Monday, February 14, 2011
Each fall, I begin my Torts course with Fitch v. Valentine, a recent case in which a divided Mississippi Supreme Court narrowly granted a reprieve to the endangered “heartbalm tort” of alienation of affections. In making the arguments for and against resigning the tort to the ash heap of history, the various opinions in Fitch provide a nice introduction to the basic functions that we assign to tort law.
I use this post to share a more obscure but equally interesting artifact that also relates to the heartbalm torts, which include not only alienation of affections but also breach of promise, criminal conversation, and seduction. Back in 1935, in the first wave of anti-heartbalm fervor, the Association of the Bar of the City of New York prepared this report on the heartbalm torts. Download 1935 ABCNY Report As discussed below, the report offers a reminder that while the more recent push against the heartbalm causes of action has focused upon the supposedly archaic nature of these claims, the motives behind the initial anti-heartbalm movement were somewhat different.
The report, drafted by the ABCNY’s Committee on Law Reform, is just five pages long. The first page and a half is devoted to a turgid recitation of Roman and German law on claims for breach of promise to marry. The report hits its rhetorical stride only when it turns to the cause of action for alienation of affections. To the report’s drafters, these suits were, “as a general proposition, resorted to by unscrupulous men and women to extort money from defendants unwilling to go through a trial of the issues for fear of publicity,” and “the basis of the old so-called ‘badger game.’ ” (Seven decades later, the “badger game” would inspire the Clive Owen-Jennifer Aniston movie “Derailed.”)
The ABCNY report directs even stronger criticism toward claims for criminal conversation: “There would seem to be little support within the modern concepts of morality for the existence of such a cause of action. That either spouse should be entitled to receive a payment in money because of the other’s infidelity would seem to put the marriage relation on a plane so sordid as to be comparable almost to the White Slave Traffic.” The report also harrumphs, “It is inconceivable that either a man or a woman of finer sensibilities or having any right to claim adherence to the higher ideals of human conduct should ever resort to such a suit.”
These passages sound like they emanated from an institution saturated with white-shoe Wall Street attorneys, because they did. In their hour of need, the embattled heartbalm torts found few friends among the legal elite, who considered the prosecution of these claims incompatible with the image they sought to project for their profession. Bringing a heartbalm case seemed just one step above (or maybe even below) ambulance chasing. (Which, it might be added, the ABCNY also was campaigning against at around the same time.) John G. Jackson, the chairman of the ABCNY committee that produced the report, had helmed the American Bar Association’s Committee on Unauthorized Practice of the Law; he had experience policing the ethical boundaries of the profession. Perhaps Jackson perceived, in the prevailing anti-heartbalm mood of the time, an opportunity to pare back a somewhat squalid area of practice. And in any event, on balance the ABCNY was serving its clients’ interests by advocating reform; while very few Association members ever would bring a heartbalm lawsuit, a few more might expect to defend such a case.
In recommending the abolition or limitation of the heartbalm torts, the lawyers of the ABCNY found common cause with elites in other segments of society. Most notably, the small but growing cohort of female state legislators of the time sensed that heartbalm suits, which were typically but not exclusively brought by women, cast their gender in a passive light inconsistent with future gains in the statehouse. In the words of Indiana legislator Roberta West Nicholson, these representatives didn’t “want to see inferior women pull down our sex” by filing, and then prevailing upon, well-publicized heartbalm suits.
To conclude, the ABCNY report suggests that while the initial campaign against the heartbalm torts may have mostly been about gender, it was also about class. In joining forces against these causes of action, the ABCNY and legislators such as Nicholson were unlikely bedfellows. To each group, however, the heartbalm torts represented both a cause for concern—after all, outsiders might lump these elites together with the scoundrel (or merely hapless) plaintiffs and disreputable attorneys who were bringing these suits—and an opportunity to promote an aspirational agenda reflecting what their gender or profession should be, and could become.
--Kyle Graham, Assistant Professor of Law, Santa Clara Law