What’s New This Fall

Welcome back, returning students! While you were away, the Law Library added some new resources that we thought you’d like to know about.

Washington Post Access

Law students can now sign up for free online access to the Washington Post. To request an account, navigate to the Student Services tab on LawWeb and select “Washington Post Academic Access” (or use this shortcut). This will bring up a form for you to fill out. After submitting the form, you will receive an email with further instructions for creating your online account.

As in past years, the Law Library also provides online access to the New York Times, the Wall Street Journal, and the Bluebook. If you signed up for these resources last fall, note that two of them require annual renewal. You’ll need to reactivate your NYTimes.com account and get a fresh registration key for the Bluebook Online. (To renew your NYTimes.com account, you must be on-grounds or using a VPN.) First-time registrants can sign up for these resources by logging into LawWeb and following the links provided on the “Student Services” tab.

ProQuest Regulatory Insight

The Law Library has acquired a powerful new resource for researching federal regulations. ProQuest’s Regulatory Insight compiles regulatory histories for federal statutes and executive orders by assembling pertinent Federal Register notices, rules, and proposed rules. It also provides links to related pages in Supreme Court Insight and Legislative Insight (a legislative history resource). Use Regulatory Insight to help make your regulatory research more efficient and complete.

A New Digital Resource for Legal History Research

Law Special Collections has launched a new website for its Scottish Court of Session Digital Archive Project. The Project is an initiative to explore everyday life in early America and the British Atlantic world of the eighteenth and early nineteenth centuries through Session Papers, which were submitted to Scotland’s supreme civil court as part of the litigation process. Explore the archive to find material for your next legal history paper!

UVA Law at 200 Exhibition

In honor of the University’s Bicentennial, the UVA Law at 200 exhibition by Law Special Collections highlights a rotating selection of Law School alumni/ae who broke local and national barriers, mastered the campaign trail, issued judgments from the bench, and transformed the legal landscape. The exhibition includes photographs, old yearbooks, historical documents, campaign buttons, and more. Exhibit cases are located on the first and second floors of the library.

Updates to Study Spaces

The tables in Caplin Reading Room now have power outlets! With this addition, most seating in the Law Library provides a place to charge your phone or laptop. Additionally, new skylight windows have been installed over the study space in the Reference area.

As you embark on a new academic year, remember that the library is here to help you. Please don’t hesitate to contact us at refdesk@law.virginia.edu or to stop by and ask us a question.

Written by

Kate Boudouris

Research, Instruction & Outreach Librarian, Arthur J. Morris Law Library

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Welcome, New Students!

To new students arriving for orientation: Welcome! The Law Library staff looks forward to working with you throughout your law school career. From personalized research consultations to exam-time grilled cheese breaks, the library offers services to make your time at UVA more enriching, efficient, and enjoyable. Here are some key resources that will help you hit the ground running this academic year.

Lexis, Westlaw, and Bloomberg Law Passwords

Lexis, Westlaw, and Bloomberg Law are three core legal research databases, so be sure to sign up for access! On August 21 from 9 am to noon, activation codes will be available in the lounge area of Withers-Brown Hall. The lounge is to the right as you exit the Law Library.

NYT, WSJ, WaPo, CALI, and More!

As a UVA law student, you’ll receive free access to resources like the New York Times, the Wall Street Journal, the Washington Post, and CALI (which provides interactive legal tutorials). You can sign up for these and other law-school-only resources via LawWeb. From the LawWeb homepage, just click on the “Student Services” tab (shown below), and then select the resource you’d like to access.

LR&W Help

Not sure how to tackle your Legal Research & Writing assignment? The Law Library is here to help! Each section of LR&W has a dedicated librarian—or “Library Liaison”—to help students get comfortable with legal research methods. Once classes start, your LR&W instructor will provide more information about meeting with a Library Liaison. For additional research tips, check out this guide to legal research for law students.

Bluebook Online

Well-formed citations are an important part of legal writing. To help you nail every detail, the Law Library offers online access to the Bluebook uniform system of citation. Law students and faculty can request an access code.

