On Nitpicking, Pilpulistic Nonsense, and Hair-Splitting in the Law
by Dov Fischer
Twenty years ago, a friend arranged for me to have lunch with a prominent Jewish name-partner at a major Los Angeles law firm. My friend explained to me that the partner is non-religious and particularly skeptical about Orthodox Judaism – all of its “nitpicking over minutiae, pilpulistic nonsense, and hair-splitting over technicalities.” I was about to begin law school after having practiced actively as a pulpit rav for ten years, and I appreciated the opportunity to meet with someone who had “made it big” in this new field I was entering.
Lunch was very nice. He paid for it, which already had made it nice. Beyond that, I politely allowed him to go through his litany, and we bantered vigorously but warmly – he, a prominent, successful attorney without faith who was not going to ruin his lunch by actually contemplating certain existential questions during perhaps his only opportunity in a lifetime to sit one-on-one with a reasonably knowledgeable Orthodox rav. And me, dipping my toes into a new world, a world in which I would have to deal with such people not as their rav but as their underling, at least in the early years. Respectfully, I parried and bantered, tried to shed some light, tried to explain about the Torah paradigm of faith, the place of mitzvot in the life of our people, but he seemed more interested that day in sharing his secular paradigm and in sizing me up for a possible summer internship. By the time that offer would come from him some months later, I already would be scooped up by a bigger, more prestigious, better-paying firm whose name partners all were dead.
But that lunch offered a defining moment for me, and it prompted me to approach my next three years of law studies, as well as my subsequent decade-plus of litigation practice, with a child’s wonder over Torah Judaism’s centuries-old reputation for “nitpicking over minutiae, pilpulistic nonsense, and hair-splitting over technicalities.” By contrast, consider these aspects of the American legal system:
1. Vehicle Law: The posted speed limit is 65. If you drive at 66 mph, it can cost you, although no one gets ticketed for driving one mile above the limit. But drive at 71 mph, not just 70 – that is six mph over the limit, not five – and the one mile speed difference can cost a fortune. Drive at 76, not at 75 – the disparity is even more severe. Drive at 81, not 80 – fuggediboudit.
2. Contract Law: Under the “Statute of Frauds,” an old British common law rule aimed at precluding situations that often result in some of the worst contract disputes, a contract absolutely must be in writing if it runs a year or more. If the contract covers something that runs less than one year, it usually need not be in writing (basically unless it deals with marriage, land/ real property transactions, wills and estates, guarantors, or sales of goods over $500). The thinking is that the more time that transpires, the less clear the memories, the less available the evidence. So put it into writing if the deal covers a year or more. Here is how the law was applied in a real case: A fellow was hired on a lucrative one-year contract for a job out West, beginning January 1 and ending December 31, so he moved there from his home on the East Coast. Weeks after arriving, though, he got fired. He sued the employer for breaching the contract. However, the company defended powerfully: “Breach? Well, guess what? We do not even have to mount a defense because we never put this agreement in writing, and the plaintiff claims he had a one-year contract with us. Under the rule, the vaunted Statute of Frauds, any one-year contract not in writing is unenforceable. And this purported contract never was put into writing.” That sounds pretty nitpicky and hair-splitty, but there is more, much more as we consider the plaintiff’s response: “But, your honor, January 1 was a Saturday. My job duties under the contract actually began on Monday, January 3. So my contract really was only for 363 days, from January 3 through December 31. That was less than a year, so it did not have to be in writing.” The law is the law. The judge agreed. A victory for “nitpicking, pilpulistic nonsense, and hair-splitting over technicalities.”
3. Drafting a Complaint: When drafting a complaint in California, alleging that three defendants perpetrated certain wrongs against the plaintiff, a court opinion found that the Complaint needed to make clear that the wrongs allegedly had been perpetrated by each and every of the three defendants, not just by one or two, if the plaintiff wanted to collect damages from all three. To make that kind of situation clear, California litigators are taught to write Complaints with wording like: “Defendants, and each of them, did commit this act.” If an attorney leaves out the words “and each of them” – such awkward wording – and the Complaint can be construed in a dramatically restricted manner. Victory for hair-splitting and technicalities.
