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Olds v. Donnelly/Concurrence-dissent Stein

STEIN, J., concurring in part and dissenting in part.

The old adage that "the squeaky wheel gets the grease" perhaps offers the simplest explanation for the Court's disposition of these related entire controversy appeals. The general criticism of the preclusive application of the entire controversy doctrine to party joinder has been mild in comparison with the organized bar's criticism of the holding in Circle Chevrolet Co. v. Giordano, Halleran & Ciesla, 142 N.J. 280, 303, 662 A.2d 509 (1995), requiring a client to assert a malpractice claim against its former attorney in the same adversarial litigation that would determine whether the attorney's alleged negligence caused the client damage. Acknowledging that "application of the entire controversy doctrine to legal malpractice claims has not fulfilled our expectations," ante at 440, 696 A.2d at 641, the Court, electing to treat a symptom rather than the underlying ailment, holds that attorney-malpractice claims are exempt from the entire controversy doctrine, ante at 443-44, 696 A.2d 643-44.

The blanket exemption of legal malpractice claims from the preclusive effects of the party joinder segment of the entire controversy [A647] doctrine is an expedient course correction that will calm the bar and eliminate one of the most visible and unsettling applications of the doctrine. As others have observed, however, [NJ451]  such an exemption would appear to be difficult to justify. Nancy J. Moore, Implications of Circle Chevrolet forAttorney Malpractice and Attorney Ethics, 28 Rutgers L.J. 57, 76-77 (1996). On what principled basis can our courts require dismissal of second-litigation malpractice claims against accountants, architects, engineers, physicians or psychologists that were omitted improperly from the initial suit, while simultaneously allowing similar claims against lawyers to be adjudicated on the merits? Or from another perspective, why does the Court permit only lawyers' clients to await the outcome of the first litigation before filing suit, while requiring clients of other professionals to join the advisor in the first suit or risk preclusion of the claim?

Our Court's recent experience with the mandatory party joinder prong of the entire controversy doctrine persuasively leads me to the conclusion that the root of the problem does not lie in the doctrine's application to attorney-malpractice claims. Rather, the fundamental flaw in our approach to party joinder is that the preclusive aspect of the entire controversy doctrine is not the appropriate mechanism to enforce whatever level of mandatory party joinder the Court ultimately deems to be essential. I was a member of the unanimous Court that decided Cogdell v. Hospital Center at Orange, 116 N.J. 7, 560 A.2d 1169 (1989). I now regard as erroneous Cogdell's holding that the entire controversy doctrine "necessarily embraces … joinder of all persons who have a material interest in the controversy," id. at 26, 560 A.2d 1169, and its corollary holding that, prospectively, failure to join such parties constitutes a bar to a second independent action against them, id. at 13, 28, 560 A.2d 1169.

Our Cogdell opinion did not acknowledge adequately the significantly different viewpoints about the extent to which mandatory party joinder is a useful and desirable mechanism for the efficient management of civil litigation. See Memorandum from the Subcommittee on Compulsory Joinder of Parties to the Civil Practice Committee 2 (March 1, 1984) (Civil Practice Committee Memorandum) ("[I]t is the opinion of the subcommittee that judicial economy [NJ452]  is best served in the context of parties by not requiring joinder. The primary reason is the likelihood that such an extension of the doctrine would unnecessarily complicate and delay most litigation."). But putting aside for the moment any debate about the wisdom of mandatory party joinder, the Cogdell opinion never addressed the question whether preclusion of the second cause of action against the omitted party is the best or only mechanism for enforcing party joinder. Rather, the Cogdell opinion assumed that if joinder of parties materially interested in the litigation was a desirable goal, its implementation could be achieved only by precluding subsequent suits against omitted parties.

I now believe that assumption to be fundamentally unsound. Neither the federal courts nor any other state court--with the possible exception of Kansas--has adopted a preclusive rule similar to our entire controversy doctrine as a means of enforcing mandatory party joinder. See David C. Zuckerbrot, Mandatory Joinder of Parties: The Wave of the Future?, 43 Rutgers L. Rev. 53, 65-69 (1990) (discussing Kansas's "one-action rule," which is related to that state's comparative negligence scheme). Party joinder is not brain surgery, and the extent to which party joinder should be encouraged and the means of achieving it are questions that also confront every other judicial system throughout the country.

The recognition that no other jurisdiction has seen fit to adopt a preclusive rule like our entire controversy doctrine to achieve party joinder is reason enough for us to question the wisdom of the assumptions underlying Cogdell. But our experience in applying the entire controversy doctrine to party joinder after Cogdell should overcome any lingering doubt about whether we were right or wrong. Although intended to promote judicial efficiency and economy, Cogdell unintentionally has created an entirely new layer of trial and appellate court litigation to resolve whether the omission of a party in a prior suit was of sufficient consequence to [A648] justify preclusion of subsequent litigation against that party. This [NJ453]  term alone our Court will issue published opinions in six party-joinder entire controversy appeals and will have reviewed numerous petitions for certification raising similar issues. In excess of fifty opinions on the issue have been published by trial and appellate courts since Cogdell was decided. Nevertheless, the Court's opinion in this appeal demonstrates its continuing sense of uncertainty about the appropriate contours of a preclusive party-joinder doctrine, the Court electing to refer the problem to an Entire Controversy Doctrine Subcommittee of the Committee on Civil Practice to make recommendations. Ante at 449, 696 A.2d at 646. Respectfully, we do not need a committee or a subcommittee to tell us that the preclusive aspect of the entire controversy doctrine no longer should be applied to party joinder and that, like other jurisdictions, we should use less intrusive measures to encourage an appropriate level of party joinder in civil litigation.

A
To begin at the beginning, any misperception that the preclusive application of the entire controversy doctrine to mandatory party joinder is in some respect authorized or even encouraged by the 1947 Constitution permanently should be dispelled. Our Cogdell opinion hinted at such a constitutional pedigree: "The doctrine has become such a fundamental aspect of judicial administration, it has achieved constitutional confirmation." Cogdell, supra, 116 N.J. at 15, 560 A.2d 1169.

This court's pre-Cogdell opinions stated clearly that the so-called entire controversy doctrine was not a rule of party joinder. See Thornton v. Potamkin Chevrolet, 94 N.J. 1, 5, 462 A.2d 133 (1983) ("The essence of that [single controversy] policy is the joinder of claims and not parties."); ''Aetna Ins. Co. v. Gilchrist Bros., Inc.'', 85 N.J. 550, 559, 428 A.2d 1254 (1981) ("Our research has not disclosed any case in this State where the single controversy [NJ454]  doctrine precluded a second action because of a failure to join parties."). More to the point, those who have focused on the history of the doctrine confirm that its objectives were not at all related to party joinder. "Neither the historical situation from which the single controversy doctrine arose nor the policy considerations which engendered the single controversy doctrine in relation to the mandatory joinder of claims compels or suggests the extension of that doctrine to the mandatory joinder of parties." Civil Practice Committee Memorandum, supra, at 1.