Guide to Student Services

As your studies progress, we hope that you’ll find the Law Library to be a valuable partner in your academic efforts. You can learn more about the library’s offerings in our guide for students. And remember, if you have any questions, don’t hesitate to contact a staff member!

Once again, a warm welcome to all incoming students!

Written by

Kate Boudouris

Research, Instruction & Outreach Librarian, Arthur J. Morris Law Library

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A Law Library Tradition: The “JAG Cake” Through the Years

For decades, the University of Virginia School of Law has had a special relationship with the U.S. Army Judge Advocate General’s Legal Center and School (or “JAG School”), its neighbor on North Grounds. This relationship extends to the schools’ law libraries. The two libraries share materials, assist each other’s students, and observe a fun (and delicious) tradition: for more than 25 years, JAG School Library Director Dan Lavering has presented UVA’s staff with a year-end thank-you cake. We refer to this gift as the “JAG cake.” Without fail, the JAG Cake is generously sized and beautifully decorated.

A cake decorated with an American flag; beside it, a woman holding a bread knife stands arm-in-arm with a man leaning on an umbrella.
Former Law Library Director Taylor Fitchett (left) and JAG School Library Director Dan Lavering (right) prepare to cut the 2008 JAG Cake.

Our earliest record of the JAG Cake is a thank-you note sent in 1993 from UVA Law Librarian Larry Wenger to Lavering. “The cake was a wonderful end-of-the-year celebration for us,” Wenger wrote. He thanked the JAG School Law Library for being “exceptionally good about helping out and with sharing duplicate materials from your library with us.”

The current Law Library staff adds its thanks—both for the JAG Cake and for the JAG School’s cooperation throughout the year. Below are some images of the JAG Cake over time.

Written by

Kate Boudouris

Research, Instruction & Outreach Librarian, Arthur J. Morris Law Library

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Legal Research in a Nutshell: Lucky Thirteenth Edition

This semester saw the publication of the thirteenth edition of Legal Research in a Nutshell, by our own Kent Olson. (Despite the ominous edition number, Kent assures me that he didn’t experience any bad luck while preparing the text). The Nutshell, which dates back to Morris Cohen’s 1968 original edition, provides a comprehensive but concise guide to legal research. I sat down with Kent to learn more about the new edition and his experience working on this important text.

-Kate Boudouris

Kate: What’s new in the thirteenth edition of the Nutshell?

Kent: There are always small changes, like FDsys (which replaced GPO Access) being replaced by Govinfo, but the biggest change may be the inclusion of Practical Law, the Westlaw feature with checklists and practice notes in more than a dozen major practice areas. I believe it was around when I finished the 12th edition, but I completely missed its significance. It’s not that useful for academic research, but it can be an enormously valuable tool for new lawyers needing a refresher or step-by-step guidance.

A man holds a book and smiles at students.
Kent Olson teaches a legal research class.

In this edition I was also able to include our own library’s UN Human Rights Treaties: Travaux Préparatoires, a searchable collection of documents that Ben Doherty, Loren Moulds, and others worked on for more than two years.

What hasn’t changed is my opinion that strong Boolean search skills continue to give researchers an edge over database algorithms. Anyone can find a few relevant documents using an algorithm, but crafting intelligent searches and figuring out where to go from there is the art of legal research.

Did you consider skipping straight from the twelfth edition of the Nutshell to the fourteenth edition, in the way that elevators sometimes omit the thirteenth floor of a building?

No way. I’d always wondered what happened on that mysterious thirteenth floor that the elevator skipped. And it wouldn’t be fair to other Nutshells to skip a number. Legal Research has been in more editions than any other Nutshell, but it’s not that far ahead of two others in their eleventh editions, International Taxation and Securities Regulation.

Speaking of the fourteenth edition, what developments in legal research might inform the next revision of the Nutshell?

Even a Boolean-based dinosaur can see that artificial intelligence is improving, particularly in resources such as CARA, Casetext’s tool that analyzes a brief or memorandum and identifies relevant cases that it doesn’t cite. I doubt it will take precedence over Boolean search by the fourteenth edition, but we’ll see!

The Nutshell was originally written by Morris Cohen, and the two of you co-authored the text for many years. Are there ways in which Cohen continues to influence your work?