4. Consumer Protection Law: Under California Proposition 65, any store in the state that sells products known to contain lead must post a sign warning the public that the store sells products known to contain lead, a known (cancer-causing) carcinogen. An attorney, who found out that precious crystal drinking glasses contain traces of lead, successfully sued department stores throughout the state that failed to post such a warning in their chinaware departments. He made a fortune. Yet, does the President of the United States post such a warning in the White House banquet room at state dinners? No. He is not obliged to do so – only when offering the product, even fine crystal, for sale. But here is the priceless apex of this law and its application. In Orange County, California, I once went into a Gun and Ammo store, sort of just to see what the store was like. They had powerful rifles for sale, double-barrel shotguns, Dirty Harry-quality handguns. I guess I was “feeling lucky” that day, so I asked where I could find the ammunition. I was directed to a different department. When I arrived, I saw a fascinating display and assortment of every imaginable lethal bullet known to Western civilization (and parts of Iraq). In front of the department, as I entered, I saw the sign: “Proposition 65 Warning: The ammunition in this department contains lead, a known carcinogen.” I went to the manager and asked: “THAT’s what you warn people about in this section?” He replied: “Talk to my lawyers.”
5. Statutes of Limitation: In California, you have three years to bring an action alleging fraud, two years to allege breach of an oral contract, four years to allege breach of a written contract, one year to allege defamation. The reasoning, as with the common law Statute of Frauds, includes: (i) witnesses’ memories fade over time; (ii) evidence gets lost over time; and (iii) people, even schnooks, deserve eventually to repose in peace, so should not have potential civil lawsuits hanging over their heads forever. All this is fine, but if you file the lawsuit only one minute late, the court will throw it out. You can plead with the judge’s commonsense: “But, your honor, the witnesses remember today what they knew yesterday, the evidence still is there, and I telephoned the schnook yesterday so he knew I was filing a day late and therefore has not lost repose.” The judge will respond: “Too late – period. You had your chance. You should not have waited that extra minute.” Victory for hair-splitting and “stupid technicalities.”
6. Wills and Estates: Every first-year law student takes a course on wills and estates. Later in life, people explore tax-advantaged ways to set aside assets for their heirs. Expert attorneys advise on the advantages of setting up trusts. The laws and technicalities, the details and the nuances and the truly most arcane and picayune laws can govern aspects of this legal branch. Nitpicking, pilpul, hair-splitting.
7. File a court paper in California, and it must be on recycled paper, in 12-point font, in either Arial, Courier, or Times font, with a margin at least one inch from the left and at least half-inch from the right. In some counties, though, it must be in 14-inch font. Submit a document in the wrong-size font for that county, and the court will send the document back to you. Same if you submit it on non-recycled paper. Yes, you can fix the problem. Just type “control-A” to block the text and change the font. Change the paper in the printer. You can have it back out the door in an hour less. Yet it will cost you maybe another $200 to have it transported back to the court in that next county. Two hundred dollars for a filing service’s motorcyclist and the related re-filing.
8. Criminal Law: Do you know what happens when the police forget to read a criminal his rights under Miranda v. Arizona, Gideon v. Wainwright, or Escobedo v. Illinois? If you have been to the movies or own a television, of course you do. And you know how you feel about that, too.
9. Constitutional Law: Is ObamaCare’s “individual mandate,” which would compel every American to purchase health insurance, deemed to be a “fee” or is it a “tax”? When the bill was going through Congress, the Republicans accused the President of breaking his promise not to increase taxes on the middle class, so his lobbyists argued throughout Congress that the individual mandate imposes a fee, not a tax. Now it turns out in the courts, as jurists contemplate the commerce clause of the federal Constitution, that the federal government may not have the right to impose such fees in such an area that impinges on personal liberties and perhaps infringes on states’ rights. So, like a Jackie Mason joke, the federal government now argues that the individual mandate actually is not a fee (Fee? What fee? Who said “fee”? I never said fee). Rather, they now say it is a “tax” – because the Constitution accords taxing powers to the federal government. Can you hear Jackie Mason in your inner ear: “But dis is not ah tex, it’s ah fee. Ah fee! Mistuh, you paying attention? Oh? Waht’s daht you say? You won’t allow it if it’s ah fee, but it’s OK if it’s ah tex? OK, dat’s waht we’ve been saying all along: It’s a tex – ah big, juicy tex! Who said fee? What fee? It’s a tex!” It all comes down to nitpicking, pilpulistic nonsense, and hair-splitting technicalities.
