The Jealous Mistress, Part VI: An Honor Most Sensitive

Serendipity is distracting and infectious. I felt its early symptoms when, as a plodding mediocrity, I sat in the law library stacks with open books strewn about me while reading up on some arcane point of torts, or contracts, or whatever. While thusly occupied I occasionally stumbled upon a case that grabbed my attention. The case that follows was discovered in just this way. It comes from the law of trusts – to me one of the dryer jurisprudential topics, but one with an occasional juicy moment.

Justice Holmes once wrote, “great cases, like hard cases, make bad law.” But sometimes they make great law – especially if they’re decided by great judges, as we shall see.

The Bristol Affair

At the turn of the 2oth century, Elbridge T. Gerry, wealthy member of the famous family whose name gave us the politically loaded term gerrymandering, owned the Hotel Bristol on Fifth Avenue at 42nd Street in Manhattan. He leased it in 1902 to real estate operator Walter J. Salmon for a term of 20 years. Salmon converted the building into shops and offices at the cost of $200,000, half of which was contributed by Morton H. Meinhard (a “woolen merchant,” according to court records). According to their agreement, Salmon ran the property but split the rental profits equally with his silent partner.

By the time 1922 rolled around, Gerry had acquired more property in the area and wanted to clear the land and erect a superb new building. After other potential investors turned Gerry down, Salmon agreed to be the developer. Unfortunately, he kept the plan to himself and didn't tell Meinhard about it.

The deal was inked in January 1922, and a month later Meinhard caught wind of it. Smelling something fishy, he demanded his fair share. He even offered to split the expenses and possible losses. Salmon refused, and Meinhard filed suit in New York’s equity courts.

The Equity Courts

Equity courts (“courts of chancery”) developed centuries ago in England when the regular courts were hopelessly mired in rules and codes that often thwarted rather than enabled just results. (Fans of Dickens’ Bleak House know whereof I write.) Thus Chancery courts focused mainly on matters of conscience and fairness, and they could order people to do (or not do) things in a way that law courts could not. They achieved justice without regard to burdensome legal procedures. 

Although "law" and "equity" are merged today, New York still had chancery courts in 1922, and Meinhard filed suit there because he felt he had been denied basic fairness. He had been a loyal partner for twenty years; he had put up half the money for the Bristol adventure; and he had carried half the risk of failure. He hadn’t done much besides cash his dividend checks, but he was literally and emotionally invested in the business. To his way of thinking, Salmon would not have received Gerry’s offer if he, Meinhard, had not helped the Hotel Bristol deal get off the ground in 1902.

The trial judge and first level appellate court agreed with Meinhard and awarded him 50 percent of the new business. Salmon, of course, was not thrilled with this decision, so he hauled himself up to Albany and went before the highest court in the Empire State. There he encountered Chief Justice Benjamin Cardozo.

A Fine Point of Honor

Benjamin Nathan Cardozo – one of the greatest jurists and legal stylists of the Twentieth Century – was the original “hermit philosopher,” so called due to his lofty principles and permanent bachelorhood. He served on both New York’s highest tribunal and the US Supreme Court, and his opinions in both venues are often “works of judicial art,” according to judge Richard A. Posner, himself a writer extraordinaire. Cardozo’s decision in Meinhard v. Salmon is a case in point.

After reviewing the evidence and the briefs in the case, Cardozo was appalled at Salmon’s indifference to his partner’s situation. It is true, as Salmon argued, that the new lease was not an extension of the Bristol deal. It was a totally different business proposition. But to Cardozo, Mr. Salmon was not only a co-investor in the Bristol project, he was a fiduciary and had a special responsibility to protect his partner’s interests. Thus Cardozo, acting in effect as New York’s “Lord High Chancellor,” aimed to achieve fairness. He wrote:

Joint adventurers, like copartners, owe to one another … the duty of the finest loyalty. Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty …. Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court. [Emphasis added.]

Wow! Not only was Mr. Salmon being unfair, in Cardozo’s view he had violated a code of honor. Duels have been fought over lesser slights. In the 1700s Meinhard might have slapped Salmon with his glove to demand “satisfaction.”

The End Result

Lawyers, law students and MBA candidates have debated Meinhard v. Salmon for more than nine decades, and many are surprised by the outcome. They find it odd to think that a new business deal made by one supposed “partner” at the end of a profitable 20-year business venture could be challenged this way. The original Bristol lease did not require Salmon to tell Meinhard anything about Gerry’s new plans, and apparently Salmon didn’t actively cover up his negotiations with Gerry. It might not have occurred to him that Meinhard should be consulted.