Morris was the librarian at Yale Law School for many years (and before that at Harvard and Penn). He was a very sweet man, but also one of the most inquisitive people I’ve ever known. I like to think that I carry on his interest in new resources and how they fit together to help us make sure we have the best possible information. He also read what we had written very closely, word for word, and I got from him the view that every sentence matters.

A man sits at an early computer. A woman smiles beside a statue.
Top: Joe Wynne ca. 1980, not long after joining the law library. Bottom: Taylor Fitchett upon her retirement in 2018.

This edition is dedicated to two of your colleagues, Taylor Fitchett and Joe Wynne. Can you tell us a little about them?

Taylor and Joe have both gone happily into retirement. As library director for almost twenty years, Taylor kept the place humming and allowed the rest of us to focus on things like teaching and reference services (and Nutshell revision). Joe wore a bunch of hats over thirty-seven years, ending up as our guru of budgets and other systems. They’re great librarians, and friends, who are missed by everyone in the library.

So what’s next?

I’d like to put my feet up, but I have a bigger book, Principles of Legal Research, that hasn’t been revised since 2015 and is sitting on my desk staring at me. So I’ll have another chance to ponder how the world of legal research is constantly changing.

Written by

Kate Boudouris

Research, Instruction & Outreach Librarian, Arthur J. Morris Law Library

Kent Olson

Head of Research Services, Arthur J. Morris Law Library

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Registration Opens for the Second Digital Archives in the Commonwealth Summit

Registration is now open for the second annual Digital Archives in the Commonwealth Summit, which will take place at George Mason University on November 30, 2018. We’re excited to be co-sponsoring this event along with our colleagues at George Mason University Libraries, Roy Rosenzweig Center for History and New Media, and the Omohundro Institute of Early American History and Culture.

The Summit is an interdisciplinary conference focused on the creation, management, and use of digital archives. We welcome individuals from various fields to attend and join the conversation—archivists, scholars, librarians, museum specialists, and technologists are all encouraged to participate. Building on the success of the inaugural Summit in 2017, this year’s conference seeks to facilitate information-sharing and reflection on the practical and theoretical considerations that shape digital archives.

Panels this year include:

  • Institutional Opportunities and Challenges in Building or Re-Imaging Digital Archives
  • Finding the Hidden in Plain Sight: The Enslaved Children of George Mason and Mason’s Legacies Projects
  • A lunch workshop on The Library of Virginia Transcription Initiative
  • Revealing Hidden Histories and Rebuilding Lost Spaces with Digital Technology
  • A lightning round with the opportunity for audience members to present

You can register and read more about the Summit here—and if you’re unable to attend in person, follow along on Twitter using #DASummit2018.

Written by

Kate Boudouris

Research, Instruction & Outreach Librarian, Arthur J. Morris Law Library

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What’s New This Fall

Welcome back, returning students! While you were away, the Law Library added some new resources that we thought you’d like to know about. Here’s the rundown:

Art of Law Exhibition

We’ve installed a new exhibition showcasing printed decorations and illustrations from the pages of UVA’s original collection of law books, as it was cataloged in 1828. The new exhibition illuminates bookwork and printing practices of the early modern era, while also offering an important window into legal education in the early United States.

ProQuest Supreme Court Insight

The Law Library has acquired a great new resource for researching Supreme Court case history. ProQuest’s Supreme Court Insight, 1975-2016, provides curated case pages, along with links to PDFs of briefs, oral arguments, opinions, and hard-to-find docket sheets and joint appendices. It also includes advanced tools to assist with searching. If your research involves a SCOTUS case argued between 1975 and 2016, be sure to check out Supreme Court Insight!

Power Outlets and New Tables in the Reference Area

There’s a special energy in the Law Library this fall, and it’s not just the excitement that comes with a new school year. By popular demand, power outlets are now available at the study desks on the second floor. We’ve also spruced up the reference area with new tables and lamps. We hope these improvements will make your long hours in the library a little bit brighter.

New Faces in the Library

Two librarians stand in front of a card catalog.
Sarah New and Kate Boudouris.