The constitutional provision in question is Article 6, section 3, paragraph 4 of the 1947 Constitution, which states:

"Subject to rules of the Supreme Court, the Law Division and the Chancery Division shall each exercise the powers and functions of the other division when the ends of justice so require, and legal and equitable relief shall be granted in any cause so that all matters in controversy between the parties may be completely determined."

Our earliest opinions applying that constitutional provision, such as Massari v. Einsiedler, 6 N.J. 303, 307-08, 78 A.2d 572 (1951) and Ajamian v. Schlanger, 14 N.J. 483, 487-89, 103 A.2d 9,cert. denied, 348 U.S. 835, 75 S.Ct. 58, 99 L.Ed. 659 (1954), verify that the constitutional provision was formulated principally to effectuate the merger of law and equity to the end that both legal and equitable claims could be adjudicated in one proceeding. See Zuckerbrot, supra, 43 Rutgers L.Rev. at 69-70. Another recent commentary on the question also concluded that the constitutional provision had no bearing on the virtues or vices of mandatory party joinder:

"Cogdell cites art. VI, sec. III, par. 4 of the 1947 Constitution for the insight that an entire controversy was the designated minimum unit of litigation. That section provides that the trial divisions of the Superior Court shall each have and exercise the full authority of that court, 'so that all matters in controversy between the parties may be completely determined.' The text was intended to banish the spectacle of cases shuttled between the former law courts and the Court of Chancery. The phrase 'matters in controversy' plainly refers [A649] to claims actually placed in litigation and thus in controversy. The other phrase, 'between the parties,' is clearly confined to those already joined in the case. To deduce from the Constitution a principle of compulsory joinder of claims against nonparties, by the measure of the entire controversy, is to discover what is simply not there."

"[Editorial, Entire Controversy, 147 N.J.L.J. 406 (Jan. 27, 1997).]"

[NJ455] Similarly, the pre-Cogdell cases that addressed directly whether the entire controversy doctrine applied to party joinder uniformly concluded that it did not. See Aetna, supra, 85 N.J. at 556-60, 428 A.2d 1254; Gareeb v. Weinstein, 161 N.J.Super. 1, 9-13, 390 A.2d 706 (App.Div.1978); McFadden v. Turner, 159 N.J.Super. 360, 368-72, 388 A.2d 244 (App.Div.1978); Moss v. Jones, 93 N.J.Super. 179, 184-85, 225 A.2d 369 (App.Div.1966). In McFadden, supra, Judge Pressler declined to apply the entire controversy doctrine to party joinder, noting that the party joinder rule is permissive and not mandatory:

"We reach that conclusion because of our continued perception of the entire controversy doctrine as a rule of mandatory joinder of claims, not of parties. As we understand the doctrine, its essential purpose is to assure a party to litigation that that litigation will be conclusive as to the entire matter which is its real subject. It is in effect a principle of repose intended to protect one who is already a party to litigation from the expense, delay and harassment implicit in multiple successive actions whose individual scopes are limited to only a fragment of the complete dispute. As we said in Wm. Blanchard Co. v. Beach Concrete Co., Inc., 150 N.J.Super. 277, 293-294, 375 A.2d 675 (App.Div.1977), the jurisprudential basis of the doctrine is the conception that litigants in an action should not be required, after final judgment therein is entered, 'to engage in additional litigation in order to conclusively dispose of their respective bundles of rights and liabilities which derive from a single transaction or related series of transactions.' Thus the entire controversy doctrine operates, and was intended to operate, to prevent a party from being compelled to successively litigate. Being compelled to successively litigate does not, however, mean that one may not elect to successively litigate so long as he has a viable cause of action to litigate and so long as his election does not result in another's compulsion."

"[159 N.J.Super. at 369-70, 388 A.2d 244.]"

B
In the absence of any constitutional provision or compelling precedent requiring mandatory party joinder, the most basic question--and one that the Court, including this member, did not adequately evaluate in Cogdell--is the extent to which mandatory party joinder is desirable in civil litigation. The Cogdell court, focusing on the facts before it as well as those in Crispin v. Volkswagenwerk, A.G., 96 N.J. 336, 476 A.2d 250 (1984), assumed that mandatory party joinder was justified by considerations of "fairness to parties and judicial efficiency and economy." [NJ456] Cogdell, supra, 116 N.J. at 17, 560 A.2d 1169. In Cogdell, the plaintiff instituted a malpractice action against an obstetrician and an emergency-room pediatrician, the jury returning a verdict for both defendants. The plaintiff subsequently filed a second suit against the hospital, several hospital administrators and members of the operating team. Id. at 8-9, 560 A.2d 1169. The defendants' motion to dismiss the second action under the entire controversy doctrine was denied, as was their motion for leave to appeal. Id. at 9, 560 A.2d 1169. Observing that "[t]he failure to have joined these defendants in the earlier action seems prejudicial and unfair," Id. at 25, 560 A.2d 1169, this Court adopted a preclusive mandatory party-joinder rule, to be applied only prospectively, id. at 28, 560 A.2d 1169. In Crispin, supra, the plaintiff sustained serious injuries in a three-car collision. He and two other persons injured in the accident filed suits in Union County against multiple defendants. 96 N.J. at 338-39, 476 A.2d 250. While the suits were pending, Crispin filed a product-liability complaint in Bergen County against Volkswagen, but neither issued a summons nor attempted to [A650] join Volkswagen in the Union County litigation. Id. at 339-40, 476 A.2d 250. After that litigation was resolved, Crispin served Volkswagen, resulting in a motion to dismiss based on the entire controversy doctrine. Id. at 340-42, 476 A.2d 250. This Court concluded that the entire controversy doctrine should apply to party joinder "in certain limited circumstances." Id. at 343, 476 A.2d 250. The Court observed that "where, as here, a litigant knows of a potentially responsible party, and has already sued that party in another action … [the litigant] should not be permitted to maintain such independent action when a directly related suit is pending." Ibid. The Court's ruling applied only prospectively. Ibid.

Although the facts of Cogdell and Crispin might be perceived as supporting a broad, compulsory party-joinder policy, the overriding question about the wisdom of expansive mandatory party joinder is complex and subject to sharply competing points of view. On a fundamental level, some commentators assert that in our adversarial system of justice a judge should occupy a neutral [NJ457]  and passive role, devoting his or her energies "to resolving the disputes framed by the litigants." Stephan Landsman, The Adversary System: A Description and Defense 3 (1984). The implication is that the parties define the scope of a lawsuit, including the designation of the participating parties. "The parties are preeminent in choosing the forum, designating the proofs, and running the process." Id. at 44. An essential element of our adversary system is that "the parties, not the judge, have the major responsibility for and control over the definition of the dispute." Judith Resnik, Managerial Judges, 96 Harv. L. Rev. 376, 382 (1982).

