The Interpretation of Law:
Riggs v. Palmer Revisited

Elmer Palmer poisoned his grandfather. The motive was clear. If Elmer didn't act quickly, he stood to lose a large inheritance.

Francis Palmer had written a will in which he left a small part of his estate to his two daughters, Mrs. Riggs and Mrs. Preston, and the rest to his grandson, Elmer. If Elmer died first or died without children who could inherit this estate, the entire estate would revert to the daughters.

But two years after the elder Palmer made his will, he married one Mrs. Bresee. The couple drafted an antenuptial contract, agreeing that if Mrs. Bresee survived Francis Palmer, she would be supported on Palmer's farm. Elmer thought that his grandfather would soon change his will to benefit the new wife and exclude him completely. Seeing that his own position was threatened, Elmer killed his grandfather in order to inherit while the inheriting was good.

The New York Court of Appeals, hearing the case in 1889, was asked: Given that Elmer killed his grandfather, should he be allowed to inherit under his grandfather's will? Francis Palmer's will was valid; at the time of Francis's death, Elmer was still listed as chief beneficiary. Nothing in the statute explicitly prevented murderers from going on to inherit from those they murdered. But it didn't seem right to the majority of judges on the New York Court of Appeals that a murderer should be allowed to gain from his dastardly deed.^[15]

The decision in the case was noteworthy for its explicit attention to interpretive style. How the decision ought to be arrived at was given as much, if not more, consideration than the reasoning or the outcome itself. Judge Earl, writing for the majority, admitted that

it is quite true that statutes regulating the making, proof and effect of wills, and the devolution of property, if literally construed, and if their force and effect can in no way and under no circumstances be controlled or modified, give the property to the murderer.^[16]

But Judge Earl went on to say that not the words but the intentions of the lawmakers in drafting the statute should be controlling here under a theory of "rational interpretation" or "equitable construction":

It could never have been their [the lawmakers'] intention that a donee who murdered the testator to make the will operative should have any benefit under it. If such a case had been present to their minds, and it had been supposed necessary to make some provision of law to meet it, it cannot be doubted that they would have provided for it. It is a familiar canon of construction that a thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute is not within the statute, unless it be within the intention of the makers.^[17]

On this view, judges can ignore the words and go straight to the intentions of the lawmakers, assuming that lawmakers could not have intended absurd things.^[18] With this general method in mind, Judge Earl wrote, "We need not . . . be much troubled by the general language contained in the laws." Instead, judges should rely on "fundamental maxims of the common law," such as "No one shall be permitted . . . to take advantage of his own wrong."^[19] Such maxims "are dictated by public policy, have their foundation in universal law administered in all civilized countries and have nowhere been superceded by statute."^[20] Elmer was not allowed to inherit.

The dissent by Judge Gray used a different interpretive approach and reached the opposite conclusion, though he clearly felt himself pulled on grounds of conscience toward the majority position. But law was law:

If I believed that the decision . . . could be affected by considerations of an equitable nature, I should not hesitate to assent to views which commend themselves to the conscience. But the matter does not lie within the domain of conscience. We are bound by rigid rules of law.^[21]

The statute in question stated that "no will in writing, except in the cases hereinafter mentioned, nor any part thereof, shall be revoked or altered otherwise."^[22] And no explicit provision thereinafter mentioned covered the facts raised in Riggs . So, there was nothing for it, Gray reasoned, but to conclude that Francis Palmer's will should be carried out as written, even if the effect were to give his murderer most of his estate. To do otherwise would be to act illegitimately where the laws were silent and to impose a penalty above and beyond the punishment already meted out in the criminal trial.

Whether Elmer inherits or not seems to rest entirely on the theory of interpretation that a judge adopts. Both Earl and Gray claim to be following the law, though each uses different strategies in divining what it says. As a result, what Gray giveth, Earl taketh away. Is one wrong? Or is the law sufficiently flexible to allow for opposing outcomes? If the law is that flexible, then what, if anything, is meant to be excluded? And if the outcome rests so completely on the theory of interpretation the judge selects, then isn't the theory of interpretation doing at least as much work as the law in determining the outcome?^[23]

These questions place a high premium on being able to justify the interpretive strategy of the judge. And on this question, commentators have been as varied as they have been numerous. Some, like Roscoe Pound, side with Judge Gray and argue that filling in defective statutes with judicial creativity may solve the immediate problem, and may even produce justice, but that this "judicial speculation" goes beyond what a judge should do. If the judge makes law rather than merely interprets it, then the judge "puts a meaning into the text as a juggler puts coins, or what not, into a dummy's hair, to be pulled forth presently with an

air of discovery. It is essentially a legislative, not a judicial, process."^[24] Pound blasts the majority opinion in Riggs as the most conspicuous example of "spurious interpretation" outside the area of constitutional law. The appropriate strategy of interpretation in a hard case like Riggs , Pound asserts, is for the court to read the statute as it stands and to wait for the legislature to change the statute to deal better with the awkward results.

