As I write this, Jayson Williams is seeking a mistrial in his criminal case on the ground that lawyers lied to the jury; Martha Stewart says there should be mistrial of her case because one of the jurors lied to the lawyers; and the trial of two former Tyco executives has just ended in mistrial because the jurors couldn’t get along.
Trading One Ordeal For Another
Trial by jury is an ordeal, but ironically, that’s exactly what it was supposed to replace. For centuries, guilt and innocence were determined by the “ordeal,” such as the ordeal by water – if she floats, she’s a witch! Another popular method was ordeal by fire, in which the accused had to walk nine paces with a red-hot iron in both hands – this is thought to be the origin of the phrase “the whole nine yards.”
The Fourth Lateran Council of 1215 spoiled all the fun by effectively banning trial by ordeal. Suddenly, authorities all over Europe had to find an equally scientific way to determine innocence and guilt – a tall order at a time when bloodletting represented cutting-edge medicine. In England, they hit upon the novel idea of canvassing the opinions of twelve local men.
The word jury emerged in the Anglo-Norman dialect of that period, coming from the Old French word juree, and ultimately, from the Latin jurare, meaning “to swear.” Jurare, by the way, is also the root of jurat, the word you sometimes see at the end of an affidavit, or sworn statement.
Why is a juror sworn? Originally, because jurors were also witnesses who were required to testify from personal knowledge if they had it, or, more likely, to simply repeat neighborhood gossip. It wasn’t until the 16th Century that compulsory process was available to compel the testimony of witnesses at trial using the subpoena (Latin for “under penalty”); which finally allowed jurors to sit back and listen to other people talk. And talk, and talk.
Although jurors no longer testify, they still must take an oath in order to be properly impaneled (from the English “panel,” deriving from the Latin pannus, or piece of cloth). In the Martha Stewart case, the defense team is arguing that one of the jurors, Chappell Hartridge, lied in order to get on the jury – which is, of course, a big no-no for oath-takers.
Stewart’s lawyers argue that Mr. Hartridge concealed his criminal record, namely, an assault charge filed by his ex-girlfriend, Gail Outlaw. Confusingly enough, Ms. Outlaw is not herself an outlaw, although she charges that Mr. Hartridge is. In any event, Stewart’s lawyers argue that Hartridge fibbed his way on to the jury because he was eager to convict Stewart because she is rich, or a woman, or both.
The notion that jurors are often tainted by pre-existing biases is not a new one. In their 1875 operetta “Trial By Jury,” Gilbert and Sullivan lampooned the prejudices of juries. In one scene – before the trial has even begun – the entire jury shakes its fists at the defendant and sings in unison:
Monster, dread our damages.
We’re the jury!
Dread our fury!
In fact, such common spirit among jurors seems to be increasingly rare, in this country at least. According to statistics, a “hung jury” happens about 8,000 times a year in the U.S. Make that 8,001 with the Tyco trial.
Hung Juries and Hanging Judges
A hung jury is one that cannot arrive at a verdict after a reasonable period of deliberation. In the Tyco trial, the majority of jurors were reportedly set to convict former executives Dennis Koslowski and Mark Swartz of grand larceny. But one juror (Juror No. 4 , to be exact) held out for the defense.
New York Judge Michael Obus sternly directed the jury to keep deliberating. But after eleven days of deadlock, and reports of overt threats against Juror No. 4, a 79 year-old grandmother, Judge Obus finally decided to declare a mistrial, thus forcing prosecutors to start their six-month case against the defendants all over again.
A hung jury has nothing to do with a hanging judge. In fact, it’s quite the reverse, since a hung jury can’t make up its mind, while a hanging judge is thought to be a little too eager to make up his. Still, the word “hung” has lead to some bogus etymologies. One legal humorist, for example, has suggested that the hung jury was born in the Old West – where jurors who were taken in by shyster lawyers would be hanged in punishment.
The phrase does not, in fact, come from the Old West. But it is American in origin. The Oxford English Dictionary lists the first printed reference to a hung jury in Edwin Bryant’s What I Saw in California (1848-49) in which he states: “The jury . . . were what is called ‘hung’; they could not agree . . .”
Bryant’s phrasing obviously suggests that the phrase was already in common use by the late 1840’s. Indeed, there are earlier case reports with references to hung jury and variations thereof. The earliest use of the term in a law report appears in an 1821 case, Evans v. McKinsey. That case, and virtually all of the early cases referring to hung juries is from the south. So it appears that the term developed somewhere in the south during the early 19th Century.
Linguistically, the phrase seems to derive from the sense of “hung” to mean caught, suspended or delayed (“I got hung up at the office”). Oddly, although the phrase is American, we have not extended the metaphor to describe other deadlocked bodies, say, a “hung Congress.” In Britain, however, commentators have used the term hung parliament to describe the situation when the House of Commons is unable to elect a Prime Minister.
It Only Takes One
The Tyco trial is an example of why juries are so often hung. When unanimity is required – as is still the case in most jurisdictions – it only takes one “angry man” (or angry grandmother) to cause a mistrial.
The need for unanimity has been cheered as a pillar of liberty and decried as an obstruction of justice. Whatever the merits of that debate, the fact is that unanimity was not part of the original plan. Early medieval juries in England did not require unanimity – a few loud shouts of “she turned me into a newt” would suffice for a conviction.
The first recorded case where unanimity was required was in 1367, when an English court refused to accept a majority verdict of guilty. By the end of the fourteenth century, the trend towards unanimity was unstoppable. With that development no doubt came the phenomenon of deadlocked juries. A quick four centuries later, an anonymous Southern American finally came up with a name for this phenomenon: the hung jury.
Renegade Juries
A judge can nullify a jury’s verdict by declaring a mistrial, but that has nothing to do with the term jury nullification. Jury nullification happens when a jury returns a verdict of not guilty, despite their belief that the defendant committed the offense charged. The jury “nullifies” the law on which the prosecutors rely.
In America, nullification goes back to a 1735 New York case in which the colonial governor, William Crosby, brought an action against a printer, John Peter Zenger, for publishing “seditious libels” in the New York Weekly Journal. Although Zenger had clearly printed the alleged libels, the jury voted to acquit, thus nullifying the harsh sedition law of the time.
And finally, let me clear up one confusion. The term jury-rigged, meaning assembled in a makeshift manner, has nothing to do with the legal sense of the word jury. It is an 18th Century nautical term, deriving from the Latin adjutare (to aid), from which we also get the word “adjutant.” Of course, I cannot deny that shady lawyers do occasionally try to “rig” a jury with bribes. But that brings us back to where we began, with mistrials.
(This column originally appeared in the June 2004 issue of New York Law Journal Magazine).
Thursday, April 29, 2004
Column: Beam Me Up, Counselor
On January 15, 2004, President Bush unveiled his “New Space Exploration Vision.” Under the President’s plan, American astronauts could be planting the flag on the Moon by 2015, and on Mars after that.
All I can say is: they’d better bring lawyers with them.
For starters, the astronauts could be slapped with a trespassing suit by a Nevada businessman who claims to have valid title to both the Moon and Mars. Welcome to the world of Space Law.
Space Law: The Final Frontier
Space law deals with human activities in outer space. Most issues in space law come under the jurisdiction of the United Nations. The rest, of course, is controlled by the Klingon Empire. Actually, the rest of space law is a hodgepodge of bilateral agreements, national law, and certain “norms” of questionable weight.
Space law presents a great opportunity to the legal linguist because, as a relatively new field, the meanings of some of its key terms are still being worked out. Take space, for example. Clearly, at some point up there, the earth ends and space begins. But where? Experts disagree. Is it where the earth’s atmosphere peters out, somewhere around 80 km up? Or is it the lowest point where a craft can achieve orbit, about 100 km up, or is it – well, you get the picture.
So far, this lack of a definition has not caused any practical problems. But that may just be dumb luck, because defining the boundary of “space” has real implications for tort law. There is a completely different liability regime for accidents caused by aircraft versus those caused by spacecraft (which go by the dreary name of space objects in space law). For the latter, there is – I’m not making this up – the International Convention on Liability for Damage Caused by Space Objects.
Under the Liability Convention, if a space object collides with an aircraft, the country that launched the space object faces absolute liability, but if a space object collides with another space object, it’s fault liability. Thus, in the event of a mid-space collision, astronauts are advised to exchange insurance information and just continue on their way.
Sovereignty is a big problem in space. A country remains sovereign over its adjacent airspace – but how far up does that airspace go? In the 1976 Bogotá Declaration, a number of developing countries asserted that their national territory extends all the way up to geostationary orbit, or about 40,000 km straight up. This is the orbit where a satellite always stays over the same spot on earth. It is a particularly valuable bit of real estate because that’s where communications satellites need to be.
Imagine – if countries owned their orbital space, then they could very well charge you enormous fees for the privilege of having your communication satellite hovering over their territory. Those cell phone calls would suddenly become a lot more expensive.
Property Rights in Space
But the Bogotá Declaration never went anywhere, because it was universally decried as a violation of the Outer Space Treaty of 1967.
The Outer Space Treaty, which has been ratified by 98 countries, including the US, is often called the Magna Carta of space law. The treaty prohibits any state from claiming sovereignty over any part of Outer Space, including the Moon and “other celestial bodies.”
Lest you be confused, celestial bodies is not a bit of cheesy copy from the latest Sports Illustrated swimsuit issue, but rather a recognized legal term. Alas, this is another phrase that has confounded space lawyers because it is not defined in any treaty or convention. Under the Outer Space Treaty, most lawyers interpret celestial bodies to mean all planets, natural satellites of planets, and to asteroids anywhere in the universe.
Some scholars, however, urge that the definition of celestial bodies ought to exclude any planet that is inhabited by intelligent beings. Assuming that there are intelligent aliens, the argument goes, it would be rude to foist the 1967 treaty on them.
More recently, overworked UN lawyers have limited the meaning of celestial bodies to those bodies found within our solar system – other systems would be covered later (one thing at a time, please!). The big losers in all this lawmaking, by the way, are comets and meteoroids, which don’t count as celestial bodies under anybody’s definition.
Martian Mortgages
Although the Outer Space Treaty prohibits nations from owning any celestial body, it doesn’t say anything about individuals or corporations.