Two new librarians will be available to assist you in the library this year. Kate Boudouris joins us as a Research, Instruction & Outreach Librarian. You’re likely to spot her at the reference desk, where she’ll be happy to help with all your thorniest legal research problems. Kate attended Yale Law School and previously practiced law in Washington, D.C., and at the Southern Environmental Law Center in Charlottesville. Sarah New is our new Web Services Librarian and all-around digital resources guru. A UVA alum, she joins us from the University of Maryland Baltimore County Library.

Renew Your Subscriptions!

This is a friendly reminder to renew your online subscriptions. Once each year, you will need to reactivate your NYTimes.com account and get a fresh registration key for the Bluebook Online. (In order to renew your NYTimes.com account, you must be on-grounds or using a VPN.) If you’re having trouble accessing WSJ.com, please visit the registration page (also while on-grounds) and click “Register or Renew.” First-time registrants can sign up for NYTimes.com, WSJ.com, the Bluebook Online, and more by logging into LawWeb and following the links provided on the “Student Services” tab.

As you embark on a new academic year, remember that the library is here to help you! Please don’t hesitate to contact us at refdesk@law.virginia.edu or to stop by and ask us a question.

Written by

Kate Boudouris

Research, Instruction & Outreach Librarian, Arthur J. Morris Law Library

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Birlymen, the Scottish Court of Session, and Your Next Paper

boundary stone
“A Boundary Stone,” Donald Bain

This is a PSA for students interested in private ordering[1] and “how neighbors settle disputes.”[2] If extralegal systems such as cattle-trespass norms,[3] industry-based arbitration services,[4] and organized crime[5] are up your alley, then the case of Aitken, and Others v. Wilson and Bannatyne—from the Law Library’s collection of Scottish Court of Session Records—might provide some grist for your next paper. You can review the case documents here.

Aitken was about whether a voluntary association known as a “birly court” could enforce its own decisions.  What, you may ask, is a birly court? A lawyer for birly court members in Elsrickle, Scotland, described the organization as follows:[6]

“In most of the parishes and country villages in Scotland, particularly in the village of Elsrighill, and others in its neighbourhood, there hath been, for time immemorial, what is called the Birly court. All the small proprietors, portioners, and tenants, are members of this court, and they, every two years, or oftener, elect three of their own number, who are stiled Birlymen, and one called the birly officer.

The business of the Birly court has always been to redd the marches,[7] place and rectify pit stones,[8] regulate the mosses and common pasturages, and, in short, to determine every necessary article respecting the inferior police and for the preservation of good neighborhood. The birlymens office is to take care that the orders and regulations of the court be obeyed, and to estimate any damages which may arise from trespasses.”

The case documents provide fascinating insight into the practices of at least four

Pursuer's Proof
Pursuer’s Proof

different birly courts. They also offer a rich account of the events behind the case, which began in May 1777 as a boundary dispute between one John Wilson and his neighbor. During the ensuing birly court adjudication, Wilson was fined for using “abusive language,”[9] but he refused to pay. As a means of enforcing the fine, the birlymen went to Wilson’s house and confiscated two pewter plates. Wilson complained to the sheriff; the birlymen were detained; and they sued Wilson and the sheriff for wrongful imprisonment. In the birlymen’s telling, they had merely been acting according to “the immemorial practice of the place, and of the whole country.”[10] The sheriff, on the other hand, “could not regard what they termed a lawful poinding [i.e., “a seizure of property in lieu of money owed”[11]] in any other point of view, than as a lawless riot.”[12]

Aiken is a fun read and provides interesting material for scholarly analysis. The documents in our collection even include handwritten notes describing the court’s unreported decision. (According to those notes, Wilson and the sheriff won because, as one judge put it, “Birly courts [are] known in this country but [are] only arbitrators.”) If you think Aitken might fit with your research interests, be sure to check out this case.

 

 

[1] See, e.g., Barak D. Richman, Norms and Law: Putting the Horse Before the Cart, 62 Duke L.J. 739 (2012).

[2] Robert C. Ellickson, Order Without Law: How Neighbors Settle Disputes (1991).

[3] Id.

[4] See, e.g., Lisa Bernstein, Private Commercial Law in the Cotton Industry: Creating Cooperation Through Rules, Norms, and Institutions, 99 Mich. L. Rev. 1724 (2001).

