I have been posting about the development of a new course I have been developing for our first year law school students, "Elements of Law." (Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum). The SYLLABUS can be accessed HERE.
With this post I continue to share with the class and interested "others" summary study notes for the course readings. For this post we consider the first part of section IV of the materials: IV.A.The Role of the Courts: Judicial Review, Interpretive Techniques, and Legitimacy--How Courts Engage With Law: Custom versus Statute: The Norm, The Social Order, The Legal Order. Comments and discussion most welcome.
IV-A The Role of the Courts: Judicial Review, Interpretive Techniques, and Legitimacy--How Courts Engage With Law: Custom versus Statute: The Norm, The Social Order, The Legal Order.
--Larry Catá Backer, "Chroniclers in the Field of Cultural Production: Interpretive Conversations Between Courts and Culture," 20 Boston College Third World Law Journal 291 (2000). READ pp. 291-305. Available in “pdf” format HERE.
--Berreman v. West Pub. Co., 615 N.W.2d 362, Minn.App., 2000 (edited).
--Marvin v. Marvin, 8 Cal.3d 660, 557 P.2d 106, 134 Cal.Rptr. 815, 1976(edited).
My purpose in this paper is to explore the nature and process of norm making within culture as it is expressed through what we identify as “law.” I do so by focusing both on law as an expression of cultural standards/models/patterns regarded as mandatory, both large and small, and on courts as a place from which these standards are articulated. My object is twofold. First, I mean to interrogate the commonplace notion that law is something that “acts on” culture–that law disciplines culture. Second, I posit that, contrary to a most cherished delusion especially among so-called progressives, neither our common-law nor our courts nor our legislatures can serve as the engines producing any sort of coercive law which can transform these standards/models/patterns. I begin by discussing the role of courts as the institution which identifies and memorializes norms in the form of law. The primary functions of courts are to identify cultural practice and then to memorialize that practice as law. Juridical expressions of law are essentially descriptive; their pronouncements cannot, of themselves, coerce cultural practices. As such, law is an enterprise of affirmation. Courts are the great vehicle for the performance of cultural aesthetics on a perpetually grand scale. I then explore the identification-memorialization process in two contexts. The first context is that of the European Court of Human Rights’ margin of appreciation jurisprudence and the second is that of the construction of general principles of community law by the European Court of Justice. Identification-memorialization engages the courts in the process of cultural production to the extent that courts speak or provide a site for the articulation of the authoritative.
The culturally evocative voices which a court uses to speak are then explored. These voices – the Homeric, Delphic and Jobian cacophony – describe the complex and dynamic interactions between law, courts and culture. As such, courts function as a discordant and polyphonic cultural choir. From out of this choir will come articulations, more or less authoritative, more or less temporary, and more or less clear, of the cultural reality in the form of rules and consequences for breaking taboos. Courts also and simultaneously serve as a site for the contestation of authority in voice. To the victor of these struggles belongs a greater authority to convincingly pronounce those standards/patterns/models of the normal which may then be enforced by the countless disciplines marshaled by society for that purpose. I end by suggesting some complexity to the simple aesthetics of norm and authority I describe. Complexity and ambiguity follow from our understanding that courts may speak simultaneously in multiple voices. Neither society nor “law” provides an unimpeachable arbiter of these voices. Society can never know for sure which voice speaks “truth,” even momentary “truth.” The last level of complexity I suggest is that culture must be understood in the plural, even when the institutions of cultural production are conceived in the singular. The culture with respect to which courts engage share space with multiple competing cultures. The struggle over the authority of one culture to speak for the others through the institutions of formalized power with competence of the geography shared by multiple cultures suggests a complex and dynamic interaction which in turn affects the quality of the authority of courts to speak.The reading seeks to suggest the cultural contours of the inherent conservatism of legal systems in which courts play a a central and mediating role. Despite the long tradition of criticizing the courts in the United States for asserting legislative and culturally based social engineering authority in the service of one or another ideological or cultural program, the reality appears to be the opposite, Courts tend to serve as a conservative rather than an instrumental force iun society. "law, as the description of existing social norms identified by courts, is something very different from our popular conception of law as the creation of courts which make law for the purpose of changing conduct." (Backer, supra., 297). Indeed, judicial efforts which appeared in the popular political imagination to impose judicially ordered changes in social norms, or to decide a hotly contested issue of social norms with respect to which no consensus existed, have proven to be miserably unsuccessful. This result has been true whether the court has sought to move beyond traditional social norms (Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) ("Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.")), or to apply them (Scott v. Sandford, 60 U.S. 393 (1856) ("The change in public opinion and feeling in relation to the African race which has taken place since the adoption of the Constitution cannot change its construction and meaning, and it must be construed and administered now according to its true meaning and intention when it was formed and adopted" Ibid., Part I ¶ 9)), or to choose a position where social norms are contested (Roe v. Wade, 410 U.S. 113 (1973) ("We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation." Part VIII though the opinion neither compelled abortion nor statutes to prohibit abortion).
