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 It was ultimately ratified by 35 states (although some of these later rescinded their ratifications) before its deadline for expiry in 1982.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”.

Ian’s Legal Fact of the Week 11/26/12: Adultery

Eight states still have laws against adultery on the books, ranging from a $10 fine in Maryland to life in prison in Michigan. Massachusetts is one of those states; under MGL c. 272  s.14, adultery is punishable by imprisonment in the state prison for up to three years, jail for up to two years, or a maximum fine of $500. The last prosecution in MA was in 1980, and the law was upheld by the SJC in 1983.

Maintenance, Champerty and Embracery, or Fun With the Law

Related to my last blog entry on barratry and my ongoing fascination with obsolete and esoteric legal concepts, my current discussion topics are the concepts of champerty, maintenance, and the alluringly-titled concept of embracery.

Barratry, as you may remember, has to do with soliciting lawsuits (aka ‘ambulance chasing’), formally defined as “the offense of frequently exciting and stirring up quarrels and suits, either at law or otherwise” (Black’s Law Dictionary, 6th ed., 1991 at 103–you can tell by the edition that I bought this for use when I was a law student!). Champerty and maintenance are related common law concepts in that they also have to do with frivolous litigation. In maintenance, a non-party to the suit (aka “the maintainor”)  interposes him or herself in the ligitation; it is defined as an “officious intermeddling in a lawsuit by a non-party by maintaining, supporting or assisting either party, with money or otherwise, to prosecute or defend the litigation.” (ibid., 658). Champerty is a specific form of maintenance; while maintenance could consist of financial or non-financial help, champerty involves a non-party to a lawsuit (aka “the champertor”) having an agreement with the plaintiff to finance the litigation with an aim to securing some agreed-upon share of the recovery. Black’s defines it as a “bargain between a stranger and a party to a lawsuit by which the stranger pursues the party’s claim in consideration of receiving part of any judgment proceeds” (ibid., 157).  Interestingly, the etymology of the word is derived from the Anglo-Norman French word “champartie”, referring to a feudal lord’s share of his tenant’s crops.

Historically, the common law viewed these as a tort and a misdeamnor on the grounds that they encouraged frivolous lawsuits. “But wait, isn’t this what a contingency fee is all about?”, an astute reader  might ask.  Yes– while historically the common law prohibited such arrangements, now many common law-based jurisdictions do allow contingency fees or conditional fees. In the U.S., their use in personal injury cases is widespread, although it is generally not allowed in criminal law or family law cases. Moreover, many states put limits on the percentage that the lawyer taking the case may recover, but 33 to 45% of the recovery is generally the norm. The American legal system has tended to accept contingency fee arrangements in personal injury cases on the grounds that it fosters accessibility to the courts on the part of plaintiffs who might not otherwise be able to afford to pursue lawsuits. In England, the longstanding prohibition against champerty and maintenance fell into obsolescence by the 19th century, although they remained crimes on the books until the passage of the Criminal Law Act 1967. As a result, in the U.K. conditional fees are a fairly recent phenemenon, having only become commonplace within the last twenty years or so.

Of the three, “embracery” has the nicest ring to it– it even sounds romantic!–but what is its relationship to the others? Well, first of all a word on its etymology– the roots of this word are from Anglo-Norman French “embraser”, meaning to kindle a fire. Still sounds a little romantic, no? Indeed, an “embraseour” was one who kindled a fire, but in the legal context it refered to someone who corrupted the judicial process by juror tampering. Historically, it was punishable under English law by fine and imprisonment, and dates back at least to the mid-14th century. Both the person inducing the juror, as well as the juror himself, was liable.  It was rarely prosecuted from the 19th century onwards, and the last recorded English prosecution for enbracery was in 1975 but the conviction was overturned the following year by the Court of Appeal on the grounds of obsolescence. Interestingly, there could be no offense of “attempted embracery”, as of the offense itself consisted of attempting to tamper with a jury regardless of whether it was successful. It was recently formally abolished by virtue of the Bribery Act 2010. Just for fun, I’m going to see how many times I can weave the term “embracery” into everyday conversation this week. My guess is: not many.

