The Backbencher

How Many Scintillas Does it Take to Win?

One barrel of flour contains zero scintillas of evidence.

Time is measured in minutes. Sugar, in spoonfuls. Rain, in inches. 

Evidence, of course, is denominated in scintillas. 

Whenever a lawyer or judge wants to emphasize the lack of evidence in favor of some party or proposition, we hear that familiar refrain, "There is not one scintilla of evidence."

How did the scintilla become the recognized unit of measurement for evidence? We do not know precisely, but in this post, I present some of my own research findings.

An early prominent use of the scintilla can be found in the famous case of Byrne v. Boadle, 159 Eng. Rep. 299 (Exch. 1863). That case introduced the doctine of res ipsa loquitor to help out the unfortunate Mr. Byrne, who, struck by a barrel of flour that fell out of a building, had not a "scintilla of evidence" to prove that the barrel's fall was the result of any negligent conduct.

But the earliest use of "scintilla" that I could find was the dissent of a Judge Grimke of the Constitutional Court of Appeals of South Carolina in Frost v. Brown, a land-title case from 1798:

The U.S. Constitution: Not All that Well Written

I mean, it’s fine as a first draft, but if I were a law-firm associate, I wouldn’t turn it in to a senior partner without putting in a lot more work.

I am not a legal writing professor, and I suppose it’s a good thing I'm not. The fact is, if it were turned in to me as homework, I could not, in good conscience, give the United States Constitution better than a B-minus. And that’s with a healthy dose of grade inflation already factored in.

First of all, let’s look at the handwriting. It’s sloppy. You may not have known this, but the Constitution contains numerous interlineations.  In Article I, Section 3, explaining Senate procedure upon the impeachment of the president, there is this doozy:

 

 

The intended language is: “When the President of the United States is tried, the Chief Justice shall preside[.]”

The original uncorrected, verbless text is: “When the President of the United States the Chief Justice shall preside[.]”  

How can you screw up and write something like that unless you are totally mentally wandering while doing it. This is the Constitution of the United States of America for crying out loud. You’d think you could focus. And if you can’t get it right the first time, then I say grab another sheet of parchment and start from the top of the page. Where is the craftsmanship? Look, I can only imagine what a pain in the a** it would be to write out a long legal document on calfskin with nothing but an inkwell and a pen made out of a feather. Honestly, I couldn’t do it. But then again, I didn’t take the job. According to historians, it was a fellow named Jacob Shallus who did take the job.

And, honestly speaking, he kind of phoned it in.

There are a total of four interlineations in the original Constitution.[1] What’s worse, Shallus did a “my bad” about the mistakes, listing them next to the signature block on the past page – but, incredibly, he only noted three of the four interlineations! How lazy do you have to be to fail to count up all the dents you tried to knock out of your own work?

Okay, so the Constitution’s penmanship is annoying. But is it a real problem? Precedent suggests that it is. Frighteningly, the federal district court for the District of Columbia, where the Constitution currently resides, has declared legal documents unenforceable on grounds of sloppiness.

In Antonelli v. Senate Realty Corp., the D.C. court lowered the boom on a slapdash deed of trust with more than a note of scorn: “Certainly this document on its face has been so altered by interlineation and hand-printed additions as to make it legally obnoxious and unacceptable.”[2]

Yikes. Could it be that our Constitution is “legally obnoxious”?

Under the eyes of the law, perhaps. There is no Supreme Court opinion directly on point, so, for now, it is an open question.

One thing we do know is that the Constitution was a rip off. The U.S. government paid Shallus the princely sum of $30 for his calligraphy services.[3] That may not seem like much, but this was 222 years ago. Using the unskilled-labor inflation index, $30 in 1787 is equivalent to $10,694 today.[4]

That kind of government waste makes a $640 toilet seat for the Pentagon seem like a bargain.

