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Justice Scalia is often snarky. But he gets as good as he gives. Both tendencies were recently on display, after Justice Scalia apparently asserted that judges interpreting law in accordance with the “spirit of the age” were among the causes of Nazi barbarities, including the Holocaust ― a none too subtle dig at “living constitutionalism” and, perhaps, “judicial activism” of all sorts (whatever judicial activism is). The first reaction of some (myself included) was to think of Goodwin’s law. Others wax sarcastic about “peak Scalia.” Both snark and counter-snark are unjustified.
Start with the snark. Of course, when the spirit of the age is rotten, interpreting law in accordance with it will give foul results. But what about Justice Scalia preferred originalist approach? It will give better results if the law one interprets was written in a more enlightened age than the interpreter’s own; but if a law reflects the prejudice and ignorance of times past, then it is interpreting it in accordance with the spirit of those times that will give us bigoted jurisprudence. If one believes, with Martin Luther King, that the arc of the moral universe bends towards justice, then originalism is, on balance, an unattractive interpretive approach, although this does not exclude the possibility that it will sometimes yield just results, perhaps even more just results than the alternatives.
Closer to home, Justice Lamer, as he then was, observed in R. v. Collins,  1 S.C.R. 265, that “[t]he reasonable person is usually the average person in the community, but only when that community’s current mood is reasonable” (emphasis mine). The point Justice Scalia was, I think, trying to make ― in however exaggerated a fashion ― is the same as that at which Justice Lamer was getting in this passage: the “spirit of the age,” the Zeitgeist, can be foul, and when it is, it is the judiciary’s duty to resist it as best it can, to prevent it from contaminating the law.
We can, of course, debate whether originalism is the best, or even an adequate way of doing so. We can say that perpetuating the iniquities of the past is no solution to the injustices of the present. But the idea is not absurd. It deserves discussion, not derision. It’s a shame that the spirit of the age, what with its addiction to soundbites and gotcha lines, appreciates the latter more than the former.
The idea that interpretation in law is similar to interpretation in music is not exactly new. For example Joseph Raz, in “Authority, Law, and Morality,” first published in 1985, wrote that “Judicial interpretation can be as creative as a Glenn Gould interpretation of a Beethoven piano sonata.” But Jack Balkin, in a wonderful paper, “Verdi’s High C,” develops it much further than a throwaway analogy. The paper is relatively short and well worth reading, but here’s a summary, followed by some comments.
[l]aw, like music and drama, involves more than a reader and a text. It involves a complex of reciprocal influences between the creators of texts, the performers of texts, and the audiences affected by those performances.
Prof. Balkin also points out, however, that there are differences between interpretation in law and in music. For one thing, a judge is required to interpret a law if it is relevant to a case before him, whereas no artist has to interpret a particular piece of music. A further difference is that in law, the interpretations of some interpreters (for example those of a Supreme Court) are binding on other interpreters. There is no such hierarchy of authority in art. Finally, in law, we expect that, at least over time, controversies over the interpretation of particular texts will be settled. There is no such expectation in music, and indeed it would be boring if all the performers played a given piece in the same way.
Again, I find this very interesting and largely convincing. Here are some mildly dissonant notes though.
Speaking of Glenn Gould, he is the greatest reminder there ever was that some performers don’t care much for the audience. Gould hated the interactive nature of performing before an audience, which prof. Balkin implies is a necessary component of authentic performance―the applause, which he wanted to “ban,” the performers’ tendency to play to the crowd. Eventually, he retired from concerts at the height of his career―choosing only to make records which he felt allowed for more genuine and better interpretation. I’m not sure if there is a judicial equivalent to this. Judging, and particularly appellate judging, forces the interpreter to think of at least some audiences―the parties and one’s colleagues on an appellate panel―in ways that make a Gouldian escape to the recording studio impossible. Or does it?
The last, and probably most important point I want to make concerns the relationships between authorship and interpretation in law, music, and literature. Prof. Balkin’s paper implies that these are distinct roles. But that isn’t exactly so.
Take literature first. In the beginning, literature was all about interpretation. There were no fixed texts, and no recognized authors. But there were stories, traditional stories, which had to be retold, and thus interpreted. That has changed of course, so much that we have forgotten that in literature, interpretation pre-dated authorship. Homer didn’t make up his stories, but his interpretation of someone else’s stories is remembered while any other versions have been forgotten, and we regard him as the author. In reality though, the distinction between authorship and interpretation has endured. Shakespeare, for the most part, did not make up his stories either―he worked on the basis of other plays, or histories―his plays are interpretations, though of course they are very much his work and not that of his predecessors. I could go on for a very long time, but the point is simple―there is hardly such a thing a pure authorship ― yet, at the same time, the interpreter is an author too, and can make the interpreted text his own creation. I think the same is true, to an extent at least, of music. Really distinctive interpreters, such as Glenn Gould, are creators in their own right (for better or worse―it is not a sign of approval to say that Gould’s Mozart is not really Mozart at all), while composers engage in a great deal of interpretation, whether of specific melodies that they use in their work or of musical forms (Chopin’s waltzes, say, are interpretations of the generic waltz form).
What about law? Here I think it is, in some ways, quite similar to literature. For a long time, there were no, or at least few, legal texts. Like traditional stories which existed without a canonical form and a known author, common law rules were long believed to exist without a “form of words,” and without being regarded as creations of individual judges in particular cases. Lord Mansfield famously wrote that “[t]he law does not consist of particular cases but of general principles, which are illustrated and explained by these cases.” (R. v. Bembridge, (1783) 3 Doug. 327 at 332, 99 E.R. 679 (K.B.)). It is now much more common to regard particular judges in particular judges as authors of legal rules―say, Lord Atkin as the author of the neighbour principle in Donoghue v. Stevenson). But many people, perhaps most famously Ronald Dworkin, still see at least some truth in the older conception, according to which judges are to some considerable extent retelling, rather than inventing, stories. (This makes me think that Hercules was an inapt name for Dworkin’s model judge. He should have been named Homer.) Conversely, as Thomas Hobbes already observed, in their capacity as interpreters of legislation (and now constitutions), judges are always in danger of becoming authors. Debates about judicial activism are, arguably, debates about what it means to be an interpreter or an author. The persistence of these debates shows that there is no clear distinction between these roles.
Apologies for the length! My fascination with the topic got the better of me.
Any constitution, at least I suppose any constitution that has existed for a while, is surrounded by myths―stories that we tell ourselves to explain why things are as they are and, often, to reassure ourselves that they are as they ought to be. Among the myths surrounding the Canadian constitution, one of the most popular ones is that according to which originalism has no place in Canadian constitutional interpretation. Justice Binnie, for example, retold this myth in a debate with justice Scalia on “judging in a democracy” at a conference dedicated to the 25th anniversary of the Canadian Charter of Rights and Freedoms.
As many if not all myths, this one is rooted in fact, namely in the famous rejection of originalism by the Judicial Committee of the Privy Council in the “Persons Case”―Edwards v. Canada (Attorney General),  A.C. 124. The Privy council compared the constitution to a “living tree” and held that it interpretation should make room for its “growth and expansion within its natural limits.” But as with other myths, our anti-originalist myth makes claims much broader than what its historical foundation can support. Contrary to popular belief, originalism is not altogether absent from Canadian constitutional law, though areas in which it lives on are admittedly narrow enough.
One application of originalism in Canadian constitutional law can be found in a Privy Council decision rendered only a few years after the Persons Case, A.-G. Canada v A.-G. Ontario,  A.C. 326, better known as the Labour Conventions Reference. As I wrote here, Lord Atkin rejected the federal government’s argument that a constitutional provision allowing Parliament to enact legislation implementing imperial treaties also allowed it to implement treaties entered into by Canada itself, holding that “it is impossible to strain the section so as to cover the uncontemplated event” (Canadian independence, that is, uncontemplated at the time of confederation in 1867). As I said in the post linked to, Lord Atkin’s reasoning is not only originalist, but it is that, too. And however much that decision has been criticized, including by those who, like F.R. Scott, thought that it contributed to the Privy Council’s distortion of the constitution’s original meaning, it is an essential part of the fabric of our constitutional law.