Salmon was a real estate developer. Meinhard was merely his financial backer in a previous venture. And the land the Bristol sat on was only a small portion of the tract that Gerry wanted to clear and rebuild on. He could have let the hotel property sit idle for a while after the previous lease expired and then approached Salmon with the new proposition.

Regardless of its merits, Cardozo’s decision gave Meinhard the 50 percent share he sought, and from it he and his family profited handsomely over the years from the property Salmon and Gerry built. The Hotel Bristol was torn down and in its place, across the street from Bryant Park and the New York Public Library, rose the 59-storey “500 Fifth Avenue Building.” It stands today on what its website calls “the Smartest Corner in Midtown.” 

And Cardozo’s opinion stands smartly on the legal landscape having, if nothing else, taught generations of law students the meaning of punctilio. ■

The Jealous Mistress Part V: Will Injustice Never End?

Writing about Buck v. Bell reminded the Hermit Philosopher of another case that  addressed an injustice: Skinner v. Oklahoma. Decided in 1942, Skinner involved the “Habitual Criminal Sterilization Act,”  a law allowing for compulsory sterilization of anyone who was convicted three or more times of “felonies involving moral turpitude” (depravity).

Underlying this draconian statute was a belief – related to eugenics and perhaps a vestige of the 19th century pseudoscience “phrenology” – that criminality is an inherited trait. The defendant, Jack Skinner, had been convicted once for stealing chickens and twice for armed robbery. Both those crimes were considered depraved enough to warrant the special penalty.

The Arguments

After being sentenced for his crimes, Skinner to the case to the Supreme Court where his lawyers made various arguments: that the law was an unconstitutional exercise of the state’s “police power” (the power to act for the common good), that it was “cruel and unusual punishment,” and that Skinner had not been allowed to contest the assertion that criminal tendencies are inherited. But those arguments were not persuasive because the court had already decided in Buck v. Bell that sterilization for the common good was permissible, and the procedure was not unusual because the number of them had risen sharply in the fifteen years since Buck was decided. Besides, the Oklahoma legislature had determined that the heritability of criminal tendencies was a fact, so that question was moot.

The Court’s Rationale

Justice William O. Douglas had been assigned the task of writing the court's opinion, and he was undaunted by the apparent dilemma. He bypassed Skinner's arguments “without intimating an opinion on them” and instead found “a feature of the Act which clearly condemns it.” That feature, he said, was “its failure to meet the requirements of the equal protection clause of the Fourteenth Amendment.”

For an example of the inequalities in the law, Douglas pointed out that embezzlement was not covered but chicken stealing was. Someone could be convicted of misappropriation of funds dozens of times and not be sentenced to sterilization, but steal a chicken on three occasions and your days of procreating were over. “We are dealing here with legislation [that] involves one of the basic rights of man,” Douglas wrote, and when the law deals with two similar offenses “and sterilizes one and not the other, it has made as invidious [a] discrimination as if it had selected a particular race or nationality for oppressive treatment.”

No member of the court dissented. Chief Justice Harlan Fiske Stone, who admired the recently retired Justice Holmes and had been on the court when Buck v. Bell was decided, concurred in the Skinner decision. But he would have preferred to decide the case on “due process” grounds and to contest whether criminal tendencies are in fact heritable. “There are limits to the extent to which a legislatively represented majority may conduct biological experiments at the expense of the dignity … and natural powers of a minority,” he wrote.

It’s a nice question, by the way, whether these thoughts might have changed the outcome for Carrie Buck.

Skinner v. Oklahoma did not explicitly overrule Buck v. Bell and did not immediately end compulsory sterilizations, but it was the beginning of the end for eugenics, which lost support quickly after the atrocities of the Holocaust were discovered a few years later. Skinner himself was eventually paroled and moved to California where he died in 1977 at age 70, survived by his wife and a large family that included six grandchildren and ten great-grandchildren.

Rereading the story of Mr. Skinner reminded me of a famous aphorism by Anatole France: “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets, or steal bread.”

More Injustice Corrected

As Buck and Skinner demonstrate, the US is not always known for tolerance, but sometimes things change. A third example reinforces the point.

Under its “Racial Integrity Act of 1924,” the Commonwealth of Virginia decreed that marriages between “a white person and a colored person” were illegal. It was also made illegal to leave the state to evade the law and thereafter return to Virginia “and reside in it, cohabiting as man and wife.”

The law was still on the books in 1958 when Mildred Jeter and Richard Loving, a mixed-race couple, left Virginia for DC where they were wed. When they return to the Old Dominion and began to live together they were indicted, convicted, and sentenced to a year in jail. But the trial judge suspected their sentence if they would agree to leave the state and not return for 25 years.

