GUEST POST:  Bootstrapping and Law

by Eh Nonymous of Unused and Probably Unusable

What does "a loop of leather, cloth, or synthetic material that is sewn at the side or the top rear of a boot to help in pulling" have to do with the law. Usually, not much.  (This is almost the same answer I have when those Wachovia commercials asking what a given random activity has to do with investing; my actual response is vocal, anguished and unprintable).

But that's what a bootstrap actually is.  And we're here today to discuss it, as well lawying.  (What does a lawyer do?  He/she lawys.)  [Raising (not begging) the question: How can you tell when an attorney is lawying?  Answer: Their lips are moving.]

[Post continues by following the link below]

The term bootstrap has several uses--including some verbed uses (aside- "I like verbing words.  Verbing weirds language." --Calvin & Hobbes) and particularly in specialized fields, such as statistics and computing, which are beyond the scope of this work.

So, let’s start with the meaning.  

Ever hear of Munchausen?  Perhaps I should say Baron Münchhausen (wikipedia--also the source for some good reading on the  other meanings of bootstrapping) with the umlaut.  Remember kids, "two vowels, two sounds, two dots" (official slogan, Diaeresis Defense; unofficial slogan, "We hate Mötley Crüe").

Enough with the parentheses (unless I need more).

The Good Baron was said to be able to "lift himself out of a swamp by pulling himself up by his own hair."  Thus, lifting yourself by your own bootstraps, a favorite image for those who favor self-improvement and individual-centered advancement in general.  This is a "good" meaning.  A similar meaning, although less amenable to ideology, gives us "booting" the computer, as the stupid circuits become more and more complicated by bootstrapping themselves up to progressively higher levels.  Also see R. A. Heinlein's "By His Bootstraps," a fun and almost certainly impossible science fiction story involving time travel. 

But there's a dark side, a Sith side if you will, to bootstrapping.

There are traps for the unwary in the law.  It's a cliché.  But what about unavoidable traps, the kind that snare even the cautious?  What do you do when asked to make an impossible showing?

Consider the treatment of ambiguity in contracts, familiar to you lawyers and law students.  Some jurisdictions have a four corners rule; if, after reading the contract, the judge finds that it's clear, then interpretation stops.  If he were to continue, why, he'd be going outside the "four corners," and therefore be an activist, and therefore Evil.  There's nothing for the jury to fact-find about, if the language is unambiguous as a matter of law.

However, plenty of jurisdictions have eliminated this patently stupid requirement, which requires that if the judge thinks that language is unambiguous, even if the parties in fact disagree as to the meaning of the plain words, then the inquiry stops.  In fact, even such folks as the Federal Circuit and Supreme Court will, if you ask them politely, agree that using a dictionary, pre-litigation evidence about the understanding of the parties, and other extrinsic evidence (stuff from beyond the four corners of the document) may reveal that an ambiguity in fact exists.  This would be an implicit, rather than an explicit ambiguity.

Some judges will nevertheless refuse to consider extrinsic evidence to determine whether an ambiguity exists as a matter of law--remembering, perhaps, their law school class in which they learned that extrinsic evidence may not be considered unless the contract is already considered ambiguous.  This is a bootstrapping problem.  "Your honor, we wish to draw your attention to these e-mails, memos, and pamphlets that explain why the parties had different understandings of these terms of art."  "Sorry, folks, but the language looks clear to me.  I can't let you show me I'm wrong by using stuff from outside the contract."  Etc.

For a good primer on some issues that may lurk, see Gregg Weiner's article in Business Law Today from July/August 2001, But is it clear? Avoiding ambiguous contracts.  (I wonder if that technically means it's Business law yesterday. Mr. Weiner was, and it appears still is, a partner at Fried Frank in NYC.)

Another possible bootstrap bummer comes when it's time for attempts to dismiss the case after the pleading stage, or as FRCP 12(c) might have it, Motion for Judgment on the Pleadings.

What happens if a plaintiff alleges disparate impact discrimination in violation of Title VII--that is, that even if no single decision-maker had any demonstrable animus (hatred or dislike, not masculine unconscious) against the fired, demoted, or otherwise punished employee, there was an action that can be shown to have landed harder on a protected group than on others--and the defense argues there is insufficient evidence to let the claim go forward?

What if the defense wants to dismiss on the basis that plaintiff can't demonstrate that there is any evidence of discriminatory impact? What if, in addition, they helpfully refuse to release their employment records or allow other discovery by plaintiff?

Plaintiff is then in a quandary. How can plaintiff and the purported class marshal the statistics permitted in disparate impact discrimination cases if they would need the statistics from discovery, which they won't get if they lose at summary judgment?

Defendant, if successful here, can tie up the plaintiff in knots.  Plaintiff is not entitled to further discovery, defendant can argue, including discovery directed at establishing the basis for class certification, without first demonstrating the existence of discrimination.  Prove your case in order to try it!  Which is the cart, and which is the horse?

I invite further examples of bootstrap dilemmas, and your comments, criticisms, and ad hominem personal attacks here at Evan's blawg and at my new blawg, Unused and Probably Unusable.

About the Author: Eh Nonymous is an anonymous (surprise) attorney living and practicing in Philadelphia.  None of his views are his own, nor should they be construed to represent the views of his employers, friends, or enemies.  His blawg is called Unused and Probably Unusable for explicable reasons.