Trial By Combat in New York?

A friend sent me this post by Eugene Volokh commenting on a colorful brief filed by Richard Luthmann, a Staten Island attorney. This paragraph from near the end of the document sums up the attorney's position:

The allegations made by Plaintiffs, aided and abetted by their counsel, border upon the criminal. As such, the undersigned respectfully requests that the Court permit the Undersigned to dispatch Plaintiffs and their counsel to the Divine Providence of the Maker for Him to exact His Divine Judgment once the Undersigned has released the souls of the Plaintiffs and their counsel from their corporeal bodies, personally and/or by way of a Champion.

Luthmann is seeking to resolve the dispute through trial by combat, and throughout his brief he goes into great detail about the history of trial by combat in England. He argues that trial by combat is a permitted method of dispute resolution in the United States because trial by combat was legal in England when the original United States colonies were formed, and United States law inherited the English common law of the time. Accordingly, Luthmann argues that under the Ninth Amendment, he has the right to have the case decided through trial by combat.

Full coverage of the case can be found here. Above the Law also summarizes the case here.

While Luthmann may be correct that trial by combat was never officially outlawed in the United States, I suspect that his quest to have his case decided through trial by combat is doomed to fail. Adam Winkler, quoted in this Business Insider article, notes that while the common law inheritance argument may be technically correct, no court would adopt the trial by combat approach. And I suspect that Luthmann's claims of a Ninth Amendment right to trial by combat would run into Seventh Amendment problems were the other party to the suit to invoke the right to a trial by jury, since the Seventh Amendment preserves the right to a trial by jury in civil cases involving a dispute greater than $20.

If Luthmann or another party really wishes to have disputes resolved through trial by combat, a better course of action may be to enter into a contract that states that trial by combat is the agreed-upon method for resolving disputes that may arise under the contract. This is what Raj Shah and I argue in our article, Arbitration by Combat, which was very recently published in the Media and Arts Law Review and which I summarize in this post. I will be sure to announce when the full article becomes available on SSRN, so trial by combat enthusiasts should stay tuned!

The Law of Pews

I finally finished R.H. Helmholz's Roman Canon Law in Reformation England. While most of my friends have reacted to my reading this book with disdain, furrowed brows, and concern for my sanity, I maintain that the book, while arcane at times, contains numerous fascinating anecdotes and important insights regarding legal history. I have blogged about several of the more interesting subjects Helmholz discusses here and here.

On finishing the book, I thought that I would share one final, humorous passage on the law of pews:

The law of church seats or pews provides a different but equally clear example of this attitude [of resisting change to spiritual courts' jurisdiction] held by civilians. Large numbers of causes dealing with this strange and trivial subject are to be found within contemporary act books. Evidence about men sitting obstinately in each others' laps, or putting tacks on the seats to keep their enemies from sitting there, figured in contemporary litigation. In these causes, the normal issue of law (slightly simplifying) was whether or not one could acquire a right to a particular seat by sitting there long enough. That is, the outcome of the litigation turned on the law of prescription. Men fought intemperately over who would sit where on a particular Sunday, precisely because they wanted to guard against any interruption of their prescriptive and customary rights. 

Regrettably, no simple and definitive answer to the underlying legal question about pews was ever given. At least none emerges from the records. One opinion held that nothing within a church could be prescribed because it was res sacra. Another was that possession time out of mind could raise a presumption that the right had been legitimately granted. I have not been able to tell which eventually prevailed, if indeed either did, though the persistence of the question suggests that the first view did not carry the day. For present purposes, however, the important fact is that discussion and resolution of the issue went on in spiritual courts without the slightest reference to the English common law. The judges of the ecclesiastical courts treated questions about the existence and validity of this particular sort of custom as belonging fully within their own sphere of determination. (176-77).

While the book was at times dense and difficult to approach, I must acknowledge that I approached the subject matter as somebody with limited knowledge of history and virtually no formal historical education. Even so, I found Helmholz's discussion of the legal community's transition from spiritual law to common law enlightening and often fascinating, and I was struck by the breadth of original case law Helmholz draws upon in reaching his conclusions.

Charles Donahue Jr. reviews Helmholz's book here, and you can find the first sixteen pages of the book here. Here is the Amazon page for the book as well.

