REMINISCING ON YANIA V. BIGAN, MORT THE TORT, AND CLASS IDENTITY AT HARVARD LAW SCHOOL

After 25 years of practicing law in the trenches, I have the fortune or misfortune of having the free time to look back and try to make sense of those years and of my random and arbitrary graduation from a school that I had no business ever attending: Harvard Law in 1988. As the first in my family to speak English, be literate, graduate from grammar school, high school, and then college after six years in the military, acceptance to Harvard Law School seemed at the time to be some type of gift from the Fates. What a fool I was, still am. In this essay, I look back to one of only approximately two events I remember of my IL year consisting of when I was first called upon in class to do an analysis of a case. The case was Yania v. Bigan, 397 Pa. 318, 155 A.2d 343 (1959) in the Torts class of Professor Morton Horwitz known to us at the time as Mort the Tort. I had the pleasure of recently visiting Professor Horwitz, who is retired, at his office in Langdell to discuss the event as I remember it and to get his take on it. I remember it because it was my first step to the realization that if Harvard, the Ivy League, and the Powers-that-be actually want progress in the law they have got to stop pretending they want diversity, and furthermore that the presently called “disenfranchised” from the law have to stop wanting to be enfranchised. Neither of these pretend desires are going to happen nor should they, the soul of the law is not the law but its outcastes including the lawless. As the working class hero Albert Camus said, “The slave begins by demanding justice and ends by wanting to wear a crown.” To stop the cycle, one must not only eliminate slavery but also the demand for justice; as any experienced trial attorney will tell you, “there is no justice, in or out of court” (Clarence Darrow). Let religion be the opium for the people if they want and if there is to be any; the law is not about justice, it is about maintaining law and order — to delude ourselves into believing otherwise is to surrender one’s freedom to the monopoly on violence that is law.

 
During my first year, first semester at HLS there was a required Torts class taught by a professor Morton Horwitz whom we called Mort “the Tort” Horwitz. He was and probably still is a part of the Critical Legal Studies philosophical movement in law schools that maintains in substance that the logic and structure attributed to the law is a social construct of the power relationships of the society; that judges act as legislators; and that the law is more often than not what a judge says the law is on any given day. Having come to law school with a philosophy degree from the University of Illinois with a concentration in the philosophy of language, this view did not strike me as very radical but at the time it was considered radical at Harvard and at law schools in general. Practicing law confirmed this existential view of the law to be a foundation assumption among trial attorneys, so much so that it is not even discussed in the same way sailors at sea have no need to discuss being surrounded by water. About the only ones who contest or hide this assumption are non-trial and inexperienced attorneys, law professors, judges, legislators, and politicians who have either deluded themselves into believing otherwise or who fraudulently maintain the appearance of believing otherwise. At the time, he and a bunch of other professors were into cross-teaching the various mandatory first year subjects of contract, torts, criminal law, and civil procedure. We were supposed to learn how everything was related not just treat them as separate subjects. Early in the semester when, unlike second semester, I was still going to class and reading casebooks, one assigned case by Professor Horwitz to read and analyze was Yania v. Bigan, a case written by the Pennsylvania Supremes with facts as follows:

On September 25, 1957, John E. Bigan was engaged in a coal strip-mining operation in Shade Township, Somerset County. On the property being stripped were large cuts or trenches created by Bigan when he removed the earthen overburden for the purpose of removing the coal underneath. One cut contained water eight to ten feet in depth with side walls or embankments 16 to 18 feet in height; at this cut Bigan had installed a pump to remove the water.

At approximately 4 PM on that date, Joseph F. Yania, the operator of another coal strip-mining operation, and one Boyd M. Ross went upon Bigan’s property for the purpose of discussing a business matter with Bigan, and, while there, were asked by Bigan to aid him in starting the pump. Ross and Bigan entered the cut and stood at the point where the pump was located. Yania stood at the top of one of the cut’s side walls and then jumped from the side wall–a height of 16 to 18 feet–into the water and was drowned.

Yania’s widow, in her own right and on behalf of her three children, instituted wrongful death and survival actions against Bigan contending Bigan was responsible for Yania’s death. Preliminary objections, in the nature of demurrers, to the complaint were filed on behalf of Bigan. The court below sustained the preliminary objections; from the entry of that order this appeal was taken.