That omission has created, well, a vacuum, into which a number of individuals have leapt. The most enterprising of these is Dennis Hope who in 1980 filed papers with the U.S. government and the United Nations laying claim to the Moon and all the planets of the solar system except Earth. His Nevada-based company, Lunar Embassy, has been selling off bits of the solar system to, er, optimistic, investors ever since.
Hope has a number of rivals in the celestial property game, including Martin Juergens, a German pensioner who claims that the moon has belonged to his family ever since Frederick the Great of Prussia granted it to one of his ancestors in 1756.
In an effort to forestall such entrepreneurial activities, the UN Committee on the Peaceful Uses of Outer Space came up with the so-called Moon Treaty of 1979, which prohibits governments and private parties from gaining property rights in the surface or subsurface resources of the Moon and the other celestial bodies.
The rationale of the Moon Treaty, borrowed from the Law of Sea Treaty, is that the Moon and planets are the “common heritage of mankind,” and thus cannot be claimed as private property.
Most of the developed countries felt that the Moon Treaty went a tad too far. After all, if you take the trouble of actually going to Mars, shouldn’t you at least be able to buy a souvenir rock? More seriously, perhaps, a number of space scientists see the potential for lucrative mining operations on various planets and asteroids, and that’s a hard thing for any politician to sign away. Only ten countries have ratified the Moon Treaty, and not one of those has a serious space program.
Resolving disputes
Next to cosmic radiation, litigation is one of great hazards of space travel. Consider the International Space Station in which astronauts spend up to six months in submarine-like conditions. That place is a tort, or even a crime, just waiting to happen (“Hey that’s my bottle of Tang!”)
In the event of a dispute, lawyers would probably apply the law of the flag from maritime law; that is, the flag of the vessel governs torts and crimes committed on the high seas. But the Space Station does not have one flag; rather, it is composed of “modules” from different countries.
So, if an American astronaut and a Russian cosmonaut get into a fight while in a European Union module, then EU law would govern. Since the EU doesn’t have criminal or tort law, one would have to decide which of the EU’s 25 member states (as of 2004) should supply the governing law. Nothing simpler, really.
And then there are those rovers – Spirit and Opportunity – scurrying about the surface of Mars. What if they had a fender bender? There is no Liability Convention to govern accidents on another planet. Those rovers would have to be subject to local law.
The only problem, of course, is that there is no Martian law. As far as we know.
(This column originally appeared in the April 2004 issue of New York Law Journal Magazine).
All I can say is: they’d better bring lawyers with them.
For starters, the astronauts could be slapped with a trespassing suit by a Nevada businessman who claims to have valid title to both the Moon and Mars. Welcome to the world of Space Law.
Space Law: The Final Frontier
Space law deals with human activities in outer space. Most issues in space law come under the jurisdiction of the United Nations. The rest, of course, is controlled by the Klingon Empire. Actually, the rest of space law is a hodgepodge of bilateral agreements, national law, and certain “norms” of questionable weight.
Space law presents a great opportunity to the legal linguist because, as a relatively new field, the meanings of some of its key terms are still being worked out. Take space, for example. Clearly, at some point up there, the earth ends and space begins. But where? Experts disagree. Is it where the earth’s atmosphere peters out, somewhere around 80 km up? Or is it the lowest point where a craft can achieve orbit, about 100 km up, or is it – well, you get the picture.
So far, this lack of a definition has not caused any practical problems. But that may just be dumb luck, because defining the boundary of “space” has real implications for tort law. There is a completely different liability regime for accidents caused by aircraft versus those caused by spacecraft (which go by the dreary name of space objects in space law). For the latter, there is – I’m not making this up – the International Convention on Liability for Damage Caused by Space Objects.
Under the Liability Convention, if a space object collides with an aircraft, the country that launched the space object faces absolute liability, but if a space object collides with another space object, it’s fault liability. Thus, in the event of a mid-space collision, astronauts are advised to exchange insurance information and just continue on their way.
Sovereignty is a big problem in space. A country remains sovereign over its adjacent airspace – but how far up does that airspace go? In the 1976 Bogotá Declaration, a number of developing countries asserted that their national territory extends all the way up to geostationary orbit, or about 40,000 km straight up. This is the orbit where a satellite always stays over the same spot on earth. It is a particularly valuable bit of real estate because that’s where communications satellites need to be.
Imagine – if countries owned their orbital space, then they could very well charge you enormous fees for the privilege of having your communication satellite hovering over their territory. Those cell phone calls would suddenly become a lot more expensive.
Property Rights in Space
But the Bogotá Declaration never went anywhere, because it was universally decried as a violation of the Outer Space Treaty of 1967.
The Outer Space Treaty, which has been ratified by 98 countries, including the US, is often called the Magna Carta of space law. The treaty prohibits any state from claiming sovereignty over any part of Outer Space, including the Moon and “other celestial bodies.”
Lest you be confused, celestial bodies is not a bit of cheesy copy from the latest Sports Illustrated swimsuit issue, but rather a recognized legal term. Alas, this is another phrase that has confounded space lawyers because it is not defined in any treaty or convention. Under the Outer Space Treaty, most lawyers interpret celestial bodies to mean all planets, natural satellites of planets, and to asteroids anywhere in the universe.
Some scholars, however, urge that the definition of celestial bodies ought to exclude any planet that is inhabited by intelligent beings. Assuming that there are intelligent aliens, the argument goes, it would be rude to foist the 1967 treaty on them.
More recently, overworked UN lawyers have limited the meaning of celestial bodies to those bodies found within our solar system – other systems would be covered later (one thing at a time, please!). The big losers in all this lawmaking, by the way, are comets and meteoroids, which don’t count as celestial bodies under anybody’s definition.
Martian Mortgages
Although the Outer Space Treaty prohibits nations from owning any celestial body, it doesn’t say anything about individuals or corporations.
That omission has created, well, a vacuum, into which a number of individuals have leapt. The most enterprising of these is Dennis Hope who in 1980 filed papers with the U.S. government and the United Nations laying claim to the Moon and all the planets of the solar system except Earth. His Nevada-based company, Lunar Embassy, has been selling off bits of the solar system to, er, optimistic, investors ever since.
Hope has a number of rivals in the celestial property game, including Martin Juergens, a German pensioner who claims that the moon has belonged to his family ever since Frederick the Great of Prussia granted it to one of his ancestors in 1756.
In an effort to forestall such entrepreneurial activities, the UN Committee on the Peaceful Uses of Outer Space came up with the so-called Moon Treaty of 1979, which prohibits governments and private parties from gaining property rights in the surface or subsurface resources of the Moon and the other celestial bodies.
The rationale of the Moon Treaty, borrowed from the Law of Sea Treaty, is that the Moon and planets are the “common heritage of mankind,” and thus cannot be claimed as private property.
Most of the developed countries felt that the Moon Treaty went a tad too far. After all, if you take the trouble of actually going to Mars, shouldn’t you at least be able to buy a souvenir rock? More seriously, perhaps, a number of space scientists see the potential for lucrative mining operations on various planets and asteroids, and that’s a hard thing for any politician to sign away. Only ten countries have ratified the Moon Treaty, and not one of those has a serious space program.
Resolving disputes
Next to cosmic radiation, litigation is one of great hazards of space travel. Consider the International Space Station in which astronauts spend up to six months in submarine-like conditions. That place is a tort, or even a crime, just waiting to happen (“Hey that’s my bottle of Tang!”)
In the event of a dispute, lawyers would probably apply the law of the flag from maritime law; that is, the flag of the vessel governs torts and crimes committed on the high seas. But the Space Station does not have one flag; rather, it is composed of “modules” from different countries.
So, if an American astronaut and a Russian cosmonaut get into a fight while in a European Union module, then EU law would govern. Since the EU doesn’t have criminal or tort law, one would have to decide which of the EU’s 25 member states (as of 2004) should supply the governing law. Nothing simpler, really.
And then there are those rovers – Spirit and Opportunity – scurrying about the surface of Mars. What if they had a fender bender? There is no Liability Convention to govern accidents on another planet. Those rovers would have to be subject to local law.
The only problem, of course, is that there is no Martian law. As far as we know.
(This column originally appeared in the April 2004 issue of New York Law Journal Magazine).
Sunday, February 22, 2004
Column: Ham on Wry
When a Brooklyn grand jury recently handed down an indictment against his client, defense attorney Ron Aiello didn’t flinch.
“A grand jury will indict a ham sandwich,” scoffed Aiello, whose client, Jeffrey Feldman, has been accused of committing various acts of political corruption, along with his boss, Brooklyn Democratic Party leader Clarence Norman.
His point, of course, was that a grand jury will indict – that is, bring formal charges against – anybody, even certain foodstuffs.
Aiello did not come up with this zinger himself. In fact, the phrase has been bandied about so much in recent years that most people are probably a little afraid to order a ham sandwich, lest they be indicted as accomplices.
The exact origin of the indictable ham sandwich – like so much else in law – is shrouded in mystery. Some sources attribute the phrase to defense lawyer Barry Slotnick in connection with the “Mayflower Madam” prostitution case of the mid-1980s.
Hilary Clinton cites a different source. In her memoir Living History, the former First Lady turned Senator refers to the “the immortal words of Edward Bennett Williams, ‘a prosecutor can indict a ham sandwich if he chooses.’” Williams, now deceased, was a giant of the Washington, D.C. bar, and founder of the firm of Williams & Connolly. Although such a quip would not have been out of character for the legendary Williams, I can find no further evidence to support his authorship.
The most commonly-cited source of the “ham sandwich” critique is a 1985 interview with then-Chief Judge Sol Wachtler of the New York Court of Appeals. It is possible, however, that Wachtler was repeating something he had heard elsewhere. Either way, Wachtler’s use of the phrase served to popularize it and it has since become a courthouse staple.
Life Imitates Art
In what might safely be called an ironic twist, Wachtler himself was indicted seven years later for sexual harassment. Trapped within his own piquant metaphor, Wachtler had now become the equivalent of a ham sandwich.
Wachtler was convicted and sentenced to serve time. Because he was diagnosed with a severe mental illness, he was ultimately referred for psychiatric treatment at Rochester Prison, a federal facility associated with the Mayo Clinic. The moral of the story, I suppose, is that even if a ham sandwich is indicted, it still needs Mayo.