Another application of originalism in Canadian law is in the interpretation of the terms “the Constitution of Canada” and “the constitution of the province” in ss. 91(1) and 92(1) of the Constitution Act, 1867 (now ss. 44 and 45 of the Constitution Act, 1982) does not include what Justice Beetz described, in Ontario (Attorney General) v. OPSEU,  2 S.C.R. 2, at 40, as “fundamental term[s] or condition[s] of the union formed in 1867.” In OPSEU, Justice Beetz cited Att. Gen. of Québec v. Blaikie,  2 S.C.R. 1016, which held that legislative bilingualism of the federal Parliament and Québec’s legislature was “part of the Constitution of Canada and of Quebec in an indivisible sense” (OPSEU, p. 40) and thus outside the scope of s. 92(1), as an example of the application of that rule. The rule was also applied in Re: Authority of Parliament in Relation to the Upper House,  1 S.C.R. 54, to support the conclusion that some hypothetical constitutional amendments regarding the Senate would be outside the scope of Parliament’s power under s. 91(1). It will also be applied, though we do not yet know to what effect, in the Supreme Courts future decision on the constitutionality of the federal government’s proposed Senate reform.
Finally, something like originalism is also used to define the “core jurisdiction” of provincial superior (“s. 96”) courts that cannot be removed from them, whether in favour of the Federal court or of (purely) provincial courts. Although Parliament and provincial legislatures respectively can confer on these courts jurisdiction that was exercised by superior courts at Confederation (in 1867), they cannot, pursuant to MacMillan Bloedel Ltd. v. Simpson,  4 S.C.R. 725, make these grants of jurisdiction exclusive.
Originalism seldom, if ever, appears unalloyed in Canadian constitutional law. Thus, as I wrote in the post on the Labour Conventions Reference linked to above, Lord Atkin’s reasons not only rely on the original meaning of the provision at issue, but are also “mindful of principle and of practical concerns.” Blaikie, for its part, uses an originalist approach to interpretation of the term “constitution of the province,” but then switches to living constitutionalism in order to answer “the question whether ‘regulations’ issued under the authority of acts of the Legislature of Quebec are “Acts” within the purview of s. 133,” holding that “it would truncate the requirement of s. 133 if account were not taken of the growth of delegated legislation” since 1867. Still, a fair reading of these decisions must acknowledge how important originalist reasoning is to them.
Very tentatively, I am inclined to think that this is unavoidable. We wouldn’t have an entrenched constitutional text that prevails over ordinary legislation unless we thought that the moment of its enactment had some special importance―otherwise it is not clear why decisions taken then must carry greater weight than those reached more recently. And if that moment had and still has some sort of special importance, then so, plausibly, have the ideas or practices that prevailed then. The temptation to refer to them might be too strong to avoid. This is very sketchy, I know, but, I hope, enough for now.
UPDATE: In the interest of shameless self-promotion, I mention that I took on another myth of the Canadian constitution, the one contrasting our “peace, order, and government” with the Americans’ “life, liberty and pursuit of happiness” here.
Author Leonid SirotaPosted on August 3, 2012 April 7, 2013 Categories Constitutional law, Law of Democracy, New TechnologiesTags election law, elections, internet, interpretation, politics, politique, Québec3 Comments on Oui… Non… Peut-Être?

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2017 Quality control of surfactants for oil and gas extraction intensification Chuiko, M. M.; Vytvytska, L. A.; Stankovska, І. М.
2015 Recommendations on determination of interfacial tension at the interface between two fluids by the spinning drop method Kisil, I. S.; Barna, O. B.; Kuchirka, Yu. M.
2013 Replacement of buffer gas with nitrogen in gas storage formations (models, methods, numerical experiments) Prytula, N. M.; Hryniv, O. D.; Vecherik, R. L.; Boiko, R. V.
2014 Research of stress-deformation state of worn sucker rod thread connection Kopey, B. V.; Mykhailiuk, V. V.; Liakh, M. M.
2017 Research opportunities manipulators for NDT nonlinear control surfaces Rozhanska, I.
2013 Research technique and test experiments for the analysis of petrophysical properties of weak-consolidated and friable rocks Vladyka, V. M.; Nesterenko, M. Yu.; Balatskyi, R. S.
2016 Rheotechnologies in well drilling Myslyuk, M. A.
2017 Risks of gas production forecasting, using material balance equations Zarubin, Yu. O.; Gunda, M. V.; Nikolaychuk, V. V.; Lastovetska, A. V.
2013 Scattering of acoustic waves bubbles of gas in reservoirs Nagorny, V. P.; Denisuk, І. І.; Lihvan, V. M.; Shveykina, Т. А.
2017 Shale gas potential environmental risks research in Ukraine Ageycheva, O.
2017 Shale rocks of the Spassk suite of the Lower Cretaceous as the prospective objects for extracting hydrocarbons Mazur, A. P.; Bodnarchuk, V. S.
2013 Sidetrack in well casing Voevidko, I. V.
2013 Simulation of filter gravel pack in-wash in a well with a significant deviation from a vertical or in horizontal well Striukov, E. H.
2015 Simulation of performance characteristics of centrifugal pumps by the electro-hydrodynamic analogy method Kostyshyn, V. S.; Kurlyak, P. O.
2018 Smart farming – модна тенденція чи необхідність сьогодення? Гера, О. В.; Муляр, А. В.
2017 Soil radon (222RN) concentration as a tool for major tectonic lines determination in the Polish part of the Carpathian mountains Jankowski, L.; Kowalska, S.; Skupio, R.; Dohnalik, M.
2017 Solidna konstrukcja: wymienna szalunki stale typu Vasylyshyn, V.; Karaychentseva, L.

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It is an ancient and universal rule, resting upon obvious reason and justice, that a wrong-doer shall be held responsible only for the proximate, and not for the remote, consequences of his actions. One does not pay money which is due; the creditor, in his reliance on this payment, has made no other arrangements; he is therefore unable to meet an engagement of his own; his credit suffers, his insolvency ensues, and he is ruined. All this is distinctly traceable to the non-payment of his debt by the defendaut; yet he shall be held liable only for its amount and interest; causa proxima, non remota, spectator; and the proximate cause of the plaintiff's insolvency was his non-payment of the debt he himself owed. The cause of this cause was the defendant's failure to pay his debt But this was a remote cause, being thrown back by the interposition of the * proximate cause, (t) In such a case as this the reason of the rule is plain enough. If every one were answerable for all the consequences of all his acts, no one could tell what were his liabilities at any moment. The utmost caution would not prevent one who sustained any social relations from endangering all his property every day. And as very few causes continue to operate long without being combined and complicated with others, it would soon become impossible to say which of the many persons who may have contributed to a distant result should be held responsible for it, or in what proportions all should be held.
We must, then, stop somewhere; but the question where we shall stop is sometimes one of great uncertainty. Not only is there no definite rule, or clear and precise principle given by which we may measure the nearness or remoteness of effect in this respect; but the highest judicial authorities are so directly antagonistic, that they scarcely serve as guides to lead us to a conclusion. For example, the Court of King's Bench, and the Supreme Court of the United States, decide this question as it is presented to them in circumstances of almost exact similarity, in precisely opposite ways, (u) We have been disposed to think that there is a prinv. Harborough, 4 C. & P. 499. But the provocation most have been so recent an to induce a presumption that the injury was inflicted under the influence of it. Lee v. Woolsey, 19 Johns. 319. In Evans-ville, etc. K. R. Co. v. Lowdermilk, 15 Ind. 120, it was held, that where a person's own negligence contributed to his death, the company was not liable, although guilty of negligence, unless bo gross, as to imply a willingness to inflict the injury. (t) Archer v. Williams, 2 Car. 4 K. 26.
(u) Ad insured vessel, having sunk another vessel, by accidental collision, was sentenced by a foreign Admiralty Court (acting on a peculiar local law), to pay one half the value of the lost vessel. It was held in Peters v. The Warren Ins. Co. S Sumner, S89, 14 Peters, 99, that a peril of the sea was the proximate cause of the loss of the sum thus paid, and that the insurers were liable for it. The very same point arose about the same time in the Court of King's Bench, and received a directly opposite adjudication. De Vaux ciple, derivable on the one hand from the general reason and justice of the question, and on the other hand applicable as a test, in many cases, and perhaps useful, if not decisive, in all. It is that every defendant shall be held liable for all of those consequences which might have been foreseen and expected as the result of his conduct, but not for those which he could not have foreseen, and was therefore under * no moral obligation to take into his consideration;(v) There seems little reason to object to this rule in cases where the act complained of was voluntary and intentional. And if it be said that where the act is wholly involuntary, as where the defendant's ship runs down another at anchor, in a dark night, there is no reason for asking what consequences he should have expected, when he had not indeed the least thought of doing the thing itself, it may be answered, that even here it will generally be found, that the consequences which at the time would have been foreseen, by a person of intelligence and deliberate observation, are just those which are so far the direct, immediate, and natural effects of the act, that the doer of the act ought, on the general principles of common justice, to be held responsible for them. Another principle distinctly applicable to the question whether a cause of "damage " was proximate or remote, is this: Did the cause alleged produce its effect without another cause intervening, or was it made operative only through and by means of this intervening cause? (vv) We apprehend that this principle is involved in the later maxim above quoted. Remota means only "removed," whereas our English word "remote" has now acquired the sense of "distant." But it is difficult, and perhaps impossible, to lay down definite rules, which shall have, in all cases, practical value or efficacy in determining for v. Salvador, 4 A. & E. 420. And on this question we cannot but prefer the reasons and conclusions of the English court. The maxim, causa proximo., non remota, spectatur, may be applied with more strictness to contracts of insurance, than in attentions respecting damages, but the difficulty and uncertainty in its application are equally great in both cases. The authority of Peters v. Warren Ins. Co. is ranch lessened by the later cases of Gen. M. Ins. Co. v. Sherwood, 14 How. 352, and Matthews v. Howard Ins. Co. 1 Kern. 9. See the chapters on the Laws of Shipping and on Marine Insurance.