An Early Version of Sexual Harassment Law in the Ecclesiastical Courts

From R.H. Helmholz's Roman Canon Law in Reformation England, (Cambridge Univ. Press, 1990), I learned about the process of ex officio proceedings in the English Ecclesiastical Courts in the sixteenth century. Helmholz writes that these proceedings concerned the "enforcement of the Church's rules relating to morality and personal conduct" (104) and covered a wide range of offenses.

The sixteenth century saw an expansion of ex officio proceedings and enforcement. Helmholz writes:

Conduct in and around one's parish church was more closely regulated by the ecclesiastical courts than had once been true. Interrupting the parson's sermon, throwing a snowball in the churchyard, sitting obstinately in the wrong seat, wearing one's hat during the reading of the Gospel, even being a "common sleeper" during church services; all could subject the offender to a required appearance before a spiritual tribunal. A mother's failure to appear for "churching" after the birth of a child was cause for citing her. So was marrying in a church during a prohibited time of the year. Equally punishable was speaking abusively against the churchwardens. The best that any of these offenders could hope for from the courts was dismissal with a warning not to repeat the conduct. They almost always had to pay court fees, and very often to contribute something towards relief of the poor. Elizabethan and Jacobean act books, though dominated by the prosaic sexual offences that were their medieval inheritance yet made room for new wrongs. (112-13) (footnotes omitted).

As Helmholz mentions at the end of that passage, ex officio proceedings had historically been concerned with sexual offenses. And while new prosecutions arose for different types of conduct, the sexual offense prosecutions remained.

Helmholz notes that new types of prosecutions arose in the sexual offense category as well:

Birth of the tort of "attempting the chastity" of a woman also belongs to this period. The terseness of most act book entries makes it difficult to generalize about the offence, but it is clear that it required no use or even threat of force. Little more than a serious and perhaps persistent proposition of sexual relations seems to have been all that lay behind most such prosecutions. A man from the diocese of Bath and Wells, for example, was prosecuted in 1621 for having so "very earnestly" solicited the chastity of a woman that she could allege an inability to "go quiet" on his account. A few of the ex officio causes tempt one to see in them antecedents of the modern notion of "sexual harassment." (111-12) (footnotes omitted).

From other research that I have been doing in the area of character evidence in sex offense cases (related to the issue I discuss in this post), I have learned in painful detail just how the early English courts, and early American courts, left a great deal to be desired when it came to treating women with respect. In light of this, it is interesting to learn about the existence of a tort under which men could be punished for propositioning women absent any physical force or threats of physical force. 

Knowing about the sad state of early law towards women deemed "unchaste," I expect that there were still many sexual propositions that went unpunished. But the existence of a tort that punishes sexual propositions is an interesting nuance in the history of this area of law.

Criminal Punishment for the Theft of Virtual Items?

From Erica Buist at The Guardian:

All right, own up: did you steal Mike Weatherley's sword on World of Warcraft? If so, you'd better watch out. He's really upset about it. So much so that, as David Cameron's chief adviser on intellectual property, he has asked ministers to consider passing a law that would mean people "who steal online items in video games with a real-world monetary value receive the same sentences as criminals who steal real-world items of the same monetary value".

. . .


"If you've spent £500 building up your armed forces and someone takes them away online, I guess you can feel hard done-by and you want your £500 back," he told Buzzfeed. He also pointed out: "The perception from some people is that if you steal online it's less of a crime than if you steal physically." 

It's hard to argue with his logic. Gamers spend a lot of money on virtual items, and invest time in building armed forces or gigantic warships. These things may be nothing more than a collection of pixels on a screen, but the money isn't virtual, and neither is the time, or the feeling of having been robbed.

Buzzfeed also covers this proposed law.

I agree that some aspects of online theft are similar to theft in the real world. Many online items are purchased with real money. Thieves can steal these goods under the pretense of exchanging or trading items, but then leaving upon receipt of the valuable goods. This entry in a World of Warcraft forum is an example of such a fraudulent transaction. Law students studying for the bar should recognize this as something resembling the quirky crime of larceny by trick.