The Sandwich in History
Indict is itself a curious word – many people wonder where that silent “c” came from. The word began its life in early Renaissance England with the admirably phonetic spelling indite, meaning “to write down.” In the 17th Century, when the word took on its narrower meaning of “to write down legal charges,” some scholar added the “c” to make the word more faithful to its Latin ancestor, indictare. The innovation, evidently, caught on.
And while we’re on the subject, what is so grand about a grand jury? The adjective simply comes from French word for “big.” In Medieval England, an accusatory jury consisted of 23 persons, and was referred to as le graunde inquest or grand jury, using the Law French that dominated British proceedings at the time.
The jury that would ultimately decide the guilt or innocence of the suspect had only 12 men, and thus became known in similarly gallic terms as the petit jury. For some reason, modern English has preserved the “grand” but dropped the “petit,” although the latter word survives in the criminal context in phrases such as petty theft.
Like all clichés, the ham sandwich remark has some basis in fact. A number of studies have criticized the traditional procedures before grand juries – like, defense counsel cannot appear and the prosecutor is under no obligation to present exculpatory evidence – as making it too easy for prosecutors to obtain indictments. The institution was abolished in its native Britain in 1948. But in the U.S., the grand jury is more difficult to get rid of, at least at the federal level, because it is enshrined in the Constitution.
Research fails to disclose any instance of a ham sandwich actually being indicted – nor is there any evidence that a ham sandwich has ever committed a crime. The closest I can find is the infamous ham sandwich that was rumored to have caused the choking death of Mama Cass, the beloved lead singer of the 1960s pop group, the Mamas and the Papas. However, an autopsy on Ms. Cass confirmed that she did not choke on a sandwich, ham or otherwise.
Historically, the law appears to be lenient even on people named “Sandwich.” I refer, of course, to John Montagu, the Fourth Earl of Sandwich, for whom the sandwich is named (he ordered his servants to bring him meat between two slices of bread so that he would not have to interrupt his card game). He was a politician of legendary corruption, even by the standards of 18th Century Britain. Despite his plundering of the Royal Treasury, Lord Sandwich was never indicted.
Throwing the Book
Crime and criminal law has long been a rich source of slang. A stooge, for example, is an informant, a suit is a lawyer. Oddly enough, since the late 1960’s, counter-culture types have referred to the police as pigs, which would put them in an awkward position if they ever did have to prosecute a ham sandwich.
And let’s say a ham sandwich were to be indicted. What would happen then? The sandwich would have to stand trial and decide whether to testify, or just sit there wearing a honey-glazed expression. It would be an ordeal, even for one with such an admirable mixture of protein and carbs.
If the sandwich were found guilty, the judge might throw the book at it. Here we see up close what a dangerous business it is to mix metaphors. If a judge were to throw the book at a ham sandwich, or indeed any sandwich, the result would be an awful mess – cold cuts, tomato, and mustard splattered all over the courtroom.
“To throw the book” at someone was originally an underworld phrase, probably from the 1930s. The basic image, which still survives, is that of a judge convicting a criminal with every crime in “the book,” an imaginary book of penal laws.
The fact that this metaphor exists at all just shows you how much criminal law has changed over the last century or so. Throughout most of the 19th Century, the phrase would have made little sense, since criminal law was still largely a matter of common law, and therefore not compiled in a single book. A harsh judge would have to “throw the precedents” at a criminal – which doesn’t have quite the same menacing ring to it.
It was only after 1900 that most states got down to the business of enacting all-inclusive penal codes. But the codification of the law penetrated the popular mind sufficiently quickly so that by the 1930’s, criminals knew that the law was written down in “the book.”
Book ‘em!
Before a suspect can be convicted, or even indicted, the police must arrest him – or “book him,” as the saying goes. It is not at all clear where the phrase comes from – or whether the book of “book him” is the same book that judges like to throw. What is clear is that the phrase became universally known through Hawaii Five-O (which ran from 1968 to 1980). In the show, Detective McGarrett, memorably played by Jack Lord, would typically end each episode by calling out to his second-in-command: “Book ‘em, Danno!”
But not even McGarrett would try to book a ham sandwich. Unless it came with a slice of pineapple.
(This column originally appeared in the February 2004 issue of New York Law Journal).
“A grand jury will indict a ham sandwich,” scoffed Aiello, whose client, Jeffrey Feldman, has been accused of committing various acts of political corruption, along with his boss, Brooklyn Democratic Party leader Clarence Norman.
His point, of course, was that a grand jury will indict – that is, bring formal charges against – anybody, even certain foodstuffs.
Aiello did not come up with this zinger himself. In fact, the phrase has been bandied about so much in recent years that most people are probably a little afraid to order a ham sandwich, lest they be indicted as accomplices.
The exact origin of the indictable ham sandwich – like so much else in law – is shrouded in mystery. Some sources attribute the phrase to defense lawyer Barry Slotnick in connection with the “Mayflower Madam” prostitution case of the mid-1980s.
Hilary Clinton cites a different source. In her memoir Living History, the former First Lady turned Senator refers to the “the immortal words of Edward Bennett Williams, ‘a prosecutor can indict a ham sandwich if he chooses.’” Williams, now deceased, was a giant of the Washington, D.C. bar, and founder of the firm of Williams & Connolly. Although such a quip would not have been out of character for the legendary Williams, I can find no further evidence to support his authorship.
The most commonly-cited source of the “ham sandwich” critique is a 1985 interview with then-Chief Judge Sol Wachtler of the New York Court of Appeals. It is possible, however, that Wachtler was repeating something he had heard elsewhere. Either way, Wachtler’s use of the phrase served to popularize it and it has since become a courthouse staple.
Life Imitates Art
In what might safely be called an ironic twist, Wachtler himself was indicted seven years later for sexual harassment. Trapped within his own piquant metaphor, Wachtler had now become the equivalent of a ham sandwich.
Wachtler was convicted and sentenced to serve time. Because he was diagnosed with a severe mental illness, he was ultimately referred for psychiatric treatment at Rochester Prison, a federal facility associated with the Mayo Clinic. The moral of the story, I suppose, is that even if a ham sandwich is indicted, it still needs Mayo.
The Sandwich in History
Indict is itself a curious word – many people wonder where that silent “c” came from. The word began its life in early Renaissance England with the admirably phonetic spelling indite, meaning “to write down.” In the 17th Century, when the word took on its narrower meaning of “to write down legal charges,” some scholar added the “c” to make the word more faithful to its Latin ancestor, indictare. The innovation, evidently, caught on.
And while we’re on the subject, what is so grand about a grand jury? The adjective simply comes from French word for “big.” In Medieval England, an accusatory jury consisted of 23 persons, and was referred to as le graunde inquest or grand jury, using the Law French that dominated British proceedings at the time.
The jury that would ultimately decide the guilt or innocence of the suspect had only 12 men, and thus became known in similarly gallic terms as the petit jury. For some reason, modern English has preserved the “grand” but dropped the “petit,” although the latter word survives in the criminal context in phrases such as petty theft.
Like all clichés, the ham sandwich remark has some basis in fact. A number of studies have criticized the traditional procedures before grand juries – like, defense counsel cannot appear and the prosecutor is under no obligation to present exculpatory evidence – as making it too easy for prosecutors to obtain indictments. The institution was abolished in its native Britain in 1948. But in the U.S., the grand jury is more difficult to get rid of, at least at the federal level, because it is enshrined in the Constitution.
Research fails to disclose any instance of a ham sandwich actually being indicted – nor is there any evidence that a ham sandwich has ever committed a crime. The closest I can find is the infamous ham sandwich that was rumored to have caused the choking death of Mama Cass, the beloved lead singer of the 1960s pop group, the Mamas and the Papas. However, an autopsy on Ms. Cass confirmed that she did not choke on a sandwich, ham or otherwise.
Historically, the law appears to be lenient even on people named “Sandwich.” I refer, of course, to John Montagu, the Fourth Earl of Sandwich, for whom the sandwich is named (he ordered his servants to bring him meat between two slices of bread so that he would not have to interrupt his card game). He was a politician of legendary corruption, even by the standards of 18th Century Britain. Despite his plundering of the Royal Treasury, Lord Sandwich was never indicted.
Throwing the Book
Crime and criminal law has long been a rich source of slang. A stooge, for example, is an informant, a suit is a lawyer. Oddly enough, since the late 1960’s, counter-culture types have referred to the police as pigs, which would put them in an awkward position if they ever did have to prosecute a ham sandwich.
And let’s say a ham sandwich were to be indicted. What would happen then? The sandwich would have to stand trial and decide whether to testify, or just sit there wearing a honey-glazed expression. It would be an ordeal, even for one with such an admirable mixture of protein and carbs.
If the sandwich were found guilty, the judge might throw the book at it. Here we see up close what a dangerous business it is to mix metaphors. If a judge were to throw the book at a ham sandwich, or indeed any sandwich, the result would be an awful mess – cold cuts, tomato, and mustard splattered all over the courtroom.
“To throw the book” at someone was originally an underworld phrase, probably from the 1930s. The basic image, which still survives, is that of a judge convicting a criminal with every crime in “the book,” an imaginary book of penal laws.
The fact that this metaphor exists at all just shows you how much criminal law has changed over the last century or so. Throughout most of the 19th Century, the phrase would have made little sense, since criminal law was still largely a matter of common law, and therefore not compiled in a single book. A harsh judge would have to “throw the precedents” at a criminal – which doesn’t have quite the same menacing ring to it.
It was only after 1900 that most states got down to the business of enacting all-inclusive penal codes. But the codification of the law penetrated the popular mind sufficiently quickly so that by the 1930’s, criminals knew that the law was written down in “the book.”
Book ‘em!
Before a suspect can be convicted, or even indicted, the police must arrest him – or “book him,” as the saying goes. It is not at all clear where the phrase comes from – or whether the book of “book him” is the same book that judges like to throw. What is clear is that the phrase became universally known through Hawaii Five-O (which ran from 1968 to 1980). In the show, Detective McGarrett, memorably played by Jack Lord, would typically end each episode by calling out to his second-in-command: “Book ‘em, Danno!”
But not even McGarrett would try to book a ham sandwich. Unless it came with a slice of pineapple.
(This column originally appeared in the February 2004 issue of New York Law Journal).
Monday, December 29, 2003
Column: Total Recall
Californians recall Gray Davis – but not fondly.