[5] See, e.g., Curtis J. Milhaupt and Mark D. West, The Dark Side of Private Ordering: An Institutional and Empirical Analysis of Organized Crime, 67 U. Chi. L. Rev. 41 (2000).

[6] Andrew Crosbie, Information for Andrew Aitken Portioner of Elsrighill, David Brown and James Richardson, Tenants there, present Birlymen for the Town of Elsrighill, and William Elder, Wright there, Birly Officer, John Cuthbertson, Portioner there, John Lawson, Farmer there, and John White of Howburn, Pursuers; against John Wilson, Portioner of Elsrighill, and John Bannatyne, Sheriff-Substitute of Lanark, Defenders (Jan. 18, 1780) (Box 4, Scottish Court of Session Records, University of Virginia Law School Library).

[7] “Redd the marches” refers to fixing boundaries. See Redd, v.2, Oxford English Dictionary, http://www.oed.com/view/Entry/160193  (last visited Feb. 8, 2018) (“To delineate or fix exactly (a border or boundary); to mark or set the borders of (a place). Chiefly in to redd the marches. . . .”); March, n.3, Oxford English Dictionary, http://www.oed.com/view/Entry/113952 (last visited Feb. 8, 2018) (“The boundary of an estate; a boundary dividing one property from another; a tract of land between two properties.”).

[8] The phrase “pit stones” refers to boundary-stones. Pit, Dictionary of the Scots Language, http://www.dsl.ac.uk/entry/snd/pit_n_v2 (last visited Feb. 8, 2018).

[9] Crosbie, supra note 6.

[10] Id.

[11] Poind, Oxford English Dictionary, http://www.oed.com/view/Entry/146603 (last visited Feb. 8, 2018).

[12] William Craig, Information for John Bannatyne, sheriff-substitute of Lanark, defender, against Andrew Aitken, portioner of Elsrighill, and others, pursuers (Nov. 15, 1779) (Box 4, Scottish Court of Session Records, University of Virginia Law School Library).

Written by

Kate Boudouris

Research, Instruction & Outreach Librarian, Arthur J. Morris Law Library

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Trouble and Fash: Ordinary People and the Scottish Courts

Litigation documents are the “meat and potatoes” of our Scottish Court of Session Records (1759-1834), but the collection is also peppered with testimony, letters, wills, contracts, and other evidence offered by lawyers to help prove their cases. These records preserve the voices of ordinary people—including women, servants, and Erse-speakers,[1] among others—and tell stories that might otherwise have been lost to history. Though it would be easy to overlook these personal histories tucked inside legal documents, they form an extremely valuable part of the collection, illuminating the socioeconomic context of legal disputes and providing information about the burdens and biases of the court system.

The depositions in Farquharson v. Anderson, for example, reveal complicated tensions between the case’s landed litigants and the witnesses, many of them working-class, who were forced to testify. Farquharson was about an alleged romantic entanglement, and the case documents include salacious, even spiteful allegations. Pursuer (plaintiff in Scots law) Jean Farquharson, having birthed a child out of wedlock, sued Alexander Anderson to have a marriage declared on the grounds of “a public courtship, followed by copula,” or consummation of the marriage. In addition to her core claim of an irregular marriage, Farquharson alleged that Anderson had engaged in a scheme to corrupt witnesses and blame Farquharson’s pregnancy on a man named Alexander “Sandy” Milne.[2]

The case proceedings required the participation of witnesses who were debtors, servants, or tenants of the litigants. These individuals found themselves caught between the compulsory power of the courts and the risk of backlash from landlords, creditors, and other influential men who might be angered by unfavorable revelations. Witness Ann Forbes touched on this dynamic, testifying that fellow witness Rachael Stewart had “expressed sorrow that she had been summoned, cursed the parties, [and] said [Rev. Farquharson, minister of] Colston [the pursuer’s brother] had put up a good house for her, and she would lose it.” Stewart’s situation exemplifies the difficulties that might arise for a less privileged witness.

