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

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