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The following books by Robert Paul Wolff are available on Amazon.com as e-books: KANT'S THEORY OF MENTAL ACTIVITY, THE AUTONOMY OF REASON, UNDERSTANDING MARX, UNDERSTANDING RAWLS, THE POVERTY OF LIBERALISM, A LIFE IN THE ACADEMY, MONEYBAGS MUST BE SO LUCKY, AN INTRODUCTION TO THE USE OF FORMAL METHODS IN POLITICAL PHILOSOPHY.
Now Available: Volumes I, II, III, and IV of the Collected Published and Unpublished Papers.

NOW AVAILABLE ON YOUTUBE: LECTURES ON KANT'S CRITIQUE OF PURE REASON. To view the lectures, go to YouTube and search for "Robert Paul Wolff Kant." There they will be.

NOW AVAILABLE ON YOUTUBE: LECTURES ON THE THOUGHT OF KARL MARX. To view the lectures, go to YouTube and search for Robert Paul Wolff Marx."





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Friday, March 12, 2021

GOLDEN OLDIE NUMBER TWO

 A word of explanation is called for. Thirty-five years ago I was asked to prepare a paper on Kant's legal philosophy that was originally intended to be published in the Columbia Law Journal as part of the proceedings of a conference, but the students in charge of the journal wisely recognized that what I have written did not really call for such distinguished recognition so instead they asked me to write a report of the conference. This paper is that report. When the students read it, they were obviously appalled and I got a collective phone call from the editors of the Journal in which they delicately suggested some editing changes. I said that as a matter of principle I never allowed anybody to edit what I write but that I would not be at all upset if they chose simply not to publish it. There was an explosive outpouring of breath that had been held tight by students who saw their careers going down the tubes and we parted friends. I put the paper back in my file drawer and, as they say in the soaps, moved on.


WHY INDEED


by

Johannes Climacus

Responsible for publication Robert Paul Wolff


 


The Workshop in Kantian Legal Theory, of which the papers reproduced here are a partial record, was a curious event, withal. Nineteen men and one woman, closeted - and cossetted - for three days in Columbia Univer­sity's Arden House for the avowed purpose of discussing the jurisprudential theories of the greatest philosopher who ever lived, Immanuel Kant. Fifteen hundred dollars plus expenses for the six authors of the papers circulated in advance for discussion, five hundred for those charged with participating in the discussion, the bill to be paid by the right-wing Liberty Fund, whose minatory representative, eerily resembling the Jehovah's Witnesses who every day radiate from their home in Brooklyn Heights to proselytize the faith, attended each session to make sure that the hired hands put in a full day's work.

Five of the nineteen were professional philosophers, four of them Kant scholars who had made their reputations struggling with one or another of Kant's great works. Twelve hours of concentrated discussion on Kant's phil­osophy was, in Eliza Doolittle's words, mother's milk to them, and Philoso­phy being what it is, the pay wasn't bad either. But the remaining fourteen were professors of law - two from Canada, one from England, a lone represen­tative of the German Federal Republic, and the rest from the United States. What, one could not help but wonder, were they doing there? What could Kant possibly have to say to them that would justify three days of unrelenting Kantshtick?

The cast of characters itself was more than passingly interesting. Leading the group, the organizer of the conference, diminutive, erect, rath­er military in bearing, looking like nothing so much as the Major in BEAT THE DEVIL, was George Fletcher, Professor of Law at Columbia University. Kant clearly had a powerful valence for Fletcher, and one felt that the invocation of his name was code for intensely felt hostility to unspecified, but dangerously lax, tendencies in modern legal thinking. He seemed to draw strength from even garbled allusions to significant texts in Kant's ethical writings.



Most voluble of the nineteen was Fletcher's colleague, Bruce Ackerman, brilliant, precocious, enormously — and on occasion, with some justification — pleased with himself. Antaeus—like, Ackerman would draw renewed strength from the sound of his own voice, so that launched upon a comment of finite scope, he would be refreshed by his words, and extend his remarks to fill all available space and time. Competing with Ackerman for the floor most often was the radical philosopher and sometime Kant scholar Robert Paul Wolff, whose face, contorted by a persistant facial tic, showed excitement, disgust, irritation, and exasperation in quick succession. Ackerman and Wolff, like the two youngest boys at a Seder, frequently competed to see who could ask the most questions from a reclining position, both of them manifestly expecting an indulgent Jewish mother to pat them on the head and offer them another piece of cake.