So, to recap– maintenance is the meddling or involvement in another party’s lawsuit, for financial or non-financial reasons; champerty is assisting with another party’s lawsuit in order to share in the recovery; and embracery is the unlawful influencing of a party to a lawsuit (usually a juror) . Barratry, in contrast, had to do with the the solicitation of lawsuits. All of these are clearly related and may be subsumed under the rubric of “administration of justice”. Hope you enjoyed this latest foray into legal esoterica!

What is Barratry? A far from frivolous question!

As part of my upcoming series of blog entries devoted to legal concepts that are esoteric or have fallen into dissuse, my present topic is “barratry”, a common law term that is probably known to few but involves a concept that is immediately familiar–frivolous lawsuits. One common definition of barratry (alternatively spelled “barretry”) is the “vexatious stirring up of quarrels or bringing of lawsuits”, meaning repeated groundless lawsuits with the intent of harrassment or profit.  The word was derived from the Anglo-Norman French term “baraterie”, meaning “deception”.

Under the English common law, being a “common barrator” was a misdemeanor but was abolished as a crime in 1967. It has likewise falled into desuetude in a number of other common law jurisdictions, such as Australia. Barratry was essentially the criminalization of an issue that is far from infrequent in our increasingly-litigious society (especially the U.S., but also in other jurisdictions), namely vexatious litigation. This, as the name suggests, consists of meritless or repetitive litigation, often designed to harass an opponent but sometimes also reflects the persistence of a litigant who refuses to accept previous legal defeats. The curtailing of vexatious litigants poses an interesting conundrum of sorts: given the primacy we ascribe to ensuring free and fair access to courts, at what point does it make sense to block an over-zealous litigant’s access to the judicial system? California law defines a vexatious litigant as someone who meets any of several criteria, including having over the previous 7 years having litigated five or more non-small claims cases that were decided against them, repeatedly attempting to relitigate matters already disposed of, filing frivolous motions meant to harrass or delay, or having already been declared  a vexatious litigant in state or federal court in a substantially similar matter.  In fact, California helpfully updates on a monthly basis its list of vexatious ligitants, meaning people who have been declared to meet this legal definition and have been barred from court access unless they apply for and are granted permission by the court in which they intend to file. So far this law has passed constitutional muster, most recently in a 2007 decision before the Ninth Circuit Court of Appeals .

Barratry also has another, related meaning, and it is in this context that it continues to be criminalized–although I admit to having uncovered this fact quite recently. The public loves to deride lawyers as ‘ambulance chasers’, but the phenomenon does in fact exist–although it is certainly not just the purview of lawyers as physicians, physical therapists, and other profesionals have been implicated in such tactics. When an attorney solicits lawsuits by visiting accident victims, without their previous request, he or she is commiting the offense of barratry. A recent article in The New York Times discusses the attempts to curtail this practice in Texas where it has become more common in recent years. A third-degree felony, it is punishable by 1o years in prison and a $10,000 fine but is rarely prosecuted. In 2011 the Texas legislature passed legislation designed to further clamp down on this practice, with (ironically enough) one representative (State Rep. Ron Reynolds, D-Missouri City) who voted for the new legislation finding himself charged with barratry in April 2012.

And, of course, now some lawyers are advertising services designed to curtail ‘ambulance chasing’ and get clients money, another hint of irony in all this. For an example of a law firm’s advertisement regarding this, see this delicious commercial:

Hope you enjoyed this latest entry! Comments, as always, are most welcome!





The “Radium Girls”, Deodands, and the Rise of Worker’s Compensation in the U.S.