That was just one of the many jokes inspired by California’s tumultuous recall election. The joke gets its punch from the fact that recall has more than one meaning. In addition to its political sense, it is also a synonym for remembering.
That double meaning also allowed Arnold Schwarzenegger to coin a piquant pun by mounting a Total Recall campaign. As it happens, Arnold proved to be quite a punster, also vowing to “terminate” Gray Davis. A joke, no doubt.
The word recall dates from the late 16th Century. Like many words of that vintage, it was made by combining an old Anglo-Saxon word (call), with a fashionable Latin prefix (re). Shakespeare provides the first recorded use of recall and, as luck would have it, he did so in a legal context. In the Comedy of Errors, a character explains the difficulty of having a death sentence commuted by pointing out that a “Passed sentence may not be recall’d.”
From the very beginning, then, the word recall had the sense of revoking, or undoing, something that had already been done. Or, as the poet John Dryden wrote in the 17th Century, “’Tis done and since ‘tis done ‘tis past recall.”
It turns out, however, that almost nothing is “past recall” – cars, tires, computers, and, of course, politicians. The political use of recall was firmly established by the time the Articles of Confederation appeared in 1777. Under the Articles, each state legislature was empowered to select its delegates to the national Congress, and “to recall its delegates, or any of them, at any time within the year.”
The concept of the recall, however, goes back even farther – at least to the 1691 General Charter of the Massachusetts Bay Company, which provides that any of the 28 “Councillors or Assistants” may be “removed” by the General Court or Assembly of the colony.
During the Constitutional Convention of 1787, Edmund Randolph of Virginia proposed a measure that would have allowed for the recall of members of the House of Representatives. The measure, however, was defeated which is why, no matter what you think of your congressman, you have to wait for the next election, or his indictment, whichever comes first.
Following its defeat at the Constitutional Convention, the recall went into hibernation for about a hundred years, reemerging in the platform of various populist political parties in the late 19th Century. Lawyer and historian Joshua Spivak reports that in the 1890’s the Populist Party and the Socialist Labor Party advocated the “Imperative Mandate,” a fancy term for a recall.
The recall is closely related to two other late 19th Century reform measures that had a profound effect on the U.S., particularly the Western States. They are the initiative (proposing new laws for the voters to accept or reject) and the popular referendum (submitting an existing law to voter approval). These measures, first adopted in South Dakota in 1898, are now in force in 24 states, including California, where initiatives are known as propositions.
Ballot initiatives, in turn, have been responsible for all sorts of reforms, not least of which (according to the website of the Initiative and Referendum Institute) is permitting the sale of yellow margarine – a move that had been blocked in the legislatures by dairy interests. Butter producers, not surprisingly, preferred that the non-dairy competitor be sold in its original color (an unappetizing pale white). The last state to allow the sale of colored margarine was Wisconsin, in 1967.
The first modern recall law was passed in Los Angeles in 1903, and by 1911 the law was passed statewide for California. Seventeen other states and the District of Columbia eventually followed suit with their own recall measures. Even tiny Guam has the right to recall its elected officials (both of them!).
And the recall has been a successful export – the Venezuelan Constitution of 1999 includes a recall provision. And now the Venezuelan opposition parties are trying to recall the president, Hugo Chavez.
In practice, however, the recall has been more often threatened than carried out. Until the recall of Gray Davis, the only successful recall of a governor took place in 1921, when angry North Dakota voters threw Governor Lynn Frazier out of office. But the voters evidently took pity on Frazier and elected him to the Senate just a few years later. Take heart, Gray Davis!
* * *
It’s one thing to knock a governor, or even a president, off his pedestal, but now P. Diddy is under attack. Nothing, it seems, is sacred.
Kirk Burrowes, a former business partner of Diddy (aka Sean Combs), has brought a $25 million racketeering suit against the rap mogul, alleging that Diddy and his associates used “acts and threats involving murder, mayhem, and extortion.”
Murder and extortion, okay, but mayhem? Most people think of mayhem as a general term for disorder (“it was mayhem at Filene’s!”). In fact, mayhem has for centuries been a technical pleading term, meaning to injure another violently so as to weaken his ability to defend himself.
Mayhem is a medieval term (and, frankly, a medieval practice), coming from the Anglo-Norman maihem, or injury, from which we also get maim. In old pleadings, the two words are always used together. Thus, as recently as the mid-19th Century, in order to make out an indictment for mayhem, one was strictly required to state that the defendant “feloniously did maim” the victim.
Although one might think that any injury would weaken one’s self defense, that’s not the way the law sees it. The venerable Blackstone writes that, at common law, the cutting off of the ear or the nose is not held to be a mayhem, suggesting, perhaps that those appendages were considered expendable in the good old days.
* * *
Closer to home, newspapers report that Clarence Norman, state assemblyman and chairman of the Brooklyn Democratic Party has been arrested on two counts of larceny. Whatever the merits of that charge, at the very least it gives us an excuse to look at a splendid word, larceny.
Larceny, like mayhem, is an old Anglo-Norman term, coming from the Latin latrocinium, or theft. Traditionally, larceny referred to the taking away of another’s property – as distinct from other forms of theft, such as withholding another’s property. Under current New York law, larceny covers most varieties of theft, except robbery, which is a “forcible stealing.”
The first English law dealing with larceny was the Carte Forestae of 1225, which imposed fine or imprisonment for stealing the king’s deer. The next statute came fifty years later and was also, bizarrely, limited to the theft of deer. At some point, British lawmakers conceded that there may be other forms of property worth protecting, and the law of larceny became increasingly complex.
Medieval lawmakers also created the distinction between grand larceny and petit larceny. The latter applied when the value of the goods stolen was less than 12 pence; when the value was greater, it was grand larceny and the penalty was death.
That was all well and good in the 14th Century, but, what with inflation and all, execution for stealing 13 pence began to look a little harsh in the early 19th Century. One wit gleefully observed at the time that, while everything else gets more expensive, a man’s life keeps getting cheaper. The 12 pence limit was finally repealed by Parliament in 1827.
Clarence Norman, of course, does not face the death penalty. As an assemblyman; however, he might face the wrath of voters. But that will have to wait until the next election, because New York, unlike California, does not have a recall law.
(This column originally appeared in the December 2003 issue of New York Law Journal Magazine).
That was just one of the many jokes inspired by California’s tumultuous recall election. The joke gets its punch from the fact that recall has more than one meaning. In addition to its political sense, it is also a synonym for remembering.
That double meaning also allowed Arnold Schwarzenegger to coin a piquant pun by mounting a Total Recall campaign. As it happens, Arnold proved to be quite a punster, also vowing to “terminate” Gray Davis. A joke, no doubt.
The word recall dates from the late 16th Century. Like many words of that vintage, it was made by combining an old Anglo-Saxon word (call), with a fashionable Latin prefix (re). Shakespeare provides the first recorded use of recall and, as luck would have it, he did so in a legal context. In the Comedy of Errors, a character explains the difficulty of having a death sentence commuted by pointing out that a “Passed sentence may not be recall’d.”
From the very beginning, then, the word recall had the sense of revoking, or undoing, something that had already been done. Or, as the poet John Dryden wrote in the 17th Century, “’Tis done and since ‘tis done ‘tis past recall.”
It turns out, however, that almost nothing is “past recall” – cars, tires, computers, and, of course, politicians. The political use of recall was firmly established by the time the Articles of Confederation appeared in 1777. Under the Articles, each state legislature was empowered to select its delegates to the national Congress, and “to recall its delegates, or any of them, at any time within the year.”
The concept of the recall, however, goes back even farther – at least to the 1691 General Charter of the Massachusetts Bay Company, which provides that any of the 28 “Councillors or Assistants” may be “removed” by the General Court or Assembly of the colony.
During the Constitutional Convention of 1787, Edmund Randolph of Virginia proposed a measure that would have allowed for the recall of members of the House of Representatives. The measure, however, was defeated which is why, no matter what you think of your congressman, you have to wait for the next election, or his indictment, whichever comes first.
Following its defeat at the Constitutional Convention, the recall went into hibernation for about a hundred years, reemerging in the platform of various populist political parties in the late 19th Century. Lawyer and historian Joshua Spivak reports that in the 1890’s the Populist Party and the Socialist Labor Party advocated the “Imperative Mandate,” a fancy term for a recall.
The recall is closely related to two other late 19th Century reform measures that had a profound effect on the U.S., particularly the Western States. They are the initiative (proposing new laws for the voters to accept or reject) and the popular referendum (submitting an existing law to voter approval). These measures, first adopted in South Dakota in 1898, are now in force in 24 states, including California, where initiatives are known as propositions.
Ballot initiatives, in turn, have been responsible for all sorts of reforms, not least of which (according to the website of the Initiative and Referendum Institute) is permitting the sale of yellow margarine – a move that had been blocked in the legislatures by dairy interests. Butter producers, not surprisingly, preferred that the non-dairy competitor be sold in its original color (an unappetizing pale white). The last state to allow the sale of colored margarine was Wisconsin, in 1967.
The first modern recall law was passed in Los Angeles in 1903, and by 1911 the law was passed statewide for California. Seventeen other states and the District of Columbia eventually followed suit with their own recall measures. Even tiny Guam has the right to recall its elected officials (both of them!).
And the recall has been a successful export – the Venezuelan Constitution of 1999 includes a recall provision. And now the Venezuelan opposition parties are trying to recall the president, Hugo Chavez.
In practice, however, the recall has been more often threatened than carried out. Until the recall of Gray Davis, the only successful recall of a governor took place in 1921, when angry North Dakota voters threw Governor Lynn Frazier out of office. But the voters evidently took pity on Frazier and elected him to the Senate just a few years later. Take heart, Gray Davis!
* * *
It’s one thing to knock a governor, or even a president, off his pedestal, but now P. Diddy is under attack. Nothing, it seems, is sacred.
Kirk Burrowes, a former business partner of Diddy (aka Sean Combs), has brought a $25 million racketeering suit against the rap mogul, alleging that Diddy and his associates used “acts and threats involving murder, mayhem, and extortion.”
Murder and extortion, okay, but mayhem? Most people think of mayhem as a general term for disorder (“it was mayhem at Filene’s!”). In fact, mayhem has for centuries been a technical pleading term, meaning to injure another violently so as to weaken his ability to defend himself.