Intervening with impassioned criticisms that often outran their target somewhat was newly—tenured Andrzej Rapaczynski, also of Columbia Law School. Rapaczynski, quite possibly the philosophically quickest mind at the conference, had many years earlier been a brilliant student in the Columbia philosophy department, and had studied with Wolff. Now that he is safely tenured, it can perhaps be acknowledged that Rapaczynski is really a philosopher, not a Jurisprude, and in his youthful enthusiasm he was frequently less successful than his fellow philosophers in concealing his dismay at the appallingly low level of understanding of Kant manifested around the table. 


Across from Ackerman and Wolff sat tall, thin Mary Gregor, bent in a question mark of deference to her neighbor, Douglas Dryer, a long—time Kant scholar from Canada. As the only real expert present on the subject of the conference — she is the author of the major commentary on the work under discussion — Gregor was of course almost silent during the three days. Genuine technical knowledge was in short supply, and would, if too often dis­played, have tended to inhibit the free flow of conversation.


Casting something of a pall on the proceedings was Professor Dr. Wolfgang Naucke of Frankfurt University, a Professor of Law and a Judge. For Naucke, it appeared, Kant constitutes the last barrier separating western civilization from barbarism, although whether from the left or from the right remained for a while unclear. Naucke's discussion of Kant was couched in a grammatical mode that might be dubbed the incantatory imperative, inspiring in the listener contradictory impulses to cheer and salute. Naucke's true colors were revealed almost by accident, midway through the discussion of his paper. Asked directly and flatly whether he considered Kant's jurisprudence incompatible with the welfare state, he replied, laconically, yes. At that, Wolff, who had been dozing, sat bolt upright like the dormouse at the Mad Hatter's tea party and confessed himself suddenly to have recaptured an interest in the proceedings.

In striking contrast to Naucke, Herbert Morris, Dean of Humanities at UCLA, brought a welcome touch of laid—back California cool to the conference, taking the sting out of the Morningside Heights intensity of Ackerman, Rapaczynski, et al. Morris is well known for his philosophical discussions of the theory of punishment, and had in previous years carried on a debate in the literature on that subject with one of the Kant scholars present, Jeffrie Murphy of Arizona State. Prompted by a question during the discussion of Murphie's paper, Morris treated the conference to an exquisite illustration of how to expound a systematic philosophical position while appearing merely to reminisce about an experience on a California freeway. Morris' impromptu remarks were one of the few moments of genuine style in an otherwise pedestrian three days.

The non—Canadian North Americans around the table were intermittently chivvied, with ironic deprecation, by crypto—Thomist Ernest Weinrib from the University of Toronto. Weinrib, and his killer rabbit sidekick Peter Benson from McGill, were the only lawyers at the conference who appeared seriously to be interested in the substance of the law. Weinrib's complaint, the internal incoherence of tort law south of his border, and the contrasting beauty and elegance of Canadian tort law, utterly mystified the philosophers around the table, but appeared to be an old familiar tune to the other lawyers.

 As Spinoza noted, the self comes to know itself only as it sees itself reflected in others. Hence lovers need the beloved, actors crave audiences, and professors tolerate students. Fletcher, understanding these needs, had, like a good host, provided a symbolic student presence in the form of the editorial board of the Columbia Law Journal. They were of course enjoined from interrupting the heavenly discourses by juvenile interventions, but they were permitted to be present at the proceedings, with the understanding that they would in due course turn over the pages of their journal to the finished products.

The relation of the students to the conference participants, peripheral though it was to the main action, offered a lovely example of the sort of ironic misperception of which Jane Austen made such elegant sport. The students were of course perceived by their mentors as adoring acolytes, consumed by academic primal scene scopophilia [a technical term from psychiatry, meaning the obsession to observe one's intellectual parents in rational intercourse]. The students, all of whom had done philosophy either as grad­uates or as undergraduates, were in a state of shocked dismay, quite well aware of the philosophical shambles unfolding before them, and unable to im­agine how they could in good conscience feed the audience of their journal so thin a gruel. 

And there they all were, removed from the distractions of Manhattan, fed and cared for by a silent, efficient Arden House staff, serenaded by a chamber trio on the second evening, and embarked on twelve hours of investi­gation Of the Rechtslehre, Part One of Kant's late, minor work, THE METAPHY­SICS OF MORALS.

