This is the property of the Daily Journal Corporation and fully protected by copyright. It is made available only to Daily Journal subscribers for personal or collaborative purposes and may not be distributed, reproduced, modified, stored or transferred without written permission. Please click "Reprint" to order presentation-ready copies to distribute to clients or use in commercial marketing materials or for permission to post on a website. and copyright (showing year of publication) at the bottom.

Dangerous fictions

By Curtis E.A. Karnow Ben Armistead | May 22, 2020

Law Practice,
Judges and Judiciary

May 22, 2020

Dangerous fictions

Legal fictions are problematic because we’re in the truth-finding business. These fictions are dangerous for judges, because judges believe the little stories they tell themselves, and the result is great mischief. And the public, which we serve, has no idea what we’re talking about.

Karnow curtis2 web

Civic Center Courthouse

Curtis E.A. Karnow

Judge, San Francisco County Superior Court

Civil Trials

Judge Karnow is current co-author of Weil & Brown et al., "California Practice Guide: Civil Procedure Before Trial" (Rutter 2017) and most recently, "Litigation in Practice" (2017).

"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean -- neither more nor less."

-- Lewis Carroll, "Through the Looking Glass" (1872)

In the May 20, edition of the Daily Journal, Justice Brian Hoffstadt presented another of his terrific essays (he's in Los Angeles and doesn't review my decisions, so I can say nice things about him). He pointed to "judicial doctrines and practices that work together to ensure that courts reject alternatives realities proffered by litigants and their lawyers" such as disregarding allegations that conflict with facts subject of judicial notice, judicial estoppel, allowing only reliable experts, and so on. It caught me just as I was polishing a little note on legal fictions -- how courts create alternative realities.

So here's the other side of the coin.

Legal fictions are problematic because, as Justice Hoffstadt implies, we're in the truth-finding business. These fictions are dangerous for judges, because judges believe the little stories they tell themselves, and the result is great mischief. And the public, which we serve, has no idea what we're talking about.

In law school we discovered the delights of legal fictions. They are delightful because knowing about them makes us special, in the same way that the accumulation of any professional vocabulary marks those in the know. Some of that vocabulary is useful, because it's shorthand for concepts, and so a building block for the work of those professions. Medical folk prefer saying "ulna" rather than "the smaller of the two arms bones that join to the wrist bones." And lawyers will say "res ipsa loquitur" (the thing shows itself) rather than explain the concept which is just that some acts, like leaving a sponge in a surgery patient's stomach, are so obviously negligent you don't need an expert.

Some of the terms look a lot like ordinary English but mean something different, sometimes the opposite of the plain English meaning. These are dangerous fictions. They are dangerous because they separate us from the public we serve. Legal terminology at odds with, and contradicting, lay understanding feeds public suspicion. These fictions are problematic for the courts, an institution devoted to the determination of the truth and transparency in its workings.

I'll start with a favorite, the cargo cult of consent. Agreements, like contracts, are based on consent. Courts legitimately enforce contracts because they were agreed to by the people involved -- the parties. We'd think courts wouldn't enforce contracts when their provisions are not agreed to, or not known, by the parties. Because then there'd be no consent, consent in the real sense of knowing agreement to terms, which means the parties must know the terms.

But courts frequently do enforce agreements where the terms are not known by the parties. They even do this in opinions where they define a contract in vintage language, as the "meeting of the minds," insinuating real knowledge of the terms. E.g., Quantification Settlement Agreement Cases, 201 Cal. App. 4th 758, 816 (2011); Bowles v. OneMain Financial Group, L.L.C., 927 F.3d 878, 883 (5th Cir. 2019). But if the terms were not known, and only available somewhere -- maybe somewhere in a document, or website, or an accompanying paper, well then even if the party didn't read it, the party could have read it, and you can't make people read things if they don't want to, so that's good enough, and we'll call it a contract. I don't quarrel (not here) with the notion that courts have to enforce contracts even where there's no actual agreement, but let's not fool ourselves: We're enforcing contracts which are not agreements. This raises uncomfortable (but not insoluble) questions about the legitimacy of courts' enforcement, but better to face them than pretend judges are just enforcing the parties' desires. Consumers who find they are bound by the terms of website agreements or privacy policies they never read wonder mightily when courts tell them they "agreed." If they took the legal verbiage literally, they might well think these are judges who do not understand how the world works.