Photo of Lower Jaw of a Deceased Radium Girl

Last week I had the pleasure of being invited to participate in a ‘talk back’ session following a performance of Radium Girls with cast members and several trial lawyers who handle worker’s compensation cases. Put on at the Regent Theatre in Arlington by the Burlington Players, and sponsored by the Massachusetts Academy of Trial Attorneys, Radium Girls is a powerful play that traces the events of the mid-1920s as a group of 5 women who were employed by the U.S. Radium Corporation try to recover damages in court as they succumb to horrible ailments caused by radium poisoning. Radium, absorbed into the body in a way not dissimilar to calcium, wrecks havoc with bone tissue, often concentrating in the mouth and jaw. Causing dehabilitating, disfiguring and ultimately lethal injuries to many exposed to this susbtance–not unlike ‘phossy jaw‘ caused by exposure to phosphorus in the manufacture of matches–the legal system generally did not provide redress to workers for these types of injuries.

By way of background, the legal system in the early 19th century was ill-equipped to deal with the rapid technological, economic, social and other advances wrought by industrialization. Beginning in the 1820s in the U.K., and slightly later in the U.S, the advent of textile mills and other forms of industry created a sea-change in the way manufacturing was conducted. The legal system had centuries to adapt rules regarding traditional employee-employer relationships, most often known as master-servant law (you can access my two articles on this subject here, if desired), and these cases contemplated cottage industries where there were close personal working relationships between an employer and perhaps (at most) a handful of servants. There was something in the nature of reciprocal responsibilities between the parties– while tilted towards the employers, servants did have legal recourse for non-payment of wages, breach of the terms of contracts or indentures, mistreatment, and the like. With the advent of industrialization, suddenly there were factories employing hundreds and sometimes thousands of workers, and issues that seldom had to be dealt with before were becoming commonplace. For example, dams burst and flooded fields; steam boilers exploded and scalded or killed workers and steam boat passengers; employees had limbs horribly mangled in the cogs of industry; factories belched pollutants into the air and spewed effluvia into rivers; and locomotives–perhaps the most evident sign of progress–killed cattle, struck pedestrians crossing railway lines, and set fire to fields by spewing sparks into the air. Industrialization was seen as a significant, perhaps an overridding, social good– and Anglo-American legal regimes generally reflected that. So powerful were the forces of progress that they swept away entrenched, centuries-old legal principles that conflicted with them: my favorite example being the now-largely-forgotten law of deodand. Deodand was the ancient legal principle that if an animal or inanimate object occasioned the death of one of the King’s subjects, the item was forfeit to the Crown; over time this rule changed to commonly encompass ascribing a monetary figure to the object or animal instead, with that amount being transferred to the Crown or to the family of the deceased (a marvelous article on this topic, “The Deodand and Responsibility for Death”, may be found here). Somewhat predictably, it was that driver of industrialization known as the ‘railroad’ which was to prove that deodands had outlived their usefulness, as illustrated by the Sonning Cutting accident of 1841 in which 9 people were killed. The law of deodand was abolished formally by Parliament in 1846. It has been said to live on in the U.S. as the basis for the somewhat-related and contentious “civil forfeiture” or “asset forfeiture” principle.

Employees who sustained injuries on the job were generally barred from recovering for their injuries by what has been referred to as the ‘unholy trinity of defenses to compensation’. The first doctrine was assumption of risk— simply put, a worker was assumed to know the risks of employment, and to accept them, by virtue of accepting a wage. In theory, this rule posited, wages were adjusted to compensate for the level or risk and workers were always free to work elsewhere. Employers, for their part, were only required to provide the level of safety measures common to the industry as a whole– a ‘leveling to the bottom’ scenario that meant few safety precautions related to worker safety were taken. Workers were also frequently required to sign employment contracts in which they abdicated their right to sue, known not-so-affectionately as “right to die” clauses.  The rule of contributory negligence held that if the worker was in any way responsible for his injuries, than the employer could not be held liable; while the fellow servant rule held that employers were not responsible for the actions of another employee– an injured employee had to seek compensation from the fellow employee directly. Predictably, the effect of these principles was to essentially preclude employees from gaining compensation. A poem that wonderfully captures the injustice of these rules is Edgar Lee Masters’s (1868-1950) poem “Butch Weldy”, found in Poetry of the Law edited by David Kader and Michael Stanford (University of Iowa Press, 2010) at  78:

