…a few more esoteric Constitutional provisions…

My last entry had to do with whether President Obama could unilaterally use the 14th Amendment to raise the debt ceiling. This prompted me to think about the handful of esoteric constitutional provisions that have faded into desuetude, been repealed by subsequent amendments or events, or otherwise been largely forgotten.  The Constitution has two such examples that came to my mind: the first of these, found in Article I section 9, read that “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.”   This provision reflected Congress’ reluctance to attempt to restrict slavery at the time of the Constitution’s ratification; in fact, this clearly was designed to ensure that Congress made no restrictions of the slave trade for at least 10 years after ratification. Another example, found in Article IV section 2, likewise had to do with slavery as well. It stated that “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” This unhappy provision also protected the slave trade, by precluding sanctary in free states for escaped slaves, but was superseded by the 13th Amendment as part of the Reconstruction Amendments passed in the aftermath of the Civil War.

The Bill of Rights (the first 10 Amendments) also contain an interesting relic. I mentioned in my previous entry the 3rd Amendment which stated 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.” While clearly a response to the British policy of forceably garrisoning troops in civilian houses during the occupation of Boston and other cities, this amendment has thankfully slumbered quietly since its birth in 1791. While not terribly esoteric (nor terribly controversial, either), the most interesting amendment from a historical perspective is the most “recent”, the 27th, ratified in 1992. Why do I say the most “recent”  in quotation marks? Because it was one of the proposed amendments to the Bill of Rights in 1789, but was not ratified until 203 years later. It states that “No law varying the compensation for the services of the Senators and Representatives shall take effect, until an election of Representatives shall have intervened.”  This restriction on Congress’ power to set its own salary languished for two centuries–and was able to do so as it set no deadline for ratification–until the 27th Amendment was certified following its ratification by Michigan on May 7, 1992 which met the 38 state (or 3/4 majority) requirement. Interestingly, it later came out that the historical record had forgotten that Kentucky had ratified the amendment in June 1792, meaning that it was actually Missouri’s ratification two days earlier that had made the amendment official– nevertheless, Michigan still gets official credit for being the 38th state.

Massachusetts, by the way, still hasn’t ratified the 27th Amendment, making it one of only 5 such states.

Can an ‘Obscure’ Amendment Really Be A Solution to the Debt Crisis?

It’s difficult to think of an amendment to the U.S. Constitution that is truly “obscure”–although the 3rd Amendment is certainly an interesting historical relic as it restricts the government’s garrisoning of troops in civilian houses. However, some sections of the Constitution, including amendents,  clearly do deserve this moniker, and this week one such provision has suddenly become part of the debt ceiling debate. Of course, the 14th Amendment can hardly qualify as ‘obscure’ as a whole, given that it governs citizenship rights, expands due process and equal protection rights to also bind state governments and was promulgated as part of the Reconstruction Amendments of the post-Civil War period.

However, clearly there are phrases and parcels of the Constitution that are mystifying and esoteric, and part of the 14th has generally escaped notice until now: namely section 4 which reads: “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.” Section 4 was designed to indicate that any debts incurred by the Union during the Civil War were valid–and conversely, that Confederate debts were not, as section 4 goes on to say “But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.” And of course it is supposed that any debt incurred or issued by the U.S. following this amendment would also be valid.  It also appears uncontroversial that this section of the 14th Amendment is largely a historical anacronism. While the 3rd Amendment made perfect sense at the time of its promulgation, given the nasty tendency of occupying British soldiers to make themselves at home in civilian houses, section 4 of the 14th Amendment likewise had a perfect internal logic in the aftermath of the Civil War. But would it have any meaning now?

If jurists agree on anything regarding constitutional interpretation, it is probably that no-one exactly knows what this constitutional provision really means, or what if any applicability it would have today. It has been suggested, by Former President Clinton no less, that if he were president he would utilize the Executive power under the 14th Amendment and take unilateral action. But it cannot be said with any certainty that this section actually gives power to the Executive branch (although the Executive is tasked with executing and enforcing the laws), rather than Congress, or that the debt ceiling has to do with the ‘validity’ of the debt, or that section 4 really encompasses this issue at all rather than merely saying that all debts could not be retroactively deemed to be invalid–as the former Confederate states might well have chosen to do should they have regained power of Congress in the postbellum period. This is doubtlessly a fascinating constitutional question, and one that interests the legal historian because it is not often than a constitutional provision which has largely lay dormant for so long suddenly becomes the focus of discussion. Ultimately, however, the question might well be less about whether the President has the constitutional authority under the 14th Amendment to raise the debt ceiling–a question that constitutional pundits will discuss for some time and which would take a clear opinion by the Supreme Court to definitively answer–but what would happen if he did. The public would probably release a sigh of relief, foreign markets would be at least somewhat placated, and there doubtlessly would be shrill cries from some inside Congress and a challenge of some kind. What type of challenge– a court challenge by aggrieved Congressional members, mere posturing, articles of impeachment being drawn up, battle lines drawn in the next election, or the like–could only be conjectural, but challenged the President’s actions would be, although almost definitely post facto.

This might be an interesting spectacle to watch, and even perhaps necessary should legislative action not be forthcoming.  Certainly it would make for fascinating political theater and interesting scholarly discourse, regardless of other consequences. However, ultimately–and regardless of the intent underlying section 4 of the 14th Amendment– the fundamental, constitutional duty of Congress to address this issue is unassailably clear. If the solution has to involve a little-remembered, little-understood constitutional provision, then Congress will clearly have abrogated its duty.

Of Draco, “Draconian”, Irony, and Legal Reform

Today in a seminar someone said in passing that a company’s policies “were draconian”. It triggered a thought in my mind that the origins of the word had to do with Draco and his legal code, and I decided it would be interesting to excavate this legal history  esoterica a little further.

The definition of draconian is  “of, relating to, or characteristic of Draco or the severe code of laws held to have been framed by him”; also “cruel” or “severe” (see definition). But who was Draco, and what did he do that he has lent his name to this adjective?

Draco was an ‘archon’ or magistrate in Athens, Greece, who was tasked with compiling and revising Athenian law, to replace the systems of ‘oral law’ (law that wasn’t codified or written) and ‘blood feud’ or ‘vendetta’ law, with a written code of law enforceable by courts. He performed this task around 620-621 B.C, according to Aristotle, and was noted for his impartiality in so doing. The laws were apparently posted on a pivoting three-sided pyramid of wooden tablets. The laws were quite simple to understand, however, as almost all infractions were punished by the same sentence: death. Plutarch recounted that when asked about his liberal use of capital punishment, even for minor offenses, Draco stated that “he considered these lesser crimes to deserve it, and he had no greater punishment for more important ones.”  (Life of Solon). Even non-capital offenses were treated harshly: for example, debtors of the lower class in society could be sold into slavery. His laws were repealed in their near-entirety (with the exception of his law on homicide) by his successor, Solon, in 594 BC . An ironic and dubious historical legacy for someone who had set out to be a legal reformer–even more so because he might have succeeded: his code was seen by some contemporaries as much less arbitrary than the oral law it had replaced.