Mayhem is a medieval term (and, frankly, a medieval practice), coming from the Anglo-Norman maihem, or injury, from which we also get maim. In old pleadings, the two words are always used together. Thus, as recently as the mid-19th Century, in order to make out an indictment for mayhem, one was strictly required to state that the defendant “feloniously did maim” the victim.
Although one might think that any injury would weaken one’s self defense, that’s not the way the law sees it. The venerable Blackstone writes that, at common law, the cutting off of the ear or the nose is not held to be a mayhem, suggesting, perhaps that those appendages were considered expendable in the good old days.
* * *
Closer to home, newspapers report that Clarence Norman, state assemblyman and chairman of the Brooklyn Democratic Party has been arrested on two counts of larceny. Whatever the merits of that charge, at the very least it gives us an excuse to look at a splendid word, larceny.
Larceny, like mayhem, is an old Anglo-Norman term, coming from the Latin latrocinium, or theft. Traditionally, larceny referred to the taking away of another’s property – as distinct from other forms of theft, such as withholding another’s property. Under current New York law, larceny covers most varieties of theft, except robbery, which is a “forcible stealing.”
The first English law dealing with larceny was the Carte Forestae of 1225, which imposed fine or imprisonment for stealing the king’s deer. The next statute came fifty years later and was also, bizarrely, limited to the theft of deer. At some point, British lawmakers conceded that there may be other forms of property worth protecting, and the law of larceny became increasingly complex.
Medieval lawmakers also created the distinction between grand larceny and petit larceny. The latter applied when the value of the goods stolen was less than 12 pence; when the value was greater, it was grand larceny and the penalty was death.
That was all well and good in the 14th Century, but, what with inflation and all, execution for stealing 13 pence began to look a little harsh in the early 19th Century. One wit gleefully observed at the time that, while everything else gets more expensive, a man’s life keeps getting cheaper. The 12 pence limit was finally repealed by Parliament in 1827.
Clarence Norman, of course, does not face the death penalty. As an assemblyman; however, he might face the wrath of voters. But that will have to wait until the next election, because New York, unlike California, does not have a recall law.
(This column originally appeared in the December 2003 issue of New York Law Journal Magazine).
Wednesday, October 29, 2003
Column: When the law gets naked
On July 24, 2003, the Federal Trade Commission affirmed the holding of an administrative law judge that music giants PolyGram and Warner had entered into a “naked agreement to fix prices and restrict output” of recordings by the “Three Tenors” (emphasis added).
To the casual observer, the FTC’s use of the word “naked” to describe an agreement might seem like an odd rhetorical flourish. How can one tell if a contract is naked or clothed?
Granted, the word “naked” has been used metaphorically in legal writing for over a century: the word gets its own entry, for example, in Bouvier’s 1856 Legal Dictionary. The normal meaning of the word, however, is “undisguised” or “unembellished” – much like the pejorative use of bare (as in, “a bare allegation”). But that makes little sense in the context of the FTC’s findings – surely the Commission was not suggesting that an agreement to fix prices would be better if it were disguised.
No, the use of the word “naked” in antitrust law is slightly more complicated, as we will see. But first, a little background. In the Three Tenors case, PolyGram and Warner entered into a joint venture to distribute a 1998 recording by those vocal giants Jose Carreras, Placido Domingo, and Luciano Pavarotti. The joint venture itself was uncontroversial, but the FTC objected to an alleged side agreement whereby PolyGram and Warner agreed to refrain from promoting other recordings by the Three Tenors.
By referring to the side agreement as “naked,” the FTC was using a shorthand reference to a long line of authority that distinguishes between “naked” restraints of trade, which are bad, and “ancillary” restraints, which are good, or at least tolerable. If business rivals agree to set prices, allocate customers, or divide sales territories between themselves, then that’s a naked restraint. But if the rivals agree on restrictions that are “ancillary” to a legitimate transaction, then it’s probably okay. An example of an ancillary restraint might be a non-competition agreement that is part of a sale of a business.
Where does this use of the word “naked” come from? The distinction between naked and ancillary restraints is invariably attributed to the landmark 1898 opinion of Judge (later Chief Justice) William Howard Taft in United States v. Addyston Pipe & Steel Co. The only problem with this attribution is that Taft himself, while using the term “ancillary,” never actually uses the word “naked.” Nor does “naked” appear in the Supreme Court opinion affirming Taft’s decision.
A search of Supreme Court antitrust cases turns up no “naked” references until the 1963 decision in White Motor Co. v. United States in which Justice Douglas states: “Horizontal territorial limitations . . . are naked restraints of trade with no purpose except stifling competition.” And there the trail goes cold because Douglas gives no citation for his use of “naked.”
Historically, the most likely origin of “naked agreement” is the Latin nudum pactum, literally, a “nude contract.” A nude contract is one that is not supported by (or “clothed with”) consideration. This derivation makes sense, because an ancillary agreement would be “clothed” with whatever consideration supports the main transaction, whereas a naked agreement would stand on its own with no consideration, save the desire of the parties to stifle competition.
The concept of a nude contract in English law goes back at least as far as the eighteenth century, when Blackstone wrote – and I quote – “[a] confideration of fome fort or other is fo abfolutely neceffary to the forming of contract that a nudum pactum . . . if totally void in law.” To which we might add, it certainly if.
So much for naked. Its companion term, “ancillary,” by the way, also comes to us by way of a long-standing metaphor. In Latin, ancilla refers to a young female house servant; hence, the word was anglicized to mean something that is subordinate or accessory.
* * *
So: if the Three Tenors have gotten themselves into antitrust trouble, the obvious follow-up question is: what kind of legal problems do sopranos face?
Plenty, it turns out. The New York Post reports that Sopranos cast member Richard Maldone was recently charged with selling the drug kentamine out of his Long Island home.
Maldone, who plays the mobster Albert Barese on the HBO show, was facing prosecution by Queens District Attorney Richard Brown for alleged drug trafficking. The charges, however, have now been dropped since the Queens Supreme Court has determined that Brown lacks jurisdiction over the case, which arises from facts that allegedly occurred in Nassau County.
Jurisdiction is one of those key legal words that people take for granted. Roughly, it is synonymous with “power,” i.e., the power of a court to hear a particular kind of case, or the power of a government official to make or enforce laws on a given subject matter, or within a certain territory. The word comes directly from the Latin iuris dictio, meaning literally “speaking of the law.” In the ancient world, the law was a matter of pronouncements and proclamations – an official had authority if he had the power to “speak the law” within a particular area.
Jurisdiction is sometimes of the subject-matter variety, as in the Federal system, where a case must fit within certain categories to be heard by a Federal judge. But there is also the territorial sense of jurisdiction, which is what foiled the efforts of the Queens D.A. to prosecute the Maldone for something he allegedly did in Nassau County.
The prosecutorial power of New York State is generally divided along territorial lines, county by county, which is meant to prevent situations where two District Attorneys end up fighting over the right to prosecute a particular case. And come to think of it, isn’t that a naked restraint on competition?
* * *
To keep with the musical theme, hip-hop impresario Russell Simmons was recently slapped with a subpoena by New York Attorney General Elliot Spitzer. Spitzer wants to know about Simmons’ efforts to persuade state lawmakers to reform certain drug laws.
Simmons – the founder of Def Jam records and mentor to such artists as Funk Master Flux and LL Cool J – says that he was simply exercising his constitutional right to petition the government. Spitzer, evidently, takes a different view. He is concerned that Simmons, along with former NAACP leader Benjamin Chavez, failed to register as lobbyists, a requirement for certain people who seek to influence state lawmakers.
Which brings us to the question: why are political pressure groups called “lobbyists?”
An oft-cited etymology for the word is that it comes from the lobby of the Willard Hotel in Washington, D.C. According to lore, President Ulysses S. Grant would stroll from the White House, across Lafayette Park to the Willard, where he would sit in the lobby, entertaining various favor-seekers.
In fact, the word is much older than the Grant administration (1869-77). Americans began referring to “lobbyists” around 1808, referring to the habit of petitioners to wait in the “lobby” outside of Congress in the hopes of collaring legislators and persuading them as to the merits of various causes.
The use of the word “lobby” to refer to a legislative antechamber is older still. During the 17th Century, when the British Parliament used to meet in St. Stephens chapel, people started referring to the antechamber of the chapel – where legislators could mingle with the public – as the “lobby” (the word comes from the Latin lobia, meaning a “covered walk.”) To this day, the reception and meeting area behind the U.S. House chamber is referred to as the “Speaker’s Lobby.”
Experts say it is a highly technical question as to when a person crosses the line from citizen to “lobbyist.” But really: lobbyists are cigar-chomping hacks in cheap suits. Does anybody think that Funk Master Flex would be caught dead with somebody like that?
(This column originally appeared in the October 2003 issue of New York Law Journal Magazine).
To the casual observer, the FTC’s use of the word “naked” to describe an agreement might seem like an odd rhetorical flourish. How can one tell if a contract is naked or clothed?
Granted, the word “naked” has been used metaphorically in legal writing for over a century: the word gets its own entry, for example, in Bouvier’s 1856 Legal Dictionary. The normal meaning of the word, however, is “undisguised” or “unembellished” – much like the pejorative use of bare (as in, “a bare allegation”). But that makes little sense in the context of the FTC’s findings – surely the Commission was not suggesting that an agreement to fix prices would be better if it were disguised.
No, the use of the word “naked” in antitrust law is slightly more complicated, as we will see. But first, a little background. In the Three Tenors case, PolyGram and Warner entered into a joint venture to distribute a 1998 recording by those vocal giants Jose Carreras, Placido Domingo, and Luciano Pavarotti. The joint venture itself was uncontroversial, but the FTC objected to an alleged side agreement whereby PolyGram and Warner agreed to refrain from promoting other recordings by the Three Tenors.
By referring to the side agreement as “naked,” the FTC was using a shorthand reference to a long line of authority that distinguishes between “naked” restraints of trade, which are bad, and “ancillary” restraints, which are good, or at least tolerable. If business rivals agree to set prices, allocate customers, or divide sales territories between themselves, then that’s a naked restraint. But if the rivals agree on restrictions that are “ancillary” to a legitimate transaction, then it’s probably okay. An example of an ancillary restraint might be a non-competition agreement that is part of a sale of a business.