This is the way of law, of all honest law. (In Stalin’s and Ahmadinejad’s courts, the cases are decided before the analysis begins or the facts even are presented.) Law is about rules that govern lives of a society. For virtually every law, there needs to be a boundary line, parameters that define a law’s boundaries. Inevitably, although people try to avoid skirting the boundaries, it does happen that they skirt. When that happens, to avoid anarchy and chaos, if the rules are to be enforced fairly and impartially, then that often requires nitpicking, pilpulistic analysis, and hair-splitting over technicalities. Thus, a person one day under 21 is too young to be served alcohol in many states. A single day under 18 can have enormous ramifications, for a person’s entire life, in certain areas of criminal law. Tax lawyers know they may not advise people to break the law, so they specialize in wisely finding loopholes that allow their clients to avoid certain tax ramifications through technicalities. Sports agents help their clients get paid their multi-million-dollar salaries through creative salary arrangements, such as carefully crafted deferred compensation arrangements, to reduce the tax burden. There is no end to the hair-splitting, nitpicking, and legal technicalities in the annals of American law.
G-d gave the Torah and its 613 laws to create a more perfect Jewish society and, through that model, a more perfect world. We live by those laws because they are our lives and extend our days. We love those laws, study those laws, and delve deeply into those laws with all the love and passion for the law that a great American law professor manifests for the particular branch of the law of America that most fascinates her. When we struggle over constructing an Eruv, that Eruv is not a joke or a hair-splitting, a thing of string. Rather, that Eruv (for those who “hold by” Eruvin) – specifically because it must be constructed according to an entire Tractate’s compendium of carefully delineated halakha, with the strictest care – proceeds to define Jewish communities. While those on the outside snicker over “the Orthodox and their string,” non-Jewish realtors plead with prospective homebuyers to accompany them to the perfect residence, emphatically adding: “And it’s inside the Eruv!” That Eruv defines the Orthodox neighborhood, marked by the strollers and the blue-velvet tallit bags. With that Eruv, young families will come. Pizza stores and Falafel joints will become restaurants. Secular and diluted “community day schools” will evolve into yeshiva elementary school academies and yeshiva high schools, and then into community kollels. From such a piece of string.
When someone approaches the rav to conduct a sale of chametz, that is a real sale. John the Handyman, to whom I have been selling chametz for the past six years, comes to my house with real cash, with a real sweater to give me, ready to sign a contract. When March comes, he phones me: “Rabbi, I was in the supermarket and saw the matzo display in the front. That means it’s almost Passover. Don’t forget, Rabbi, I have first claim on purchasing the hametz. You gave me your word” He arrives, and he purchases contracts. The people on those contracts have written their home addresses, the locations of their chametz, the estimated value, and have provided an opportunity for John to come and negotiate fair market prices if he so chooses to exercise that option. These are real transactions. If that Jewish lawyer who took me to that lunch were to offer to sell chametz for me, utilizing all his legal skills, I would not accept his offer because, in that particularly specialized area of law, he would not what he is doing. But, more than merely transfer ownership to John, that transaction is part of a Torah community coming together en masse publicly manifesting, through wonderful John the Handyman, that they are unloading all their chametz, as G-d commanded some 3,300 years ago, in memory of y’tziyat Mitzrayim. We bring that memory to life, even as our chametz-free homes will testify on the Seder nights to our children who are waiting for Aba to concede defeat over the Afikoman and for Eliyahu to sip that wine – another article for another time – that it all is real, that we were slaves to Pharaoh in Egypt, that we trekked in our millions to stand at Mount Sinai and hear G-d’s Ten Declarations and receive His Torah through Moshe’s oral teachings, and that these mitzvot and their proper practice comprise the core of the Jewish People.
When these things are pointed out to scoffers, the redness and anger in their faces transmogrifies to bashful giggling and laughter. You make a friend. Sometimes for Torah, too.
Rabbi Dov Fischer, adjunct professor of law at Loyola Law School, is a columnist for several online magazines and is rabbi of Young Israel of Orange County. He blogs at rabbidov.com