Professor Bainbridge...on law, politics, religion, culture & food

Meinhard v Salmon

Every corporations and business associations teacher is familiar with Meinhard v. Salmon. Yet, I doubt whether many know the full back story. In a brilliant new article, entitled simply Meinhard v. Salmon, Geoffrey Miller traces the history of the northwest corner of 42nd Street and Fifth Avenue from its original development in 1845 to the events of the case. Miller then turns to the facts of the case, concluding that there are several “reasons to doubt the court’s judgment. But the opinion is remembered today not so much for its facts as for its rhetoric. Cardozo, a virtuoso stylist, outdid himself in Meinhard v. Salmon, serving up a spicy bouillabaisse of metaphor and allusion to describe the nature of the fiduciary duties of a managing coadventurer – hyperbolic phrases that are etched today in the memories of countless attorneys who encountered the case in law school.”

Miller’s parsing of the case is wonderfully sharp:

A close analysis reveals the care with which Cardozo constructed the opinion. Interwoven in the text are metaphors drawn from distinct realms of human culture. Take the dictum that “[n]ot honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior.” “Punctilio” connotes a fine point of exactness in conduct, ceremony, or procedure. It has roots in the Italian renaissance, and in concepts of chivalry and honor. Cardozo reinforces the metaphor by referring to a “tradition . . . unbending and inveterate” and to behavior “higher than that trodden by the crowd.” The allusion is to the high nobility of a bygone era whose standard of conduct was more exacting than that demanded of common folk. Co-adventurers, Cardozo suggests, should behave with similar refinement and courtesy in their mutual affairs. ...

Each of these metaphors has the common feature that the protagonist– a knight on a chivalric quest, a soldier behind enemy lines, a monk devoting himself to prayer and contemplation – is called, by virtue of his role, to suppress his own selfish interests in favor of some greater good. The images have a powerful resonance. They evoke a pronounced (if somewhat misty) sense that duties partners owe to one another really are important.

Miller also makes an interesting reference to the religious imagery in the opinion:

These images also have subtle ethnic connotations. They relate more to Christians than Jews: the latter were not involved in chivalry, did not enter monasteries, and historically did not perform military service. But the opinion does contain language pertinent to Jews. There might be, Cardozo says, something “grasping” about Meinhard’s behavior. The image of the grasping Jew is a classic ethnic stereotype. In juxtaposing the Christian duties that devolved on the Episcopalian Salmon against the grasping demands of the Jewish Meinhard, Cardozo paints a tableau reminiscent of the Merchant of Venice. Cardozo’s reasons for evoking these stereotypes are hard to fathom but may perhaps have been a product (possibly unconscious) of complex feelings about his own religious heritage.

It also sheds new light on the outcome of the case, in a surprise twist.

All in all, this is a must read for anyone who deals with the law of business associations. A scholarly tour de force.