Change. The eternal constant. I was thinking about this recently when two of my offspring were contemplating relocation. My Boston-area son is buying a new house and my daughter's husband is getting transferred to Burlington, VT, the US headquarters of his company. As their plans materialized, I realized it was time for a change in my life too. I love San Diego, but there are other places to go and good reasons to explore them. So, here's the plan . . .

I will sell my condo in the spring, buy a motor home, and drive across the country with my cats and a friend. I'll drop the friend off at his place in Baton Rouge, visit my Atlanta and Pennsylvania sisters along the way, and settle in beautiful Burlington on the shores of Lake Champlain.

Like most "correct" decisions, this one practically made itself. I’ll be near two of my offspring and all three grandkids. But it did cause me to reflect on other milestone moments in my life, all of which led to the following thoughts.

Leaving one's home or job is like coming to the end of a good book: you're glad to have been there and sorry it has to end. Although you look forward to the next one, there's some anxiety because you're not sure it will be as good as the last. The German word for this uneasiness is Schwellenangst — the fear of crossing a threshold to embark on something new. Considering the number of places I've lived (21 at last count), I've crossed that threshold many times and there was some Schwellenangst at each one. 

The most severe symptoms came when I considered leaving the Navy to seek civilian employment. I was quitting a tenured position in the "regular Navy" (not USNR) that guaranteed me at least a 20-year career and a retirement package that would include a monthly paycheck and healthcare coverage for me and my dependents. It was an anxiety-ridden moment. But after exploring all the options, when the decision felt right, Sue and I laid the uneasiness aside and treated the move as an adventure, an occasion for optimism and hope. 

I believe each of us is prepared to cross our personal threshold to grasp the opportunities that lie beyond. As my wonderful Uncle Fred says, "Ever onward!" 

Love to you all, and I'll see you on the other side of the threshold, Schwellenangst be damned! ■

From: Hermit Philosopher

To:       Year 2020

Subj:    You Suck!

Dear 2020:

 

First of all, please note that I’m typing this with just my middle fingers, because that’s how I feel about you.

 

You began okay, I guess, but in March you started to turn sour and now you’re a total shit show. We have wildfires throughout the West, flooding in the South, a pandemic of historic proportions, protests in the streets over social justice, school and business closures, high unemployment, and an economic recession – all of which is exacerbated by there being a mendacious fool in the White House whose only aim is to get himself reelected and thus feed his galactic ego. Until two days ago I didn’t think things could get much worse.

 

Then Justice Ginsberg died.

 

Her death threatens to make a shambles of an already contentious national election. The Orange Genius – who is not doing real well in the polls – is pushing to have a nominee confirmed quickly, and his toady, Senate majority leader Mitch McConnell, agrees with him. So does another toady, Sen. Lindsey Graham, who pledged his support for Trump in “any effort to move forward regarding the [Supreme Court] vacancy.”

 

Oh the hypocrisy! This is the same Mitch McConnell who blocked President Obama’s nomination of Merrick Garland a full eight months before the 2016 election. And it’s the same Lindsey Graham who wanted to allow a vote on that nomination. He said at the time, “I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.”

[Fact check: CSPAN, March 10, 2016, https://twitter.com/cspan/status/1307172635298725888?s=20.]

 

So, 2020, see how screwed up you are? Fires. Flooding. Pestilence. Mendacity. Hypocrisy. What’s next, locusts? I can hardly wait for you to be over. I’m going to stay up until midnight on New Year’s Eve not so much to ring in the new year but to make sure you leave!

 

More on this Dystopian Year

 

A friend sent me a long and thoughtful email in response to my June 3 post about social unrest and the concept of “white privilege.” His comments prompt me to expound a little more.

The email started by citing a city councilwoman in Minneapolis—a supporter of “defunding” the police—who said that to expect a police response to a home burglary is an example of white privilege. I’m not sure what she meant, and I suspect she wishes she’d given a more nuanced answer, but the example got me thinking more about what white privilege does mean and how the term can be understood in various ways. 

My friend finds the term white privilege offensive. I don’t. To me, it is shorthand for the undeniable advantages that I have in society merely because of the color of my skin. It’s as though at birth I was given an invisible packet of permission slips that non-whites are not given.

For example, in my packet I have a pass to stroll through my upscale neighborhood at night without fear that the residents will look at me with suspicion. But if a young Black man were to take the same walk, the first thought that would go through my neighbors’ minds (and mine too, I admit) would be to wonder, “What’s he up to?”

As another example: in a comedy routine 25 years ago Chris Rock said: “There ain’t a white man in this room that’d trade places with me … and I’m rich! That’s how good it is to be white.” (His routine is on YouTube, and the comment can be heard beginning at about 2:00 of the clip.)

