Washington Lawyer - March/April 2020 - 56

L AST WORD

LEGAL SPECTATOR

EDITORS' NOTE: To honor the memory
of Jacob Stein, Washington Lawyer
is reprinting some of Stein's "Legal
Spectator" columns, which appeared
on this page for nearly 25 years.

By Jake Stein

LET'S AGREE TO DISAGREE
H

ow I hate the man who talks about the "brute
creation," with an ugly emphasis on brute . . .
As for me, I am proud of my close kinship with
other animals. I take a jealous pride in my Simian
ancestry. I like to think that I was once a magnificent
hairy fellow living in the trees, and that my frame has
come down through geological time via sea jelly and
worms and Amphioxus, Fish, Dinosaurs, and Apes.
Who would exchange these for the pallid couple in
the Garden of Eden?
W. N. P. Barbellion

Why is it that people are so resourceful in finding
ways to disagree? Why do we devote so much
time to contention and bickering? I used to have
these thoughts as I walked up the steps to the
courthouse carrying a briefcase stuffed with
pleadings asserting claims, counterclaims, thirdparty claims, and cross-claims.
Then one happy day I came across Clarence
Day's This Simian World. In reading it, I discovered
the answer to my questions. The edition that first
came to hand contained a preface by Dean
Acheson. Mr. Acheson said that his copy of This
Simian World was given to him by Oliver Wendell
Holmes Jr. Justice Holmes recommended it as
helpful in understanding the human condition.
Clarence Day begins his book by recalling a conversation between him and his chauffeur. They
were out driving one Sunday afternoon along
upper Broadway in New York City. The chauffeur
was put off by the swarm of disagreeable people
aimlessly strolling up and down Broadway, all
chattering away at one another. Didn't people
have something better to do?
Clarence Day remarked that groups of people
aimlessly moving around and chattering away
is distinctively simian. We should feel no disappointment at seeing something that is inevitable.
We are descended from ape-like or monkeyish
beings. We are not lions and tigers or eagles,
56 WASHINGTON LAWYER

*

MARCH/APRIL 2020

solitary and uncommunicative. Lions and tigers
and eagles have a majesty and dignity that chattering, squeaking, chirping, quarreling simians do
not have. Solitary felines would not have descendants like lawyers "spending their span of life on
this mysterious earth studying the long dusty
records of dead and gone quarrels. We simians
naturally admire a profession full of wrangle and
chatter. But that is a monkeyish way of deciding
disputes, not a feline." Whatever a simian does,
there always must be some chattering, chirping,
and quarreling about it. Simians cannot even
make peace without a kind of chatter called a
peace conference.
After I considered what Clarence Day had
written, I understood why Justice Holmes and
Dean Acheson found This Simian World a significant book. Now when I watch the PBS National
Geographic programs showing the carryings-on
of ape-like, monkeyish animals, I see things in an
altogether new light. I see that the simian days
follow a pattern I can understand. They get up at
six in the morning. They scramble around for the
next two hours in search of food. After breakfast
they take a short nap. When they awaken, well
rested, they form groups and begin to mill
around, nagging each other, stealing and hiding
food, attacking and retreating, giving the appearance of rage and indignation, and all the time
chattering, chattering, chattering. This is the part
of the day that simians devote to litigation. It
goes on for two hours before the afternoon
recess when it is nap time again.
The point of it all is that we, as simian descendants, should see litigation as self-realization and
we should enjoy it. It is the very essence of us.
The simians' compulsive bickering explains the
proliferation of procedural rules. We have federal
rules, circuit rules, local rules, and each individual
judge's rules, and best of all, we have the abomination euphemistically titled the sentencing
guidelines.

Our simian litigiousness requires lots of rules of
engagement. That is why it is so difficult to repeal
rules. It takes more energy and discipline than we
are willing to give it, and when we try to do
something about it, we give the job to a committee. A committee repeals no rules. The best
it can do is write the rules to be used in determining which rules should be considered for
amendment, or rewriting, or repeal.
I now understand why Williston on Contracts
runs 20 volumes or more. Williston on Contracts
is not what I once thought it was - the rules
of contractual agreement. It is in reality a study
of specific ways in which people use the rules
to disagree.
Does the concept of the contract - you do
this and I will do that - connect with our simian
ancestors? My speculation is that it does. I mentioned earlier that the simians, after the afternoon
nap, organize themselves into groups. These
groups collect around a leader. Each leader patrols
the territory in search of unattached simians to
add to his group. As a leader approaches an unattached, the chattering commences between
them. What is this chatter all about? My speculation is that the chatter is a negotiation of promises.
The leader says join my group and you will be part
of the most powerful group. The unattached says
I will join your group on condition that you treat
me right and protect me and my food from
others. A promise for a promise.
Whether these evolutionary speculations are
valid, I leave to surrogates. I appoint, without
prior authorization, Richard Gordon, the maestro
of Georgetown University Law School's law of
contracts, as one surrogate and Richard Dawkins,
the author of The Blind Watchmaker and an evangelical Darwinian, as the other. What chatter they
will stir up.
This column first appeared in the November/
December 1999 issue of Washington Lawyer.