Whether favoring or disfavoring more expansive party joinder, commentators acknowledge that strategic considerations dictate the party-joinder decisions made by litigants. Ordinarily, plaintiffs prefer to join all possible defendants in one suit, avoiding the expense of successive litigation and simultaneously encouraging the defendants to attempt to assign culpability to each other. See Geoffrey C. Hazard, Jr., An Examination Before and Behind the "Entire Controversy" Doctrine, 28 Rutgers L.J. 7, 21 (1996); Richard D. Freer, Avoiding Duplicative Litigation: Rethinking Plaintiff Autonomy and the Court's Role in Defining the Litigative Unit, 50 U. Pitt.L.Rev. 809, 824 (1989).

Plaintiffs who elect to exclude potentially liable defendants from a lawsuit are influenced by other strategic considerations, such as concern about delay or prejudice. See John C. McCoid, A Single Package for Multiparty Disputes, 28 Stan. L.Rev. 707, 714 (1976). In addition, the joinder of multiple parties and their assertion of multiple claims and defenses makes discovery and trial more complicated and protracted. Freer, supra, 50 U. Pitt. L.Rev. at 814; Zuckerbrot, supra, 43 Rutgers L.Rev. at 61-62. Casespecific reasons may also counsel against joinder. Professor Hazard posits that the plaintiff's lawyer in Cogdell may have believed that "by not joining the hospital and auxiliary staff people, the plaintiff might obtain less hostile testimony from … [those] who were in a position to observe how the doctors had [NJ458]  handled the operation." Hazard, supra, 28 Rutgers L.J. at 21. To the extent that court rules override litigants' strategic decisions concerning how a lawsuit should be packaged, a judicial system runs the risk that its generalized party-joinder requirements will be less effective in managing specific cases than would be the discretionary choices of litigants better informed about their specific unit of litigation.

On the other hand, advocates of more expansive party-joinder mechanisms assert that the burden of duplicative litigation on judicial resources is unjustifiable:

"If [multiple suits involving the same issue] are dealt with independently, if each is handled as if the others did not exist, one serious consequence is repetitious litigation. The resources devoted to any lawsuit, the efforts of judges, clerks, witnesses, and others, are scarce. Spending them in repeated examination of the issues raised by a single transaction is a waste. Either repetitive litigation requires the expenditure of additional resources on adjudication, or, if expenditure remains constant, it diverts those resources [A651] from resolution of other controversies of significance."

"[McCoid, supra, 28 Stan. L.Rev. at 707 (footnote omitted).]"

Some commentators endorse the view that expanded application of res judicata and collateral estoppel concepts could achieve "the most desirable end result, the adjudication in one lawsuit of all disputes concerning the rights and obligations of all persons who have a judicially recognized interest in the transaction giving rise to the litigation." Herbert Semmel, Collateral Estoppel, Mutuality and Joinder of Parties, 68 Colum. L. Rev. 1457, 1472 (1968); see McCoid, supra, 28 Stan.L.Rev. at 714-15. Expressing similar objectives but focusing essentially on jurisdictional limitations in controversies with multistate elements or involvement of state and federal law, Professors James and Hazard assert: "There is simply no reason why a multiple-claim, multiple-party controversy arising within the United States should not be submissible to a single tribunal for a consistent adjudication of the various claims and liabilities." Fleming James, Jr. & Geoffrey C. Hazard, Jr., Civil Procedure § 10.24, at 582 (3d ed.1985). Another commentator advocates expansion of the federal court's power to compel party joinder for the purpose of compelling multiple plaintiffs to [NJ459]  join in a single proceeding their claims against common defendants:

"Nonetheless, multiplicity is a harm to society's legitimate interest in judicial efficiency. Courts are a public resource, providing publicly financed resolution of private disputes…. The duplication of effort is a major cause of the protraction of time needed to resolve cases and cannot be justified by plaintiffs' selfish strategic desire to sue separately."

"[Freer, supra, 50 U.Pitt.L.Rev. at 832.]"

Animated by analogous concerns about the undesirability of duplicative litigation, this Court in Cogdell, supra, decided to address the problem directly by applying prospectively the entire controversy doctrine to mandatory joinder of parties:

"In addition, the court is now confronted with a duplication of lawsuits, multiple actions each involving the identical controversy and the same witnesses. The second lawsuit, though technically separate and independent, is in truth not much more than a re-run of the earlier lawsuit. The waste and inefficiency are obvious."

"In sum, the failure to have joined these defendants in the earlier lawsuit is more than an unfortunate inconvenience. It is inconsistent with all of the policies that surround the entire controversy doctrine."

"We thus conclude that the entire controversy doctrine appropriately encompasses the mandatory joinder of parties. Accordingly, we now hold that to the extent possible courts must determine an entire controversy in a single judicial proceeding and that such a determination necessarily embraces not only joinder of related claims between the parties but also joinder of all persons who have a material interest in the controversy."

"[116 N.J. at 26, 560 A.2d 1169.]"

C
Although this Court does not stand alone in expressing grave concern about the cost and inefficiency of duplicative litigation, it is entirely isolated, both from other courts and from authoritative commentators, in its choice of a remedy to compel party joinder. No other jurisdiction authorizes dismissal of a subsequent action against a party simply because that party could have been joined in a prior action. Allan R. Stein, Commentary: Power, Duty and the Entire Controversy Doctrine, 28 Rutgers L.J. 27, 30-32 (1996).

We need look no further than the practice in the federal courts to find a simpler and far less disruptive party-joinder mechanism. Comparison with the federal practice is appropriate because, prior [NJ460]  to the amendment of Rule 4:30A to comply with Cogdell, our rule of party joinder, which was contained exclusively in Rule 4:28, was modeled after the 1966 amendment to Rule 19 of the Federal Rules of Civil Procedure. As we acknowledged in Cogdell, Rule 4:28 would not have mandated joinder of the hospital and staff members in the original action against the obstetrician and pediatrician. [A652] Cogdell, supra, 116 N.J. at 13-14.

The federal courts do not enforce party joinder by precluding a second cause of action against a party omitted from the first suit. Their concern addresses only the parties in the original action, Rule 19 authorizing the court either to order joinder of additional parties or to dismiss the action in the absence of a party deemed indispensable. See Stein, supra, 28 Rutgers L.J. at 31-32.

Rule 19, originally adopted in 1937, was completely rewritten in 1966 pursuant to the procedures mandated by the Rules Enabling Act, 28 U.S.C.A. § 2072, requiring approval of the United States Supreme Court and the Congress. 7 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1601, at 14 (2d ed.1986). Although the revised Rule did not alter the fundamental principles governing party joinder, it redirected the court's focus away from conclusory classifications about parties and toward a more pragmatic evaluation of the factors that should inform decisions to require or excuse party joinder. 3A James W. Moore et al., Moore's Federal Practice § 19.01 (2d ed.1989). The revised Rule 19, virtually identical to our own Rule 4:28, reads in part as follows:

"Rule 19. Joinder of Persons Needed for Just Adjudication"

"(a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may [NJ461] be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and joinder of that party would render the venue of the action improper, that party shall be dismissed from the action."