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The EU Charter of Fundamental Rights precludes the “general and indiscriminate retention of traffic data and location data” and “the Member States may not impose a general obligation to retain data on providers of electronic communications services.” This is clear following the Court of Justice of the European Union’s judgment of 21 December 2016 in Tele2 Sverige which affirms that Court’s previous judgment in Digital Rights Ireland, from 2014. In that judgment the CJEU held that the EU’s Data Retention Directive was invalid. Some EU member states, such as Sweden and the U.K., then continued to oblige telecommunications providers to generally retain data under their national laws. Shortly before Christmas, in Tele2 Sverige, the CJEU held that such national laws must similarly comply with the Charter’s data protection rules and may thus be similarly invalid.
The Tele2 Sverige judgment is of great significance for a number of reasons. First, the CJEU made clear that the data retention laws of member states must comply with EU data protection rules. Some member states thought that the derogations provided by EU Directive 2002/58 allowed them to introduce national laws governing the general retention of personal data by private companies outside the scope of EU data protection law and the judgment of the CJEU in Digital Rights Ireland in particular.
Third, the CJEU accepted that it may be necessary to retain data in some circumstances, such as in respect of “a public whose data is likely to reveal a link, at least an indirect one, with serious criminal offenses, and to contribute in one way or another to fighting serious crime or to preventing a serious risk to public security.” Data retention might be lawful if limited on the basis of geography, such as a city centre, where there exists a high risk of preparation for or commission of such offences.
Fourth, the CJEU outlined the criteria a national data retention law needs to satisfy in order to comply with EU data protection law. Such a law must lay down clear and precise rules and impose minimum safeguards; it must indicate the circumstances and conditions under which data retention may be adopted as a preventative measure. This is to limit such retention to what the CJEU underlines as “strictly necessary.” Where data is retained, such retention must “meet objective criteria, that establish a connection between the data to be retained and the objective pursued.” These objective criteria must be assessed against objective evidence. While the CJEU allows that member states may require that data to be retained, such requirements will not be easily or lightly imposed.
Fifth, the CJEU stated unequivocally that “the data concerned should be retained within the European Union.” This statement appears to preclude, or imply the need for further legislation authorising, the transfer of personal data outside the EU including the EEA.
In contrast to many of the CJEU’s recent judgments in the areas of monetary policy and EU citizenship law, the Tele2 Sverige judgment is commendable by the standards of traditional judicial reasoning. Articles 7 and 8 EU Charter guarantee the right to private life and to the protection of personal data in broad terms and so warrant a generous interpretation of the individual rights under both provisions. Moreover, there is no restrictive directly effective provision of equal or indeterminate normative status in the EU Treaties which mandates a restrictive interpretation of the scope of either right in relation to the field of electronic communications data retention. The CJEU in Tele2 Sverige further rightly notes that exceptions and derogations to fundamental rights guaranteed by EU law must be interpreted narrowly and not go beyond what is strictly necessary to achieve countervailing public policy objectives, although it should not be forgotten that the principle of the narrow construction of all derogations from treaty provisions was itself established by the CJEU in the absence of a clear basis in the Treaties. Finally, the CJEU’s approach in Tele2 Sverige closely follows the reasoning in the earlier Digital Rights Ireland case in which the CJEU had declared the Data Retention Directive invalid on the grounds that the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1) EU Charter.
The Tele2 Sverige decision further merits the following observations. First, the respondent member states argued that the national legislation in question concerned the ‘retention’ and not the ‘processing’ of personal data. At first sight, this argument might appeal on literal grounds. However, as the ‘processing’ of such data requires their prior ‘retention’, the Court’s ruling may be defended on the grounds that if ‘data processing’ is covered by EU legislation which is subject to judicial review by the CJEU, so must national legislation governing the prior ‘retention’ of such data as there can be no ‘processing’ without ‘retention’, with the risk of unlawful processing inevitably magnified if the prior indiscriminate detention were exempted from the need for compliance with the EU Charter. Article 3 of Directive 2002/58 further makes clear that the Directive applies to all “processing of personal data in connection with the provision of publicly available electronic communications services in public communications.” It is not unconvincing to conclude, as the CJEU does, that the term “data processing … in connection with” provisions of electronic communications also covers the intermediate retention of such data of the relevant communications. Second, the Court’s Judgment may also be defended against criticisms that Article 1(3) of Directive 2002/58 expressly excludes state “activities concerning public security, defence, State security.” The offending national legislation in Tele2 Sverige governs the retention of data by commercial electronic communication providers, not state activities. Third, the Court’s emerging and so far expansive interpretation of data protection guarantees under EU law follows on from the Court’s strict adherence to established procedural rights guarantees in the area of EU sanctions law. In both areas the CJEU has not shirked away from questioning EU as well as implementing national legislation on the grounds of their non-compliance with applicable rights guarantees under EU law. This is so notwithstanding the obvious political dimension of its rulings, and despite the overt contrary political preferences of many member states and their willingness to intervene alongside the respondent EU institution or member state in key proceedings.
Fourth, the Court’s refusal, at least to date, to compromise broadly phrased rights guarantees in the age of terrorism may be viewed as judicial obstruction hindering the implementation of strong anti-terrorism measures. In the author’s submission, however, such criticism is misplaced. At least in theory, the EU courts are charged with upholding the natural meaning of the EU Treaties (including the Charter) and of EU legislation against transgressions by the lawmaker and executive at both EU and national level. All too often the EU courts have failed in this respect, just as the European Commission all too often ignores its role as guardian of the Treaties when political convenience or the demands of further integration dictate otherwise. However, it is not the function of courts to defer to political convenience and to adjust or vary the natural meaning of legal provisions in accordance with the exigencies of the time or the requirements of the ideological commitment to ‘ever closer union’. If the lawmaker adopted or agreed treaties or legislation that was ill-thought out, ill-worded or simply ill-suited to the times, the courts should give effect to it and it is the lawmaker, not the courts, which should bear the blame for any ensuing inconvenience or deleterious consequences.
Fifth, while the Court’s reasoning may be commended for its consistency in recent cases in holding both EU member states and the EU law-making institutions to the same standard of rights protection, the EU courts all too often hold the member states to a higher standard of compliance than the EU institutions. It is therefore apt to be somewhat cautious in lavishing too much praise on the CJEU for its apparently even-handed commitment to rights protection. In both the fields of data protection and EU sanctions, the expansive interpretation of rights guarantees under EU law also meant that the court consolidated its own expansive human rights jurisdiction vis-à-vis the highest national courts and extended the EU’s ever expanding human rights regime into areas of law that have nothing to do with the EU’s classical internal market economic governance competences. The apparent disinterested concern for individual rights, the demands of “ever closer union” and the Court’s institutional self-interest in expanding its own jurisdiction thus all pull in the same direction, and it is difficult to say which of these factors is the determining motive and which are simply collateral side effects.
Finally, the Court’s decision in Tele2 Sveridge is ultimately based on a proportionality assessment weighing the respecting weight of the right to data protection versus the demands of public security concerns. By hinting that measures which stop short of all-out retention such as targeted measuring collating data of well-defined groups of people may in certain circumstances be compliant with the EU Charter, the Court implicitly opened the door to further legal uncertainties and future litigation. It is rather doubtful that the question of data retention for the benefit of anti-terrorist agencies has been settled for good, or even for long. And when it may be reopened, the Court may finally yield to many of the political pressures that it has so far – generally rightly – resisted.
