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.”

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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.

There's a Word for That

In his previous post the HP noted that he doesn’t do numbers well. He can’t fathom Sudoku, for example, and calculus is a mystery. But it’s a different matter when it comes to the English language: he’s a cruciverbalist (crossword puzzle enthusiast) and logophile (lover of words) who can string together 26 little symbols known as letters to form words and meaningful sentences using proper grammar and syntax.

Yes, there’s an infinite number of ways those letters and words and sentences can be combined, but somehow that seems easier than the study of the measurement, properties, and relationships of quantities and sets using various symbols such as:

The HP’s interest in words was heightened by a college course titled “Greek and Latin Derivatives.” That sounds arcane, I know, but it is one of the two most useful classes he ever signed up for … the other being typing, which he learned in summer school at age 13.

“G&LD” taught how to parse English words derived from those two languages and discern their basic meanings without recourse to a dictionary. Take “cruciverbalist,” for example. If you can see that cruci- comes from the Latin crux (“cross”) plus verbum (also Latin, “word”) you can intuit that it’s referring to someone (the -ist) who enjoys crossword puzzles.  

So enamored of the subject of words is he that the HP keeps an Excel spreadsheet with definitions of more than (note: not “over”) 500 rare and wonderful words he’ll probably never use but likes to think about.

For example, there’s a word that names a phrase like “abso-blooming-lutely.” The word is tmesis – separation of a word or group of words by one or more intervening words, in this case the intensifier blooming.

By the way, would you know that the inserted word or phrase is known as an infix? Not bloody likely.

Here are a few other cool examples from the spreadsheet:

• Ambisinistrous – adj: clumsy with both hands, as opposed to ambidextrous
• Cockalorum – n: a self-important or boastful person. [I’m thinking of a certain someone who’s been in the news on a daily basis for the last few years.]
• Einstellung effect – n: a mindset; a set of assumptions, methods or notations that is so established that it creates a powerful incentive to continue to adopt or accept prior behaviors, tools or solutions; also described as mental inertia, "groupthink," or a "paradigm."
• Jactitation – n: false boasting or claim, especially one detrimental to the interests of another. [That same someone comes to mind.]
• Mondegreen – n: a word or phrase resulting from mishearing another word or phrase, especially in song lyrics. E.g., "the girl with colitis goes by" for "the girl with kaleidoscope eyes" in the Beatles song "Lucy in the Sky With Diamonds."
• Nidicolous – adj: remaining with the parents for a long time after birth. [You could say to an adult offspring who wants to move back in with you, “Don’t be nidicolous!”]
• Paralipsis – n: drawing attention to something by first claiming that we don’t mean it. E.g., when someone says, “I wouldn’t say so-and-so is a ____, but...” we understand that that’s exactly what they are saying.
• Uliginous – adj. swampy; slimy; slippery. E.g., “An unctuous undercurrent of uliginous untruths."

The HP is such a word nerd that books on the subject occupy nearly three feet of shelf space in his library. Three examples are shown here.  Clockwise from upper left they are:  The Lexicographer’s Dilemma: The Evolution of “Proper” English from Shakespeare to South Park,” by Jack Lynch;  Word by Word: The Secret life of Dictionaries, by Kory Stamper; and  The Professor and the Madman: A Tale of Murder, Insanity, and the Making of the Oxford English Dictionary, by Simon Winchester.

The first two are somewhat technical, but Winchester’s book is an enthralling linguistic detective story. It’s the nonfiction account of how a delusional, incarcerated murderer and “madman” – Dr. William Chester Minor – struck up a correspondence with the principal editor of the OED – James A.H. Murray – and contributed greatly to its success.

Dr. Wm. Chester Minor

After fatally shooting a man but being acquitted in 1872 by reason of insanity, Minor was committed to an asylum where he lived until his death in 1920. He was allowed to keep his large personal library of antiquarian books, and from these he obsessively compiled quotations of the way particular words were used. Hearing of a call for volunteer contributors, Minor began sending his examples to Murray for inclusion in the OED’s first edition (published in 1884).