Each two-hour session was devoted to one of the prepared papers, which all conference participants had received in advance. Robert Paul Wolff led off on the first afternoon. Wolff, accustomed to the terse prose style of the philosophical world, and mistakenly expecting to have to read his paper aloud, had been well along in the drafting of eighteen or twenty carefully crafted pages when a chance phone call to Fletcher had revealed that the other participants were producing 'fifty to eighty pages.' Panicked by the potential mortification of showing up with the shortest paper on the block, Wolff discarded his draft and began again. Since the paper was intended for non-philosophers, he reasoned, a fair amount of space could usefully be de­voted to teaching them something about Kant. Having written two books on Kant's philosophy, and having taught Kant for thirty years, Wolff found it no great strain to churn out fifty pages in the next four days, and it was this effort that the conferees had all read. [Wolff was inordinately pleased with his effort, and much excited by the prospect of publishing a fifty-page paper in the Columbia Law Journal. The students, not fooled for a moment, spoke many kind words to him but chose not to publish.]


The gravamen of Wolff's effort was that just as Kant's moral philosophy has to be read in the light of the deeper doctrines of the CRITIQUE OF PURE REASON, in which context it becomes clear that there are fundamental contradictions between the two which mortally undermine the moral philosophy, so too Kant's legal philosophy must be interpreted through its relation to Kant's fundamental epistemological teachings, with equally disastrous consequences. The implication of Wolff's remarks was that the Kantian legal philosophy was without defensible foundation. Consequently, although the session was pronounced a great success, and was said to have started the conference off in fine style, Wolff's argument was henceforth completely ignored.

A break for drinks and dinner, and the participants returned, fueled and lubricated, for an evening discussion of Fletcher's 89 page note. Fletcher's paper bearing only a parametric relation to Kant, there was considerable hermeneutical space between object—text and subject—discourse within which an unfettered conversation could develop, and everyone pitched in with enthusiasm.

And so it went for two more days. The next morning, Naucke's apocalyptic warnings were followed by Weinrib's animadversions, with Murphy's scholarly and professional addendum to his well—known writings on Kant's retributive theory of punishment preparing the group for the chamber music to follow. The conference was brought to a close with an elegantly evasive defense, by the cultivated Oxford homophobe John Finnis, of his utterly appalling paper.  David Richards, a principal target of Finnis' crabbed and ungenerous remarks, conducted himself with a restraint that was made all the more effective by the eloquence of his reply. The Finnis session was graced by the one moment of genuine scholarship: in rebuttal of Finnis' implausible attempt to claim Kant's support for his own sectarian views, Mary Gregor, apparently from memory, conjured an obscure Kantian text that decisively demonstrated the incorrectness of Finnis' interpretation. Finnis, his hands contorted into twisting claws of emphasis in the characteristic third—generation Wittgensteinian manner, was momentarily reduced to silence.

And so we return to the question that provoked Wolff to a restless quizzing of his fellow conferees: why Kant? What were busy, successful, worldly lawyers [worldly, at the very least, by philosophical standards] doing locked in three days of debate about Kant?  Some of the participants suggested that they were looking for a shtick to beat the utilitarianism of the left. Others identified the 'law and economics' of the right as their target. But neither group gave any indication of a serious interest in the arguments with which Kant had sought to establish his arcane and rather paradoxical philosophical theses. Arguments, unlike shticks, not being adaptable to purposes other than those for which they were fashioned, what did anyone at the conference hope to get from Kant?

The answer is this: lawyers, unlike serious philosophers [but, in this regard, quite like second—rate philosophers], do not actually seek to demonstrate the positions they defend. Rather, they aim to assimilate issues with which they are concerned to the existing structure of laws and precedents in hopes that courts will construe those issues in ways that favor their clients. For this purpose, lawyers need a large and versatile armamentarium of concepts, categories, distinctions, and argument fragments with the aid of which they can articulate intuitions, convictions, or interests to which they are already committed. Both utilitarianism and cost/benefit analysis provide just such weapons to advocates of the left or the right, none of whom can be said ever to Prove their positions, but all of whom gain argumentative leverage from their ability to embed their advocacy in a preexisting proof—structure.