 

Lawyer Jokes

cropped-judge.jpgSome years ago I was teaching a large survey course in Canadian Legal History. I decided it would be an unconventional but effective ice-breaker if I told the class that I was expecting them to come prepared to share their favorite lawyer joke at the beginning of each class, and if they didn’t cooperate, I would share with them the most painful, cringe-worthy lawyer joke I knew instead. It took only one such example  for them to embrace the idea, and for the rest of the semester we opened each class with a new joke. At the end of our fifth or sixth class, however, a very earnest student came up to me and asked me pointedly why I was encouraging the denigration of such a noble profession, particularly given that we had all chosen to pursue this field.

I admit I was a bit gobsmacked by this. Flabbergasted. Slack-jawed, even. After a few seconds of awkward silence, I answered something like this: “Our much-maligned profession has been the butt of jokes since time immemorial. While we can console ourselves with the knowledge that this is obviously the result of jealousy on the part of everyone else, the fact remains that lawyer jokes will live on regardless of whether we tell them or not. But it’s important to remember: if you can’t laugh at yourself….someone else will be only too glad to do it for you.” This seemed to mollify her a bit. Personally, I think she was wound a bit too tight.  

Anyway, here are some of my favorites. If you have any suggestions for additions, please let me know. And if you’re a lawyer, please don’t charge your clients for the time spent reading these.

 

A noted criminal defense lawyer was making the closing argument for his client accused of murder, a case in which the body of the victim had never been found. The lawyer turned dramatically to the courtroom’s clock and, pointing to it, announced “Ladies and gentlemen of the jury, I have some astounding news. I have located the supposed victim of this murder and he is alive! Within the next thirty seconds, he will walk through the door of this courtroom!” A heavy silence fell over the courtroom as all waited….but nothing happened. The lawyer continued, “The fact that you were watching the door, expecting the victim to walk through it, is proof that you have reasonable doubt as to whether a murder was actually committed, and you should acquit!” The jury was instructed, filed out, and filed back just a few minutes later with a guilty verdict. After the jury was dismissed, the shocked defense lawyer raced over the jury foreman. “Guilty? How could you convict? You were all watching the door!” “Well”, said the foreman, “most of us were watching the door. And some of us were watching the defendant–and we noticed that he wasn’t watching the door.”

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Did you hear about the crook who was having a rough time getting an attorney to represent him? Every time an attorney learned that he hadn’t stolen the money he was charged with, the attorney quit!

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“God works wonders now and then; Behold! a lawyer, an honest man.”  — Benjamin Franklin

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Did you hear about the lawyer whose firm had so few clients that he divorced his wife just so he would have a case?

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What do you call 10,000 lawyers at the bottom of the ocean? A good start.

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What’s the difference between a lawyer and a vampire bat? One is a bloodsucking parasite, and the other is a mouse-like creature with wings.

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What’s the difference between a lawyer and a catfish? One is a bottom-feeding scavenger, and the other is a fish.

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What’s the difference between a lawyer and a vulture? Lawyers accumulate frequent flyer points.

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A  neighborhood church-run food panty realized it had never received a cent from the town’s wealthiest citizen, a lawyer. The minister in charge of the food pantry decided to call on him to see if they could persuade him to contribute. “With all the success you’ve had, and all the blessings bestowed upon you, wouldn’t you like to give back to the community to aid those less fortunate?”, asked the minister. “It certainly appears you can afford it.”

“Oh yes?”, said the lawyer. “Well, were you aware that my mother is dying from a long, painful illness, and has racked up medical bills far in excess of her savings?”

“Ah, no, I wasn’t”, said the minister.

“Or that my brother, who is a disabled veteran, is blind, confined to a wheelchair, and depends on others for all of his daily needs?”, continued the lawyer.

“No, I didn’t realize that”, said the minister, growing embarrassed.

“Well, did you know that my sister’s husband died tragically in a car accident, at the hands of a drunk driver? And that he left her penniless with four children to support?!!”, thundered the lawyer, his face flushed with anger.

Abashed, the minister hung his head and mumbled, “no…I had no idea…I’m so sorry….”

At this the lawyer stood up. “Well”, he said, “if I don’t give any money to them, then what makes you think I should give any to you?”

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A doctor on vacation in the Caribbean ran into an old lawyer he knew and asked him what he was doing there. Said the lawyer, “Well, I bought some lousy real estate in Florida, but it caught fire, and I spent the fire insurance proceeds on this fabulous vacation. What about you?”  Said the doctor, “I had a similar experience. I had some lousy real estate in Louisiana, and it flooded, so I treated myself to a well-earned vacation using the flood insurance proceeds.” At this the lawyer looked confused. “Gosh,” he asked. “How did you manage to start a flood?”

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A successful London barrister went duck hunting in rural Scotland. He shot a bird, which inconveniently dropped onto a farmer’s field on the other side of a fence. As the barriester climbed over the fence to retrieve it, an elderly farmer drove by on his tractor, stopped, and asked the barrister what he was doing.

“I shot a duck and it fell into this field, and I’m going to retrieve it”, said the barrister.

Replied the farmer, “This is my property, and I’ll not allow you to trespass on it.”

The indignant barrister replied, “I’m one of the most successful barristers in London, and if you don’t let me retrieve that duck, I’ll take legal action against you the moment I return back to my office.”

The old farmer smiled and said, “No reason for such unpleasantness. For centuries we’ve settled small disagreements like this with the Scottish Three Kick Rule.”

“The Scottish Three Kick Rule? What’s that?”, asked the barrister.

Said the farmer, “Well, first I kick you three times, and then you kick  me three times, and so on, back and forth. The person who gives up first loses the disagreement.”

The barrister sized-up the old farmer and quickly decided that he could easily take him in such a contest.  “I agree to abide by your quaint local custom”, said the barrister.

The old farmer slowly got down from his tractor and walked up to the barrister. The first kick of his heavy work boot hit squarely in the barrister’s groin, which dropped him to his knees in agony. The second kick to his head levelled him completely and knocked out several teeth. The third kick, aimed precisely at his kidney, caused the barrister to almost cry out for mercy, but he willed himself not to. The barrister slowly and painfully righted himself, gasping for breath and spitting out blood, his teeth clenched in pain. “Okay, old man, now it’s my turn”, said the barrister.