These unconscious benefits that we have as members of the majority in this predominantly White society are what “white privilege” means to me. The term has been around academic circles for decades but has only recently been brought into the mainstream through social media, the BLM campaign, etc. And it clearly has provoked defensiveness and negative responses from many.

That’s the problem with shorthand expressions: they mean different things to different people. But we can’t always use 200 or so words (as I just did above) to define what we mean. There has to be some term to capture the thought. My friend suggested one in his email: “air of entitlement.” I may start to use that phrase.

My friend also finds some of the language surrounding the Black Live Matter movement to be problematic. He wonders why responding, “All lives matter” is inappropriate. I think the problem with saying “all lives matter” is that it dilutes the emphasis on race. People weren’t saying “all lives matter” before the BLM movement began, so saying it now is a bit of a putdown.

Consider this: after the Boston marathon bombing, which killed three people and injured hundreds of others, we kept hearing “Boston Strong.” Suppose someone had said “Yeah, but thousands died in the 9/11 bombings, so New York Strong too.” I think the people of Boston would have felt that the importance of healing Boston had been minimized.

And if after 9/11 someone had said “Yea, but tens of thousands died in Hiroshima and Nagasaki,” the people of New York would likewise have been right to feel diminished.

One author I read about likens it to a wife asking her husband if she's pretty and the husband responding, "All women are pretty." That probably wouldn’t go over too well, right?

Returning to the Minneapolis city councilwoman’s issue, “Defund the Police” is another awkward slogan. The people who use that expression can’t seriously mean to abolish policing entirely. As I said in my August 6 post, without some mechanism to enforce societal standards, life would be “solitary, poor, nasty, brutish and short.” What the “Defund” slogan means instead, I think, is that some of the police budget should be reallocated to agencies better suited to deal with particular situations.

I believe it’s a fact that most calls for the police involve nonviolent encounters which might be better handled by different departments. They concern issues of mental health, addiction, and homelessness, for example. But people reflexively call the police emergency number to report these situations.

I did it myself once. About 2:30 one morning I woke up to the sound of a homeless woman half a block away shouting F-bombs. (I knew she was homeless and a little nuts because I’d seen her around the neighborhood before). Not knowing the number for social services, and doubting that they would have responded timely had I even known it, I called 9-1-1. Two patrol cars arrived within three or four minutes, and the officers were able to defuse the situation and send her on her way.

I went out to thank them when she had left the scene. They said I had done the right thing to call but also implied that it really wasn’t their responsibility; it was a mental health issue. Since the woman didn’t appear to be a danger to herself or others, there was nothing they could do but tell her to use her “inside voice” in the future.

I think the “Defund” folks are merely saying that it would be a better use of taxpayer money to shift some funding from police departments to other agencies that are better trained to deal with these kinds of issues. Doing so would be consistent with the push to decriminalize and destigmatize people with mental health conditions, addiction problems, etc.

The expressions “White privilege,” “Black lives matter,” and “defund the police” are examples of how words trigger different responses from different people. We should always try to understand the intent before we react negatively.

I’m reminded of a State Department official’s comment years ago in response to a confused reporter: “I know you believe you understand what you think I said, but what you don’t realize is that what you ‘heard’ is not what I meant.”

We must always try to ensure that what we “hear” is the intended message, not just what our mental filters lead us to believe. ■

Dystopian Summer

The pandemic continues, and “shelter in place” orders remain in effect. Being a confirmed introvert, the Hermit Philosopher has no problem complying—after all, he’s been “social distancing” his whole life—but he feels a tad bit guilty that he doesn’t object to being told to stay home.

Just a little guilty, mind you. Not a lot. By staying home he doesn’t have to deal with idiots who flout the rules that are meant to protect us from each other and from ourselves.

For example, we see news reports of crowded bars and beaches. We hear stories of shoppers freaking out when told they must wear a mask. We witness protest marches decrying “government oppression.” An Ohio woman at one such protest stated in a TV interview in July, “It’s my body, so it’s my choice whether to wear a mask or not.” It would be interesting to know if she and her fellow bare-faced marchers contracted the virus and how many others they infected. Alas, we will never know.

The Vice President and his task force wear masks. Republican senators like Mitch McConnell and Lamar Alexander wear masks. Even President Trump wore a mask (once or twice). Going without one while screaming about your “constitutional rights” or some nonexistent “ADA exemption” is not patriotism, it’s boorish. It makes you a selfish jerk. Don’t mistake inconvenience for tyranny.

The HP understands the financial hardships this situation has caused. He understands the frustration. He knows we must grow the economy again and reopen schools, shops and restaurants as soon as possible. But we must first get the pandemic under control. That’s what public health laws are meant to do: protect the public’s health.