"(b) Determination by Court Whenever Joinder not Feasible. If a person as described in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder."

"(c) Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as prescribed in subdivision (a)(1)-(2) hereof who are not joined, and the reasons why they are not joined."

The Advisory Committee Note to the 1966 amendment of Rule 19 explains the shift from a formalistic to a pragmatic approach to party joinder. The Committee noted that the prior rule ambiguously implied that actions could be dismissed not only because of the absence of indispensable parties, but also because of the absence of persons "who ought to be parties if complete relief is to be accorded to those already parties." Fed.R.Civ.P. Rule 19 advisory committee's note. The amended rule "stresses the desirability of joining those persons in whose absence the court would be obliged to grant partial or 'hollow' rather than complete relief to the parties before the court[,]" the objective being to further not only the parties' interests but also those of the public in avoiding duplicative litigation. Ibid. Amended Rule 19(a) [A653]  authorizes the court to order joinder of those persons whose joinder is desirable under the Rule, provided that they are amenable to service and their joinder would not deprive the court of subject-matter jurisdiction. When any such persons cannot be joined, the court is to determine, based on pragmatic factors such as those set forth in subparagraph (b) of the Rule, "whether in equity and good conscience the action should proceed among the parties already before it, or should be dismissed." Ibid.

[NJ462] As noted, in the event an action in federal court proceeds without a party whose joinder was desirable, no bar exists to a subsequent action against that omitted party irrespective of whether the court was informed of the desirability of that party's joinder. In practice, the district judge or a magistrate judge, at the pretrial conference held pursuant to Rule 16, attempts to identify those parties whose joinder is contemplated by Rule 19 and enters a scheduling order establishing a timetable for joining additional parties. In stark contrast to the preclusive rule of party joinder imposed by our entire controversy doctrine, the focus of the federal courts is on identifying and joining those parties that Rule 19 describes as being needed for a just adjudication of the first suit. The federal practice does not contemplate a preclusive rule prohibiting subsequent suits against parties omitted from the first action, the clear implication of that practice being that concerns about duplicative litigation are insufficient to justify additional efforts to bar successive suits.

To be sure, Rule 19, as does our Rule 4:28, authorizes dismissal of the first litigation if an indispensable party cannot be joined and no practical means exists of avoiding the prejudice caused by the party's absence. However, in applying the dismissal provision the apparent focus of the federal courts is on "pragmatism" and "practicality." Schutten v. Shell Oil Co., 421 F.2d 869, 874 (5th Cir.1970) ("The court must, however, always consider the possibility of shaping a decree in order to adjudicate between the parties who have been joined."); see also Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 116, 88 S.Ct. 733, 741, 19 L.Ed.2d 936, 948-49 (1968) (reversing Court of Appeals's dismissal of litigation for non-joinder of indispensable party, and observing that where threat of relitigation was problematical court should not set aside valid judgment merely because it did not resolve entire controversy).

Professor John W. Reed, whose criticism of the rigid judicial approach to the concept of indispensable parties significantly influenced the revision of Rule 19, see Wright et al., supra, [NJ463] § 1601, at 9, argued eloquently and persuasively against the practice of dismissing the original action merely because the omission of a significant party made subsequent litigation inevitable:

"There is plain economic waste in duplicate litigation. If it can be made to appear to a court that a controversy presented to it will not be completely settled in A's absence, the court is clearly justified in inquiring whether it ought to require A's presence, or, lacking it, to dismiss the case. It will be observed immediately, however, that by nature minimizing litigation and conserving courts' energies are relative values to be weighed with other values in the scale of justice…. The equitable policy of doing justice 'entire and not by halves' can be made to yield to countervailing factors which are more pressing. The mere fact that a second action may be required to determine the totality of issues involved in a controversy is not a bar to the maintenance of the incomplete first action."

"…."

"Courts exist for the determination of disputes among the people; in a particular litigation there is an obligation on the court to make a meaningful determination if at all possible…. The fact that unavoidably there may be required two or more actions to dispose of a dispute should not preclude the court from considering the case, despite the inclination to avoid repetitive litigation. If only through multiple suits can justice be done, there is nothing inherent in our judicial system forbidding those several suits. Minimization of litigation is not an end in itself, and it has its price."

"[A654] [John W. Reed, Compulsory Joinder of Parties in Civil Actions, 55 Mich. L.Rev. 327, 335, 337 (1957) (footnotes omitted).]"

Significantly, a number of leading state courts have adopted compulsory joinder rules modeled after Rule 19. See, e.g., Ann. Cal. C.C.P. § 389; Del.R.Super.Ct. R.C.P. Rule 19; Mass.R.Civ.P. Rule 19; N.Y. C.P.L.R. § 1001.

Some critics of Rule 19 contend that that Rule compels joinder only in cases that pose a risk of potential double liability, inconsistent obligations of defendants, or impairment of a non-party's interest, and suggest that the mere prospect of multiple litigation might constitute an additional ground for compulsory party joinder. McCoid, supra, 28 Stan.L.Rev. at 724-25. In comparing the merits of preclusive devices, such as an expanded concept of privity for purposes of res judicata, with inclusive devices, such as broader mandatory joinder, Professor McCoid prefers inclusive devices but counsels caution concerning all mechanisms for packaging litigation:

"[NJ464] While it is tempting to seek to package litigation into a single suit by means of preclusive devices, provision of the opportunity to be heard guaranteed by due process argues that an inclusive device ordinarily is superior. Moreover, because a policy against multiplicity is not the only value at stake in cases of multiparty litigation centering on a single transaction, an inclusive device that permits weighing of competing values at the outset is highly desirable."

"…."

"Beyond that, I must acknowledge the real possibility that all of [the devices] may carry evils worse than the problem to which they are addressed. Use of any one of them may foment assertion of claims that otherwise would never be litigated and thereby increase the adjudication burden of courts. That risk is obvious where compulsory intervention and mandatory joinder are concerned."

"…."

"I do not know how to assess those risks, but their presence argues for caution in developing a response to the multiplicity problem…. It is as well, perhaps, that the responses thus far have been ad hoc and tentative. The remedy is sometimes worse than the disease."

"[Id. at 728.]"

Professor McCoid endorses a modification of the federal rules that would subject the certification required by Rule 19(c)--mandating that pleadings state the names of parties described in Rule 19(a) that are not joined and the reasons for non-joinder--to the sanctions provision of Rule 11. Id. at 727-28. Professor Freer suggests that direct sanctions in the form of costs and counsel fees be imposed on a party who fails to notify the court of the identity of absent parties whose joinder is contemplated by Rule 19, and also proposes that Rule 19(a) be expanded to authorize compulsory joinder solely for the purpose of avoiding multiple litigation. Freer, supra, 50 U.Pitt.L.Rev. at 841, 844. Significantly, no proponent of expanded party joinder in federal practice advocates a preclusive rule that would bar a second action if the first action fails to include a party whose joinder would have been desirable.