Courts are at their most authoritative when they successfully identify as law a construction congruent with the social norms of the society on which they will be imposed and when they memorialize the norms identified as law. To go beyond identification and memorialization is to seek to impose change that in the end will be unsuccessful, or more likely will produce a substantial popular and political reaction that will eventually undo the judiciary's work--even at the constitutional level. Tradition and social norms, them play an important role in the way in which courts operate legitimately. They serve, as did the common law, both as a strong conservative force--making it difficult for the judiciary to use its interpretive power instrumentally in ways to move too far from social norm consensus--but also as a means of moving beyond rules the social norm basis of which has been abandoned. The move, at the constitutional level, from Bowers v. Hardwick, 478 U.S. 186 (1986), to Lawrence v. Texas, 539 U.S. 558 (2003), or from Plessy v. Ferguson,163 U.S. 537 (1896), to Brown v. Board of Education are well known examples. In both cases, neither the "law" memorialized in the Constitution, nor constitutional principles changed, but the underlying social consensus appeared to have changed enough to permit the courts to arrive at substantially different conclusions (yet ironically, in both cases the results were also contested for lack of stable social norm consensus). Custom and tradition are thus both constraining and also flexible. This is a pragmatic rather than an ideologically rigid approach, one that can be harmonized with the culture of common law methodologies protective of the coherence of law but sensitive to the customs from which they emerge and are applied.
Yet litigation is itself an excellent site for the production of cultural interventions that might, after a time, begin to change perceptions of acceptable social norms. Sometimes litigation is the best way of having one's voice heard, and of beginning to debate the continued legitimacy of law traditionally applied. "Litigation and law, understood as part of the process of cultural production, can be mobilized consciously in the production of popular culture. Litigation is an excellent site for the articulation of different interpretive visions within culture, which, when freed, can work in society to modulate the ways in which cultural rules are interpreted. (Backer, Chroniclers, p. 343). While judges are constrained by the cultural norms in which they reason through to decision, litigants are free to use the courts to engage in the sort of culture-changing dialogue that may move the courts to adopt a different result. (e.g., Larry Catá Backer, “Inventing a ‘Homosexual’ for Constitutional Theory: Sodomy Narrative and Antipathy in U.S. and British Courts”, 71 Tulane Law Review 529-596 (1996).)
Lastly, the role of courts in identifying-memorializing law embedded within political and social norm systems operates within a larger complex framework even in a world of courts. (Backer, Chroniclers, p. 338-41). First, courts are not unitary actors. Courts are multi-voiced and multi-sited. Many courts are engaging with law simultaneously within interlocking systems of law embedded in interlocked social norm systems within complex societies united politically into states. Courts are constantly looking at the work of other courts and within their home systems. The principles of law, interpretive conventions and functional objectives tend to be transposed form court to court with surprising ease.
Second, all combinations are possible. Judges may neither be conscious of their interactions with social norms or methods they use to that effort. As we will learn in the next few weeks, the distinct modes and principles of interpretation that have emerged over the last several centuries now serve as the functional expression of quite distinct and sophisticated approaches to the business of judging that incorporate different approaches to the relationship between judge law and social norm. All are designed to enhance the legitimacy of the judge in her role but each can produce substantially different decision.