One of the main purposes of government at any level is to provide for the wellbeing of its citizens. Without some kind of standards – law, if you will – society breaks down and life will be “solitary, poor, nasty, brutish and short.” (Thomas Hobbes, 1651.)

We must do better. We must all accept personal responsibility and think about the bigger picture. Like it or not, we are all in this together. It’s not just about you.

Dystopian Spring

I’m having flashbacks. Flashbacks to other times of social unrest that I’ve lived through.

In the 1960s there were scores of race riots, especially in the summers of ‘64 and ‘67 and after the assassination of Dr. Martin Luther King, Jr., in 1968. The 1970s saw protests and riots over school busing; the Vietnam War; Native Americans’ occupation of Wounded Knee, SD; and other issues. In the early ‘90s racial tensions exploded in “South Central” Los Angeles and elsewhere after the acquittal of Rodney King’s police assailants.

Research shows that there have been significant riots somewhere in our country virtually every year of my life. All of them were related to social justice issues – usually race-related – and the reasons are understandable: when a large segment of the population feels powerless and disenfranchised, a single incident (such as MLK’s assassination) can cause the anger to erupt.

In this dystopian spring of 2020, however, the unrest stemmed from not one but a series of incidents captured on video: a white woman calling 911 because a black man had asked her to leash her dog; the stalking and killing of jogger Ahmaud Arbery in Georgia; and the murder of George Floyd by Minneapolis police. This trifecta of racial hostilities has affected me deeply. It has somehow made me aware as never before of the insidious effect of white privilege – the invisible and unwarranted advantage that I am given simply because I am not a “person of color.”

White privilege enables me and those whose skin matches mine to go through life without being racially profiled and unfairly stereotyped. White privilege leads to unconscious bias and to outright racism when that bias turns into action. And white privilege, I submit, underlay the three recent incidents. In each one, a beneficiary of white privilege infringed on the rights and dignity of a person of color. And in the third, white law enforcement officers seem to have forgotten that their duty is to protect and serve.

The violence and rioting that began after George Floyd’s death and spread to other cities is an understandable reaction to years of frustration and hurt. But violence and rioting won’t solve anything. While nonviolent protests raise the public’s awareness of injustice, violence is itself unjust. It puts innocent people at risk and undermines the message that America should operate on a higher ethical plane.

There are a few things we of the majority can do to help achieve true equality and justice. First, we must remain aware of how white privilege affects our lives and those of others and make every effort to be all-inclusive in our words and deeds.

Second, we must hold our public officials accountable, especially those at the state and local level. It is the police chiefs, sheriffs, city and county council members, mayors, and members of state legislatures who have the greatest effect on the criminal justice system.

Third, we must write those officials, engage them in dialog during public forums, and through peaceful protests make our feelings known.

Fourth, we must work to elect people who are “woke” – that is, willing to challenge problematic norms, systemic injustice, and the status quo.

Finally, we must remember that all of us are equally entitled to “life, liberty and the pursuit of happiness.” This has been recognized since the Age of Enlightenment in the 1600s. Ironically, that’s about the time when slavery began in America. ■

The Jealous Mistress Part XI: Words Matter

[Reminder: Posts in the “Jealous Mistress” series are draft chapters of a book to be published in the not too distant future. They are copyrighted but are still works in progress, so any suggestions will be appreciated.]

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The great justice Oliver Wendell Holmes, Jr., once penned this insight: “A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used.”

Non-criminal cases often require interpretation of a law or contractual provision, and the outcomes must be announced in carefully written opinions to serve as guidance for others. So words matter. And sometimes even punctuation matters. Three cases are food for thought.

Tomato v. Fruit

Is a tomato a fruit? The US Supreme Court had to extinguish this burning question more than 125 years ago. US tariff laws at the time imposed a ten percent duty on imported vegetables but not on fruit. When the tax collector of the port of New York imposed the fee on tomatoes imported from the West Indies, the plaintiffs sued to have their money refunded because, they argued, tomatoes are not “vegetables.”

Botanically speaking, they’re right: tomatoes are indeed a fruit. (By the way, so are cucumbers, squashes, beans and peas.) They’re the fleshy, seed-bearing part of a flowering plant. But people think of these foods as vegetables. They contain less sugar than most fruits, and they are served with the main course of a meal and not, like fruits generally, as dessert.

Faced with this question in Nix v. Hedden (1893), the US Supreme Court decided that, consistent with the popular perception that it is not fruit-like, a tomato is to be considered a vegetable for the purpose of customs regulations and a tax is due. So much for “free” trade a century or more ago.

