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Monthly Archives: March 2013

How the Judge Sees Family Law

How the Judge Sees Family Law


How Litigants See Family Law…

How Litigants See Family Law...

Bartleby the Scrivener: A Lawyer’s Tale of a Most Unfortunate Employee

My favorite lawyer in literature is the nameless narrator of Bartleby the Scrivener. As he describes himself, he is “unambitious” and has never addressed a jury or faced applause, but does a snug, comfortable and safe career as a transactional lawyer. The easiest way of life is the best. He seldom engages in “dangerous indignations.” Bravo.

So we know that the lawyer works in Manhattan as a successful transactional lawyer, as his only named client, John Jacob Astor, has a name that rings “like unto bullion.” By divesting this lawyer of his name, from the beginning Melville divests him of his ego as he tells his crisis of management, something no one teachers in law school. The reader knows nothing about his personal life, this is a business affair. And in business, he has that most irksome of timeless problems: Employees. And a great wall that blocks his view, shoved up within ten feet of his window.

These employees are beautifully drafted: Turkey, Nippers, and Ginger-Nut, the office-boy. Turkey is a rapid-fire rash worker until he’s drunk when he’s mean, Nippers is mean until he’s drunk, the two trading off irate tempers from the afternoon with the morning. Nippers has an ongoing-hate relationship with his desk, shoving it around, concocting raised working spaces to accommodate his aches and pains, in an early anticipation of sciatica, carpal tunnel, and ergonomic office furniture. Ginger Nut is employed primarily in obtaining cakes and food for the two scriveners, with Turkey once erroneously applying a cake in lieu of a seal to a document.

Bartleby is of course, the heart of this tale bringing a gentle and dangerous insubordination: “I would prefer not to.” Aside from being an atrocious grammatical construction, Bartleby is able to insubordinate tasks and assignments by his employer, an assertion of free will without ever challenging the authority of those attempting to give the task. The genius of this simple phrase is in its lack of a positive statement, which through it’s use of the subjunctive never asserts authority or ego, and never positively states a will. He never says I won’t, I don’t want to, you can’t make me. And all the same, the lawyer can never overcome this gentle understatement of free choice, will, and utility against mindless copying and non-creative work. I have always thought Melville was a secret Marxist, in his own gentle, understated concerns for the working class.

I leave it to the reader to read this wonderful tale of a crisis of management, how Bartleby subverts all instruction, and finally life itself, with the words “I would prefer not to.” I leave it to the reader to ponder the significance of the wall itself, which Bartleby finally goes to. And I dearly hope the Lawyer finds his true place in Lawyerly literature, as the counterpoint to Atticus Fitch.

Fee Tail : Jane Austin and Utility of the Law School Property Class

“Mr. Bennet’s property consisted almost entirely in an estate of two thousand a year, which, unfortunately for his daughters, was entailed, in default of heirs male, on a distant relation….. ” – Jane Austin, Pride and Prejudice, Chapter 7.

This odd statement of inheritance is key to understanding the monumental task, and indeed panic, the mother faced in trying to marry off five girls with no income and no dowry. Their charm and their looks are their only currency in a time in which it’s not what you are, but who you are. To explain:

I have not heard the term fee tail since my law school property class. Law school property classes is torture: unlike any other beast of law school terror, this is a mind numbing jaunt back to the time of William the Conquerer, full of archaic languages, meanings, estates and devices. In short, a fee is the way you hold property. In the American system, you typically have fee simple – meaning you just own the property – leases, and sometimes life estates. There are some other odd ones, but for the purposes of normal people this will do. If you buy a house, that is a fee simple. If you inherit property, typically the will gifts from Aunt Auntie Annie to Billy Bob in fee simple. But, in the Old Dominion, if you were special you left your property to the “heirs of my body” in “fee tail.” This is the legacy creation, that your heirs could not sell (and consequently mortgage), gift, or place the property in their own will, or otherwise break up the estate to raise cash or for any other purpose. When one generation of landholders passes, the entire estate goes not to the heirs of the holder, but automatically to the next heir of the original grantor. Confused? Good. Relevant here is that because it was entailed in favor of males, by having five girls, upon father’s death the estate automatically went to the next male heir with nothing to the girl children or the mother. They were out on their tails! (Fee Tail!)

So this is the plot device that matters, because Mrs. Bennet is in a panic to marry the girls off within their social class, a monumental task with five young women, no dowry, and only their good looks as class currency. As Austin let’s us know, their names and reputations aren’t that great. Mrs. Bennet is perpetually worried that Mr. Bennet will pass, which considering actuarial tables of the time, he is as good as dead.

This is important because when the dreadful Mr. Collins comes to pay suit, he is the next heir in line. Upon Mr. Bennet passing, and I mean the day of and not the day of burial, the home in which the Bennet girls reside and their mother will be his. By courting Elizabeth, he is offering to take care of the female side of the family and if they have a son, he will inherit the Longbourne estate. But when Elizabeth rejects Collins’ suit, he rejects the family, and marries Charlotte instead. As Ms. Bennet presumably is past the point of bearing children, the Bennet women are now disinherited completely from the Longbourne estate, which having male grand children will not change afterwards. At this point in the novel, there are no other offers of marriage to any of the young women, and Mr. Darcy is a future fairy-tale. When Elizabeth rejects Mr. Collins, she rejects the best thing that realistically (not fairy tale) the story could offer her. Fortunately for her, this is a work of fiction and the man she loves ditches the heiress and centuries of pomp and circumstance for her. More realistically? An offer to be his mistress and a fallen woman. But all is well that ends well.