Third, there is no definitive standard against which to judge the "correctness" of a judicial decision. At least there is no way to gauge the "rightness" of a decision beyond the legitimacy and good faith of the methodologies used to reach them. As we have learned, for example, all of the opinions in the Steel Seizure Case were plausible, but only the one that commanded a majority of justices became the rule. For all that, the President thought to his dying day that the case was wrongly decided. And in any case the basis for the decision became less relevant as later courts abandoned the formalism of Justice Black's opinion for the blended functionalism of Justice Jackson's concurrence. President Lincoln thought the Dred Scott decision was not merely wrongly decided but was at odds with fundamental principles of American political organization (e.g., Lincoln, Speech on the Dred Scott Decision, June 26, 1857).
Fourth, within a single legal polity there is no single culture against which consensus for a social norm can be measured. Especially in the late 20th century, for example, judicial involvement in decisions touching on social mores (regulation of sex, reproduction, death, etc.) were controversial precisely because there were a number of distinct sub cultures whose views remain substantially irreconcilable. The idea of a dominant culture, then, can only be spoken of with respect to some but not all issues that confront courts. This is so even with respect to business decisions--consider the social divisions about corporate social responsibility in the early 21st century.
Fifth, the "polytonality of the courts reminds those who listen that no pronouncement of the present is either stable or comprehensive" (Backer Chroniclers, p. 329). Interpretation must be applied to the times and against the litigants at times and places that are highly contextual and that tend to change as circumstances change and generations arise and die off to be replaced by others who allegiance to the past is always a function fo the needs of the present and desires for the future. Even the traditionalist sometimes believes in progress toward some end. So do courts. But not always. Many courts applying law specifically to the narrow contexts in which disputes are brought to them for resolution may together produce something like standards but those standards are in constant flux as courts continue, without pause to interpret and apply law to changing circumstances and distinct disputes.
The chronicling function is nicely evidenced in the two cases you have been asked to read: Berreman v. West Pub. Co., 615 N.W.2d 362, Minn.App., 2000 (edited) and Marvin v. Marvin, 8 Cal.3d 660, 557 P.2d 106, 134 Cal.Rptr. 815, 1976(edited). Each, in their own ways suggest the way that law is animated by courts--how courts weave strands of law from a variety of sources, cultural understandings and custom within the specific context of a dispute to be resolved by the judge, into the application of common law to facts or the interpretation of statute to be applied to the dispute to be resolved.
Berreman v. West Pub. Co., 615 N.W.2d 362, Minn.App., 2000 provides an example of the way in which courts may sometimes draw on a larger web of decisions beyond their jurisdiction to apply inter-jurisdictional norms to disputes grounded in state specific law. More importantly, it suggests the way in which courts approach the resolution of potential conflicts among multiple law frameworks simultaneously applicable within the state. In this case the issue revolved around whether Minnesota law would recognize a breach of a common law fiduciary duty among actors in a corporation. The fact were these (Berreman, 365-367): Berreman, a long time employee of West Publishing Company, had purchased shares through a stock option program for high level managers between 1974 and 1994. By June 1995, Berreman owned 1,600 shares. These shares could be sold but only if West refused to exercise a prior right to repurchase the stock at book value. West had always exercised this option. In 1995 Berreman decided to retire. His last day was May 31, 1995 and he received payment of $2.8 million (about $2,088 per share) for his shares from West in June 1995. Unbeknownst to Berreman, during this time West's managers began to think about selling the company. It was not until August 1995 that the West managers announced to its employees that it was considering financing options. In 1996 West accepted a buy out bid by Thomson Corporation and in June 1996 Thomson paid over $10,445 per share, substantially more than Berreman received. Berreman sued West for the difference arguing that by failing to let him know at the time he was thinking about retirement that West was thinking about selling itself, Berreman might have retired later. The state district court in Minnesota dismissed the claim and Berreman appealed.