But there are crucial differences between the theft of physical items or money and the theft of virtual goods in an online environment. Blizzard, the company that makes many of these online games, warns players of these online scams, but also says that they will "assist where possible" when a scam can be verified. And as the players in the earlier forum mention, if there is a chat record that details the fraudulent transaction, the player can usually receive another copy of their virtual good, and the person who stole the good will probably be banned.

If somebody can receive an identical copy of their stolen good once it is stolen, and if offenders face effective exile from the online world in which the theft takes place, I am not sure that prosecuting online thieves would be a constructive undertaking. It makes sense to criminalize online theft that results in the loss of money from a person's bank account (say in instances of identity theft). But when the theft deprives somebody of a virtual item that can be replaced with an identical item without cost to the website, the theft, while fraudulent, does not seem to cause enough harm to warrant criminal prosecution.

Guardian Article Either Poorly Written, Or Law School in England is Very Different from US

I came across this article in the Guardian that gives advice to students in England who are planning to study law. The article is written for students who are finishing secondary school, since law school is an undergraduate course of study.

But beyond that plain difference between the English and US systems of legal education, there were a few other passages that led me to believe that law school in England is very different from American law school. Here are a few parts of the article that led me to this conclusion:

Having a clear vision of why you are studying law, whether it's to pursue a career as a barrister or because you look sharp in a suit, will give you the motivation to succeed if you are struggling to get to grips with the subject. 

. . . 

The important thing is not to stress too much, just because it's law. Student Sheerin adds: "Your first year is for having fun and there is always a way to balance that with the academic pressures. Making sure you have friends on your course will mean you have a strong support network for when things do get tough."

While I am far more enthusiastic about law school than most other law students I know, even I think that if somebody's "clear vision" of why they should study law is nothing more than how good they look in a suit, that person should seriously reevaluate their priorities. And I would be fascinated to meet any American law student who agreed that the "first year is for having fun."

Perhaps my amazement is misplaced -- after all, law school is an undergraduate course of study in many countries, and the "fun" of beginning college-level education is certainly going to be more pronounced than the "fun" of leaving college or a job for even more school.

Or maybe law school in England is similar to law school in the US and this author is simply woefully misinformed.

Thanks to Legal Cheek, I find myself leaning somewhat in the direction of the latter theory. Legal Cheek draws the reader's attention to the photo that accompanies the Guardian article, which at first seems to be standard law-book stock photography. But a close examination of the photo reveals that the assigned reading in English law courses is very different from that which is assigned in American courses:

The Convicium Approach to Defamation

Earlier, I blogged about a Yankee fan, Andrew Rector, who is suing ESPN and several announcers for defamation after they made remarks about him sleeping during a game. In that post, I argued that Rector's complaint was doomed on the merits, in part because the defamatory statements he described in his complaint were statements of opinion rather than false statements of fact.

Looking back, I may have been too harsh to argue that Rector's lawsuit was meritless. Instead, Rector seems to have simply filed his lawsuit in an untimely manner, and in the wrong court. R.H. Helmholz explains further, in his book, Roman Canon Law in Reformation England:

The sixteenth and seventeenth-century ecclesiastical courts carried further a change that had begun at the same time their jurisdiction over imputations of secular crimes were beginning to be attacked in the last quarter of the fifteenth century. That was to permit actions to be brought for convicium. Convicium meant abusive and hurtful language which did not, however, necessarily impute the commission of a crime. Post-Reformation practice built upon and expanded this change. Thus one finds imputations that were in truth no more than insults -- words like "whore of thy tongue" -- appearing in the act book records. It became possible to invoke ecclesiastical jurisdiction when one had been called merely "a hypocrite", "a false knave", "a cozener", or "a scurvy drunken baggage". To say that a man had "no more conscience than a dog", or even that he "went to church to pray for his dog", could amount to actionable convicium. None of these abusive but unincriminating phrases would have been actionable under the Provincial Constitution of 1222 that had dominated medieval practice. That Constitution required the imputation of a crime and the requirement had had the effect of limiting the number of defamation causes the Church courts heard. This development removed that limit. 