Dr Gunnar Beck is an EU lawyer and legal theorist. He practises at Essex Court, Chambers of The Rt Hon Sir Tony Baldry, and is Reader in Law at SOAS, University of London.
 Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks.

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What's New With The Family and Medical Leave Act?
The federal Family and Medical Leave Act of 1993 (the "FMLA" or the "Act"), requires covered employers to provide eligible employees with up to 12 weeks of unpaid leave during any 12-month period for any of the following reasons: the employee's own serious health condition, the birth, adoption or foster care placement of a child, or the need to care for a spouse, parent or child who has a serious health condition. Employees must be returned to their prior jobs or to equivalent jobs when they return to work after taking FMLA leave.
Private sector employers covered by the Act are those with 50 or more employees within a 75 mile radius. Eligible employees are those who have worked for a covered employer for at least one year and who have worked at least 1,250 hours in the year immediately preceding any FMLA leave.
the health condition is permanent or long-term and requires periodic absence from work or school for treatment.
To receive the protections of the FMLA, an employee requesting FMLA leave must give his or her employer at least 30 days' advance notice if the reason for the leave is foreseeable, or as much notice as practicable if the leave request is precipitated by a medical emergency or otherwise unforeseeable event. However, an employee who fails to specifically advise his or her employer that an absence should be designated as FMLA leave may still be protected by the Act if the employer had reason to know that the absence in question resulted from an FMLA-qualifying condition or event.
An employer may require that an employee requesting FMLA leave provide certification by a health care provider that the employee has a serious health condition and is unable to perform his or her position, or that the employee's spouse, parent or child has a serious health condition and the employee is needed to care for that family member. If an employer does not agree with the employee's medical certification, the employer may require the employee to obtain a second or third medical opinion at the employer's expense.
When medically necessary, employees may take FMLA leave on an "intermittent" or "reduced leave" schedule (e.g., one day per week or one hour per day). Intermittent or reduced schedule leave is not required by the Act when leave is taken for the birth or adoption of a child.
Viewed in the most favorable light, the FMLA has the salutary purpose of enabling employees to attend to their own or their family's medical and childcare needs without fear of losing their jobs. However, many employers have been frustrated by the complexity of the Act and its implementing regulations, which impose significant recordkeeping and other requirements on employers. Moreover, the FMLA can, at times, seem to impede employers' efforts to reduce employee absenteeism.
There is some good news for employers these days, however, as courts continue to work their way through the intricacies of the Act and the regulations. Summarized below are some of the more significant FMLA issues that were addressed in 1999.
In 1999, at least two federal appellate courts have ruled that a purely technical violation of the FMLA by an employer, working no substantive harm on the plaintiff, does not compel a finding of liability against the employer. For example, in Sarno v. Douglas Elliman-Gibbons & Ives, 183 F.3d 155 (2d Cir. 1999), the Second Circuit Court of Appeals affirmed the dismissal on summary judgment of plaintiff's FMLA claims against his former employer. The plaintiff injured himself while at work, and he consequently was absent from work for 12 weeks. The employer advised him that the leave of absence would be considered FMLA leave. When the 12 weeks expired, the employer contacted him to find out when he planned to return to work; he responded that he was still disabled. The employer terminated his employment on the grounds that his 12 weeks of FMLA leave had expired, he was not ready to return, and his position needed to be filled. Plaintiff remained unable to work for two months following the termination of his employment. Plaintiff sued, claiming in part that the employer had violated the FMLA by failing to give him notice that he was not entitled to more than 12 weeks of leave under the Act. Both the trial court and the appellate court concluded that the employer was not liable for violating the Act because the plaintiff had received every substantive benefit he was entitled to under the FMLA. The Second Circuit explained, "We decline to interpret the FMLA as giving an employee a right to sue the employer for failing to give notice of the terms of the Act where the lack of notice had no effect on the employee's exercise of or attempt to exercise any substantive right conferred by the Act." Id. at 162.
Similarly, the plaintiff in McGregor v. Autozone, Inc., 180 F.3d 1305 (11th Cir. 1999), took 15 weeks off from work when she gave birth. When she returned to work, she was demoted. She sued under the FMLA, alleging that her employer failed to return her to her prior position or an equivalent position at the conclusion of her leave of absence. Specifically, she claimed that because her employer failed to notify her that her paid disability leave and her unpaid FMLA leave could run concurrently, she was entitled to take the two leaves consecutively (i.e., 13 weeks of disability leave followed by 12 weeks of FMLA leave). Further, she argued, because she took only 15 weeks of leave, she was entitled to be restored to her prior position or an equivalent position upon her return to work.
The district court granted the employer's motion for summary judgment, finding that the regulations requiring an employer to notify an employee that disability leave and FMLA leave run concurrently are invalid. The Eleventh Circuit Court of Appeals affirmed the dismissal of plaintiff's FMLA claims, explaining that the federal regulation at issue, 29 C.F.R. § 825.208, is invalid and unenforceable because it "converts the statute's minimum of federally-mandated unpaid leave into an entitlement to an additional 12 weeks of leave unless the employer specifically and prospectively notifies the employee that she is using her FMLA leave….The regulations not only add requirements and grant entitlements beyond those of the statute but they also are inconsistent with the stated purpose of the statute." Id. at 1308. The appellate court concluded that, "[w]here an employer such as defendant exceeds the baseline 12 weeks by providing not only more leave than FMLA but also paid leave, the employer should not find itself sued for violating FMLA." Id.
District courts have begun to rely on decisions like Sarno and McGregor to find that technical violations of the FMLA by employers do not necessarily result in liability under the Act. For example, the District Court in Donnellan v. New York City Transit Auth., No. 98 Civ. 1096 (BSJ), 1999 WL 527901 (S.D.N.Y. July 22, 1999), granted the employer's motion to dismiss the plaintiff's FMLA claims. The plaintiff suffered an injury that constituted a "serious health condition" under the FMLA; she commenced a medical leave of absence that continued for 17 weeks, at which point her position was eliminated. The plaintiff remained unable to work for more than a year; she was later rehired by the employer, but was not restored to an "equivalent" position. The plaintiff alleged that the employer violated the FMLA by failing to expressly designate her 17-week leave as FMLA-qualified leave, which, she claimed, meant that the clock never began to run on her FMLA leave, and that she was entitled to be restored to her previous position when she was ready to return to work more than 52 weeks after her leave of absence commenced.
Granting the employer's motion to dismiss, the court conceded that in some circumstances, an employer's failure to designate an employee's absence as FMLA leave would interfere with that employee's FMLA rights. In this case, however, because the plaintiff was unable to return to work for more than one year after her leave of absence began, she could not have avoided exhausting her 12 weeks of FMLA leave due to her serious health condition. Thus, she was denied no substantive right as a consequence of her employer's "technical" violation of the FMLA (i.e., its failure to expressly designate her leave of absence as an FMLA leave). The court concluded, "[t]o find that this technical violation of the designation regulations functions to deny plaintiff of her FMLA rights would be an egregious elevation of form over substance." Id. at *4.
The plaintiff in Doe v. King County, No. 97-35876, 1999 WL 50860 (9th Cir. Jan. 7, 1999), was the bailiff and sole employee of a superior court judge. His employment was terminated while on leave of absence receiving treatment for his cocaine addiction. The judge terminated plaintiff's employment while he was on leave because his position required "a high level of trust, confidentiality and responsibility," which the plaintiff had breached by engaging in unlawful conduct (abusing cocaine) while in the judge's employ. The plaintiff sued, alleging that he was terminated in violation of the FMLA for taking a medical leave of absence covered by the Act. The district court disagreed and granted the employer's motion for summary judgment. The Ninth Circuit affirmed this decision on appeal, finding that "Doe was terminated by the judge not for taking leave, but for his illegal conduct and the resulting loss of trust in an employee occupying a sensitive post." Id. at *1.
The plaintiff in Barnett v. Revere Smelting & Refining Corp., No. 98 Civ. 7307 (CM), 1999 WL 965429 (S.D.N.Y. Oct. 15, 1999), alleged that he had informed both his supervisor and the Company nurse that he suffered from a heart condition which might render him occasionally unable to work, and he claimed that his employer violated the FMLA when it fired him for excessive absences immediately following a two-day absence from work due to that condition. Although the employer argued that plaintiff's heart condition was not a "serious health condition" under the FMLA, the court found that his condition would constitute a serious health condition if it required periodic visits to a health care provider for treatment, continued over an extended period of time, and caused episodic incapacity. The employer also contended that it had not received adequate notice of plaintiff's need for FMLA leave, because he had called the Company's security guard and advised only that he was having chest pains and difficulty breathing, and not that these symptoms or his resulting absence from work were due to his heart condition. The court denied the employer's motion for summary judgment, finding that there were material factual disputes with respect to the pivotal question of whether the employer had enough information to know that plaintiff's two-day absence was related to his previously-disclosed heart condition.