In announcing punishment, the trial judge wrote:

Almighty God created the races white, black, yellow, Malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be not cause for such marriages [as Mildred and Richard’s]. The fact that he separated the races shows that he did not intend for the races to mix.

Thusly does the Holy Bible supersede the US Constitution, in at least one jurist’s mind. But Mildred and Richard did not agree. They promptly filed suit to challenge the law as a violation of their rights under the Fourteenth Amendment.

In a unanimous decision Chief Justice Earl Warrant wrote,

The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination … [and] there can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race. …

We cannot conceive of a valid legislative purpose [that] makes the color of a person’s skin the test of whether his conduct is a criminal offense.

There is patently no legitimate overriding purpose … which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications [are] designed to maintain White Supremacy.

Accordingly, more than a century after the Civil War and ratification of the Fourteenth Amendment, the Supreme Court finally struck down a de jure (legally recognized) vestige of racial inequality in the US. Bigotry and de facto inequality still remain, of course. Only time and tolerance (not judicial edicts) will change minds and hearts.

Legal Titans

Like Oliver Wendell Holmes and William O. Douglas, Earl Warren is a giant of American jurisprudence. His rhetoric never reached Holmesian heights, but his monumental decisions changed a nation: Brown v. Board of Education (calling for school desegregation), Hernandez v. Texas (giving Mexican-Americans the right to serve on juries), and Miranda v. Arizona (requiring warnings for persons being interrogated by the police) are just three of the landmark cases decided during Warren’s tenure. So controversial were many of these decisions that in the 1960s there was a grass-roots movement to impeach him, especially in the Old South. 

Warren retired from the court in 1969, and by then the country had moved on to other issues. Today he is perhaps best known as the head of the “Warren Commission,” which investigated the assassination of President Kennedy.

It is ironic that Earl Warren came to be reviled by many conservatives. He was appointed to the court by President Eisenhower in 1953 precisely because of his apparent conservatism. It was an appointment Ike would live to regret, just as he would regret the appointment of William Brennan in 1956. It is reported that upon leaving office Eisenhower was asked if he ever made a mistake while President. “Just two,” he supposedly replied, “and they’re both sitting on the Supreme Court.”

Mistake or not, Earl Warren sat on the High Court with some of the twentieth century’s most distinguished jurists: Brennan, Douglas, Hugo Black, Felix Frankfurter, and Thurgood Marshall, to name just a few. And he had a profound effect on the lives of millions of Americans. Among them were the couple whose names head what is perhaps the most aptly named Supreme Court decision of all time: Loving v. Virginia. 

The state’s tourism slogan was adopted in 1969, two years after that decision.

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Part IV: They Done Us All Wrong

Carrie Buck was guilty of nothing but having been born. Seventeen years old and an “inmate” of the Virginia State Colony for Epileptics and Feebleminded, she was alleged to be “mentally defective.” So too was her mother and her infant daughter, the latter being the product of rape by one of her foster parents’ relatives. (The circumstances of the baby’s conception may be a reason the family had Carrie and the child committed.)

Background

The year was 1924, and the Old Dominion had recently decreed that people like Carrie could be involuntarily sterilized to prevent them having “socially inadequate” offspring. So, the state went to court to get approval for Carrie to be neutered. She probably wasn’t at the trial, but if she had been she would have seen a sham proceeding.

The players in this farce included the institution’s superintendent, Dr. Albert Priddy, Commonwealth Attorney Aubrey Strode, and Carrie’s court-appointed attorney, Irving Whitehead. All three were proponents of the pseudo-science known as “eugenics,” the moralistic movement that sought to improve the human gene pool by breeding out traits that supposedly cause various social ills. Among the “inadequate classes” of persons that eugenics targeted were the feeble-minded, insane, criminalistic, epileptic, inebriate, blind, deaf, deformed, diseased and dependent.

Virginia’s law was not as strident as the most hard-core eugenics statutes, but it did reflect a belief that some people who are “a danger to society” could be discharged from state institutions if they were unable to bear children. “The health of the patient and the welfare of society may be promoted in certain cases by the sterilization of mental defectives,” the law said. Carrie Buck was thought to be such a person, and her case was orchestrated to test the constitutionality of the Virginia law.

Trial and Appeal

At the trial, Mr. Strode presented Dr. Priddy and numerous other “expert witnesses” to prove Carrie’s “feeblemindedness.” Her attorney, Mr. Whitehead—who had served on the state institution’s board of directors and would be disqualified by today’s conflict-of-interest-standards—presented no witnesses on his client’s behalf. Not surprisingly, the Virginia trial and appellate courts quickly decided that the law was valid and that the “inmate” met the standards for sterilization. Then, as planned, Whitehead petitioned the US Supreme Court to hear Carrie’s appeal and get a final imprimatur of constitutionality.

