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Reading the Residential Lease, Or The Interpretation of Legal Documents

February 12, 2020

If you are in a legal dispute or misunderstanding about your rental property, it is always best to read your lease. The lease comes with an ideological framework that should be seen for what it is: all legal documents have religious, secular, radical, reactionary, capitalistic, and counter-hegemonic valences, as "lit crits" might say. Whatever your primary choice is, a useful common frame of reference for the interpretation of your lease might be Judge Judy Sheindlin.

A lease is a written contract, and most written leases have an "integration clause" that excludes what the law labels "extraneous evidence" to prove the meaning of the written contract, including your lease. "Extraneous evidence" might include what the parties thought the lease with an integration clause was supposed to mean before they signed it. So, if the lease itself can clearly settle a misunderstanding or dispute, then either party asking the judge to settle it without trying mediation first would be taking "hermeneutic" risks, i.e., pretending the obvious matters little to the plaintiff, defendant and Judge Judy in each others' presence simultaneously in the same courtroom. A licensed interpreter, a lawyer, can advise what specific language in the written lease might mean in such circumstances.

Judge Judy is a real person who publicly endorsed Michael Bloomberg for President. She made, according to Forbes, $147 million in 2017 primarily related to her TV persona appearing on the CBS Network. But her iconic status, nearly Ayn Rand's, is also a manufactured image of "neutrality," and for social and cultural purposes. There is an intellectual tradition in US academia that favors right-wing interpretations of what "neutrality" actually means. In the late 1980s, I was a student at the University of Chicago and took two classes with Professor Philip B. Kurland, former law clerk to Justice Felix Frankfurter. Kurland was known for his published defense of "formal neutrality" in legal interpretation ("Of Church and State and the Supreme Court," 29 University of Chicago Law Review 1 (1961)), his calling Brown v. Board of Education an act of the Supreme Court's "self-licensing" ("Justice Robert H. Jackson - Impact on Civil Rights and Liberties The David C. Baum Memorial Lecture," 1977 University of Illinois Law Forum 551 (1977)), and his prediction made in 1971, "We will continue, for example, to see the President wage war without Congressional declaration, to see executive orders substitute for legislation, to see secret executive agreements substitute for treaties, and to see Presidential decisions not to carry out Congressional programs under the label of 'impoundment of funds.' I suggested several years ago that the failure of Congress proves or will prove the failure of democracy. And I still think that the danger is nothing less than that." ("A Comment on Separation of Power," University of Chicago Law Occasional Paper, No. 1 (1971)).

This is "neutrality," not neutrality.  It is only "neutrality" between quotation-marks, an "as if" idea of "neutrality," as if it is important to talk about neutrality as a principle without regard to its often silent attractions to definite outcomes, if also regrettable ones. All judges -- all ethical judges -- believe they are neutral, within the meaning of the law. And, my point is, so does Judge Judy.

Here's an example. Due to necessary repairs, a landlord must give a tenant temporary relocation but the landlord wonders whether to pay the tenant's bill for the away-tenant's 24-hour security camera system on the landlord's property. What does the lease say? And is the tenant willing to work it out, whatever the lease says?

What does Judge Judy care? Is the lease clause clear, or fairly clear, for a TV audience? Do you have evidence of fraud or incapacity to show to a TV audience? Do you speak English or have someone who can, for the TV audience? Do you realize the TV audience is listening to you explain who is at fault for failing to work it out? Are you unbelievable or a liar, are you disrespectful or abusive, are you wasting her time in front of the TV audience? If you think your misunderstanding or dispute is covered by the written lease, try not to let Judge Judy tell you on TV that you are making a fool of yourself. Hear her shrill voice, her yelling, calling out liars. Hear it in your head as you read your lease.

They did not hire Judge Judy because she was pretty; they hired her because she was smart. This is "neutrality" when it comes to interpreting legal documents such as residential leases.