STILL TIMELY: A 14TH-CENTURY CASE OF OF ASSAULT

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[This is the second of the two lessons from law school I mentioned in my last post.  The first was instructive. This one’s illustrative. Anyone following the circus surrounding the Judge Kavanaugh confirmation hearings in the United States Senate will be able to find connections with the seven-hundred-year-old foundational case on assault recounted below.]

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THE ILLUSTRATIVE CASE OF I. de S. and WIFE

(At the Assizes, 1348)

In France, where the legal system is based on the Napoleonic Code, law students spend five years learning the nation’s codified statutes. By contrast, in the United States, law schools generally follow a three-year instructional method developed at Harvard Law School during the mid-nineteenth century which is based on the study of decisional law  — that is, the study of how individual cases in the major branches of law were decided and why. These decisions are collected in casebooks, and assigned — usually three at a time in each course — to be read, outlined and assimilated sufficiently to enable the student to explain the court’s reasoning if called on.

Not surprisingly, it tends to be the earliest cases we read in the first weeks of law school, when all this was new, which linger long in the mind even after the student becomes a real lawyer and confronts contemporary problems which may have little, of anything, to do with those long-ago decisions. I will probably remember into the grave an early nineteenth-century property case, Pierson v. Post — otherwise known as “Who Owns the Fox?” It concerned a man (Mr. Post) who was chasing a fox, apparently for some time, without having come close enough to injure or capture it. Then another fellow (Mr. Pierson) spotted the fox, and did wound and capture it. In the end, who was entitled to the fox, or what was left of it?  Hint: effort is not enough.

Another first-year case recently surfaced in my mind around the time the #metoo hashtag was born. It has refused to go away ever since — especially after Dr. Christine Blasey Ford accused Judge Brett Kavanauugh of sexual assault. It’s the fourteenth-century case of I. de S. et ux. This was the very first tort case reported in Anglo-American case law, and the first case I read in law school. I think “I.” stood for “Isaac.” I’m not sure where “S.” was. Suffolk? Smithfield? Sheffield?  “Et ux” means “and wife” in Latin.

Now we come to a glossary of terms from lawyer-speak. Lawyers have an English language all their own; after you learn it, you tend to forget that non-lawyers may not be sure what you mean. I just mentioned “Anglo-American law.” American law derives from English law.  No big surprise there. We were English colonies before we went off on our own. English law was all there was. Moreover, the law is thrifty; it keeps everything that gets decided, and builds on it. Even after a revolution. It’s all “stare decisis” — meaning “it stands decided.” So early English common law decisions crossed the Atlantic with early settlers and became the antecedents of our own common law.

I referenced “case law.” It’s also known as bench-made law. Or common law. (In contrast to statutory law enacted by legislatures. Although there’s also bench-made law construing statutory law, including of course the Constitution.) It’s what judges decide, usually on appeal, after all the factual evidence is in, and after they’ve considered all the relevant case law that came before.

I called “I. de S. et ux” a “tort case.” A “tort” in the law is not a misspelled Austrian pastry. It’s a branch of civil law having to do with various kinds of intentional or negligent harm people inflict on each other — excluding breach of contract, which is part of contract law. It has to be harm for which the court can provide relief, usually in the form of financial compensation.

“Civil law?” Not criminal law. No jail time. No executions. It can get expensive, though.

Ouch. But how can I tell you about I. and his wife, who both lived in S. in the middle of the fourteenth century, without the vocabulary? Anyhow, that’s all out of the way now. Onward!

As I recall — and it’s been a while so some of the details are fuzzy — I. was a tavern keeper. After he had shut up shop for the night, W. — also of Suffolk, or Smithfield, or Sheffield — came over to buy some wine and found the tavern door bolted. He had a hatchet with him, and swung it at the door, cursing and “caterwauling” near the window.  I.’s wife stuck her head out and told him to stop the noise, whereupon he swung at her with the hatchet too. Although he didn’t hit her, she was “afeared” that he would. I. — her husband — went to the local assizes, which functioned as a court of law in the counties, and brought suit against W.

The judges decided there had been an assault, even though W.’s hatchet hadn’t actually touched or cut I.’s wife. It was the first actionable tort, and its facts provided us, the students, with the legal definition of assault. It’s any intentional act or conduct which creates in another person a reasonable apprehension of imminent bodily harm. Stare decisis. Significant words that will be on the exam: (1) intentional; (2) reasonable; (3) imminent; and (4) bodily. But never mind that.