Taco v. Sandwich

Similarly, a Massachusetts court once needed to determine whether a taco is a “sandwich.” A Panera Bread Company franchisee operated under a lease guaranteeing it would be the only sandwich shop in a certain shopping center in Worchester, Mass. When Qdoba Mexican Grill tried to open a competing restaurant, Panera filed suit. It argued that tacos, burritos, and other tortilla-based foods are sandwiches and, therefore, that under the terms of Panera’s lease Qdoba must be barred.

Forced to rule on this tasty question, the trial judge did a little research over lunch. (Soup or salad, not a sandwich, so as not to prejudice the outcome.) Then he returned to the courtroom armed with dictionaries and common sense to announce that a taco is not a sandwich because a sandwich consists of filling between two slices of bread and is made to be picked up by the hands. Tacos, burritos, quesadillas, etc., are not made that way and are usually eaten with a fork.

We can quibble. What about an “open face sandwich?” It is made on one slice of bread and eaten with a fork. Is it then not a sandwich? And a taco is made with a tortilla, a kind of bred, and is often picked up for eating. Is it a sandwich in that configuration? And Does it matter in what section of the menu—“sandwiches” or “entrees”—an item is found? What about an Oreo cookie or an “ice cream sandwich”? What are they?

One might have thought that the word sandwich came as close as any to being “a crystal, transparent and unchanged,” but apparently not. Words can mean one thing in one context, and something else in another. So again I say: words matter!

Even Commas Matter

Punctuation matters too. It can be an aid to understanding, or it can contribute to a confounding muddle. Consider this paragraph in a Canadian cable-TV company’s lease of utility poles:

[This agreement] shall be effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms, unless and until terminated by one year prior notice in writing by either party. [Italics added.]

(NB: parenthetical numerals, such as in this provision, are a legal affectation and should be expunged with vigor wherever they are found.)

Suppose it is now just two years after the contract was signed and the lessor wants to give notice of a rent increase to begin year four. Can they do so? Or does the notice provision only apply in the “successive five-year terms.”

Rogers Communications, the cable-TV company, argued that the intent was to lock in a price for five years with extensions thereafter on terms to be agreed from that point forward. That would make good business sense, but it’s not what the contract says. Note the comma after the word “terms.” Without it, the right to cancel would not apply during the first five years. But the comma turns the phrase into a parenthetical, and a parenthetical is an adjunct that is not essential to the meaning of a sentence.

In deciding against Rogers, Canada’s telecommunications commission (the equivalent of our FCC) wrote: “[this] wording … is clear and unambiguous, and when given its plain and ordinary meaning, allows the termination of the lease, by either party at any time, after providing one year’s prior written notice.”

There is irony in the unnecessary commas in this ruling, but even more interesting is that it took the author about 1,200 words to explain why the contract is “clear and unambiguous.” One might have thought that if the meaning were so plain and ordinary there would be no dispute or the opinion might have read, “It means what it says. Case dismissed.”

That extra comma—a tittle, a jot, a trifle in the context of the entire contract—cost Rogers Communications more than $2 million (Canadian). Presumably, cable TV fees for broadcasting NHL games went up the following year. ■

© 2020, J. Stuart Showalter

The Jealous Mistress, Part X: Multi-Tasking in the Wild

Many years ago a game warden in California by the name of Carl Lund was found dead in his government-issued car in a remote location in the northern part of the state. He had been on duty the night of his death, and the area was one where illegal deer hunting often occurred. As a convenience, wardens’ cars had been equipped with beds, and the wardens were permitted to sleep in them when on night patrol.

Lund failed to return from one such outing, and a search discovered him dead in his car. The two-way radio, ignition switch, and heater were on and the gas tank was empty. All the windows but one small wing vent were closed. Lund’s skin was cherry red, a classic sign of carbon monoxide poisoning. The scene was that of a common suicide or accidental asphyxiation, except for one thing: beside Lund’s body was the similarly dead body of a woman, one Chelsea Miami. “The bodies were clad respectively only in shorts and panties and were partially covered by a blanket,” according to the court opinion. You can do the math.

Lund’s widow filed a workers compensation claim, asserting that her husband's death had occurred in the line of duty. The state—Lund’s former employer—argued that he had left his post in favor of dalliance, that he was therefore not on duty at the time, and that workers compensation was therefore not due. The Industrial Accident Commission, overseer of the workers compensation system, agreed with Mrs. Lund and issued death benefits. The state appealed.

It is not the prerogative of appellate courts to substitute their interpretation of the facts for that made in the tribunal below. We saw this in Buck v. Bell, where Carrie Buck, her mother, and her daughter were deemed mentally handicapped by the jury based the evidence before them. Unless there was no way a reasonable jury could have reached that conclusion from the evidence presented, those facts had to be accepted by the appellate courts. Their only province is to determine whether the lower courts applied the law correctly.

