Column: Fare Thee Well

A flurry of recent articles announced new “federal welfare rules” that will go into effect October 1. These rules represent the first update to the massive overhaul of the US welfare system signed into law by President Clinton in 1996.

The new rules (which require welfare recipients to engage in certain work activity in order to receive benefits) have generated untold controversy on both sides of the aisle. Supporters say the welfare rolls will go down; opponents say poverty will go up. But one vital question has been strangely overlooked in the midst of all the political squabbles: why are the laws governing public assistance invariably referred to as welfare laws?

After all, the program affected by the new regulation is called TANF (Temporary Assistance for Needy Families) not “welfare.” There is no “federal welfare act” or “federal welfare program.”

An Ambiguous Clause

Welfare does appear twice in the Constitution: but in neither case does the word expressly refer to anti-poverty programs. The Preamble describes the purpose of the Constitution “to form a more perfect Union, to establish Justice [and to] promote the general Welfare.”

Article 1 of the Constitution authorizes Congress to pass laws to “provide for the . . . general Welfare of the United States; . . .” Unlike the Preamble, this is not a mere statement of aspiration, but a grant of power.

Almost as soon as the ink was dry on the Constitution, debate erupted over the meaning of the so-called Welfare Clause of Article 1. Alexander Hamilton argued that the Welfare Clause gave Congress an independent right to pass any sort of law that would tend to benefit the nation as a whole, as distinct from laws of purely local interest.

James Madison disagreed. To him, the Welfare Clause was not a distinct federal power. The proof? The fact that “general Welfare” is separated from the more specific powers of Article 1 by a mere semicolon. History does not record Hamilton’s rejoinder to this point, so we are left with the tantalizing possibility that these two Founders may have had furious knock-the-powder-out-of-your-wig arguments about the significance of a semicolon.

The Supreme Court finally settled the question in Helvering v. Davis, a 1937 lawsuit involving the granddaddy of all American welfare programs, the Social Security Act of 1935. The plaintiff had challenged the Act as an unlawful expansion of congressional power. The Court upheld the Social Security Act as an example of Congress’s authority to pass laws “to promote the general welfare.” Justice Cardozo pointedly remarked: “Nor is the concept of the general welfare static. . . What is critical or urgent changes with the times.”

Fare’s Fair

The fact that the Welfare Clause forms the legal basis for the federal welfare system appears to be a coincidence, linguistically speaking. To the Founding Fathers “welfare” did not refer to government programs, but rather conveyed a more general sense of well-being or prosperity. The word is recorded as early as the 14th Century, meaning to fare (i.e., to go, or to take one’s leave) well. It has the same roots as farewell, but just in reverse order.

Welfare began to take on its modern meaning of “a benefit provided to the needy” in the early 20th Century. At first, it applied to the paternalistic efforts of large companies, which sometimes hired “welfare officers” who arranged various services for employees. This sense is preserved in the statutory term Employee Welfare Benefit Plan – which is a type of plan protected under the 1974 Employee Retirement Income Security Act, or ERISA.

By the First World War, welfare was being applied to various services provided to the public at large, giving rise to such terms as welfare center (1917) and, later, welfare clinic (1937). When legislation in the US and UK established government-sponsored benefit programs, it was natural enough that such programs would be referred to as welfare. Before long, people were talking about a welfare state (1941), a term that was initially admiring, but later disparaging.

And yet, lawmakers have historically been reticent about using the term welfare when establishing relief programs. Even the 1996 overhaul – which is commonly referred to as the “Welfare Reform Act” – is actually called the Personal Responsibility and Work Opportunity Reconciliation Act. With a few exceptions (child welfare, for example), the word welfare is too vague for the law, which tends to speak of specific programs – the bureaucratic alphabet soup of TANF, AFDC, SSA, SSI, SCHIP, EA, CCDBG, CCDF, CETA, EOA, EITC, and QWERTY. Okay, not the last one.

As a legal term, welfare did achieve a degree of recognition in 1953 with the creation of the federal Department of Health, Education and Welfare (HEW). But this lasted only until 1979 when HEW was transformed into the Department of Health and Human Services. You will have noticed that the government dropped “welfare” from the new department’s name – but they helpfully added “human” to modify “services,” just in case, say, squirrels began to feel a sense of entitlement.

That’s Why the Lady is a Tramp, Your Honor

Before welfare became a quasi-legal term, laws relating to poverty were known, with a certain lack of euphemism, as Poor Laws. These were a patchwork of old English and American laws dating back to Elizabethan times.

The Poor Laws had two elements. One was the giving of “relief” to the poor. Relief consisted of either indoor relief, which required the recipient to enter a workhouse or similar institution; or outdoor relief, which simply meant giving cash or food to poor people.

The other, seemingly contradictory, component of the Poor Laws was the punishment of poor people. It wasn’t exactly a crime to be poor – unless you were deemed fit to work. The law assumed that any beggar who was capable of working must have chosen to beg. Such people were referred to as sturdy beggars, sturdy vagabonds, or simply as rogues. These were technical legal terms. A legal dictionary of 1607, for example, lists the offenses of being a “Roag [rogue] of the first degree” and “Roag of the second degree.” The punishment for repeat roguery was death.

Before you laugh this off as a relic of history, you might take a glance at the official website of the Massachusetts legislature. Apparently, it is still a crime in the Bay State to be a vagrant or a vagabond; the former being a beggar, the latter a person who steals or acts “in a suspicious manner.”
For those who don’t fit into either category, Massachusetts has a separate offense of being a tramp. The criminal code provides that “an act of begging or soliciting alms [charity] . . . shall be prima facie evidence that such person is a tramp.” To which, we might add, so is carrying one’s possessions in a bundle tied to the end of stick and wearing a rumpled porkpie hat.
The Massachusetts law probably would not survive a court challenge today. New York’s vagrancy law was held unconstitutional as long ago as 1974. Other state laws have suffered a similar fate. The leading case is Papachristou v. City of Jacksonville (1972) in which the Supreme Court struck down a Florida law that targeted not only rogues and vagabonds, but also habitual loafers (a term that, sadly, went undefined).