On May 2, 1927, as the clerk called “Oyez! Oyez! Oyez!” (“hear ye” in Law French), nine berobed justices entered the Supreme Court chamber to announce the decision in Buck v. Bell. (Dr. Priddy had been succeed by Dr. J.H. Bell as superintendent, hence he was the respondent.)

Presiding was Chief Justice William H. Taft, the only ex-President ever to serve on the court. To Taft’s right, as is the tradition, was the senior associate justice, Oliver Wendell Holmes, Jr., who had been on the high court for a quarter century. When he retired five years later at the age of 90, he completed an incredible record: a total of 50 years in judicial robes, including 20 years on the highest court of Massachusetts. 

Holmes’ long tenure, many opinions, and distinguished scholarship make him one of the titans of American jurisprudence. But titans can be wrong, no matter how clearly and forcefully they state their views. Holmes was influenced by Social Darwinism, the now discredited belief that “survival of the fittest” can be used to understand the evolution of whole societies, not just animal species. Eugenics had not yet been tainted by the Nazi’s later enthusiasm for it, and it seems that few questioned its underlying morality. They simply analogized it to the selective breeding of animals.

The Decision

With strong voice and imposing manner, Holmes read his rather short (1,100 word) opinion. After summarizing Virginia law and the state’s justification for it, he detailed the legislature’s built-in safeguards: notice to the inmate of the state’s intentions, appointment of a guardian, a formal hearing, the right to appeal, etc. etc. All very proper. As Holmes put it, “the rights of the patient are most carefully considered.” He added that he had “no doubt” that in respect of procedural safeguards, Carrie had been given due process of law.

But Carrie’s appellate lawyers were not arguing that the procedures were wanting. They argued that the very substance of the law was improper; that even if procedural steps were in place, her fundamental rights under the constitution had been violated. In other words, Carrie Buck’s case rested on the proposition that you can’t enforce an unfair law fairly, and such a law still violates one’s right to “due process.”

Scornful of due process arguments and disinclined to second guess a state legislature, Holmes disposed of Carrie’s position rather summarily. He wrote than the facts proved she was likely to be the parent of “socially inadequate offspring,” that sterilization would not harm her health, and that the good of society would be promoted if the surgery were carried out. Then the crusty, thrice-wounded Civil War veteran revealed his true colors:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State [to make] these lesser sacrifices [such as sterilization] … in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.

Whoa! Did he just write that? “Three generations of imbeciles are enough”?! That sentence jumped off the page when I first read it, and it haunts me today. It is hard, if not impossible, to find a less empathic statement in a Supreme Court opinion. And judged by today’s standards, the outcome is nothing short of draconian: Carrie Buck, a teenage rape victim, was to be involuntarily sterilized by the Commonwealth of Virginia on the basis of faulty science, faulty facts, and flaming bigotry against the disabled.

Buck v. Bell Today

In 1881 Holmes had published a classic treatise, The Common Law, in which he wrote:

The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.

It is clear that the “felt necessities” of the 1920s greatly influenced the Supreme Court when it decided Buck v. Bell, and there was little disagreement at the time about the outcome’s rectitude. There was no sense of moral outrage. There were no vituperative editorials, no calls for impeachment. Only one justice, Pierce Butler, dissented from Holmes’ decision, and he declined to write an opinion.

More than ninety years later the case has not been forgotten. It has never been explicitly overruled, but its principles are dead. Holmes would understand why the “prevalent moral and political theories” of today inspire contempt for his decision.

The Aftermath

Carrie Buck was released from the Virginia Colony shortly after her tubal ligation. She went on to marry twice and is said to have spent much of her remaining 56 years helping others. But she always regretted that she could not have more children. “They done me wrong. They done us all wrong,” she is quoted as saying.

She died in 1983 at the age of 76 and is buried in Charlottesville, VA, near the grave of her illegitimate child, Vivian, who died of measles at age eight with no sign of mental handicap.

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Next: Cases in the wake of Buck v. Bell.

Jealous Mistress Part III: Negative Pregnants and The Like

In the second post of this series the Hermit Philosopher shook down the echoes of the Norman Conquest and its effects on legalese. Exhibit A was Kohlbrand v. Ranieri, a weird Ohio case involving linguistic couplets and similar lawyerisms. The post ended by foreshadowing a discussion of the “negative pregnant,” malpractice in Michigan, and the question, “what is a bank?” So, as promised …

What Hath William Wrought? 