Interestingly, the situation is much like the instant replay rule in professional sports. Unless a review shows that the referee's call was clearly wrong, “the ruling on the field stands.”

In Lund, the  California appellate court clearly knew what was going on that car one chilly night in 1948. They even said as much:

[W]e are well aware of the contrary inferences which might have been drawn from the same set of facts. The secluded spot in a remote area could have been selected by Lund for its advantages as a rendezvous in which to conduct an illicit love affair. The manner in which the cars were parked, the state of partial dishabille [undress] in which the bodies were found, the fact that Lund had divested himself of his uniform and placed his gun and boots underneath the seat, all are circumstances from which the trier of facts [in this case, the Industrial Accident Commission] might have reasonably concluded that he had either abandoned or deviated from his duty.

In other words, had these judges been sitting on the Commission they might have decided that at the time of his death Lund was more engaged in sexual congress than law enforcement and should not be entitled to benefits. But workers compensation laws intentionally favor claimants, and the judges could not say that the commissioners’ decision was clearly wrong. They wrote:

Lund, while acting in the scope of his employment, was permitted to drive to isolated spots where game violators might be found. It was a matter of discretion with him whether or not at such times he converted the car into a bed and slept. In so doing he was acting within the course of his employment. There was no rule which forbade him from having company while on duty, and the presence of a woman in the car with him does not necessarily compel a conclusion that he had thereby either abandoned his employment or deviated therefrom.

To use a twenty-first century expression, Lund was “multi-tasking.” And one can sensibly conclude that he was still on duty at the time of his death. So the court deferred to the judgment of the IAC. “There being a choice between two inferences reasonably deducible from the evidence, we cannot say that the commission acted … in excess of its power or that its findings of fact were unreasonable,” the opinion states.

Although undoubtedly chagrined by the circumstances, Mrs. Lund was probably somewhat mollified by the outcome of the case.

No word on the family of the late Ms. Miami. ■

The Jealous Mistress, Part IX: Hey Diddle Diddle

Sex enlivens a story. Illicit sex enlivens it even more. This particular vignette occurred some three score years ago in North Carolina.

Jeffrey Mazza suffered from bipolar disorder. Patients with this diagnosis have extreme and usually unpredictable mood swings that cycle between mania and depression. They have difficulty organizing and planning, judging others’ emotions, and staying in touch with reality. Every experience to them seems either positive or negative, triumphal or disastrous. There is a high risk of suicide.

Bipolar disorder is usually treated with medication and/or counseling. Robert Huffaker, a psychiatrist, had been treating Mazza for four years and had prescribed him both medication and psychoanalysis. During counseling he was “encouraged to have very intimate, self-revelatory, and uninhibited discussions” with Dr. Huffaker. At least once he “expressed to Huffaker serious concern about maintaining a healthy marital relationship with his wife.” While undergoing this psychotherapy Mazza came to think of Huffaker as his best friend. In medical jargon this is called “transference,” a common but unfortunate phenomenon, as we shall see.

One day in the summer of 1979, Mazza called his estrange wife at home. He testified that because of her telephone demeanor, he became “concerned about her well-being.” In truth, it is likely that he knew something was afoot. He decided to pay her a visit “to make sure everything was OK.” The judge describes the scene as follows:

Plaintiff observed his psychiatrist's automobile parked near the ... house and saw some of his psychiatrist’s clothing strewn about the family room. Upon approaching and [breaking into] the locked master bedroom, plaintiff discovered his psychiatrist … and his wife … together in bed. Huffaker was naked and putting on his undershorts, and [Mrs. Mazza] was naked and putting on a light housecoat. 

As can be expected there followed a bit of a kerfuffle, about which more later.

This scene is not particularly uncommon, human nature being what it is. And medical standards being what they are, the jury in the ensuing lawsuit found Dr. Huffaker to have breached his professional duty and violated his patient’s trust and “friendship.” They awarded Mazza a hefty sum.

No surprise thus far. But what is surprising about Mazza v. Huffaker is the vigor with which the defendant appealed to the North Carolina Supreme Court. Through his lawyers he raised more than 13 points that he said justifying reversing the lower court’s decision. I say “more than 13” because the opinion alludes to “additional assignments of error” that the judges considered and rejected en masse. Apparently those assertions were even more puerile than the ones the court did address. Of the thirteen somewhat tenable arguments, three are worthy of the Jealous Mistress’s attention.

