De non apparentibus

De non apparentibus, et de non existentibus, eadem est ratio.
"What is not made to appear is to be treated as though it does not exist."

Four Words

"Die in an avalanche." Renata Tebaldi doing so, 1969.

And one wonders why some of these operas are only rarely staged today. I wager that an avalanche is just as hard to stage as a combination immolation/Rhine flood, but with far fewer devoted fans to snatch up tickets.

To Save for Later

An interesting situation: A state probate court's final and unappealable ruling modifying a testamentary trust so as to qualify as a valid QTIP trust for marital deduction purposes does not preclude a federal court from making an independent determination of the state property laws, as the probate adjudication was not a decision by the state's highest court. Thus, the federal court can hold that the probate court's modification is not valid and that the trust is not a QTIP. Estate of Rapp v. Commissioner, 140 F.3d 1211 (9th Cir. 1998).

Quere: how does this holding mesh with Erie? Does the RDA require deference only to determinations by a state's highest court? Or perhaps more pointedly, do federal courts think they can run rampant when the IRS is a party?

Lord Chancellor

One occasionally hears the assertion that St. Thomas More was the first layman elevated to the woolsack. My hunch has long been that this was surely incorrect, and Blackstone has vindicated me: Chief Justices Thorpe and Knyvet, attorneys and not clerics, served as successive chancellors to Edward III in 1372--1373. Blackstone, 3 Commentaries 645.

Hedges and Ditches

"Where two adjacent fields are separated by a hedge and ditch, the hedge prima facie belongs to the owner of the field in which the ditch is not."
Selwyn, 2 Abridgment of the Law of Nisi Prius 482 (1831).

Of Note

The University of Notre Dame Law Library used to reside in Sorin Hall, now home to Fr. Malloy and the fastest kid from Gallatin at Notre Dame.

La Muette de Portici

Minnesota Public Radio is airing a recording of Aubert's La Muette de Portici tonight (as in, right now). The opera appears to be I Vespri Siciliani with the wedding-chapel massacre traded for a mute girl and a player to be named later. The lack of opera-composer qualms about story and music theft is well documented, of course. Cf, Dvorak's unwillingness to produce the Slavonic Dances, which he regarded as blatant theft from his good friend Brahms, and which he only agreed to write with Brahms' approval.

Judgment for Ejectment

"The form of the judgment, after v erdict for the plaintiff in ejectment, on a single demise, is, 'that the plaintiff do recover his term aforesaid, yet to come and unexpired, of and in the said tenements, with the appurtenance above-mentioned, whereof it has been found by the jurors aforesaid, that the defendant is guilty of the trespass and ejectment aforesaid, and his damages aforesaid, by the jurors aforesaid, in form aforesaid assessed: and also [amount of damages] to plaintiff, at his request, for his costs and charges aforesaid, by the court here, for an increase adjudged, which said damages in the whole amount to [amount]. And let the said defendant be taken, etc."
William Selwyin, I An Abridgement of the Law of Nisi Prius 619--620 (1831).

N.B. -- thank goodness for the rise of the definite article---the aforesaid density in this piece is a bit high.

Ejectment . . . by a bishop

"If the copyholders of a manor belonging to a bishopric , during the vacancy of the see, commit a forfeiture by cutting timber, the succeeding bishop may bring ejectment. Read v. Allen" (1730) (Oxford circuit Nisi Prius---no reporter that accords with any modern citation style).

William Selwyn, I An Abridgement of the Law of Nisi Prius 570 n. 5 (1831).