Symposium

The fan-judges: Clues to a jurisculture of Sherlockian fandom

Ross E. Davies

George Mason University, Fairfax, Virginia, United States

[0.1] Abstract—American judges sometimes encourage other participants in the legal system to behave like Sherlock Holmes. They are relying on a shared culture that both appreciates a literary figure and recognizes a human capacity to emulate an imaginary creature (here, Sherlock) outside the context in which it was created. Consciously or not, the judges are tapping into classic fandom, but do they think of it that way, and should they?

[0.2] Keywords—Conan Doyle; Courts; Holmes; Judicial; Law; Literature; Posner; Role-playing

Davies, Ross E. 2017. "The Fan-Judges: Clues to a Jurisculture of Sherlockian Fandom." In "Sherlock Holmes Fandom, Sherlockiana, and the Great Game," edited by Betsy Rosenblatt and Roberta Pearson, special issue, Transformative Works and Cultures, no. 23. http://dx.doi.org/10.3983/twc.2017.0944.

[1] Literary references abound in judicial opinions. There are thousands of them, including a substantial set of references to Sherlock Holmes. Within that Sherlockian set, there is an intriguing little subset: cases in which judges permit, endorse, or command engagement by other participants in the legal system in something that sounds a bit like Sherlockian role-playing. Are these judges—as they instruct or encourage—teaching participants in the legal system to be Sherlockians? Whatever the judges' intentions, their messages ought, at the very least, to resonate with scholars and teachers who advocate for fandom in education.

[2] Judges in the United States sometimes cite great (or at least famous or recognizable) literature and literary characters in their opinions. This strikes me as a good idea, generally speaking. Literary eloquence and vividity—including that borrowed from other writers—can be useful tools for judges seeking to explain or otherwise illuminate their decisions and the laws and fact situations on which they are based. It is the wise and modest author who recognizes words and ideas that are superior to anything she or he could come up with, and makes good (and fair) use of them in pursuit of worthy ends. And making the law, and compliance with it, more comprehensible and attainable is mighty worthy. (Besides, literary references can be fun in some circumstances) (note 1).

[3] This is not to say that the intermixing of law and literature is uncontroversial as a matter of policy—Judge Richard Posner, for example, is a prominent skeptic, and he in turn has his prominent critics and supporters (note 2)—only that it is widespread as a matter of practice.

[4] Thus, for example, Westlaw's main database of federal and state judicial opinions includes thousands of opinions containing references to Shakespeare's works, more than 600 opinions with references to Dickens's works, and more than 400 that mention the works of Arthur Conan Doyle. Wide, wide ranges of others are scattered throughout, from the lowest court of first instance to the highest court of last resort, and from Isaac Asimov (note 3) to Emile Zola (note 4), in every literary and jurisprudential direction.

[5] The broad question of whether judges are themselves engaging in fannish behavior when they cite literature in their opinions is beyond the scope of this little article (note 5). The narrower question I am asking here is this: do judges foster fandom when they permit, or endorse, or even command engagement by other participants in the legal system in behavior modeled on literary characters? I seek to answer this question by examining a few opinions in which judges refer to Arthur Conan Doyle's Sherlock Holmes character.

[6] Why focus on Conan Doyle, when other authors such as Shakespeare and Dickens are more widely cited? Because, as best I can tell, judges like to cite Shakespeare's Macbeth and Hamlet, but they never encourage anyone to behave like those characters (let alone Dick, from Henry VI, Part 2!). Judges also like to cite Dickens's Bleak House, but they never encourage anyone to behave like any of the characters in that book. Judges do, however, sometimes make encouraging noises about behaving like Sherlock Holmes (note 6).

[7] Why do judges favor Sherlock Holmes? I am not certain. But I am suspicious. I suspect that judges think Holmes has admirable personal qualities (despite his occasional drug abuse and comments that offend the modern ear) and professional practices (despite his occasional flouting of the law) that are worthy of emulation—that he is a good role model. In other words, judges sometimes invite experts, investigators, jurors, litigants, prosecutors, trustees, and other actors in our legal system to be like Sherlock because they respect Sherlock, and perhaps even like him (note 7). But that is just a guess.

[8] Let's take a look at one example of each of the three levels of judicial invocation of Holmes (command, endorsement, permission) as both literary figure and role model.