 

The attorney for the widow argued the Defendant Bigan had a duty to rescue Yania because it was his land and it had a dangerous condition. The Defendants argued Yania made his choice and Bigan had no duty to rescue someone from their own mistakes. The court agreed with the latter. What the last paragraph means is that the case was dismissed outright without ever going to a jury trial — something that happens very often in modern times; much too often in violation of any pragmatic sense of justice based either on the Constitutional right to a jury trial or on any democratic sense of justice but I digress. (Despite popular opinion to the contrary, Americans were much more litigious and they got and there were many more trials by a multiple factor in the 19th Century and early 20th Century than they get now).

 
Next day, Mork started going around the room asking for an analysis of this case. Even back then, there were plenty of available summaries of the case in commercial and student printed handouts. On the internet now, there are hundreds. They all deal with what is supposedly the substance of the case: the extent and nature of a legal duty of care; a duty to rescue; and the slippery slope of creating too many duties that become tyranny over private lives. After 2 – 3 students that he called upon gave the usual formulaic speeches about these issues, apparently, Professor Horwitz did not get what he wanted and kept going around the class. He then called my name. I made the typical working class mistake of being honest and forthright — never a good idea in law nor in the upper class of any society. I told him essentially as follows that is the same conclusion I make now of the above facts:

It does not take three people to prime a pump. There is no need to go above a pump to prime it or work on it — especially not 16 – 18 feet above it. If there is a problem with the suction, you pump the suction hose out of the water and clear it. There was no reason for someone to jump into eight to ten feet of water from 16 to 18 feet especially someone who apparently could not swim. Or, even if they could, no way to climb out. Given that these were hard men struggling in a hard business involved in some type of business dispute, there is a good chance this was a set-up. Thanks to the law and Bigan and Ross being smart enough to use it, they probably got away with murder.

I also said this humorously with a small laugh as if it were funny. It is an unfortunate characteristic of the working and other lower classes that they will laugh at almost anything — beats crying. My years in the military did not improve on my classless sense of humor.

 
Silence in the room. Professor Horowitz however apparently finally got what he wanted, looked at me for a few moments, then in silence, went to his book and onto the next case. There are libraries of material analyzing the issues presented by the other students. You will not find my comments anywhere, then or now as far as I can discover. I did not see the other problems discussed by the other students; not because I am a working class idiot as would be the usual assumption for not thinking with upper class Doublethink, but because I know there are no solutions. Any solution would create not only a multiple of known problems but, since we cannot test any solution, there would be a butterfly effect of a possible infinite number of unknown problems. How would I have decided the Yania case, if anyone had asked which they didn’t? I would solve it in the way many Western courts since the Romans have decided it: let the community decide; let it go to the jury and let them decide. There was obviously a problem in the facts both individually and socially; a man died when he could have been saved. Let his peers and the peers of the Plaintiffs and Defendants listen to the facts and have them decide a solution for the community. Is that not what democracy and a jury system are all about? Having lived a life of chaos, anarchy, and lack of control and the risk associated with such a life, I saw no problem with risking further chaos and anarchy. I saw no reason to waste time and resources on Doublethink about an infinite number of possible solutions none of which could ever be proven to be the best or even a good solution just so that a solitary Outer Party judge can then at some point randomly pick one so as to use the monopoly on violence of the law and its Doublethink to force that solution upon others — to force them to agree by imprisonment if need be.

 
I lost nights of sleep agonizing over my answer. Could not understand how I could have been so clueless and proven myself as clueless before an entire class. What I did not understand at the time and that took me years to understand is that the last thing any upper class lawyer, judge, or lawgiver wants to give up is the power to make a world in their image or at least the power to maintain the world in their image. Despite its pretensions to the opposite, the last thing it wants is freedom. Having a natural instinctive ability to manage and enforce a monopoly on normative power is the defining characteristic of a patrician class and thus of its law.

