Legal Commentary

I have long been struck by the casual prevalence of the King Solomon metaphor in legal writing. A quick search of Westlaw's law review (JLR) database for the word "Solomonic" returns 1,194 articles; 388 cases turn up in the ALLCASES database. But what fascinates me more than the reference's prevalence is the fact that the reference is almost invariably misused.

We all know the story of King Solomon - the wise judge who was presented with the dilemma of two women, each claiming that a baby boy belonged to them. Solomon declared that the only fair thing to do was to cut the baby in half. As he called for a sword and acted as though he was about to follow through on this judgment, one of the women cried out that he should not kill the baby but rather give it to the other woman. Thus, Solomon knew that the woman who would rather relinquish the baby than have it killed must have been the true mother.

Of course, what this story demonstrates is Solomon's cleverness in tricking the women to discover the right and just answer to the question before him. Yet (though I don't pretend to have combed through all 1,582 references in Westlaw), it seems to me that lawyers almost always use the term "Solomonic" to refer to a compromise solution, to the act of "splitting the baby"... which is of course exactly what did not happen in the story of Solomon.

The misuse of the reference has surely been noted by others (not least of all by the author of this wikipedia entry). But I suppose what I find most interesting about it is that the actual story of King Solomon captures an entirely different function of the law.....

It seems to me that the story of Solomon is a story about the way in which the law sometimes (ideally) strives not just to achieve a settlement of disputes but to get at the truth of a matter by preventing people from benefiting from strategic behavior, or by giving special attention to the things people do when they are not acting strategically. For this reason, many cases present a health dose of skepticism regarding legislative history, for example, or agencies' decisions to take change their positions while in litigation. Similarly, federal evidence law allows excited utterances and dying declarations into evidence as exceptions to the hearsay rule. Surely there are other examples of ways in which legal doctrines are designed to short-circuit strategic behavior. What are they?