BeldarBlog

Perpetuities

Okay, this one is truly "inside baseball," an anecdote that will not likely be appreciated by any of my nonlawyer readers, and maybe by only a few of those.

The inspiration for my tale today is a short post entitled "The Role of Fear in Long-Term Memory," in which blawgger Evan Schaeffer of Notes from the (Legal) Underground writes with feeling:

No interest is good unless it must vest, if at all, within 21 years of a life in being at the creation of the interest.

What else but the fear of failing Property, combined with the fear of failing the Missouri and Illinois bar exams, can explain why I instantly recall this gibberish after sixteen years? Someone please send me instructions for removing the Rule Against Perpetuities from my brain. The space is urgently needed for remembering my children's birthdays.

Upon reading this, I immediately flashed back to a beautiful day in the late spring of 1990 when my practice took me to 600 Camp Street in New Orleans — the stately home of the United States Court of Appeals for the Fifth Circuit — where I had the privilege and duty of appearing before a three-judge panel of that court to present oral argument.

My client in the case was a manufacturer of consumer electronic equipment who'd extended a substantial credit line to enable purchases from it by a dealership that sold such goods at retail. The dealership had a shakey financial picture, and sure enough, it eventually went under, owing my client a large sum of money. At the beginning of their business relationship, however — as a condition for extending credit to his company — my client had prudently insisted that the dealership's owner, in his personal capacity, sign a "continuing, unconditional personal guaranty." So on the basis of that guaranty, my firm had sued the dealership's owner. He still had money enough to pay for fine lawyers, and they responded to the lawsuit with a flurry of desperate and creative arguments to try to save their client from personal liability under the guaranty for his defunct company's debt. To our astonished dismay, the federal district court had bought into a couple of those arguments and had thrown our client's case out on summary judgment, so I was wearing my "appellant" hat at the oral argument.

We'd done a good job briefing the appeal, and I've never had an oral argument go more smoothly. I was swinging for the fences — I was asking the panel not only to reverse the district court, but to render judgment for my client rather than simply remanding for a full trial. The panel of three experienced judges had been uncharacteristically silent, asking me almost no questions throughout almost my entire allotment of time, but I was getting good vibes — they seemed to be listening approvingly, to the extent one can tell such things from the advocates' podium. So I methodically rebutted not only the guarantor's arguments that had persuaded the district judge, but all the others he'd raised that the district court hadn't bothered to reach. And amazingly, when I got to the end of what I'd planned to say, I still had time left over!

"How cool is this?" I was thinking to myself, "I'm going to get to sit down with unused time!" So I squared up my notecards and closed my ring-binder of record excerpts. "Unless the members of this Honorable Court have further questions," I said confidently, "I will reserve the remainder of my allotted time for rebuttal after the presentation by my distinguished opponent, counsel for the appellee."

At which point one judge looked me in the eye and said — from somewhere out by the left field bleachers, I think — "Mr. Dyer, you say that by its terms, this guaranty agreement was continuing in nature. Unless and until revoked, it was drawn up so as to cover every additional extention of credit your client made to Mr. Z___'s company, is that correct? Continuous ... on and on ... isn't that what you're claiming, Mr. Dyer?"

"Why, yes, Your Honor, absolutely."

"So then, Mr. Dyer, why isn't your guaranty agreement void as a violation of the Rule Against Pepetuities?"

Of course, there is no pipe organ in the en banc courtroom of the Fifth Circuit headquarters, but I could have sworn that I heard three soap-opera chords descending at fortisimo volume — "bahm-bahm-BAAAAAHM!" My palms began to sweat. "Well, Your Honor ...," I vamped for a moment as I tried to remember back to the last time I'd heard or thought of the Rule Against Perpetuities.

I flashed back to a moment some ten years earlier during my bar review course, when the instructor confidently clued us in on a little-known secret: "All you need to know is that any time on a multiple choice question, whenever one of the choices is the Rule Against Perpetuities, that is not the correct answer!" (Yes, this is a flashback within a flashback.)

"Great," I thought to myself in the cool, quiet stillness of the courtroom, "if only the Fifth Circuit judges asked multiple choice questions!"

"... If I recall my property law, Your Honor, the Rule Against Perpetuities only has to do with conveyances of real property. This case, of course, involves only personal property — specifically, money. Moreover," I gamely struggled along, "although I don't remember the exact terms of the Rule Against Perpetuities, the test for whether a conditional conveyance was invalid depended on whether or not the condition could go undetermined for longer than a certain number of years past the lifetime of someone already living. Since this guaranty was personal to Mr. Z___, his own lifetime would effectively mark the end boundary after which the extension of further new credit wouldn't be covered, meaning the Rule couldn't be triggered here." I wiped my palms against my pants legs, hoping no one noticed. "And finally, Your Honor, regardless of whether I'm remembering the Rule and its terms correctly or not, I'm absolutely certain of one thing — the record on this appeal will conclusively show that Mr. Z___'s counsel never raised any arguments in the district court based on the Rule Against Perpetuities, nor in his briefs before this Court, so if Mr. Z___ had a defense on that basis, it's been conclusively waived!"