In giving the court’s opinion, Justice Douglas quotes Henry David Thoreau’s essay in praise of sauntering, which, according to Thoreau, comes from the French Sainte Terre (Holy Land) because medieval vagabonds would beg for alms under the pretense of going to the Holy Land. Presumably Douglas was trying to emphasize the harshness of the old Poor Laws – they even prohibited sauntering!

As a legal matter, of course, this was pure dictum. But the Supreme Court was looking to bury the Florida law. Which they did – to a fare-thee-well.


This column originally appeared in the September 2006 issue of New York Law Journal Magazine.

Column: Death and This

Death and taxes are equally certain, but death is considerably less complicated.

Consider the tax season we’ve just survived. As if the usual jumble of forms, schedules, and receipts weren’t enough, thousands of taxpayers had to struggle with the government’s definition of a word that most people don’t even think of as a legal term: child.

Like Whitney Houston, the Internal Revenue Service no doubt believes that children are our future. But it has a hard time explaining exactly who those darn kids are.

Until recently, the IRS had at least five different tests for who counts as a “child.” The definition is crucial because various tax breaks are available only to adults with children. In 2004 Congress stepped in and created a streamlined definition of child, which took effect for the first time in the 2005 returns.

Under the new law, you might have more children than you realize. In addition to the usual suspects (sons, daughters, stepchildren), your “child” could be your brother, sister, half-brother, half-sister, stepbrother, stepsister, or a descendant of any one of them. It might have been easier for Congress to list who is not your child.

According to reports in the Wall Street Journal, the new definition has had some unintended consequences – adult “children” claiming their siblings as dependants, for example. One hopes this confusion has not prevented anyone from connecting with his or her inner deduction.

To be fair, children have had a muddled status in the law for many years. Historically, the common law considered you to be a child until you were 14. But then for other purposes the common law deemed every person under the age of 21 to be an infant (meaning the person had not reached the age of majority). Unless I’m missing something, from age 14 to 20, you are an infant at common law even though you are no longer a child.

And in case you’ve ever wondered why the plural is children rather than childs, it is a holdover from the Middle English period, when plurals could be expressed by adding –en to a word. In Chaucer’s day, one was just as likely to write housen as houses. Only a few of the “en” plurals have survived: brethren, oxen and, of course, children.

Tax law – even without the children – has greatly enriched our language, even if it occasionally impoverishes our citizens. The 1991 edition of Black’s Law Dictionary fairly gushes that taxes sometimes go by the name of “toll, tribute, tallage, gabel, impost, duty, custom, excise, subsidy, aid, [and] supply.”

Mind you, Mr. Black is being overly inclusive here. A tallage, for example, is a kind of tax that has not been collected since 1332. Why an American lawyer would need to carry this term around in his or her toolkit today is a mystery. Tallage is, however, an interesting word. It comes from the French tailler (to cut out part of the whole), deriving from the fact that debts were anciently recorded by cutting notches into rods. The word survives in English as tally, and its distant cousin, tailor.

Tax started out in Medieval England as a very specific type of revenue scheme. It was a royal tariff demanded from towns, not from individuals. Another term for this tariff was the Fifteenth, because taxation was fixed at 1/15 the assessed wealth of a town.

Money collected from individuals was called a subsidy. Whereas taxes on towns were a fixed amount, subsidies on individuals had to be specially calculated each time they were assessed. The 17th Century British jurist John Cowell noted that subsidies are difficult to calculate “because the estate of every several man is so ticklish and uncertain” – neatly summing up the need for an accounting profession.

The word tax comes from an Old French word (taxer) and, ultimately, from the Latin taxare meaning “to value or estimate” but curiously also meaning “to censure.” As one can see, the punitive undertone of taxation goes way, way back.

For centuries, the word tax was interchangeable with task, which also comes from taxare, but via the Norman dialect of French. Gradually, task took on its more general sense of “thing to be done” while tax kept its more specialized meaning. Both words, by the way, are related to taxi, which is an abbreviation of taximeter, a device used to measure the fare in a cab.

Despite the French origins of tax, the 17th Century English lawyer John Cowell proudly declared that tax “is a British word” and suggested that any talk about a French derivation was “frivolous.” No doubt Cowell was attempting to strike a patriotic chord (“we invented taxes!”) but the authorities were not impressed. Cowell was sent to prison because his discussion of subsidies displeased Parliament, although it is not clear what the politicians found so objectionable.

By the 18th Century, “tax” had become the generic term for all the various payments demanded by government. As everyone knows, King George slapped the colonies with a Stamp Tax and a Tea Tax and the founding fathers revolted against “taxation without representation.” In the early days of the Republic, Chief Justice Marshall memorably observed that “the power to tax is the power to destroy” (in McCulloch v. Maryland).

New forms of taxation do spring up with alarming regularity. Quite apart from such familiar friends as income tax, property tax, and estate tax, there is the jaunty amusement tax, which is imposed on tickets to sporting events and other diversions; the floor tax, which is based on all distilled spirits in (“on the floor of”) a warehouse; and the sin tax, a tax imposed on booze, cigarettes or other “sinful” products.

