Appropriately enough given "March Madness" in basketball, Judges Kozinski and Noonan present for your consideration: The Battle of Literary Maxims.
The question is whether we can judge harshly a husband in an immigration case who remains silent when his wife lies; e.g., impute his wife's dishonesty to him.
In the red corner, Judge Kozinski. Current heavyweight champion of the Ninth Circuit (i.e., Chief Judge). His argument: Yes we can. His quote: "[T]he maxim of the law is 'Silence gives consent.'" Citing Robert Bolt, A Man For All Seasons 152 (1990).
In the blue corner, Judge Noonan. Current conscience of the Ninth Circuit (i.e., votes with strongly held moral beliefs). His argument: No we can't. His quote: "In Oliver Twist, when Mr. Bumble is informed that 'the law supposes that your wife acts under your discretion,' he replies, 'If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience — by experience.'"
Let's see how they match up.
Blue corner first. I like the quote. Famous. A classic. Funny that Judge Noonan leaves out the preceding sentence of that quote, which is even more famous (and equally applicable), in which Bumble says: "If the law supposes that, the law is an ass -- an idiot." Since essentially that's what Judge Noonan's saying about Judge Kozinski. Something that I'd definitely watch on pay-per-view.
Red corner next. Not nearly as famous. Bold. Definitely (and likely deliberately) non-PC. Silence equals consent? Not exactly something you're going to say on a first date. Context definitely important.
I'd heard of the Oliver Twist maxim, but never the Man For All Seasons one. So thought I'd check out the latter in a little more detail. It's definitely used a lot less. It seems to have been popular (or at least more so) in the early 1900s. But no reported or unreported federal case has used it in the last three decades. Except for one. A dissent. Written by . . . . Judge Kozinski. Citing the same book.
What about the maxim's merits? On the one hand, it's got a definite ring of truth. At least in particular contexts. If you sit there while your spouse lies on the stand, there's a pretty strong gut feeling that you're effectively adopting what she says. So if she's a liar, you're a liar. That's basically Judge Kozinski's point.
But on the other hand, Judge Noonan says that's not always the case. In Oliver Twist or in the modern United States. These people were represented by a lawyer (Randhir Kang) who has since been disbarred from immigration practice in the Ninth Circuit based on unethical and grossly inadequate representation of clients. Maybe it was his fault. Or maybe husband and wives in the United States aren't nearly as unitary in purpose or strategy as Judge Kozinski assumes. Maybe wife wants to lie and husband can't stop her. Any more than a husband can stop a wife from doing any number of things she wants but he doesn't. That seems plausible as well.
This is where weighing the various maxims -- and their history -- actually be helpful. For example, Judge Kozinski's maxim doesn't just come from A Man For All Seasons. It's actually an old Anglo-American doctrine: qui tacet consentire videtur. That's old enough so that both Wigmore and Judge Friendly have talked about it at length. With this to say: "[T]he inference of assent may safely be made only when no other explanation is equally consistent with silence; and there is always another possible explanation namely, ignorance or dissent unless the circumstances are such that a dissent would in ordinary experience have been expressed if the communication had not been correct." Even back then, authorities like these warned against incantation of this principle without simultaneous recognition of its limitations, saying: "[T]he force of the brief maxim has always been such that in practice . . . a sort of working rule grew up that whatever was said in a party's presence was receivable against him as an admission, because presumably assented to. This working rule became so firmly entrenched in practice that frequent judicial deliverances became necessary in order to dislodge it; for in this simple and comprehensive form it ignored the inherent qualifications of the principle.”
So who wins the Battle of the Maxims? Judge Kozinski has Judge Silverman in his corner, so he wins in the Ninth Circuit. But as for who wins on the merits -- and in the court of public opinion -- only you can be the judge. Since it's not just March Madness. But American Idol and Survivor as well. One of these maxims has to be voted off the island, while the other goes forward to the finals.
Best of luck to both the red and blue corners as they attempt to persuade.
