Ian’s Legal Fact of the Week 3/25/13: Workers’ Compensation (or Lack Thereof)

Historically it was very difficult for employees injured on the job to recover damages, based on three concepts in labor law: assumption of risk, which stated that a worker had knowingly assumed the risks of working and was always free to work elsewhere; contributory negligence, which held that if a worker was in any way responsible for his or her injuries, than the employer could not be held liable; and the fellow servant rule, which stated that employers were not responsible for an employee’s negligence that caused harm to another. For more discussion, visit my earlier blog entry on this subject.

Ian’s Legal Fact of the Week 3/18/13: Legal Fiction

A legal fiction is a fact that is assumed or created by courts in order to apply a legal rule. Most often a feature of common law systems, perhaps the best-known (and one of the most controversial) such fictions in the U.S. is the concept of corporate personhood. A long-standing rule was that only persons could sue or be sued; with the growth of corporations after the Industrial Revolution a legal fiction was created that corporations were also persons, thereby allowing corporations to be held liable for their debts. For another example, see my blog entry on adultery law.

Ian’s Legal Fact of the Week 3/4/13: An Eye For An Eye

An eye for an eye and a tooth for a tooth is a theory of retributive justice, focusing on retaliation rather than compensating the victim. This principle first appeared in the Babylonian Code of Hammurabi (hundreds of years earlier than similar references in the Old Testament), which also enumerated concepts such as the presumption of innocence. While the Code’s provisions often seem harsh, it was intended to provide measured punishment for offenses, so as to discourage blood feuds and excessive punishments.

‘A’ is for Adultery

Adultery! Everyone knows what it means–and rarely do we think of adultery having to do much with law, except possibly in divorce actions. To some, it probably conjures up Nathaniel Hawthorne’s The Scarlet Letter, published in 1850, with its themes of sin, adultery, and Puritan law in 17th century Massachusetts. While in some countries in the world adultery is still punishable, even by death, in the Western world we tend to think of it as a private matter, not having much to do with law at all– particularly as no-fault divorces are now so common. But did you know that in the U.S. it can still be illegal?

Indeed, various states still have adultery on the books as a punishable offense. The penalties can differ widely: in Michigan it is punishable by up to life in prison (no, that’s not a typo!), while in Maryland it makes the offender subject to a $10 fine. But perhaps more surprising to many, even in that most-liberal-leaning state that I call home —  Massachusetts — adultery is still a crime. Rarely prosecuted, it is true, but a crime nonetheless. Mass General Laws chapter 272 section 14 (MGL c.272, s. 14) governs this act of passion, providing in one breathless (excuse the pun!?!) sentence that: “[a] married person who has sexual intercourse with a person not his spouse or an unmarried person who has sexual intercourse with a married person shall be guilty of adultery and shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than five hundred dollars.” Perhaps the law, even today, still reflects our Puritan heritage?

While the law has been challenged on constitutional grounds related to privacy, the Supreme Judicial Court of Massachusetts has upheld the statute’s constitutionality in Commonwealth v. Stowell in 1983.  Is the statute enforced? Rarely. So rarely, in fact, that the Massachusetts Appeals Court had, two years earlier, mentioned that it had “fallen in a very comprehensive desuetude.” Desuetude is an interesting concept in itself; much more fundamental to civil law systems than to Anglo-American common law, it essentially holds that when a law is routinely flouted, unenforced, ignored or forgotten, it ceases to be a law. In the U.S., a law that has fallen into desuetude is generally no less a law for it– under the judicial concept that the legislative branch has the power to amend or repeal the law, if it so chooses, and that this does not properly fall under the judiciary’s purview.

So, in reality, while adultery is still a crime on the books in Massachusetts, it is most unlikely to be prosecuted, and if it were, arguably would not pass constitutional muster under the 2003 Supreme Court case of Lawrence v. Texas (which struck down anti-sodomy laws on the grounds of substantive due process enshrined in the 14th Amendment). But what of its role in divorce? Intuitively, we know that adultery is often a factor leading to divorces, and historically was one of the main legal grounds for such an action. In Massachusetts, like all other states, divorce can be granted on the basis of ‘no-fault’, meaning that the party filing for the divorce need not make a showing that the other’s actions precipitated the breakdown of the marriage. This, of course, was not always the case: divorce was traditionally adversarial, where the petitioning spouse had to allege malfeasance. Most commonly, this involved adultery, cruelty, abandonment, and the like. In the absence of such grounds, couples were forced to create “legal fictions” in order to petition for a divorce decree; these included such things as collusive adultery (in which the couple would arrange for one spouse, usually the wife, to return home at a pre-appointed time, to discover her husband in the arms of a mistress, conveniently obtained for the purpose). The use of legal fictions, it was claimed by reformers, was leading to the very real practice of perjury and was injurious to the administration of justice, resulting in growing movements in the 1930s onwards to adopt a no-fault rule.

In Massachusetts, divorces are governed by Chapter 208 of the General Laws, which enumerates eight grounds for divorce: adultery, impotency, “utter desertion” for one year, refusal of support, cruelty, drug or alcohol addiction, incarceration in a penal institution for five years or more, and the no-fault ground of irretrievable breakdown of the marriage.  Alleging these other seven at-fault grounds obviously make the proceedings adversarial — not necessary with a no-fault claim of irretrievable breakdown — and as such no-fault divorces tend to be much simpler, faster, less expensive, and more popular. Of the at-fault claims, allegations of abuse are the most common. With respect to adultery, a wronged spouse might wish to pursue this claim for other reasons, but pragmatically the main reason would be that a claim of adultery allows one to waive the one-year Massachusetts residency requirement before filing for divorce.