Somebody has to collect all these taxes. Nowadays, it’s usually the government, but historically, the job has often been outsourced to the private sector. The practice, generally known as tax farming, goes back to the Roman Empire. In 20th Century America, people started referring to tax farmers as tax ferrets, presumably because they “ferret out” money, but also conjuring up unsavory images of human weasels. The most famous tax ferret was Nicholas Panarella (who preferred to call himself the “tax commando”). In the 1990’s, Panarella collected millions of dollars on behalf of Philadelphia and other municipalities from which he deducted a contingency fee. Panarella’s career was cut short by his conviction for aiding and abetting a politician’s fraudulent scheme.

When a tax is imposed on imports or exports, it is known as a duty or customs duty. As in normal conversation, the word duty connotes that which is due (a related word). The word has been used to describe import taxes since 1474. The phrase duty-free is first recorded in 1958 and was soon applied to shops that sell tax free stuff. Of course, anybody who has trudged through an airport terminal weighted down with gifts of Scotch and perfume knows the paradoxical truth that duty-free shopping is terribly taxing.

It is a crime to evade taxes but not to avoid them. Tax evasion is the failure to pay taxes that are due. Tax avoidance, on the other hand, simply refers to arranging one’s affairs to reduce or even eliminate tax liability. For this, one may set up a tax shelter (a device that defers or reduces taxes), or decide to live in a tax haven (a nation with low or no taxes on foreigners), or exploit various loopholes (from Middle English loupe, or “opening in a wall”).

None of this is illegal, a fact that sometimes sticks in the craw of judges and other officials. As one British judge said, with a whiff of distaste, “the avoidance of taxes may be lawful, but it is not yet a virtue.”

The simplest tax around is a poll-tax, an equal sum demanded from each person regardless of income or property. It is, as one legal treatise puts it, “a tax on the privilege of being.” You can’t evade or avoid a tax on being, at least not without running into that other great certainty.

(This column first appeared in the June 2006 issue of New York Law Journal Magazine).

Column: All About Eaves

At the risk of stirring up controversy, the time has come for Legal Lingo to dip a toe into the troubled waters of warrantless searches.

In case you’ve been living in a cave somewhere, the country appears to be divided into two camps on the question of whether the Bush Administration can engage in electronic eavesdropping on U.S. citizens without a court order.

Personally, I haven’t a clue who’s right, but the whole thing does highlight what a curious word eavesdropping is. It is, of course, related to eave, the edge of a roof, which comes directly from an Old English word efes (also yfes). But how do you get from a roof edge to electronic surveillance?

It all begins with rain, which tends to fall on one’s roof and slide off the eaves. Yfesdrype (eavesdrip) is recorded as early as 1487 as a term defining the area around a house onto which water from the roof will fall. Because water from one man’s roof might fall on another’s property, Anglo-Saxon law recognized an easement of “eavesdrip.” In fact, ancient Roman law had the same doctrine, known as the right of stillicidium, presumably for the same reason – to stop busybodies from litigating over a little runoff from their neighbor’s roof.

But if busybodies can’t sue, they’ll snoop, so the Anglo-Saxons also tried to stop people from standing just outside a house (within the “eavesdrip”) and listening to their neighbors’ conversations. This became the common law misdemeanor of eavesdropping. Traditionally the crime involved not only listening, but also repeating in a mischievous way what one heard.

Tennessee officially abolished the common law crime of eavesdropping during the 19th Century. Other states appear to have let it die a natural death. Eavesdropping remains a technical legal term; its contemporary meaning is, roughly, “to listen, or attempt to listen, to private conversations without lawful authority.”

If the nosy neighbor looks as well as listens, then it’s even worse: he might be a Peeping Tom. A number of states have enacted Peeping Tom Statutes, which make it a crime to spy through another person’s window. The term Peeping Tom comes from the legend of Lady Godiva. As you will remember, Lady Godiva rode naked through the streets of Coventry, England to protest high taxes. She asked the townspeople not to look at her in the nude but one man – there’s always one – a tailor named Tom, just couldn’t keep his eyes shut. The tailor, who became known as Peeping Tom, was struck blind, or dead depending on the version, the moment he saw her.

Whether or not a warrant is required for all eavesdropping, the word warrant is one of the most ubiquitous terms in legal language. You might not think of it as a household word, and yet it’s used as a noun, a verb, and a term of art for public officials, military officers, and private corporations. The word seems always to be lurking around the corner – sort of like that guy under the eaves.

Warrant evolved from an Old French word (warant) meaning “protector or defender.” Around the 13th Century, the word began to develop its sense as “permission from an authority that protects one from blame.” Thus, a sheriff, armed with a search warrant could enter a home without fearing a lawsuit from the aggrieved homeowner.

The notion of a warrant as a grant of authority gives us such useful terms as arrest warrant, death warrant, warrant of commitment (that is, committing a person to custody), and even the relatively obscure interest warrant – a written order from a company to its bank directing the payment of interest to a bondholder. In the 17th Century, a confession of judgment was known as a “warrant of atturney.” Military lingo creates the warrant officer, who holds his rank by virtue of a written warrant rather than a commission. In Britain, companies that are exclusive suppliers to the royal family are granted the Royal Warrant.

Because they are such powerful tools, search warrants (and arrest warrants, for that matter) have been matters of debate for centuries. Until the middle of the 18th Century, English procedure allowed for General Warrants which gave law enforcement officials open-ended authority to search a citizen’s home in the mere hope of finding any incriminating evidence.

In the American colonies, British officials used a type of general warrant known as a Writ of Assistance to search for smuggled goods. The writs of assistance caused a firestorm in the colonies; indeed they are credited with being the first cause around which the founding fathers rallied.