First, Huffaker argued that too much importance was given to expert testimony which said that having sex with your patient’s wife is an act of malpractice. And next the good doctor contended that it was an error to allow “expert testimony that sexual relations between a psychiatrist and the wife of a patient would render useless the previous treatment of the patient by the psychiatrist and would make it extremely difficult for the patient to enter ever again into a trusting relationship with any other psychiatrist.” [Translation: That seeing your doctor diddle your wife could send you off the deep end, especially if you have manic depressive psychosis, mood swings, lose touch with reality, tend toward catastrophizing, and are suicidal.]

The court rejected both of these arguments out of hand. They were puerile, to be sure, but the most inane argument Huffaker made concerned Mazza’s alleged “contributory negligence.”

Contributory negligence is a common legalism that essentially means “it's the plaintiff’s own dumb fault.” Huffaker argued that Mazza contributed to his own psychological injury and should have known better because: (1) before coming to the house he already suspected the two were having an affair; (2) before he broke down the door he had seen the doctor’s car outside and his clothes in the family room; and (3) he knew enough about his mental condition that he should have know the situation would be distressing to him.

Huffaker’s lawyers argued that “this evidence shows that plaintiff in entering the bedroom did not exercise ordinary care for his own safety in light of a foreseeable danger and unreasonable risk and that his conduct contributed to his injury.”

OMG! The lawyers actually argued this with a straight face? In the courtroom? In front of God and everybody? The justices’ closed-door deliberations on this point must have been something to behold.

After composing themselves, the judges disposed of the issue as summarily: “We have carefully perused the record in light of defendant’s imaginative contentions with respect to an issue of contributory negligence.…  We can hardly perceive of a situation where an issue of contributory negligence would be less appropriate.” The JM admires their restraint.

Finally, in the trial court Dr. Huffaker had asserted a retaliatory claim against Mazza for assault, battery, and destruction of personal property. This was because, after finding the two lovebirds in flagrante delicto, Mazza “aimed a loaded shotgun at Huffaker and fired the gun over Huffaker's head, just missing him. Plaintiff and Huffaker then wrestled and during the affray plaintiff tried to gouge out both of Huffaker's eyeballs and thereby bruised them.”

“A few days later,” the opinion continues, “Mazza located defendant Huffaker's automobile and slashed two of its tires with a pocketknife and removed from the automobile Huffaker's briefcase and suitcase.”

The trial judge refused to let the jury consider this claim and the Supreme Court agreed:

[W]e hold as a matter of law that the trial judge correctly refused to submit [to the jury] an issue of punitive damage on defendant’s counterclaim, in light of the undeniable evidence of Huffaker’s provoking conduct. 

In other words, you had it coming, doc!

Thus did the justices of the North Carolina Supreme Court affirm the verdict against Dr. Huffaker and enshrine in the law books a delicious human-interest story. In the process they may have confirmed some conventional wisdom: “Ya’ gotta be nuts to see a psychiatrist … or to be one.”

* * *

Mazza v. Huffaker did not set any significant legal precedent, and I have not found it referred to in any other judicial decisions. The brazenness of the arguments aside, it is a mundane case—one of many involving an illicit tryst gone bad. Most such cases end up in divorce court or the criminal justice system. Strangely, however, at least one found its way into California’s workers compensation system. That will be the subject of our next chapter: “Multi-Tasking in the Wild.”

The Jealous Mistress, Part VIII: How Cars Changed the Law

Special Note: This is another article in the series begun last October by the Jealous Mistress. She hopes you will enjoy, or at least tolerate, her reflections on interesting court decisions. Posts from the Hermit Philosopher himself may appear from time to time on this blog, but the point of the JM’s musings is to collect articles for a forthcoming book manuscript. And now please consider: How Cars Changed the Law.

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Thinking about poor Mrs. Palsgraf (see previous blog post) leads the Jealous Mistress to recall another famous Cardozo case: MacPherson v. Buick Motor Co.  Decided twelve years before Palsgraph, this involved a 1909 model Buick Runabout and its wooden wheels. (Yes, like those of horse-drawn carriages, car wheels were made of wood in the early days.)

A third party manufactured the wheels, Buick installed them on the vehicle and sold it to a local dealer who then sold it to Mr. MacPherson. While he was driving one day, one of the wheels suddenly collapsed and MacPherson was thrown out and injured. “One of the wheels was made of defective wood, and its spokes crumbled into fragments,” the opinion states.  

There was evidence of negligence—the defects could have been discovered upon inspection and no inspection was done—but Buick denied liability because there was no privity of contract between it and Mr. MacPherson. (“Privity” is the principle that a contract cannot impose obligations upon anyone who is not a party to it.)

The question for Justice Cardozo, therefore, was “whether the defendant owed a duty of care and vigilance to anyone but the immediate purchaser.” Today we would certainly say “yes,” and that’s why cars come with warranties. But in 1916 this was a novel question. If privity of contract controlled the case, MacPherson would be standing out in the cold beside his broken-down vehicle.