Kant's philosophy is a rich resource of arguments, concepts, and dis­tinctions, already elaborated into an architectonic of subordinations and coordinations, incomparably high in intellectual and academic status, and lying entirely within the public domain. Philosophically speaking, it is to utilitarianism, cost/benefit analysis, or Rawls' THEORY OF JUSTICE what a strategic nuclear weapon is to a medium tank. Invocations of the Categorical imperative or the noumena/phenomena distinction instantaneously confer on the author vast quantities of what teen-age players of Dungeons and Dragons call 'hit points.' In the jargon of the old gangster movies, Kant is the Equalizer. Since lawyers are a combative lot, and good lawyers are winners, three days at Arden House probably seemed like a pretty fair price to pay for a chance at a secret weapon.

Did the Liberty Fund get its money's worth? One hopes not, considering that organization's political orientation. Perhaps the readers of this journal can decide for themselves, having read the best of the papers re­vised and refined in the light of three days of debate. After the partici­pants had left for their several homes, the following notes were discovered at the seat that had been occupied by Robert Paul Wolff. Wolff apparently found the Weinrib paper philosophically suggestive and worthy of serious consideration. His fragmentary jottings have been Englished, as editors like to say, and are offered hare for what they might be worth.


Comments by Robert Paul Wolff on Ernest Weinrib's Paper

A very interesting piece of work. W. is clearly a Thomist who sees in K.'s notion of an 'Idea of Reason' a modern rationale for the Aristotelian-Thomist conception of the telos or internal purpose of a natural kind. Ex­cept that the law, being a human product, can have no other telos than what its makers impute to  it. W. seems hesitant to come out from behind Kant's skirts and declare himself. It is difficult, merely from the text, to tell whether he endorses the notion that the unity of the law is an idea of Reason, or merely attributes it to Kant. But the evident passion with which W. advances his views decides clearly for the former.

W. is certainly correct in his diagnosis of Fletcher and Calabresi on torts [whatever they are], but a diagnosis is not yet a condemnation, let alone a refutation. Why shouldn't those two merely grant W's point, and agree that, absent a purposeful God who has set for Mankind the task of articulating an internally coherent Law, our legal institutions quite properly reflect the fundamental disunity of our society? [Probably Calabresi would be more comfortable with that response than Fletcher.]

But leaving aside such considerations, which bear merely on the truth of W's position, there are serious difficulties with his appropriation of Kant. The problems center on the Critical doctrine of Ideas of Reason.


According to Kant, the intellectual powers of the human mind have both a merely logical and a real employment. In their merely logical employment, our rational capacities are used to compare, contrast, order, and systematise such mental contents as they are presented with, from whatever source. So the arrangement of objects of perception by genera and species, the classification of sense—contents into the familiar five senses, the rearrangement of judgments into the form of syllogisms, and so forth, are all in—stances of the merely logical employment of intelligence. Nothing is created thereby, and the result is no more than a sorting out and neatening up of the materials presented to intelligence.

The real employment, on the other hand, is genuinely creative, resulting in cognitively significant thoughts, or representations, as Kant calls them, that did not exist before, and could not have been arrived at by any process of the comparison, reorganization, or abstraction from presented materials of consciousness.


In the CRITIQUE OF PURE REASON, Kant differentiates between two intellectual powers of the mind, which he labels Understanding and Reason. The real use of Understanding, he says, produces the Pure Concepts of Understanding, or, as they are usually referred to, the categories, among which are Substance and Accident, Cause and Effect, Possibility, Necessity, and so forth.


Reason, personified by Kant as a purposive agent, is said always to strive to complete the processes of organization and arrangement which it undertakes in its merely logical employment, seeking everywhere for the first cause in the series of causes, for the necessary being on whose existence rests the possibility of contingent beings, the first premise from which all syllogistic reasoning descends, and so forth. Kant calls this the quest for the unconditioned, and he claims that the product of the real employment of reason is the concept of the unconditioned. For reasons of piety and historical pendulation [to use Harnack's lovely neologism], Kant resurrects the Platonic term 'Idea,' and calls the various articulations of the concept of unconditionality 'Ideas of reason.'

Kant knows, of course — indeed, he insists — that such Ideas can never find instantiation in experience, for on Kant's own teaching, all experience is conditioned by the mind—dependent constraints under which things can be objects for us in space and time. Hence we can never find a first cause, a free will, a necessary being, or, for the same reasons, a system of law that achieves full inner coherence. Nevertheless, Kant claims, with absolutely no justification whatsoever, would not instill in us the unconquerable urge to seek the Unconditioned unless She had some useful purpose thereby. So we may conclude that although the search can never be completed, the quest is set us as a task. The search for an internally coherent tort law, like the search for a single unified theoretical foundation for the sciences, or a single set of logical premises from which all true mathematical theorems follow as logical consequences, or a first cause, a free will, a necessary being, is a search dictated by the inner telos of reason, setting for us, as an unattainable goal, an Ideal of Reason. [It is not clear why Wolff reminds himself here of certain elementary facts about Kant's philosophy with which he would be thoroughly familiar. I. C.]