The most succinct argument against writs of assistance, as voiced by the Massachusetts lawyer James Otis, was that a man’s house is his castle. This well-worn phrase, dating from 1567, first entered the law in 1644 when used by the English Attorney General Sir Edward Coke. By the 1760’s, the castle defense also called the castle doctrine was being referred to as a legal “privilege.” At common law, the doctrine is most often used to justify the use of force – even deadly force – against intruders.

When it came time to draft the Bill of Rights, the former colonists wanted no ambiguity on the matter of warrants. The Fourth Amendment stipulates that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Search warrants are issued ex parte and often in camera; or, if you’re not actually trying to impress your high school Latin teacher, without notice to the person to be searched and in private session with the judge. A valid warrant can authorize police to search for evidence of the commission of a crime as well as any loot allegedly taken in the crime; the latter is known as the fruits of the crime.

If, however, it turns out that the police search was not authorized by a valid warrant, then – in what appears to be a phrase designed to confound law students – everything seized by the police becomes the fruit of the poisonous tree. This doctrine, first used by Justice Felix Frankfurter in Nardone v. United States (1939), holds that any evidence that can be traced to an illegal search must be excluded from trial. It is not clear just how often the fruits of the crime have become the fruit of the poisonous tree but it is, at least, food for thought.

The humble warrant is also related to the foreboding quo warranto, which is the Latin name for a common law action used to challenge the authority of a government official or corporate board. The word warranto is not a genuine Latin word. English lawyers just made it up by adding the “o” to the end. This kind of reverse etymology – words usually go from Latin to English and not the other way – is known as “back formation” and it is really no better than the tendency of some people to add an “o” to the end of words to make them sound Italian or Spanish (“Rudolfo, please turn on the computer-o, I want to surf the web-o”).

The same French root of warrant also gave rise to the use of warrant in the sense of “to vouch for the quality” of something. Thus we have the noun warranty, which is basically a guaranty – not a surprise since warranty and guaranty are actually the same word. The Norman French dialect had the verb warantir (to warrant) whereas Parisian French, which avoided the letter “w,” used guarantir. Both words made their way into English along separate paths, spinning off such related pairs of words as ward/guard and warden/guardian.

In light of all that history, it comes as something of a disappointment that there is no such thing as a search guarrant. Perhaps there should be.

(This column first appeared in the May 2006 issue of New York Law Journal Magazine).

Column: Lost in Translation

The Wall Street Journal recently reported a diplomatic kerfuffle between China and the United States that was caused by a single word – stakeholder.

It all started back in September, when Deputy Secretary of State Robert Zoellick delivered a major foreign policy address in which he urged China to become a “responsible stakeholder” in the international system.

The speech was meant to send a message to Beijing. The only problem was that the Chinese had no clue how to translate the word “stakeholder.” Any decent interpreter could tell you that a stake is a pointy stick, but why China should be holding a stake, and how do so responsibly, was lost on Chinese officials.

Ever since then, diplomats and scholars in the U.S. and China have been lobbing translations back and forth, each with a different spin on the S-word. The U.S. State Department translates “stakeholder” as a “participant with related interests.” The Chinese government, however, has yet to adopt an official translation.

Stakeholder is a legal term, but with several shades of meaning guaranteed to drive a translator up the wall. In its most traditional sense, a stakeholder is a person who holds money or property on behalf of two or more persons who are contesting the ownership of that property. An escrow agent, for example, would be a stakeholder if he or she is holding funds subject to a dispute. Escrow, by the way, comes from the Old French escroue, a roll of parchment that served as a deed.

Stakeholder entered the legal lexicon by way of the gambling dens of 16th Century England. Back then, wagers were placed on top of wooden stakes while the “stakeholder” supervised the betting. Long after the actual stakes disappeared from gambling, the word stake became a metaphor for the wager itself, as seen in such metaphors as “high stakes” and “raising the stakes.”

More recently, stakeholder has been broadened to include persons who – unlike escrow agents – find themselves involuntarily holding property subject to multiple adverse claims. A banker, for example, might discover that several parties are claiming the right to money on deposit at the bank. Rather than waiting for the lawsuits to come, the bank may file a “stakeholder” action and interplead the various claimants. Stakeholder Interpleader actions exist in various jurisdictions, including New York and in England.

In the meantime, the humble stake took on an entirely different meaning as a boundary marker for land surveying purposes. In the Old West, miners and land speculators would famously stake a claim – a usage that dates from 1857 – by driving wooden stakes into the ground. Those who made claims in this way might also be referred to as stakeholders.

But none of this was exactly what Mr. Zoellick was driving at. Rather, by referring to “participants with related interests” the U.S. diplomat was riffing on a much more recent use of stakeholder, this time in corporate law. In recent decades there has been a movement to grant legal rights to corporate stakeholders – meaning constituencies other than shareholders that are affected by a corporation’s activities. Stakeholders might include the corporation’s employees and customers, as well as the community in which the offices are located.

In 1990, the Pennsylvania legislature added a stakeholder provision to its anti-takeover law. This provision allows a company’s board of directors to consider the interests of stakeholders when voting on takeover proposals. Other states have followed and some politicians have even taken up “stakeholder capitalism” as a platform.

Although the use of the word stakeholder is new in this context, the underlying idea has been around for a long time. In the early days of the United States, corporate charters were exclusively granted by the state legislatures. The legislatures would sometimes require that the new corporation accept some duty on behalf of this-or-that constituency. In 1822, for example, a New Jersey bank charter required the bank to devote some of its money to aiding the fisheries at Amboy.

The corporate-law angle, unfortunately, only added to the confusion in Beijing. The director of China’s powerful Institute of International Strategic Studies confidently declared that stakeholder “means shareholder.” Nice try, but of course, the whole point of stakeholders is that they are not shareholders; that is, they have no ownership in the enterprise but they nonetheless have an interest in its performance.