II
In counseling against application of the entire controversy rule to party joinder, the Civil Practice Committee in 1984 prophetically warned of the onset of "second round" litigation designed to enforce mandatory party joinder:

"[NJ465] Another area of concern to the subcommittee is the intricate problems of preclusion which would arise in second round litigation as a consequence of the failure of parties to live up to a mandatory joinder of parties rule. Second round litigation would be haunted by the undefined dimensions of mandatory joinder in the first case. Thus Court calendars would become riddled with preclusion motions in a new ill-defined area of law."

"[Civil Practice Committee Memorandum, supra, at 5.]"

The consequences anticipated by that warning have come to pass. Defendants in litigation of all types and degrees of complexity [A655] attempt to use the party-joinder aspect of the entire controversy doctrine to prevent meritorious adjudication of claims, and neither the lower courts nor this court have been able to promulgate clear and consistent standards that explain when the doctrine should and should not be applied. Although misapplications of the doctrine hardly are confined to attorney-malpractice litigation, that class of second-round preclusion litigation has generated a number of unsound dispositions. For example, in Karpovich v. Barbarula, 150 N.J. 473, 696 A.2d 659 (1997), in which the Court today reversed the lower courts' preclusion of the second litigation, the record reveals that the "first" litigation consumed virtually no court resources. Karpovich and Burgio, the plaintiff and defendant in the first suit, settled their differences by Burgio agreeing to repay Karpovich all of her losses, including the losses for which Barbarula and Affinito, attorneys for Karpovich in part of the underlying transaction, were also responsible. The first "litigation" lasted only seven days, and consisted merely of the filing of Karpovich's complaint on February 25, 1994, and the entry of a default judgment against Burgio on March 3, 1994. Id. at 477-78, 696 A.2d 661. The burden that the first litigation imposed on the Law Division was imperceptible. When Burgio defaulted, Karpovich instituted the second suit to recover that portion of her loss for which Barbarula and Affinito were responsible. Ibid. The lower courts applied the entire controversy doctrine to bar the second litigation, apparently either not recognizing or disregarding that the doctrine's purpose--to avoid duplicative litigation--was not at all implicated because of the negligible [NJ466]  burden that the first suit imposed on the court system. Id. at 478-80, 696 A.2d at 661-62

Similarly incongruous results have occurred in litigation not involving attorney-malpractice claims. This term the Court unanimously reversed the lower courts' inequitable application of the doctrine that barred a suit against individual partners to enforce payment of a settlement agreement entered into by a partnership to resolve a prior prerogative writ action against the partnership in which the partners were not parties. Joel v. Morrocco, 147 N.J. 546, 688 A.2d 1036 (1997). The Court noted that the first action involved a challenge to the validity of a planning board's grant of site plan approval to the partnership, an action in which the partners individually would have been irrelevant. Id. at 554, 688 A.2d 1036. The partnership agreed to settle the case, then challenged the settlement, and the Law Division ordered the partnership to execute the settlement agreement. After the case was marked "settled" on the court's docket, the partnership refused to make payment. Supplementary proceedings revealed that the partnership was without funds. Plaintiff's assignee then sued the individual partners, resulting in dismissal on the ground that those partners should have been joined in the first proceeding. Id. at 551-53, 688 A.2d 1036. Reversing, we explained the unfairness of penalizing plaintiff for not joining in the first proceeding parties whose participation was completely irrelevant to the relief sought. Id. at 554-56, 688 A.2d 1036. Only a significant misperception by the lower courts of the purpose and scope of the doctrine's application to party joinder could explain so unjust a result.

Joel v. Morrocco is an egregious example of the preclusion of meritorious claims that lower courts perceive to be mandated by the entire controversy doctrine's application to party joinder. Today the Court proposes a lighter touch, suggesting that the doctrine need not invariably result in preclusion of the subsequent litigation. In fact, the Court indulges in a bit of judicial revisionism when it declares for the first time, undoubtedly to the surprise [NJ467]  of bench and bar alike, that preclusion has always been a remedy of last resort:

"We have always emphasized that preclusion is a remedy of last resort. The purpose of the doctrine is not to bar meritorious claims, but to encourage litigants to bring to the attention of trial courts persons who should be joined in a proceeding…."

"The reality, however, is that some attorneys have elected to conceal, or withhold, claims against additional parties. That practice illustrates the need for a procedural device, such as Rule 4:30A, to protect [A656] parties, the courts and the public from excessive and costly litigation. In that limited context, when no lesser remedy would suffice, a court may resort to preclusion."

"[Ante at 447-448, 696 A.2d at 645 (citations omitted).]"

The Court proceeds to emphasize that all it really seeks to achieve is notice to the trial court of the potential claim against another party:

"Although unnecessary, a formal motion under Rule 4:28 to join a party would suffice. The plaintiff need only notify the first trial court of the party now alleging preclusion. Failure to comply with those requirements need not lead to preclusion of the second action. If a remedy other than preclusion will vindicate the cost or prejudice to other parties and the judicial system, the court should employ such a remedy."

"[Ante at 448, 696 A.2d at 645(citation omitted).]"

I applaud the Court's attempt to modify the adverse effects of its heretofore rigid application of the party-joinder aspect of the entire controversy doctrine. But the Court's own application of the doctrine has not been nearly as flexible as its rhetoric implies. The concessions now offered by the Court are constructive, but they will not eliminate the profusion of dismissal motions in second-tier litigation that seek to test the entire controversy doctrine's vulnerability and its outer limits. The evidence of the doctrine's application to date points overwhelmingly to the conclusion that preclusion of the second suit is an unjust, inefficient, and counter-productive mechanism for enforcing party joinder.

III
Constructive and less draconian mechanisms for encouraging party joinder are available to the Court. Although I believe the party-joinder provisions of Rule 4:28 to be entirely adequate, the [NJ468]  Court could consider amending that Rule to enhance the authority of the trial court to order joinder of omitted parties in order to avoid unnecessary duplicative litigation. The certification required to be filed with the first pleading by Rule 4:5-1(b) to disclose the identity of parties who should be joined in the action, and whether any other action or arbitration concerning the matter in controversy is pending or contemplated, could explicitly be made subject to the sanctions provisions of Rule 1:4-8(b), undoubtedly resulting in a higher level of compliance with Rule 4:5-1(b). In addition, the pretrial conference procedure authorized by Rule 4:25-1 could be expanded or modified to enable the judge to elicit at an early stage of litigation the identity of omitted parties whose joinder would be constructive and consistent with the Court's party-joinder rule. The experience of the federal courts and other state courts, combined with our own unsuccessful experiment with second-round preclusion litigation, strongly suggests that efforts to expand party joinder should be remitted to the case-management discretion of the trial judge in the first litigation. That approach provides the parties, who know their case best, and the trial court with an opportunity to determine whether efforts should be made to seek joinder of omitted parties. Once that determination is made, our judicial system would be far better served by absorbing the risk of subsequent litigation than by maintaining in place a preclusive rule of uncertain dimension that generates more litigation than it avoids.