Behind the new remedy lay the theory that any words uttered out of malice and against "fraternal charity" should subject the speaker to ecclesiastical jurisdiction and discipline just as surely as those which expressly imputed a crime. In the act books, these causes were sometimes expressly styled as being undertaken "for the reformation of manners". . . . Defining what words might be said to offend "fraternal charity" is not an easy thing to do, and contemporary civilians did not offer precise definition. (58-59) (footnotes omitted)

Rector complained that he had been called words like "stupor, fatty, unintelligent, [and] stupid," by commentators. These terms would almost certainly be characterized as statements of opinion. While statements of opinion like these are not actionable under modern defamation law, it would appear that Rector would have a pretty good claim for convicium. While I did not hear any announcers call Rector "a false knave," or "a scurvy drunken baggage," the insults he is claiming are in the same vein as these examples of actionable convicium.

Admittedly, Rector filed his lawsuit a little bit too late. He would have been best off filing this lawsuit in the 16th or 17th century when convicium actions were more commonly accepted. Also, Rector filed his lawsuit in a New York trial court, where his convicium claim would probably fail. Rector would be better off filing his complaint in an English ecclesiastical court.

But in light of my discovery of the strategy Rector may have intended to pursue, I may have been overly hasty to claim that his lawsuit was meritless. On paper, Rector raises a decent convicium claim -- he's simply filed the lawsuit in the wrong court and in an untimely manner.

Old School Judicial Activism in the Ecclesiastical Courts

I recently got a copy of R.H. Helmholz's Roman Canon Law in Reformation England, and I have been reading in the brief intervals of spare time I have between long stretches of memorizing law and attempting to find a new apartment.

Helmholz points out that statutory interpretation in the medieval ecclesiastical courts was characterized by judges and practitioners taking aggressive liberties with statutory interpretation and often departing from the words of the relevant texts. He describes the law of wills as an example of this chaos:

Instances of the freedom which medieval jurists felt in dealing with the texts abound in the literature, but a particularly instructive example is provided by one of the questions already mentioned, on which English practice diverged from the formal texts. That is the question of how many witnesses must be present at the execution to allow a court to treat a last will and testament as legally valid. The texts of the two papal decretals on the subject seem clear enough. There must have been two trustworthy witnesses plus the parish priest present at the time an ordinary last will and testament was made for it to be probated. If a bequest ad pias causas were at issue, however, then the presence and testimony of "two or three legitimate witnesses" would suffice. 

These two decretals never functioned as modern lawyers expect statutes to. In the hands of medieval commentators, they and the Roman law on the subject led to speculation, distinction, and disagreement. How many witnesses were required became a quaestio dubitabilis, a quaestio perdifficilis. On the one hand, the civil law's rules requiring the solemnity and certainty afforded by several witnesses were evidently "just and for the common utility." Perhaps they were to be preferred. On the other hand, the law's paramount goal was to establish and enforce the testator's last true wishes, and the testimony of two persons or sometimes even fewer ordinarily sufficed to do this. At least in the forum of men's conscience nothing mattered except the intentions of the testator, and this implied a more relaxed standard, perhaps more relaxed than that provided in the two decretals. Antonius de Butrio (d.1408), for instance, held that the testimony of only two unimpeachable witnesses would be enough. He reasoned that the undelrying rationale, "the mind" of the decretal was what counted, and that the mention of the parish priest was a matter of accident, not substance. Hence two witnesses sufficed. Other canonists took a stricter view, some even holding that a higher standard than that found in the decretal should be required. (12-14) (footnotes omitted)

One of the most notable contemporary trends in legal thinking is a shift toward an "originalist" approach to reading law and interpreting cases. Originalism, crudely stated, is the philosophy that laws and cases should be construed in accordance with their plain meaning as understood at the time the laws were drafted and the cases decided. Justice Antonin Scalia is one of the most notable proponents of this approach, and he sets forth a detailed originalist approach in his book, Reading Law: The Interpretation of Legal Texts.

Scalia worries that an alternative approach would lead to judges imposing their own views on what the law means, and that "nine unelected lawyers living in a marble palace" should not be entrusted with this role. In the absence of originalism, Scalia worries that the absence of guiding principles could lead to uncertain and undemocratic results.

Would courts devolve to the level of ecclesiastical courts' divergent treatments of laws in the absence of an originalist philosophy? Probably not. But the confusing network papal decretal interpretations in the ecclesiastical courts shows that modern complaints of judicial activism are somewhat lacking in old school outrageousness.