As terms of corporate law, stocks and shares are as old as the hills. Stock comes from an Old English word (stocc) meaning “tree trunk.” At some point around the 15th Century, the word came to represent a money box or sum of money (perhaps because money, like a tree trunk, is a foundation for future growth). In the early 1600’s the word was borrowed for a new form of commercial endeavor: the joint stock company. Many of the first joint stock companies were formed to settle the New World. Thus, in 1607, Richard Hakluyt proposed

the raising of a PUBLIC STOCK to be employed for the peopling and discovering of such countries as may be found most convenient for the supply of those defects which this Realm of England most requires.

This might just have been the first recorded IPO in history.

But how to describe the ownership interest of the investors? Here again, Old English came to the rescue with a handy term – scearu – which refers to a cutting up, or division of the whole. Over time, scearu became the familiar share.

The corporation also began to take shape in the Elizabethan era. Initially, corporate charters were granted for things like universities and cities, not for commercial ventures. The City of London was an early corporation; New York City was chartered as a corporation during the colonial era (that the City’s top lawyer is still referred to as the “Corporation Counsel,” a title dating back to 1849.) The original purpose of the corporation was not to limit the liability of investors, but to allow collective entities to act as a single “bodie politique” in the words of John Cowell’s 1607 law dictionary.

New York’s incorporation statute of 1811 was the first to establish a streamlined method for setting up business corporations – it allowed five or more persons to form a corporation to manufacture such diverse items as “linens . . . anchors . . . hoop-iron and ironmongery.” The statute refers to corporations as a “body corporate and politic,” nicely echoing Cowell’s definition from 200 years earlier.

Small wonder the Chinese are befuddled by our legal terms. In fact, other cultures appear to have an equally hard time translating stakeholder. A brief review of online dictionaries shows Hungarian and Italian using the equivalent of “shareholder” while French and Spanish use terms that refer to an escrow agent. None of the dictionaries recognized the more recent sense of stakeholder.

Translating a legal term into another language is tough going. Imagine, then, translating a legal term into 20 different languages. That is the problem the European Union faces, and it is getting worse as yet more countries join the confederation. Every European regulation has to be translated – down to the subtle nuances – into languages as diverse as Czech, Latvian, and Swedish. The EU spends about $1.6 billion on translation services and yet, as of early 2005, it had a backlog of 60,000 pages of official documents waiting to be translated. The backlog is expected to reach 300,000 pages by the end of 2006.

EU officials have debated various solutions to the language problem, including limiting the entire bureaucracy to just one or two official languages: English, of course, has been suggested as a possibility, but so has Latin (talk about the revenge of the nerds), and even Esperanto, a language invented in 1887 by a Polish eye doctor. Unfortunately for Europe, there is no word in Esperanto for stakeholder.

(This column first appeared in the February 2006 issue of New York Law Journal Magazine).

Column: William Shakespeare, Esq.?

Was Shakespeare a lawyer?

At first blush, the suggestion sounds absurd – as though the great playwright had a secret day job. And yet, tucked away in the Bard’s many plays and sonnets, one can find dozens of legal terms, including pleadings, plaintiffs, defendants, appellants, and juries, to name just a few.

Shakespeare’s use of legal jargon has fueled a long-running debate over whether the dramatist practiced, or at least studied, law in his youth. As early as the 18th Century, critics began to remark on the abundance of legalisms in Shakespeare’s work, and from that observation spun an elaborate tale of how Shakespeare had been a student in London’s Inns of Court, and then an attorney’s clerk.

It’s a wonderful image – the young playwright poring over a dusty statute book: “2(b) or not 2(b): that is the section!” But unfortunately, there is scant evidence to support the theory that Shakespeare ever studied law. In fact, there is none.

Except – and here’s the thing – Shakespeare’s own words. For the man clearly knew his litigation. His writings are peppered with the language of the courts, as in Twelfth Night when Olivia assures the neurotic Malvolio, “Thou shalt be both the plaintiff and the judge of thine own cause.” Which, when you think about it, doesn’t sound so bad.

In Othello, the treacherous Iago complains that Othello “nonsuits my mediators” – to be nonsuited was the equivalent of having one’s complaint summarily dismissed. An Elizabethan 12(b)(6) motion, if you will.

More ham-handedly, the 46th Sonnet portrays a lawsuit between the author’s eye and his heart for possession of his beloved. Here we get both plead and plea; defendant; title; quest (short for inquest, or jury); impaneled; and verdict. The jury decides the matter by giving each party a moiety (an old Law French expression for a half interest): namely, the eye gets the beloved’s outward beauty while the heart gets her inner love. Yuck!

Even more familiar to modern ears is Portia’s statement, in the Merchant of Venice, that she and her fellow plotters shall be served with “interrogatories, and we will answer all things faithfully.” And again in King John, the king asks a trifle impatiently, “What earthy name to interrogatories can task the free breath of a sacred king?”

How, you might ask, did Shakespeare learn about ‘rogs? The hard way, it turns out, for he was served with interrogatories in the 1612 lawsuit of Mountjoy v. Bellot – back then, third party witnesses could be made to answer interrogatories. His signed answers are reportedly still available for inspection at the U.K. Public Records Office.

At times, Shakespeare even bandied about highly technical legal terms. In Henry VIII, for example, he refers to a writ of premunire (a corruption of Latin praemonere, to forewarn), which was a rare type of proceeding in the ecclesiastical courts. In Richard II, Bolingbroke complains “I am denied to sue my livery here” – a suit of livery being a lawsuit dating from feudal times, to compel the delivery of an estate that had been held in trust.

