January 28, 2011

Dear Cyndy,

Thank you for your letter. It seems to me reassuring that your left eye is stable and that there are no more intravitreal injections in your (immediate) future.  I hope that in other respects also, you and Ned are well.

Yesterday, another heavy snowfall, with the difference that this time I had real help in getting the driveway cleared. Klemens, Laura, Benjamin and Leah pitched in and did most of the shoveling, and in an hour and a half, the job was done.

Each day I check the mailbox for an opposition from Kimberly Saillant, the Nantucket lawyer, to my motion in the don't-do-it-yourself plumbing case. Nothing, as of this morning. The term is ten days, plus three for mailing. I went to the Post Office on January 13 to have my mailing certitied.  Kimberly's deadline for mailing a reply was January 26. I'll wait until tomorrow, then, over the weekend, prepare what the lawyers call the Rule 9a package, my motions together with any oppositions and the Certificate of Service, to take to the Clerk's office on Monday morning. The hearing, as I mentioned, is on Thursday at 2:00 p.m.

From time to time, I'm preoccupied with an historical consideration which may (or may not) interest you.  The Appeals Court deciion of my appeal, not wholly unfavorable to me, ignored all procedural defects of Nantucket's and the Attorney General's defense. To reach the desired conclusion, they effectively set aside Chapter 30A of the Mass. General Laws without so much as a nodding explanation.  It occurred to me the other morning that ignoring conclusions of Law is an established facet of the English legal tradition which goes back at least as far as the reign of Henry VIII.  When the rulings of the Courts of Law seemed unfair, unjust, unconscionable, inequitable, the disappointed litigant would appeal directly to the King as the font of justice and ask him to overrule the Law. The practice became so frequent, that the King delegated such judgments to his Chancellor, and there developed the Courts of Chancery or Equity.  (All this is Wikipedia wisdom. I'm no legal scholar.) Not surprisingly, there developed rivalry between the Courts of Law and the Courts of Chancery, especially over a rule that a person who attempted to enforce a judgment of Law which had been proscribed by a ruling of Chancery should be imprisoned. It was not to secure civil rights against tyranny, but to protect his turf and his authority, that Chief Justice Sir Edward Coke initiated the issuance of writs of habeas corpus to obtain the release of the clients of his court. The rivalry came to a head in 1615 over the Earl of Oxford's case. There was a stand-off between the Court of Law and the Court of Chancery. The stalemate was resolved by the Attorney General of King James I, Sir Francis Bacon, who ruled - I suppose on grounds of sovereign immunity, that Equity should always take precedence over Law. That has become in England an established doctrine which I find of much theoretical significance as the ultimate dialectical repudiation of Law; as the admission that Law must often be replaced by "Equity" or "conscience", by an arbitrary, non-verbal determination of what is "right." So far as my experience is concerned, that is quod erat demonstrandum.

I'll let you know what happens on Thursday. Meaanhwile, stay well and warm, and give my best to Ned.

Jochen

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