When lawyers get creative, it’s not just for the intellectual fun of it. We’re usually trying to help our clients pay less of something – jail time in a criminal case, money in a civil case.
The Silent Sam settlement looks to be the rare exception of lawyers getting creative to help their clients pay more. Two and a half million dollars more.
Make no mistake: the legal theory at the heart of the Silent Sam settlement was, to put it mildly, creative. Our state’s restrictive Monuments Law, which prevents the removal of monuments like Silent Sam, doesn’t apply in the narrow context where the monument is privately owned and the subject of “a legal agreement … governing … removal or relocation.” The lawyers wanted to take advantage of that exception. So they innovated a way to hatch such an agreement between the System and the Sons of Confederate Veterans (SCV).
Here’s how they got there (and hang on to your hats, because it’s a bit of a wild ride). When a representative of the United Daughters of the Confederacy (UDC) spoke at the 1913 dedication of the monument, she expressed the wish that “it stand forever as a perpetual memorial.” According to the lawyers’ creative theory, that one word – “forever” – reflected a legal agreement between the donor (the UDC) and donee (the University) that if the University ever moved the monument, ownership would bounce back to the UDC.
I’ve pointed out elsewhere that this is not how the law of gifts actually works. It takes a lot more than the word “forever” to create a condition on a gift and the restoration of ownership to the donor. This makes sense, don’t you think? If I give my next-door neighbor a leaf blower so that he can clean the lawn in front of his house “forever,” I don’t have the right to go grab it out of his moving van if he relocates.
But remember: we’re being creative here. So let’s go with it.
If we understand the word “forever” in the 1913 speech under the lawyers’ creative interpretation, then ownership reverted to the UDC when the University removed the pedestal, which meant that the UDC could then transfer its ownership to the SCV, which meant that the SCV could ask for possession of the monument, which meant that the UNC System could enter into an agreement with the SCV to transfer possession to them.
The one catch was that to get the SCV to agree, the UNC System was going to have to sweeten the deal with a $2.5 million payment. But apparently the System thought it was worth the outlay, because that was the price tag for summoning up the “legal agreement with a private party” needed to disengage the Monuments Law.
But here’s the rub. Remember that gift in 1913? The one from the UDC, in which the university agreed that the monument would revert to the UDC if it didn’t stand “forever?”
Can’t we say that this agreement was a “legal agreement” between the University and “a private party … governing the removal or relocation” of the monument? Yes, this is creative, but no more so than the idea that “forever” means “if the monument is ever moved, the UDC gets it back.”
If we say that ever since 1913 the University has had a legal agreement with a private party about the removal of the monument, then the Monuments Law doesn’t apply. And that — disengaging the Monuments Law — was the whole point of the UNC System lawyers’ creativity in the first place.
The only difference between the System lawyers’ creative argument about the Monuments Law and my creative argument about the Monuments Law is $2.5 million.
We could have simply left the monument in whatever shed it has been sitting in and told its owner – the UDC – that they were welcome to come pick it up whenever they wished.
We could even have rented them a truck to do the retrieving if we were feeling generous. A 20-foot U-Haul can accommodate almost three tons. A day would have set us back $39.95, plus 69 cents per mile.
If we’d wanted to be creative.
Eric Muller, UNC School of Law professor
Dan K. Moore Distinguished Professor in Jurisprudence and Ethics