Shallus’s bang-up job also included erasures,[5] a misspelling,[6] and wildly inconsistent capitalization.[7]

Now, I haven’t even started to talk about the actual text.

The text of the U.S. Constitution is replete with ambiguity. And I say that not because the Constitution is a great document that is at the center of a great story about great struggles over great freedoms and other great stuff.[8] It is because, at least in large part, the Constitution is a maze of passive voice, mismatched grammatical constructions, and awkward phrasing.

Take a look at the Second Amendment:

 

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

 

What in the heck is that supposed to mean?

Surprise, surprise: People disagree.

Analyzing the text, we can confidently make two observations: (1) If the amendment was intended to say that states have the right to give guns to their national guard units – and that’s the extent of the right – then the text clearly wouldn’t have been phrased the way that it was. (2) If the amendment was meant to give individual citizens the right to possess guns, without being part of a state-run militia, then the text clearly wouldn’t have been phrased the way that it was.

That leaves us with only one sure conclusion: The drafters shanked this one big time.

Incredibly, over thousands of pages of the United States Reports, our Supreme Court has not once used the words “poorly drafted” to describe the Constitution.

Yes, I checked.

We may need to revisit that hallowed quote of Ben Franklin, who, walking back from Independence Hall, was asked by a Philadelphia resident, a Mrs. Powel, what resulted from the Constitutional Convention.

Famously, Mrs. Powel heard Franklin say, “A republic, if you can keep it.”

It seems quite possible that Franklin’s actual words were, “A republic, if you can read it.”

---

[1] U.S. Const. art. I, § 2 (“the”); art. I, § 3 (“is tried,”); art. I, § 10 (“the” in two different places).

[2] Antonelli v. Senate Realty Corp., 230 F.Supp. 776, 779 (D.D.C. 1963).

[3] See Irvin Molotsky, N.Y. Times, September 17, 1987 at http://www.nytimes.com/1987/09/17/us/the-constitution-it-s-200-years-old-and-it-certainly-has-been-around.html.

[4] See Samuel H. Williamson, “Six Ways to Compute the Relative Value of a U.S. Dollar Amount, 1790 to Present,” MeasuringWorth (2009) at http://www.measuringworth.com/uscompare/.

[5] U.S. Const. art. I, § 2 (“thirty”); art. I, § 3 (“may make”).

[6] U.S. Const. art. I, § 10 (“it’s” in “except what may be absolutely necessary for executing it’s inspection Laws”).

[7] See, e.g., U.S. Const. art. I, § 2 (“vacancies” and “Vacancies”). See also art. I, § 8 (“credit” in “To borrow Money on the credit of the United States”) and art. IV, § 1 (“Credit” in “Full Faith and Credit”); art. I, § 2 (“Executive” in “the Executive Authority thereof shall issue Writs of Election”) and art. II, §1 (“executive” in “The executive Power shall be vested in a President”).

[8] Though it is, of course.

[Cross-posted on PrawfsBlawg.]

Stdnts: U. Shld. Try Out for L. Rev.

Ah, spring! To borrow some words from Browning and Tennyson: The hill-side's dew-pearl'd, the lark's on the wing, and a young law student's fancy lightly turns to thoughts of law review ...

Perhaps as many as a third or even half of law students try out for their school’s law review. Why? Of course, it has nothing to do with how prestigious law review is, it is instead because of these students’ sincere love for legal abbreviations.

Students doing law review spend a lot of time making sure things are abbreviated properly. The Bible of legal abbreviations is the “Bluebook,” a style manual concocted by a group of student-run law reviews from various schools in order to “greatly simplify”1 the process of writing and editing their articles.

The Bluebook has made important contributions to the advancement of human society. For instance, one great achievement of the Bluebook was the abbreviation of the word “law.” After many years of working with this awkward and unwieldy word, editors suddenly hit upon the idea of replacing it with the abbreviation “L.” Scholars have now had decades added to their academically productive years by the cumulative time savings of not having to read so many unnecessary aw’s.

