I don’t usually get a great deal of amusement from reading Michigan Supreme Court opinions, but today a passage in a recently released case made me laugh. In a case discussing the extent of the defense of self-defense and the defendant’s duty to retreat, the Court stated:
Michigan law imposes an affirmative obligation to retreat upon a nonagressor only in one narrow set of circumstances: A participant in voluntary mutual combat will not be justified in taking the life of another until he is deemed to have retreated as far as safely possible. One who is involved in a physical altercation in which he is a willing participant -- referred to at common law as a “sudden affray” or a “chance medley -- is required to take advantage of any reasonable and safe avenue of retreat before using deadly force against his adversary, should the altercation escalate into a deadly encounter.
Apparently, somewhere between the drafting and the typing, “melee” became “medley,” and no one further along in the editing process noticed the mistake. At least, that what I thought at first. But upon reflection, I considered that a chance medley -- particularly of the kind heard in airport lounge piano bars (but then, is there any other kind of medley?) -- could well have given rise to a doctrine of self-defense in the context of mutual affray. Perhaps the phrase is “chance medley.”
To my further delight, I have now learned that medley and melee are etymological cousins. From Webster’s:
medley [ME medle, fr MF meslee, mesdlee, medlee, fr fem. Of mesle, medle past part. Of mesler, mesdler, meddler to mix, quarrel, fight …] … 1 archaic: COMBAT, MELEE
So, it seems that the phrase -- if from sufficiently ancient authority -- might well be “chance medley,” although to my disappointment the opinion fails to cite the appropriate authority. Otherwise, the phrase manifests a serendipitous typo.
Dear Sparteye: re duty to retreat. A Massachusetts Supreme Court Judge thirty or so
years ago asserted that if a burglar entered one end ouf your house, you were obligated
to exit the other end. Your home is no longer your castle.
And when I was young, to "mix it up" meant to be mutually aggressive in boxing.
>Michigan law imposes an affirmative obligation to retreat upon a nonagressor
When I started reading this I was hoping that you were going to raise as a peeve your feeling that this phrase sucks.
Just think how much clearer it would be if it said:
Michigan law imposes upon a nonagressor an affirmative obligation to retreat
Every day I run into such poor sentence structure, and I sometimes feel an affirmative obligation to treat the author with disdain. Of course if I have already done that I have an affirmative obligation to re-treat.
TEd
As soon as I can wipe the tears from my eyes just from reading the subject title of this thread, Sparteye, I'll try to read the rest... as they say in the biz: ROTFLMAO!
(how I wish Traficant had been facing state-level charges in Michigan!)
Isn't "affirmative obligation" tautology? Would not just "obigation" be sufficient
Is there such a thing as a negative obligation?
Is there such a thing as a negative obligation?
This is Law, Dr. Bill. Anything's possible. I suppose you could be obliged to do something; that'd be an affirmative obligation, or obliged not to do something; that'd be a negative obligation.
And as what's his name said: The Law is a ass
c'mon Dr. Bill - you KNOW these lawdogs get paid by the word.
[hiding behind the jury box - e]
And as what's his name said: The Law is a assOr even
an ass to be pernickety, Faldage.
'Twere Dickens in
Oliver Twist.
Actually would USns have any means of distinguishing between "donkey" (correct interpretation) and "arse" (incorrect, but equally apt) in a statement such as the one above? And would this be why you used an "a" rather than "an", thus specifying donkey? From a position of ignorance this does seem an eensy bit plausible...
In reply to:
Actually would USns have any means of distinguishing between "donkey" (correct interpretation) and "arse" (incorrect, but equally apt) in a statement such as the one above? And would this be why you used an "a" rather than "an", thus specifying donkey? From a position of ignorance this does seem an eensy bit plausible...
well, that's the whole joke, isn't it? their interchangeability?
and as far as "a" and "an" go, that's all about the vowel sound that follows, no?
“If the law supposes that,” said Mr. Bumble, “the law is a ass, a idiot.”
Mr. Bumble sounds half-assed.
Indeed, there is a reason to use the term "affirmative obligation." The law contemplates different levels of duty in different circumstances, and obligations can depend upon whether the pertinent conduct is misfeasance, malfeasance, or nonfeasance. Sometimes, a person can be responsible for the consequences of what he did, because he did it tortiously, but not for what he did not do. Sometimes, he can be responsible for what he did not do, say, because he is a public official required by a statute to do that thing and failed to. Sometimes, he can be responsible only for what he did illegally.