Intriguingly, certain lines in Shakespeare can only be understood in light of the leading cases of the day. For example, in Twelfth Night, Sir Toby Belch urges Sir Andrew Aguecheek to insult Cesario as follows: “If thou thou’st him thrice, it shall not be amiss.” The phrase is incomprehensible without knowing that, in Shakespeare’s day, prosecutors would use the “thou” form of address when delivering the most withering cross-examinations. The practice quickly became a verb – “to thou.”

Shortly before Twelfth Night was performed, Sir Walter Raleigh had been prosecuted in a notorious trial in which the Attorney General unleashed a volley of contemptuous thou’s against the defendant. Eventually, the prosecutor worked himself up to a slashing, though rather ridiculous, crescendo by crying: “I thou thee, thou traitor!” This was too ripe for satire for Shakespeare to resist. He quickly revised Twelfth Night to include the reference to thou’ing.

Shakespeare was no slouch at transactions, either, as we see in Pericles (one of his lesser-known plays), where the character Gower describes a search being made “with all due diligence.” Indeed, this might be the first recorded use of “due diligence.” This might also explain why the play is not better-known.

It was in the field of real property, however, that the Bard really excelled. Like his father before him, Shakespeare dabbled in real estate, and he naturally gravitated to the vocabulary of property law. In Hamlet, for example, Horatio refers to kings who “stand seized” of their lands – using seized (also spelled seised) in the legal sense of possession. Even today, standard form mortgages typically require the borrower to represent that he or she is “lawfully seised of the estate to be conveyed.”

The concept of holding title in fee simple cast a powerful spell on Shakespeare as a symbol of permanent ownership. In the Merry Wives of Windsor, one of the merry wives describes Falstaff as being held by the devil “in fee simple.” All’s Well That Ends Well features a character who would “sell the fee simple of his salvation” for a pittance. And the term appears in a number of other Shakespearian plays and sonnets.

In contrast to the fee simple, a lease, for Shakespeare, stood for all that was temporary and fleeting. Beauty, for example, was an estate that is merely “held in lease,” while in the 18th Sonnet, the Bard laments that “summer’s lease hath all too short a date” – a familiar concept for those with Hamptons rentals. In Henry VI, one character refers to having a “lease of life,” a metaphor that continues today as a “lease on life.”

And let’s not forget that when Hamlet famously picks up a skull as a prop for his soliloquy, it is “the skull of a lawyer.” Which is why our hero asks “[w]here be his quiddities now, his quillities, his cases, his tenures, and his tricks?” Quiddities and quillities, by the way, are Latin-based terms referring to the hair-splitting arguments that lawyers like to make. In the same passage, Hamlet imagines that the deceased lawyer might have specialized in real estate law “with his statutes, his recognizes, his fines, his double vouchers, his recoveries” – all of these being technical terms used in Shakespeare’s day for property transactions. One can only conclude that, for a Danish prince, Hamlet had an exceptionally good grasp of English law.

As a lover of wordplay, Shakespeare often made puns on legal jargon. In As You Like It, when three wrestlers are described as “proper young men of excellent growth and presence,” the fair Rosalind replies “with bills on their necks, ‘Be it known unto all men by these presents.’” These were the opening words of every deed poll – an ancient term for a binding covenant (such as a promissory note). Those words are still used today in many boilerplate documents, such as powers of attorney. The word presents in the phrase “by these presents” does not refer to gifts, but to the Latin phrase presens scriptum, “this writing.”

But wait – you say – wasn’t Shakespeare the guy who wanted to “kill all the lawyers”? No, actually. Shakespeare put those words into the mouth of Jack Cade who in Henry VI is plotting a rebellion against the Crown. The fact that such a treasonous fellow wants to get rid of lawyers is often interpreted as a pro-lawyer point: that lawyers are the protectors of traditional English liberties. That said, it seems likely that the line was calculated to get an appreciative snort from the audience, as it still does today.

In the final analysis, the important point is not whether Shakespeare was a lawyer, but the fact that he understood the law as a potent metaphor for life. Arguing about the extent of the great dramatist’s legal training is probably a waste of time, or as the Bard himself put it, “tis like the breath of an unfee’d lawyer.”

(This column originally appeared in the December 2005 issue of New York Law Journal Magazine).

Column: Heir today

The youngest billionaire, according to Forbes magazine, is Prince Albert von Thurn und Taxis. He made it on Forbes’ list by inheriting $2 billion on his 18th birthday – and if that doesn’t prove the value of good estate planning, I don’t know what does.

Nobody, of course, would leave the disposition of large fortunes and family castles to mere chance. But even us ordinary folks should have a will, which is why it is always surprising to find out how many people never get around to it. Could this have something to do with the daunting language of testamentary disposition (that is, the way we dispose of things after death)?

The meek shall inherit the earth, or so they say, but a glance at the fine print might just show that the meek have only a contingent remainder, which means they only get it if a prior condition is fulfilled. It just goes to show that one can’t be too careful.

The language of wills is the most conservative in the legal lexicon. Trust and Estate lawyers tend to stick with phrases that have withstood that test of time; the theory being that such words lead to less ambiguity and, therefore, fewer will contests.

The results of this linguistic conservatism are – as we shall see – decidedly mixed, but the general goal of avoiding will contests is a wise one. Such litigation can drag on for decades, like Charles Dickens’ fictional Jarndyce v. Jarndyce, which was said to have wallowed in London’s Chancery Court for so long that nobody could remember what it was about.

As a legal term, will is directly related to our common auxiliary verb will, as in, I will go to the store today. In Anglo-Saxon times, there was no legal mechanism to make binding dispositions of property after death. The most one could do was to draft a document stating one’s desire, or as they said in Old English, ic wille (“I desire”) that, for example, Ethelbert should have my axe, Ethelred my sword, and so on.