Where does this use of the word “naked” come from? The distinction between naked and ancillary restraints is invariably attributed to the landmark 1898 opinion of Judge (later Chief Justice) William Howard Taft in United States v. Addyston Pipe & Steel Co. The only problem with this attribution is that Taft himself, while using the term “ancillary,” never actually uses the word “naked.” Nor does “naked” appear in the Supreme Court opinion affirming Taft’s decision.
A search of Supreme Court antitrust cases turns up no “naked” references until the 1963 decision in White Motor Co. v. United States in which Justice Douglas states: “Horizontal territorial limitations . . . are naked restraints of trade with no purpose except stifling competition.” And there the trail goes cold because Douglas gives no citation for his use of “naked.”
Historically, the most likely origin of “naked agreement” is the Latin nudum pactum, literally, a “nude contract.” A nude contract is one that is not supported by (or “clothed with”) consideration. This derivation makes sense, because an ancillary agreement would be “clothed” with whatever consideration supports the main transaction, whereas a naked agreement would stand on its own with no consideration, save the desire of the parties to stifle competition.
The concept of a nude contract in English law goes back at least as far as the eighteenth century, when Blackstone wrote – and I quote – “[a] confideration of fome fort or other is fo abfolutely neceffary to the forming of contract that a nudum pactum . . . if totally void in law.” To which we might add, it certainly if.
So much for naked. Its companion term, “ancillary,” by the way, also comes to us by way of a long-standing metaphor. In Latin, ancilla refers to a young female house servant; hence, the word was anglicized to mean something that is subordinate or accessory.
* * *
So: if the Three Tenors have gotten themselves into antitrust trouble, the obvious follow-up question is: what kind of legal problems do sopranos face?
Plenty, it turns out. The New York Post reports that Sopranos cast member Richard Maldone was recently charged with selling the drug kentamine out of his Long Island home.
Maldone, who plays the mobster Albert Barese on the HBO show, was facing prosecution by Queens District Attorney Richard Brown for alleged drug trafficking. The charges, however, have now been dropped since the Queens Supreme Court has determined that Brown lacks jurisdiction over the case, which arises from facts that allegedly occurred in Nassau County.
Jurisdiction is one of those key legal words that people take for granted. Roughly, it is synonymous with “power,” i.e., the power of a court to hear a particular kind of case, or the power of a government official to make or enforce laws on a given subject matter, or within a certain territory. The word comes directly from the Latin iuris dictio, meaning literally “speaking of the law.” In the ancient world, the law was a matter of pronouncements and proclamations – an official had authority if he had the power to “speak the law” within a particular area.
Jurisdiction is sometimes of the subject-matter variety, as in the Federal system, where a case must fit within certain categories to be heard by a Federal judge. But there is also the territorial sense of jurisdiction, which is what foiled the efforts of the Queens D.A. to prosecute the Maldone for something he allegedly did in Nassau County.
The prosecutorial power of New York State is generally divided along territorial lines, county by county, which is meant to prevent situations where two District Attorneys end up fighting over the right to prosecute a particular case. And come to think of it, isn’t that a naked restraint on competition?
* * *
To keep with the musical theme, hip-hop impresario Russell Simmons was recently slapped with a subpoena by New York Attorney General Elliot Spitzer. Spitzer wants to know about Simmons’ efforts to persuade state lawmakers to reform certain drug laws.
Simmons – the founder of Def Jam records and mentor to such artists as Funk Master Flux and LL Cool J – says that he was simply exercising his constitutional right to petition the government. Spitzer, evidently, takes a different view. He is concerned that Simmons, along with former NAACP leader Benjamin Chavez, failed to register as lobbyists, a requirement for certain people who seek to influence state lawmakers.
Which brings us to the question: why are political pressure groups called “lobbyists?”
An oft-cited etymology for the word is that it comes from the lobby of the Willard Hotel in Washington, D.C. According to lore, President Ulysses S. Grant would stroll from the White House, across Lafayette Park to the Willard, where he would sit in the lobby, entertaining various favor-seekers.
In fact, the word is much older than the Grant administration (1869-77). Americans began referring to “lobbyists” around 1808, referring to the habit of petitioners to wait in the “lobby” outside of Congress in the hopes of collaring legislators and persuading them as to the merits of various causes.
The use of the word “lobby” to refer to a legislative antechamber is older still. During the 17th Century, when the British Parliament used to meet in St. Stephens chapel, people started referring to the antechamber of the chapel – where legislators could mingle with the public – as the “lobby” (the word comes from the Latin lobia, meaning a “covered walk.”) To this day, the reception and meeting area behind the U.S. House chamber is referred to as the “Speaker’s Lobby.”
Experts say it is a highly technical question as to when a person crosses the line from citizen to “lobbyist.” But really: lobbyists are cigar-chomping hacks in cheap suits. Does anybody think that Funk Master Flex would be caught dead with somebody like that?
(This column originally appeared in the October 2003 issue of New York Law Journal Magazine).
Monday, September 29, 2003
Column: Name That Law
If you’ve ever tried to buy a bottle of wine on a Sunday, then you know that New Yorkers suffer under the yoke of a Blue Law, that is, a law prohibiting certain types of retail activity on the seventh day.
You may call such laws many names – inconvenient, archaic, and obsolete come to mind – but what on earth is blue about them?
In fact, so many of our laws have funny names, one could spend all day pondering their origins (trust me). No sooner have we got past Blue Laws than we come across Blue Sky Laws, a seemingly nonsensical name for state securities laws. Beyond that, we have Antitrust laws to protect competition, Lemon Laws to protect consumers and Megan’s Law to protect children.
Blue, Blue Law
But to get back to wine, why should the ancient Puritan laws protecting the Christian Sabbath be called “blue?”
A popular theory has it that Blue Laws got their name from the blue paper on which they were originally printed. This has all the advantages of a good theory: it’s brief, tidy, and sensible. The only problem is that there is absolutely no evidence that such laws were ever printed on blue paper.
More likely, the term Blue Law derives from the 18th century slang term “blue,” referring to strict moral codes and those who observed them (hence the colloquial “bluenose” for a puritanical person). The Reverend Samuel Peters was the first to speak of “blue laws” in his 1781 book, General History of Connecticut. Peters does not attribute the phrase, and it seems most likely that he coined it himself.
Blue is also the color of the Blue Sky Laws, which sound like an overly optimistic meteorological regulation (and while we’re at it, can we have a “Sunny Weekend Law?”). Blue Sky Laws, of course, are the securities laws and regulations of the individual states. The term was made popular by the Supreme Court case of Hall v. Geiger-Jones Co. in which Justice McKenna described such laws as targeting “speculative schemes which have no more basis than so many feet of ‘blue sky.’” Although Justice McKenna claimed that he was borrowing the phrase from an earlier case, he did not provide a citation, and so, ends up getting the credit for the term.
Strange Names
American history is full of strange-sounding laws. There were the infamous Jim Crow laws passed by Southern legislatures after the Civil War. These segregation measures took their name from a recurring character in early 19th Century “minstrel shows,” in which white actors would apply black cork to their faces and perform song-and-dance routines.
At the same time that the Jim Crow laws were being enacted in the South, the Midwestern legislatures were passing railroad regulations known as the Granger Laws. These laws did not get their name, as one might expect, from a Mr. Granger, but rather from “the Grangers,” a farming organization that was once one of the most powerful lobbies in American politics.
Even the thoroughly modern subject of Antitrust law has a quaint name, when you think about it. Antitrust – which in other countries goes by the more straightforward term “Competition Law” – takes its name from the late 19th century suspicion of conglomerates known as “trusts,” a form of business organization that was long ago superseded by holding companies and other devices.
When Congress Gets Into The Act
Where do laws get their names? Usually from Congress, or the state legislatures, as the case may be.
In Washington, a new law passed by Congress is given a session number, beginning with “P.L.” or “Public Law.” A law called “P.L. 102-89,” for example, would be the 89th law passed by the 102nd session of Congress. The session laws are then codified to fit into the existing scheme of federal laws, and will be included in the United States Code. The Code provides the name for laws that are most familiar to lawyers, such as 11 U.S.C. § 540.
As much as lawyers love the precision of Code sections, politicians don’t (somehow “Reelect Smith, co-sponsor of 27 U.S.C. § 8471” just doesn’t sound right). Thus, every law also has a popular name so that Congress can sell it to the public.
Having said that, a quick glance at the Popular Name Table of the U.S. Code shows that Congress has a distinctly tin ear when it comes to naming statutes. The Healthy Meals for Healthy Americans Act, for example, sounds like a scheme to withhold food from sick people. Meanwhile, a law to regulate tobacco – crying out for something snappy like “the Clean Lungs Act” – is given the dreary title of Tobacco Control Act. In the hands of our representatives, cars, trucks, and trains become Surface Transportation (yawn!).
A number of supposedly “popular” names have a mind-boggling specificity. For example, the Adjustment to Lawful Resident Status of Certain Nationals of Countries for Which Extended Voluntary Departure Has Been Made Available Act appears to have been written for one guy. And to the non-lawyer, the Uniform Simultaneous Death Act has the ring of something that lawmakers dreamed up one Friday afternoon as a practical joke.
State legislators often do a better job than congressmen with popular names. What could be better for protecting consumers against shoddy cars than a lemon law? All 50 states have lemon laws, it’s a catchy name, and easy to figure out. A more difficult question is how the word “lemon” came to represent defective goods in the first place. One theory has it that lemons were frequently left rotting in markets; another that in slot machines, three lemons in a row yields no money; a third, simply, that lemons are sour.
Often, lawmakers will take the easy way out by giving a law a name that people just can’t disagree with, say “the Consolidated Motherhood and Apple Pie Act.” Names like that abound: the Animal Welfare Act, the Economic Recovery Act, and the Child Protection Act, to name a few. Who could be against those things?
But then, standards do change and some names that might have been successful at an earlier time sound like real clunkers today. It is rather arresting to go through the statute book and see names whose popular appeal are lost on today’s reader. When, for example, was the Anti-Beer Act a vote getter? The Atomic Weapons Rewards Act of 1955 has a certain Cold War charm that is difficult to conjure up now (although one wonders what the rewards were).