In any event, I am happy that I am not learning about the ecclesiastical approach to the law of wills. California takes a two-(disinterested)-witness approach -- hold the priest -- and that's all I need to know about that particular part of the law.

Rogers on Historic Legal Treatment of Hair

I came across an article entitled, Hair, by R. Vashon Rogers in The Green Bag. The citation is 16 Green Bag 326 (1904). I am unfortunately unable to find a publicly accessible version of this article, but here is a link to the Heinonline version.

In this article, Rogers surveys a broad range of historical treatment of hair. He discusses the taxation of beards in both England and Russia, noting that the English laws on taxing hair fell out of fashion and were ultimately deemed "too absurd to be enforced."

Offenses against others' hair could be the basis for civil liability. Rogers writes:

In Ireland, by the Brehon law, a heavy fine had to be paid by any one who maliciously shaved the false locks of a poet or of a scholar, or of a show girl, or who cut off the eye lashes, or the hair of the brow, or the beard or whiskers of a man.

Robbing a man of his beard, among the Saxons, according to Alfred's laws, was punishable by a fine of twenty shillings; he who shaved a priest against his will was mulcted in thirty shillings; while binding the ecclesiastic, as well as shaving him, raised the penalty to two pounds.

Rogers doesn't stop there. He goes on to summarize the importance of horses' hair, noting that the cutting of a horse's mane or tail would require compensation as well as the provision of a substitute animal while the injured horse was kept in hiding. The church took mixed positions on the length of women's hair, with some members of the clergy encouraging the cutting of hair as a symbol of chastity, and others criticizing Joan of Arc's choice to wear short hair as blasphemy.

Rogers concludes with an anecdote about Lord Mansfield:

Lord Mansfield tried a man for assault, he was convicted; the Court thought imprisonment an unsuitable punishment under the circumstances; an affidavit was produced in which the offender stated he was wholly unable to pay a pecuniary fine. While this was being read the man stood proudly erect, his face adorned with enormous whiskers and moustaches, the pride of his heart, his boast in his cups. Mr. Dunning, for the prosecution, suggested to the judge that "as the prisoner had very fine moustachios and whiskers, perhaps his lordship would take the punishment out of these, and order him at once to be shaved."

For a modern perspective on a different, hair-related legal issue, I would recommend Paul C. Giannelli's, Microscopic Hair Comparisons: A Cautionary Tale, 46 Crim. L. Bull. 7 (2010). From the abstract:

This article examines the judicial history of microscopic hair analysis, including its role in several wrongful convictions. It discusses the misuse and the abuse of hair evidence, and the failure to establish an empirical basis for the technique. In sum, hair evidence provides a cautionary tale for other forensic techniques.

New Canadian Regulations Threaten Importation and Sale of Irn Bru and Bovril

The BBC reports:

The owner of a British food shop in Canada says he has been ordered to stop selling Marmite, Ovaltine and Irn Bru because they contain illegal additives.

Other affected products include Lucozade, Penguin Bars and Bovril.

. . .

The Canadian Food Inspection Agency (CFIA) is reportedly cracking down on the sale of such goods and increasing its inspections of suppliers.

Irn Bru contains at least one additive - Ponceau 4R - which has been linked to hyperactivity and does not appear on the approved food list in Canada.

The other products are banned because they are "enriched with vitamins and mineral" while some canned foods and soup contained too much animal product.

Sounds like these are troubling times for those with British and Scottish culinary inclinations. But the CFIA is now conducting evaluations of the banned products to determine if they are safe.

While Irn Bru, rather than Bovril, seems to be the star of this story, I cannot post about a story like this without an honorary citation to Watteau v. Fenwick, 1 QB 346 (1892), where a pub manager, Humble (who was the agent of the pub's owner, Fenwick), bought Bovril and cigars even though he had not been given the authority to make these purchases. The seller thought that Humble owned the bar and did not realize that he was anybody's agent. In the absence of Humble's actual authority or apparent authority (as the seller did not realize that there was any principal involved), the court held that Fenwick was still liable for the purchases, concluding that in cases like this, the principal is liable for all acts which are within the authority usually confided to an agent of that character.