The following is a REAL abbreviation from the Bluebook, if you don’t believe me, you can look it up on page 159 of the 16th Edition:

Eur. Consult. Ass.

It stands for European Consultative Assembly, and apparently, it is used so often in legal scholarship, that the law review folks wanted it to have its very own abbreviation, thus saving scholars countless hours by not having to type, “opean,” “ative” and “embly.”2

When people talk about going to law school to make people’s lives better, this is exactly the kind of work they’re talking about.

Eur. Consult. Ass. sounds bad enough. But what about when you need to abbreviate just "European Assembly"? Um, Beavis? You just subcited “Eur. Ass.”.3 Heh-heh heh-heh.

HEY NOW! Don’t you dare sigh and roll your eyes! If you’re put off by the semi-obscene content of the Bluebook, then you take it up with the people responsible. It’s not my fault.

While Bluebook abbreviations have allowed great time-savings in terms of reading and typing, it is true that the obscure referencing system has caused lawyers, judges and academics to spend days, or even weeks, trying to figure out abbreviations such as “S. Exec. Doc. W. ”4

Nonetheless, a greater good is done in that over the decades, Bluebook abbreviations have saved approximately a third of an ounce of the world’s ink supply. Cost adjusted for inflation, this is a savings of nearly 1.4 cents!

Tireless workers that they are, law review editors will abbreviate a word even if they can only trim just a couple of letters off. For instance, Sweden, Russia, Brazil and Turkey are, respectively, Swed., Russ., Braz., and Turk.

After seeing those, you might be shocked to learn that they refused to abbreviate “Mauritania,” “Cote d’Ivorie” or “Sao Tome & Principe.”

Oh, you say, those countries are too obscure to abbreviate. OH YEAH?? Check this out: Greece, a country of 11 million, gets spelled out, BUT the Seychelles — an Indian Ocean island nation of just 78,000 people — gets the abbreviation “Sey.”

At this point, “#@*%$&@#$?!??!?!?!” is an excellent question you may have. And you know what? I have no idea. But I’m sure they have their reasons. And after you make law review, I hope you’ll call me up and tell me what you find out.

Gd. Lk.! Th. nat’n of Sey. is cntng. on u. ...

________________________
Footnotes:

1. Admittedly, my words.

2. “Eur. Consult. Ass.” has been used in all of 46 law review articles, per Lexis, as of April 21, 2008.

3. See James Barr Ames, Novation, 6 Harv. L. Rev. 184, 186-187, n.3 (1896).

4. “S. Exec. Doc. W.” has appeared in a total of three law review articles, per Lexis, as of April 21, 2008.

[I wrote this Backbencher classic when I was a 1L. Some editing aside, this content originally appeared in the Harvard Law Record in 1998.]

Model Answer: My Contracts Exam

Law school exams are just around the corner. And law students are no doubt wondering, what do the best law school exam answers look like?

What if I could give you a peak at a law school exam response written by a law professor in the making?

Well, I’ve decided to give you a chance to see the tender genius of MY VERY OWN EXAM RESPONSE from back when I was in law school. So here, in its entirety, is my essay for Contracts. I think you will see that it was, in a word, innovative.

EXAM RESPONSE - CONTRACTS:

JJ might argue that the contract is unenforceable because he crossed his fingers while signing it. Finger crossing voids all promises. LL could counter, however, that JJ had two fingers crossed, which would erase the effect of the original crossed fingers, and LL could enforce the contract. But if JJ crossed his legs as well as crossing fingers on both hands, then the contract would be invalidly held as invalidly invalid, and JJ would not be bound. (I think.)

Alternatively, LL could contend that he said out-loud "no crossies" while JJ was signing the contract. This would invoke the parol evidence rule. The key things to remember about the parol evidence rule are: (1) it is a doctrine of contract law, not evidence; (2) it has nothing to do with "parole"; and (3) it is not really a "rule," but is more of a "guideline." For these reasons, on the facts presented, the parol evidence rule would bar consideration of the rule against perpetuities.