Criminals and Victims
Another method for labeling a statute – and one that is currently in vogue – is to name it after a victim of the crime to be prevented by the law. Take “Megan’s Law,” a state statute that requires a public notice whenever a convicted sex offender moves into a neighborhood. The law is named for Megan Kanka, a girl who was murdered at age seven by a convicted sex offender. In New York, we have Christopher’s Law, Jenna’s Law, Elisa’s Law, and Lee-Anne’s Law, and probably more. At the federal level, the Brady Handgun Violence Prevention Act is named for James Brady, the White House Press Secretary left paralyzed by an assassin’s bullet.
You wouldn’t think that lawmakers would commemorate the perpetrator of a crime, but there is at least one example: the Son of Sam law, which requires that convicted criminals give all money earned from book, movie or other deals to their victims or the state. The first such law was passed in New York in response to serial killer David Berkowitz (aka “Son of Sam”), who sought to sell his story. Since then, the legislatures of some 40 states have enacted similar laws. Ultimately, however, all that work was for naught, since the Supreme Court later struck down the Son of Sam law on First Amendment grounds, which just goes to show that anything that can go wrong will go wrong – otherwise known as Murphy’s Law.
(This column first appeared in the September 2003 issue of New York Law Journal Magazine)
You may call such laws many names – inconvenient, archaic, and obsolete come to mind – but what on earth is blue about them?
In fact, so many of our laws have funny names, one could spend all day pondering their origins (trust me). No sooner have we got past Blue Laws than we come across Blue Sky Laws, a seemingly nonsensical name for state securities laws. Beyond that, we have Antitrust laws to protect competition, Lemon Laws to protect consumers and Megan’s Law to protect children.
Blue, Blue Law
But to get back to wine, why should the ancient Puritan laws protecting the Christian Sabbath be called “blue?”
A popular theory has it that Blue Laws got their name from the blue paper on which they were originally printed. This has all the advantages of a good theory: it’s brief, tidy, and sensible. The only problem is that there is absolutely no evidence that such laws were ever printed on blue paper.
More likely, the term Blue Law derives from the 18th century slang term “blue,” referring to strict moral codes and those who observed them (hence the colloquial “bluenose” for a puritanical person). The Reverend Samuel Peters was the first to speak of “blue laws” in his 1781 book, General History of Connecticut. Peters does not attribute the phrase, and it seems most likely that he coined it himself.
Blue is also the color of the Blue Sky Laws, which sound like an overly optimistic meteorological regulation (and while we’re at it, can we have a “Sunny Weekend Law?”). Blue Sky Laws, of course, are the securities laws and regulations of the individual states. The term was made popular by the Supreme Court case of Hall v. Geiger-Jones Co. in which Justice McKenna described such laws as targeting “speculative schemes which have no more basis than so many feet of ‘blue sky.’” Although Justice McKenna claimed that he was borrowing the phrase from an earlier case, he did not provide a citation, and so, ends up getting the credit for the term.
Strange Names
American history is full of strange-sounding laws. There were the infamous Jim Crow laws passed by Southern legislatures after the Civil War. These segregation measures took their name from a recurring character in early 19th Century “minstrel shows,” in which white actors would apply black cork to their faces and perform song-and-dance routines.
At the same time that the Jim Crow laws were being enacted in the South, the Midwestern legislatures were passing railroad regulations known as the Granger Laws. These laws did not get their name, as one might expect, from a Mr. Granger, but rather from “the Grangers,” a farming organization that was once one of the most powerful lobbies in American politics.
Even the thoroughly modern subject of Antitrust law has a quaint name, when you think about it. Antitrust – which in other countries goes by the more straightforward term “Competition Law” – takes its name from the late 19th century suspicion of conglomerates known as “trusts,” a form of business organization that was long ago superseded by holding companies and other devices.
When Congress Gets Into The Act
Where do laws get their names? Usually from Congress, or the state legislatures, as the case may be.
In Washington, a new law passed by Congress is given a session number, beginning with “P.L.” or “Public Law.” A law called “P.L. 102-89,” for example, would be the 89th law passed by the 102nd session of Congress. The session laws are then codified to fit into the existing scheme of federal laws, and will be included in the United States Code. The Code provides the name for laws that are most familiar to lawyers, such as 11 U.S.C. § 540.
As much as lawyers love the precision of Code sections, politicians don’t (somehow “Reelect Smith, co-sponsor of 27 U.S.C. § 8471” just doesn’t sound right). Thus, every law also has a popular name so that Congress can sell it to the public.
Having said that, a quick glance at the Popular Name Table of the U.S. Code shows that Congress has a distinctly tin ear when it comes to naming statutes. The Healthy Meals for Healthy Americans Act, for example, sounds like a scheme to withhold food from sick people. Meanwhile, a law to regulate tobacco – crying out for something snappy like “the Clean Lungs Act” – is given the dreary title of Tobacco Control Act. In the hands of our representatives, cars, trucks, and trains become Surface Transportation (yawn!).
A number of supposedly “popular” names have a mind-boggling specificity. For example, the Adjustment to Lawful Resident Status of Certain Nationals of Countries for Which Extended Voluntary Departure Has Been Made Available Act appears to have been written for one guy. And to the non-lawyer, the Uniform Simultaneous Death Act has the ring of something that lawmakers dreamed up one Friday afternoon as a practical joke.
State legislators often do a better job than congressmen with popular names. What could be better for protecting consumers against shoddy cars than a lemon law? All 50 states have lemon laws, it’s a catchy name, and easy to figure out. A more difficult question is how the word “lemon” came to represent defective goods in the first place. One theory has it that lemons were frequently left rotting in markets; another that in slot machines, three lemons in a row yields no money; a third, simply, that lemons are sour.
Often, lawmakers will take the easy way out by giving a law a name that people just can’t disagree with, say “the Consolidated Motherhood and Apple Pie Act.” Names like that abound: the Animal Welfare Act, the Economic Recovery Act, and the Child Protection Act, to name a few. Who could be against those things?
But then, standards do change and some names that might have been successful at an earlier time sound like real clunkers today. It is rather arresting to go through the statute book and see names whose popular appeal are lost on today’s reader. When, for example, was the Anti-Beer Act a vote getter? The Atomic Weapons Rewards Act of 1955 has a certain Cold War charm that is difficult to conjure up now (although one wonders what the rewards were).
Criminals and Victims
Another method for labeling a statute – and one that is currently in vogue – is to name it after a victim of the crime to be prevented by the law. Take “Megan’s Law,” a state statute that requires a public notice whenever a convicted sex offender moves into a neighborhood. The law is named for Megan Kanka, a girl who was murdered at age seven by a convicted sex offender. In New York, we have Christopher’s Law, Jenna’s Law, Elisa’s Law, and Lee-Anne’s Law, and probably more. At the federal level, the Brady Handgun Violence Prevention Act is named for James Brady, the White House Press Secretary left paralyzed by an assassin’s bullet.
You wouldn’t think that lawmakers would commemorate the perpetrator of a crime, but there is at least one example: the Son of Sam law, which requires that convicted criminals give all money earned from book, movie or other deals to their victims or the state. The first such law was passed in New York in response to serial killer David Berkowitz (aka “Son of Sam”), who sought to sell his story. Since then, the legislatures of some 40 states have enacted similar laws. Ultimately, however, all that work was for naught, since the Supreme Court later struck down the Son of Sam law on First Amendment grounds, which just goes to show that anything that can go wrong will go wrong – otherwise known as Murphy’s Law.
(This column first appeared in the September 2003 issue of New York Law Journal Magazine)
Sunday, June 29, 2003
Column: Who is John Doe
John Doe has all luck. Every time you read about some sexy, cutting-edge legal issue, John Doe has his name all over it. He’s as bad as that Miranda guy.
Just last March, when the Pennsylvania Supreme Court heard arguments in a ground-breaking CyberSLAPP lawsuit, Doe was right there in the name of the case: Melvin v. John Doe.
In case you haven’t heard of CyberSLAPP lawsuits, they are defamation actions aimed at people who post anonymous messages on the Internet. Essentially, the plaintiff sues the anonymous defamer as “John Doe” and then uses the discovery process to get the identity of the John Doe from his Internet Service Provider.
John Doe is Everywhere – And Nowhere
Whatever the merits of CyberSLAPP suits, they do at least have the virtue of bringing us all a little closer to John Doe. Think about it: if you have ever posted a message on Yahoo, or Motley Fool, or – just hypothetically – the Greedy Associates message boards, you may well have communicated with a real live John Doe. Heck, you might be a John Doe.
If so, you’re in distinguished company. John Doe has his own private club: the “John Does Anonymous Foundation,” which is dedicated to (I am not kidding) “the concept of anonymity.” He has even broken into show business, with the new Fox series, John Doe, which is positively slaying them in the crucial 18-to-34 demographic. So who is this John Doe, and who writes his material?
Deer and Fish Eggs
The first mention of John Doe dates from 14th Century English law, when a fictional plaintiff was required to accomplish one of the most deliciously complex procedures in legal history, the action of ejectment.
Ejectment was a mechanism to get around rigid common law pleading rules that made it nearly impossible for a landowner to prove his title against a person squatting on his land. The landowner would bring a lawsuit in the name of a fictitious tenant, John Doe, who was said to have been ousted by the equally fictitious Richard Roe. Mr. Roe, according to the story, then went on his way and left the property in the hands of the man in actual possession, against whom the lawsuit would proceed. What could be simpler?
Using the name “John” for a fictional character is not surprising – John was a common name in England in the 14th Century, as it is now. Many early English courts named their fictional parties John-a-Nokes (i.e., John, who dwells at the oak) and John-a-Stiles (i.e., John, who dwells at the “stile,” or steps). These were the sorts of names that Englishmen actually used in the Middle Ages. But Doe and Roe? They do not even appear in the lists of early inheritable surnames in England; nor does England have many Doe’s or Roe’s today. A quick glance at the Manhattan phone book reveals only 11 Doe’s. Not exactly a household name.
It appears then, that these were nonsense names, simply referring to fairly common nouns: Doe (a deer, a female deer) and Roe (fish eggs). Except that “roe” could also refer to a species of small deer found in Europe, making it a little closer to “Doe.” Either interpretation of “roe” is possible, since both existed in Middle English, although I favor the latter, since the fish-egg roe was generally spelled roughe or row in the old days.