[9] First, a command. In 2012, Judge Amul R. Thapar of the US District Court for the Eastern District of Kentucky excluded the testimony of an expert witness in a case involving nuisance, trespass, and other tort claims against a pair of mining companies. Quoting from Conan Doyle's "The Adventure of the Stockbroker's Clerk," the judge explained:

[10] "I am afraid that I rather give myself away when I explain," said Sherlock Holmes to his companion. "Results without causes are much more impressive." Despite this motto, whenever Watson invariably pushed him for an explanation, Holmes would confess his methodology, identifying each premise, assumption, and inference that led to his conclusion. Similarly, an expert must be able to identify his methodology and its underlying premises and assumptions. If he fails to do so, he may not testify in court. Here, Jack Sparado's methodology fails to meet the requisite standard. Thus, the Court must grant Grizzly Processing and Frasure Creek's Daubert motions. (note 8)

[11] Judge Thapar's admonition might be rephrased as follows: Dear Expert Witness, when you are preparing and delivering your testimony, imagine you are Sherlock Holmes explaining your amazing deductions to Dr. Watson. Sigh at the dimwittedness of your audience if you must, and then explain to us, step by step, how the facts you have at hand lead to the conclusions you have reached. If you cannot or will not do that, then you are no Sherlock Holmes and you may not testify in my courtroom. A good expert witness wears not only a lab coat (note 9), but also a deerstalker.

[12] Second, an endorsement. In 1987, Maryanne Trump Barry (then a District Judge on the US District Court of the District of New Jersey, now a Senior Circuit Judge on the US Court of Appeals for the Third Circuit) was reviewing an appeal from the grant of a preliminary injunction in a bankruptcy case. Her summary of the work of the bankruptcy trustee began:

[13] On October 11, 1983, Richard [Bertoli]'s own estate filed for reorganization pursuant to Chapter 11 of the Bankruptcy Code. Bernard J. D'Avella, Jr. was appointed acting trustee on February 1, 1985 and began the unenviable task of assembling Richard's assets. While the Trustee has not stated the obvious, the task of sorting through Richard's fraudulent affairs and assembling assets for the benefit of the creditors no doubt requires herculean efforts. As the case before me demonstrates, it also requires detective work more commonly associated with Sherlock Holmes than with a bankruptcy trustee. (note 10)

[14] Judge Barry's observation might be rephrased as follows: Dear Bankruptcy Trustee, serving in this capacity does not often require you to dig as deeply or reason as elaborately as Sherlock Holmes, but there are cases in which a trustee must step up and play that role, as your work here shows.

[15] Third and finally, a permission. In 2006, the Supreme Court of Utah was considering the state's appeal from a lower court's grant of a new trial for a criminal defendant. One of the issues on appeal was the status of an investigation conducted by the state's Division of Consumer Protection, about which Justice Ronald E. Nehring, writing for a unanimous supreme court, said:

[16] Regardless of whether an investigation is performed in the Holmesian (Sherlock, not Oliver Wendell) tradition of culling insights into the make-up of human beings from observations of dress, speech, and carriage or by employing the latest advances in genetics, chemistry, or physics, any report or other account of data gathered through the investigation is subjected to sifting and evaluation. Training, experience, and intuition are applied to the compilation of raw data, and a report emerges. Facts are found. (note 11)

[17] The supreme court's statement might be rephrased as follows: Dear Investigators, you are free to don your deerstalkers and engage in an investigation right out of a Conan Doyle story, knowing it will be viewed by this court just as any other type of investigation would be—even the most modern and high-tech. Do as you will, and we will review.

[18] My sense—based on considerable but not-yet-complete digging—is that judicial commands (like Judge Thapar's) to play the role of Holmes are outnumbered by judicial endorsements (like Judge Barry's) of that kind of behavior, which are outnumbered by expressions of permissive encouragement (like Justice Nehring's) of it. But there are at least enough of each kind of message, from beginning to end of the 20th century and into the 21st, to make it seem pretty likely that for as long as there has been a Sherlock Holmes there have been judges who would be comfortable seeing more rather than less of him in their own courtrooms (note 12).