In Miller v. AT&T, 60 F. Supp.2d 574 (W.D. Va. 1999), the plaintiff, who was absent from work due to a severe case of the flu while on final warning for attendance, subsequently submitted a medical certification form completed by her physician, certifying that she had been absent from work due to a serious health condition. After reviewing her medical certification, the employer concluded that the plaintiff's illness did not constitute a serious health condition covered by the FMLA because her physician had not certified that she was treated on two or more occasions for her illness. Without advising the plaintiff of this alleged deficiency in her FMLA certification, the employer denied her application to have her absences counted as FMLA leave. Two days later, she was fired for excessive absenteeism.
The court rejected the employer's argument that plaintiff's medical certification was insufficient, finding that plaintiff's physician stated that her condition qualified as a serious health condition, and he supported this opinion with medical facts and documentation. He also indicated the date the serious health condition commenced, and the duration of the condition; finally, he stated that plaintiff was unable to perform the functions of her position for the duration of her flu. Citing the applicable federal regulation, the court stated that "[a]n employer may not require additional information." Id. at 579.
The court likewise rejected the employer's contention that the flu cannot qualify as a serious health condition. Noting that the regulations state that the flu ordinarily is not a serious health condition, the court concluded that, "whether or not a particular case of the flu qualifies as a serious health condition is and should be left to the informed discretion of medical doctors." Id. at 580. If it wished to contest the validity of the plaintiff's medical certification, the employer could have availed itself of the second-opinion procedures under the FMLA; having failed to do that, the employer did not have the right to deny plaintiff's application for FMLA leave. Accordingly, the court granted the plaintiff's motion for summary judgment and found the employer liable for wrongfully denying her request for FMLA leave.
In a recent opinion letter, the Wage and Hour Division of the U.S. Department of Labor responded to an employer's question regarding its right to change its method of calculating the "12 month period" in which an eligible employee may take up to 12 weeks of FMLA leave. The opinion letter described four alternative methods for calculating the 12 month period: calendar year, any fixed 12-month "leave year;" the 12-month period measured forward from the date the employee's first FMLA leave begins; or a "rolling" 12-month period measured backward from the date the employee uses any FMLA leave. According to the Department of Labor, an employer must consistently apply to all employees whichever of these alternative methods it selects, except that the employer may change to another method so long as it gives employees 60 days' advance notice of the change. During the 60-day "transition period," employees' entitlement to FMLA leave must be calculated under the more generous of the prior method of calculation, or the newly announced method.
In another opinion letter, the Wage and Hour Division explained that an employee who is absent from work due to an FMLA leave is not per se prohibited from continuing to work at a second job. Rather, if the employer has a consistently-applied policy prohibiting outside employment while an employee is on a paid or unpaid leave of absence, employees on FMLA leave would be subject to that policy. Absent such a policy, an employee may do as he or she chooses while on FMLA leave.
Finally, the Wage and Hour Division issued an opinion letter on the subject of whether overtime hours may be included in the calculation of the 12 "workweeks" of FMLA leave to which an eligible employee is entitled. According to this opinion letter, an employee's workweek is determined based on his or her usual or normal weekly schedule. Accordingly, if overtime hours are only worked "as needed," or if overtime is strictly voluntary, such hours may not be counted to calculate the amount of FMLA leave an employee is eligible for, nor may those hours be charged to the employee's FMLA leave entitlement. On the other hand, if an employee normally works overtime and that employee is unable to work overtime because of an FMLA-qualifying reason, any overtime hours not worked may be counted against the employee's FMLA leave entitlement.
What's next for the FMLA?
More than five years after it was enacted, the FMLA continues to be the subject of significant political debate. Recent pronouncements from the White House and from Congress suggest that the Act may be expanded within the next several years. In his January 1999 State of the Union Address, President Clinton suggested that because FMLA leave is unpaid, many Americans cannot avail themselves of the Act's job protections. Accordingly, he proposed that workers should be eligible to collect unemployment insurance benefits while on FMLA leave. The President also spoke approvingly of legislation recently proposed by Congressional Democrats that would expand the coverage of the Act to employers with at least 25 employees, and would permit employees to take up to 24 hours of FMLA leave each year to attend school activities of their children, or to attend to the routine medical needs of their children. Republicans have suggested that they will respond to such legislation with proposed amendments of their own, requiring employees to take FMLA leave in increments no smaller than half-days, permitting employers to require more extensive medical evidence to support an employee's medical certification, and narrowing the definition of "serious health condition" under the Act.


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Messrs. J. A. Atkins and Carter W. Wesley, both of Muskogee, Okl., and James A. Cobb, of Washington, D. C., for appellants. [273 U.S. 195, 196] Messrs. J. L. Hull and Nathan A. Gibson, both of Tulsa, Okl., and Thomas D. Flannelly, and Paul B. Mason, both of Independence, Kan., for appellee.
The averment that the guardian was appointed without notice was qualified by an amendment showing an order for a hearing on January 3, 1911, and for notice by posting in three public places, one being the door of the Court House. The notice was posted as directed but although dated December 15, 1910, states January 3, 1910, instead of 1911 as the time for the hearing. It was also sent by mail to the minor, to Minerva Ingram and three others, stated to be next of kin and persons having the care of the minor. It is admitted that Minerva Ingram was the mother of the minor, and the record indicates that the latter was of tender years, or at least under twelve, which is not denied. The mother seems to have had him in her custody. The Oklahoma statutes only require such notice as the judge deems reasonable to be given to the relative residing in the county and to any person having the care of such minor. Compiled Oklahoma Statutes, 1921, 1431. In the circumstances stated, unqualified, the requirement of notice is merely formal, if it exists. Lester v. Smith, 86 Okl. 143, 200 P. 780; Gibson, Appellant, 154 Mass. 378, 379-381, 28 N. E. 296. Certainly there is nothing in the Constitution of the United States that requires it. See Hoyt v. Sprague, 103 U.S. 613 . The clerical error in the notice would mislead no one and did not invalidate the proceedings. The mother was the petitioner and no one but the mother and son was concerned. We see nothing to overcome the presumption if any presumption were needed, in favor of the validity of the appointment declared to exist by the Supreme Court of the state. Baker v. Cureton, 49 Okl. 15, 150 P. 1090.
The Oklahoma statutes are held to give to guardians the power to execute oil and gas leases that may last beyond the minority of their wards. Cabin Valley Min- [273 U.S. 195, 199] ing Co. v. Hall, 53 Okl. 760, 155 P. 570, L. R. A. 1916F, 493; Mallen v. Ruth Oil Co. (D. C.) 230 F. 497, affirmed (C. C. A.) 231 F. 845. The fugitive character of the subject-matter makes it necessary in the ward's interest that guardians should have that power, and it appears to us that it would be an extravagant interpretation of the Constitution to hold that the ward's interest must be sacrificed on the ground of the absolute character of his title when adult. He takes that title subject to such qualifications as the law reasonably allows to be imposed for his good. The denial of the power as to agricultural (Haddock v. Bronaugh, 92 Okl. 197, 218 P. 848) or coal lands (Tierney Coal Co. v. Smith, 180 Ky. 815, 203 S. W. 731, 4 A. L. R. 1540), whether right or wrong on constitutional grounds, cannot be extended to this case.
It is not open to dispute that the removal by the later Act of Congress that we have cited of the restriction upon alienation previously imposed is valid. Williams v. Johnson, 239 U.S. 414, 420 , 36 S. Ct. 150; Egan v. McDonald, 246 U.S. 227, 229 , 38 S. Ct. 223; Fink v. County Commissioners, 248 U.S. 399, 404 , 39 S. Ct. 128.