Roe, Roe, Roe your lawsuit
Somehow, Doe and Roe edged out their competitors to become the preferred fictional parties in the medieval ejectment action. Ejectment turned out to be a pretty good gig for those two – it took the British Parliament five centuries to abolish ejectment (hey, really, no rush guys). By that time, Doe and Roe had entered the general legal lexicon.
The uses of Doe and Roe have changed over the years. Whereas these names were originally applied to parties that did not exist, they now stand for parties who do exist, but whose names are not known, like the anonymous defendants in the CyberSLAPP lawsuits; or parties whose identities are shielded, such as the anonymous plaintiff of Roe v. Wade. At other times, Doe is used to stand for people who may or may not exist, as in those favorite whipping boys of the plaintiffs’ bar: John Does 1-100. And when plaintiffs run out of Doe’s and Roe’s, they sometimes bring in Peter Poe, a decidedly poorer cousin.
John Doe is so prevalent throughout the English-speaking world that, say, a Canadian and an Australian lawyer can happily pass the time by swapping John Doe stories over a glass of lager. But in non-English-speaking countries, they all seem to have dreamed up their own John Doe equivalents. In Germany, when bureaucrats need a generic name, they use Michael Musterman. Italian lawyers refer to unknown persons as Tizio, Caio, and Sempronio – always in that order (there are never more than three unknown persons in Italian law). The common man in Sweden is often referred to as Sven Svenson, whereas in Hong Kong, it’s Chan Siu Ming.
Fertile Octogenarians – and the Women Who Love Them
If John Doe seems like a strange invention, consider some of the law’s other fictional creatures. The field of estate planning, for example, features a delirious cast of make-believe persons, including the Precocious Toddler, the Unborn Widow and the Slothful Executor. The most intriguing of these has to be the Fertile Octogenarian – a hypothetical dirty old man who subscribes to the Rule against Perpetuities (but only for the articles) and who made his first appearance centuries before the invention of Viagra.
In tax law, the fair market value of property is said to be the product of negotiations between two imaginary people: the Willing Buyer and the Willing Seller. By all accounts, these two stalwarts never bargain in bad faith, never conceal information, and never back out of a deal. In short, they represent just the sort of frank, straight-shooting personalities that one so often sees in property transactions.
The most distinguished fictional person is the Reasonable Man, whose various adventures are chronicled in Torts books around the world. Like an uber-boy scout, the Reasonable Man provides a role model for all of us to avoid getting into trouble, negligence-wise.
When it comes to specifics, the Reasonable Man is almost as elusive as John Doe (come to think of it, the two have never been photographed together). The general idea is that he should embody the common-sense standards of the average citizen. He was famously described in a 19th Century British case as “the man on the Clapham omnibus,” Clapham being an ordinary part of London, and an omnibus being something that people with common sense, evidently, used to ride in.
In his book Uncommon Law, A.P. Herbert depicts a fictional English court grappling with the Reasonable Man standard in the imaginary case of Fardell v. Potts. In Herbert’s report, the court finally comes out and says what we all know to be the truth: the Reasonable Man is a dweeb.
“The Reasonable Man is always thinking of others; prudence is his guide and ‘Safety First’ ... is his rule of life. He is one who invariably looks where he is going ... who never mounts a moving omnibus [there’s that word again!], ... and will inform himself of the history and habits of a dog before administering a caress ... who in the way of business looks only for that margin of profit which twelve men such as himself would reckon to be ‘fair’ ...who uses nothing except in moderation and even while he flogs his children is meditating only on the golden mean.”
The problem in Fardell v. Potts was that the defendant, accused of negligently steering a motorboat, was a female and, therefore, not subject to the Reasonable Man standard. Having scoured all available precedents on the law of negligence, the judge reports that “there is no single mention of a reasonable woman.” The only logical conclusion the court can draw from this omission is that “no such being is contemplated by the law.”
But that, of course, was a fictional case.
(This column first appeared in the June 2003 issue of New York Law Journal Magazine)
Just last March, when the Pennsylvania Supreme Court heard arguments in a ground-breaking CyberSLAPP lawsuit, Doe was right there in the name of the case: Melvin v. John Doe.
In case you haven’t heard of CyberSLAPP lawsuits, they are defamation actions aimed at people who post anonymous messages on the Internet. Essentially, the plaintiff sues the anonymous defamer as “John Doe” and then uses the discovery process to get the identity of the John Doe from his Internet Service Provider.
John Doe is Everywhere – And Nowhere
Whatever the merits of CyberSLAPP suits, they do at least have the virtue of bringing us all a little closer to John Doe. Think about it: if you have ever posted a message on Yahoo, or Motley Fool, or – just hypothetically – the Greedy Associates message boards, you may well have communicated with a real live John Doe. Heck, you might be a John Doe.
If so, you’re in distinguished company. John Doe has his own private club: the “John Does Anonymous Foundation,” which is dedicated to (I am not kidding) “the concept of anonymity.” He has even broken into show business, with the new Fox series, John Doe, which is positively slaying them in the crucial 18-to-34 demographic. So who is this John Doe, and who writes his material?
Deer and Fish Eggs
The first mention of John Doe dates from 14th Century English law, when a fictional plaintiff was required to accomplish one of the most deliciously complex procedures in legal history, the action of ejectment.
Ejectment was a mechanism to get around rigid common law pleading rules that made it nearly impossible for a landowner to prove his title against a person squatting on his land. The landowner would bring a lawsuit in the name of a fictitious tenant, John Doe, who was said to have been ousted by the equally fictitious Richard Roe. Mr. Roe, according to the story, then went on his way and left the property in the hands of the man in actual possession, against whom the lawsuit would proceed. What could be simpler?
Using the name “John” for a fictional character is not surprising – John was a common name in England in the 14th Century, as it is now. Many early English courts named their fictional parties John-a-Nokes (i.e., John, who dwells at the oak) and John-a-Stiles (i.e., John, who dwells at the “stile,” or steps). These were the sorts of names that Englishmen actually used in the Middle Ages. But Doe and Roe? They do not even appear in the lists of early inheritable surnames in England; nor does England have many Doe’s or Roe’s today. A quick glance at the Manhattan phone book reveals only 11 Doe’s. Not exactly a household name.
It appears then, that these were nonsense names, simply referring to fairly common nouns: Doe (a deer, a female deer) and Roe (fish eggs). Except that “roe” could also refer to a species of small deer found in Europe, making it a little closer to “Doe.” Either interpretation of “roe” is possible, since both existed in Middle English, although I favor the latter, since the fish-egg roe was generally spelled roughe or row in the old days.
Roe, Roe, Roe your lawsuit
Somehow, Doe and Roe edged out their competitors to become the preferred fictional parties in the medieval ejectment action. Ejectment turned out to be a pretty good gig for those two – it took the British Parliament five centuries to abolish ejectment (hey, really, no rush guys). By that time, Doe and Roe had entered the general legal lexicon.
The uses of Doe and Roe have changed over the years. Whereas these names were originally applied to parties that did not exist, they now stand for parties who do exist, but whose names are not known, like the anonymous defendants in the CyberSLAPP lawsuits; or parties whose identities are shielded, such as the anonymous plaintiff of Roe v. Wade. At other times, Doe is used to stand for people who may or may not exist, as in those favorite whipping boys of the plaintiffs’ bar: John Does 1-100. And when plaintiffs run out of Doe’s and Roe’s, they sometimes bring in Peter Poe, a decidedly poorer cousin.
John Doe is so prevalent throughout the English-speaking world that, say, a Canadian and an Australian lawyer can happily pass the time by swapping John Doe stories over a glass of lager. But in non-English-speaking countries, they all seem to have dreamed up their own John Doe equivalents. In Germany, when bureaucrats need a generic name, they use Michael Musterman. Italian lawyers refer to unknown persons as Tizio, Caio, and Sempronio – always in that order (there are never more than three unknown persons in Italian law). The common man in Sweden is often referred to as Sven Svenson, whereas in Hong Kong, it’s Chan Siu Ming.
Fertile Octogenarians – and the Women Who Love Them
If John Doe seems like a strange invention, consider some of the law’s other fictional creatures. The field of estate planning, for example, features a delirious cast of make-believe persons, including the Precocious Toddler, the Unborn Widow and the Slothful Executor. The most intriguing of these has to be the Fertile Octogenarian – a hypothetical dirty old man who subscribes to the Rule against Perpetuities (but only for the articles) and who made his first appearance centuries before the invention of Viagra.
In tax law, the fair market value of property is said to be the product of negotiations between two imaginary people: the Willing Buyer and the Willing Seller. By all accounts, these two stalwarts never bargain in bad faith, never conceal information, and never back out of a deal. In short, they represent just the sort of frank, straight-shooting personalities that one so often sees in property transactions.
The most distinguished fictional person is the Reasonable Man, whose various adventures are chronicled in Torts books around the world. Like an uber-boy scout, the Reasonable Man provides a role model for all of us to avoid getting into trouble, negligence-wise.
When it comes to specifics, the Reasonable Man is almost as elusive as John Doe (come to think of it, the two have never been photographed together). The general idea is that he should embody the common-sense standards of the average citizen. He was famously described in a 19th Century British case as “the man on the Clapham omnibus,” Clapham being an ordinary part of London, and an omnibus being something that people with common sense, evidently, used to ride in.
In his book Uncommon Law, A.P. Herbert depicts a fictional English court grappling with the Reasonable Man standard in the imaginary case of Fardell v. Potts. In Herbert’s report, the court finally comes out and says what we all know to be the truth: the Reasonable Man is a dweeb.
“The Reasonable Man is always thinking of others; prudence is his guide and ‘Safety First’ ... is his rule of life. He is one who invariably looks where he is going ... who never mounts a moving omnibus [there’s that word again!], ... and will inform himself of the history and habits of a dog before administering a caress ... who in the way of business looks only for that margin of profit which twelve men such as himself would reckon to be ‘fair’ ...who uses nothing except in moderation and even while he flogs his children is meditating only on the golden mean.”
The problem in Fardell v. Potts was that the defendant, accused of negligently steering a motorboat, was a female and, therefore, not subject to the Reasonable Man standard. Having scoured all available precedents on the law of negligence, the judge reports that “there is no single mention of a reasonable woman.” The only logical conclusion the court can draw from this omission is that “no such being is contemplated by the law.”
But that, of course, was a fictional case.
(This column first appeared in the June 2003 issue of New York Law Journal Magazine)
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