But though Kant talks this way all the time, he offers no argument at all for the repeated invocation of Nature's purposes with which the introductory and less central portions of his writings are filled. In fact, of course, Kant himself, through his devastating refutations of the traditional attempts at proving the existence of God, is, together with David Hume, the Enlightenment executioner of this way of speaking. It is entirely incompatible with the deeper teaching of the CRITIQUE to speak of the inner coherence of tort law as though its achievement were an objectively necessary task set us by the inner purposes of Reason itself. Rather, we must recognize that ideal for what it is: one ideal among many that lawyers or theorists of law may set for themselves, for their own political, aesthetic, moral, or professional purposes.

So, in the end, W.'s essay is little more than a cri de coeur, and Fletcher's two—stage process of considerations of right followed by considerations of humanity is as legitimate as any other. W's use of Kant here illustrates a more general difficulty with the too—quick appropriation of portions of a philosophy, as though they were bits and pieces of material that could be separated from the main body of theory and bent to purposes of one's own. The philosophy of a great thinker like Kant is an organic unity unfolding from one, or at most a very few, central insights. One's under­standing of every element in that philosophy, however secondary or peripher­al, is thoroughly conditioned by one's construal of those central insights. Before we can 'use' the Kantian notion of an idea of reason, for example, we must decide how we understand the revolutionary teaching that concepts are rules for the organization of a diversity of sense-contents, and hence have not even problematic application beyond the limits of sense experience

W. cannot escape the necessity of stating, and defending, his aesthet­ic, moral, political or professional reasons for seeking internal coherence in the tort law, or in any other set of institutional practices, for that matter. But this was simply the message of my opening presentation.  I guess it really was the waste of time it seemed.


22 comments:

David Zimmerman said...

Keep those golden oldies coming......

Sparks said...

That was a very nice read.

I'm especially fascinated with the part about Mary Gregor. Besides her work as a translator, I'm ashamed to say I knew nothing about her before you mentioned her here. Now I'm eager to learn more.

doogie said...

Bravo, Professor, a sublime example of Gonzo reporting. Hunter Thompson, had he survived the second barrel of that shotgun would, no doubt, be proud.

John Rapko said...

I loved this, but I'm surprised and disappointed that Prof. Wolff would stoop so low as to claim authorship. It's obviously written by P. G. Wodehouse; the only thing missing is the homily on the merits of the Empress of Blandings.

Robert Paul Wolff said...

Alas, outed by John Rapko.

Guy Mizrahi said...

the world is 4 billion years old and we got to live at the same time as Professor Wolff; free to enjoy his incredible writing and lectures. What a blessing :)

David Palmeter said...

HELP!!!

When I opened this blog link this morning, all of the text was in very small type--too small for me to read. That's not the case with any other blog I open, nor is it the case with the comment section of this blog--only Prof. Wolf's text--as of this morning.

Does anyone have a idea of what went wrong and how I could fix it?

s. wallerstein said...

With Google Chrome at least you can change the zoom on the text to increase the size. It's on the upper right side of your screen.

Samuel Chase said...

“[L]awyers, unlike serious philosophers [but, in this regard, quite like second–rate philosophers] [Ahem], do not actually seek to demonstrate the positions they defend. Rather, they aim to assimilate issues with which they are concerned to the existing structure of laws and precedents in hopes that courts will construe those issues in ways that favor their clients. For this purpose, lawyers need a large and versatile armamentarium of concepts, categories, distinctions, and argument fragments with the aid of which they can articulate intuitions, convictions, or interests to which they are already committed. … .”