What was really significant — to me and all the other women in the class — which in 1983 was 50% of us — was I.’s wife. Because she was so in-significant. She had no name. She had no right to bring her own complaint. I. had to do it instead. In the eyes of the law — which were the eyes of the contemporaneous fourteenth-century world — she was not a person, and therefore could not be injured. She was I.’s appendage, his property, his chattel.  (Not so different from the fox in Pierson v. Post five hundred years lateralthough the legal issue was different there.) Frightening her — by causing her to experience a reasonable apprehension of imminent bodily harm — was an injury to him, for which he was entitled to compensation. Perhaps he loved her, but the law wouldn’t care about that. Perhaps he went to court because W.’s assault had made her too “afeared” to work in the tavern. We will never know. In any event, we will probably say it sounds nuts, and thank goodness we’re not living then.

Not so fast. As recently as the mid-twentieth century, when I was in college, a wife in some states still couldn’t sue her husband, except — under certain limited circumstances  — for divorce. If the brakes on his parked car failed and the car rolled down the driveway and hit her as she was coming in from the street with the groceries — she couldn’t file a claim against his insurance company. Why not? Because of the time-honored legal doctrine of marital harmony, with which the courts, and the insurance company, chose not to interfere. Man and wife were one flesh, went the reasoning. So how could a man pay himself through his insurer for hurting his own flesh?

The Marital Harmony Doctrine may have finally faded away. And now we have decades of state and federal legislation prohibiting sexual discrimination and harassment in the workplace. But much of the country sat glued to their televisions or other devices a few weeks ago as the Kavanaugh confirmation hearings touched on “boys will be boys” conduct in high school and the hallowed halls of Yale — conduct demonstrating that when some young men get drunk and their inhibitions dissolve, at bottom they still believe women are not quite people but prey — prey for touching, and grinding against, and sexual manhandling, and also fair game for sexual conquest by any means. A woman is still — to too many men, including those no longer young — not quite an autonomous person but flesh to be grabbed or bargained for when the woman appears not to belong to — that is, be the property of — a husband or father or other man.

This did not of course begin in the 14th century with I. de S., his wife, and the assizes court that awarded him compensation for her having been made afraid that a would-be customer was about to hurt her.  In reading a biography of Cleopatra, I learned that the Romans of the pre-Christian era were surprised to discover Egyptians of that time treated women as the equals of men, permitting them to own property and run businesses by themselves without oversight or supervision. The Romans themselves were required to raise only the first-born of their daughters; they could dispose of any subsequent others at birth if they so wished.

But I digress. To sum up: long after I shall have forgotten just about everything else I learned about the law in law school, I will probably go on remembering I.’s nameless wife. Not for the definition of assault with which she provided us, but for how her husband’s case illustrates millennia of male attitudes towards women. Unfortunately, I very much doubt Mrs. I. de S. will become a mere historical curiosity in my lifetime.

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LIFE LESSON FROM LAW SCHOOL

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[As some of you may know, I became a lawyer in my mid-fifties.  The process of becoming one has therefore probably remained clearer in my memory than it might have been if I had done it in my twenties. I’ve even occasionally blogged about certain aspects of law school that seemed to me to remain relevant to life outside the law.  This piece, and the one to follow, appeared in “The Getting Old Blog” about four years ago. But who digs back in the archives that far? So here they are again, in slightly different form — because they’re still useful to me, even now that I’ve embarked “On Being Old.” This lesson is instructive.  The next one will be illustrative.]

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WHAT TO DO WHEN YOU’RE TOO NERVOUS TO DO IT

In England I believe it’s known as “reading law.” That makes it sound very grand, although I understand you can get right to it after finishing secondary school, as long as you’ve passed three A Levels in “hard” — that is traditional academic — subjects. Here in the United States, it’s just called, quite casually, “going to law school.” But you need four years of college or university education and an undergraduate degree in something or other in order to apply.

Nonetheless, unlike many other graduate programs, and contrary to what you may have thought, law school is much more a glorified trade school than an immersion in higher thought. When you finally acquire the J.D. degree — “J.D.” meaning juris doctor, or doctor of law — you’re not yet entitled to practice. There’s another hurdle ahead: you must take and pass one last big test in a state or states of your choosing. And that’s what you really need the J.D. degree for. It’s your entry ticket to “sitting for the bar.”

“Sitting for the bar” means you register to take, and then actually take, a two-day examination — three days if you’re sitting for two state bars at a time. Each day’s part is six hours in length, with an hour’s break after the first three hours for lunch and for standing in long bathroom lines. It’s administered in a huge aerodrome or covered stadium designated by the state in question as the place where its bloodless torture takes place twice a year. The size of the venue is driven by the fact that as many as 1500 newly minted J.D.’s may be taking the bar exam at the same time, in addition to the ones who failed their first or second try and have to try again.