If it were not for Guillame le Conquerant, lawyers might write plain English. Instead, we use redundant tautologies (ahem!) like couplets and weird syntactical structures like the “postpositive adjective” and the “negative pregnant.”

Postpositives – a descendant of Law French – were explained in the previous post as phrases in which the adjectives follow the word they modify. In addition to the examples given earlier, they include agent provocateur, battle royal, body politic, court-martial, and – God Almighty! – many more.

A “negative pregnant” is another postpositive phrase, and it means a denial that implies an affirmation. For example, if a witness is asked whether he stole $100 from the plaintiff, on March 22, 2019, he might reply, “No, I did not.” Left uncertain, of course, is whether he stole that or some other amount on that or some other date from the plaintiff or someone else. Thus the negation is pregnant (fraught) with meaning.

William I of England – William the Conquerer – is not culpable (from Latin culpa, “fault”) for all of the muddled legal writing we see today, but nearly 10 centuries ago he set in motion some nefarious linguistic practices that make my teeth itch.

Medical Malpractice Muddle

Consider the following passage from a Michigan case decided in 1971:

This appeal presents a very simple question, but it is fraught with great danger for the public weal. The question is: Was the trial court in error in refusing to grant defendants’ motion for a judgment notwithstanding the jury’s verdict for the plaintiffs?

Do you feel in danger? The public weal (wellbeing) is threatened! Mon Dieu! Instead of talking about the Michigan-Ohio State game, people all over Ann Arbor are worried that the trial court was in error when it refused to grant the defendants’ motion.

This was a medical malpractice case. The plaintiff, Mr. Guilmet, had horrible peptic ulcers. He went to Dr. Campbell, who advised surgery, said it was a very simple operation, and said there was no risk to it at all. “After this operation you can throw your pillbox away; your Maalox you can throw away.” Thusly did Dr. Campbell essentially guarantee that Mr. Guilmet would be cured.

Alas, he wasn’t cured. He suffered numerous complications, had to undergo three other surgeries, contracted hepatitis and other infections, lost about 80 pounds, had sleep disorders, and even lost his job. He sued Dr. Campbell for negligence and breach of contract. The jury wasn’t convinced Dr. Campbell had been negligent, but it did hold that he had breached his contract (his promise) to cure the patient. For this they awarded the equivalent of about $310,000 in today’s dollars. Campbell’s lawyers moved to set aside the jury’s findings – that is, they moved for a “judgment notwithstanding the verdict.” The judge denied the motion, and Campbell appealed.

Despite the befuddled way they stated the issue, the appellate judges affirmed the trial court decision. Simply put, the question was whether a medical malpractice (negligence) case can be decided on the basis of contract law. The clear conclusion of Guilmet v. Campbell is: Of course it can be. Whether the defendant is a physician, a plumber, or an auto mechanic, if they guarantee to fix something and fail to do so, that’s a breach of contract. Dr. Campbell didn’t just discuss the surgery with his patient, he browbeat him into consenting to it by promising he would get well. Instead, he got worse. Guarantee breached. End of case.

Other Purveyors of Pestilent Prose

Lest you think judges are the main sources of muddled thinking and wretched writing, consider the work of our elected legislators. Open any volume of state or federal statute books and you can find gems like this one, chosen more at less at random from a portion of the US Code dealing with banks and banking:

Wherever the word “bank” is used in this Act, the word shall be held to include State bank, banking association, and trust company except where national banks or Federal reserve banks are specifically referred to.

The terms “national bank” and “national banking association” used in this Act shall be held to be synonymous and interchangeable. The term “member bank” shall be held to mean any national bank, State bank, or bank or trust company which has become a member of one of the reserve banks created by this Act. The term … “the continental United States” means the States of the United States and the District of Columbia. [12 U.S.C. § 221]

Raise your hand if you can now explain what a “bank” is.

I cannot resist picking apart this stupefying passage. It is under “definitions” in the Federal Reserve System law, but it actually defines nothing. It merely says that the term bank includes some other things that, apparently, aren't otherwise considered banks. And, by the way, the term doesn’t just include those other things, it “shall be held to include” them. Why use one word when five will do?

A definition, by definition, must clearly state a term’s precise meaning. Definitions are hard to write, and legislators are notoriously bad at it. I learned somewhere along the way – about seventh grade, I think – that a definition must not include the word being defined. You can’t make clear the meaning of a word by using the word itself. If you intend to define bank, you can write something like “a business in which money is kept for saving or commercial purposes or is invested, loaned or exchanged,” but you can’t use bank in the definition of “bank.” If you do, the statement is circular and meaningless.

Apparently some Members of Congress skipped the seventh grade.