The old farmer smiled and said, “Naw, I give up. You can keep the duck.”

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A man died and was taken to a place of eternal torment by the Devil. As he passed raging pits of fire and shrieking sinners writhing in agony, he saw a man he recognized as a lawyer snuggling up to a beautiful woman. “That’s unfair!”, the man cried. “I have to spend all eternity in these fire pits of damnation, yet that lawyer gets to spend it with a beautiful woman!”. “Shut up!”, barked the Devil, jabbing the man with his pitchfork. “It’s not up to you to question that woman’s punishment!”

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Satan appeared to an attorney and offered him all the wordly wealth and pleasures he could imagine, if only he would sign over his eternal soul and those of his wife and children. The attorney thought about it for a few minutes and finally said, “okay, I give up– what’s the catch?”

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What do you get when you cross the Godfather with a lawyer? An offer you can’t understand.

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Lawyer: “Your Honor, I wish to appeal my client’s case on the basis of newly discovered evidence.”   Judge: “And what is the nature of the new evidence?”  Lawyer: “I have discovered that my client still has money.”

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Two pre-schoolers overheard at the playground. “My name is Johnny. What’s yours?”, asked the first boy. “Tommy”, replied the second. “My daddy’s a doctor. What does your daddy do?’, asked Johnny. “My daddy’s a lawyer”, answered Tommy. “Honest?”, asked Johnny. “No, just the regular kind”, replied Tommy.

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Diogenes went out into the night to look for an honest lawyer. “How’s it going?”, someone asked. “Not too bad”, said Diogenes. “I still have my lantern.”

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What’s the definition of  ‘mixed emotions’? Watching your lawyer drive over a cliff in your new car.

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An attorney was on vacation in Mexico. While he walking through a small town a car accident occured which quickly drew the attention of a large crowd. Running to the scene of the accident, the attorney was unable to make his way past the crowd until inspiration hit: He began yelling “let me through, let me through! I’m the victim’s son”. The crowd made room for him to get past, allowing the attorney to reach the victim: a donkey.

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A doctor and attorney were chatting at  a party. During the course of their conversation, they were constantly interrupted by party-goers who described their ailments and asked the doctor for medical advice. After an hour of this, the exasperated doctor said to the lawyer, “This is driving me crazy. Do you have a similar problem? How do you stop people from pestering you for free legal advice when you’re in public?”  Replied the lawyer, “It does happen to me, and my solution is to give it to them….and then I send them a bill. Works like a charm.” The doctor was shocked, but upon reflection decided to give it a try. The next day, still feeling slightly guilty, he went to place the bills he had prepared in his mailbox– only to find a bill from the lawyer.

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A man walks into a lawyer’s office. “I have a problem with my neighbor. But before we talk about that, I need to know: how much do you charge?”

Says the lawyer, “well, I have a very simple fee structure. You pay me $5000, and you can ask me three questions.”

“$5000 for three questions? That seems awfully steep”, says the potential client.

“Yes”, says the lawyer. “Now, where do I send your bill?”

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There’s an interesting new novel about two ex-convicts. One of them studies to become a lawyer, the other decides to go straight.

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What’s the difference between an attorney and a pit bull? Jewelry!

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Changing lawyers is a lot like moving to a different deck chair on the Titanic.

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Two men named George and Harry  set out in a hot air balloon to cross the Atlantic Ocean. After 37 hours in the air, George says “Harry, we better lose some altitude so we can see where we are”. Harry lets out some of  the hot air in the balloon, and the balloon descends to below the cloud cover. George says, “I still can’t tell where we are, lets ask that guy on the ground”. So they descend further, and Harry yells down to the man “Excuse me, could you tell us where we are?” The man on the ground yells back “You’re in a balloon, 100 feet up in the air”. George turns to Harry and says “That man must be a lawyer”. And Harry says “Why do you say that?”, George asks. “Because the advice he gave us is 100% accurate, and yet totally useless”.

[This part of the joke was added by lawyers]: The man called back up to the balloon, “You must be a legal client.” George yelled back, “Why do you say that?” “Well,” the man replied, “you don’t know where you are, or where you are going. You got into your predicament through a lack of planning, and could have avoided it by asking for help before you acted but you expect me to provide you with instant information if not a solution. The fact is you are in the exact same position you were in before we met, but now it is somehow my fault.”

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An associate was sent abroad to represent a long-term client accused of robbery. After days of trial, the case was won, the client acquitted and released. The associated immediately emailed his managing partner: “Justice prevailed!”.  The partner emailed back: “Appeal immediately.”

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Q: How many lawyers does it take to roof a house? A: That depends on how thin you slice them.

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“A lawyer is a gentleman who rescues your estate from your enemies and keeps it for himself.”  —Lord Brougham

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A man arrested for embezzling millions of dollars went to a criminal lawyer. The lawyer told him, “Don’t worry about it– you’ll never go to jail with all that money.” And of course he was right– when the man went to prison, he didn’t have a dime!

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A man walks into a post office in early February to mail a package. As he is waiting in line, he sees a middle-aged woman standing at a counter, methodically placing “love” stamps on a huge stack of envelopes with hearts all over them. She then takes out a perfume bottle and generously spritzes the stack of envelopes. Intrigued, the man says to her, “you must have a lot of boyfriends!”  “No”, says the woman, “I’m just mailing out 1,000 Valentine Day’s cards signed ‘guess who?'”.  “Why on earth would you do that?”, asks the man. Replies the woman, “I’m a divorce lawyer.”

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A career pickpocket was in court, charged with several counts of larceny. After accepting his plea of not guilty, the presiding judge set the pickpocket’s bail at $1000 pending trial. “Your honor”, said his lawyer, “my client cannot possibly come up with that amount at this time, but if you’d allow him just a few minutes to mingle with the crowd….”

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An independent woman started her own business. She was shrewd and diligent, so business kept growing. After a short time she realized she needed an in-house counsel, and so she began interviewing young lawyers.  “As I’m sure you can appreciate,” she started off with one of the first applicants, “in a business like this, our personal integrity must be beyond question.” She leaned forward. “Mr. Smith, are you an ‘honest’ lawyer?”

“Honest?” replied the candidate. “Let me tell you something about honesty. Why, I’m so honest that my dad lent me one hundred thousand dollars for my education and I paid back every penny with interest the minute I defended my very first client.”

“Impressive. And what sort of case was that?”

Mr. Smith squirmed uncomfortably in his seat: “Well, my dad sued me for the money.”

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Top 5 Warning Signs that you Might Need a New Criminal Lawyer:

#1: Your lawyer tells you that his last good case was of Budweiser.

