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Discussion Groups / English Usage / July 2010Chancery judgments
I've had no particular business reading Chancery judgments apart from entertainment. They have an element of drama about them, since there are usually vast sums of money destined to find new homes as a result of the elegant subtleties considered in the judgements. As well as that, there is the link to real nautical drama involving interestingly arcane shipping procedures. The dramas often turn on the decisions of the Master who little expects that his view of matters at the moment of crisis, tempered by the owner's wishes, and legal considerations, will be subject to such scrutiny. Furthermore, not only, his considered view, but also his intention, quite possible opaque to he himself, might sway the final result a hairsbreadth either way. The language employed is refreshingly free of unnecessary legalese. Those writing the judgements are clever chaps (quite probably chapesses now, for all I know, but if so, considerably brighter women than Phony Tony's wife), so have no need to hide, quivering with fear of being found out, behind jargon. I know that the campaign for plain english has done a great deal to improve matters, but it used to be the case that documents hewn out by jobbing solicitors and barristers were packed with superstitious incantations. Archaic formulations, blessed by the precedent of some quite different matter in a distant time, were preferred to plain English, because they were seen as magical spells, and also because they were, like ecclesiastical Latin, intended to impress and frighten the laity from questioning the competence of the practitioner who was only too aware of the limits of his ability. I think that they'd make excellent subjects for school comprehension tests. They have the additional virtue of being, often, reasonably short so perfect for filling a brief moment with delight. >I've had no particular business reading Chancery judgments apart from >entertainment. They have an element of drama about them, since there >are usually vast sums of money destined to find new homes as a result >of the elegant subtleties considered in the judgements. The only Court of Chancery left on this side of the Great Herring-Pond is in Delaware. Because most major corporations are incorporated in Delaware, the Delaware Court of Chancery hears a great many cases in business law. In every other state, and I believe in all Canadian provinces as well, the regular courts hear matters of both law and equity at the same time (the "single form of action" principle). As I understand it, the U.S. has held more strongly to its Law Latin than the UK and Commonwealth generally have, although it's often true that court opinions become more readable the higher in the judicial hierarchy they originate. (Opinions of the U.S. Supreme Court are often quite well written and broadly understandable to the reader who cares to invest the effort.) -GAWollman  SignatureGarrett A. Wollman | What intellectual phenomenon can be older, or more oft wollman@bimajority.org| repeated, than the story of a large research program Opinions not shared by| that impaled itself upon a false central assumption my employers. | accepted by all practitioners? - S.J. Gould, 1993 > it's often true that > court opinions become more readable the higher in the judicial > hierarchy they originate. (Opinions of the U.S. Supreme Court are > often quite well written and broadly understandable to the reader who > cares to invest the effort.) I doubt it's a coincidence that each Supreme Court Justice has a fair number of clerks to assist him or her. :-) SignatureStan Brown, Oak Road Systems, Tompkins County, New York, USA http://OakRoadSystems.com Shikata ga nai... >> it's often true that >> court opinions become more readable the higher in the judicial [quoted text clipped - 4 lines] >I doubt it's a coincidence that each Supreme Court Justice has a fair >number of clerks to assist him or her. :-) I'm not sure that four counts as "a fair number". All of them will insist that they write their own opinions. When pressed, some of them will admit that their clerks do most of the editorial work and they just structure the legal argument. Others do more of the writing and use their clerks for research, checking citations, proofreading, etc. In those chambers that don't participate in the "cert pool", the clerks' principal job is reading the 9,000 cert petitions that arrive every term. (Most of these are /pro se/ petitions, filed "IFP" (/in forma pauperis/) by prisoners seeking review of their convictions; every once in a while, one of those gets granted.) -GAWollman SignatureGarrett A. Wollman | What intellectual phenomenon can be older, or more oft wollman@bimajority.org| repeated, than the story of a large research program Opinions not shared by| that impaled itself upon a false central assumption my employers. | accepted by all practitioners? - S.J. Gould, 1993 > I've had no particular business reading Chancery judgments apart from > entertainment. They have an element of drama about them, since there [quoted text clipped - 29 lines] > tests. They have the additional virtue of being, often, reasonably > short so perfect for filling a brief moment with delight. Damn you! :) What a great timewaster you've opened me to! So that others shall not escape, here is the link: http://www.bailii.org/ew/cases/EWHC/Ch/2010/ I've been reading for a couple of hours and only got through four cases! All from July 2010: Herrmann v RBKC, where an American immigrant couple have failed to gain access to a London garden HMRC v Begum, where the taxman has been allowed to continue its proceedings in a carousel fraud case Kings v Bultitude, the fascinating story of the Ancient Catholic Church (of Clapton), which died with its priestess Wright