What Prof. Wolff has written is largely true, but not as straightforward as it may sound. Different lawyers see and use that armamentarium in different ways. And to be a very good lawyer, the lawyer has to be able to think outside the box in order to see creative ways to use the tools in that armamentarium. And as has happened on previous occasions, Prof. Wolff’s post coincidentally intersects with my life. On Monday, March 15, I will be filing the most controversial lawsuit in my career. I am filing a lawsuit in federal court to undo a state court decision which was rendered five years ago, and which was affirmed by the Supreme Court of the state in which I practice – a very difficult thing to do. Moreover, what makes it even more controversial and difficult is that I am naming as a defendant in the lawsuit the judge who presided over the “trial” and rendered the judgment against my client. Naming a judge as a defendant rarely happens. This may be the first time that it has happened in my state. Why? Because judges have absolute immunity for the decisions they render in court – they cannot be sued for money damages. Moreover, they are also immune under the 11th Amendment, because they are employees of the state in which they preside, and under the 11th Amendment a citizen of a state cannot sue the state, any department of the state, or any employee of the state for damages in federal court. (If you read the 11th Amendment, you will note that is not at all what its says – it says that a citizen of one state cannot sue another state. But in a notorious decision, Hans v. Louisiana (1890), the Supreme Court ruled that the 11th Amendment also applies to citizens suing their own state.

(Continued)

Samuel Chase said...

So, given all this, why the hell am I doing this and how the hell can I expect to prevail? Because I have been thinking outside the box. And the facts of the case provide some illumination. My client had hired a home remodeling company that had an excellent reputation. She agreed to pay them x dollars in order to redo the electric wiring of her newly purchased home (it was a very old house and had antiquated knob and tube electric wiring, which is a fire hazard). The company was to do the rewiring, and while they were at it, replace the old insulation with new insulation. She was required to make a deposit of a substantial amount of money of ½ x, which she did. She was also required to purchase two permits from the city where she resides for both the electric and insulation work, which were paid for from the deposit. After the company claimed it had completed the insulation work, an inspector for the city gave the work a “pass,” meaning it had been done correctly. However, things between the company and my client began to break down because she was not satisfied with the quality of the work they were doing (e.g., they had to remove the baseboards in order to redo the wiring, but they broke and damaged the baseboards in the process, and tried to replace them with new baseboards which did not match the undamaged baseboards which they were going to reinstall). As part of the contract, she was told in an email that she did not have to pay the balance of the contract until it was done and she was satisfied. When things began to break down, the company demanded that she pay the balance of the contract, and she refused. So the company ordered the work crew to walk off the job, leaving the house with electric wires hanging out all over. The company then placed a construction lien on the home for the amount of the outstanding balance – and then they sued her for breach of contract.

In the meantime, my client (whom I will refer to as Jane) asked the chief inspector of the city to inspect the house, and he determined that, in fact, the insulation work had not been done. He poked a hole into one of the walls and, lo and behold, there was no insulation. But he refused to revoke the pass that his co-inspector had already issued. Jane had the misfortune to hire an attorney to represent her who did not know what the hell he was doing. For example, he filed a counter-complaint, but failed to include a claim that the construction company had breached the contract by walking off the job before the work was done. She also had the misfortune of drawing a very vindictive judge who is actually a bully in a black robe. Every motion that the company brought, he granted. And every motion that Jane’s attorney brought, he denied. For example, he would not allow him to amend his counter-complaint to add a claim of fraud, on the same day that he allowed the company’s attorney to add a claim of unjust enrichment. He then denied a motion by Jane’s attorney to add an expert witness to his witness list, because he filed it only two months before trial.

(Continued)

Samuel Chase said...

Three days before trial, Jane’s attorney gets cold feet and tells Jane that he wants to move to withdraw from the case because he does not have time to prepare for the trial. The judge ignores the motion. Then Jane files a motion to appear on her own behalf to represent herself. The judge ignores her motion as well. Comes the day of trial, Jane’s attorney does not appear, and nor does Jane, because she has not been given permission to represent herself. What does the judge do? He initially indicates to staff that he was going to adjourn the trial so that Jane could hire a new attorney, which would have been the fair and constitutional thing to do. However, because Jane’s mother appeared in court and was raising a ruckus about her daughter not having an attorney to represent her, the judge, out of vindictiveness, decided to go forward with the trial with only one side represented, empaneled a jury, and then entered a default judgment against Jane. He granted the company the outstanding balance on the contract, as well as their attorney fees, all of which added up to a pretty large chunk of money. Jane filed an appeal on her own, but because she does not have an attorney, the appellate court denies the appeal because she failed to cite any case authority in her brief. She then hires an attorney to seek leave to appeal to the state supreme court, which denies leave. At this point it all appears like things are over for Jane. She goes to several other attorneys to see if anything can be done, and they all tell her there is nothing that can be done. They cannot sue in federal court, they believe, because of two legal doctrines – the Rooker-Feldman doctrine, which holds you cannot sue in federal court to challenge a state court decision. Your only option is to appeal up the ladder through the state appellate courts, and then seek leave to appeal to the U.S. Supreme Court, which she did not do (the Supreme Court would not likely have granted leave in any case). And then there is another doctrine, called res judicata, which means you may not raise in another lawsuit claims which you did not raise, or could have raised, in a prior lawsuit. End of story.