One more point about this lousy provision. According to its author(s), the “continental United States” means all 50 states and DC. Thus, by fiat of Congress, Hawaii is part of the North American Continent. Never mind that it is in the middle of the Pacific Ocean about 2,500 miles west of Los Angeles.

Congress defines things weirdly on occasion. For example, under federal tax law, a tomato is considered a vegetable, even though high school botany students can tell you that it’s a fruit – the fleshy, seed-bearing part of a flowering plant. It’s all well and good to know that a tomato is a fruit, but it’s smarter not to put it in fruit salad. 😊

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Up next: A jurist who “bucks” the trend. 

Part II: The Normans are Coming!

Note: This series of essays on interesting court decisions and good writing began a few days ago. The second installment leads to a 2005 property case, but before I describe it, a little history is in order.

    Anglo-American jurisprudence goes back at least as far as the Battle of Hastings in 1066. In the years that followed that watershed event, English kings took a hotch pot of conflicting village customs and replaced them with legal principles to be applied throughout the country in the “King’s Bench” courts. This led to a system of consistent justice that became known as the Common Law of England. Those principles crossed the Atlantic to the North American colonies, and they remain the basis for US common law today. It is a rich legal tradition that stretches back nearly a millennium.

    What has this to do with the Normans coming, as mentioned in title above? You may recall that the first king of England after the Battle of Hastings was William I, also known as “William the Conqueror.” What you might not realize is what he conquered was England. He invaded from Normandy (Northern France) and defeated the forces of King Harold. Little did Guillame le Conquerant know how his “Norman Conquest” would reverberate through the centuries. Its echoes were heard, of all places, in Ohio a few years ago.

The Facts

     In 1955 a couple named Frey sold some land near Cincinnati to the Monfort Supply Company. The land was subject to an easement (a right of way) for an oil pipeline that ran underground from Texas to northwestern Ohio. The easement provided that the pipeline company could, if necessary, access the property to make repairs. So far, so good; but there was a problem: the deed that the Freys gave Monfort said the easement was recorded in “Deed Book 2832.” In fact, it was recorded in Deed Book 2382.

     In 1986 Monfort subdivided the land for single-family homes, and the Ranieris bought a house in the new subdivision. The deed the Ranieris received warranted that the title to the land was “Clear, Free and Unimcumbered” [sic], and it promised that Monfort would defend the title against all claims of defect. The deed did not mention the easement outright; it only referred to a plat book that referred to an easement in the nonexistent “Deed Book 2832.” If anyone did a title search, they didn’t find the easement.

     In 2001 Mr. and Mrs. Kohlbrand bought the house from the Ranieris, and soon after moving in they learned of the pipeline company’s legal right to come onto their property. They were not amused. They had paid for a clean title, but they got property that, being subject to an easement, was worth less than what they paid.

     The Kohlbrands promptly sued the Ranieris, who promptly sued Monfort to force it to make good on the promise to defend the title. The trial court agreed with the Ranieris, and ordered Monfort to pay all the Ranieris’ attorneys’ fees and court costs plus any damages to be awarded to the Kohlbrands in their suit against the Ranieris.

The Appeal

     When Monfort appealed the decision, it encountered the Honorable Mark P. Painter, a veteran of the appellate bench who apparently does not tolerate specious arguments and legalese. Writing for a unanimous three-judge panel, Painter explained the facts and then focused on Monfort’s tortuous argument: “that the deed referred to the plat, which referred to the easement, which meant that the easement was incorporated by reference into the deed.”

     Under the heading “Legalism at its Lowest,” Judge Painter made quick work of this pettifoggery with the simple declarative sentence, “Not so.” He pointed out, “If Monfort had wanted to create an exception for the pipeline easement, it simply could have. But it did not.” And the plat reference does not save Monfort because “the reference to the easement in the plat was wrong.”

     Monfort’s lawyers also argued that all their client had been obliged to do was to convey a “marketable” title and that a marketable title does not have to be free of defects, it only has to be good enough to satisfy the ordinary buyer. In the lawyers’ words, “Although a ‘clear title’ is one that is not subject to any restrictions, [this case] involved a ‘free and clear’ title, which is the same as a marketable title.” (Actually, the case involved a “clear, free and unimcumbered” title, but let’s not pick nits.)

    With all apparent sincerity, Monfort seemed to be saying that a “free and clear” title is not as good as a “clear” title. At which point Judge Painter began to hear echoes from 1066, as his opinion explains.

 Free and clear mean the same thing. Using both is an unnecessary lawyerism. Free is English; clear is from the Old French cler. After the Norman Conquest, English courts were held in French. The Normans were originally Vikings, but after they conquered the region of Normandy, they became French; then they took over England. But most people in England, surprisingly enough, still spoke English. So lawyers started using two words for one and forgot to stop for the last 900 years.