[19] Disclaimer: I do not claim—and do not believe—that a brief (or other written or spoken argument) that cites a work of literature has any influence on a judge beyond the merit of the legal or factual or policy argument in support of which the story is cited. So the presence of Sherlock Holmes (or any other literary character) in a case does not affect the way a good judge judges, even if the judge is a Holmes fan. Andrew Jay Peck—who is both a highly regarded federal judge and a renowned Sherlockian scholar—demonstrated this judicial quality quite nicely in his opinion in the case of Desiderio v. Celebrity Cruise Lines, after both sides in the case invoked Holmes in support of their arguments:

[20] My appreciation for Arthur Conan Doyle's Sherlock Holmes stories is no secret. However, in the end, although I enjoyed Celebrity's clever Holmes reference and the Desiderio plaintiffs' response, I agree with the Desiderio plaintiffs that Celebrity's argument and Holmes citation are irrelevant, as is the issue of whether the Zenith was "in" or just too "near" the hurricane, or whether the winds were hurricane forces or not. (note 13)

[21] Judge Peck, like all good judges, decides cases based on the relevant law as applied to the relevant facts. Literary references may be useful to judges when they are explaining those appropriate legal-factual connections—and may also, as the article you are reading suggests, be useful when they are encouraging other participants in the legal system to behave in certain ways—but that is a far cry from making literary works the basis for judicial decisions.

[22] These varied judicial metaphorical instructions about being Sherlockian would be pointless, of course, if the intended audiences for them did not understand what it means to be like Sherlock. And so the judges must be assuming that their audiences either are already familiar with Holmes or will be inspired by the judges' words to make themselves sufficiently familiar with him to be able to play the part in the future, within their own respective roles in the legal system. All these audiences need is judicial instruction to incorporate what they know or will learn about Holmes into the roles they play in the legal system.

[23] This instructional function of adjudication is unremarkable. The idea—and reality—of US judges as teachers both on and off the bench is as old as the Constitution (note 14) and as modern as those fixtures of today's law school, the honorable adjunct professor (note 15) and moot court panelist (note 16).

[24] The only remarkable aspect of these Sherlockian opinions is that the instructions in them involve encouragement to play the role of a literary figure, or at least to incorporate attributes of a fictional character into real-world role personas.

[25] To scholars of teaching in fandom, however, this might not seem remarkable at all. Professor Paul Booth, for example, has argued that teaching "critical fandom…is about teaching constructive styles of personal and community engagement," of which the scenes I have described might well be examples, albeit ones that have arisen in a context far from the more familiar and brightly lit fields of fandom. More confounding might be the fact that the judicial system is not a place where a critical scholar would expect to find this kind of education taking place, since "once formal schooling is complete, one's fandom may be one of the only places where one is encouraged to think critically, to write, to discuss deeply, and to make thoughtful and critical judgments about hegemonic culture" (Booth 2015). But what if that fandom is springing from, or at least fostered by, some of the most powerful figures in a long-established and powerful government institution?

[26] In contrast, the very fact that the judiciary is a deep-rooted establishment in which many participants (including those in the examples presented above) are themselves deeply rooted and involved, might be seen as making the courts promising places for fandom, which is, as Professor Aaron Schwabach has put it, "about shared experience, and the more experience the fans can share, the deeper their attachment" (Schwabach 2009).

[27] Moreover, the idea—the real sense—that judges hope to share the experience of these people playing their Sherlock-infused roles is evident from the context in which the judges offer their encouragement. These judges surely hope that experts who appear in the courtrooms in the future will engage in more nearly Sherlockian analysis and presentation (see Judge Thapar above), that bankruptcy trustees will detect like Sherlock when circumstances call for it (see Judge Barry above), and that investigators will feel free to engage in the classic Sherlockian forms of the science of deduction (see Justice Nehring above).

[28] To argue—based on the anecdotes presented here—that there are judges out there in US courtrooms who are evangelizing for Sherlockian cosplay would surely be to overreach; but to suggest that some judges might be fostering a kind of Sherlockian fandom of the legal professions might not be. It is at least worth considering, both as an example of educational fandom and as a set of points to account for when considering what is and is not fandom at all (note 17).

Notes

1. See, e.g., Yates v. United States, 135 S.Ct. 1074, 1091 (2015) (Kagan, J. dissenting, joined by Scalia, Kennedy, and Thomas, JJ.): "A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960).")

2. See, e.g., Posner (2009); and White (1989), a critical review of the first edition of Posner's book; see also, e.g., Papke (1989); Schaller (1997); and Weisberg (1998).

