Bonus Limerick: Totten v. United States
I decided to bolster the section of my Contracts coursedevoted to public policy issues by introducing students to the Totten doctrine and the states secretsprivilege, which we will discuss without reading any cases. In Totten,a the administrator for the estate of William A. Lloyd brings a claim againstthe government seeking to recover for the breach of an espionage contract. It is alleged that Lloyd enteredinto an agreement with President Abraham Lincoln in which Lloyd infiltratedenemy territory during the Civil War in order to provide the U.S. Governmentwith vital information relating to the military forces and fortifications ofthe Confederacy. For theseservices, Lloyd was to be paid $200/month plus expenses. Honest Abe allegedly paid Lloyd onlyexpenses.
Justice Field, writing in 1875, found that the subjectmatter of the contract was a secret and that both parties must have known atthe time of their agreement that their lips would be “for ever sealedrespecting the relation of either to the matter.” In order to protect the public interest in having aneffective arm of the government that could engage in secret services, the Courtruled that there could be no claim for breach of a secret contract because theexistence of the contract was itself a secret that could not be disclosed.
I am happy to report that Totten is a hit! Weonly got to it in the last ten minutes of class, which I thought would suffice for a one-page opinion. But when I suggested that wecould continue the discussion in the next session, in addition to their now habitual groans of disapproval, a couple of students murmured: “Yes!” And severalstudents stuck around after class to explore the consequences of the Totten doctrine. Giddy about this overlap of my teachingand research interests, I composed a celebratory Limerick:
Totten v. United States
The President gamely employed
But then stiffed an agent named Lloyd.
Abe knew Lee’s plan
Because of this man,
But the court found his legal claims void.
[Jeremy Telman]