption of paternity(fn3) and others,(fn4) but also

318 for a wide variety of law-related subjects and for observations that add both sparkle and substance to judicial opinions. A computer search reveals that Shakespeare has been cited or quoted in nearly eight hundred judicial opinions in both state and federal courts. We can organize these quotations into a few broadly defined categories to facilitate a discussion which aims to tell us something about both Shakespeare and the law. I look at ornamental quotations; quotations invoked because of their subject, theme or key word relationship with the judicial opinion; quotations used by judges to jab either litigants or other judges who do not agree with them; quotations which are misused either because they have been misinterpreted or because the ill-fitting juxtaposition between the context in which the quotation appears in Shakespeare and in the opinion is too glaring; and quotations that are aptly used. There are overlaps between the categories. A quotation from the ornamental category could easily fit into the apt or the subject matter categories, for example. But as the ornamental category is defined in part by the quotation's currency in the language, the reader will be able to see why for these quotations the recognition factor outweighs other definitional considerations.

That Shakespeare should be frequently invoked by courts should be no surprise. As the language's preeminent writer on the issues of fairness and justice, his commentary on many of these issues is so memorable that a court would naturally turn to him to illustrate the legal point. It's not a surprise that the U.S. Supreme Court, for example, turned to Shakespeare on illegitimacy in King Lear, Act 1, Scene 2, when striking down a Louisiana statute on equal protection grounds that discriminates against illegitimate children.(fn5) The only surprise is that the Court puts the apt quotation in a footnote. When the issue of defamation was recently before the high court, Shakespeare was invoked, this time in the main text, where we find "Good name in man and woman, dear my lord,/Is the immediate jewel of their

319 souls;/Who steals my purse steals trash; 'tis something, nothing;/ 'Twas mine, 'tis his, and has been slave to thousands;/But he that filches from me my good name/Robs me of that which not enriches him,/And makes me poor indeed."(fn6)

The computer search of federal and state courts shows that, Shakespeare appears in a variety of ways unrelated to the poet. The name Shakespeare appears in a total of 1445 cases. Shakespeare's poetry has been cited or quoted a total of 798 times. It is cited or quoted in 149 of 281 circuit court cases in which the name Shakespeare is found, 113 of 292 district court cases, and 436 of 872 state court cases. Of the 647 cases in which the name Shakespeare otherwise appears, 61 cases themselves have Shakespeare in the caption, while these cases are cited in other cases 347 times. The Shakespeare Company, a manufacturing concern, is a litigant in twelve cases by itself. Moreover, Shakespeare appears in all kinds of proper nouns. From the cases we learn of Shakespeare Avenues in New York and Chicago; Shakespeare Street in Baltimore; Shakespeare Park in New Orleans; the Shakespeare Apartments in Detroit, a horse farm in Rootstown, Ohio, called Shakespeare Acres; the Shakespeare Home in New Orleans; a fifty-two inch Shakespeare arrow and bow, and a Shakespeare trolling motor. A dozen lawyers named Shakespeare appear in the cases, as have a variety of witnesses named Shakespeare.

In the remaining 286 cases Shakespeare himself is invoked as an exemplar or historical figure. He is frequently cited as an example of that which cannot be argued with, as an exemplar of sorts, depending on the context, or as Everyman. That it could happen to Shakespeare is to say that it could happen to anyone, so we find, in the context of a discussion of the profit motive, that "even Shakespeare may have been motivated by the, prospect of pecuniary gain.(fn7) An example of this use of Shakespeare comes in a U.S. Supreme Co urt case when the dissent, in arguing against using an immigration applicant's homosexuality as a reason for exclusion, writes that "even Shakespeare" might have been homosexual.(fn8) Moreover, his plays are recognized as examples of our language at its best, so if the

320 result of legislation in the area of obscenity, for example, is to ban even Shakespeare, then the legislation on its face must be wrong.(fn9)

Aside from being cited as an historical figure, Shakespeare on occasion has been invoked as the chronicler of his times, which brings us to his poetry for the first time. For example, when the Court recently addressed the issue of whether the Eighth Amendment's excessive fine clause applies to awards of punitive damages in cases between private parties, justice O'Connor, in dissent, arguing that it did, looked to Shakespeare. First noting that Shakespeare was "an astute observer of English law and politics," she then pointed to Shakespeare's interchangeable use of "fine" and "amercement" to make the point that money and punishment are synonymous, quoting from Romeo and Juliet, Act III, sc. i.(fn10) The scene has Prince Escalus warning the Montagues and Capulets not to shed any more blood on the streets of Verona: "I have an interest in your hate's proceeding,/ My blood for your crude brawls doth a-bleeding;/But I'll amerce you with so strong a fine,/That you shall all repent the loss of mine." This prompts justice Blackmun in a footnote in his majority opinion to respond, "[A]s to the dissent's reliance on the Bard ... we can only observe: 'Though Shakespeare, of course,/ Knew the Law of his time,/He was foremost a poet,/In search of a rhyme.(fn11) An unchallenged historical reference to Shakespeare comes in Goesaert v. Cleary.(fn12) In addressing the issue of whether the equal protection clause of the Fourteenth Amendment barred Michigan from distinguishing between wives and daughters of owners of liquor places and wives and daughters of non-owners, the Court looks to Shakespeare. "We are, to be sure," the Court observes, "dealing with a historic calling. We meet the alewife, sprightly and ribald, in Shakespeare, but centuries before him she played a role in the social life of England. "Courts have turned to Shakespeare thirty-four times for guidance in the definition of words. In a recent U.S. Supreme

321 Court case, Coy v. Iowa (fn13) for example, the Court wrestled with the question of whether the confrontation clause required a literal confrontation. Justice Scalia for the majority, in defining confrontation," turns to Richard II: "Shakespeare was thus describing the root meaning of confrontation when he had Richard the Second say: 'then call them to our presence - face to face, and frowning brow to brow, ourselves will hear the accuser and the accused freely speak.' Richard II, act 1, se. L" He has helped define "expressly,"(fn14)"conspire,(fn15) "murder,"(fn16)"inundation,"(fn17)"shuttle(fn18)contaminate(fn19) daylight(fn20) counsel,(fn21) "theft(fn22) composition, (fn23) "substance (fn24) .animal,"(fn25) "madness"(fn26), red, (fn27)apothecary, (fn28) "substantial (fn29) work,"

322 "pandering"(fn30) "offe"r (fn31). honorable,(fn32) negotiate(fn33)consort,(fn34) purchase (fn35) fowl,"(fn36) "honesty (fn37) remove(fn38) centaur (fn39) rubbish,(fn40) to take, (fn42) "mewin" and "Pukin."(fn43)

Moreover, courts have turned to Shakespeare in yet another way for guidance in understanding our language. Two distinguished federal circuit court judges, judge Posner and judge Easterbrook, when arguing that in interpretation context is all, have used Shakespeare for their examples.(fn44)

323To appreciate the uses to which judges put Shakespeare in their judicial opinions we need to recognize two points at the outset. The first is that in general judges only rarely use figurative language, with their use of metaphor, analogy, and epigram far exceeding their use of literary allusion. The second is that state and federal judges publish a staggering number of judicial opinions each year. The West...