After I got religion and steadied down
They gave me a job in the canning works,
And every morning I had to fill
The tank in the yard with gasoline,
That fed the blow-fires in the sheds
To heat the soldering irons.
And I mounted a rickety ladder to do it,
Carrying buckets full of the stuff.
One morning, as I stood there pouring,
The air grew still and seemed to heave,
And I shot up as the tank exploded,
And down I came with both legs broken,
And my eyes burned crisp as a couple of eggs
For someone left a blow-fire going,
And something sucked the flame in the tank.
The Circuit Judge said whoever did it
Was a fellow-servant of mine, and so
Old Rhodes’ son didn’t have to pay me.
And I sat on the witness stand as blind
as Jack the Fiddler, saying over and over,
“I didn’t know him at all.”

By the turn of the century, progress in the U.S. was evident. The earliest departures from these rules applied to railroads–which to this day have different statutory schemes governing worker’s compensation—with Congress in 1906 and 1908 passing legislation to soften the contributory negligence rule. Most work remained state-by-state, with the first comprehensive worker’s compensation scheme being enacted in Wisconsin in 1911 and the last in Mississippi in 1948. Meanwhile, injuries continued to mount; it was estimated that in 1900 there were 35,000 work-related deaths per year in the U.S. and some 2 million injuries. A gradual chipping-away at the law by jury awards, some legislative movement and a growing sense of the unfairness of many worker’s compensation regimes–not to mention the rise of the contingency fee structure that made legal services much more accessible to the working class–meant that over time these obstacles to worker’s compensation eroded.

These laws and cases, however, dealt with discrete, tangible, traumatic work injuries– they did not encompass, nor could they predict, the damaging effects of latent workplace injuries as exemplified by the experience of the Radium Girls or those exposed to phosphorus who contracted “phossy jaw” as mentioned earlier. In the later years of World War I and thereafter, companies such as U.S. Radium Corporation produced luminous watch dials and other items, using radium salt mixed with zinc sulfide to form a paint known as “Undark”. Young women moistened their paintbrushes in their mouths to keep a fine point as they painted watch faces, working day after day in poorly-ventilated factories where everything was coated with radioactive dust. To amuse their boyfriends, they painted their teeth and fingernails to produce an enticing glow-in-the-dark effect. And glow in the dark they did!  At no time were they told that radium was dangerous, even while technicians and others protected themselves from radium’s effects. Predictably, many of these women succumbed to horrific ailments, including necrosis of the jaw (known as “radium jaw“). Five such women fought a lengthy and high-profile legal battle against the U.S. Radium Corporation in the 1920s, culminating in a settlement in 1928– all along the way U.S. Radium denied liability and even smeared the women’s reputation by publicly claiming they were infected with sylliphus, while also buying off dentists and doctors, using executives to pose as medical specialists, and using delaying tactics in court, among other unsavory practices. None of the five women lived more than a few years after the settlement, but the saga helped shape public and political opinion. In 1949 Congress expanded legislative protections for workers harmed by occupational diseases, and industrial safety standards were ratcheted up in the years following the Radium Girl’s struggle. While radium-based paint was used extensively in the World War II period and as late as the 1960s, further cases of radium jaw were avoided through the use of safety procedures and training– procedures and training that were far from onerous and indicate how easily these tragedies could have been avoided.

And as Eleanor Swanson writes about them in her poem “Radium Girls”:  “Now, even our crumbling bones/will glow forever in the black earth”….

   Late 19th C. Drawing of Phossy Jaw