Only when you’ve at last “passed the bar” may you finally proceed to the practice of law, and find out how little you really learned about it in law school. You will either (1) become an associate at a private law firm; (2) find a municipal, state or federal government job as a lawyer; (3) go what is called “in house” as a member of the legal staff of a corporation; or (4) “hang up your own shingle” — quaint phrase — usually because none of the other three possibilities have panned out.

But let’s back up. Although I don’t know what’s involved in learning how to be a plumber or electrician, I imagine the subject matter to be mastered for those trades must be broken down into manageable bits.  So it is in law school. Allegedly learning how to be a lawyer is broken down into various subject matters to be mastered, most of them in year-long courses. The specific choice of first-year course work may vary from law school to law school. In the end, however, all law schools will cover the six courses we took during my first year. Four of them ran from September through May: Property Law, Contract Law, Tort Law, and Civil Procedure. A fifth course, in Criminal Law, was tested at the end of the first semester and replaced in the spring by Constitutional Law, which was tested at the end of May, together with the four that had run for the whole year.

That’s right: five examinations at the end of the first year — and the first and only examinations we would have on each of those five subjects. Each exam lasted three hours, and consisted of three long-paragraph accounts of complicated hypothetical fact situations which between them raised every possible legal issue that had arisen in any case discussed or even mentioned in that course since September. We were advised to write for an hour on each hypothetical, but for no more than an hour, quickly identifying and explaining every legal issue we had spotted. Bathroom break? Take it at your peril! Leaving the room would mean less time to write, fewer issues spotted. Brilliance on one hypothetical did not compensate for ignorance on another. Failing an exam meant having to repeat the year-long course. Doing poorly in any exam adversely affected one’s class rank, an extremely important consideration in securing a first job — unless one of your parents or relatives knew somebody.

Understandably, there was much growing tension in the classroom as the weeks of May rolled by. Many of us, myself included, were there on federally backed student loans which would need to be repaid irrespective of the outcome of these exams. Some students were the first in their families to go to graduate school. Not making it would mean not making a family’s dream come true. The school had thoughtfully provided a ten-day study period following the end of classes before the first exam was scheduled to take place. But how do you study when you’re too nervous to focus on anything except the possibility of impending doom?

The youngest of our professors was an attractive woman who may have been a bit past thirty but certainly no more than thirty-five. This was only her second year as a member of the law faculty. It was known that she had taught fourth grade for a few years before going to law school; she brought a touch of the kindly and patient manner with which one instructs young children to teaching us, which was perhaps an error of style when addressing an auditorium full of twenty-somethings, plus me. What’s more, although she taught Civil Procedure — which governs courtroom practice in civil cases –she had never actually practiced law. She may not have even sat for a bar. She was slender, shapely, had great legs, and wore high heels to show them off — which was much appreciated by the young men in the class but did nothing to enhance her reputation as a professor to be respected for her knowledge.

On the final day we met with us, she did a quick review of what we might anticipate could be on the Civil Procedure exam. At last she put down her pointer and chalk, turned to us, and said she knew we were all very nervous. She had been through it herself not so long before, so she understood completely. And then this pretty woman with the gorgeous gams said something so important, and so applicable to so many other aspects of life, that I’ve never forgotten it, although by now I’ve forgotten almost everything I memorized that year.

“You may be so nervous,” she said, “that you’re too nervous to study. So this is what you do.”  Now no one was looking at her legs. We were all listening very carefully. “What you should do when you’re too nervous to study,” she said, “is study. And then the nervousness will go away.”

I was nearly fifty-two, as old as the mothers of my classmates. They called me Mrs. Mishkin very politely, but not one of them had invited me into a study group at the beginning of the year. I had to do all the class outlines by myself. I hadn’t taken an exam, except the one in Criminal Law, for twenty-seven years. The word “nervous” doesn’t begin to describe my state of mind. My husband had been out of work for well over a year. I had two adolescent children. I had done this all on loans. But I took her advice. And studied. And studied. And studied some more. And the nervousness did go away.

When the class rankings were posted after the grades were in on all five exams, I found myself tied for first place in a class of 345. That rank opened doors for interviews in major Boston law firms, despite my age. One of those interviews — and all it takes is one — one of those interviews led to a job that brought money into our family again, paid for braces, sneakers, music lessons, good private schools.

That’s why what I heard on the last day of the Civil Procedure class in May 1983 was the most useful lesson I learned in law school. There would be many more nervous-making situations ahead, beginning with sitting for the bar. Then came standing up in court in front of judges known to be misogynist. Leaving a marriage after twenty-two years. Being let go in my sixties and having to find respectable, interesting work again at that age. More recently needing to pull myself up from a nearly fatal medical experience and its aftermath. But I’ve never forgotten that when you’re too nervous to do something, just do it. The nervousness will go away. And then who knows what good things will happen next?