 
With time I now have on my hands, I emailed Professor Horowitz recently and made an appointment to see him to discuss the Yania case and my memory of these events. He graciously gave me an appointment and I went. To my surprise, he agreed with my analysis and told me that is why he often did not bring up the case in Torts because it was more of a criminal law issue. Though after twenty-five years of trial work, I had long ago gained the confidence to know my analysis was right despite no one telling me so, it was good to hear that I was not totally clueless as a 1L. We both agreed that I should have seen him in his office hours to discuss the events and taken care of any doubts I had about my being at Harvard 30 years ago, but he was also well aware enough of the reality of Harvard Law to know that usually the disenfranchised are the last to use such an option, if they use it at all,  because we usually feel we “are not deserving of it”. An accurate description of my attitude half of the time at Harvard; the other half was spent thinking how much better I was than it and its spoiled patricians — thus I only made matters worse. I was never able to get the natural instinctive ability to manage and enforce a monopoly on normative power because it is a natural instinctive ability that I was long pass the age of catching from my parents, social group, or whatever it is in life that the Fates use to grant this gift. I eventually graduated Harvard Law with a C+ average despite never going to class for most of my last two years and cycling between these two attitudes so much that I probably could have been diagnosed with paranoia or some similar mental problem in addition to severe depression. If not for Hemenway Gym and its pick-up basketball games, I would have gone nuts or been suicidal long before graduation.

 
Despite the misery of lacking the gift of power over my life and that of others, ultimately I am glad I never have gotten it. I spend 25 years in trial work; I was involved in about 1000 cases involving both criminal and civil work; and handled a little more than 100 cases to a trial verdict. I have tried or handled everything from age discrimination cases to lender liability to rape criminal defenses and onto undertaker liability cases. I took millions of dollars from insurance companies and other Powers-that-be and gave it to my clients and usually 1/3 to myself. All of this means nothing. To the Powers I am still a dumb working class kid from the far west side of Chicago with no credibility and who obviously cannot be trusted. Doubt if most people I meet even believe I graduated from Harvard Law when the issue of my Harvard degree comes up in conversation.

 
These facts used to bother me, but I have finally realized they are right: they should not trust me nor have confidence in me. I am their worse enemy. Taking me or anyone from a working class background that is smarter than they are and giving them the credibility and the power to actually do something in life would be the greatest danger to class structure there could be because we would actually change the structure of society. The Fates gave me HLS just to teach me this lesson the hard way. As George Orwell wrote in 1984:

As compared with their opposite numbers in past ages, the new aristocracy is less avaricious, less tempted by luxury, hungrier for pure power, and, above all, more conscious of what they were doing and more intent on crushing opposition. This last difference was cardinal. By comparison with that existing today, all the tyrannies of the past were half-hearted and inefficient. The ruling groups were always infected to some extent by liberal ideas, and were content to leave loose ends everywhere, to regard only the overt act, and to be uninterested in what their subjects were thinking.
..
In principle, membership [in the Party] is not hereditary. The child of Inner Party parents is in theory not born into the Inner Party. … . Nor is there any racial discrimination, or any marked domination of one province by another. Jews, Negroes, South Americans of pure Indian blood are to be found in the highest ranks of the Party, and the administrators of any area are always drawn from the inhabitants of that area. … Its rulers are not held together by blood-ties but by adherence to a common doctrine. It is true that our society is stratified, and very rigidly stratified, on what at first sight appear to be hereditary lines. There is far less to-and-fro movement between the different groups than happened under capitalism or even in the pre-industrial age. Between the two branches of the Party there is a certain amount of interchange, but only so much as will ensure that weaklings are excluded from the Inner Party and that ambitious members of the Outer Party are made harmless by allowing them to rise. Proletarians, in practice, are not allowed to graduate into the Party. The most gifted among them, who might possibly become nuclei of discontent, are simply marked down by the Thought Police and eliminated. But this state of affairs is not necessarily permanent, nor is it a matter of principle. The Party is not a class in the old sense of the word. It does not aim at transmitting power to its own children, as such; and if there were no other way of keeping the ablest people at the top, it would be perfectly prepared to recruit an entire new generation from the ranks of the proletariat. In the crucial years, the fact that the Party was not a hereditary body did a great deal to neutralize opposition. The older kind of Socialist, who had been trained to fight against something called ‘class privilege’ assumed that what is not hereditary cannot be permanent. He did not see that the continuity of an oligarchy need not be physical, nor did he pause to reflect that hereditary aristocracies have always been short-lived, whereas adoptive organizations such as the Catholic Church have sometimes lasted for hundreds or thousands of years. The essence of oligarchical rule is not father-to-son inheritance, but the persistence of a certain world-view and a certain way of life, imposed by the dead upon the living. A ruling group is a ruling group so long as it can nominate its successors. The Party is not concerned with perpetuating its blood but with perpetuating itself. Who wields power is not important, provided that the hierarchical structure remains always the same.

