From Law in Blackletter to “Blackletter Law”*
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LAW LIBRARY JOURNAL Vol. 108:2 [2016-9] From Law in Blackletter to “Blackletter Law”* Kasia Solon Cristobal** Where does the phrase “blackletter law” come from? Chasing down its origins uncov- ers not only a surprising turnabout from blackletter law’s original meaning, but also prompts examination of a previously overlooked subject: the history of the law’s changing appearance on the page. This history ultimately provides a cautionary tale of how appearances have hindered access to the law. Introduction .......................................................181 What the Law Looked Like: The Lay of the Land .........................185 Handwriting .....................................................185 Print ...........................................................187 Difficulties in Reading the Law ........................................189 Handwriting .....................................................190 Print ...........................................................193 Why Gothic Persisted Longest in the Law ...............................195 Gothic’s Symbolism ...............................................196 State Authority .................................................198 National Identity ...............................................199 The Englishness of English Law ...................................201 Gothic’s Vested Interests. .203 Printers .......................................................204 Clerks ........................................................205 Lawyers .......................................................209 Nineteenth-Century Transformation of Blackletter Law’s Meaning ..........212 Conclusion . 215 Introduction ¶1 It is a legal term of art so ingrained in the psyche that a lawyer uses it with- out thinking. Practically from the moment of crossing a law school’s threshold, * © Kasia Solon Cristobal, 2016. This is a revised version of a winning entry in the open divi- sion of the 2015 AALL/LexisNexis Call for Papers Competition. The author wishes to thank AALL for a Continuing Education Class Scholarship to attend a course in 2011 at the Rare Book School at the University of Virginia. The author also wishes to thank Jennie Meade and Scott Pagel of the Jacob Burns Law Library, George Washington University Law School, Elizabeth Haluska-Rausch of the Tarlton Law Library, University of Texas School of Law, and Ryan Greenwood of the University of Minnesota Law Library for their encouragement and support. ** Lecturer and Student Services Coordinator, Tarlton Law Library, University of Texas School of Law, Austin, Texas. 181 182 LAW LIBRARY JOURNAL Vol. 108:2 [2016-9] new law students bump up against that peculiar turn of phrase, “blackletter law,” and quickly internalize its meaning of “basic principles of a subject in the law.”1 Lawyers long out of law school depend on it as a stock phrase in their practicing vocabulary, all the way up the ranks to U.S. Supreme Court Justices.2 But where does it come from? For its historic origins, Black’s Law Dictionary provides a suc- cinct summation: “the law printed in books set in Gothic type, which is very bold and black.”3 From this definition, a conundrum emerges—“blackletter law” inti- mates Gothic-ness, but no lawyer uses Gothic today. What happened to the original blackletter law? Investigating this disappearing act uncovers not only a surprising turnabout from blackletter law’s original meaning, but also prompts examination of a previously overlooked subject, the history of the law’s changing appearance on the page. ¶2 Consider the obvious: a literate person today can read and write without conscious effort, no matter the subject and no matter the level of understanding. While even the literati may dismiss Finnegan’s Wake as “unreadable,” they would still find the letters on the page decipherable. And while we modern types produce chicken scratch signatures or find ourselves all thumbs when texting with a smart- phone, in the main, handwriting is a basic skill acquired in one’s tender years, with typing not too far behind. ¶3 Can literate people today read and write this? The change in appearance jars the eyes. Writing in this style by hand would be all but impossible. If reading meant wading through, never mind writing, pages upon pages of densely packed letter shapes like this, one would quit post haste. The look of letter shapes—whether of handwritten, print, or digital origin—either facilitates or impedes a reader’s prog- ress and the production of texts.4 ¶4 When it comes to choosing letter shapes, lawyers today have no shortage of options. No longer constrained by typewriters, lawyers, along with office workers everywhere, can pick from a multitude of fonts that come part and parcel with writing software; they can even design their own. But instead of lawyers being their own font developers, by and large they have stuck to the familiar.5 In the face of this conservatism, a small but steady stream of practical writing on the law’s visual side, 1. THE WOltERS KLUWER BOUVIER LAW DICTIONARY 1547 (desk ed. 2012). 