Still another defense that JJ can assert is that the contract lacks "consideration." Since JJ signed the contract without reading it, it is pretty clear that he did not really "consider" it at all. Thus, we must look to the "mailbox rule." The mailbox rule is that all mail weighing more than 13 ounces that bears postage stamps must be taken to a retail post office. Based on the facts presented, since JJ's contract was only two pages, it does not weigh too much, and therefore the mailbox rule will not apply.

If JJ continues to want out of the deal, JJ could simply wait until next Tuesday and say it's "Tuesday Take-Backs Day." He could then "take back" the contract. Unlike the crossies, there is really nothing LL can do to defend against Tuesday Take-Backs Day, which is why LL is likely to try to "settle the case" before next Tuesday.

We Must Use Big Words

As law professors, we must use big words.

Nay, allow me to restate, viz., it is incumbent upon us to deploy brobdingnagian lexemes.

Coming from a journalism undergraduate education, I grew up with a disdain for big words. If something can be said simply, so much the better.

But I have grown to have a different perspective as a law professor. When teaching class, if a big word pops into my head, I drop it like it’s hot.

Why? I figure it’s my responsibility. If we, the learned academics, don’t use the big words, who will? If language goes unused, it withers and dies. And, hey, there are many words out there, which, while no one really wants to use them, it would still be nice to keep them technically alive. Thus, someone must use them. That someone – especially when it comes to legal words – is us, the lexerati.

I’m doing my part. In fact, I’m liable to use big words even if I am not entirely sure what they mean. Many people would be mortified at the thought of misusing a word in front of a bunch of people. Not me. As a scholar, I figure, it’s my job to have new thoughts, to introduce original ways of looking at things, and, as I see it, to use words in entirely novel ways.

More than that, I figure it’s also my job to make up completely new words. So if something pops into my head, and it sounds like a word, I’ll just say it.

I’d give you some examples, if I could, but I can’t. How am I supposed to know what words I’ve made up or misused? No one is going to tell me they know better. Hello! I’m a law professor.

But I am confident that I’m using at least some words incorrectly. How can I be so sure? It’s a numbers game. Big words are so omniscient in my vocabulary, the odds are nanotesimally small that I’ve used them all correctly and that they all, in fact, exist.

A close friend of mine in law school – who was born with a severely reduced capacity for embarrassment* – once interrupted her federal courts class to ask what the word “precatant” meant. It was about the tenth time in as many minutes that the professor – one of the nation’s leading legal scholars, I might add – had dropped the word into the lecture. So finally, my friend couldn’t stand it anymore, and she just raised her hand and asked what the heck it meant.

Uproarious laughter ensued.

“You’ve never heard of the word?” the prof asked incredulously. He nonetheless obliged by reciting the definition of “precatant.”

Now, here’s the funny part: “precatant” is not a word. (The prof apparently meant “precatory.”) Or, I should say, “precatant” wasn’t a word, at least not until it was used by one of the nation’s leading legal scholars.

I think the English language will withstain.

________________________
* to whom I am now married

Can I Wear a Backpack Even if I'm a Law Professor?

I have recently ditched my messenger bag for a backpack. Is it okay for a law professor to carry a backpack to school? My wife says I look too much like a student. Now, maybe the backpack doesn’t look all that professorial – and I do want to look professorial – but the backpack is easier on my aching back than the messenger bag. And back problems, it seems to me, are very professorial. Or at least old-sounding.

My wife, Kit, is unconvinced. I explained to her that with a backpack, wearing a suit, I look like Josh Lyman from the West Wing. Kit thinks it is “silly” for me to model my fashion choices after a fictional senior White House staffer.