Minor was perhaps Murray’s most prolific contributor, but it was many years before he learned of the doctor’s background, finally visiting him in 1891. In 1899 Murray complimented Minor’s contributions by writing, “we could easily illustrate the last four centuries [of English usage] from his quotations alone." 

James A.H. Murray

USA Today said of The Professor and the Madman, “It’s a story for readers who know the joy of words and can appreciate side trips through the history of dictionaries and marvel at the idea that when Shakespeare wrote, there were no dictionaries to consult.”

Logophilia sounds like a mental disorder, and I guess it can become an obsession. But I’m not ashamed of my epeolatry (“the worship of words,” from Greek epos, word). It’s part of who I am. It helps put the “P” in HP.

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What Are The Odds?

Being of a mostly philosophical bent, the HP doesn’t do numbers well; there are just too many of them. Oh, sure, back in high school he liked algebra and trigonometry because they seemed like puzzles, but he hit the wall when it came to higher math – calculus was, and still is, a mystery. 

A general discomfort with numbers is why he didn’t go into accounting, engineering, nuclear physics, etc. He's much more comfortable with words. 

But that said, and quite ironically, the HP often has numbers on his mind. 

Bridge involves numbers

I play a lot of duplicate bridge. At each table, there are four players, four suits, 52 cards in the deck, thirteen cards in each hand. We typically play 28 deals in a session, and it lasts about 3.5 hours. On each deal we count how many tricks we can win, figure the odds for taking a finesse (50% more or less depending on what we intuit from the bidding), calculate the chances of “setting” the opponents if we let them play the hand, and compute differential scoring for being on offense or defense. We try to remember every card played on each trick and tally the number of trumps and other key cards remaining.

The HP can usually handle these calculations, but there are other, scarier numbers at work in bridge too. For example, the odds of holding a “Yarborough” (a hand with no card higher than a 9) are 1828 to 1. The odds of holding a “perfect hand” (one that can take all 13 tricks in Notrump regardless of what the other players hold) are almost 170 million to 1.  

And get this: there are 53,644,737,765,488,792,839,237,440,000 possible different deals. That’s more than 53 octillion (5.36 x 10²⁸).

For all you chemistry majors reading this, that’s more than “Avogadro’s number” (the number of elementary particles per mole of a substance). Poor Avogadro – his famous number is a mere 602 septillion (6.02 x 10²³).

The enormity of the number of possible deals can be appreciated by considering that if each deal occupied just one square millimeter, you would need an area more than a hundred million times the entire surface area of the Earth to hold them all.

Numbers and rare events

Unrelated to bridge, and on a more practical level, the HP has been thinking about the Law of Large Numbers and the probabilities of certain rare events. For example, if the chance of something happening is 1 in 1,000 and you repeat the event 1,000 times, what is the likelihood that it will occur at least once during those 1000 occasions? It turns out the answer is 63%.

Don’t ask me to explain why—I don’t do numbers, remember?—but it makes sense intuitively. And if you understand calculus, apparently this equation proves it:

That percentage is good to know. Consider the odds of falling down a flight of stairs. They’re estimated to be roughly 1 in 20,000. Not a big deal, right? Well, maybe not on any given day, but consider how many times you go up and down stairs in a lifetime. More than 20,000, right? According to the above equation, there’s a 63% chance you’ll fall on one of those trips. (Pun intended.) According to the CDC, falls cause nearly one-third of all non-fatal injuries, and more than 800,000 of those injuries require hospitalization. Even more surprising, about every 20 minutes an older adult dies as the result of a fall.

These statistics were a reason I persuaded my homeowner’s association to let the HP install handrails on our exterior stairs. And considering the number of times our residents traverse those steps in a year, the Law of Large Numbers was bound to catch up to us at some point. It still might, of course, but at least now there’s a handrail to grab onto. 

Without the ADA-compliant handrail attached to the 2” x 8” banister on the left, there was no safe way to catch oneself in the event of a fall.

It’s a small world

In a lighter vein, odds and probabilities seem to come into play often in the form of “small world” stories. For example, when talking to the guy across the hall in my condo I learned that he is also from St. Louis, had lived in the subdivision next to ours back there, went to the same high school my kids did, and was just one year behind my younger son, whom he knew casually. So of course I wondered, “what are the odds of that?”