Over time, the sturdy Anglo-Saxon will became legally binding, but it was forced to share the honors with the more finicky Latin testament (originally testamentum). It was in the 15th and 16th Centuries – a period when English lawyers were in a state of perpetual confusion as to which language they should use – that the two words were joined in the immortal phrase last will and testament.

Originally, “last will and testament” was a deliberate redundancy: saying the same thing in two languages just to be clear. But lawyers soon applied their normal rules of construction, which presume that different words in the same document have different meanings. Thus developed the interesting but not particularly useful doctrine that a will is an instrument to dispose of real property, while a testament only applies to chattels. The distinction was always silly: today you can just call the thing a “will” and have done with it.

And yet, a form will that I recently downloaded off the internet proudly calls itself a “Last Will and Testament.” Oddly enough, this document says that it “revokes all Wills and Codicils previously made,” while saying nothing about former testaments. This raises the truly alarming prospect that disregarded-but-unrevoked testaments might be floating around somewhere in the legal ether.

The same linguistic melting pot that gave us will and testament has for centuries required that testators must not only give away their possessions, but they must give, devise and bequeath them – which, as one can imagine, is hard work and long hours.

Both give and bequeath come from Anglo-Saxon, while devise is an Old French term. Here again, cautious lawyers thought it best to lump the three words together. And once again, later generations of lawyers invented specious distinctions among these terms. So by the nineteenth century, it became conventional wisdom that one can only devise realty, whereas one can bequeath personalty. It’s not clear what one is supposed to give – blood perhaps?

Most wills end in a final blast of redundancy, when the testator disposes of the rest, residue and remainder of the his estate. For centuries lawyers struggled to find the right phrase to describe the leftover bits of one’s estate. “Rest, residue and remainder” eventually emerged as the favorite, probably because of its pleasing rhythm. But along the way, the law – and the English language – lost some marvelous synonyms, like the 17th century term overplus (as in “the overplus of the estate”), a word that is clearly due for a comeback.

Sometimes a will gets the exotic description of being holographic. Despite what one might think, a holographic will is not one that features a three-dimensional image of the testator making his bequests. That’s a hologram, apparently. Holographic simply means handwritten, from the Late Latin holographus. In Louisiana, with its gallic ancestry, such wills are referred to as olographic, a first cousin of the French olographe.

Which brings us to the big question: who inherits all the loot? The answer is: whomever the testator wants – sort of. The law generally requires that married people leave something to their surviving spouses. These rules are known as dower and curtesy.

The word dower, which is related to endow, refers to the common law right of a widow to a certain share, usually one-third, of her late husband’s estate. Technically, a man was said to “endow” his wife with this inheritance as part of the marriage ceremony. The doctrine took root early in America, making its first appearance in the 1648 Laws and Liberties of Massachusetts.

Curtesy (an archaic spelling of courtesy) was a widower’s right to a life tenancy in his late wife’s lands. The only glitch was that in the old days a woman – though she may inherit property – had no power to convey it. So, the grieving husband was said to receive his life tenancy “by the curtesy of England.” And England was courteous indeed – to a fault one might say – since the widower got 100% of his wife’s lands while the widow got only a third of her husband’s property.

In some states, these old terms have been replaced by the modern, although bland, term statutory share. In other states dower and curtesy remain on the books, but the differences between them have been smoothed out. It all amounts to the same thing: the surviving spouse is entitled to a set share of the deceased spouse’s estate.

By now you might think that anybody who puts himself through the process of drafting a will has got to be out of his or her mind. But in fact just the opposite is true. In order to write a will one must have testamentary capacity, which means, if you’ll excuse the technical jargon, that one isn’t nuts. Or, as William Blackstone, writing in the 18th Century, delicately put it, “[m]admen . . . ideots or natural fools” are incapable of making a will.

For some reason, all the wills in the movies start out with “I, so-and-so, being of sound mind and body.” But the much more traditional phrase is “being of sound mind and memory.” The only problem is that mind and memory is another one of those old mixed-up phrases. Mind comes from Old English, whereas memory comes from Old French. Chaucer was the first to put the two words together and lawyers evidently liked the sound of it. What it means today is thoroughly unclear: must a testator prove sharp memory in addition to general mental health? And yet, Black’s Law Dictionary continues to define testamentary capacity with the enigmatic “mind and memory” formulation.

The only way to avoid all this complexity is to give your stuff away inter vivos, that is, while you are still alive. This is a perfectly legitimate way to give say, country estates, fancy cars, and old master paintings to deserving recipients. Prince Albert, are you listening?

(This column originally appeared in the May 2005 issue of New York Law Journal Magazine).

Column: Small Torts You May Have Missed

In case you missed it, February 3, 2005 witnessed the birth of a new tort: negligent delivery of cookies.

It was on that day that a Colorado judge awarded $900 in damages to Wanita Young, who claims to have been terrified by two teenage girls who dropped off homemade cookies at her house.

The defendants, two wholesome girls from Durango, Colorado, had decided – sua sponte, as it were – to bake cookies one evening and leave them as presents for their neighbors. They also (and I hope you’re sitting down for this) delivered each batch of cookies with a heart-shaped note saying “Have a Great Evening.”

But by the time the girls got to Wanita Young’s home, it was 10:30 p.m., and Ms. Young was curled up in bed with a copy of Lawsuits for Dummies. She allegedly mistook the tender knocks on her door to be those of a craven (and oddly polite) burglar. Ms. Young ended up in the emergency room with an anxiety attack.