 

It is fine to take my classmate Michelle Obama and make her a corporate attorney; to take a Barack Obama or a Hillary Clinton and make them President and Secretary of State or whatever and give them the power to actually make a difference because the Powers know that they will not really make a difference nor do anything to substantively change either the Inner or Outer Party — they will never change the Powers or their power because they are the Powers. It is fine to allow a J.D. Vance to attend Yale and write a book on hillbillies in which he makes them sound like the idiots rich people think they are so that he can become a rich man’s poor friend because in the end they know he is not a threat to them. Just as appointing anyone of them to a judgeship will not really change anything. In the end, the same people and social groups that pulled the strings before them will pull the strings after them. Sure they will talk about sex, patricians love to talk about sex. It is also fine for them to talk about race as long as the rich white people who happen to be black such as the Obamas do not make any real trouble which they never will and as long as white and black poor people keep fighting among themselves through the racism generated by the rich white folks and their black friends as a means of control. It is also great to talk about gender equality as long as it keeps the poor of any gender poor — especially their mothers.  It is great for J.D. Vance to talk about the poor as long as he serves the rich to keep them poor. In the end the party on the left will always become the party on the right once in power. The law has never been on the right side of history; it never will be. The law has never helped the oppressed; it creates them. The law is not a gunman with a gun to your head but a mob of gunmen with a gun to your head.

 

Plebeians have made history and achieved whatever justice they could in life not through the law but despite of it. The law even in its patrician distortion of existentialism it calls post -modernism, structuralism, critical legal studies, critical race studies, or whatever it aesthetically creates to hide what goes on in the trenches has already taken or is seeking to take away and destroy all options for plebeian and working class unity based on family, ethnicity, gender, race, religion, community, neighborhood, and everything else that historically gave plebeians unity in their struggles with patricians and their law — it is their law and always will be regardless of how they try to hide it. The law seeks to make all of us into unisex, homogeneous, culturally stagnant, one color, paper-cutouts of each other living solitary lives of temporary wage slavery jobs except for the handouts we get from Big Brother and perhaps for the companionship of a dog or cat. In return it does not even grant us the passionate hate and anger of a Meursault opening his heart to the benign indifference of the universe. No, rather, in return the law gives us only the loving surrender of a Winston to the timeliness of the power of law as an end itself accepted until we have a peaceful, lonely, and passionless death.

 

Hope for any happiness and justice in this life without selling one’s soul to power, even momentary, for the working class is outside of the law not in it. To any student presently at HLS from a working or lower class background: get a joint degree with the business school, transfer to an engineering school, get a science degree, or do something to make connections and to get an education other than law unless you are willing always to be a rich person’s house servant. The latter is not a bad life as the likes of a J.D. Vance, Deval Patrick, the Clintons, and the Obamas establish.  However, if you are willing to do that, do it wholeheartedly as they did: sell your heart and soul to the upper class and do not hold back. If there is a hidden desire to save your soul by infiltrating them and then revealing the workings of power, you will not make it. Bigan got away with murder without the law noticing because he wholeheartedly gave his intelligence and attention to beating the law and was lucky. Such victories for plebeians are few and far between and are getting fewer and rarer as Technological Society gives law even more power and reduces our luck. The only hope for plebeians now is the only hope we have always had before law started to cloud our judgment: ourselves organized into families, unions, clubs, crafts, even mafias, or any other association that gave us power to act in unison outside the law so that it must notice and appease us to stay in power.

 

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