Kit thinks, instead, that I should model myself after a government counter-terrorist agent who breaks all the rules. That is to say, she only wanted me to carry a messenger bag after Jack Bauer ran around with one in Season Five of 24.

Granted, I’m sure everyone is instantly reminded of Jack Bauer when they see me hobbling to class, bent-spined – and rogueishly good-looking, of course – as I fumble for aspirin in my man-purse, gingerly making my way as I try not to slip on the black ice in front of the library.

I’ve got to tell you, I am truly terrified of falling on the ice. The mid-March thaw in North Dakota brings a fresh film of disgusting black water to every ice-packed sidewalk in town. The last thing I want to do is take a digger in front of a crowd of 1Ls.

Even worse, I’m afraid I may have reached that age where, instead of saying “Professor Johnson fell,” they will say, “Did you hear? Professor Johnson ... ” lowering their voice to a whisper, “had a fall.”

And that’s the last thing I need after a couple of weeks ago, when I badly pulled a muscle in my neck. Do you know how I injured my neck? That the best part. I was – get this – moving to sit down on the couch. Yes. That’s it. MOVING TO SIT DOWN ON THE COUCH.

I was in so much pain I couldn’t move at all for several minutes. You would think, since I’m a torts teacher, I would know enough not to get a soft-tissue injury while I am alone, at my own house, not even holding a product.

So for days I strode around in front of class unable to swivel my head independently of my shoulders. I’m sure THAT looked very professorial.

It’s Never Too Late to Do Better on the LSAT

Hey law students, still suffering feelings of inadequacy about your LSAT score? Hey, who couldn’t use a little boost? Remember, your fellow law students are not as easily impressed as your parents and high school guidance counselor.

And here’s the best part: You don’t even have to take the test again! This is part of a whole new test-taking strategy that I am developing. My slogan is:

The LSAT: Don’t Prepare, Repair!

That’s correct! Switch your focus from what you do before the test to what you do after the test! No matter how well you did on the LSAT, you see, your score can be made vastly more impressive through the judicious use of a few well-placed excuses. Quick quiz: Who got the more impressive results on the LSAT?

a) Joe Bloggs scored a 161.

b) Beth Bloggs - after never having looked at a test-prep book — drank a case of Keystone Light and got 20 minutes of sleep the night before the test, and was then awakened by her boyfriend calling to break up with her, after which she scored a 149, even though she really wanted to go to business school at the time and didn’t really care how well she did.

Beth Bloggs by a mile and smile! That’s a future senator there! You may ask, “Okay, but is this fair?”

Yes it is — and here’s why: The actual question-and-bubbletron portion of the LSAT is an extremely poor predictor of your success in law school and your legal career. Ordering colored beads on a necklace according to rules such as “Every green bead must be next to an orange bead,” is a skill which — believe it or not — is entirely useless in the world of law. On the other hand, your ability to embellish stories, hide mistakes and pull facts straight out of the thin air is not only highly indicative of your potential, it’s practically essential to your mere survival in the legal profession!

The LSAT, in fact stands for “Law School Admissions Test,” because it tests whether or not you are naive enough to admit that you worked hard to prepare for the test and still didn’t do as well as you would’ve liked.

I know what you’re all saying, “But I was asked to order colored beads on necklaces for three months straight at the law firm I worked at over the summer.”

Whoops! If you didn’t immediately work up some story about your vicious bead-specific carpal tunnel syndrome, then you didn’t pass the test. If you were really working it, you would have cut off the circulation at your wrists until your hands swelled up blue, and then staggered into your supervising attorney’s office and passed out. They love that stuff.

“Okay, smarty pants,” you’re saying, “So if you know so much, how well did you do on the LSAT?”

Well, as a matter of fact, after dealing with the traumatization having been beaten with No. 2 pencils and orange beads throughout my childhood ...

________________________
[I wrote this Backbencher classic when I was a 1L. Some editing aside, it originally appeared in the Harvard Law Record in 1997.]