BY PROFESSOR NATASHA VARYANI
At the start of this year’s NCAA Men’s Basketball Tournament, Jimmy Kimmel alleged that Gonzaga University did not exist—that it was a fiction created to “bust brackets.”
Since he heard nothing about the program during the year, and did not know any graduates of the small university in Spokane, Washington, Kimmel concluded (jokingly, we assume) that it simply could not be real. When he was confronted with hard evidence—contact from current students, faculty, administration, and even the attorney general of the state of Washington—he found a way to dispel it all.
But despite the lightheartedness of it all, in his late-night comedy way, Kimmel touched a nerve about the state of our society: we will not be moved in our beliefs, no matter the evidence.
As the Gonzaga drama was unfolding, I was teaching a case about the property concept called the Implied Warranty of Habitability (Javins v. First National Realty Corp). In the 1970s, tenants living in in the Clifton Terrace Apartments in Washington, D.C., argued that housing conditions were so bad that they should be released from their obligation to pay rent. The tenants attempted to introduce evidence at trial: bags of mouse droppings, dead animals found in the apartments, and the testimony of a housing inspector that found hundreds of violations. Not only did Judge Austin Fickling not admit the evidence at trial, he ruled in favor of the landlord, First National Realty, and held that the tenants had the obligation to pay their rent no matter the state of their housing.
Though Javins and the other tenants appealed the decision, in the two years that passed before they had their next day in court, the owner of First National Realty, Sidney Brown, was jailed for housing code violations. Despite that, the appeals court still held that the tenants were responsible for their rent because of the “independence of covenants” under the lease, meaning that even if the landlord did not meet his obligation, the tenants still had to meet theirs. Not until Javins and the other tenants went to the D.C. Circuit Court of Appeals did Judge J. Skelly Wright have the courage to consider the practicalities of a contemporary urban society and apply the rules in a way that fit the world as it existed, instead of holding the concept of “independence of covenants.” Like Gonzaga University, there was nothing that Javins and the other tenants of Clifton Terrace could do to move the first two courts from the position to which they decided to adhere.
Around the same time, the country was processing the conclusion of the Muller report. After spending a weekend with a 380-page report that was two years in the making, for practical purposes, the attorney general remained steadfast in the conclusions he held before even being appointed. In the face of a report from the attorney general of the United States, elected officials, the press, and the general public, considered the ramifications of the report. Like Jimmy Kimmel, most remained completely unconvinced by any evidence that may have pointed to a different conclusion to the one each already held.
Together we can do better: students, teachers, those who make and watch the news, and even consumers of the Internet, in any increments. In a country so deeply divided, we can take lessons from history (and from comedy) to understand that sometimes separating ourselves even from our most deeply rooted beliefs can lead to a more informed, supported conclusion. It’s not easy, but it’s important. And as lawyers, it’s our entire reason for being.
Natasha Varyani is a Visiting Assistant Professor at New England Law | Boston. She specializes in business law, particularly tax law, estate planning, and property.