Then a new couple moved in, and while talking to them I found out they had just moved from the apartment building I lived in before I bought the condo. Further inquiry revealed that they lived in the exact same unit I did, one of more than 50 in that other building. What are the odds of that?

Then I learned that the guy downstairs from me is a Navy diver. He knows another Navy diver who is the son of one of my law school classmates. What are the odds of that?

And one day I met a new player at the bridge club, got to talking to him about our common interest in health law, and gave him my business card. A few days later I saw him again and he began with, “I know someone you know, and in fact I’m married to her.” It turns out he took my card home, laid it on the table, and when his wife saw it she said, “I went to college with Stuart! How the hell do you know him?” Susan and I hadn’t seen each other in more than 50 years, but we’re now friends again. Small world, huh! What are the odds of that?

Everyone has small world stories, and they’re intriguing because the odds of them happening seem astronomical. But since we all have these stories, the odds must not very high after all. And they aren't, actually.

We all know or have known hundreds, maybe thousands of people in our lives. And each of them knows hundreds or thousands of others. The “six degrees of separation” phenomenon comes into play. (That’s the premise that every person is connected to every other person on the planet through at most a chain of six common friends or acquaintances.)

So when two strangers meet—at a bridge club or on an airplane, for example—it’s virtually certain that they have a common acquaintance. What’s really against the odds is for them to discover the connection. And it’s intriguing to imagine the scores of “small world” stories that go unrecognized in the interactions we have with people every day. (More on the small world phenomenon can be found in a scholarly article at http://www.appstate.edu/~hagemansj/smallworld.html.) 

And finally

If ever the HP is dissatisfied and ponders what it would be like to go back to his youth, all he has to do is think of calculus. At this age, those are the kinds of numbers that just aren’t worth trying to understand.

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The HP's Year in Review

The HP with (from left) Clover, Romain,
Forrest, Sarah, Scott, Jeff, Steve and Henry

Greetings and happy new year from California! The Hermit Philosopher's year can be summarized in three words: busy with travel. It included about 30,000 airline miles visiting NYC, Lancaster County (PA), Atlanta, and Indiana, plus twice each to St. Louis, Portland and San Jose. Some highlights follow.

The Indiana trip was for a 50th (egad!) reunion at DePauw University. The heat, humidity and gnats of those few days in June reminded me why I'm glad I don't live in Indiana any more. 

Jeff, Steve and Henry

In NYC Henry and his grandpa had some bonding time while Steve and Jeff took in the Harry Potter show on Broadway. That's a seven-hour, two-part extravaganza with a break for dinner. We stayed in a hotel just a block from Times Square and attended the "Gazillion Bubble Show" where Henry thrilled the audience as the newest "bubble boy." 

Henry bubbling with joy

After leaving the Big Apple, we joined my sisters and their families in Pennsylvania Dutch country. That’s where our ancestors  landed in the mid-1700s and one of the few places I go where people don’t always have to ask how to spell my name. 

The first St. Louis trip was fun: attending the PGA Championship at Bellerive Country Club. The second was more somber: a memorial service for Sue, who succumbed to Parkinson’s Disease in August. She had been my friend since college and an exceptionally kind and loving mother and grandmother. She is missed by family and friends alike.

The HP taught health law again in the Executive MBA Program at Eisenhower Medical Center, Rancho Mirage. That gig required five separate 3-hour treks over the mountains and through the deert to the Palms Springs area, staying at least one night on each occasion. The students were working professionals (MDs, RNs, and hospital execs), so they brought real-life experience to the classroom and made teaching a great pleasure. I won’t be doing it again, however: I’ve passed it on to a fellow health lawyer who lives less than an hour from the hospital instead of 150 miles away as I do.

When I’m not traveling, I’m either playing bridge, working on the 9^th edition of my textbook (MS due June 30), or simply enjoying life in America’s Finest City. If you're in the area, do let me know. Though not as big as the house my ancestor built 220 years ago, I do have room for one or two guests. 

All the best for 2019 and beyond!

The Showalter manor house, built 1799

Desert sunrise near Palm Springs, CA