Washington Lawyer

Legal Spectator: The D5 Bus, the Awning, and the Secretary of State

From Washington Lawyer, May 2012

By Jacob A. Stein

Legal Spectator

On January 28, 1754, Horace Walpole wrote a letter to a friend. He said: “Serendipity … you will understand it better by the derivation than by the definition. I once read a silly fairy tale, called The Three Princes of Serendip: as their Highnesses travelled, they were always making discoveries, by accidents and sagacity, of things which they were not in quest of.”

On February 28, I was on the D5 bus on the way to work. As I usually do, I had a book to read. This time it was Hillary Clinton’s Living History.

As the D5 bus passed Wisconsin and M streets, I saw on a restaurant awning the word “serendipity.” At that moment I was reading in the Clinton book that in 1973 she took two bar exams after law school: one in Arkansas, the other here in the District of Columbia. She passed the Arkansas bar and failed the D.C. bar. She then made up her mind to go to Arkansas, practice law there, and marry Bill.

As I read those words, I recalled that in 1973 I was on the Committee on Admissions that flunked the person who is now the Honorable Secretary of State. As these disparate thoughts came together, I asked myself if Walpole’s serendipity was at work.

Later that day, I looked through a few books about Horace Walpole (1717–1797). He was the son of Robert Walpole, the English political adventurer who, at one time, played the role of prime minister.

Horace was no adventurer as his father was. He was a writer. He is remembered only by his word, serendipity. The word slept for two centuries until a number of his letters were published.

Literary critic and writer Cyril Connolly, in reviewing the letters, said they were like music for the harpsichord. There are times when they seem unimaginably lovely, and moments when they sound intolerably monotonous.

The renowned historian of science Lorraine Daston has commented that there have been twists and turns in the definition: “Its meaning was never stable, though the dictionary entries did fix it by the early 20th century, if only by the usual parroting of one dictionary by another.”

The big Oxford English Dictionary defines serendipity as “[t]he faculty of making happy and unexpected discoveries by accident.”

My friend Bryan A. Garner, editor–in–chief of Black’s Law Dictionary, has included the phrase serendipity doctrine to refer to “a principle of criminal law that states all evidence discovered during a lawful search is eligible to be admitted into evidence at trial.”

The best scientific example is that of Alexander Fleming. Before taking one of his vacations, Fleming stacked a number of Petri dishes where he had been growing a certain kind of bacteria. When he returned, he saw that mold had contaminated one of the plates and killed the bacteria. He called the mold penicillin.

Serendipity has boldly entered the legal profession. Jule Andreski put me on to serendipity in the area of patent and criminal law.

In patent cases, the courts deal with accidental discoveries by distinguishing between “invention” and “discovery.” Inventions are thought to be created through intention. Discoveries, on the other hand, are the product of serendipitous intervention. Inventions are patentable, while mere discoveries are not.

This principle is stated in Pfaff v. Wells Electronics, Inc.,[1] where Justice John Paul Stevens wrote that “The primary meaning of the word ‘invention’ in the Patent Act unquestionably refers to the inventor’s conception rather than to a physical embodiment of that idea.” A serendipitous discovery is not enough for it to become patentable.

The problem presented by the distinction between discovery and invention was summed up by Chief Justice Warren Burger in Diamond v. Chakrabarty,[2]: “Einstein could not patent his celebrated law that E = mc2; nor could Newton have patented the law of gravity.” These are considered mere discoveries, if Einstein or Newton attempted to obtain patents in the modern world.

In criminal law, serendipity connects with the Fruit of the Poisonous Tree doctrine. This is where evidence was derived from an illegal search, arrest, or interrogation that is inadmissible. In United States v. Bacall,[3] the court used the words “investigatory serendipity” as an exception to the doctrine. The court stated:

[W]hen officers through serendipity discover evidence concerning a suspect whom they are unlawfully investigating in connection with another, different crime, the new evidence is not tainted where the officers discovered it only because their unlawful investigation fortuitously put them in a position to do so and where their unlawful investigative intent did not extend to the additional evidence.”[4]

I was, a week ago, again on the D5 bus. Again, I was reading a book that I had. On the last page were these words by Alfred Mercier:

There are strange coincidences in life: they occur so a propos that the strongest minds are impressed, and ask if that mysterious and inexorable fatality in which the ancients believed, is not really the law that governs the world.

Well, I have come to the end of my serendipitous journey. What was it all about? A futile effort on behalf of the 1973 bar examiners to connect up with the Honorable Secretary of State.

[1] 525 U.S. 55, 60 (1998).
[2] 447 U.S. 303, 309 (1980).
[3] 443 F.2d 1050, 1057 (9th Cir. 1971).
[4] Id. at 1057.

Reach Jacob A. Stein at [email protected].