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By Alan Behr

NEW YORK, 20 SEPTEMBER 2011 — On the day that Dominique Strauss-Kahn was arrested in New York on charges of sexually assaulting a maid at the Sofitel in Manhattan, the annual meeting of the International Trademark Association opened in San Francisco, drawing thousands of lawyers from around the world. From among the many French lawyers attending the INTA meeting emerged two camps: one held that Strauss-Kahn, the head of he International Monetary Fund, was a known sex addict; the other camp believed that the whole thing could have been a set up by agents of French President Nicolas Sarkozy in order to take down the man likely to lead the Socialist opposition against him in the coming election. The French lawyers appeared uniformly surprised, however, at the swiftness of the reaction by law enforcement, the seventy-four year sentence that Strauss-Kahn was facing, and the highly public nature of the proceedings.

Trademark law has become highly internationalized, such that lawyers skilled in the area can comfortably predict that what works in their own countries should, with manageable variations, largely work abroad. To the French trademark delegation at the meeting, therefore, a legal system that operates in raw public view, turning inside out not only the private life of the alleged perpetrator but his alleged victim as well — and that provides for a maximum sentence as long as human life expectancy because of a few minutes of unprovoked nastiness — was mysterious to the point of being inexplicable.

What better moment, therefore, to consider Is Eating People Wrong? (Cambridge University Press, 260 pages), a book for lay readers by the Canadian professor of law Allan C. Hutchinson? Blessed with something most legal books lack — a catchy title — Hutchinson’s book explains, in non-technical language, how the legal systems of Britain and its key former colonies developed at crucial historical junctures. The method is the one that is essential to that system: the case study, as revealed by the more prosaic subtitle, Great Legal Cases and how they Shaped the World.

In contrast to legal systems formed along British lines, French law is heavily codified. The decisions of courts may be consulted for guidance but are not controlling, and professorial opinions can carry great weight. The French system was carried across Europe by Napoleonic conquest and by adaptation. British law was spread by colonization. The common law, as the system developed in Britain is known, involves a lighter legislative hand in the main; judges are left free to make rules of law that become precedent within their respective jurisdictions — decisions that, if they find favor, can and do spread to other common law jurisdictions (former British colonies) worldwide.

Lawyers trained in advocacy in common law courts have, as their primary duty, the task of citing prior cases and demonstrating why, due to the particular facts of each, the holdings of those cases either control outright and must therefore be followed, give guidance on how to handle what may be a case of first impression for the jurisdiction in which the case is being decided, or can be distinguished away in whole or part due to a difference in facts or applicable law. Decisions by distinguished judges are often given particular deference, but precedent is not tampered with lightly, even by those courts that are empowered to do so. Because having your day in court is considered essential to the freedoms enjoyed by citizens of countries that have embraced the British ideals of democracy (and, as in the case of the United States, modified and made them their own), taking a relatively sophisticated case from start to finish typically takes a long time, costs a good bit of money, and is almost always open to public scrutiny. To find anything similar to it in the history of the application of scholarship to daily life (the financial aspect excepted), you would have to look to Talmudic study, where the ability to advocate a position on Jewish law, custom and practice depends on the skill with which the commentator can cite primary source materials and commentary by scholars of the past and then defend his position against those offering contrary points of view. It is probably no coincidence that the common law countries have produced so many distinguished Jewish lawyers and judges.

To Hutchinson, great common law cases "are those that have become sufficiently and widely accepted over time as to claim central importance in the legal canon." Hutchinson wisely counsels on the mutability of time-tested doctrine — that the law is always changing and decisions of the past are good precedent as long as they continue to serve the needs and expectations of the present. Indeed, "[g]reat cases show how the law develops by breaking with its past; they confound the idea that the common law develops incrementally and logically."

To prove his point, Hutchinson profiles eight important cases from Britain, the United States, Canada and Australia. True to his thesis, Hutchinson is plainly comfortable with the notion that, many years from now, some or all of them may no longer be good law or even retain their significance. Which is to say that no one seeking the lasting legacy of say, a great philosopher, should seek to make his reputation, whether as lawyer, judge or scholar, in the common law. You can only aspire to be a servant of the ever-evolving law and never its master or even, for more than a brief time, its biographer.

Hutchinson’s method in each of his case studies is a bit like that used by Arthur Conan Doyle in the Sherlock Holmes stories: he takes you down one path, only to turn a corner and bring you to a place you had not expected. His first report, on the case from which the book takes its title, starts as the story of an Australian who bought a yacht in England and in the spring of 1884 had it set sail from Southampton for Australia with a four-man crew. It ends as a meditation on the ethics of cannibalism. The legal case was an appeal of the murder convictions of two English sailors who, adrift for twenty days in a thirteen-foot lifeboat after the shipwreck of the yacht in the South Atlantic, agreed to kill the cabin boy, a seventeen-year-old orphan, who, they claimed, lay near death. They and the fourth occupant of the boat lived off the boy’s remains for four days, when they were rescued by a German freighter and returned to Falmouth. The plea was not guilty "by reason of necessity," and the legal question on which the case turned was whether necessity was indeed a defense to the charge of murder.

Although the judiciary is theoretically apolitical in its work, Hutchinson builds his own credibility by acknowledging that politics and social custom will come into play whenever judges take a branch of law to a new direction. Public sympathies were with the defendants in the lifeboat case, and although the Divisional Court of the Queen’s Bench rejected the defense of necessity and sentenced the defendants to death by hanging, Hutchinson believes that it was all just for form — and to prevent the addition to the books of precedent that holds necessity to be an acceptable defense — because, just days later, acting on advice of the home secretary, Queen Victoria commuted the sentences to six months’ imprisonment.

