Since the skeletal remains found last year under a parking lot in Leicester have been confirmed as those of Richard III, England will finally properly lay to rest its last Plantagenet king.  richardiii

Most know him as Shakespeare portrayed him: cruel hunchback and serial murderer.  The remains confirm that Richard suffered from scoliosis, and given the thinking of the time, it is not hard to imagine how the truth about his reign might have been warped by prejudice; and it almost certainly was rewritten by the Tudors who, led by the man who became Henry VII, defeated and killed Richard at Bosworth Field.  That the young sons of Edward IV, Richard’s brother and predecessor, were never seen again after they came into Richard’s care is troubling, although there is no evidence they were actually murdered.  And as many have pointed out, Richard was not the first and certainly was not the last king to consolidate his power by eliminating his rivals.  Richard III would be the last English king to die in battle, and even according to Henry VII, he died fighting honorably and bravely.

In certain ways Richard III was a champion of the common man.  He instituted one of the earliest People’s Courts, the Court of Requests, an equity court to which the poor could apply for redress of wrongs.  The costs to prosecute a case in the Court of Requests were low and decisions were handed down quickly.  Evidentiary requirements were relaxed so that expensive legal representation was unnecessary.  The Court of Requests became immensely popular, so much so that the common law courts resented it.  The common law courts eventually shut it down, primarily by issuing writs of habeas corpus for men imprisoned by the Court of Requests.

Richard also introduced bail: beginning in 1484, a person charged with a felony could offer a sum of money or a piece of property to be held by the court, in exchange for which the person would remain free unless and until he was convicted.  This represented a huge step forward in English jurisprudence since it bolstered the most central criminal law premise: that a person is innocent until proven guilty.  Permitting a person charged with a crime to remain free pending conviction meant that he could consult with his lawyers, manage his affairs, protect his property, and prepare his defense.

These advances in legal procedure and fundamental fairness lead me to think that Richard has been unfairly maligned, and that perhaps a lifetime of being despised for a physical deformity over which he had no control made him sympathetic to the needs of outcasts and people of limited means.  Which is why I like this line so much, from Shakespeare’s Richard III, because what it seems to be saying about the king on first read is not, in fact, what it is saying at all:

No beast so fierce but knows some touch of pity.
But I know none, and therefore am no beast.

Richard III, Act 1, Scene 2.

Yesterday my Facebook feed was full of posts like this:

For those of you that do not understand this posting, Facebook is now a publicly traded entity. Anyone can infringe on your right to privacy once you post on this site. It is recommended that you and other members post a similar notice to this or you may copy and paste this one. Protect yourself, this is now a publicly traded site.


PRIVACY NOTICE: Warning – any person and/or institution and/or Agent and/or Agency of any governmental structure including but not limited to the United States Federal Government also using or monitoring/using this website or any of its associated websites, you do NOT have my permission to utilize any of my profile information nor any of the content contained herein including, but not limited to my photos, and/or the comments made about my photos or any other “picture” art posted on my profile. You are hereby notified that you are strictly prohibited from disclosing, copying, distributing, disseminating, or taking any other action against me with regard to this profile and the contents herein. The foregoing prohibitions also apply to your employee, agent, student or any personnel under your direction or control.

The contents of this profile are private and legally privileged and confidential information, and the violation of my personal privacy is punishable by law.


In typical Jennifer fashion I posted my own status update, something along the lines of “that Facebook privacy thing is stupid and meaningless so stop.” It is stupid, after all. The enforceability of the UCC – which is a model code, and therefore only law insofar as it’s been enacted in any given state – against the federal government for privacy violations is questionable, to put it mildly. There is this thing called sovereign immunity. The fact that this dumb little statement claims to be necessary because Facebook is now publicly traded is laughable. And, of course, there’s the fact that if you post something and people can see it, you have no privacy rights in it anyway.

Oh, and if it’s privacy you’re concerned about, you can’t go wrong with the Fourth Amendment to the United States Constitution. That’s going to get you a bit more bang for the buck than the UCC and you don’t have to post anything to invoke it. As an American you’re born into its protective cradle of privacy-ness. Sure, the Patriot Act is eroding that, but do you honestly think that your Facebook post will successfully go mano a mano with an anti-terrorism statute? You haven’t thought this thing through.

But while putting these comments together is cathartic – really, America, are you this gullible now? – it’s not my point. I have been noticing a trend towards this sort of silly language on social media and elsewhere for a while now.

A few months ago I had the distinct pleasure of dealing with a real, honest-to-God Freeman on the Land. If you haven’t heard of this organization, my friend, you are in for a Google-ific treat.  Go ahead, I’ll wait.