The Minnesota appeals court considered the nature of common law fiduciary duty, attributes of close corporations, the effects of the newly enacted Minnesota Business Corporations ACT and the application of common law fiduciary duty to Berreman's case. The Appeals Court first reached to the jurisprudence of Minnesota and Massachusetts for its concept of common law fiduciary duty among shareholders in a closely held corporation. (for a discussion on this issue under Illinois law, see HERE). That congruence among courts for the determination of the scope of common law was also the basis of the Appeals court's discussion of the attributes of a close corporation. (Berreman, pp. 367-369). The attributes of a close corporation were those described first in Massachusetts and then adopted in Minnesota. Importantly, it adopted the position that while close corporations should have few shareholders, a functional approach applies to the determination of the number of shareholders with effective control.
More interesting was the resolution of the issue of the abrogation of the common law corporate fiduciary duty with the passage of a comprehensive Corporations Code in Minnesota. West argued from simplicity and hierarchy of law (the importance of which we have studied earlier--Elements of Law 3.0 Notes of Readings: II-C (Hierarchies of Law Within the Domestic Legal Order and Between Naitonal and International Law Reflecting Governmental Order). West argued that by enacting the Minnesota Business Corporations Act the legislature had abrogated common law. West argued that under the statute close corporations are defined as having 35 or fewer shareholders. As a consequence the common law rule defining close corporations could not also apply. Berreman argued that while the close corporations provisions of the Minnesota Business Corporations Act could clearly not apply to West, it would not be inconsistent to apply common law definitions for purposes of applying common law fiduciary duty obligations. The Appeals court agreed with Berreman. To arrive at this result it deployed a number of arguments common to the issue of the relationship of common law and statute in states. First it suggested that prior judicial opinion already suggested that the MBCA could not have completely abrogated common law. Second, it adopted an interpretive cannon of construction--that statutory law is presumed to be consistent with common law. Moreover, it suggested that abrogation of the common law could not be based on inference--it had to be express. In any case, the Appeals court determined that West had not made a persuasive case for abrogation by implication by resort either to the legislative history of MBCA or by a reasonable construction of the statute.
With that resolved, the court considered the scope of common law fiduciary duty. To that end it again reached to Massachusetts law, and the application of the principles announced in the leading Massachusetts case by courts in Ohio, Florida, Georgia and by relevant federal courts. These cases were woven together to extract the principles of common law fiduciary duty and the standards under which such claims might be successfully maintained. That analysis suggested that indeed Berreman might have been owed some sort of duty to disclose. But there was a catch. For the Minnesota Appeals Court, that catch was grounded in the notion of materiality (for materiality consider Dale A. Oesterle, "The Overused and Under-defined Notion of “Material” in Securities Law," Ohio State Public Law Working Paper No. 145 (2011)). But here, the Appeals Court did not look to common law or even the law from state law. Instead, it drew on interpretations of the federal courts of the statutory and regulatory provisions of federal securities law for that purpose. There is no indication for this choice. It is particularly interesting because the federal statutory law was connected to but not identical to the common law of fiduciary duty and the federal statutes and regulations on which the standards adopted were derived have little direct connection with the underlying principles and focus of state based common law fiduciary duty for companies whose character would in any case exclude them from the federal regulation of public companies. Yet, though the Appeals Court resisted the transposition of Minnesota statutory law to the common law of fiduciary duty standards for shareholders of a closely held corporation, it had no similar qualms about transposing the judicial standards interpreting federal statutory and administrative regulations touching on fraud in the conduct of publicly traded corporations.
Berreman suggests both the way in which courts remain embedded within the legal structures of the jurisdiction in which they operate but how they are also autonomous within their sphere of competence. In this case, the Minnesota courts sought to develop and apply a common law for Minnesota. That common law proved to be autonomous though related to the acts of the legislature of Minnesota (the MBCA) and part of the larger discourse of common law among the large network of state courts, whose opinions serve as persuasive authority in the construction of local common law. At the same time, local courts are free to draw by analogy vertically as well--in this case drawing on the development of federal common law glosses of a federal statutory scheme in order to flesh out an issue of state common law. This pattern of judicial decision making first sets the court apart from the rest of the state--it employs techniques and methodologies that make it clear that the court is not obliged to obey state officials or do their bidding. Instead they are bound by the law--wherever it can be found. The authority of courts and the legitimacy of legal interpretation arises not from the decisions of the judge but from the disappearance of the judge into the decision she uses to arrive at the proper legal basis for determining the legal effect of the facts that make up the dispute to be resolved. Legitimacy is grounded in the ability of courts to rely on the accumulated decisions of courts rather than on the proclivities of an individual judge. And for that purpose, all decisions of all relevant courts are fair game.