Another witness in Farquharson, Isobel Duncan, also expressed displeasure with the litigation. Duncan, whose “husband ha[d] a farm under the defender,” was drawn into the case after she took part in a nighttime gathering at a neighbor’s farm; Farquharson alleged that during this meeting, several people under Anderson’s influence tried to convince Sandy Milne to marry Jean Farquharson. (For her part, Duncan claimed that she did “not recollect whether she urged or particularly advised Milne to marry Miss Farquharson; but she did express an opinion, that it would be an eligible match for him.”) Having been summoned to testify about the meeting, Isobel was required to travel to Edinburgh from her home in Aberdeenshire. During the deposition, she was asked whether she regretted attending the gathering. She responded:

That she may be sure of that; for that she has felt the smart of it, having had a great deal of trouble and fash[3] in coming so far as Edinburgh, on account of her having been present upon that occasion; and this is the only reason she ever had or expressed for regretting what happened . . .; and that she did regret it before receiving her citation, suspecting, as she did, that sooner or later she would be called upon to give evidence concerning it.

This testimony highlights a side of the legal system that is often overlooked by case reports: the experience of regular people, unversed in the law, who were compelled to help resolve the disputes of their wealthier landlords and neighbors. As our case documents make clear, these individuals raised important questions about the fairness, social cost, and reliability of the process in which they participated.

Testimony of Isobel Duncan in the records of the Scottish Court of Sessions Records.
Testimony of Isobel Duncan, first page.

The testimony in our collection also provides insight about 18th and 19th century cultural norms, including the interface between those norms and the procedures, deliberations, and jurisprudence of Scottish courts. A prime example comes from the case of Macgregor v. Campbell, in which a woman named Katharine Macgregor claimed to have been married to the late Lieutenant Duncan Campbell. Lieutenant Campbell’s family, in line to be his heirs, disputed her claim. Because there was no record of a regular marriage, Macgregor sought to prove the marriage “by cohabitation, habit and repute.”

Testimony centered on the couple’s reputation in the neighborhood. A number of witnesses described the different names that people called Katharine Macgregor. For example, they said that Lieutenant Campbell called her Kate, Katy, “My Dear,” and even “Kate Brodie, which means thick or fat.” Of particular interest was whether Katharine’s neighbors (not to mention her alleged husband) commonly referred to her as “Mrs. Campbell.” If they did call her Mrs. Campbell, one would tend to think that she was married. But what if they didn’t? Would a married woman in Katharine’s neighborhood normally have been called “Mrs.”? Testimony on this issue revealed complex linkages among facts, cultural norms, and legal standards.

One witness told a vivid story that seemed to support the marriage and confirm that neighbors—in at least some cases—called Katharine “Mrs. Campbell.” Betty Macilwhannel testified that she had run into Katharine and Lieutenant Campbell at the Comrie Fair, where:      

. . . the Lieutenant took Kattie Macgregor and the witness into the [public] house: That he then called the landlady, and said to her, ‘Luckie, put on the kettle, and warm a bottle ‘of beer for these women, for do you know this is my wife;’ and the witness understood that he meant Kattie Macgregor, the pursuer: That the pursuer upon hearing this smiled, but said nothing: That the landlady also smiled, and said, ‘If I did not ‘know it before, I know it now:’ That Lieutenant Campbell, the pursuer, the landlady, and the witness, drank the warm beer together, and were very happy over it: that the witness drank to the health of the pursuer as Mrs Campbell. . .

Clear as this testimony may seem, it was not conclusive. The landlady disputed some details of the account, and Lieutenant Campbell’s family claimed that he had called Katharine his wife in jest. Further, Macilwhannel subsequently testified—seemingly to the court’s surprise—that even after their day at the fair, she heard a servant refer to Katharine by her first name. To the court, this familiar form of address appears to have weighed against the idea that Macgregor and Campbell were married. The discussion about this conversation among the witness, the court, and Macgregor’s lawyer provides a fascinating exposition of class differences and cultural variation in Scotland.

The exchange began with Macilwhannel’s testimony that during a visit to Lieutenant Campbell’s house, she sent a servant (who happened to be Katharine’s sister) to announce that she was waiting. After delivering the message, according to Macilwhannel, “the servant bade the witness stay and rest her, and Kattie would rise and speak to her.” The court posed some follow-up questions, asking:

Whether the witness be positive, that when the servant returned and gave the witness the answer to the message at the house of Dundurn, she said that if the witness would stay a little and rest Kattie would rise? [Emphasis added.]