It is admitted that if we follow the decisions of the Supreme Court of Oklahoma, both those that we have cited and others, the guardian did not have to follow the procedure prescribed for the sale of a ward's real estate. Duff v. Keaton, 33 Okl. 92, 124 P. 291, 42 L. R. A. (N. S.) 472; Papoose Oil Co. v. Swindler, 95 Okl. 264, 221 P. 506. See, also, Jackson v. Gates Oil Co. (C. C. A.) 297 F. 549; Clayton v. Tibbens (C. C. A.) 298 F. 18, affirming (D. C.) 288 F. 393. But it is argued here that under Kuhn v. Fairmont Coal Co., 215 U.S. 349 , 30 S. Ct. 140, this Court is not bound by the State decisions and may judge for itself, inasmuch as whatever may be the rule of property now, Duff v. Keaton was decided after these leases were made. It would seem from the cases cited that the present rule had been followed and great interest established on the faith of it before Duff v. Keaton. But apart from that consideration no case yet has gone to the length of undertaking [273 U.S. 195, 200] to correct the construction of State laws by State courts. The exclusive authority to enact those laws carries with it final authority to say what they mean. The construction of those laws by the Supreme Court of the State is as much the act of the State, as the enactment of them by the Legislature. If we thought the decisions cited far more questionable than we do, we nevertheless should bow to them as binding upon a matter of local administration and of only local concern. The counsel for the appellants presented a very thorough and well stated argument, but failed to make us doubt that the decree must be affirmed.

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When it comes to romantic couples “living together”, attitudes have changed from what they were a few decades ago. The negative stigma attached to couples cohabiting outside of marriage has waned and fewer people view unmarried couples who live together as inappropriate or immoral. In fact, many couples view “living together” as a way to live without marriage, as part of dating, as a means to reduce expenses or as a useful step or “test run” so to speak in the road towards marriage. There are rumors, however, of a surprising correlation between cohabitation prior to marriage and divorce. There are even various studies that have been conducted over the years to note some correlation between cohabitation before marriage and divorce. Is it true that couples who cohabited before marriage are more statistically likely to head to divorce court?
In a 2012 New York Times article written by Meg Jay entitled “The Downside of Cohabiting Before Marriage“, the author addressed how common and expected it is among young people today to live together before they get married. The author pointed out that cohabitation has increased 1,500 percent in the last fifty years, and according to a nationwide 2001 study conducted at Rutgers University and the University of Virginia, half of the interviewees in their twenties indicated that they would never marry someone without having lived with with that person first. Additionally two thirds of those the interviewees in their twenties indicated that they viewed cohabitation prior to marriage as a way to avoid divorce. Ms. Jay, however, discussed that studies show the opposite is true and that there is a “cohabitation effect” on a marriage, meaning that people who cohabit prior to marriage it is observed that people who cohabited before marriage often felt dissatisfied with their marriages and they felt more inclined to divorce. While the researchers assumed that couples who cohabit before marriage had a less traditional view of marriage and were thus more open to divorce, the researchers concluded that there was a correlation between premarital cohabitation itself and the chance of divorce. Researchers noted that those who cohabited before marriage often “slid” into the decision to transition from a dating couple to a cohabiting couple, rather than discussing why they wanted to live together or what “moving in together” signified in their relationship. For instance, one cohabitant may view living together as a step towards marriage, while the other cohabitant may view the cohabitation as a matter of convenience, reduction in living expenses or as a way to avoid a commitment like marriage. The researchers noted that people of both genders have lower standards in terms of the romantic partner that they would live with rather than marry. Given the lack of communication and intention to commit, it would not then be surprising that such couples would be dissatisfaction with marriage.
A 2014 article by Lauren Fox entitled “The Science of Cohabitation: A Step Toward Marriage, Not Rebellion“, published Atlantic Monthly Magazine discussed a study published in the The Journal of Marriage and Family, and suggested that cohabitation before marriage does not itself increase the likelihood that the couple will divorce. Instead, what is more significant as a predictor of divorce is the age and maturity of the couple when they make that major commitment, whether that commitment is cohabitation or marriage. For instance, a couple who starts to cohabit at age age of 18 is twice as likely to divorce than the couple that begins cohabitation at age 23. So what matters is the maturity of the decision to “settle down”, whether “settling down” means cohabitation and/or marriage. Living together remains a popular choice of couples prior to marriage. This article, however, is similarly critical of the decision to “slide” into a decision to live together and to “slide” into a decision to then marry as couples may cohabit not with the intent to marry but the intent to have less of a commitment to one another. However, it is more difficult to break up with a person that one is living with than it is to break up with a person one is dating but living apart from, and couples find themselves “sliding” into marrying someone that they might not otherwise have married. The study was, however, positive in noting the decreasing correlation between premarital cohabitation and divorce, which is good news given that two thirds of the couples married that year lived together for at least two years before marrying.
Another reason to consider cohabitation before marriage with caution is because there are instances where premarital cohabitation has impacted alimony and equitable distribution cases in a divorce. As comedic writer Nora Ephron aptly said, “Never marry a man [or woman] you wouldn’t want to be divorced from.” When you are cohabiting and thinking about marriage, the couple needs to be open with one another before and after the cohabitation about what significance that cohabitation has on their romantic relationship – and their financial relationship.
For example, it happens frequently that couples who are cohabiting acquire assets together during the period of cohabitation which must be addressed when the couple breaks up – before or after a marriage. In the case of Aranow v. Silver, 223 N.J. Super. 344 (Ch. Div. 1987), the parties were cohabiting and engaged to marry. They bought a property that they would marry, but the property was purchased with a down payment funded solely by the Defendant. The day after Defendant moved in, the parties ended their engagement, and the Plaintiff never lived in the property and did not contribute to the down payment, but the when the property was purchased, it was held in the Plaintiff’s and Defendant’s joint names, and their names were both on the mortgage. The parties then disputed in court how title was to be distributed. The family court held that the Defendant would have sole title to the property and sole responsibility for the mortgage, and that Plaintiff’s name was to be removed from both. The court treated this property the same way it treated the parties’ dispute over the wedding ring (which was also ordered to be returned to the Defendant). The court found that both were “conditional gifts” with the condition being marriage. Since the parties were not married, the condition was not met and the gifts had to be returned even though the property was held in joint name and was purchased in contemplation of marriage.
In the case of Winer v. Winer, 241 N.J. Super. 510 (App. Div. 1990), the parties were married after a period of cohabitation. Before the marriage, the Defendant bought a condominium with his sole funds and held the condominium in his sole name. He chose the condominium without input from the Plaintiff and denied that it was purchased in contemplation of marriage. He argued that the condominium was exempt from equitable distribution because it was his premarital asset. The Court nonetheless held that this property was subject to equitable distribution in the divorce, noting that while the Defendant argued that it was not purchased in contemplation of marriage, he testified that he knew that the parties would live there during the marriage when he bought it and hence found that the property was purchased “in contemplation of marriage”.
The Court relied upon the decision in Weiss v. Weiss, 226 N.J. Super. 281, 287 (App.Div. 1988), in which the Appellate Division held that a date prior to the wedding ceremony can, in certain circumstances, qualify as the date of the commencement of the marital partnership when deciding if an asset is subject to equitable distribution in a divorce. In this case, a home was purchased during the parties’ engagement. The Court held that because the property purchased in specific contemplation of marriage, there was an implied contract between the parties that the property would be a marital asset of both parties. Similarly, in Raspa v. Raspa, 207 N.J. Super. 371 (Ch. Div. 1985), just days prior to the marriage, the defendant purchased a home in his sole name and with his sole funds, and claimed during the parties’ divorce trial that the parties did not intend for it to be a marital asset. The plaintiff admitted that she did not contribute to the down payment, but testified that she did help choose the home and she did contribute financially after the marriage for years to the household expenses, including the mortgage and maintenance expenses of the home. She testified that she was not concerned with the house being held in the defendant’s sole name because he never told her that she would have no interest in the house. The home was in the divorce considered by the court to be a marital asset subject to equitable distribution as it was purchased in contemplation of marriage and treated as a marital asset by both parties during the marriage.
In Coney v. Coney, 207 N.J. Super. 63 (Ch. Div. 1985), the parties began living together in 1968 when they were both still married to other people. In 1971 they wanted to buy a house together, but because the plaintiff was still married, the defendant had sole title to the house as she was then divorced. The parties ultimately married one another in 1978, but in 1984 a divorce complaint was filed by the plaintiff. The defendant argued that the house was exempt from equitable distribution because it was purchased by her before the marriage in her sole name. The court noted other cases wherein the courts had taken a more flexible definition of the period “during the marriage” than indicated in the equitable distribution statute and, therefore, held that property was subject to equitable distribution because it was purchased in contemplation of marriage.