Marvin v. Marvin, 8 Cal.3d 660, 557 P.2d 106, 134 Cal.Rptr. 815, 1976, on the other hand, suggests the way that changes in social norms may have a direct impact on the way in which law is interpreted and re-interpreted. The case was quite famous in its day, as it involved a well known actor of the day, Lee Marvin. And the case was one of the first to recognize what was then described as "palimony." The court held that contracts for the distribution of property among unmarried co-habiting couples would henceforth be enforced, even though the result would decrease incentives for heterosexual couples to marry:
(1) The provisions of the Family Law Act do not govern the distribution of property acquired during a nonmarital relationship; such a relationship remains subject solely to judicial decision. (2) The courts should enforce express contracts between nonvarital partners except to the extent that the contract is explicitly founded on the consideration of meretricious sexual services. (3) In the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties. The courts may also employ the doctrine of quantum meruit, or equitable remedies such as constructive or resulting trusts, when warranted by the facts of the case. (Marvin, supra).The facts are both straightforward, and for the times, quite notorious.
Plaintiff avers that in October of 1964 she and defendant ‘entered into an oral agreement’ that while ‘the parties lived together they would combine their efforts and earnings and would share equally any and all property accumulated as a result of their efforts whether individual or combined.’ Furthermore, they agreed to ‘hold themselves out to the general public as husband and wife’ and that ‘plaintiff would further render her services as a companion, homemaker, housekeeper and cook to . . . defendant.’The court first considered the claim for breach of contract. It started with an analysis of early cases that extended protection to couples that had contracted for the division of property.
Shortly thereafter plaintiff agreed to ‘give up her lucrative career as an entertainer (and) singer’ in order to ‘devote her full time to defendant . . . as a companion, homemaker, housekeeper and cook;’ in return defendant agreed to ‘provide for all of plaintiff's financial support and needs for the rest of her life.’
Plaintiff alleges that she lived with defendant from October of 1964 through May of 1970 and fulfilled her obligations under the agreement. During this period the parties as a result of their efforts and earnings acquired in defendant's name substantial real and personal property, including motion picture rights worth over $1 million. In May of 1970, however, defendant compelled plaintiff to leave his household. He continued to support plaintiff until November of 1971, but thereafter refused to provide further support.
On the basis of these allegations plaintiff asserts two causes of action. The first, for declaratory relief, asks the court to determine her contract and property rights; the second seeds to impose a constructive trust upon one half of the property acquired during the course of the relationship. (Marvin, supra).
Although the past decisions hover over the issue in the somewhat wispy form of the figures of a Chagall painting, we can abstract from those decisions a clear and simple rule. The fact that a man and woman live together without marriage, and engage in a sexual relationship, does not in itself invalidate agreements between them relating to their earnings, property, or expenses. Neither is such an agreement invalid merely because the parties may have contemplated the creation or continuation of a nonmarital relationship when they entered into it. Agreements between nonmarital partners fail only to the extent that they rest upon a consideration of meretricious sexual services. Thus the rule asserted by defendant, that a contract fails if it is ‘involved in’ or made ‘in contemplation’ of a nonmarital relationship, cannot be reconciled with the decisions. (Marvin, supra).The cases in which such contract arrangements were declined, were construed by the court as based on findings that that consideration for the contract was "illicit sexual services." That court emphasized that "The decisions in the Hill and Updeck cases thus demonstrate that a contract between nonmarital partners, even if expressly made in contemplation of a common living arrangement, is invalid only if sexual acts form an inseparable part of the consideration for the agreement. In sum, a court will not enforce a contract for the pooling of property and earnings if it is explicitly and inseparably based upon services as a paramour." (Ibid). The Court also rejected Lee Marvin's argument that enforcement of the contract would impair the community property rights of his wife, Betty Marvin. But the Court dismissed this argument because Betty Marvin was free to assert her own rights in the divorce action she filed.