Before repairing to the garage, so to speak, to see how Cardozo managed to achieve justice and change the common law, some New York history is in order.

In the 1840s a couple of industrious gentlemen, Messrs. Winchester and Gilbert, were engaged in selling medicine in lower Manhattan. Among their potions were extracts of dandelion and belladonna. Dandelion was used to treat fevers, boils, diarrhea, skin ailments, and sundry other maladies. Women used belladonna (Italian for “beautiful lady”) to dilate their pupils and make them look more attractive to the males of the species. Unfortunately, belladonna is actually the highly toxic vegetable poison known as “deadly nightshade.”

One day a certain druggist named Aspinwall obtained from Winchester and Gilbert a jar of belladonna that had been mislabeled as dandelion extract, which is harmless. Aspinwall later sold the mislabeled product to another druggist who, filling a physician's prescription for extract of dandelion, unknowingly dispensed some belladonna to Mrs. Mary Ann Thomas. The court record shows that “a small quantity of the medicine thus purchased was administered to Mrs. Thomas, on whom it produced very alarming effects ... such as coldness of the surface and extremities, feebleness of circulation, spasms of the muscles, giddiness of the head, dilation of the pupils of the eyes, and derangement of mind.” Mrs. Thomas eventually recovered, but for awhile she was in mortal danger.

Undoubtedly thankful to be alive but resentful of the pharmacists’ carelessness, Mrs. Thomas sued Winchester and Gilbert. But she had a problem: she had no contractual relationship (no “privity”) with them. They had sold the mislabeled belladonna to a druggist, who sold it to another druggist, who eventually dispensed it to the unfortunate patient. Being thus contractually distant from the miscreant, the ordinary legal principles were of no use to Mrs. Thomas.

But this was of no moment to the New York Court of Appeals. Sensibly, they ruled that a deadly poison is inherently dangerous and that one who labels it negligently is responsible for the foreseeable result of his error. “The defendant's negligence put human life in immediate danger,” they wrote. “Can it be said that there was no duty on the part of the defendant to avoid the creation of that danger by the exercise of greater caution?”   

Decided in 1852, the Thomas case begat Devlin v. Smith in 1882 (involving a defective scaffold), which begat Statler v. Ray Mfg. Co. in 1909 (involving an exploding coffee urn).  In each of these cases, the one who created the offending article was accountable not because he was in privity with the ones injured but because his product was likely to be dangerous if not made properly. So in MacPherson Cardozo writes:

It may be that [Devlin and Statler] have extended the rule of Thomas v. Winchester. If so, this court is committed to the extension. The defendant argues that things imminently dangerous to life are poisons, explosives, deadly weapons—things whose normal function it is to injure or destroy. But whatever the rule in Thomas v. Winchester may once have been, it has no longer that restricted meaning.

Let's pause to consider what is happening here. The Thomas case involved poison, something that is dangerous even when made and used correctly, so in deciding that case it was enough to talk only of items that are inherently dangerous. But an automobile is not such an instrumentality, thus Cardozo has to apply the dangerousness principle to a situation that was not foreseen when it was first articulated. In doing so, he is laying the foundation for products liability law, an entirely new concept. He does so carefully:

A scaffold … is not inherently a destructive instrument. It becomes destructive only if imperfectly constructed. A large coffee urn … may have within itself, if negligently made, the potency of danger, yet no one thinks of it as an implement whose normal function is destruction…. We are not required at this time either to approve or disapprove the application of the rule that was made in these earlier cases. It is enough that they help to characterize the trend of judicial thought.

So even if an instrumentality is not inherently dangerous in the same way that poisons, explosives, and similar things are, this general principle still applies: “[I]f it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger.”  

Now Cardozo returns to the matter of poor Mr. MacPherson’s wrecked Buick:

From this survey of the decisions, there thus emerges a definition of the duty of a manufacturer which enables us to measure this defendant's liability. Beyond all question, the nature of an automobile gives warning of probable danger if its construction is defective. This automobile was designed to go fifty miles an hour. Unless its wheels were sound and strong, injury was almost certain. It was as much a thing of danger as a defective engine for a railroad. The defendant knew the danger. It knew also that the car would be used by persons other than the buyer.… The maker of this car supplied it for the use of purchasers from the dealer just as plainly as the contractor in Devlin supplied the scaffold for use by the servants of the owner. The dealer was indeed the one person of whom it might be said with some [degree of] certainty that by him the car would not be used. Yet the defendant would have us say that he was the one person whom it was under a legal duty to protect. The law does not lead us to so inconsequent a conclusion.