In Mangone v. Mangone, 202 N.J. Super. (Ch. Div. 1985), however, the family court did not distribute real estate purchased during the period of the parties’ six year premarital cohabitation when they divorced. The court indicated a somewhat dismissive view of premarital cohabitation and thus did not believe that a marital partnership could have begun prior to the date of the actual wedding ceremony. The family court judge stated: “That ‘living together’ relationships exist is a fact of our society. The marriage contract is being diluted and subject to an epidemic level of attack. Standards of conduct change. Today’s innovations have a way of becoming tomorrow’s conventional wisdom. . . . Indeed many accepted mores have been and are being tested and modified. Such is the way of dynamic society. Plaintiff would have this court support her position and make a further incursion into the parameters of of the marriage relationship. As stated above, the new live together relationship is recognized by the Supreme Court of New Jersey which confirmed and enforced contracts for support found to have been created by people who choose to live this alternative lifestyle. . . . [W]hat then is the effect of the parties entering into a marriage contract?” The Court rejected the idea that the parties had any kind of implied contract that the property purchased during their cohabitation was a marital asset as that contract even if it had existed would have been superseded by a new contract at the time of the marriage. Hence that property was considered exempt from equitable distribution as the premarital asset of the Defendant.
This notion was rejected by the family court in Rolle v. Rolle, 219 N.J. Super. (Ch. Div. 1987), where the family court acknowledged that the equitable distribution statute authorizes distribution of assets acquired during a marriage. Unlike the family court in Coney, the family court in this case did not rely on the equitable distribution statute to equitably distribute a property purchased during the parties’ long period of premarital cohabitation or extend the definition of what “during the marriage” meant to include assets purchased “in contemplation of marriage” when the parties were living together. Rather, the Court applied equitable concepts such as implied contract, transmutation and quantum meruit to allow the home to be distributed between the parties in their divorce in order to avoid a grossly inequitable result of the home being distributed only to one party.
Cases such as the above are another reason why couples who are living together need to be clear and explicit with one another in terms of what their expectations are when they are cohabiting and what their expectations are when a significant asset is purchased during the period of cohabitation. It may be uncomfortable but they need to consider and discuss what happens to such assets if they break up before or after marriage.
In certain instances, cohabitation prior to marriage may impact an award of alimony as well. For example in the case of McGee v. McGee, 277 N.J. Super. 1 (App. Div. 1994), the Court noted that one of the statutory factors that a court has to consider when awarding alimony is the duration of the marriage. In this case, the parties were married for only three years. However, when determining Dr. McGee’s alimony obligation, the court did not limit itself to considering the duration of the marriage. The court considered the length of the parties’ relationship, noting that the parties had lived together for more than seven years prior to the marriage, and awarded permanent alimony to Ms. McGee based on the parties’ having a ten year relationship and the parties’ economic disparity and earning capacity at the end of the marriage and Mrs. McGee’s economic dependence on Mr. McGee, who benefited from Mrs. McGee’s premarital assets and the substantial non-financial contributions that she made to Dr. McGee and his career. The Court thus “tacked on” the period of cohabitation to the length of the marriage when determining the duration of alimony.
The alimony statute, however, does not require the court to consider premarital cohabitation nor does it require that a court tacks on a cohabitation period. The statute does not even state that a court has to consider a period of premarital cohabitation between the parties. The statute does, however, allow the court to consider “any other factor” that the court deems relevant and does allow the court to consider extraordinary circumstances when awarding alimony. The alimony statute does not deny a family court all ability to exercise its discretion or eliminate its ability as a court of equity to provide equitable relief.
The decision to “live together” should be considered an important decision that has consequences and may have a level of commitment in and of itself. It is a decision that must not be entered into lightly and the parties should have serious discussions to ensure that they are on the same page in terms of the level of personal and financial commitment that the couple are making to one another.
Obviously, such matters when they do lead to divorce are fact sensitive and can be complex. The law office of James P. Yudes, A Professional Corporation has significant experience with matters involving support and equitable distribution and are available to assist you.


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Integral representations and applications : proceedings of a conference held at Oberwolfach, Germany, June 22-28, 1980 / ed. Klaus W. Roggenkamp.
by Roggenkamp, Klaus W [ed.].
Material type: Book; Format: print ; Literary form: Not fiction Publisher: Berlin : Springer, 1981Availability: Items available for loan: [Call number: M LNM v. 882] (1).
Algebraic K-theory : proceedings of a conference held at Oberwolfach, June 1980 / ed. R. Keith Dennis.
by Dennis, R. Keith, 1944- [ed.].
Material type: Book; Format: print ; Literary form: Not fiction Publisher: Berlin : Springer, 1982Availability: Items available for loan: [Call number: M LNM v. 966 ] (1).
Combinatorial mathematics : proceedings of the Ninth Australian Conference on Combinatorial Mathematics, held at the University of Queensland, Brisbane, Australia, August 24-28, 1981 / ed. Elizabeth J. Billington, Sheila Oates-Williams, Anne Penfold Street.
by Australian Conference on Combinatorial Mathematics (9th : 1981 : Brisbane, Australia) | Billington, Elizabeth J, 1947- [ed.] | Oates-Williams, Sheila, 1939- [ed.] | Street, Anne Penfold, 1932- [ed.].
Material type: Book; Format: print ; Literary form: Not fiction Publisher: Berlin : Springer, 1982Availability: Items available for loan: [Call number: M LNM v. 952 ] (1).
Abelian group theory / ed. Rüdiger Göbel, E. Lee Lady, Adolf Mader.
by Conference on Abelian Group Theory (1983 : Honolulu, Hawaii) | Göbel, Rüdiger [ed.] | Lady, E. Lee [ed.] | Mader, Adolf [ed.].
Material type: Book; Format: print ; Literary form: Not fiction Publisher: Berlin : Springer, 1983Availability: Items available for loan: [Call number: M LNM v. 1006 ] (1).
Diophantine approximation and transcendence theory : seminar, Bonn (FRG) May-June 1985 / ed. Gisbert Wüstholz.
Material type: Book; Format: print ; Literary form: Not fiction Publisher: Berlin : Springer, 1987Availability: Items available for loan: [Call number: M LNM v. 1290 ] (1).
Orthogonal polynomials and their applications / ed. Manuel Alfaro, Jesús S. Dehesa, Francisco J. Macellan, José L. Rubio de Francia, Jaime Vinuesa.
by International Symposium on Orthogonal Polynomials and Their Applications (1986 : Segovia, Spain) | Alfaro, Manuel [ed.] | Dehesa, Jesús S [ed.] | Macellan, Francisco J [ed.] | Rubio de Francia, José L [ed.] | Vinuesa, Jaime [ed.].
Material type: Book; Format: print ; Literary form: Not fiction Publisher: Berlin : Springer, 1988Availability: Items available for loan: [Call number: M LNM v. 1329 ] (1).
Mathematical problems of quantum field theory and quantum statistics / ed. Vasilii Sergeevich Vladimirov.
by International Conference on Mathematical Problems of Quantum Field theory and Quantum Statistics (1972 : Moscow) | Vladimirov, Vasilii Sergeevich, 1923- [ed.].
Material type: Book; Format: print ; Literary form: Not fiction Publisher: Providence : American Mathematical Society, 1978Availability: Items available for loan: [Call number: AMS STEKLO no. 135 v.1] (2).
Number theory / ed. Ivan Matveevich Vinogradov, A. A. Karacuba, K. I. Oskolkov, A. N. Parshin.
by International conference on number theory (1971 : Moscow) | Vinogradov, Ivan Matveevich, 1891-1983 [ed.] | Karacuba, Anatoliĭ, Alekseevich, 1937-2008 [ed.] | Oskolkov, K. I [ed.] | Parshin, A. N [ed.].
Material type: Book; Format: print ; Literary form: Not fiction Publisher: Providence : American Mathematical Society, Availability: Items available for loan: [Call number: AMS STEKLO no. 132 ] (1).
Problems in the constructive trend in mathematics VI / ed. V. P. Orevkov, Nikolai Aleksandrovich Shanin.
by Orevkov, V. P [ed.] | Shanin, Nikolai Aleksandrovich [ed.].
Material type: Book; Format: print ; Literary form: Not fiction Publisher: Providence : American Mathematical Society, 1976Availability: Items available for loan: [Call number: AMS STEKLO no. 129] (1).
Collection of articles II, dedicated to academician I. M. Vinogradov on the eightieth anniversary of his birth.
Material type: Book; Format: print ; Literary form: Not fiction Publisher: Providence : American Mathematical Society, 1974Availability: Items available for loan: [Call number: AMS STEKLO no. 128 ] (1).
Algebraic number theory and representations / ed. Dmitrii Konstantinovich Faddeev.
by Faddeev, Dmitrii Konstantinovich, 1907-1989 [ed.].