#2: When the prosecutors see your lawyer, they high-five each other.

#3: Your lawyer picks the jury by playing “duck-duck-goose.”

#4: Your lawyer tells you that he has never told a lie.

#5: A prison guard is shaving your head.

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A defense lawyer successfuly defends a major organized crime figure on charges related to distributing narcotics, murder, attempted murder, racketeering, and extortion. As he is leaving the courtroom for his press conference, an indignant older woman accosts him: “Sir, have you no decency? is there anyone you wouldn’t defend?”  Replies the lawyer, “Well, I don’t really know…why, what you have done?”  

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Q:Why does California have the most attorneys in the U.S., and New Jersey the most toxic waste dumps? A: Because New Jersey had the first pick.

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Q: What happens to a lawyer who jumps out of a plane at 35,000 feet without a parachute? A: Who cares?

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A man walking on the beach came across an odd-looking bottle. Not being one to ignore tradition, he rubbed it and, much to his surprise, a genie appeared. “For releasing me from my captivity in the bottle, I will grant you three wishes,” said the genie, “However, there’s a catch– for each of your three wishes, every lawyer in the world will receive double what you ask for.”  The man thought for a moment, and wished for a Ferrari. In a puff of smoke a beautiful red Ferrari appeared in front of him. “Now, every lawyer in the world has been given two Ferraris,” said the genie. “What is your next wish?”  Said the man, “I wish for a million dollars,” and the money likewise appeared before him in a puff of smoke. “Now, every lawyer in the world has two million dollars,” said the genie, “And what is your third wish?”  The lucky man thought for a minute and said, “Well genie, I’ve always wanted to donate a kidney.”

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Santa Claus, the tooth fairy, and honest lawyer, and an old drunk were walking along when they simultaneously spotted a hundred dollar bill lying in the street. Question: Who gets it? Answer: The old drunk, of course, as the other three are mythical creatures. (thanks to my friend J. Costello for passing this one along)

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In the middle of the night, out in the country, two drivers have the misfortune of both slightly crossing over the white line in the center of the road. They collide and a fair amount of damage is done, although neither is hurt. They both get out to survey the damage. During the discussion, it becomes evident that one is a doctor and the other is a lawyer. The lawyer calls the police on his cell phone and reports they’ll be there in 20 minutes. It’s cold and damp, and both men are shaken up. The lawyer offers the doctor a drink of brandy from his hip flask, the doctor accepts, takes a long swig and hands it back to the lawyer, who puts it away. “Aren’t you going to have a drink ?” the doctor says. “Sure”, replies the lawyer. “But AFTER the police get here”
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Q: What do you get when you cross a lawyer with a demon from hell? A: The same thing you had before.

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The trouble with the legal profession is that 99% of its members give the rest a bad name.

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If I had but one life to give for my country, it would be my lawyer’s.

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The problem with lawyer jokes is that lawyers don’t think they’re funny — and no-one else things they’re jokes!

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“It is interesting to note that criminals have multiplied of late, and lawyers have also; but I repeat myself.”  –Mark Twain

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Did you hear about the terrorists who took a whole courtroom full of lawyers hostage?  They threatened to release one every hour until their demands were met.

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Q: How many lawyers does it take to stop a speeding bus?  A: Never enough.

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Q: Why do the rules of professional responsibility prohibit sexual relations between a lawyer and a client? A: To prevent a client from being charged twice for essentially the same service.

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Q: Why do lawyers make so much money? A: I’ll tell you as soon as I finish completing your bill for the punchline.

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A jury is a collection of people banded together to decide who hired the better lawyer.

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A physician, an engineer, and an attorney were discussing who among them belonged to the oldest of the three professions represented. The physician said, “Remember that, on the sixth day, God took a rib from Adam and fashioned Eve, making him the first surgeon. Therefore, medicine is the oldest profession.” The engineer replied, “But, before that, God created the heavens and earth from chaos and confusion, and thus he was the first engineer. Therefore, engineering is an older profession than medicine.” Then, the lawyer spoke up, “Yes, but who do you think created all of the chaos and confusion?”

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One morning at the law office, one attorney looked at the other and said, “Wow, you look really terrible this morning.” The other lawyer replied, “I woke up with a headache this morning and, no matter what I take, I can’t seem to get rid of it.” The first lawyer told him, “Whenever I get a headache like that, I take a few hours off during the day, go home, and make love to my wife. Works every time.” Later that afternoon, the two lawyers met again. The first says, “Hey, you must have taken my advice. You look much better.”  “I am”, says the other, “and thanks for that great advice you gave me. By the way, you have a beautiful house.”

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Two friends bumped into each other outside of court one day.  “I hear you lost your court case,” said one. “Did your lawyer give you bad advice?”  “No,” replied the other. “He charged me a lot for it.”

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A police chief, a fire chief, and a city manager were traveling together by car to a municipal management conference in a distant city. Their car broke down in a rural area, and they were forced to seek shelter for the night at a nearby farmhouse. The farmer welcomed them in, but cautioned them that there were only two spare beds, and therefore one of them would have to sleep in the barn with the farm animals. After a short discussion, the police chief agreed to sleep in the barn. Shortly after retiring, a knock was heard on the door of the farmhouse. The party inside answered to find the police chief standing there, complaining that he could not sleep. There were pigs in the barn, he said, and he was reminded of the days when everyone called him a ‘pig’. The fire chief then volunteered to exchange with the police chief. A short time later, another knock was heard at the door. The fire chief complained that the cows in the barn reminded him of Mrs. O’Leary’s cow that started the Chicago fire, and that every time he started to go to sleep, he started to have a fireman’s worst nightmare, that of burning to death. The city attorney, in desperation for sleep, then agreed to sleep in the barn. This seemed like a good idea until a few minutes later, when another knock was heard at the door. When the occupants answered the door, there stood the very indignant cows and pigs.

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Two lawyers walking through the woods spotted a vicious-looking bear. The first lawyer immediately opened his briefcase, pulled out a pair of sneakers and started putting them on. The second lawyer looked at him and said, “You’re crazy! You’ll never be able to outrun that bear!” “I don’t have to,” the first lawyer replied. “I only have to outrun you.”

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A paralegal, an associate and a partner of a large law firm are walking through a city park, when they spotted an antique oil lamp. The paralegal picked it up, but both the associate and partner grabbed for it, arguing that they found it first. Their tussling had the effect of jossling the lamp, and to their shock a Genie emerged in a great purple cloud of smoke. Said the Genie, “In gratitude of your freeing me from the lamp, I grant you three wishes. As there are three of you, you each get one wish.”
The paralegal blurted out, “I want to be in the Caribbean, sipping cocktails with a gorgeous movie star.” Poof! The paralegal’s wish was granted.
The associate stammered out, “I want to be in Hawaii, relaxing on the beach with a professional hula dancer and an endless supply of Mai Tais.” Poof! The associate’s wish was likewise granted, and he disappeared instantly.
“It’s your turn,” the Genie said to the partner, “And what is your wish?”
The partner replied, “I want those two back in the office after lunch.”