Finally, the Judge drives home his point with three important sentences. “Precedents drawn from the days of travel by Stagecoach do not fit the conditions of travel today. The principle that the danger must be imminent does not change, but the things subject to the principle do change. They are whatever the needs of life in a developing civilization require them to be.”

In McPherson, Cardozo has used experience to create the basic premise of products liability law: that the producer must bear his goods’ external costs to society. That duty comes from the perception of risk.

Undoubtedly, automobile magnates around Detroit used terms like “activist judges” and “judge made law” over their brandy and cigars in condemning the McPherson decision. But judges don’t actively seek out cases; they only decide the ones brought to them. And Cardozo was better at it than most.

We thank the gods of Serendip—the old name for Sri Lanka and the source of the word serendipity—for the gift of fortunate discovery. We have discovered that Mr. McPherson's juridic family tree has branches that touch the Thomas, Devlin, Statler, and Palsgraf families. The concept of “duty” was the genetic marker all of them shared. ■

The Jealous Mistress, Part VII: A Writer Extraordinaire

Benjamin Nathan Cardozo—called the “hermit philosopher” due to his lofty principles and permanent bachelorhood—was one of the great jurists and legal stylists of the twentieth century. He served on New York’s highest tribunal and the US Supreme Court.

His opinions in both venues have sometimes been criticized for excessively flowery language, but “his use of metaphor and aphorism make for compression and vividness [and result in] works of judicial art,” according the US Court of Appeals judge Richard Posner, himself a writer extraordinaire. A sampling of Cardozo’s opinions reveals why he is so highly regarded.

Although not always right (by today’s standards, at least), Cardozo was seldom in doubt. And he often stated his conclusions in a way that effectively foreclosed further debate. For example, in People v. Defore he held that evidence could be admitted at trial even if it was illegally seized by the police. He felt it wrong that “the criminal is to go free because the constable has blundered.”

A turn of phrase like this brings one up short. And right or wrong, these eleven memorable words—which remain burned into the memories of many judges, prosecutors and law students—underlay the law of New York for more than three decades until the US Supreme Court adopted the “exclusionary rule” in 1961.

Continuing our sample of Cardozo’s opinions we see that he was fond of reversing subject and predicate. Others have done this to fine effect, like Robert Frost (“something there is that does not love a wall”), Shakespeare (“something wicked this way comes”), and even Yoda (“named must your fear be before banish it you can”).

These constructions sound strange to our twenty-first century ears, but the technique gives one’s prose a poetic feel, and most effectively did Cardozo use it.

[By the way, Cardozo was also fond of “postpositives,” the technique of placing the adjective behind the noun it modifies, as in “writer extraordinaire” and “An Honor Most Sensitive,” the title of my previous blog entry.]

Palsgraf v. Long Island Railroad Co. contains an example of Cardozo’s fetish for subject/verb inversion. While trying to help a late-arriving passenger to board a moving train, a railroad employee dislodged an unremarkable package the man was carrying. The package contained fireworks. (Why the man was carrying fireworks is not clear, and it doesn’t really matter, but today he couldn’t get through security.) The package fell onto the rails and exploded when the train’s wheels ran over it.

According to the opinion, “The shock of the explosion threw down some scales at the other end of the platform, many feet away. The scales struck the plaintiff, causing injuries for which he sues.”

To this day I don’t understand how “fireworks” could knock scales over, but how it happened is beside the point. The fact is that the plaintiff was injured and it was the courts’ job to sort through the legal jumble. After Mrs. Palsgraf won at the trial and appellate court levels, the railroad appealed to New York’s highest court. The issue there was: what duty did the railroad, through its employees, owe to Mrs. Palsgraf?

In Cardozo’s view, her injury was not a foreseeable result of someone being helped onto the train, even if the help was provided negligently. He used an example (and a subject/predicate reversal) to make his point:

We are told that one who drives at a reckless speed through a crowded city street is guilty of a negligent act and, therefore, of a wrongful one irrespective of the consequences. Negligent the act is, and wrongful in the sense that it is unsocial, but … only because the eye of vigilance perceives the risk of damage. If the same act were to be committed on a speedway or a race course, it would lose its wrongful quality.

In other words, there was no apparent hazard to Mrs. Palsgraf; she was “many feet away” and not in any danger zone due to the railroad employee’s actions.

Millions of words have been penned in analyzing this case. And countless frustrated first-year law students have bumbled through cross examination by torts professors while presenting it in class. Further analysis I will not attempt, but the opinion is classic Cardozo: vibrant, poetic, and anything but banal.

My train of thought, with or without exploding fireworks, will travel next to another classic Cardozo opinion: one in which the wheels of justice are made of wood. Stay tuned for the next blog posting.

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