Why was the court willing to extend the reasoning of the prior cases, which might well have been construed narrowly and traditionally (as Lee Marvin's counsel has suggested)? That is, why did the Court decide to move beyond the conventional social norms represented in the prior holdings that made it clear that non-marital co-habitaiton should not be rewraded with the benefits of marraige? In a rarely candid passage, the court explained its reasons in terms that explicitly linked common law interpretation to social norms:
The argument that granting remedies to the nonmarital partners would discourage marriage must fail; as Cary pointed out, ‘with equal or greater force the point might be made that the pre-1970 rule was calculated to cause the income producing partner to avoid marriage and thus retain the benefit of all of his or her accumulated earnings.’ ( 34 Cal.App.3d at p. 353, 109 Cal.Rptr. at p. 866.) Although we recognize the well-established public policy to foster and promote the institution of marriage (see Deyoe v. Superior Court (1903) 140 Cal. 476, 482, 74 P. 28), perpetuation of judicial rules which result in an inequitable distribution of property accumulated during a nonmarital relationship is neither a just nor an effective way of carrying out that policy.
In summary, we believe that the prevalence of nonmarital relationships in modern society and the social acceptance of them, marks this as a time when our courts should by no means apply the doctrine of the unlawfulness of the so-called meretricious relationship to the instant case. As we have explained, the nonenforceability of agreements expressly providing for meretricious conduct rested upon the fact that such conduct, as the word suggests, pertained to and encompassed prostitution. To equate the nonmarital relationship of today to such a subject matter is to do violence to an accepted and wholly different practice.
We are aware that many young couples live together without the solemnization of marriage, in order to make sure that they can successfully later undertake marriage. This trial period, preliminary to marriage, serves as some assurance that the marriage will not subsequently end in dissolution to the harm of both parties. We are aware, as we have stated, of the pervasiveness of nonmarital relationships in other situations.
And thus, the court acknowledged both the power of the conventional norm, marriage, and the pull of a powerful change in that norm, co-habitation that functions effectively like a marriage (either because the parties chose not to marry or were legally incapable of marriage, because one fo the partners was already married). Fifty years before such a state of affairs would have produced scandal and the law would have provided a legal consequence to social scandal. By the 1970s there was substantially less scandal and the law appeared to move to acknowledge that change. Need the court have extended the interpretation of its own precedents to effect this change? No, obviously such strong changes in social norms might have been reflected in changes to statute. Or it might not produce any change in law other than a refusal of prosecutors to charge or police to enforce. But that courts could, within the scope of their authority, effect such a change through authoritative interpretation of common or statutory law--or in the case of the highest courts, of constitutional law, speaks to the scope of the role of courts and the means by which such a role is exercised.
The mores of the society have indeed changed so radically in regard to cohabitation that we cannot impose a standard based on alleged moral considerations that have apparently been so widely abandoned by so many. Lest we be misunderstood, however, we take this occasion to point out that the structure of society itself largely depends upon the institution of marriage, and nothing we have said in this opinion should be taken to derogate from that institution. The joining of the man and woman in marriage is at once the most socially productive and individually fulfilling relationship that one can enjoy in the course of a lifetime.
We conclude that the judicial barriers that may stand in the way of a policy based upon the fulfillment of the reasonable expectations of the parties to a nonmarital relationship should be removed. As we have explained, the courts now hold that express agreements will be enforced unless they rest on an unlawful meretricious consideration. We add that in the absence of an express agreement, the courts may look to a variety of other remedies in order to protect the parties' lawful expectations. (Marvin, supra).
Taken together, the cases provide an introduction to the role of courts norms, the social order, and the legal order. That introduction exposes that this mediating role is usually, but not always, bound up in a set of interpretive tropes that courts invoke in their role of identifying and memorializing common law and interpreting statutes and constitution within the constraints of the social norms of the society in which such interpretations are required. The forms of those interpretive tropes serve both to constrain the discretion of the courts in their interpretive function and to legitimate their role as authoritative interpreters within the political and social order of the state. It is to the forms of those tropes and the structures within which courts may legitimately act that we turn to in the next several sessions.