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A doctor told his patient that his test results indicated that she had a rare disease and had only six months to live.
“That’s so little time. Isn’t there anything I can do?” pleaded the patient.
“Marry a lawyer,” the doctor advised. “It will be the longest six months of your life.”

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WHEN YOU NEED A REALLY GOOD LAWYER– Defendant: “Before I enter my plea, I would like to ask the court to appoint a lawyer to defend me.”  Judge: “You were in the actual commission of a crime, with the stolen goods on you, a gun in your hand, and your victim on the floor. What could a lawyer possibly say in your defense?”  Defendant: “That’s just it, your Honor…I too am very curious as to what he would possibly say.”

?

 

 


What is constitutional autochthony?

I was recently asked a very interesting question, somewhat related to legal history: namely, what is constitutional autochthony?

‘Autochthony’ is a word that rarely surfaces in everyday English, but it is a synonym for ‘native’ or ‘indigenous’. It is most often used in anthropology, biology and related sciences, but is also used in law. The formal definition is: 1. Originating where found; indigenous: as in ‘autochthonous rocks’; an ‘autochthonous people’ 2. Originating or formed in the place where found, such as an ‘autochthonous blood clot.’ It derives from the Greek, meaning ‘springing from the land’. You can find the definition at: http://www.thefreedictionary.com/autochthony

When referring to ‘constitutional autochthony’, one is therefore referring to the nativity or indigenous nature of a constitution. This has two practical applications in that context: when referring to a constitution that emerges internally from a jurisdiction or country, meaning that it is free from external legal control and influence; or when referring to a constitution that is redrafted, amended or otherwise remade to ‘reclaim’ it as being autonomous and native. When talking about this last meaning — reclamation– this often has occurred when countries achieved independence from colonial powers. Post-colonial countries amend or replace these constitutions with ones developed in the native country, as they are considered more legitimate and authentic and therefore more valid and enforceable. Specific examples include the redrafting of the Irish constitution in 1937 (and previous amendments to the 1922 constitution), India in 1949, Zambia in 1991 (replacing the constitution of 1973) and South Africa in 1996.

Constitutional autochthony is therefore concerned both with the autonomy of the government that has adopted the constitution, as well as with the indigenous (‘native’) nature of the constitution.

For an interesting discussion of the Australian context and how this may be achieved for Australia, see http://www.austlii.edu.au/au/journals/FedLRev/2001/10.html

Informal Law and Custom

While I had intended to discuss heartbalm actions further, that will have to wait for a future blog entry as I wanted to discuss the concept of ‘informal law’ in more detail. I have long found the concept of informal law fascinating.

Informal law or ‘custom’ may involve practices or traditions that are symbotic or complementary to existing laws, or are designed to circumvent the law, or are quasi-legal and essentially supplant the law. Examples of symbiotic informal law or customs were once common in everyday life. By way of contemporary examples, they may include such things as the general practice of alternating cars as they merge from two lanes into one when neither lane has a yield sign–this is not a legal requirement but has become a custom that not only reflects good manners but also helps the flow of traffic when one lane is blocked. In some places, it is considered custom that someone who shovels out a parking spot following a snow storm is entitled to mark it as theirs, which is a practice rarely reflected in the law (interestingly enough, in Boston, municipal ordinances allow one to claim a parking spot one has dug out for 24 hours after a snowstorm; while neighboring Cambridge had an ordinance that makes it unlawful to do so).

The tension between what people wish to do and what the law allows them to do has often been the impetus for the growth of informal law or custom. The field of family law, for instance, is replete with examples. Couples wishing, for whatever reasons, to circumvent or skip the requirements for a legal marriage have long created informal marriages (often referred to as “common law” marriages) without seeking a marriage license or participating in a marriage ceremony. An informal or common law marriage usually involves a couple who have agreed to be married, live together as husband and wife, and hold themselves out to the public as such. (This is the legal standard as set out in the Texas Family Code §2.401, for example).

The dissolution of marriage is another striking example. Particularly when divorce law was highly restrictive, self-help divorces were a means of curcumventing the law. In the simplest form, a spouse could simply abandon the other; husbands ejected wives from their homes, wives left their husbands. Should a wife have abandoned her husband in this manner, he might well place newspaper advertisements announcing that she had left his ‘bed and board’ and that he would not be held responsible for debts incurred in his name by her.

A fascinating historical example related to self-divorces was the practice of ‘wife auctions’. While at first blush this appears to be an archtypical example of historical chauvanism, the reality was often more nuanced. A wife auction, as the name suggests, involved a husband putting his wife up for public sale. As barbarous as this sounds, in many instances the wife was a willing participant–perhaps even the instigator–the successful buyer was known beforehand to all (including the wife, who in some instances was already cohabitating with him) and the auction result a foregone conclusion; sometimes the wife herself provided the buyer with the money to finance the winning bid! English wife auctions were to die out by the mid 19th century due to reforms to the divorce laws.

Examples of informal law continue to exist all around us, although they are not always obvious. For example, in 2005 new rules regarding personal bankruptcy went into effect, with the avowed purpose of making it more difficult for individuals to file for personal bankruptcy under Chapter 7 or Chapter 13 and thus providing greater protection to creditors. One result of this has been a probable increase in ‘informal’ or ‘unofficial’ bankruptcies. An informal bankruptcy involves an individual who doesn’t file for official bankruptcy protection but attempts to have the same protection by making themself judgment proof. This might include not paying debts, not keeping assets in one’s name, moving, changing one’s name, and any number of other subterfuges in order to avoid paying one’s creditors– in other words, being what in common parlance is known as a ‘deadbeat’.

Informal law can also include a quasi-legal custom that exists in parallel, or symbiosis, to the law itself. Particularly in the context of criminal justice, informal law has often surfaced with groups have felt the law could not, or would not, act. They included ritualized forms of protest, performance, violence or demonstration used to enforce community standards related to marriage and other issues (such as whitecapping and shivarees/charivaris), vigilantism, lynching (a particularly common, and revolting, practice in the southern U.S. aimed at blacks), and rioting. The charivari or shivaree (perhaps consisting of loud processionals, banging pots and drums, blowing on trumpets and the like) could be mischievous–designed to harass a newly married couple on their wedding day in exchange for food or drink–or reflect a very real sentiment of community disapprobation over wife-beating, an inappropriate marriage, or the like.