Material type: Book; Format: print ; Literary form: Not fiction Publisher: Providence : American Mathematical Society, 1968Availability: Items available for loan: [Call number: AMS STEKLO no. 80 ] (1).
Number theory / ed. William Judson Leveque, Ernst G. Straus.
by Leveque, William Judson [ed.] | Straus, Ernst G, 1922- [ed.,].
Material type: Book; Format: print ; Literary form: Not fiction Publisher: Providence : American Mathematical Society, 1969Availability: Items available for loan: [Call number: AMS PSPUM v. 12 ] (1).
1969 number theory institute / ed. Donald J. Lewis.
by Number Theory Institute (1969 : New York) | Lewis, Donald J [ed.].
Material type: Book; Format: print ; Literary form: Not fiction Publisher: Providence : American Mathematical Society, 1971Availability: Items available for loan: [Call number: AMS PSPUM v. 20 ] (1).
Harmonic analysis on homogeneous spaces / ed. Calvin C. Moore.
by Symposium in Pure Mathematics (1972 : Williamstown, Massachusetts) | Moore, Calvin C, 1936- [ed.].
Material type: Book; Format: print ; Literary form: Not fiction Publisher: Providence : American Mathematical Society, 1978Availability: Items available for loan: [Call number: AMS PSPUM v. 26 ] (1).
Algebraic geometry Arcata 1974 / ed. Robin Hartshorne.
by Symposium in Pure Mathematics (1974 : Arcata, California) | Hartshorne, Robin, 1938- [ed.].
Material type: Book; Format: print ; Literary form: Not fiction Publisher: Providence : American Mathematical Society, 1975Availability: Items available for loan: [Call number: AMS PSPUM v. 29 ] (1).
Automorphic forms, representations and L-functions / ed. Armand Borel, Bill Casselman.
by Symposium in Pure Mathematics (1977 : Corvallis, Oregon) | Borel, Armand, 1923-2003 [ed.] | Casselman, Bill, 1941- [ed.].
Material type: Book; Format: print ; Literary form: Not fiction Publisher: Providence : American Mathematical Society, 1979Availability: Items available for loan: [Call number: AMS PSPUM v. 33 pt.1] (2).
Ordered fields and real algebraic geometry / ed. D. W. Dubois, T. Recio.
by Special Session on Ordered Fields and Real Algebraic Geometry (87º : 1981 : San Francisco) | Dubois, Donald Ward, 1923- [ed.,] | Recio, Tómas, 1949- [ed.,].
Material type: Book; Format: print ; Literary form: Not fiction Publisher: Providence : American Mathematical Society, 1982Availability: Items available for loan: [Call number: AMS CONM v. 8 ] (1).
Rings and things and a fine array of twentieth century associative algebra / Carl Clifton Faith.
by Faith, Carl Clifton, 1927-.
Material type: Book; Format: print ; Literary form: Not fiction Publisher: Providence : American Mathematical Society, 1999Availability: Items available for loan: [Call number: AMS SURV v. 65 ] (1).

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IN THE MATTER OF SANDRA L. PATIENT AND MARCEL C. PATIENT, JR.
Sandra L. Patient, self-represented party, by brief.
Law Office of Donald A. Kennedy, of Manchester (Donald A. Kennedy on the brief), for the respondent.
The respondent, Marcel C. Patient, Jr., appeals an order of the Circuit Court (Carbon, J.) requiring him to reimburse the petitioner, Sandra L. Patient, $5, 105.29 for certain uninsured medical expenses that she incurred in 2015. In granting the petitioner's request for reimbursement, the trial court interpreted the parties' stipulated divorce decree to include an implied requirement that the respondent give the petitioner notice before he remarried. On appeal, the respondent argues that the interpretation of the trial court was erroneous. We affirm.
The record supports the following facts. In 2002, as part of a stipulated divorce decree, the parties agreed that the respondent would "continue to provide medical and dental [i]nsurance for the benefit of the petitioner, until [he] [r]emarried." The provision did not have a notice requirement. In July 2015, the respondent remarried, which resulted in the termination of the petitioner's insurance coverage. Prior to his remarriage, the respondent did not notify the petitioner that he would remarry, or that the petitioner's insurance coverage would be terminated. Rather, on August 27, the petitioner learned by "happenstance" that the respondent had remarried and that, effective July 1, 2015, her insurance coverage had been cancelled. Because the petitioner incurred $5, 105.29 in medical expenses between July 1 and August 27, she filed a motion in the trial court seeking reimbursement for the uninsured expenses, arguing that the stipulated decree required that the respondent notify her of his remarriage.
The trial court agreed with the petitioner, reasoning that, although the decree "does not require that [the respondent] advise [the petitioner] of his date of remarriage, it is implicit so that [the petitioner] could obtain her own insurance." In other words, the trial court concluded that a notice provision was implied in the decree. The trial court denied the respondent's motion to reconsider, and this appeal followed.
On appeal, the respondent argues that a notice provision cannot be implied because the parol evidence rule prohibits a court from adding a provision to a decree when its terms are unambiguous. The parol evidence rule prohibits the admission of extrinsic evidence to vary or contradict the plain meaning of the terms of a contract, unless the contract is ambiguous. See Parkhurst v. Gibson (Parkhurst), 133 N.H. 57, 62 (1990). In this case, however, the trial court did not rely upon extrinsic evidence when interpreting the divorce decree. Rather, it analyzed the language of the stipulation, and the intent of the parties' agreement, to interpret the decree as requiring the respondent to give advance notice of his remarriage.
The respondent also argues that the trial court erred when it interpreted the divorce decree to require that the respondent give the petitioner advance notice. We disagree. "When a dispute arises concerning the nature of provisions within a stipulation, we must consider the intent of the parties." Miller v. Miller, 133 N.H. 587, 590 (1990). In ascertaining the intent of the parties, we will consider the situation of the parties at the time of their agreement and the object that was intended thereby, together with all of the provisions of their agreement taken as a whole. Id. "[H]owever, absent fraud, duress, mutual mistake, or ambiguity, the parties' intentions will be gleaned from the face of the agreement." Id. "The interpretation of the language of a divorce decree, like the interpretation of other written documents, is a question of law, reviewed by this court de novo." Estate of Frederick v. Frederick, 141 N.H. 530, 531 (1996).
We have held that "[t]erms which are plainly or necessarily implied in the language of a contract are as much a part of it as those which are expressed." Laconia Clinic, Inc. v. Cullen, 119 N.H. 804, 806 (1979). "If the provisions of the instrument taken together clearly show that the obligation in question was within the contemplation of the parties when making their contract or is necessary to carry their intention into effect, the law will imply the obligation and enforce it." Id. Thus, although explicit notice provisions are preferable, in appropriate circumstances, a court may imply an obligation requiring one party to give notice of an occurrence relevant to the agreement. See, e.g., Bank v. Sinclair, 60 N.H. 100, 107 (1880) (noting that when a specific event triggers a contractual obligation, there is an implied condition that notice of the event be provided if the event is within the unique knowledge of the nonperforming party); see also 15 R. A. Lord, Williston on Contracts § 48:7, at 679 (4th ed. 2014) ("One of the most common necessary conditions is that of notice of some fact.").
Here, the trial court correctly interpreted the decree to include an implied notice provision because such a term was necessary for the parties' intent to be realized. The parties agreed that the respondent would provide health insurance to the petitioner until he remarried, at which time the responsibility for the petitioner's healthcare expenses would shift to the petitioner. This arrangement necessarily contemplated that, prior to the respondent's remarriage, the petitioner would have an adequate opportunity to make alternative plans for her insurance and healthcare needs. Importantly, the critical event - the respondent's remarriage - was within his unique knowledge. Therefore, absent a notice requirement, the respondent would be able to - and, in fact, did - compromise the petitioner's opportunity to secure her own insurance coverage, undermining the clear purpose of the provision. Accordingly, because an implied notice provision was necessary to effectuate the parties' intent, we conclude that the trial court did not err when it interpreted the divorce decree to require that the respondent provide advance notice to the petitioner before he remarried. Cf. Fischer v. City of Dover, 131 N.H. 469, 475 (1989) (implying obligation requiring city to ensure that corporation was reimbursed for certain costs, where "the intention of the agreement was to provide reimbursement to the corporation").
Finally, any issues that the respondent did not raise in his notice of appeal, or raised, but did not brief, are deemed waived. See Colla v. Town of Hanover, 153 N.H. 206, 210 (2006).