Well? Laugh much? Freemen on the Land believe for some reason that certain statements, words and phrases carry not just significance, but magical significance. Maybe this derives from their belief that they can opt out of complying with statutes. (Freemen think that statutory law only applies to people who consent to be governed, and that they need only comply with common law, which they seem to confuse with what philosophers call natural law. It’s a slightly more sophisticated twist on anarchy and the notion of the social contract.) My particular Freeman kept filing pleadings in which his name appeared in all capitals, which I have come to understand has something to do with a weird notion that every person is simultaneously an individual and a corporation, and that certain laws affect only the corporation/person. It’s all very nonsensical, although I suspect I’ll be getting emails from crackpots for a while after I post this attempting to explain why it all makes perfect sense to anyone who doesn’t drink the Big Government Kool Aid. Sigh.

Freemen seem to be gaining popularity in the United Kingdom, home of Thomas Hobbes and John Locke, who must be turning cartwheels in their graves. There the movement has become a basis for the disgruntled to refuse to pay taxes or civil fines, or to comply with family court orders. The notion is sad, since if these people actually understood the history of the common law they claim to prefer, they’d recognize that they have far more freedom now than when the King would travel from place to place, dispensing justice according to the law which was held “in common” by those villages. The common law has always recognized the power of the government to rule. Those who attempted to withdraw their consent to Tudor governance were quickly and efficiently beheaded.

I do wonder at the talismanic quality of all this language. To me it reflects a very basic naïveté about how law and government work. The idea that writing “no contract” on a legal paper somehow renders the underlying law ineffective seems Harry Potter-esque, doesn’t it? Wave your wand, mutter some Latinate phrase, and voila! No obligation to pay your taxes.

But the law doesn’t work that way, and neither does the social contract. And if you’re not willing to learn how the law actually works, at least check out before you post any more of this silliness.

You will not be surprised to discover that I left the family gathered around the big screen Sunday night at 9:00, well before the final play, to watch my precious Downton Abbey in peace.  You will be surprised, if you haven’t yet watched the episode and still wish to, by the spoilers that follow, so read on, or not, accordingly.

The whole glorious Downton affair began with the sinking of the Titanic and the drowning death of Lord Grantham’s heir, Patrick Crawley.  It seems, however, that Patrick has returned.  At least, a badly burned soldier with the well-scrubbed accent of a British actor playing an American has arrived at Downton.  And he claims to be Patrick.  He knows things only Patrick would know, etc.  This all causes trouble for Matthew, the heir presumptive by reason of Patrick’s death, who is now in a wheelchair and is no good for anybody (except, you see, that at the very end of the episode, he hints that HE’S REGAINING THE FEELING IN HIS LEGS AND THERE IS STILL HOPE FOR HIM AND MARY!)

I promise you that my pathetic obsession with Edwardian and interwar England is not the point of this post.  I consider, instead, the problem of the apparent heir.

Patrick’s entry onto the Downton stage ties in nicely with the anniversary of Anastasia Tschaikovsky’s 1928 arrival in New York.  Anastasia, who eventually also called herself Anna Andersen, claimed to be the Grand Duchess Anastasia of Russia, daughter of Nicholas II. She was beautiful, she told an enthralling story, and she seemed to know things only a Romanov would know.  Who can forget the scene in the movie Anastasia when Ingrid Bergman’s nervous cough wins her the arms of the Dowager Empress?   Nevertheless, mitochondrial DNA testing would eventually prove conclusively that “Anastasia” was not a Romanov.

The history of England- and therefore, of the common law – is the history of probate.  Whatever Boudica might have preferred, the Anglo-Saxons went with male primogeniture.  The need for a male heir gave us separation of church and state, thanks to Henry VIII.   And the need of lesser born sons to make their own riches gave us, among  other things, capitalism, academia and the New World.  Those grand ideas aside, imagine your family in the position of the Crawleys or their literary cousins, the Bennets:  dependent upon the birth of a male heir, and failing that, upon the generosity of distant relatives.  Failing both, poverty, homelessness and ruin.

Our rules of evidence are in large part descended from the sanctity of primogeniture.   Holographic wills are disfavored (if accepted at all).  A document cannot be received as evidence until it has been authenticated.  A child born to a married woman is presumed to be her husband’s.  Hearsay is generally unreliable.

Now imagine yourself again a Crawley or a Bennet, except that a stranger has appeared, claiming to be the long lost son of your second cousin.  You may be delighted: this means you’ve defeated the entail!  Unless this person is not who he claims to be.   That possibility is worrisome enough that,  like the Crawleys, you turn the matter over to your solicitors for further investigation.