Many rituals that accompanied the practice of criminal justice could be said to be customary or informal law insofar as they were not legally codified but became entrenched components in the administration of the law. The practice of judges’ donning a black cap when handing down a sentence of death, for example, is a marvelous example of such a custom. In the ninetenth century, labor law was often a mixture of legislation, local laws, common law concepts, and customary and judge-made discretionary law. For example, it was frequently a custom that deserting servants were required to make up lost time to their employers, even when not explicitly provided for in the law.

So, here is a question for you: what other examples of informal law or custom come to mind?

Famous U.S. Trials Course Materials (Ex College, Tufts University)

The Salem Witch Trials. O.J. Simpson. Lizzie Borden. The “Mississippi Burning” case. The Scopes “Monkey” trial. The George Zimmerman Trial.

These trials, separated in time and place, cover the span of three centuries of American history. What makes trials such as these so resonant? Why do some garner attention so universally, while others – perhaps even more interesting or sordid – do not? While there were great differences between the defendants in these particular cases, the outcomes of the trials, and the periods in which they took place, they share the commonality of being defined as “great American trials” or “trials of the century” – trials that have a unique place in our history. This course, offered through the Ex College at Tufts University, will discuss these cases and others like them, with the intention of resolving what made them so iconic and so influential in American history and popular culture.

Famous Trials in US History 2017 syllabus

The following are short videos and documents which make up the required and recommended course materials, some of which reside here and others which can be accessed on Douglas O. Linder’s “Famous Trials” website. Links to those latter materials may be found here and will open as a new window:

 

Trial the First:  Salem Witch Trials (1692):

A. Required Materials:

An Account of the Events in Salem (link)

Salem Witch Trials cast of characters (Word document)

Salem Witch Trials summary timeline (Word document)

Biographies (link)

Examinations and Evidence (link)

Procedure in witchcraft cases (link)

The Man of Iron (link)

Petitions of accused witches (link)

B. Recommended Materials:

Petitions for Compensation (link)

Letter of Gov. Phips (link)

Excerpt from An Impartial Account of the Most Memorable Matters of Fact… (PDF)

Excerpt of An Account of the Differences in Salem Village (Complaints Against Rev. Parris) (PDF)

Witchcraft in Salem Village — Trial of Elizabeth Howe (PDF) (A transcription of the documents related to E. Howe, executed in July 1692, including affidavits filed against her)

Arthur Miller talks about ‘The Crucible’:

 

 

Trial the Second: the Lincoln Conspirators (1865)

A. Required Materials:

The Trial of the Lincoln Conspirators (link)

Lincoln Conspirators Trial Cast of Characters (Word document)

Chronology (link)

Ten Conspirators (link)

Attorney General opinion on Military Commissions (link)

Excerpts from the Trial of the Lincoln Conspirators (Word document)

B. Recommended Materials:

John Surrat’s 1870 speech (link)

Excerpt of Editorial on the Lincoln Conspirators Trial (Word document)

The Man Who Shot the Man Who Shot Lincoln (PDF)

Lincoln Must Die! (PDF) (account of an earlier assassination plot)

A Kangaroo in Obama’s Court (PDF) (article on military tribunals at Guantanamo Bay)

Afterlife — Lincoln’s Legacy (PDF) (views of Lincoln following his death)

Lincoln Assassination, Part I:

Lincoln Assassination, Part II:

The Lincoln Conspirators Trial: Their Confinement and Execution, by the U.S. National Archives:

 

 

 

Trial the Third: Trial of Lizzie Borden (1893)

A. Required Materials:

The Trial of Lizzie Borden (link)

Trial Chronology (link)

Excerpts from the Lizzie Borden Inquest (Word document)

Indictment (link)

Key Figures (link)

Transcript excerpts (link) (please read testimony of Robert Morse, Bridget Sullivan, Dr. Bowen, Adelaide Churchill; Alice Russell; Dr. Dolan; Hannah Reagan; and Emma Borden)

Evidence of Lizzie Borden’s guilt (link)

B. Recommended Materials:

Newspaper accounts (link)

Floor Plan of Lizzie Borden House (PDF)

Prosecution Closing Statement (PDF)

Defense Closing Statement (PDF)

Judge Dewey’s Charge to the Jury (PDF)

Excerpt from “American Justice” episode on Lizzie Borden (2006):

 

Trial the Fourth: Leopold and Loeb Trial (1924)

A. Required Materials:

Leopold and Loeb: An Account (link)

Biographies (link)

The Glasses (link)

Nathan Leopold’s confession (link)

Psychiatric testimony (link)

Clarence Darrow enters a guilty plea (link)

Decision and Sentence (link)

In Leopold’s words (link)

B. Recommended Materials:

Excerpts of the Summations (link)

Defense in Marathon Bombing Has Echoes of Clarence Darrow (PDF) (trial strategy that mirrors Darrow’s anti-death penalty plea)

Leopold and Loeb Documentary:

 

 

Trial the Fifth: Scopes “Monkey” Trial (1925)

A. Required Materials:

The Scopes “Monkey” Trial (link)

Biographies (link)

Anti-Evolution Statute (link)

Trial Excerpts (link)

John Scopes reflects (link)

Excerpts of H L Mencken’s reporting on Scopes trial (Word document)

B. Recommended Materials:

Evolution Controversy (link)

Impressions of the Scopes Trial  (link)

H.L. Mencken, The Scopes Trial (PDF)

God v. Darwin: The Scopes Trial:

Excerpt from “Inherit the Wind” with Spencer Tracy:

Trial the Sixth: Rosenberg Trial (1951)

A. Required Materials:

Trial of the Rosenbergs (link)

Chronology (link)

Diagram of a Spy Ring (link)

Biographies of the participants (link)

Excerpts from the Rosenberg Trial Transcripts (Word Document)

Judge’s sentencing remarks (link)

B. Recommended Materials:

Final letter to the sons (link)

The final plea (link)

Iowa-Born, Soviet-Trained (PDF) (Article about George Koval, the real atomic bomb spy)

 

Trial the Seventh: U.S. v. Cecil Price “Mississippi Burning” Trial (1967)

A. Required Materials:

The Mississippi Burning Trial (link)

Chronology (link)

Biographies (link)

Excerpts from the Mississippi Burning Trial transcript (Word document)

John Doar’s Closing Statement (Word document)

H.C. Watkin’s closing statement (Word document)

KKK Documents (link)

The Jury’s Decision (link)

Supreme Court decision (link)

Historical context–excerpt from “Civil Rights Heroes: The Murder of Emmett Till”:

B. Recommended Materials:

In Quotes (link)

Horace Doyle Barnette confession (Word document)

Doar’s Story (link)

Websites: if you want to see the modern face of the KKK –and I prefer to not link to their websites here despite the fact that I am including them solely for academic purposes– two representative examples are found at kkkknights.com and kkk.bz.