I stopped looking at the judge who'd asked the question and glanced at the other two panel members. Both were obviously struggling to control their laughter. Off to one side, the law clerk for the judge who'd asked the question looked like she'd been pole-axed; I'm very certain that particular question hadn't been in the bench memo she'd written to prepare her judge for oral argument, but was instead an instance of a judge "winging it" — or maybe even just yanking my chain for giggles and grins with a deliberately screwball question.

"Thank you Mr. Dyer, we'll hear from your opponent now," intoned the senior judge on the panel, having quickly regained his formidable composure. "I'm quite sure we've all had our daily, or perhaps our yearly, dose of the Rule Against Perpetuities by now."

I was very gratified when only a few weeks later, the Fifth Circuit issued a unanimous opinion granting exactly the relief I'd requested — reversed and rendered with instructions to calculate the damages and then enter judgment for my client in the full amount. The opinion exactly tracked our briefs and the oral arguments I'd made. Home run, game over!

And there isn't a word in the opinion about the Rule Against Perpetuities.

But the moral, of course, is this:   Evan, be careful what you wish for. You never quite know when some judge is going to probe some deep, dusty, musty corner of your memory and you'll need to summon up your recollections about that damned dumb rule!

Deal lawyers and trial lawyers

Scheherazade at Stay of Execution has an interesting pair of posts up — the first about being a transactional lawyer, and the second wondering about trial lawyers. The comments are also interesting, and I've contributed in my usual longwinded™ fashion on each.

The Academy Award for overwhelming hubris goes to ...

Sean Penn, who began his acceptance speech for his Best Actor award with:

If there's one thing that actors know — other than that there weren't any WMDs ...."

I'd be far more interested in the opinion of the average dental assistant, bus driver, or rodeo clown than in Mr. Penn's on matters political, military, or historic. That he thinks actors have opinions on these subjects especially worth broadcasting is too absurd for serious discussion.

Cosmic stupidity from the Houston Chronicle re Roe

In Sunday's Houston Chronicle, reporter Thomas Korosec writes:

The 5th U.S. Circuit Court of Appeals has agreed to consider written arguments as to whether the Supreme Court made a mistake in legalizing abortion.

That is just cosmic, mind-boggling stupidity. Neither the United States Court of Appeals for the Fifth Circuit, nor any other Court of Appeals for any other circuit, nor any federal district court can ever, under any circumstances, overrule the United States Supreme Court on a question of law. They lack the fundamental power. It's not just a matter of stare decisis or respect for precedent. It's a question of who's the Supreme Court, and who's not.

Anyone who managed to get a passing grade from a high school civics class should know that. For the Chronicle to say otherwise is shameful.

The Fifth Circuit's appellate jurisdiction is not discretionary. Unlike the Supreme Court, the Courts of Appeals cannot refuse to hear an appeal. If you file the right papers on time and pay the fee, any numbskull can appeal almost any decision from a federal district court to the Court of Appeals for the federal circuit within which that district court is located. The Fifth Circuit has absolutely no choice whether to "consider written arguments" on every such appeal, regardless of how frivolous the appeal may be.

The Fifth Circuit can — and it has in this case — refused to set the appeal on its oral argument calendar, meaning that the case will be decided on the basis of written briefs and the record from the district court alone.

But whether it hears oral argument or not, under no circumstances whatsoever can the Fifth Circuit overrule the U.S. Supreme Court's decision in Roe v. Wade. Even in the microscopically small chance that it decides that Norma McCorvey's petition to re-open her case was timely, the Supreme Court's prior ruling is known as the "law of the case." Regardless of whether there's been an intervening change in the relevant facts pertaining to Ms. McCorvey, neither the US District Court for the Northern Division of Texas, Dallas Division, nor a three-judge panel of the US Court of Appeals for the Fifth Circuit, nor even the entire US Court of Appeals for the Fifth Circuit sitting en banc — nor the United Nations or the International Court of Justice sitting at the Hague (thank goodness) — has the power to overrule the "law of the case" as decreed by the US Supreme Court.

It can't happen. No exceptions. Ever.

The only way that the legal precedent set by the US Supreme Court in Roe can be changed is by a majority vote of the US Supreme Court or by an amendment to the US Constitution. Period. End of paragraph. Full stop. End of story.

If this kind of enormous, glaring mistake — a mistake made even after talking to law professors at UT Law School, for pete's sake! — can't get you fired as a reporter, then I can't imagine what possibly could.

Stupid, stupid, inexcusably wrong and stupid. But some people will doubtless believe it, because after all, it was printed in a "major" newspaper.