Perhaps the most fundamental objection to the preclusive rule established by Cogdell is that it prevents the judicial system from performing its most basic function--resolving cases and controversies on their merits. The inevitable result of the Cogdell principle, and its preclusive application in cases like ''Mortgagelinq Corp. v. Commonwealth Land Title Ins. Co''., 142 N.J. 336, 662 A.2d 536 (1995), is that it prohibits an adjudication of the merits of the second claim, remitting the parties in many cases to malpractice claims against their lawyers. Putting to one side the soundness of the extra-territorial aspect of Mortgagelinq's application of the entire controversy doctrine in a case in which the first suit was [NJ469]  filed in federal court, see, e.g., Rochelle Cooper Dreyfuss & Linda J. Silberman, Interjurisdictional Implications of the Entire Controversy Doctrine, 28 Rutgers L.J. 123 (1996), the Court's decision barred Mortgagelinq, a mortgage lender, from obtaining [A657]  a meritorious adjudication in a New Jersey court of its claim that it had been defrauded by three title insurance companies, a title agency, and three employees of those entities. Although our dismissal was without prejudice to plaintiff's right to proceed in federal court, 142 N.J. at 348, 662 A.2d 536, our disposition effectively closed our courthouse doors to the plaintiff merely because the defendants had been omitted from the earlier federal litigation in which their joinder was not required by the Federal Rules. That result conflicts fundamentally with our Court's longstanding preference for meritorious dispositions unobstructed by procedural snares. In our historic decision in Winberry v. Salisbury, which established this Court's primacy over rules of practice and procedure, we explained our decision in part by emphasizing that procedure should be made "subsidiary … to the substantial rights of the litigants. The courts may avoid the snarls of procedural red tape and concentrate on the substantive questions at issue." 5 N.J. 240, 254, 74 A.2d 406 (1950).

In a recent claim-joinder entire controversy appeal in which the Court affirmed the dismissal of the second action even though the precluded litigant had been represented by assigned insurance counsel in the first suit, I expressed the view that the preclusive effect of the Court's disposition conflicted with the most basic objectives of those responsible for the strengthened judiciary established by the 1947 Constitution:

"The framers of the Judicial Article of the 1947 Constitution would be appalled to learn that the 'fusion of the powers of Law and Chancery in one Superior Court,' designed to avoid the delay and duplication that results from 'the splitting of a controversy,' has been transformed into a bureaucratic procedural snare that closes the courthouse doors to innocent litigants with meritorious claims. The Court ignores at its peril the profound words of Justice Jacobs, one of the primary authors of the Judicial Article: '[A]fter all, justice is the polestar and our procedures must ever be moulded and applied with that in mind.'"

"[Prevratil v. Mohr, 145 N.J. 180, 211, 678 A.2d 243 (1996) (Stein, J., dissenting) (citations omitted).]"

[NJ470] The Court overestimates the value of preclusion as the ultimate means of enforcing party joinder, and underestimates the harm that the party joinder prong of the entire controversy doctrine has inflicted on our judicial system. The Court describes the value of the rule as protecting "parties, the courts and the public from excessive and costly litigation" in those rare cases in which attorneys "have elected to conceal … or withhold … claims against additional parties." Ante at 447-448, 696 A.2d at 645. As noted, supra at 467-68, 696 A.2d at 656-57, the imposition of sanctions, combined with more aggressive participation by trial courts at the pre-trial conference, could assist in more effective identification of omitted parties and in discouraging attorneys from withholding from the court information about potential additional parties. Preclusion, on the other hand, punishes litigants who are often innocent victims of an attorney's omission to join a party, and whose meritorious claim is barred except only for the redress that a malpractice claim against the lawyer may afford. Preclusion also breeds disrespect for the judicial process, because it substitutes for the meritorious adjudication of litigants' claims, to which our civil justice system heretofore has been devoted, a non-meritorious procedural bar to justice triggered merely by a lawyer's decision, whether purposeful or merely ill-advised, to omit a party from a prior lawsuit.

A case in point is Rapuano v. Altongy, No. A-003854-95T2 (App.Div. Apr. 18, 1997), in which the Court denied certification on July 16, 1997, 151 N.J. 77, 697 A.2d 549 (1997), the petition having challenged the Appellate Division's dismissal of the case under the entire controversy doctrine. Although no substantive significance ordinarily should be inferred from a denial of certification, Rapuano illustrates a very recent preclusive application by the lower courts of the party-joinder prong of the doctrine. Plaintiff, a self-employed contractor and businessman who had lost his left hand in a childhood accident, sustained severe personal injuries as an automobile passenger [A658] in an accident with a tractor trailer in November 1990. His injuries included a fractured humerus in his right arm, two herniated discs of the lumbar spine, four herniated [NJ471]  discs of the cervical spine, tears of the meniscus in the right knee, extensive dental injuries requiring a bridge to replace eleven teeth, concussion and head injuries, and traumatic injury to the liver and rib cage. He sued the trucking company and both drivers, settling that litigation in January 1993 for $ 790,000. Dr. Altongy, a defendant in the second litigation, had performed open reduction surgery in 1990 to repair plaintiff's fractured right humerus bone, but the surgery was unsuccessful. A second operation by a different surgeon in January 1992 was successful in uniting the broken bone fragments. However, plaintiff asserted that Dr. Altongy's negligence in selecting an inappropriate surgical procedure resulted in permanent nerve damage in his right arm, numbness in three fingers, and significant loss of motion. Plaintiff sued Dr. Altongy and his orthopedic group in June 1993, claiming damages distinct from those recovered in settlement of the first litigation. Although Judge Lawrence Weiss initially denied defendant's motion to dismiss based on the entire controversy doctrine, the motion was renewed and granted by Judge Alexander Menza. In an unreported opinion the Appellate Division affirmed, noting that plaintiff had received an expert's report describing Dr. Altongy's negligence about sixty days prior to settlement of the first litigation, and therefore could have joined the medical defendants in the first suit. 150 N.J. at 431-32, 696 A.2d at 637.