 

Trial the Eighth: McMartin Preschool Trial (1987-1990)

A. Required Materials:

McMartin Preschool Trial (link)

Chronology (link)

Letter to McMartin parents (Word document)

Police Interview with Accuser  (link)

Victim Interviews (link)

McMartin Trial Transcript Excerpts (Word document)

Modern Day Salem Witchhunt? (link)

More Than Suggestion  (PDF) (interview practices)

The Longest Trial–NY Times (PDF) (contemporary account of the end of the McMartin trials)

The Real Victims of Satanic Ritual Abuse (PDF) (case of Frances and Dan Keller, cleared after 21 years)

B. Recommended Materials:

The Kelly Michaels Trial (link)

Peggy Buckey interview (link)

Reversal of Michael’s conviction (link)

Stickel’s tunnel excavation and report (PDF) (good example of how people concocted evidence)

 

Trial the Ninth: LAPD Trial/Rodney King (1992)

A. Required Materials:

Trial of the LAPD (link)

Chronology (link)

Holliday Videotape (link)

Use of Force Chart (link)

Excerpts of LAPD Police Transmissions (Word document)

Police Reports (link)

King’s Arrest Record (link)

Excerpts of the LAPD Trial Transcript (Word document)

Key Figures (link)

B. Recommended Materials:

Supreme Court decision (link)

Images (link)

In Their Own Words/Quotes (link)

 

Trial the Tenth: O.J. Simpson Trial (1995)

A. Required Materials:

O.J. Simpson Trial (link)

Chronology (link)

Biographies (link)

O.J. Simpson’s Statement (link)

911 Call and Suicide Letter (link)

The Jury (link)

Incriminating Evidence (link)

If I Did It (link)

O.J. Simpson car chase; interview with Detective Tom Lange:

B. Recommended Materials:

Criminal Trial Excerpts (link)

Opinion Polls (link)

What O J Simpson Taught Me About Being Black (PDF)

Verdict in O.J. Simpson civil case—O.J.’s statement:

Judge’s sentencing remarks for armed robbery conviction:

 

Trial the Eleventh: Oklahoma City Bombing Trial (1997)

A. Required Materials:

Timothy McVeigh (link)

Chronology (link)

McVeigh in Waco (link)

Arrest and Searches (link)

Three Prosecuted Conspirators (link)

Excerpts of the McVeigh Preliminary Hearing (Word document)

Sentencing and Appeals (link)

Last Words (link)

 

B. Recommended Materials:

John Doe #2 (link)

Selected Excerpts from the Trial Transcript of Timothy McVeigh (Word document)

Into The Mind of Terror (PDF) (excerpt from biography on McVeigh)

The ‘Patriot’ Movement Explodes (Spring 2012) (PDF) (rise in militia and related groups since election of President Obama)

Inside America’s Toughest Federal Prison (PDF) (description of life in Supermax)

 

Trial the Twelfth: President Clinton Impeachment Trial (1999)

A. Required Materials:

Impeachment of President Clinton  (link)

Chronology (link)

Constitution and Impeachment (link)

From Monica to Handsome (link)

Clinton’s Depositions (link)

Sex and the Starr Report (link)

Lewinsky’s Hellish Day (link)

Was He Guilty? (link)

The Senate Votes (link)

President Clinton’s response to Lewinsky allegations during a speech on education proposals– at the 6:18 mark (January 1996):

Excerpt of President Clinton’s testimony before the Independent Counsel (1998):

President Clinton admits to affair on live television (1999):

B. Recommended Materials:

Map of West Wing (link)

The Blue Dress (link)

For some historical context– impeachment proceedings against President Nixon (July 1974):

More historical context– President Nixon’s resignation (August 1974):

Larry King interviews Monica Lewinsky, Part I (February 2002)

Larry King interviews Monica Lewinsky, Part II (February 2002)

 

Trial the Thirteenth: George Zimmerman Trial (2013)

A. Required Materials:

The George Zimmerman Trial: An Account (link)

Chronology (link)

Florida Statute on Justifiable Use of Force (link)

Critical Phone Calls (link)

Selected Police and Court Documents (link)

Testimony and Video Clips from Trial (link)

Verdict (link)

blacklivesmatter website (link)

B. Recommended Materials:

Comments of Jurors (link)

Obama’s Statement on Verdict (link)

 

THANK YOU FOR A GREAT SEMESTER! ! !

But who is the Lord (or Lady) of the Rings?

Well, this is a slight interruption in my examination of heartbalm actions, but one question that is raised when an engagement is broken off is: who gets to keep the ring?

Historically, engagement rings were a formal sign of the betrothal, a sign of the formal exchange of an offer to marry and its acceptance. It’s also a wonderful example of ‘hidden law’, where an integral, private part of human interaction also has a legal substratem. Indeed, historically even the word “engagement” had a contractual element, as it also means a promise or agreement, usually in the context of a limited-time term of employment–indeed, I am reminded that written contracts between masters and servants in 19th century Montreal were often referred to as “engagements” in both French and English. Engagements are therefore a vivid reminder of the tension that exists between the law on the one hand, and these intimate relationships on the other. Ifi I give someone a ring, it is a gift, is it not? Is it somehow different if I present it to my lover as a sign that I have proposed marriage, and they have accepted? After all, when a relationship fails, we customarily keep whatever gifts we received from our ex-partner– or at least, we feel entitled to do so.

And therein lies the rub: the law might say one thing, and the ‘informal law’ or custom might say another. If the fiancée dies before the wedding, we would quite rightly think the grieving spouse-to-be should get it back. This, of course, means that we are treating it as something different than a usual gift, as otherwise it would just pass to the heirs of the deceased, which might very well not be the same as a the spouse-to-be. By way of another example, if the partner offering the ring cheats on the other before the wedding, shouldn’t the aggrieved partner get to keep it, assuming she or he wants to? Most of us would probably say yes. This again seems to suggest that something other than traditional legal concepts apply.

But let’s say my fiancée breaks off the engagement, for whatever reason: should she have to return the ring to me? This last scenario is perhaps the clearest example of the tension between law and custom. Custom typically suggests that the answer has to do with who has broken off the engagement. If it is the woman, typically it is expected that she would at least offer to return it. If it is the man, typically he would be expected to not make a claim on it. In many cases, the ring’s bearer might very well have no interest in holding onto something that would be a painful reminder of a relationship-turned-sour (but whether they would want to sell it is another question). The Emily Post Institute says that etiquette dictates that the bride-t0-be should always return the ring regardless of circumstances. Personally, I would side with the Emily Post Institute, but believe that many people would follow an ‘at fault’ rule– the person who is not at fault should get to keep the ring. Again, these questions seem to suggest that in general we want to treat the nature of this gift as somewhat different than a typical one.

