February  3, 2011

Dear Cyndy,

Thank you for your letter, and specifically for the correct pronunciation of the surname "Coke". I have no plans to flaunt my (faked) knowledge of legal history at this afternoon's hearing, but I just might.

A corollary to my musings about Law and Equity is a reinterpretation of the 5th Amendment's statement that no person shall be deprived of life, liberty or property without due process of Law. I had considered this injunction as a pious invocation without specific meaning. Now I interpret it as a rejection of the English tradition established by Francis Bacon in 1615, giving precedence to Equity over Law, reflecting as it does the claim of sovereign immunity, Rex non posset peccare. After all, the King's misdeeds were what the American Revolution was all about. The Founding Fathers wanted no truck with Equity as the expression of the conscience of a King.  At the same time, 18th century idealists that they were, they were blind to the limitations of that stylized expression of logic and language which is the bread and butter of us lawyers as latter-day sophists. Originally the 5th Amendment bound only the Federal government. The States continued the English tradition of Courts of Law competing with Courts of Equity. After the Civil War, when the 14th Amendment was passed, the original meaning of "due process of law" had faded to such an extent, that it was found unnecessary to amend State procedures. In Virginia the distinction between Law and Equity was not abolished until 2006.

I'm sanguine about this afternoon's hearing. No surprisingly, I slept poorly. I hope I won't be too tired. Will leave here in about 70 minutes, at 10 a.m, a quarter of a mile treck over icy roads, to catch the 10:25 bus to Harvard Square. If bus and subway aren't delayed, I should be at the court house by noon, then until the hearing scheduled at 2 p.m., a two hour wait, which I'll while away with volume one of my bilingual edition of the Odyssey. At two o'clock, there will be another wait, - it's like a medical clinic - they schedule perhaps 6 or 8 cases with 15 or 20 minutes allotted for each. The last status hearing I attended, in Barnstable in 2005, was held in the judge's chambers. That's where Justice Connon confided to me - and please excuse my shameless candor - "I wish I were as smart as you are.... Some people on Nantucket ought to be spanked. 75 percent of the cases that come to us are either plain unlawful or reflect rudeness ... " This afternoon's session won't be so straightforward. When I have recovered, I'll write you what happened. Meanwhile, stay well, and give my best to Ned.

Jochen

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