Macilwhannel responded “[t]hat the servant expressed herself exactly as it has been taken down in the former part of this deposition,” and the court pressed the issue, asking “[i]f this did not strike her as something particular after what had passed at Comrie fair?” Macilwhannel said simply that she “did not know what to think of it.”

Likely realizing that this testimony would hurt his case, Katharine Macgregor’s counsel sought to clarify the norms surrounding women’s names. He asked, “[Is it] not a common practice in that part of the country to call married women by their maiden name?”

Macilwhannel gave this nuanced explanation:

…[t]hat it is, according to their station: That the wives of the best farmers get the name of Mrs; but that the witness having long been upon an intimate footing with the pursuer, used the freedom to call her by her maiden name, and the sister (the servant) knew this well: That she knew the pursuer ought to have got the name of Mrs Campbell; but that she, the witness, being so intimate with the pursuer, gave her the name of Kattie Macgregor, both when she spoke of her and spoke to her.

Another witness, James Macisaac, also recognized the class implications of this issue, though he suggested that Lieutenant Campbell’s wife should always be called “Mrs.” Macisaac testified:

That the wives of gentlemen in that country are always called by the names of their husbands, and particularly that the wife of Mr Sinclair, a farmer in the deponent’s neighborhood, but whom the deponent does not consider as equal in rank to Lieutenant Campbell, is called by her husband’s name, though her maiden name was Thomson.

These accounts, with their rich specificity and detail, go well beyond what is relayed in the case report of Macgregor v. Campbell, which is what makes them so valuable. For lawyers (and law students!), it becomes second-nature to focus on rules, legal reasoning, and legally relevant facts, along with the final outcome of a case.[4] But our collection’s “dispatches from non-lawyers”—with their distinctive voices and wonderful descriptions of everyday life—offer a wealth of information about the lives of ordinary people and their interactions with the legal system.

[1] Referring to “[t]he Gaelic of Scotland or (occas.) of Ireland,” the term “Erse” was once “[a]pplied by Scottish Lowlanders to the Gaelic dialect of the Highlands.” Erse, Oxford English Dictionary, http://www.oed.com/view/Entry/64135 (last visited Apr. 4, 2017).

[2] Farquharson’s counsel wrote that Anderson targeted Milne because Milne “was in very indigent circumstances; he was a good-looking lad; and he had been employed as a mason about [Farquharson’s] brother’s house for a considerable period.”

[3] “Trouble, vexation; bother, inconvenience; also, something that gives trouble,” in the dialects of Scotland and Northern England. Fash, Oxford English Dictionary, http://www.oed.com/view/Entry/68383 (last visited Apr. 4, 2017).

[4] For the record, Katharine Macgregor lost her case, Macgregor v. Campbell, [1801] Mor. 12,697 (Scot.), and Jean Farquharson achieved mixed results in her effort to disqualify certain witnesses. Farquharson v. Anderson, [1800] Mor. 16,790 app. at 2 (Scot.).

Written by

Kate Boudouris

Research, Instruction & Outreach Librarian, Arthur J. Morris Law Library

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Scottish Session Papers and the Bar Exam

In the summer, the Law Library provides a quiet study space for recent graduates who are preparing to take the bar exam. Studying for the bar can be a stressful, all consuming experience, and one possible side effect is the tendency to see bar exam fact patterns everywhere. For those suffering from this condition, it becomes nearly impossible to unwind by watching a procedural drama (crim pro!), a soap opera (family law!), or even an infomercial (products liability!).

In the spirit of solidarity, we’ve been considering how the Law Library’s Scottish Court of Session Papers may resonate with the subjects tested on the bar exam. The library’s collection of Session Papers features case materials presented in Scotland’s highest civil court from 1759 to 1834. Despite their origins in a foreign legal system, the documents raise many issues familiar to modern bar-takers. They also feature memorable and significant historical facts.