3. See, e.g., Karn v. Morrow, 415 Fed. Appx. 428, 429 (3d Cir. 2011) (also citing Thomas Paine in the same paragraph).

4. See, e.g., Anwar v. Johnson, 720 F.3d 1183, 1184 (9th Cir. 2013) (also quoting Douglas Adams and Benjamin Franklin in the same paragraph).

5. Are they "participating in [fan activity] and interacting in some way, whether through discussions or creative works…face-to-face at gatherings such as conventions, or written communication, either off- or on-line"? (http://fanlore.org/wiki/Fandom). Are they transforming literary classics and modern hits into new works in new forms and then sharing them with interested others? Can they be treated as doing such things if they lack the intent to do them? (Kalinoski 2014; 655, 658).

6. Of course, several dozen of the Sherlockian ones are references to "the curious incident of the dog [that did nothing] in the night-time." See, e.g., US v. Smith, 441 F.3d 254, 280 (4th Cir. 2006) (Dever, D.J., concurring in part and dissenting in part). But there is plenty of variety as well. See, e.g., State v. Pena, 840 N.W.2d 727, 2013 WL 5745608, at *5 (Iowa App. 2013) (Doyle, J. (dissenting): "As was once aptly written, '[c]ircumstantial evidence is a very tricky thing…; it may seem to point very straight to one thing, but if you shift your own point of view a little, you may find it pointing in an equally uncompromising manner to something entirely different.' United States v. Saborit, 967 F. Supp. 1136, 1137 (N.D. Iowa 1997), quoting Sir Arthur Conan Doyle, "The Boscombe Valley Mystery," in The Adventures of Sherlock Holmes, 85 (repr. 1892; Modern Library ed. 1920); Chlystek v. Donovan, 2013 WL 1629207, at *7 (E.D. Mich. 2013) ("A famous fictional detective, Judges Easterbrook and Boggs observe, was known for remarking that 'when you have eliminated the impossible, whatever remains, however improbable, must be the truth'"; Bammerlin v. Navistar Int'l Transp. Corp., 30 F.3d 898, 902 (7th Cir. 1994) (Easterbrook, J.) (quoting Arthur Conan Doyle, "The Sign of Four," in The Complete Sherlock Holmes, 111 (1905); see also Hanner v. O'Farrell, 142 F.3d 434, n. 4 (6th Cir. 1998) (unpublished table op.) (Boggs, J., dissenting), quoting same passage; Hernandez v. County of San Bernardino, 2013 WL 454871, at *1 (C.D. Cal. 2013): "'Data! Data! Data!' he cried impatiently. 'I can't make bricks without clay,' Arthur Conan Doyle, Adventures of Sherlock Holmes, 289 [Harper & Bros. Publishers, 1900]. Despite Sherlock Holmes's admonition, Plaintiff Alberto Hernandez tries to make a case with no evidence."); In re Essex Search Warrants, 60 A.3d 707, 716 n.10 (Vt. 2012): "As Sherlock Holmes once explained, 'It is of the highest importance in the art of detection to be able to recognize, out of a number of facts, which are incidental and which vital. Otherwise your energy and attention must be dissipated instead of being concentrated.' Sir Arthur Conan Doyle, 'The Reigate Puzzle,' in Complete Sherlock Holmes, 459, 469 (1930)."; Fabre v. Taylor, 2009 WL 162881, at *11 (S.D.N.Y. 2009) ("As Sherlock Holmes said (when use of a new almanac did not serve as the code book but the prior year's almanac did) in The Valley of Fear: '"We pay the price, Watson, for being too up-to-date!"' (Arthur Conan Doyle, The Valley of Fear.)".

7. Cf." Be Like Mike," https://youtu.be/Y3zZ2OUVgPQ.

8. Barnette v. Grizzly Processing, LLC, 2012 WL 293305, at *1 (E.D. Ky. 2012) (footnote omitted).

9. Cf. Roberto Aron, Julius Fast, and Richard B. Klein, Trial Communication Skills, 2nd ed. (Dearfield, IL: Clark, Boardman Callaghan, 1996–2015), § 33, p. 13: expert wearing lab coat.<