 So free and clear do not mean separate things; they mean, and were always meant to mean, exactly the same thing. Just as null and void and due and payable mean the same thing. All of these couplets are redundant and irritating … and they invite just what has happened here ­– an assertion that they somehow have different meanings.

 The Norman Conquest was in 1066. We can safely eliminate the couplets now.

Hear the Echoes

     As I read this opinion I started thinking more about the effect the Norman Conquest has had on legal writing over the centuries. Because of its ancient roots, the law uses terminology that most English speakers find supremely inane. For example, in your “last will and testament” (itself a couplet) after perhaps leaving some money to charity, you want to give everything else to your children. But you can’t simply say so. No, you must say you give, devise and bequeath the rest, residue and remainder of your estate to them. (“Estate,” by the way, is from Latin via Old French.)

     Similarly, if you buy my house, the contract doesn’t just say I “sell” it to you. Certainly not. It says that I convey and grant to you all my right, title and interest in the property. Other examples of this silliness include fit and proper, metes and bounds (a way to describe property lines), final and conclusive, and so on. Lawyers rationalize this practice by saying that the phrases have become “terms of art,” have well accepted meanings, and must be perpetuated lest we invite more goofy arguments like those in the Ohio case.

     But the fact is that lawyers often use these expressions because we are lazy. We read them in form books or someone else’s document, and we copy/paste them into “our own” work product. It’s a shame we cannot break the surly bonds of William the Conqueror and write what we mean in simple English sentences.

     Most professionals — scientists, philosophers, physicians, and others — have their own special argots, of course. But lawyers are masters of the abstruse; we use a style and vocabulary that makes our work seem harebrained to some and incomprehensible to many. We throw in words from Old English and Old French (“Law French” it is sometimes called) plus Latin expressions such as:

● res ipsa loquitur (“the thing speaks for itself”)

● habeas corpus (“produce the body”)

● ipso facto (“by the fact itself”)

● stare decisis (“it stands decided”)

     Another vestige of the Norman Conquest is our affinity for postpositives — words that follow the word they modify, like adjectives do in French. There are more of these than you might suppose: attorney general, surgeon general, heir apparent, prince regent, and arms akimbo, to name a few. Postpositives are curious little gems; because the noun comes first, the plurals seem backward: attorneys general and surgeons general, for example.

     We can’t blame William the Conqueror for all the muddled legal writing we see today but, to quote Judge Painter, “Would that Harold had not lost the Battle of Hastings.”

# # #

Coming next: Negative pregnants, malpractice in Michigan, and what is a bank?

The Jealous Mistress: Part I

“Of litigation, like war, there is no end.”

­- Robert Traver    

When the Hermit Philosopher was in college studying English and history while nominally majoring in political science, he ran across a delightful little book: The Jealous Mistress, by Robert Traver.  In real life Traver — who also wrote Anatomy of a Murder, among other things — was John D. Voelker (1903-1991), a Michigan attorney, prosecutor, and judge. The Jealous Mistress is his anthology of fourteen short, well-written essays about interesting court decision.

“Interesting court decisions” is not an oxymoron. Although rare, they do exist, and in his book Traver/Voelker charmed readers with the human-interest stories behind his chosen cases. Every lawsuit, after all, begins with real people and a real situation. That situation might involve the terms of a will, damages from an auto accident, or the violation of somebody’s civil rights. It might entail an allegation of medical malpractice, or a copyright violation, or a perceived injury to one’s reputation.

Whatever its occasion, each case is the story of a dispute resolved without vigilantism, the triumph of the rule of law over anarchy, and “the difference between a debate and an alley fight,” as Traver put it more colloquially.

The judicial decision is the denouement of the story, a brief chapter in the endless saga that is the common law. Unfortunately, decisions that the general public know about are rare. Roe v. Wade, Brown v. Board of Education, and Bush v. Gore, might fall in that category. And history buffs will recognize Marbury v. Madison, Plessy v. Ferguson, and Dred Scott v. Sandford. But most judicial decisions go unnoticed by everyone but the parties involved.

When the HP recently found his copy of Traver’s book — now more than 50 years old, yellowed and dog-eared — he decided to chronicle a few more interesting cases in the way Traver did. “Certainly,” he thought, “in the mountains of judicial ore I can find some nuggets that will interest the lay reader.”

So, what will follow in future posts are essays on interesting but little-known cases, each of which prompted some musings, tangents and flights of fancy. Such diversions are reminiscent of after-hours conversations a few of us had with Professor Elmer Hilpert at Washington University School of Law years ago.