Incidentally– to switch continents and eras for a moment– fans of Downton Abbey who are following the storyline involving the London newspaper editor, Gregson, and his romancing of Lady Edith (despite the fact that he has a living wife, who is institutionalized for mental illness) will note that mental illness is not enumerated above as grounds for divorce. At one point, Gregron bitterly points out that her condition is not grounds for divorce despite the fact that she does not recognize him. While this may seem counter-intuitive, this is generally correct: insanity was treated for grounds only if present at the time of the marriage, not if it developed subsequently (this latter scenario being covered by the vows ‘for better and for worse, in sickness and in health’.) Even under Massachusetts law, incarceration does not include institutionalization for mental illness– and in fact insanity only enters matrimonial law as a defense against an at-fault divorce petition: on the grounds that an insane person is not responsible for his or her actions.

Anyway, gentle reader–marriages don’t always end in divorce, adultery or insanity–although sometimes it just seems that way! Hope you found this interesting, though.

Ian’s Legal Fact of the Week 2/18/13: The Meaning of ‘Rap’

The word rap – referring originally to a mild form of rebuke (such as to rap one’s knuckles) – by the late 18th century referred to punishment or blame for serious offences. By the early 19th century, it entered American slang in a variety of expressions related to criminal justice, such as: to get the rap (to get the blame), to take the rap (to accept the blame), bum rap (to be blamed even if innocent), beat the rap (to avoid conviction), and rap sheet (a police record of arrests and convictions).


Ian’s Legal Fact of the Week 2/11/13: The Third Amendment

The 3rd Amendment states that “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”  The British practice of quartering troops in the homes of citizens was listed as one of the colonists’ grievances in the Declaration of Independence. Perhaps the least-cited and least litigated of Constitutional provisions, it was cited in the 1965 Supreme Court case of Griswold v. Connecticut as implying a Constitutional right to privacy. For discussion of this and other esoteric constitutional provisions, please visit by earlier blog entry here.

Ian’s Legal Fact of the Week 2/4/13: The Equal Rights Amendment

The Equal Rights Amendment (ERA), which sought to guarantee equal rights for women, was originally introduced in Congress in 1923 but not submitted for ratification until 1972. It was ultimately ratified by 35 states (although some of these later rescinded their ratifications) before its deadline for expiry in 1982. Twenty-one state constitutions contain versions of the ERA.

Ian’s Legal Fact of the Week 1/28/13: the 27th Amendment

The 27th Amendment, which restricts Congressional power to set the salary of its members, took 203 years to ratify. Proposed as one of the original amendments to the Bills of Rights, it was not ratified until May of 1992. This was made possible by the fact that the amendment did not include a deadline for ratification.  It was originally submitted to the House of Representatives in 1789 by Representative James Madison, who went on to serve as President from 1809-1817.

Ian’s Legal Fact of the Week 1/21/13: Citizen’s Arrest

A citizen’s arrest — an arrest by a non-law enforcement officer — is statutorily provided for in 49 states (North Carolina is the exception) where a citizen observes a felony being committed, or when a citizen is asked by a law enforcement officer to help apprehend a suspect. States differ in whether a citizen’s arrest also extends to misdemeanors, crimes not witnessed by the arresting party, or to breaches of the peace.

Ian’s Legal Fact of the Week 12/17/12: Failing to Plead

Under the common law, a defendant who failed to enter a plea was subjected to peine fort et dure — pressing under heavy weights — until he or she either consented to plead or died by suffocation.  In the U.S., the only recorded use was against Giley Corey in 1692, who died as a result of this procedure during the Salem Witch Trials.  It was abolished in the U.K. in 1772. In common law jurisdictions failing to plead is now treated by the court as a ‘not guilty’ plea.

Ian’s Legal Fact of the Week 12/10/12: Circuit Courts

Circuit courts were first established under the reign of King Henry II of England in the mid-12th century, meant to supplement the royal courts in London by having judges travel the countryside (“riding circuit”) to hear cases. In the U.S., circuit courts were established in all 13 colonies. Following Independence from Great Britain, the Judiciary Act of 1789 required Supreme Court justices to ride circuit and personally hear intermediate appeals in addition to the Court’s regular caseload. This was changed by the Judiciary Act of 1891 which established 9 Federal appeals courts and eliminated the requirement for justices to ride circuit.

Ian’s Legal Fact of the Week 12/3/12: The Alford Plea

The Alford plea is a form of alternative plea in which a defendant enters a plea of guilty but still asserts his or her innocence. The defendant entering an Alford plea acknowledges that sufficient evidence exists for the prosecution to likely prove their case beyond a reasonable doubt, and is able to enter into a plea bargain without conceding guilt or making allocution to the crime. This controversial plea is allowed in federal courts and in 47 state courts, but not in Indiana, Michigan, New Jersey, or before the courts of the U.S. armed forces.

Another example of an alternative plea is pleading “no contest”.