Washington Lawyer - March/April 2020

Table of Contents for the Digital Edition of Washington Lawyer - March/April 2020

Digital Extras
Your Voice
From Our President
Practice Management
Calendar Of Events
Women of Impact feature
The Race to End Roe feature
Solar Power Access Feature
Taking the Stand
On Further Review
Global & Domestic Outlook
Member Spotlight – Joesphine Wang
Member Spotlight - Fatemah Albader
Worth Reading
Attorney Briefs
Disciplinary Summaries
Pro Bono Effect
Portraits of Suffrage's Overlooked Heroes
Community & Connections
Last Word
Washington Lawyer - March/April 2020 - Cover1
Washington Lawyer - March/April 2020 - Cover2
Washington Lawyer - March/April 2020 - 1
Washington Lawyer - March/April 2020 - 2
Washington Lawyer - March/April 2020 - 3
Washington Lawyer - March/April 2020 - Digital Extras
Washington Lawyer - March/April 2020 - Your Voice
Washington Lawyer - March/April 2020 - From Our President
Washington Lawyer - March/April 2020 - Practice Management
Washington Lawyer - March/April 2020 - Calendar Of Events
Washington Lawyer - March/April 2020 - 9
Washington Lawyer - March/April 2020 - Women of Impact feature
Washington Lawyer - March/April 2020 - 11
Washington Lawyer - March/April 2020 - 12
Washington Lawyer - March/April 2020 - 13
Washington Lawyer - March/April 2020 - 14
Washington Lawyer - March/April 2020 - 15
Washington Lawyer - March/April 2020 - 16
Washington Lawyer - March/April 2020 - 17
Washington Lawyer - March/April 2020 - 18
Washington Lawyer - March/April 2020 - 19
Washington Lawyer - March/April 2020 - The Race to End Roe feature
Washington Lawyer - March/April 2020 - 21
Washington Lawyer - March/April 2020 - 22
Washington Lawyer - March/April 2020 - 23
Washington Lawyer - March/April 2020 - 24
Washington Lawyer - March/April 2020 - 25
Washington Lawyer - March/April 2020 - Solar Power Access Feature
Washington Lawyer - March/April 2020 - 27
Washington Lawyer - March/April 2020 - 28
Washington Lawyer - March/April 2020 - 29
Washington Lawyer - March/April 2020 - 30
Washington Lawyer - March/April 2020 - 31
Washington Lawyer - March/April 2020 - 32
Washington Lawyer - March/April 2020 - 33
Washington Lawyer - March/April 2020 - 34
Washington Lawyer - March/April 2020 - Taking the Stand
Washington Lawyer - March/April 2020 - On Further Review
Washington Lawyer - March/April 2020 - 37
Washington Lawyer - March/April 2020 - Global & Domestic Outlook
Washington Lawyer - March/April 2020 - 39
Washington Lawyer - March/April 2020 - Member Spotlight – Joesphine Wang
Washington Lawyer - March/April 2020 - 41
Washington Lawyer - March/April 2020 - Member Spotlight - Fatemah Albader
Washington Lawyer - March/April 2020 - Worth Reading
Washington Lawyer - March/April 2020 - 44
Washington Lawyer - March/April 2020 - Attorney Briefs
Washington Lawyer - March/April 2020 - Disciplinary Summaries
Washington Lawyer - March/April 2020 - 47
Washington Lawyer - March/April 2020 - Pro Bono Effect
Washington Lawyer - March/April 2020 - 49
Washington Lawyer - March/April 2020 - Portraits of Suffrage's Overlooked Heroes
Washington Lawyer - March/April 2020 - 51
Washington Lawyer - March/April 2020 - 52
Washington Lawyer - March/April 2020 - 53
Washington Lawyer - March/April 2020 - Community & Connections
Washington Lawyer - March/April 2020 - 55
Washington Lawyer - March/April 2020 - Last Word
Washington Lawyer - March/April 2020 - Cover3
Washington Lawyer - March/April 2020 - Cover4
http://washingtonlawyer.dcbar.org/march2020
http://washingtonlawyer.dcbar.org/january2020
http://washingtonlawyer.dcbar.org/november2019
http://washingtonlawyer.dcbar.org/october2019
http://washingtonlawyer.dcbar.org/september2019
http://washingtonlawyer.dcbar.org/julyaugust2019
http://washingtonlawyer.dcbar.org/june2019
http://washingtonlawyer.dcbar.org/may2019
http://washingtonlawyer.dcbar.org/april2019
http://washingtonlawyer.dcbar.org/march2019
http://washingtonlawyer.dcbar.org/january2019
http://washingtonlawyer.dcbar.org/november2018
http://washingtonlawyer.dcbar.org/november2018
http://washingtonlawyer.dcbar.org/november2018
http://washingtonlawyer.dcbar.org/august2018
http://washingtonlawyer.dcbar.org/august2018
http://washingtonlawyer.dcbar.org/June/July2018
http://washingtonlawyer.dcbar.org/april2018
http://washingtonlawyer.dcbar.org/March2018
http://washingtonlawyer.dcbar.org/February2018
http://washingtonlawyer.dcbar.org/january2018
http://washingtonlawyer.dcbar.org/december2017
http://washingtonlawyer.dcbar.org/November2017
http://washingtonlawyer.dcbar.org/september 2017
http://washingtonlawyer.dcbar.org/september 2017
http://washingtonlawyer.dcbar.org/august2017
http://washingtonlawyer.dcbar.org/july2017
http://washingtonlawyer.dcbar.org/June2017
http://washingtonlawyer.dcbar.org/may2017
http://washingtonlawyer.dcbar.org/april2017
http://washingtonlawyer.dcbar.org/march2017
http://washingtonlawyer.dcbar.org/february2017
http://washingtonlawyer.dcbar.org/january2017
http://washingtonlawyer.dcbar.org/december2016
http://washingtonlawyer.dcbar.org/november2016/
http://washingtonlawyer.dcbar.org/october2016
http://washingtonlawyer.dcbar.org/september2016
http://www.nxtbookMEDIA.com