2. See, e.g., Davenport v. Wash. Educ. Ass’n, 551 U.S. 177, 189 (2007) (“And it is also black-letter law that, when the government permits speech on government property that is a nonpublic forum, it can exclude speakers on the basis of their subject matter . .”). 3. Blackletter Law, BLACK’S LAW DICTIONARY 203 (Bryan A. Garner ed., 10th ed. 2014). 4. See, e.g., Thomas Sanocki & Mary C. Dyson, Letter Processing and Font Information During Reading: Beyond Distinctiveness, Where Vision Meets Design, 74 AttENTION, PERCEPTION & PSYCHO- PHYSICS 132 (2012). 5. See, e.g., John Ruch, Modern Typefaces vs. the Massachusetts Court System, BOS. GLOBE, Nov. 2, 2014, http://www.bostonglobe.com/ideas/2014/11/01/modern-typefaces-massachusetts-court-system /PEx8IKSWOINdAUnf5fv1OJ/story.html (describing the debate over the Massachusetts court sys- tem’s continued use of the Courier font). Vol. 108:2 [2016-9] FROM LAW IN BLACKLETTER TO “BLACKLETTER LAW” 183 down to the level of letter shapes, has been percolating over the past decade or so.6 Even courts are having their say via court rules.7 ¶5 Whatever the exact recommendations, all of these writings and rules con- sider it a given that a lawyer’s work should be legible, clear enough for a reader’s 8 easy continuous reading. Even lawyers who do not know a monospace from a serif would endorse the aim of legibility if they gave it any thought. While there is always room for improvement, the principle that the law is and should be as legible as any other subject is shared by lawyers and laypeople alike. ¶6 “Legibility of the law” carries an axiomatic ring to it, but it was not always so. Quite the opposite, in fact. The law’s illegibility to vast swaths of otherwise liter- ate people proved a recurring stumbling block over the ages. It so happens that the letter shapes that proved problematic to read and write sprang from a well of blackletter—variously spelled “black letter” or “black-letter” and what we today call Gothic.9 Investigating the disappearance of Gothic letter shapes necessarily hinges on understanding the history behind the law’s visual appearance. ¶7 The inconceivability of Gothic forms today for everyday use—save for the occasional diploma or Washington Post masthead—is the product of a signal turn of events centuries ago. During the Middle Ages, Gothic reigned as the dominant letter shape in Europe, including England, birthplace of the common law.10 The circumstances then were the reverse of the present, with the literate reading Gothic without a moment’s thought.11 During the Renaissance, Roman letters supplanted Gothic in England. Why? One style of letter form is not intrinsically better than another.12 Rather, shapes that “we recognize as letterforms, and are able to read” are 6. These works range from blog posts to articles to full-scale books. See, e.g., MAttHEW BUttERICK, TYPOGRAPHY FOR LAWYERS (2010); Ruth Anne Robbins, Painting with Print: Incorporating Concepts of Typographic and Layout Design into the Text of Legal Writing Documents, 2 J. ASS’N LEGAL WRITING DIRECTORS 108 (2004); Sam Glover, Normal People (and Lawyers) Shouldn’t Buy Fonts, LAWYERIST (Jan. 21, 2012), https://lawyerist.com/39472/normal-people-lawyers-shouldnt-buy-fonts/ [https://perma .cc/BL79-C7V3]; see also Waldo Jaquith, Typeface Authority, STATE DECODED (Aug. 13, 2012), http:// www.statedecoded.com/2012/08/typeface-authority/ [https://perma.cc/45MW-JH56] (demonstrating how the concern over appearances impacts the design of legal resources online). 7. See, e.g., U.S. Court of Appeals for the Seventh Circuit, Requirements and Suggestions for Typography in Briefs and Other Papers, http://www.ca7.uscourts.gov/Rules/type.pdf [https://perma .cc/6QCS-2UV9]. 8. See MILES A. TINKER, LEGIBILITY OF PRINT (1963), for a classic work on legibility. Tinker defines legibility as “concerned with perceiving letters and words, and with the reading of continuous textual material.” Id. at 7. 9. JOHN CARTER & NICOLAS BARKER, ABC FOR BOOK COLLECTORS 115–16 (8th ed. 2004); see also ALEXANDER LAWSON, ANATOMY OF A TYPEFACE 16 (1990) (cautioning that there has not “been agreement concerning the numerous appellations given to the letter form: in addition to black letter, it has been called gothic, text letter, textur, textura, English, and Old English”). How any given hand or type fits within the larger Gothic category is usually open to multiple interpretations as “even paleographers and bibliographers have always found themselves