After the judgment was entered, the company garnished Jane’s disability payments, in order to pay off the judgment – which was unlawful, because disability payments are exempt from garnishment. The company’s attorney then tried to sell the house in a sheriff’s sale to pay off the construction lien. Jane, the last minute obtained a loan to pay off the construction lien the day before the scheduled sheriff’s sale – but the company would not let her into their office to pay off the lien to avoid the sheriff’s sale. So Jane had to contact the sheriff’s office to force the company to allow the sheriff’s deputy into their office to pay off the lien and cancel the sheriff’s sale. The judge then appointed a receiver, who hired a property management company to lease another house that Jane owns in order to general rental income to pay off the judgment lien, which now only includes the attorney’s fees, which are increasing by the day because the fees accumulate interest. The tenants to whom the management company rent Jane’s other house damage the house and the property management company leaves the damage unrepaired.

(Continued)

Samuel Chase said...

Three weeks ago, Jane’s mother called me out of the blue because she saw my name on the internet relating to another lawsuit in which I am suing the city in question for violating the 1st Amendment right of freedom of religion of a number of residents (a story which I will forego explaining). I think she is calling to offer information about that lawsuit, and then she launches into this tale of woe regarding her daughter. I think, initially, this woman is a bit meshugenah, but decide to give her the benefit of the doubt because she tells me that her daughter owes so much money now that she is suicidal, and I am troubled by the fact that the judge proceeded to hold a trial when the defendant was not represented by counsel. I ask her to email me some documents. I then get inundated with several thousand pages of documents, including all of the witness depositions, all of the pre-trial hearing transcripts, the trial transcript itself, tons of emails, briefs, etc., etc.

So I start to review all of these documents and read all of the transcripts. And lo and behold, what do I find – I find that Jane had filed a complaint against the company with a state agency, and the state agency had issued a formal complaint against the company that had four counts. The first two counts accused the company of violating state law by claiming Jane had signed a five-page contract, which included exclusions of work they claim Jane agreed to, but she had in fact only signed the first page, because that was all she was given to sign. The second count charges that the contract was invalid because the company employee who negotiated the contract with Jane was not licensed. The last two counts charge the company with shoddy work. The company, I assume to avoid the expense of a long drawn out administrative proceeding, agrees to a Consent Order regarding the first two counts, and the last two counts are dismissed. Moreover, the president of the company signed a Stipulation – an admission of truth – that the document the company claims is the contract with Jane violated state law and is therefore null and void and unenforceable. And then I read the trial transcript in which Jane was not represented by an attorney - and lo and behold, I find the following: the company’s attorney had the president identify the five-page document as the contract with Jane, a document which he had agreed with the agency violated state law. The “contract” was marked as an exhibit and admitted by the judge – without the judge knowing that a state agency had ruled the contract violated state law! In so doing, the company – and its attorney – committed a fraud on the court, and the attorney had suborned (a fancy word for “induced”) perjury. Why is this important? Because fraud on the court is one of the exceptions to the Rooker-Feldman doctrine – you cannot go into federal court seeking to overturn a judgment in state court – unless you can prove that the judgment was obtained by fraud. And what about res judicata? That only applies if the claim you are making was raised, or could have been raised, in the prior state proceeding. But the issue of fraud was never raised, and was never adjudicated on, because the judge denied her attorney’s motion to amend the counter-complaint to include a claim of fraud.
(Continued)

Samuel Chase said...