The fiction of a legal "person" is another hoary example. Corporations, other business entities, some trusts, and so on are "persons" in the sense that they can sue and be sued in court. About 400 years ago corporations were organized to allow people to pool funds to make economic ventures without the risk that their personal assets would be at risk if the venture foundered. But the assets of the corporation would be at risk, and if they can be parties in a court, it's pretty obvious corporations need some rights similar to those of natural or real persons, such as the right to due process, be subject to fines, sign contracts, and so on. But corporations aren't really persons. They aren't citizens. They don't vote. They don't sit on juries. However, they have free speech rights under the Constitution -- because the "identity of the speaker is not decisive." Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 342 (2010). That's fine if you've already decided that a corporation is just like a person. But is it? Corporations may have privacy rights. But how can that be? Do they feel violated when their secrets are exposed? Are they shy? Do they have a sense of self? The privacy issue is alive and kicking, and many judges think corporations do have privacy rights -- not just rights to protect commercial trade secrets, which is an entirely different idea, but actual real privacy rights Some courts say it's not a constitutional right, but they don't tell us where else it comes from. Roberts v. Gulf Oil Corp., 147 Cal. App. 3d 770, 796 (1983); SCC Acquisitions, Inc. v. Superior Court, 243 Cal. App. 4th 741, 755 (2015). My guess is it just comes from the idea that a corporation is a person. And corporations have freedom of religion rights. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014). Do they pray? Meditate? Seek salvation or grace? Find meaning through scriptures? How did the Supreme Court come to this? In part because -- that's right -- the dictionary definition of "person" includes "corporations, companies, associations, firms, partnerships, societies, and joint stock companies." Id. at 707-08. But why would the public accept the court's apparent ascription of religious beliefs to entities that only exist on paper?

"For valuable consideration" is a phrase seen in many contracts. In ye olde days, courts needed to know that parties had exchanged things of value in order to distinguish between contracts on the one hand, and gifts on the other hand where there was no such exchange. So in law school we learned about the peppercorn: You could create a contract to get a castle if you exchanged a peppercorn -- it was something of value, if very little value. We don't do peppercorns anymore. Now we just say it: that the thing (say, a castle) was given "for valuable consideration." Here's what it really means: We didn't give anything. It means exactly the opposite. It may seem incredibly stupid to mistake the thing for the word describing it, but a while back I had a trial concerning property deeds which recited "for valuable consideration," which triggered the lawyers to spend time pointlessly proving no one had actually gotten anything of value.

If you see the word "deemed" in a court opinion, run. It means the opposite. Deemed notice means the person didn't actually get the notice. Hayne v. City & Cty. of San Francisco, 174 Cal. 185, 194 (1917); Acosta v. Glenfed Dev. Corp., 128 Cal. App. 4th 1278, 1300 (2005); Santillan v. Roman Catholic Bishop of Fresno, 163 Cal. App. 4th 4, 10 (2008). In pretrial exchanges parties can ask each other to admit stuff; if a party fails to respond, it may be deemed to have admitted a fact, but of course, the party didn't admit anything at all. Wilcox v. Birtwhistle, 21 Cal. 4th 973, 975 (1999); St. Mary v. Superior Court, 223 Cal. App. 4th 762, 779 (2014). Income which is deemed to be from some source may not be from the source. Herweg v. Ray, 455 U.S. 265, 279 (1982). Permit applications can be deemed approved when they're not. Mahon v. Cty. of San Mateo, 139 Cal. App. 4th 812, 816 (2006). Testimony can be deemed credible when the court doesn't actually believe it. Soto-Olarte v. Holder, 555 F.3d 1089, 1095 (9th Cir. 2009). You can be deemed to be an employee of the Public Health Service even if you're not. Alexander v. Mount Sinai Hosp. Med. Ctr., 484 F.3d 889, 891 (7th Cir. 2007). And to complete a loop with my consent discussion, you can be deemed to know the terms of an agreement if you receive it, even if you don't know the terms. Specht v. Netscape Commc'ns Corp., 306 F.3d 17, 31 (2d Cir. 2002). As our leading legal dictionary says, to deem is to "treat a thing as being something that it is not, or as possessing certain qualities that it does not possess." Garner's Dictionary of Legal Usage (Oxford 2011).

