Monday/Wednesday, Tuesday/Thursday
by
Steve Wexler

This semester I am teaching Successions on Mondays and Wednesdays. The law of successions is very formal and there are a lot of little rules, so on Mondays and Wednesdays I wind up saying things to my students like the following:

"In order to be valid, a will must be signed or acknowledged by the testator in the joint presence of two witnesses. Joint presence means the witnesses must be present together at the same time.

"If a beneficiary under a will or the spouse of a beneficiary acts as a witness to the will, the will is valid, but the gift to that beneficiary is void, unless there are at least two other witnesses"

At the end of each chapter I give a non-credit short-answer, multiple-choice quiz as a review. One of the questions on one of the quizzes is:

If it is proven beyond question that there is a mistake in a will, a court of probate may:

a. Add words to the will.

b. Change words in the will.

c. Strike out words in the will.

d. Do whatever is necessary to make the will reflect the intention of the testator.

Circle any correct answer.

On Tuesday and Thursday mornings I teach Torts. I teach it from the perspective of an event that occurred when I was 16 years old. My parents had a birthday party for me. I was dating a girl named Judy and I succeeded in getting her off alone in the darkroom.

My mom came down to look in on the party, noticed I wasn't there, and ran around the basement looking for me. "Stevie, you come out of there!" she yelled when she discovered I was in the darkroom. "Come out of there at once!"

Judy and I came out, embarrassed and crestfallen. After the party my mother said to me, "Stevie, you are never to take Judy in the darkroom again. Do you understand me?! You are never to take Judy in the darkroom again."

Soon after that I stopped dating Judy and started to date Susan. If you find yourself laughing, if you know the punch line of this story, it is because you understand law. You understand that if I had taken Susan in the darkroom and my mother had caught me and accused me, not just of being in there with Susan but of disobeying her express order, if she had said angrily, "I told you never to do that again," I could have responded, in true lawyerly fashion, "Oh no, Mom. You said I was never to take Judy in the darkroom again."

My mother would never have fallen for that argument, and learning to be a lawyer means learning to make arguments just like that, arguments that no sensible person would take seriously for a moment. Law sometimes means taking seriously what common sense does not take seriously. Not always, of course. Some legal arguments are just a matter of common sense, but some are not, and the fact that an argument makes no sense does not disqualify it as a legal argument.

On Mondays and Wednesdays, I take seriously what the law requires me to take seriously and ignore the fact that it does not make sense. On Tuesdays and Thursdays, I do not.

Most of the rules in Torts do not have to be taught to the students. They already know them; everybody knows them. If without excuse you punch somebody and they get hurt, you have to pay them for that. If you take someone's shirt, you have to give it back. If you make a product to sell and there's a danger in it, you have to tell people who buy the product about the danger.

But nobody has to tell anybody these rules, and after you get past them -- when you get to a question such as whether a city has committed a trespass when it takes certain property by eminent domain and eight years later, the Supreme Court of Canada decides that the taking was void ab initio because one of the owners of the property was given only 18 days' notice of the hearing at which the by-law taking the property was passed instead of the 21 days required by statute -- there are virtually no rules. There are arguments to be made on both sides and terms that must be used by both sides in their arguments, but there are no rules.

Monday and Wednesday mornings in Successions, I lecture, from written notes to make sure that I don't miss a rule or get it wrong. Tuesday and Thursday mornings in Torts, I make sure my students learn the terms and how to argue, and I teach them the few rules they do need to learn, e.g., that in Canada there is a $100,000 cap (in 1978 dollars) on non-pecuniary losses (i.e., pain and suffering). But on Tuesdays and Thursdays I refuse to pretend that the law is anything more than that. This means that in Torts I phumph around a lot, answering questions about whether the law says X by saying something like, "Well, yeah, you can see it that way."

Occasionally, I do have to say -- as when a student (speaking with what she described as her "socialist bent") argued that the court should find the defendant liable because the plaintiff was poor and the defendant could afford to pay the damages -- that certain arguments may not be used in law. The legal rule is restitutio in integrum, not "from each according to his means, to each according to his needs." I am grateful for the occasions on which I can say such-and-such is not a legal way of thinking, because most of the time in Torts I feel like I am talking about the law in a fog and too often I have to say, "I don't know what the law is."

On Tuesday and Thursday afternoons I teach Jurisprudence. I talk with my students about what the consequences of the law being the way it is are for morals and rationality. Here, there is even less to teach than in Torts. Indeed, teaching Jurisprudence is to teaching Torts as teaching Torts is to teaching Successions. I do want anybody who says they have studied jurisprudence with me to know a few names and words: Aquinas, Blackstone, Austin, Bentham, Llewellyn, Ross, Natural Law, Positivism, Realism, idealism, realism, romanticism, etc.

But other than that, there is nothing for me to teach my students. There is plenty for me to talk about with them and it's very interesting, but my students' ideas about morality and rationality and things like that, their ideas, for instance, about whether human beings are naturally good or naturally bad, are every bit as "valid" or "true" as my ideas. I have been thinking about these matters for a long time and I have read a fair amount of what other people think about them so it's okay for me to be "the teacher," but by the end of Thursday afternoon, I am nuts. Luckily, I don't have to teach on Fridays.

Incidentally, my Tuesday/Thursday position suggests that my Monday/Wednesday position, namely that "the law of successions is very formal and there are a lot of little rules," is an illusion. I am convinced this is so, but I cannot escape the illusion.