So, on March 15, I will be filing a 75-page Complaint in federal court, containing 5 federal law and constitutional law claims, as well as 10 state law claims, to which will be attached 45 exhibits, asking that the Court rule that the judgment is null and void, because it was obtained by fraud on the state court and the subornation of perjury. I am also suing the city for violating Jane’s 5th and 14th Amendment rights because it required her to pay $350 for a permit to perform insulation work which a city inspector then issued a pass for, stating that the work had been done when it had not been done, a pass which was offered as an exhibit at the trial to prove that the company had done the insulation work and that Jane was violating the contract by refusing to pay for work which they claim had been done, but which had not been done. By requiring Jane to buy a permit which entailed that a city inspector would have to approve the work, but then the inspector gave a pass for work which had not been done, the city essentially took Jane’s $350 without providing the service that the payment is for, which constitutes an unconstitutional “taking” under the 5th Amendment and a deprivation of property without due process under the 14th Amendment. I am also suing the judge for violating Jane’s 1st Amendment right of access to the courts, and her 14th Amendment right to procedural due process, for proceeding to hold a jury trial without the defendant being represented by an attorney, rather than adjourning the trial to allow Jane to hire a new attorney, and that he did so out of vindictiveness, retaliating against Jane because he was pissed off at Jane’s mother. And no, I am not suing the judge for money, because he is immune, but I am suing under an exception to the 11th Amendment which allows a citizen of a state to sue an officer of the state not for damages, but for declaratory or injunctive relief, i.e., I am asking the federal court to issue a ruling – a declaratory judgment – that by proceeding to trial with a litigant not present and not represented by an attorney, he violated Jane’s constitutional rights. When I file this lawsuit on Monday, and the press gets hold of it, all hell will break loose – and there will be one very angry state court judge. And by the way, I am not charging Jane a cent; she only has to pay for the court costs – filing fee, deposition costs, etc. I just want to make sure that this travesty of justice gets reversed.

So, yes, attorneys apply an armamentarium of concepts, categories, etc. to try to obtain justice for their clients, but some attorneys are better at using those tools than others, and it takes inventiveness, creativity and diligence to use them to the client’s best advantage.

David Palmeter said...

s. wallerstein

Thanks very much. That worked.

s. wallerstein said...

David Palmeter,

Great!

Samuel Chase said...

Post-script:

If you have read this far, you may be thinking, “Why doesn’t Jane just sue her former attorney for legal malpractice for not showing up at the trial? Can’t she recover form him all of her damages, since he caused them?” Well, she has retained another attorney to sue her former attorney – except her former attorney did not have legal malpractice insurance and therefore is probably uncollectible. Her attorney suing her former attorney had declined to try to get the judgment overturned, because he saw no way to do it. Enter Samuel Chase.

jeffrey g kessen said...

Sammy, baby, stop discrediting yourself with these over-long Comments. Every one already knows that you're some kind of legalistic genius. You need not keep attempting to prove it--- rather undermines you're thrust actually.

Samuel Chase said...

Jeffrey,

As usual, you missed my point. As Brian Leiter pointed out in his essay, “Disagreement, Anti-Realism About Reasons, And Inferences To The Best Explanations,” the first-rate philosophers have been arguing among themselves for several hundred years about what constitutes reasons for action, without any resolution. He ends the essay stating, “the history of philosophy .. is the history of intractable dispute about reasons for acting.” (Footnote omitted.)

While the first-rate philosopher have been engaged in this “intractable dispute,” the second-rate philosophers – the lawyers – have been dealing with the real problems of everyday life – prosecuting criminals and putting them away from the rest of society; defending the purported criminals from the transgression of over-zealous prosecutors; representing clients against people who have taken their property, defamed them, violated their constitutional rights, used excessive force to arrest them, etc., etc. Now, I have a high regard for the first-rate philosophers – I once aspired to be one of them – but I settled for being a second-rate philosopher so that I could help people deal with the problems confronting them in their everyday life – obtaining the government benefits they are entitled to; undoing an unjust verdict; fighting the discrimination they have been exposed to at work because of their race, or their gender, or their religion, or their age; and getting them acquitted from being convicted for a crime that could not be proved they committed beyond a reasonable doubt - something which takes a first-rate lawyer to do successfully, and something I doubt any first-rate philosopher could have done.

L.F. Cooper said...

I'm of two minds about posting this actually, but in case anyone is interested my review of K. Forrester's In the Shadow of Justice is up at the blog of the Society for U.S. Intellectual History:

https://s-usih.org/2021/03/review-of-in-the-shadow-of-justice/

Samuel Chase said...

L. F. Cooper,

In light of my comment above, I may just purchase “In The Shadow Of Justice,” just to read the chapter titled, “The Limits of Philosophy.”

L.F. Cooper said...

@ S. Chase

I realize you're being humorous. My non-humorous response is that while I doubt that that particular chapter wd meet yr expectations, you might nonetheless find the book worth buying (in the paperback edition).

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