As a judge I think this is pretty neat. Deeming is sort of a magic wand effect. To be sure, there are limits to the power: The truth is that deeming something other than what it is, is actually a statement that because of other circumstances, we don't care if the deemed fact is true or not. And those circumstances are usually set forth, somewhere, in laws or court opinions. For example, if someone tries to serve you notice of the filing of suit -- which usually means giving you a copy of the complaint -- but can't, and instead just mails it to you, whether you see it or not you might be deemed to have been served anyway but only under specified conditions. We don't care if you were really served; it's good enough if the other conditions were satisfied, and we're going to proceed with the suit, with or without you, and too bad if you don't actually know about it. Republic of Sudan v. Harrison, 139 S. Ct. 1048, 1059 (2019). I don't quarrel with the result because sometimes it has to be alright to just get along with the lawsuit when you've done everything reasonable to try to let the other party know; but the truth is that there wasn't notice. Let's just say we're proceeding without notice because the requisite conditions are met. Forget deeming.

Many people can't afford a lawyers. They represent themselves in court. That's tough enough without having to figure out when words mean the opposite.

There are many more examples of fun fictions, but let me end with this one: legislative intent. When it's not obvious how to understand a law -- or when it is obvious, but a party wants to read it the other way -- a party will argue legislative intent. You can't tell from the words, we'll say, but the legislature intended to do this that or the other. You look to evidence of intent: maybe speeches, letters, hearings, reports and such, which were issued by the legislators. But this is weird: "Intent" is something people, such as legislators, have. It's a mental state. And legislators may have very different ones. The bill may be a compromise, with language drafted just to get it passed, and the heck with the consequences. I recall trying to figure out the legislative intent of a federal environmental statute, and found out no legislator had read it before it passed. Legislators may have very different ideas of how the courts will parse the law and so vote for it, hoping it comes out OK. Sometimes a law is the net result of bills voted on by entirely different legislators across decades. Courts get cases requiring statutory interpretation which are hard exactly because no one ever contemplated the facts of those cases. And it's odd how, with all the resources in the world and fine briefing from the best lawyers, there can be such a difference of opinion among justices of the supreme court in figuring the intent behind, e.g., the Second Amendment. D.C. v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010). The truth is that, with either a dearth or wealth of materials on intent, one can always find what one is looking for. This sort of reification of legislative intent can be seen when courts write that the language of the law is the best, or a good, hint as to the intent. City of Hesperia v. Lake Arrowhead Cmty. Servs. Dist., 37 Cal. App. 5th 734, 749 (2019) ("statutory language is generally the most reliable indicator of legislative intent"); Crusader Ins. Co. v. Scottsdale Ins. Co., 54 Cal. App. 4th 121, 134 (1997); Stokes v. Baker, 35 Cal. App. 5th 946, 957 (2019). But a court could just say that the words of the law tell us how the law works, and omit the pointless intermediate invocation of an intent.

Courts do have to figure out what statutes mean. They do this the same way we all figure out what anything means, which is by looking at the context: the words, other parts of the law, their setting, the times, what seems to make sense; what works, in a practical sort of way. Invoking "legislative intent" garbs the courts' interpretation with something far more authoritative: It's a claim of direct access to the mind of the authors of the law, a privileged access to the truth which distinguishes a lay public from the priests of the law.

But there is no one author. Legislatures don't have minds and they don't have intents.

Many legal fictions start life with the best of aims. They are summaries of policies or shorthand for a series of analyses. But these inventions, made of thin air, reify; they take on a measure not supported by their lineage. It reminds me of how metaphors work: words first literal, then applied to other contexts -- which are later considered literal. So "run" begins meaning with what we do when moving faster than walking; then one's runny nose, running the company, and the fence which runs along the field. This is fine, and enriching, in the play of language: "The course of true love never did run smooth." William Shakespeare, "A Midsummer Night's Dream," Act 1, sc. 1, l. 132. And then the immortal "riverrun, past Eve and Adams, from swerve of shore to bend of bay...." James Joyce, "Finnegans Wake" (1939). But when judges believe their own magic and use extrapolated, perhaps metaphorical meanings as if they were real, the result can be peculiar. It may not be at all in accord with what the people, for whom all the laws are written and for whom we work, think is true. 

Curtis Karnow is a judge of the San Francisco County Superior Court.

#357807

Ben Armistead

For reprint rights or to order a copy of your photo:

Email jeremy@reprintpros.com for prices.
Direct dial: 949-702-5390

Send a letter to the editor:

Email: letters@dailyjournal.com