Jokes about lawyers and verbosity are easy to make, but words are the tools of the trade and are usually chosen carefully and carry particular meanings. You might as well laugh at a mechanic for insisting on using a phillips screwdriver in a screw with a phillips head rather than pounding the screw head out of shape by forcing a flathead screwdriver into it. Of course, if the mechanic messes up the screwhead, it might cost him some time and the price of a new screw to fix the problem, but if a lawyer uses the wrong tool, it might cost a client (and ultimately, the lawyer) millions of dollars. Or jail time.
But dear Sparteye: is "affirmative" in this usage just an intensifier, or what additional
meaning does it convey? What loophole does it plug?
At the risk of incurring the wrath of the attorneys here, here's a ha'penny worth of my thoughts.
Affirmative means that you MUST prove something. In the issue at hand, a person has an affirmative obligation to avoid injury until backed into a corner. If he cannot retreat further, he then has the right to use lethal force to protect himself.
But he can't just raise the idea of retreat as a defense. He has to prove or affirm that he did it.
To put that into perspective, we have here in Colorado what is euphemistically known as the "make my day" law. If someone comes onto your property and inside your house and makes you believe that he's going to hurt you you can blow his shit away. You do have to prove he's across the threshold and that there was a credible threat of bodily injury. To that extent this is an affirmative defense. You have no obligation to run away, as you wold in the barroom scenario. You have to affirm that the circumstances are as you described them and get the DA's office or a jury to believe that you were in fear of your life. You do not have to prove that you were backed into a corner as you would in a barroom "medley."
TEd
Dr Bill, the "affirmative" in this quote identifies the obligation as one requiring affirmative conduct; that is, it is something which the person must do. A (not modified with the term affirmative) obligation can encompass an obligation to refrain from certain conduct.
Perhaps an example from the field of negligence law would help illustrate this. An ordinary person, going about his business on a public street, has no affirmative duty to come to the aid of another. If say, that person see another has fallen and injured himself, the person has no legal (disregard moral obligations here; that's a different subject) duty to help the injured person. There is no affirmative obligation toward the injured person. However, if the person decides to come to the aid of the injured person, he has an obligation to not act in a way which would exacerbate the harm. So, in the example, if the person decides to help the injured party but in his ignorance moves the injured parties' broken leg and causes a much greater injury, he could be liable for that extra injury. As a volunteer rescuer, the person has an obligation (not affirmative) to refrain from carelessness causing extra injury.
Does this make sense now?
The use of the term "affirmative" does not relate to the burden of proof in this context. Rather, an "affirmative defense" is one which is pleaded by a civil defendant to avoid liability despite the plaintiff's presentation of a prima facie claim. The burden of proof is on a civil defendant to prove an affirmative defense. As to a criminal defendant, an affirmative defense imposes an obligation to present some evidence in support of the defense, after which the prosecutor is required to disprove it beyond a reasonable doubt; the ultimate burden of proof never shifts in a criminal case.
edited to fix typo
Dear Sparteye: thanks for the clarification. Here's another question: About fifty years ago
there was a story in newspaper about a crook pistol whipping storeowner, and starting to
empty cash register. Store owner lying on floor was able to get pistol and put a couple
bullets into the crook, who fled but collapsed on pavement outside. When cop assisted
storeowner outside to identify crook, the crook shook his fist at store owner, and declared:
"I'm going to sue you!" I never saw follow-up. Did the store owner have an affirmative
obligation to just lie still and let the crook "do his thing"?
Well, of course, both time and difference of jurisdiction can affect the answer, but look again at the statement quoted above:
Michigan law imposes an affirmative obligation to retreat upon a nonagressor only in one narrow set of circumstances: A participant in voluntary mutual combat will not be justified in taking the life of another until he is deemed to have retreated as far as safely possible
It seems to me that your robbed storekeeper was attacked without provocation rather than a voluntary participant in a mutual affray. Under the usual tort standards, he had no duty to retreat from the confrontation.
People threaten to sue all the time. People file complaints all the time. But that does not mean that they have viable claims which will survive judicial review.