I have not traveled extensively, so I did not know what Bovril was until last year, when Stephen Bainbridge gave an extensive and opinionated description of the product when he taught Watteau in his Business Associations class. For any reader who is still unfamiliar with this product, Wikipedia seems to give a thorough and accurate account.

Defamation in the English Ecclesiastical Courts

Back in the day (from earlier than the 1200s  until the 1800s), a number of English cases were heard by ecclesiastical courts.  These courts would address questions of church discipline, probate, marriage licenses and divorces, and certain defamation suits.

I learned about these courts and their jurisdiction over defamation suits in one of my classes, and I decided I would try to learn more.  I found R.B. Outhwaite's book, The Rise and Fall of the English Ecclesiastical Courts, 1500-1860 (Cambridge University Press, 2006), to be particularly helpful.  Adding an interesting (and opinionated perspective) was Thomas Clark's Perpetuation or Extinction of the Ecclesiastical Jurisdiction in Temporal Concerns (J&W Robins, 1840).  The title I just gave does not seem to be the full title of the book, but due to readability concerns I have reserved a full listing of the title for an addendum at the end of this post.

Outhwaite notes that only certain types of defamation claims were heard in ecclesiastical courts.  While suits arising from statements that the plaintiff is a thief or liar were typically pursued in common law courts, claims arising from statements that the plaintiff is an adulterer or prostitute were typically pursued in the church courts.

Outhwaite also points out the differences in the gender makeup of plaintiffs in the ecclesiastical courts compared to the common law courts.  While common law plaintiffs were typically male, many more plaintiffs in the church courts were female.  Many more defendants in the church cases were female (compared to common law defendants), though this difference was not as pronounced as the difference in plaintiffs' genders.

Outhwaite describes the statements that would typically give rise to a defamation suit in the church courts:

Men complained of being labelled as sexually active deviants - seducers, adulterers, fornicators, bastard-begetters, whore-masters and carriers of venereal disease - or of being the victims of the sexual deviance of others - so becoming cuckolds.  Women were similarly, though obviously not identically, labelled, but their overwhelming complaint was that they had been called a whore.

Outhwaite points out several reasons why individuals may have wished to pursue these defamation claims.  One theory is that these suits were filed to foreclose prosecution for crimes of sexual deviancy, but Outhwaite notes that this theory has met some opposition -- as a defamation suit would guarantee that the accusing statements would come to light.  Ultimately, it looks like maintaining one's reputation in a religious community was an important factor:

Taking the abuser to court was not only a way of demonstrating respectability; it was also a way of exacting recantation and retribution.  The abuser, if found guilty, had to bear legal costs and undergo a humiliating penance.  Even though only a minority of cases got as far as this, there was satisfaction to be derived from citing an abuser to appear before a court, making him or her incur some costs as a consequence, before perhaps accepting arbitration and a peaceful settlement.

Clark, writing at a time when these courts were still around, takes issue with this function of the courts.  Alluding to a particularly lengthy and costly defamation case, he writes:

By the constitution of these courts, they can give no damages through pronouncing judgments!  But ever mindful of their own interests, they can imprison the parties for nonpayment of costs and this has not unfrequently been done.  If in the instance alluded to the defendant had been pronounced guilty of the offense with which he was charged, the lady whose reputation was assailed and also her husband and their relations and friends, after enduring seven years protracted litigation and expense, to decide upon a simple fact, and the surmises and scandal of the public on the charge affecting character, could only have witnessed (if not prevented by imprisonment for non-payment of the costs of her success) the disgusting spectacle of the defamer suffering penance in a white sheet, pro salute animae - "for the good of the soul" - whilst professional men who had pocketed £1400 in the suit and appeal, might enjoy the farce, and retire to a tavern to drink "prosperity to spiritual jurisdiction and emoluments in temporal concerns."

While many of my posts focus on defamation in the digital age, I think that some perspective on the history of this cause of action can be useful. 

ADDENDUM: The full title of Clark's book is: Perpetuation or Extinction of the Ecclesiastical Jurisdiction in Temporal Concerns; Being an Analysis and Review of the Special and General Reports of the Ecclesiastical Commission, and of the Provisions of the Bill Founded Thereon. With Remarks and Citations in Reference to The High Court of Chancery and the Judicial Committee of Privy Council, and to Trial by Jury