In a court of law, however, etiquette does not reign (especially true if you consider the behavior of many of the lawyers you see there!). It may not surprise anyone if I say that “the law” is hardly unanimous on this issue–after all, the law isn’t a hegomonic thing that is everywhere the same. In 1999 Pennsylvania ruled in Lindh v. Surman that the ring was a gift that was predicated on the act of marriage taking place. If the marriage does not happen, the recipient has to return the ring. Inherent in this ruling was the idea that if couples in that fair state could have no-fault divorces, there should also be a no fault regimen in place for broken engagements, and that an engagement ring is a “conditional gift” (e.g., a gift conditioned on an act taking place, namely a wedding between the parties). Seems simple enough, but does it raise an equity issue? Some courts have ruled that the aggrieved party should be the one deciding what to do with the ring. Other courts, in contrast, have ruled that the ring is an absolute gift just like any other, rather than a conditional gift, and need not be returned. A more common rule appears to be that the purchaser will be deemed to retain ownership of the ring should the wedding be called off, a rule that the current NY case of Adler v. Friedman will probably reflect.

Just another good example of how law has a difficult time grappling with affairs of the heart! So, what do you think: who should be the Lord or Lady of the Rings?

Breaching A Promise to Marry: Still Grounds for a Lawsuit?!?

Every so often another lawsuit happens that reminds me that the ‘heartbalm’ lawsuits still exist, in some form. The ‘alientation of affection’ lawsuit is a wonderful example of that, particularly as it surfaces quite often in places such as North Carolina, but there are others. In my opinion, one of the most fascinating in recent memory was essentially a ‘breach of promise to marry’ lawsuit.

Breach of promise to marry actions were premised on the concept that a marriage proposal, if accepted, was a legally-cognizable contract. Given the historical importance that marriage had to women both socially as well as economically, these lawsuits reflected the very real damage to a woman’s reputation if the marriage offer was rescinded or the engagement broken off. A woman thus jilted would often have been seen as ‘damaged goods’ by other men, and her future marriage prospects therefore diminished. The heyday of these suits was the 19th century, and these suits provided a fascinating study in contrasts: Victorians espoused highly-sentimentalized and romantic notions of love, and there was a very real tension between these idealized conceptions of romance and the idea that one could ascribe economic damages to a breach of promise to marry, and hence basically ‘commodify’ love. These lawsuits were both common as well as scandalous (and for a marvelous satire on this institution, I recommend you read Charles Dicken’s novel “The Pickwick Papers”), and the titillating details that came out in these trials were gossip fodder for the 19th century version of supermarket tabloids. One interesting legal twist is that historically the common law (until the late 19th century) precluded the parties in a lawsuit from testifying, based on the premise that they were interested parties and hence their testimony was likely to be self-serving. In breach of promise to marry suits, however, this caused the absurd situation that the two people who were central to the relationship (e.g., the jilted bride-to-be and her ex-betrothed) were precisely the two people from whom the court never heard. Love letters were read outloud in court, and witnesses testified to stolen kisses, passionate glances, strolls arem-in-arm and whatever other details about the relationship they had gleaned, but the ex-lovers themselves could only sit and listen.

So, why is this anything more than just an archaic fragment of our legal past?

Well, some of you may remember that in 2008 the case of RoseMary Shell was in the news. Shell sued her ex-financé for breaking off their engagement, and was awarded $150,000 in damages by a jury in Georgia. Shell had resigned from a well-paying job in Florida to be with her then-beau, Wayne Gibbs. Shell claimed that she had suffered very real financial losses as a result, as she was unable to secure an equally-well-paying job in Georgia, besides the emotional distress she susffered (Gibbs had, charmingly enough, broken off the engagement by leaving her a note in the bathroom). Gibbs, for his part, testified that he had paid off $30,000 of her debts, only to discover that she had even more debt than she had disclosed. Did the jury award her damages based on emotional distress, or her loss of earning power? It’s not clear, but the latter certainly provided a more tangible yardstick for the jurors to use, and perhaps that’s what swayed them. It leaves open the question of whether Shell would have sued had Gibbs broken off the engagement more sensitively, and whether the facts of this case are such that this case’s outcome was highly unusual. The historic premise underlying these lawsuits was, after all, that a woman’s economic and social status was harmed by the breach. While the social aspect may no longer ring true, there may have been just enough of an economic loss in this case to make it fit the 19th century paradigm– if Shell did in fact give up her career to be with her ex-fianceé, then it could be said there were quantifiable damages. Of course, a jury might also have felt that her emotional distress counted for something as well.

Was this a good decision? Personally, I feel a ‘no fault’ regime makes the most sense. The term “breach of promise” suggests this was a contractual agreement– but do people still think of engagements (despite the nomenclature) as some sort of binding agreement? Does it make conceptual sense to move towards a no-fault divorce regime but treat engagements differently? Do decisions such as this, coupled with at-fault divorce, lead indirectly but inexorably to the growing prevalence of ‘divorce by murder’ cases? How does one quantify emotional distress anyway, and is that an appropriate concept to be applying in deeply-personal relationships? However one looks at it, it is another example of the tension between “family” and “law”.

Incidentally, referring to the outcome of her lawsuit, Shell said at the time, “This has been the most difficult thing I’ve ever had to do and I think justice has been served,” Shell said.

For some video footage of the story, please see:

 

Doctorate Thesis: ‘Justice in the Premises’

In the early nineteenth-century, before the system of private prosecutions gave way to the public prosecution system we now know –and before the rise of many civic welfare institutions and social movements dedicated to combating child abuse, spousal battery, protecting the mentally ill, animal welfare and the like–how did Montreal courts grapple with the issue of family violence? Given the sanctity of the family and the public / private sphere dichotomy, we might expect that they chose not to deal with some of these issues at all. This thesis uses the voluminous primary sources of the judicial archives to look systematically as to how courts dealt with cases involving infanticide, child abuse, family violence and spousal murder. In so doing, a clearer picture of the causes of these forms of social pathology and its similarities across jurisdictions and time periods emerges, as well as an indication that courts were willing to interpose themselves into the family sphere to protect children and vulnerable spouses against physical aggression.

Justice in the Premises: Family Violence and the Law in Montreal, 1825 – 1850
(McGill University, Institute of Comparative Law, Doctor of Civil Law thesis, 2003).