If preclusion is to be a remedy of last resort, the Court's decision to deny certification in Rapuano is noteworthy. The petition persuasively relied on Illiano v. Seaview Orthopedics, 299 N.J. Super. 99, 690 A.2d 662, in which another Appellate Division panel rejected application of the entire controversy doctrine to an analogous medical malpractice claim that followed an automobile negligence suit, observing that the claim against the physician "arising out of his conduct during the litigation had no causal nexus with plaintiff's claim against the other driver…. It is rather a separate and tangential controversy arising out of an altogether different relationship having its own set of responsibilities and obligations." 299 N.J. Super. 99, 106-07, 690 A.2d 662 (1997). Obviously, the liability claims in the two suits filed by plaintiff in Rapuano are based on entirely [NJ472]  different facts and relationships, and our caselaw clearly reveals the procedure to be followed by a trial court in apportioning damages caused by both a settling and non-settling defendant. See Kiss v. Jacob, 138 N.J. 278, 283-84, 650 A.2d 336 (1994). Analytically, whether Cogdell contemplates mandatory joinder of the medical defendants in the original tort litigation presents at the very least an unsettled question, although in my view joinder clearly is not required. Moreover, equitable considerations suggest that the sixty-day window between receipt of the expert's report and the settlement of the automobile accident litigation is too short a time to justify the extreme remedy of dismissal of the malpractice claim for failure to join it in the original action. The added burden that the medical malpractice claim in Rapuano would have imposed on our judicial system is negligible, the liability issues being entirely distinct from those in the original tort litigation, and the injustice of dismissal and preclusion of that claim ought to be intolerable. Contrary to the Court's rhetoric, in practice preclusion proves to be the remedy of first--not last--resort, and innocent litigants will continue to be denied their day in court as long as trial courts have the discretion to dismiss suits because of non-joinder of parties in prior litigation.

On other occasions this Court has been willing to overrule a prior decision when a majority of the Court has become convinced that the earlier decision was mistaken. See, e.g., Tretina Printing, Inc. v. Fitzpatrick & Assocs., Inc., 135 N.J. 349, 358, 640 A.2d 788 (1994) (overruling Perini v. Greate Bay Hotel & Casino, Inc., 129 N.J. 479, 610 A.2d 364 (1992)); State v. Ragland, 105 N.J. 189, 196-98, 519 A.2d 1361 (1986) (overruling in part State v. Ragland, 101 N.J. 33, 499 A.2d 1366 (1985)). We should follow that course here.

The majority opinion acknowledges that the widespread criticism of our Cogdell decision may require the Court's future reconsideration. Ante at 445-48, 449, 696 A.2d at 644-45, 646. [A659] In my view, there can be little doubt that Cogdell should be overruled. As former New York Mayor Fiorella LaGuardia once said, [NJ473]  "When I make a mistake, it is sure to be a beaut." By any measure, the decision in Cogdell, for which I assume my full share of responsibility, meets the late Mayor's standard. Our job now is to correct it so that the judiciary, the bar, and our state's litigants can return to the business of resolving cases on their merits.

IV
I join in the Court's disposition of this appeal, but not because I agree with its determination that the entire controversy doctrine should not apply to attorney-malpractice. Rather, I would overrule Cogdell, supra, 116 N.J. 7, 560 A.2d 1169, and consequently would no longer apply the entire controversy doctrine to bar second suits against parties omitted from prior litigation. For the same reason, I join in the majority's disposition in Karpovich v. Barbarula, supra, 150 N.J. 473, 696 A.2d 659, and Donohue v. Kuhn, 150 N.J. 484, 696 A.2d 664, also decided today.

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text: Talk:Olds v. Donnelly

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Rh

پیش از من و تو لیل و نهاری بودست گردنده فلک زبهرِ کاری بودست زینهار قدم بخاک آهسته نهی کان مردمکِ چشمِِ نگاری بودست

بتخانه و کعبه خانه‌ٔ بندگیست ناقوس زدن ترانه‌ٔ بندگیست زنّار و کلیسیا و تسبیح و صلیب حقّا که همه نشانه‌ٔ بندگیست

بر لوح نشانِ بودنیها بوده است پیوسته قلم ز نیک و بد آسوده است اندر تقدیر هر چه بایست بداد غم خوردن و کوشیدنِ ما بیهوده است


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title: Index:RayleighRefraction1902.djvu


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678

HE well-known negative result of the Michelson-Morley experiment in which interference takes place between two rays, one travelling to and fro in the direction of the earth's motion, and the other to and fro in a perpendicular direction, is most naturally interpreted as proving that the

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Rh aether in the laboratory shares the earth's motion. But other phenomena, especially stellar aberration, favour the opposite theory of a stationary aether. The difficulty thus arising has been met by the at first sight startling hypothesis of FitzGerald and Lorentz that solid bodies, such as the stone platform of Michelson's apparatus, alter their relative dimensions, when rotated, in such a way as to compensate the optical change that might naturally be looked for. Larmor ('Æther and Matter,' Cambridge, 1900) has shown that a good case may be made out for this view.

It occurred to me that such a deformation of matter when moving through the rather might be accompanied by a sensible double refraction; and as the beginning of double refraction can be tested with extraordinary delicacy, I thought that even a small chance of arriving at a positive result justified a careful experiment. Whether the result were positive or negative, it might at least afford further guidance for speculation upon this important and delicate subject.

So far as liquids are concerned, the experiment is of no great difficulty, and the conclusion may be stated that there is no double refraction of the order to be expected, that is comparable with 10-8 of the single refraction. But the question arises whether experiments upon liquids really settle the matter. Probably no complete answer can be given, unless in the light of some particular theory of these relations. But it may be remarked that the liquid condition is no obstacle to the development of double refraction under electric stress, as is shown in Dr. Kerr's experiments.

The apparatus was mounted upon the same revolving board as was employed for somewhat analogous experiments upon the rotation in quartz (Phil. Mag. vol. iv. p. 215, 1902). Light, at first from the electric arc but later and preferably from lime heated by an oxyhydrogen jet, after passing a spectacle-lens so held as to form an image; of the source upon the analysing nicol, was polarized by the first nicol in a plane inclined to the horizontal at 45°. The liquid, held in a horizontal tube closed at the ends by plates of thin glass, was placed, of course, between the nicols. When at 12 o'clock the board stands north and south, the earth's motion is transverse and the situation is such as to exhibit any double refraction which may ensue. It might be supposed, for instance, that luminous vibrations parallel to the earth's motion, i. e. east and west, are propagated a little differently from those whose direction is transverse to the earth's motion, i. e. vertical. But if the

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680 board be turned through a right angle so as to point east and west, both directions of vibration for light passing the tube are transverse to the earth's motion, and therefore no double refraction could manifest itself. The question is whether turning the board from the north and south position to the east and west position makes any difference. In no case is any effect to be expected from a rotation through 180°, and such effect as a rotation through 90° may entail must be of the second order in the ratio which expresses the velocity of the earth relatively to that of light.

It should not be overlooked that according to the theory of a stationary aether, we have to do not only with the motion of the earth in its orbit, but also with that of the sun in space. The latter is supposed to be much the smaller, and to lie directed towards the constellation Hercules. In the month of April, when successful experiments were first made, the two motions would approximately conspire.

