Bill Long 12/21/04
Concluding with Legal Images
Continuing to write this way is like my own search for a locus poenitentiae, I think. It is a sort of "escape" from the world, a kind of place of retreat before the "hammer" falls. I only want to devote one more essay to visual legal terms, however, lest I, like the Apostle Paul, become too elated with my "abundance of revelations (cf. II Cor 12: 7)." But lots of legal terms remain.
5. "Hotchpot." I never heard this word before I entered law. Then, I heard it from my trusts and estates teacher. By the way, the "traditional" term in law is "wills and trusts" or "wills and estates" and the 1980s-1990s term was "trusts and estates." Now, the cool term, at least in my former law firm is "wealth management." Yes, that is it. Let's remove all illusions that what we are about is engendering some kind of fiduciary relationship to enhance familial relations; what truly is at stake is managing wealth.
Ok, now that I have that out of my system, I can move to "hotchpot." The term hotchpot refers to the bringing into the estate of an intestate deceased all the assets that s/he had in order to distribute the assets by law. The OED says that the origin of the term is uncertain, since it "may have had reference to the shaking together of things in a pot for other than culinary purposes." However, it seems that at first it was a big pot into which you threw all kinds of things which resulted in some kind of mystery stew. The correct way to use the term is "into hotchpot" rather than "into the hotchpot" or "into a hotchpot." It is curious to me why the article disappears between the preposition and the noun, but this is the way you are sposed to talk. Some statutes provide that if an heir has already received an advancement from the deceased but decides to release his share into hotchpot, he will share equally in the division of the estate. I think the term hotchpot has a viable future to describe the nature of our brains after we have been at work too long.
6. "Cramdown." I laugh every time I see this word, even though its home is in a most somber area of law: bankruptcy law. According to the United States Code (Title 11, the Bankruptcy Code), when the sale of assets is considered as part of a corporate reorganization plan, the plan must normally be approved by the Bankruptcy Court as well as 1/2 of the creditors representing 2/3 of the amount of outstanding debt. However, the Code has a provision, section 1129(b), allowing the Court to confirm a plan even if these groups do not approve the plan, as long as the plan is fair and equitable in the judgment of the Court. In such a case, the Court will exercise this latter, or cramdown, provision. Thus, the provision is called the cramdown provision, but the Court, as it were, crams the plan down the throats of creditors. Isn't that a wonderful image?
You can just hear the complaints of the disappointed creditors to the judge. 'Your honor, you are cramming this thing down our throats.' Judge's response, 'Precisely.' I wonder how many bankruptcy lawyers, in their heart of hearts, when their kids gave them trouble and refused to eat the dinner prepared by the Junior League wife of Mr. Bankruptcy attorney (such a sexist!), felt like imposing the 1129(b) of the Bankruptcy Code on their kids--with respect to the food. Do you suppose that any ever said the following--"Do you want me to cram the food down your throat, as the Bankruptcy Court has authority to cram down a reorganization plan?" Probably not. But I bet that more than one has thought of it.
7. "Disgorgement." I suppose wherever you have cramdown you run the risk of disgorgement, and law knows disgorgement as well. However, disgorgement was a common law equitable remedy in the area of contract law or trust law which requires the trustee to give up (disgorge) profits in the case of misusing trust assets. That is, suppose a trustee decided to invest the principal of the trust in his own account, thinking that he would make a big profit and then return the principal to the trust account before anyone would notice. Worse things have happened in the world. If he does so and makes a profit, he will be required to give up every cent that he made (he will also be subject to civil penalties and prosecution for other reasons). A judge will look sternly at the trustee and say, "Mr. Smith, disgorge the profits." We just hope that this command was not given immediately after lunch.
I promised that this would be the last of my "visual law" essays. If I wanted to take more time, I could also write essays on "invading corpus" or the common law writ of "ejectment" or even a concept such as a "colorable claim." I think I will write on ejectment on my legal history page. Others will have to wait. Hope you enjoyed this tour.
Copyright © 2004-2008 William R. Long