I do feel terrible for Lady Edith, though.  Here’s hoping they bring back the BBC Waking the Dead guy to marry her.

Oliver Wendell Holmes, Jr.’s The Common Law has fallen well out of favor.  Richard Posner and the Chicago school pretty much relegated it to the dustbin and I think that’s a shame.  Whatever side of the fence you’re on, you must admit that economics and law deal with individuals in markedly different ways.  When economic principles are invoked to influence behavior, they are invoked on behalf of whole classes of people: labor; the well to do; the “welfare class” (whatever that means); the middle class.  We don’t apply monetarism or game theory to Joe the Plumber.  (Sorry, I couldn’t resist that one.)  We apply those principles to huge clusters of individuals and concern ourselves little with the effect of a given policy on one person.

The law is not applied that way.  As a forward-thinking, behavior influencing set of principles it is helpful to think of the effect of laws on classes of people.  But the law is only partly forward-thinking.  Unlike economics, the law is inevitably called upon to decide the rightness or wrongness of acts which have already occurred.  Thinking of law in strictly economic terms, or for that matter, in terms of gender or race, is interesting but of no practical use in enforcing the social contract. 

Holmes was a leading American proponent of legal realism around the turn of the twentieth century.  The law at that time was being asked to accomodate a whole new set of social problems.  Railroads in particular made it necessary to craft new protections for workers and their families.  Accidents on the tracks influenced the development of contributory negligence principles, the notion of the “standard of care”, the existence of the duty to use due care, and causation.  Who doesn’t remember the fact pattern from Palsgraf?  Well, if you went to law school, anyway.  If you didn’t, you can read about it here:

You are wondering what any of this has to do with pearls.  I don’t blame you.  I am getting to that now.

Holmes the legal philospher and Supreme Court justice was the son of one Oliver Wendell Holmes, the doctor.   Dr. Holmes is remembered today as one of the Fireside Poets, a group which includes Henry Wadsworth Longfellow, John Greenleaf Whittier, and James Russell Lowell.   Dr. Holmes’ claim to fame is one poem and really one poem only.  It appears in most middle school or high school English textbooks and it is called The Chambered Nautilus.   

Like most poems of its time it is written in a pseudo-Classical style in regular meter and neatly rhyming lines.  The Fireside Poets are also called The Schoolroom Poets because their poems are well suited to memorization and recitation.  In other words, they are orderly.  There are no oddball near rhymes or rhythm shuffles to be worried about.  The reader or reciter can be assured that all will go well and that the appropriate applause will follow.   (How astonishing to consider that so few years separate Dr. Holmes and e.e. cummings!)

Dr. Holmes celebrates in his poem the “ship of pearl” that had “sail[ed] the unshadowed main” – nautili live in the deep waters of the South Pacific and Indian Oceans – and arrived at the shore only by reason of its death.  He considers that the nautilus, dead now, had built each chamber of the shell to live in as it grew, abandoning the smaller for the larger year by year.   Then he moves on to the “moral” portion of the poem so regrettably common to the Victorians and declares, famously: “Build thee more stately mansions, O my soul,/As the swift seasons roll!”  Dr. Holmes argues that the chambers of the shell represent intellectual and possibly spiritual levels of growth, to be discarded at death when no longer needed. 

And Justice Holmes seems to take a cue from his father in The Common Law:

The life of the law has not been logic; it has been experience…The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.

The Common Law (1881) at 1. 

For Justice Holmes, the law was the ocean, an undulating thing to be inhabited rather than mastered.   Concepts should be taken up and applied as appropriate and for the common good, but discarded when no longer so.  He advocated for what you might call judicial restraint, although I think his concept would not be recognized by the Scalias of today.  Holmes believed that judges too often inserted their own vision for the approach favored by the general population; and in fairness to those who critique him, he authored the Buck v. Bell decision, finding constitutional a statute that permitted the forced sterilization of the mentally retarded.  (If any decision argues against the legitimacy of true judicial restraint, this is it; unfortunately there are others, Dred Scott among them). 

In my mind, though, Holmes’ saving grace, and the saving grace of his approach to law, was his willingness to be flexible in the interest of the common good.  No doubt this will draw fire.  Jurists like Scalia argue that inflexibility is the only way to ensure, if not justice, then at least rationality.  The rich man will be deprived of a right – or granted a privilege – no less and no more than the poor man.

In reality that rarely happens.  People like Mark Dreier evade justice for as long as they do because their connections and wealth buy them time.  Justice Holmes’  common law would demand more of Dreier and his ilk than from the guy selling papers on the street.  His plea to jurists and lawyers alike:   “Don’t be ‘consistent,’ but be simply true.”