Dear Sparteye: I was wondering if some nutty judge might say the storeowner was
no longer in danger, and had no right to shoot the crook, just to keep him from
taking the cash.
if the person decides to help the injured party but in his ignorance moves the injured parties' broken leg and causes a much greater injury, he could be liable for that extra injury. As a volunteer rescuer, the person has an obligation (not affirmative) to refrain from carelessness causing extra injury.
Does Michigan not have a "Good Samaritan" law protecting those who stop to help another? I know there is such a law in several states. Missouri & Arizon for two. I understand that in some states it applies only to physicians. Any insight on this?
said Mr. Bumble, “the law is a ass, a idiot.”
Ah, that explains it, Bill - not a quote from Dickens himself, but from a bumbling Dickens character.
well, that's the whole joke, isn't it? their interchangeability?
Hmmm, maybe in "the law is an ass", eta, but I can't think of another example where both meanings could apply. "A pain in the ass" would always mean "arse", for instance.
"Ass" (=oaf/fool as well as donkey) certainly softens any associated phrases, though, even in cases where the less offensive meaning doesn't apply. A bit like "Jeepers Creepers" (or "Jeez Louise", as mentioned in Q&A) - an imaginary fig-leaf.
chance medley
Brings a whole new meaning to the phrase "Don't shoot me, I'm just the piano player."
I wonder if it was originally melee, but got mis-typed as "meley" and then spell-check corrected in "medley." With the ascent of spell check programs, careful proof reading has become a lost art. I find multiple typos in novels and text books all the time, often repeated in subsequent editions.
until recently, ass(not the animal) would have been considered inappropriate, so ass(the animal-stupid, stubborn) would have been the logical assumption. the relaxing of language rules on American TV reflect a general lowering of "polite" standards.
Onabi, I think you're right about this particular instance, and the duality of "ass" doesn't always work.
misfeasance, malfeasance, or nonfeasance
Have heard malfeasance, but I haven't run across the other two before. So misfeasance is doing something wrong, but not necessarily illegal? And nonfeasance is failing to do something you're supposed to do?
I was hoping that nonfeasance was just a high-falutin' way of saying "Sittin' around not doing a thing," which would be a useful word ("I expect to be managing an unusually heavy load of nonfeasance and other related activities this weekend."), but it appears to be not so broadly applicable.
Or even an ass to be pernickety
Or a ass, if one is quoting Mr Bumble.
I was hoping that nonfeasance was just a high-falutin' way of saying "Sittin' around not doing a thing," which would be a useful wordCouldn't agree more, Hyla. Now
here's new thread material (certainly in terms of phrases)! Would you care to do the honours? Or are you, like me, busy nonfeasing?
"Nothing in particular is a particularly good thing to do"
>I was hoping that nonfeasance was just a high-falutin' way of saying "Sittin' around not doing a thing," which would be a useful word ("I expect to be managing an unusually heavy load of nonfeasance and other related activities this weekend."), but it appears to be not so broadly applicable.
Pish-tosh!! In the case of so excellent an extended meaning as the one you suggest, I say, apply Humpty's glory rule. Nonfeasants of the world unite! or not, if that seems too energetic
Nonfeasants of the world unite!Consider this
ayleur on Board, sah
Dulce et decorum est dolce far niente.
I'm in...
actually, I have an advanced degree in nonfeasance, after my graduate work in procrastination.
How sweet and proper to live past 89.
malfeasance is "evil doing"; the commission of an act which is positively unlawful and wrong.
misfeasance is the improper performance of some otherwise lawful act.
nonfeasance is the omission of an act which a person ought to do.
To quote from Desmarais v Wachusett Regional School District, 360 Mass 519; 276 NE2d 691:
There is a distinction between "nonfeasance" and "misfeasance" or "malfeasance"; and this distinction is often of great importance in determining an agent's liability to third persons. "Nonfeasance" means the total omission or failure of an agent to enter upon the performance of some distrinct duty or undertaking which he has agreed with his principal to do; "misfeasance" means the improper doing of an act which the agent might lawfully do, or, in other words, it is the performing of his duty to his principal insuch a manner as to infringe upon the rights and privileges of third persons; and "malfeasance" is a doing of an act which he ought not to do at all.
Thank you, Sparteye--I hadn't known that. I guess an example of two sides arguing between mis- and nonfeasance might be something I read about yesterday: a Dr. sent a patient to the only medical facility that offered a certain treatment, and the patient's HMO refused to pay because that facility wasn't on its list of approved places.