10. Matter of Bertoli, 1987 WL 8196, at *1 (D.N.J. 1987).

11. State v. Ison, 135 P.3d 864, 869 (Utah 2006).

12. This is not to say that all judicial encouragement of Sherlockian behavior is well-advised, because some of it is not. For example, jurors should not be encouraged to be like Sherlock. See Commonwealth v. Gonzalez, 545 N.E.2d 1189, 1191–92 (Mass. App. Ct. 1989): "A judge properly may use modern examples to explain the concepts of inference and circumstantial evidence to the jury…However, when the judge departs from Commonwealth v. Webster, 5 Cush. 295, 312, 319 (1850), and the usual examples of 'footprints in the snow' or 'the whistling tea kettle,' he must exercise care not to choose illustrations which permit the drawing of remote or speculative inferences from assumed facts, the piling of inference upon inference, or the suggestion that, if one is very good at deductive reasoning, only one conclusion is possible. The particular reference to the methodology of Sherlock Holmes, in the format conveyed to the jurors by the judge, suffered from all three weaknesses."

13. Desiderio v. Celebrity Cruise Lines, Inc., 1999 WL 440775, [n.p.] n.15 (S.D.N.Y 1999).

14. Lerner (1967); see also, e.g., Tushnet (1994).

15. See, for example, Hon. Judith L. Meyer, https://www.law.whittier.edu/index/directory/profile/hon.-judith-l.-meyer; see also, e.g., Hall (2007).

16. See, for example, Ciavarra (2007); "Gallery" (2013).

17. This aspect of judges' treatment of Sherlock Holmes invites a number of other questions that are beyond the scope of this short article: Are those judges really seeking to facilitate fandom? If they are, do they know it? If they don't know it, does it matter? (If you were trying to make a case for the possibility of unconscious fandom, would the US judiciary and its enthusiasm for Sherlock Holmes be good evidence?) Are these judges effective Sherlockian facilitators or not? Is it a good thing that some of our "republican schoolmasters" might be "Sherlockian schoolmasters" too? Are there other characters that are or could be employed in this way? Is there anything distinctive about the judges who engage in this sort of communication with their readers, about the authors and characters they use, or about the readers to whom the judges are speaking? And so on.

Works cited

Booth, Paul J. 2015. "Fandom: The Classroom of the Future." In "European Fans and European Fan Objects: Localization and Translation," edited by Anne Kustritz, special issue, Transformative Works and Cultures, no. 19. http://dx.doi.org/10.3983/twc.2015.0650.

Ciavarra, Jaime. 2007. "A Supreme Competition: Moot Court Finalists Stand Out Before Distinguished Judges." GW Law School, Spring 2007. https://www2.gwu.edu/~magazine/archive/2007_law_spring/docs/feat_competition.html.

"Gallery: The 2013 Ames Moot Court Competition." 2013. Harvard Law Today, November 8. https://today.law.harvard.edu/the-2013-ames-moot-court-competition/.

Hall, Mark David. 2007. "Bibliographical Essay: History of James Wilson's Law Lectures." In Collected Works of James Wilson, edited by Mark David Hall and Kermit L. Hall, 401–5. Indianapolis: Liberty Fund.

Kalinowski, Pamela. 2014. "The Fairest of Them All: The Creative Interests of Female Fan Fiction Writers and the Fair Use Doctrine." William and Mary Journal of Women and the Law, 20 (3): 655–83.

Lerner, Ralph. 1967. "The Supreme Court as Republican Schoolmaster." Supreme Court Review (1967):127–80.

Papke, David Ray. 1989. "Problems with an Uninvited Guest," Boston University Law Review, 69: 1067–88.

Posner, Richard A. 2009. Law & Literature, 3rd ed. Cambridge, MA: Harvard University Press.

Schaller, Barry R. 1997. A Vision of American Law: Judging Law, Literature, and the Stories We Tell. Westport, CT: Praeger.

Schwabach, Aaron. 2008. "The Harry Potter Lexicon and the World of Fandom: Fan Fiction, Outsider Works, and Copyright." University of Pittsburgh Law Review, 70. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1274293.

Tushnet, Mark. 1994. "Style and the Supreme Court's Educational Role in Government." Constitutional Commentary, 215 (1): 215–25. http://hdl.handle.net/11299/167073

Weisberg, Robert. 1998. "Of Panglossian Views and Violence." Connecticut Law Review 30:1039–63.

White, James Boyd. 1989. "Review: What Can a Lawyer Learn from Literature? Law and Literature: A Misunderstood Relation by Richard A. Posner," Harvard Law Review 102 (8): 2014#8211;47. http://dx.doi.org/10.2307/1341366.



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