The Morality of Laughter

8. Machine Law: Risible Law • Kreimer v. Morristown • The Sick Chickens Case

Machine Law We can never be despised according to our full desert. Montaigne Several years back I met a lawyer friend who had recently returned from Russia. He had been brought there, along with a good many other experts, to teach the Russians about the legal system that won the cold war. My friend had been asked to draft a new Russian corporations code. Over lunch, he explained the problem to us. “How do you introduce Western corporations law to a country that lacks a stable court system?” he asked. There was silence around the table. Give nuclear weapons to the Russian Supreme Court, we wondered? Au contraire . “Cumulative voting!” he announced triumphantly—rules that give minority shareholders a seat on the board of directors. It is easy enough to put this down to the fatuous naïveté of the innocent abroad. But there is something more at work, of greater interest to the student of laughter. By absurdly extending a simple idea into places it did not belong, my friend had proposed machine law and become Bergson’s machine man. Chapters 6 and 7 examined how an individual might become risible by tumbling into comic vice. This chapter extends the analysis from individuals to ideas, from comic vices to risible law, and asks how law is made more ef‹cient when machine law is lampooned. In the following chapters I examine the bene‹ts to scholarship of a sense of humor and the aesthetic costs we bear when we forget to laugh at ugliness. 119 8 Risible Law Judges seldom show any signs of appreciating how risible American law may be. There are exceptions, to be sure. Judge Scalia once began an opinion with “I join the opinion of the Court except that portion which takes seriously, and thus encourages in the future, an argument that should be laughed out of court.”1 Several other members of the bench, such as Judges Alex Kozinski, Frank Easterbrook, and Danny Boggs, are true wits as well. There is much to be said for a sober-minded bench. The effort to seem witty might easily become tiresome, when the case is serious and the sally is issued from on high. Yet much of the law is highly amusing, and the failure to notice its comedic possibilities sometimes leaves us the poorer. Not only do we miss the diversion of comedy, but nonsensical legal doctrines survive because we have lost the knack of laughter. There is a great store of harmless nonsense in the common law, to one who knows how to extract it. A. P. Herbert’s satires were masterpieces of the genre. Herbert wrote up mock accounts of court decisions, recounting the efforts of an obstreperous layman, Alfred Haddock, to exercise an Englishman’s rights and privileges just as often as he could. In R. v. Haddock, the accused was charged with leading “a large white cow of malevolent aspect” through the City of London to the of‹ces of the Collector of Taxes. In his defense, Haddock argued that the cow was tendered as delivery of his taxes, since he had signed the cow and endorsed it “Pay to the Collector of Taxes, who is no gentleman, or Order, the sum of ‹fty-seven pounds (and may he rot!).” The court held that the personal comments were simply an honest man’s understandable reaction to paying taxes, and did not deprive the cow of its status as an unconditional promise of payment, as required by the Bills of Exchange Act. The method of payment was somewhat unconventional, to be sure, but nothing in the statute required promissory notes to be written on paper. The charge was therefore dismissed, since the accused had lawfully paid his taxes with a negotiable cow.2 My introduction to statutory interpretation came in the form of an apocryphal case, R. v. Bird, a parody written by Toronto lawyer Hart Pomerantz, which Canadian law students passed around in samizdat fashion. The case, a decision of Mr. Justice Blue, turned on whether a defense for cattle trespass (the tort of letting one’s cattle stray across a the morality of laughter 120 neighbor’s ‹eld) lay under the Migratory Birds Convention. After due consideration of the legislation and the mischief it sought to prevent, Blue J. concluded that, for the purposes of the statute, a cow was a bird. Such satires succeed because they contain...