A trial with a fudged outcome that does not embrace a new criminal defense may not fit Hutchinson’s own definition of what a great case means, but it’s a clever and engrossing way to start a legal book. As something of a save, a postscript brings the question up to date with more recent examples, such as a 1984 case in the Supreme Court of Canada: drug smugglers who were forced to enter Canadian waters to make life-saving repairs to their own endangered vessel were permitted to plead necessity as a defense to a charge of smuggling. Hutchinson’s conclusion: the law will continue to struggle to follow (or at least appease) the public’s moral predilections and he remains skeptical that contemporary judges have done better work with it than the court in the lifeboat case.

A chapter that starts as the story of May Donoghue, a Glasgow shop assistant taken out for a special treat by a friend in the summer of 1928, turns into the story of a true break from legal tradition — a ruling that has helped inspire dreams of riches in common law negligence lawyers ever since. Donoghue’s treat consisted of two scoops of ice cream in a pool of ginger beer. The opaque bottle that the ginger beer came from allegedly poured out a partially decomposed snail, and Ms. Donoghue became very ill for nearly one month, missing work and losing pay. The friend had paid for the ginger beer, which meant that Ms. Donoghue had no contractual relationship with the ice cream parlor that sold it to her, nor did she have one with the manufacturer, which had sold it to the parlor. Because the shop could have not detected the snail in the opaque bottle, a case of negligence was filed against the manufacturer alone. (The manufacturer would soon deny it even filled the bottle.)

It took nearly four years before the highest court in Britain changed the law, which until that time had made it impossible to sue a manufacturer for a faulty product unless there was a contract, the manufacturer knew of the flaw, and the product was inherently dangerous to use. The court’s ruling meant that a manufacturer had a duty of care to the consumers of its products, even if there was no contract, even if it didn’t know of the flaw, and even if the product was nothing more inherently dangerous than something you pour over your ice cream. And so the maker of the ginger beer would be held liable for damages that Ms. Donoghue could prove. The case was ultimately settled for £200, which far exceeded the plaintiff’s lost earnings; right from the beginning, therefore, breach of duty of care has carried with it the opportunity of financial gain, a tradition that has helped inspire trial lawyers and fuel the liability insurance business ever since.

The 1954 United States Supreme Court case of Brown v. Board of Education of Topeka, also profiled by Hutchinson, struck down the separate-but-equal formulation that had been used to segregate schools, beginning a new age for civil liberties and decades of controversy over the intrusion by federal courts into the lives of local communities, as federal judges, who are accountable to no one but other federal judges and are appointed for life, took on great powers to approve or disapprove desegregation plans of local school districts. The result was that schoolchildren were often moved by buses to schools far from their own homes, inconveniencing families and engendering bitterness against the courts. Change, especially when it affects the lives of a broad base of individuals who do not see themselves as benefitting from the outcome of the change, does not come without protest, however worthy the social goal that may have inspired it. And politics, as Hutchinson observes, is never far from the law, however much its presence is nominally made unwelcome.

Winning the case that makes history because it changes the law is the Holy Grail of common-law trial lawyers, but such a win is a rare thing — the litigator’s equivalent of hitting a hole in one. Indeed, it is safe to say that, if you engage a lawyer and hear from him that, to win your case, you and he are going to "make new law," you should be cautioned that what he is really saying might be, "Your case is almost surely a loser, but I hope to make my reputation and some money trying to win it."

Where does that leave Dominique Strauss-Kahn? With the dismissal of the charges against him in New York, that is again a question that will be answered in France. Yet it must remain hard for French lawyers to comprehend the public nature of all that has happened in the land of his brief imprisonment, from the prosecutor’s letter to the defense, owning up to veracity problems with the alleged victim, to her own debut in the media, to the defendant’s departure for home. (Under the common law, there is always the danger that justice will be influenced by the parallel trial by media to which famous cases are subjected, and the system has safeguards available to help prevent that from happening.)

It is difficult to conceive that a sixty-two-year-old man in a key international post who has to check out of his hotel, meet his daughter for lunch and then catch a transatlantic flight, and who has "run for president of France" penciled into his calendar, would have the time, interest or ability, on impulse, to jump a hotel maid nearly half his age — because she blundered into his suite, thinking it was empty. At first, based on media reports, Strauss-Kahn appeared to be, to use the technical legal term, a man in deep merde. Fortunately, although it can sometimes appear that the United States has substituted trial by jury with trial by media, that is emphatically not the case. At least as far as the criminal law of New York is concerned, the answer to the mystery of what truly happened at the Sofitel in Manhattan the day that DSK checked out is that there may never be an answer because, presumed innocent, he correctly remains so, and no judge has the authority to rule one way or the other. That only proves the system worked in his case, whatever its imperfections. That it works in most cases is a tribute to the continued importance of developments in case law of the kind explored in Hutchinson’s book.

Is Eating People Wrong?: Great Legal Cases and How They Shaped the World
By Allan C. Hutchinson

Hardcover: 260 pages
21 black and white illustrations
Cambridge University Press (December 2010)
ISBN-13: 978-1107000377 

Paperback: 260 pages
21 black and white illustrations
Cambridge University Press (December 2010)
ISBN: 9780521188517

Alan Behr practices intellectual property law at the New York office of Alston & Bird LLP. He last wrote on the German film The Wave for Culturekiosque.

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