The Hidden Law of the Adamant Contemnor

Abstract

The contempt power is an ancient one, but it is making the news today in a dizzying variety of ways.  Contempt proceedings are colorful.  They involve stubborn clients and stubborn lawyers, and sometimes even more stubborn judges.  They usually occur at high speed, especially compared to the glacial pace of most legal proceedings.  Direct criminal contempt is particularly fast: a person who disrupts or disrespects the court can find him- or herself spending a night in jail after summary process.  Even in civil contempt cases, when the judge threatens a contemnor with steep fines or indefinite imprisonment, the contemnor usually complies quickly.

This Article is not about the fast cases.  We focus instead on the longest-lasting contempt cases in contemporary American law, the ones where the contemnor buckles in for the long haul.  The five cases that we cover here may not be timely, but they are timeless.  They involve a deep-sea engineer, an ex-husband, a financial adviser, a secretive mother, and two brothers deprived of their ancestral land.  The contemnors say that they were defending priceless things or people from the judicial system: their money, their land, their newborn child — even gold coins from a historic shipwreck.  Their adversaries view them as liars, cheats, abusers, maybe even murderers. 

In each of these cases, the contemnor served more than five years for civil contempt of court — and in each of these cases, the legal rationale for letting them out has been obscured from public view, whether because the decision was unpublished, sealed, or simply made orally with no written opinion.  In all five cases, our research and advocacy are responsible for making the court’s reasoning public.  This Article thus presents, for the first time, what we call the “hidden law” of the adamant contemnor. 

After exploring the new insight we have into these five adamant contemnor cases, the Article goes on to outline how this classic “battle of wills” should be conducted within a rule-of-law system.  We advocate for better modeling of rational actors, expert assessments of mental health, objective standards, benchmarks and outer bounds, and written, published decisions.  The Article concludes with specific proposals for reform, including guidance for courts, executives, and legislatures.

Keywords: bankruptcy, contempt, civil contempt, criminal contempt, civil procedure, criminal procedure, civil rights, remedies