If the suggested double refraction, due to the earth's motion, were large enough, it would suffice to set the analysing nicol to extinction in one position of the board, and to observe the revival of light consequent on a rotation of the latter through 90°. But a more delicate method is possible and necessary. Between the polarizing nicol and the liquid column we introduce a strip of glass whose length is horizontal and transverse to the board. This strip, being supported (at two points) near the middle of its length, and being somewhat loaded at its ends, is in a condition of strain, and causes revival of light except in the neighbourhood of a horizontal band along the "neutral axis." Above and below this hand the strained condition of the glass produces just such a double refraction as might be caused by the motion of the liquid through the aether, so that the existence of the latter would be evidenced by a displacement of the dark band upwards or downwards. In order the better to observe a displacement, two horizontal wires are disposed close to the bent glass so as just to inclose the band, and a small operaglass focussed upon these is introduced beyond the analysing nicol. The slightest motion of the band is rendered evident by changes in the feeble illumination just inside the wires.

The board is mounted upon a point so as to revolve with the utmost freedom. The point is carried on the table and faces upwards. The bearing is a small depression in an iron strap, rigidly attached to the board, and raised sufficiently to give stability. The gas-leading tubes are connected in such a manner as to give rise to no forces which could appreciably vary as the board turns.

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Rh Observations were made upon bisulphide of carbon in a tube 76 cms. long, and upon water in a tube 73½ cms. long. In neither case could the slightest shift of the band be seen on rotation of the board from the north-south position to the east-west position, whether at noon or at 6 The time required to pass from one observation to the other did not exceed 15 seconds, and the alternate observations were repeated until it was quite certain that nothing could be detected.

Of course the significance of this result depends entirely upon the delicacy of the apparatus, and it is worth little without an estimate of the smallest double refraction that would have been detected. It may even be objected that the investigation stands self-condemned. In consequence of the earth's magnetism there must be a rotation of the plane of polarization when the light traverses the bisulphide of carbon in the north and south position; and this effect, it may be argued, ought to manifest itself upon rotation of the board.

To take the objection first, it is easy to calculate the rotation of the plane of polarization. For one C.G.S. unit of magnetic potential the rotation in CS2 at 18° is .042 minute of angle. In the present case the length is 76 cms. and the earth's horizontal force is .18; so that the whole rotation to be expected is

 * 76 x .18 x .042 = .58'.

So small a rotation of the plane, which would show itself, if at all, by a fading and not by a displacement of the band, is below the limit of observation.

The delicacy of the apparatus for its purpose may, indeed, be inferred indirectly from the rotation of the nicol found necessary to engender a marked revival of light at the darkest part of the band. If θ be this angle, the revived light is sin²θ, expressed as a fraction of the maximum obtainable with parallel nicols. In the actual observation the nicols remain accurately crossed, and the question is as to the effect of a double refraction causing e. g. a retardation of vertical vibrations relatively to horizontal ones. If this retardation amounted to ½λ, λ being the wave-length, the effect would be the same as of a rotation of the nicol through 90°. In general, a retardation of phase ε, in place of π, gives a revival of light measured by sin²(½ε). If the revivals of light in the two cases be the same, we may equate

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682 θ to ½ε. Hence if we find that rotation θ produces a sensible effect in lessening the darkness at the darkest place, we may infer that there is delicacy sufficient to detect a relative retardation of 2θ due to double refraction. This comparison would apply if the test for double refraction were made by simple observation of the revival of light. As actually carried out by location of the band, the test must be many times more delicate.

It was found that a marked fading of the band attended a rotation of the nicol through 4'. According to this ε would be 1/450; or since a retardation of ½λ corresponds to ε = π, a retardation amounting to 1/1400 x ½λ should be perceptible many times over, regard being paid to the superior delicacy of the method in which a band is displaced relatively to fixed marks.

Another and perhaps more satisfactory method of determining the sensitiveness was by introducing a thin upright strip of glass which could be compressed in the direction of its length by small loads. These loads were applied symmetrically in such a manner as to cause no flexure. The double refraction due to the loads is of exactly the character to be tested for, and accordingly this method affords a very direct check. If the load be given, the effect is independent of the length of the strip and of its thickness along the line of vision, but is inversely as the width. The strip actually employed had a width of 15 mm.; and the application (or removal) of a total of 50 gms. caused a marked shifting of the band, while 25 gms. was just perceptible with certainty.

To interpret this we may employ some results of Wertheim (Mascart's Traité d'Optique, t. ii. p. 232), who found that it requires a load of 10 kilograms per millimetre of width to give a relative retardation of ½λ, so that with the actual strip the load would need to be 150 kilograms. The retardation just perceptible is accordingly ½λ$$\div$$6000. This may be considered to agree well with what was expected from the effect of rotating the nicol.

We have now only to compare the relative retardation which would be detected with the whole retardation incurred in traversing the 76 cm. of bisulphide of carbon. In this length there are contained 1,200,000 wave-lengths of yellow light, or 2,400,000 half wave-lengths. The retardation due to the refraction may be reckoned at .6 of this, or 1,440,000 half wave-lengths. Thus the double refraction that might be detected, estimated as a fraction of the whole refraction,

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Rh is 1.2 × 10-10. The effect to be expected is of the order 10-8, so that there is nearly 100 times to spare. The above relates to the bisulphide of carbon. With the water the delicacy of the test was somewhat less.

When it is attempted to replace the liquid by solid matter, the difficulties of experiment are greatly increased. The best results that I have been able to obtain were with built up thicknesses of plate-glass. A sufficient thickness in one piece is liable to exhibit too much double refraction from the effect of internal strains. A number of triangular pieces of plate-glass, no larger than necessary, and about 6 mm. thick, were put together in a trough to a total thickness of about 110 mm. The interstices between the faces being filled up with bisulphide of carbon, the internal reflexions were sufficiently reduced. One difficulty is to get quit of motes and threads which adhere to the glass and become extraordinarily conspicuous. Advantage was thought to be derived from shaking up the bisulphide of carbon with strong sulphuric acid. At the best the residual motes and specks in the glass interfere very seriously with the observation, and the loss of light due to imperfect transparency operates in the same direction. The least load upon the upright strip that could be detected with certainty was now 100 grms., so that as compared with the observations upon liquid there was a loss of delicacy of four times. In addition to this, the effect to be expected is reduced in the proportion of 7:1, that being the ratio of lengths traversed by the light. Thus in all we lose 28 times as compared with the liquid. In the latter case we calculated a margin of 100 times, so that here there would remain a margin of about 3 times

A subsequent attempt was made to increase the total thickness of the combined glasses to about 220 mm., but no real advantage was gained. The loss of light and increase of disturbance from motes and residual double refraction prejudiced the delicacy in about the same proportion as the length of path was increased.

But although the results of the observations upon solids are very much less satisfactory than in the case of liquids, enough remains to justify us in concluding that even here there is no double refraction (of the order to be expected) due to motion through the aether.

Terling Place, Witham.

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