Although the girls apologized and offered to pay her medical bills, Ms. Young took them to court. On February 3, Judge Doug Walker of the La Plata County Small Claims Court found the girls liable for Ms. Young’s medical expenses.

Novel torts – say, serving coffee that’s too hot – pop up like tulips in the spring, and they invariably grab headlines. When most people think about civil law they are probably thinking, whether they know it or not, of torts: malpractice, personal injury, defamation, and fraud are all torts. What is surprising is that the law and terminology of tort law arrived comparatively late on the legal scene.

Tort is an old French word which simply means “injury.” It comes from the Latin verb torquere (to twist) from which we get such useful words as torque and torsion. In legal English (but, curiously, no longer in French), it refers to wrongful conduct – other than a breach of contract – giving rise to an action for damages. Lawyers began using tort in this sense as early as 1586, but the phrase was not immediately popular. Sir William Blackstone, whose 18th Century treatise covered the entire common law of England, makes no mention of “tort.” Instead, he refers to private wrongs and civil injuries.

During the 19th Century, the word tort became increasingly commonplace, and by the 20th Century it was universal. Just why the legal profession abandoned perfectly good English phrases like “private wrongs” in favor of an archaic French word is something of a mystery. Imagine, if you will, that all the lawyers got together and decided that binding agreements should be known, not as contracts, but as soufflés. Wouldn’t that be odd?

For many centuries, the law of civil wrongs was concerned only with intentional acts. A plaintiff who was injured by the intentional act of another could bring an action for trespass. This was trespass in its original broad meaning of “transgression,” a sense that survives in the Lord’s Prayer: “forgive us our trespasses.” The technical term for the lawsuit was trespass vi et armis (trespass by force and arms) which gives you some idea of the subject matter of early tort law.

Today, tort law is largely concerned with liability for non-intentional acts, or negligence. The word negligence entered the law sideways as a Latin adverb (negligenter) used to describe a kind of trespass that was not done with “force and arms.” Blackstone recognized a whole category of such trespasses, including the unskillful work of a “physician, surgeon, or apothecary,” which he called mala praxis, from Latin malum (bad), plus Greek praxis (practice) – the forerunner, of course, of malpractice.

But Blackstone did not refer to “negligence” as a cause of action – because it wasn’t. A person injured in an accident would have to plead “trespass on the case,” which was a request that a court make a limited exception to the rule that trespasses have to be intentional. Each case was considered unique, and right up to the early 20th Century, legal experts could stoutly deny the existence of an action for “negligence.”

We’ve come a long way, baby. The sixth edition of Black’s Law Dictionary lists no fewer than 17 varieties of negligence, some of them distinguished by such fine shades of meaning that they appear to have been devised by medieval monks. There is slight negligence and ordinary negligence; gross negligence and reckless negligence; and even the seemingly contradictory willful negligence. Negligence law employs thousands of lawyers across the country and is the reason for all those lawyer ads on television and radio. New York City alone paid out $570 million in negligence damages in 2004.

Arguably the person most responsible for the emergence of negligence as a separate cause of action was not a judge or even a lawyer, but an engineer, John Loudon McAdam. In the early 1800s, McAdam pioneered a new method of road construction that vastly improved the British turnpike system. Improved roads led to a great increase in the volume and speed of stagecoach traffic, which in turn led to an explosion of road accidents. The result was a glut of lawsuits seeking remedies for what was obviously the careless, but unintentional, acts of the drivers.

Incidentally, roads built by the McAdam system are said to be macadamized; and when somebody thought of covering such roads with tar, it became known as tar-bound macadam, or tarmac.

Anyway, by the 1830s it was settled that all those people injured on macadamized roads could sue, in effect, for negligence, without having to shoehorn the lawsuit into the trespass doctrine. This legal innovation came just in time for the Industrial Revolution, which gave mankind spectacular new ways to behave negligently. The railroads alone killed or injured over 20,000 workers in the U.S. during 1888-89 – a rate that would double by 1906.

Courts recognized that at least some of these industrial injuries resulted from negligence, or the breach of a duty of care, but they struggled for years to define that duty. In 1856, one English court came up with the now-famous standard of the reasonable man; that is, negligence amounts to doing something that a reasonable man wouldn’t, or failing to do something that he would. A later English judge would memorably described this reasonable guy as “the man on the Clapham omnibus” – presumably because a rational person would sooner ride on an omnibus than one of those deathtrap trains.

In the late 19th Century, zealous lawyers on both sides of the Atlantic sought to expand the frontiers of negligence just as quickly as modern machines could mangle their clients. But judges recoiled in horror against opening the floodgates of litigation – a term that actually predates the Industrial Revolution having been coined by a New York court in the 1818 case of Whitbeck v. Cook.

Courts developed a number of theories to limit negligence liability. Perhaps the most famous was contributory negligence, which dates to the early 1800’s but became a huge factor in Victorian-era litigation. Under that doctrine, if the injured party was even a little bit negligent, then he could not recover a penny. The majority of states have replaced contributory negligence with comparative negligence, which means that a plaintiff’s recovery may be proportionately diminished – but not barred – by his or her own fault.

During the same period plaintiff-friendly courts swung back with their own rules, such as res ipsa loquitur (“the thing speaks for itself”), which was first articulated in 1863. Under that doctrine, plaintiff need not allege the cause of certain types of accident that simply would not have happened without negligence.

Other courts adopted a rule of strict liability for activities deemed to be extra-hazardous. This branch of strict liability has largely been superseded by statute and regulation, but the precedents still serve as a cautionary note to those who would engage in particularly risky conduct.

Like baking cookies.

(This column originally appeared in the April 2005 issue of New York Law Journal Magazine).