v Wright, where a father and son are arguing over the ownership of various property that the father hid from a third party Adrian > Damn you! :) What a great timewaster you've opened me to! I'd apologise, but that would make me hypocritical. I'd only disagree that it is a waste of time. Reading the prose and wallowing with delight in the thoughts of brilliant minds is not a waste of time. Thought I've seen no direct practical application for the judgements (beyond, of course, their particular commercial value to the interested parties and those who follow, interested in the precedent so set), I've certainly found that reading these judgements has helped me become at one (to be hippy about it - and why not?) with profound thinkers. Philosophers are important. I'm a huge fan of Epicurus. They do, though, suffer from self-consciousness. Their thoughts, impressive as they might be, are presented to us as of value in themselves. Wittgenstein, who, rightly, thought himself inarticulate (hence the poker episode) was something of an exception - hence his spare prose. Judges don't suffer, at least professionally (having met some in private, I'm afraid that they do have the normal human frailties in this regard), from this problem. When they present a judgement, their mind is occupied with the matter itself, and the work required to make their judgement stand, even when exposed to the critical examination of minds that they fear (as anybody with a fine mind has cause, rationally, to fear) might be sharper than theirs. This concentrated, fearful, effort by finely tuned minds, attending directly and unselfconsciously on the matter at hand renders us a beautiful study in the subtle examination of minute aspects of reality. Reading the results of this intellectual endeavour (fuelled by money and ambition and pride - but, unusually, not a concern for posterity) - is a delight almost more than the best poetry (would it that there were a similar generator of poetry that was as disinterested!). As a result of these forces, Chancery judgments are as close to perfect expressions of pure intellect as one can possibly find. I hear (metaphorically for any dullards still reading) the cry that mathematics might provide a purer outlet. In reply, I have to assert that maths is more fuelled by testosterone than almost anything else - bar chess. This competitive approach is by no means without merit, but it's not so productive of pure intellect. And then there are crosswords - but how many of them are anonymous? Perhaps the above remarks might fuel a discussion on the nature of pure intellect - if so, I think a cross-posting to a philosophy group or two might be appropriate. >> Damn you! :) What a great timewaster you've opened me to! The secret to being a good bore is to tell everything. Oscar Wilde >> Damn you! :) What a great timewaster you've opened me to! >> [quoted text clipped - 11 lines] > me become at one (to be hippy about it - and why not?) with profound > thinkers. My goodness. I have no idea what your personal criteria for profundity may be but I see little of it in Chancery judgements and would be grateful to have it pointed out. My job often entails reading the work of legal scholars and there I do find evidence of deep thought and, often, clear expression. > Philosophers are important. I'm a huge fan of Epicurus. They do, > though, suffer from self-consciousness. Their thoughts, impressive as > they might be, are presented to us as of value in themselves. Do philosophers never adduce evidence to support their arguments? > Wittgenstein, who, rightly, thought himself inarticulate (hence the > poker episode) was something of an exception - hence his spare prose. Wittgenstein AIUI was especially concerned about language so one might expect his writing to reflect that. > Judges don't suffer, at least professionally (having met some in > private, I'm afraid that they do have the normal human frailties in [quoted text clipped - 3 lines] > of minds that they fear (as anybody with a fine mind has cause, > rationally, to fear) might be sharper than theirs. Do you mean the Court of Appeal? I quite like the notion of judges as fearful but the ones I've known (sadly, all now deceased) have never exhibited such fear. Indeed, the people I have encountered with what I consider to be the finest intellects have all been eager to engage in debate to test their ideas and to develop them: that eagerness is, to me, the mark of a great thinker. > This concentrated, fearful, effort by finely tuned minds, attending > directly and unselfconsciously This seems to indicate that you believe in a level of objectivity that is impossible to achieve. The exercise of judgement is inevitably influenced by the personal experience and understanding of the judge, even if the arguments presented to support the judgement do not appear to reflect this. But perhaps I have not understood your use of "selfconscious". on the matter at hand renders us a > beautiful study in the subtle examination of minute aspects of > reality. Setting aside the implications of "reality" in this context, have you read any of the work of social anthropologists, such as Mary Douglas? This is what they do, not fearfully, and drawing on wider aspects of intellectual endeavour to illuminate their insights into social activity. > Reading the results of this intellectual endeavour (fuelled by money > and ambition and pride - but, unusually, not a concern for posterity) I'm really not sure what that parenthetical assertion means. Judges may well be fuelled by all those things but do you not accept that they might also have a concern for the public interest? How do you know that judges have no concern for posterity? I would have expected them to have considerable concern for the precedents set by their judgements. Sadly, all the judges I have ever known are now deceased