The case of Birnie and Co. v. Weir, 3 Shaw’s Dig. 1732 [1800], aff’d [1800] 4 Pat. App. 144 (Scot.), presents a colorful example. Samuel Birnie developed a new, “British” form of a bleaching agent called potash. His company claimed in printed materials that this British potash had been “found to answer every purpose in bleaching, &c. equal to the best American pot.” Helen Weir, a bleacher, ordered several casks of the potash for her business but later refused to pay her bill; Birnie brought suit to collect on the account.

Why didn’t Helen Weir pay? According to her lawyers, the British potash contained “a radical latent defect.” Materials bleached with the potash initially looked white, but they turned a reddish or bluish color after being exposed to the air. Because the problem wasn’t immediately apparent, Weir had shipped defective products to her customers—including some whose white thread turned red after being sewn into the seam! Weir argued that the potash was unfit for the purpose of bleaching, and that Birnie should be held responsible for his warranty comparing British potash to American potash. In addition to withholding payment, she raised a claim for damages based on harm to her business and her reputation.

In response, Birnie pointed out that Weir had ordered the potash in three different shipments, all of which were consumed, and that she hadn’t complained until Birnie demanded payment. In Birnie’s view, these facts were decisive. Further, he maintained that British potash was suitable for use in certain stages of the bleaching process (just like American potash); the problem was Weir’s unskillful use of the product. Birnie also explained that the statement comparing British potash to American potash hadn’t been used to advertise the product or to establish its character. Instead, it was contained in “directions” given to customers after they purchased the potash.

Petition of William Alexander and sons (1772)
Petition of William Alexander and sons (1772)

It’s striking how the case materials in Birnie address some of the same questions posed by modern bar examiners: What constitutes a warranty? What happens if there’s a non obvious problem with the seller’s product? How should damages be calculated? The vivid facts and fascinating characters in Birnie bring these issues to life.

Another case in our collection, Colville v. Lauder, [1800] Mor. 1 (Scot.), resembles a multi subject exam fact pattern combining estate law and conflict of law issues. Again, though, the facts matter. Colville is a darker story than Birnie, recounting an ill-fated personal history set against the backdrop of British colonialism.

Shortly after marrying Jean Colville, David Lauder left Scotland under indenture to work on the island of St. Vincent. While living there, he wrote home to describe his experiences with sickness and violence (probably the Second Carib War). David was released from his indenture as a result of the war.

Hoping that a cooler climate would ease his health problems, he reserved enough money for passage to New York and sent his remaining savings to his father, William. David asked William to secure the money in case he returned to Scotland, and wrote that if he was not heard from again, “the money is either at [father’s] or my dear mother’s disposal.” During the next year, David traveled to New York and then Canada, where he was drowned while bathing in the Saint Lawrence River. James Watson, another Scotsman living abroad, wrote that he had “dived for [David] for two hours, and at last brought him up from twenty-four feet [of] water” to bury him. According to Watson, David’s effects included letters stating that he was going home the next year.

David’s death led to the multi-part legal quandary we mentioned earlier. William Lauder kept the money that David had sent him, claiming that his son’s letter was a valid will, and David’s widow Jean Colville sued to recover a share of the funds. Colville’s lawyer argued that it didn’t matter whether the letter was a will, because a choice of law question could resolve the case: Was the claim governed by the law of Scotland or the law of England (which regulated British territories)? Under Scots law, David’s widow was entitled to half of his moveable estate, notwithstanding any will. Under English law, a will could cut off her inheritance completely. Unsurprisingly, Colville argued that Scots law controlled.

Colville's Answer
Answers of Jean Colville.

The Scottish Court of Session Papers show that for hundreds of years, life has been full of messy, surprising, tragic disputes that need to be resolved using legal principles. And like the practice of law, our documents occupy a space where human stories meet the overarching principles used to organize society. The collection provides a rich historical record, insight on past approaches to the law—and evidence that, for better or worse, questions like the ones posed on the bar exam have mattered to everyday people for hundreds of years.  (Bar-takers, please take note: Despite the similarity of the issues raised, the Court of Session may not have reached the result you’d expect based on modern state law.)

Good luck to those preparing for the exam!

Written by

Kate Boudouris

Research, Instruction & Outreach Librarian, Arthur J. Morris Law Library

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