Of course, reading a statute as it stands itself invokes complicated interpretive ideas. Stanley Fish argues that the Riggs case does not really pit a literal interpretation against a nonliteral one, but rather frames the same problem against two different assumed purposes:

No reading is the literal reading in the sense that it is available apart from any purpose whatsoever. If it is assumed that the purpose of probate is to ensure the orderly devolution of property at all costs, then the statute in this case will have the plain meaning urged by the defendant; but if it is assumed that no law ever operates in favor of someone who would profit by his crime, then the "same" statute will have a meaning that is different, but no less plain. In either case, the statute will have been literally construed, and what the court will have done is prefer one literal construction to another by invoking one purpose (assumed background) rather than another.^[25]

Fish undermines Pound's solution by showing how any reading is going to presuppose exactly what Pound says a judge should not use: a background theory about the larger purpose of the statute that cannot be directly drawn from the statute's words.

Ronald Dworkin (who has long used Riggs as a stalking horse for the idea that judges do and should draw on principles for deciding hard cases)^[26] argues that the judge should read a statute in the best possible light against the backdrop of a set of coherent principles in the law. Dworkin makes the case in his early work that principles are as much a part of the law as rules are, and so provide appropriate materials for judges to draw on in deciding hard cases. Riggs is, for Dworkin, a perfect example of this strategy put to good effect. In his later work, Dworkin provides a much more complicated account of why this should be the case. The goal of interpretation is to weave a seamless web of principle. Appealing to the coherence of law, seeing each case as an instance of a broader practice of principled judgment, the judge will be directed to better answers, on Dworkin's view. Although Dworkin does not explicitly work through what a good answer would look like in Riggs , one deeply suspects that he still favors Judge Earl's view. But any judge, on Dworkin's analysis, must take into account a great complexity of things to come up with a meaningfully coherent way of making the best of the principles in the vicinity of this case.

Principle is not such an easy matter even in the Riggs case, which seems on the surface to pit nasty mechanical judging against morally inspired, principled interpretation. When Benjamin Cardozo turned his hand to writing about this case, he noticed that there were important principles on both sides:

There was the principle of the binding force of a will disposing of the estate of a testator in conformity with law. That principle, pushed to the limits of its logic, seemed to uphold the title of the murderer. There was the principle that civil courts may not add to the pains and penalties of crimes. That, pushed to the limits of its logic, seemed again to uphold his title. But over against these was another principle, of greater generality, its roots deeply fastened in universal sentiments of justice, the principle that no man should profit from his own iniquity or take advantage of his own wrong. The logic of this principle prevailed over the logic of the others.^[27]

And why did this latter principle prevail? Cardozo answered that Elmer lost his legacy "because the social interest served by refusing to permit the criminal to profit by his crime is greater than that served by the preservation and enforcement of legal rights of ownership."^[28] Just how and why the standard of greater social interest enters to trump all the others is not clear on Cardozo's account (and this is where Dworkin's thoughtful attention to justifying the principled basis of the law represents an improvement over Cardozo's analysis), but the problem is clear. Principles of interpretation need a complex justification of their own. And the justification for a particular interpretive strategy enters judging as though it were part of the law itself, adding more principles for the courts to use.

These different theories of interpretation and of justification compete for ascendancy so that "interpretations struggle side by side with litigants before the bar."^[29] Debates about theories of interpretation rage over cases like Riggs precisely because these cases make so clear how very much is at stake in the choice of method for reading a statute.

All of these authors writing on Riggs have assumed that deciding on the strategy of legal interpretation decides the case. Once the general approach has been justified, the result of the case follows without difficulty. With Pound's theory, Elmer inherits. With Dworkin's and Cardozo's theory, Elmer loses the estate. Fish leaves the choice open, but argues that the choice of background context determines the result. All agree that once the judge has decided how to interpret the law, the outcome of the case is clear. What makes Riggs a hard case is that different outcomes are reached with different theories of interpretation. And debate is joined over how the legal text ought to be read. But an important premise is buried in this debate.

Arguments over the interpretation of the law assume that the facts have come into an appeals court as given. In one sense, this is certainly correct. The New York Court of Appeals is not going to deny that Elmer poisoned his grandfather or that he stood to inherit as a result. But in another sense, a case on appeal always presents the opportunity for redescription or recharacterization of the facts that have been found at trial. And the characterization of facts can make all the difference in the legal result, even when the question of interpretive strategy has been answered.

What might have happened if the Riggs court took a different view of the

facts? It's not easy to see how facts can be recharacterized, once the opinions have been written. Though, as Karl Llewellyn wrote, "The facts are hardy weeds. They will not down,"^[30] opinion writing tends to obscure alternative versions, to make the version of the facts as presented seem to meet the Walter Cronkite test: "And that's the way it is." But behind every description of facts, there are many other versions, equally true but differently organized. Changes in emphasis, alternative points of view, different symbolic contexts, varying background assumptions all have their effects on which version of a particular story seems the most compelling. And there is, in Riggs , a particular alternative version that was available to the court but not chosen, a version that incorporated a legal fiction. To see this, let's examine the legal context in which Riggs arose.