but none of them resembled the picture you paint. > - is a delight almost more than the best poetry (would it that there > were a similar generator of poetry that was as disinterested!). Disinterested poetry sounds to me like the most peculiar oxymoron. > As a result of these forces, What forces, exactly? The fault is probably mine but your argument is not easy to follow. Chancery judgments are as close to > perfect expressions of pure intellect as one can possibly find. A bizarre claim. The judgements seem to me to be the application of expert knowledge, and experience in the application of that knowledge, to a set of claims, in order to assess whether the supporting evidence is sufficient to support such claims. The arguments which support the judgement may be expressed in very clear terms but I am at a loss to understand what you mean by "pure intellect" in this context. > I hear (metaphorically for any dullards still reading) the cry that > mathematics might provide a purer outlet. In reply, I have to assert > that maths is more fuelled by testosterone than almost anything else - > bar chess. This competitive approach is by no means without merit, but > it's not so productive of pure intellect. A Hollywood view of mathematics would certainly lead you to believe this but I know mathematicians of both sexes who would be astonished by this assertion. > And then there are crosswords - but how many of them are anonymous? You've lost me completely there. All the crossword compilers I know (5, I think) publish under pseudonyms. And is anonymity an essential characteristic of pure intellect? > Perhaps the above remarks might fuel a discussion on the nature of > pure intellect - if so, I think a cross-posting to a philosophy group > or two might be appropriate. Heaven help us. SignatureLaura (emulate St. George for email) <snip> >> Perhaps the above remarks might fuel a discussion on the nature of >> pure intellect - if so, I think a cross-posting to a philosophy group >> or two might be appropriate. >> >Heaven help us. Amen. Seconded. Ditto. SignaturePeter Duncanson, UK (in alt.usage.english) > > perfect expressions of pure intellect as one can possibly find. > [quoted text clipped - 4 lines] > judgement may be expressed in very clear terms but I am at a loss to > understand what you mean by "pure intellect" in this context. It may not exist, I'm happy to grant that. If it did, though, what I'm suggesting is that, as you say, you'd find it where it is unselfconscious - as you say 'application of expert knowledge, and experience in the application of that knowledge, to a set of claims, in order to assess whether the supporting evidence is sufficient to support such claims.'. The difference between art and craft is a similar matter. Craft is less self-conscious than art. It's interesting to note which artists describe themselves as craftsmen and which don't. I'd be arguing that, if there were 'pure artistry', that would be more likely to have its expression through craftsmen. We seem, though, to have known different groups of mathematicians and judges! It's also possible that we've seen them through different lenses. >Damn you! :) What a great timewaster you've opened me to! So that others >shall not escape, here is the link: [quoted text clipped - 9 lines] >Wright v Wright, where a father and son are arguing over the ownership of >various property that the father hid from a third party Thank you for that. They are no more difficult to read than any other legal judgments and case reports, and one might have to look up legal jargon like "cy-près", but even that shouldn't be too difficult. http://en.wikipedia.org/wiki/Cy-pr%C3%A8s_doctrine SignatureSteve Hayes from Tshwane, South Africa Web: http://hayesfam.bravehost.com/stevesig.htm Blog: http://methodius.blogspot.com E-mail - see web page, or parse: shayes at dunelm full stop org full stop uk > Thank you for that. They are no more difficult to read than any other legal > judgments and case reports, and one might have to look up legal jargon like > "cy-près", but even that shouldn't be too difficult. I agree - they're actually easier to read than many because they're covering more interesting matters, on the whole, and the thought is clearer. Legal jargon isn't the problem - as I mentioned, it's not thickly encrusted as in jobbing solicitor's letters or many commercial contracts, but, rather, used, as jargon should be, for precision and concision. The point about the difficulty is that many people find it hard to follow spare, disinterested, and subtle prose. > it used to be the case that documents hewn out by > jobbing solicitors and barristers were packed with superstitious [quoted text clipped - 4 lines] > the laity from questioning the competence of the practitioner who was > only too aware of the limits of his ability. There was (and is) a lot of that, but there are other, less invidious reasons. 1. The archaic legal forms have been through many tests in many courts, so everyone knows how they will be interpreted. A lawyer who unilaterally tries "plain English" may find that a judge doesn't interpret the document as the lawyer expected. 2. Pulling a form off a tablet (or from a bit of software) and filling in the blanks saves time. On a routine matter, that benefits the client because the lawyer's time is the client's money. 3. Half the members of any profession are below average, and the law is no exception. Less competent lawyers who are aware of their limited abilities may be good enough to apply what they learned in law school but mot good enough o strike out into new ground on their own. The great majority of cases need a minimally competent journeyman, not a master. SignatureStan Brown, Oak Road Systems, Tompkins County, New York, USA http://OakRoadSystems.com Shikata ga nai... |
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