Although somewhat crusty in class — he was “shocked, shocked!” that there were female lawyers — Hilpert was a sweetheart inside and would occasionally meet with us at a favorite watering hold at the end of the day. Wearing his signature three-piece suit and sipping his gin on the rocks from a silver goblet kept for him on ice behind the bar, he would expound on various subjects: a constitutional principle or a development in labor law, perhaps.

One topic would lead to another as we tyros offered our sophomoric viewpoints. It might start with a major case, but like the steel balls in a pachinko machine the conversation could bounce anywhere … from Miranda v. Arizona … to criminal justice … to Curt Flood’s challenge of baseball’s reserve clause. In all of this we were egged on each time Professor Hilpert leaned in and said, “Now that reminds me ….”

The stories that will follow are like that. One case leads to another, which in turn recalls another topic, which … well, you get the point. I thank Elmer Hilpert for encouraging us to ruminate that way. May he rest in peace.

And, by the way, I wonder what happened to the silver goblet engraved “From the Class of 1971” that we gave him when we graduated.

Shakespeare on Healthcare Reform

We sometimes hear that the United States has “the best healthcare system in the world.” But there are at least two objections to that claim.

First, it is somewhat anomalous to call our fragmented approach a “system.” Consider that the federal government alone has six major health care provider or insurance programs: Medicare, Medicaid, the State Children’s Health Insurance Program (SCHIP), the Department of Defense TRICARE programs, the VA's clinics and hospitals, the Indian Health Service, and the US Public Health Service. Through these efforts the federal government provides (or in the case of Medicaid, helps to fund) health care to about one-third of Americans and research and prevention activities that can benefit everyone. 

Below the federal level there are myriad public and private entities that also contribute to the delivery of health services. These of course include private hospitals, physician practices, long term care facilities, hospices, employer-owned clinics, etc. There are state- and county- and city-owned hospitals; state and local health and public safety and environmental departments; and other government-sponsored human services. And in the private sector are the many charitable entities that sponsor recreational facilities, youth development programs, and health education.

Calling this gallimaufry of services a system turns logic on its head.

A second objection to the claim of “best healthcare system in the world” is that our overall health status is poor relative to that of other industrialized nations. Consider this data from a recent Modern Healthcare article:

●  The US ranks 26th out of 35 developed countries in life expectancy;

●  Our infant mortality is 3 times higher than Japan’s, higher than every other Western nation, and only better than countries like Mexico and Turkey;

●  New mothers in this country die at a rate of 17.2 per 100K births, a 46% increase in the last two decades; and

●  More than 27 million Americans lack health insurance, most of those being either poor and/or members of an ethnic minority.

In sum, for those who are covered by some form of insurance or who can afford to pay out of pocket, the highest-quality healthcare on the planet is available in the United States. But not everyone can access the care they need, so the claim that we have the best healthcare system in the world is dubious, if not risible.

These thoughts raise a fundamental question: Should we have a right to healthcare? This is the profound topic known as “distributive justice” — how goods, benefits, and burdens should be fairly allocated in a society. Uwe Reinhardt (the late, great Princeton economist) phrased it this way after President Clinton’s health reform initiative failed in 1997:

As a matter of national policy, and to the extent that a nation’s health system can make it possible, should the child of a poor American family have the same chance of avoiding preventable illness or of being cured from a given illness as does the child of a rich American family?

The Hermit Philosopher thinks the answer is a clear, resounding “yes.” But politicians and policy makers are chary of confronting the issue explicitly because moral questions are complex and fraught with emotion, and a thoughtful response doesn’t make a good sound bite or campaign slogan. Thus, we grub on in a muddle, making great progress in science and bringing about wondrous cures, while the public policy questions remain mired in rancor, confusion, litigation, and political posturing.

For more than a century have these issues haunted us. Theodore Roosevelt called for national health insurance in 1912. FDR tried but was unable to make it part of Social Security. Truman’s ideas went nowhere, and LBJ had to settle for coverage of the elderly and poor (Medicare/Medicaid). Richard Nixon proposed a plan that might have resulted in universal access 45 years ago, but the Watergate scandal ended his tenure. Bill Clinton’s proposal went down in flames. And the current President is doing all in his power to decimate the Obama era’s Affordable Care Act, which is the closest we’ve come yet to systemic reform.

In the next few months political candidates will spew millions of words bloviating about healthcare, but darkness, chaos and conflict will continue to “hover through the fog and filthy air.” The result will be little more than "tales told by idiots, full of sound and fury and signifying nothing." 

Lord Macbeth and the witches would understand.