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.”

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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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The Jealous Mistress, Part VI: An Honor Most Sensitive

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

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

The Bristol Affair

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

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

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

The Equity Courts

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

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

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

A Fine Point of Honor

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

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

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

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

The End Result

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

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

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

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

The Jealous Mistress Part V: Will Injustice Never End?

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

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

The Arguments

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

The Court’s Rationale

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

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

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

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

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

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

More Injustice Corrected

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

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

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

In announcing punishment, the trial judge wrote:

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

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

In a unanimous decision Chief Justice Earl Warrant wrote,

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

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

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

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

Legal Titans

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

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

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

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

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

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Part IV: They Done Us All Wrong

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

Background

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

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

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

Trial and Appeal

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

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

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

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

The Decision

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

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

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

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

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

Buck v. Bell Today

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

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

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

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

The Aftermath

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

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

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