The Legislature likes to deem things, but what does it really intend when it does so? Consider the following examples:
- “When an involuntary proceeding for winding up has been commenced, the jurisdiction of the court includes: . . . The making of orders for the bringing in of new parties as the court deems proper for the determination of all questions and matters.” Cal. Corp. Code § 1806.
- “Service in this manner is deemed complete on the 10th day after delivery of the process to the Secretary of State.” Cal. Corp. Code § 1702(a).
- “A conversion pursuant to Chapter 11.5 (commencing with Section 1150) shall be deemed to constitute a reorganization for purposes of applying the provisions of this chapter, in accordance with and to the extent provided in Section 1159.” Cal. Corp. Code § 1313.
From this handful of examples, it’s clear that “deem” can mean different things. In the first example, “deem” is being used to mean “determine” or “judge”, as in “as the court determines [judges] proper for the determination . . .”. In the second example, “deem” is being used to mean “to treat as” without the implication that the situation is necessarily counter-factual. The third use of “deem” is counter factual – the definition of “reorganization” (as defined in Section 181) does not include a conversion. As the Second Circuit Court of Appeals once wrote: “A thing that is deemed to be something else does not become that something else.” Chao v. Russell P. Le Frois Builder, Inc., 291 F.3d 219, 229 (2d Cir. 2002).
The word “deem” is derived from the Old English word “domas” which meant judgment or law. Shakespeare used “deem” in this sense in Troilus and Cressida: “I true! how now! what wicked deem is this?”
In fact, the oldest known text written in the English language is the laws or “domas” of Aethelberht who reigned as King of Kent from 560-616 C.E. Modern words derived from “domas” also include “kingdom”, “doom” and “doomsday”. When someone meets her doom, she is literally meeting her judgment and the day of judgment is doomsday. The word has the sense of something that is laid down. The Old Norse word “lagu” also had this meaning and it is from “lagu” that the modern word “law” descends. “Legislate,” which sounds as if it might related to “law”, has an entirely different and non-Germanic source. Its roots are the Latin words “lex” meaning “law” and “latio” meaning “bringing”. “Legislate” made its way into English via the French.