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If It's Sunday, It's a VC Open Thread:
What's on your mind? Comment away.
bornyesterday (mail) (www):
Is there a legal solution to the metaphysical identity problem commonly known as the Ship of Theseus?

i.e. Does the law consider the ship that is entirely made up of non-original pieces the original ship? And what if the original pieces are all saved and then reassembled so that we now have two "identical" ships?
3.5.2006 12:50pm
Visitor Again:
The World Cup, only three months away. I still support the team of the land of my birth; it's practically the only identification I still have with England after almost 50 years in the U.S.A. Forgive me, but it's in my blood and I cannot change it.

I wrote the following before World Cup 2002 on my football (soccer) website. The excerpt begins with a reference to my friend Eduard, who supports Holland.

It will almost certainly end in heartbreak, as it always has for Eduard although he supports one of the world's strongest teams and as it has every four years before and after 1966 for me. The sad yet ineluctable facts are that only one team can win the World Cup, all the others will lose at some point in the tournament, and only a small fraction of the world's football fans will escape the singular pain--that horrible, gut-wrenching, empty despair--that follows their team's defeat at the world's greatest sporting event.

But nothing is certain and there is hope until that defeat. A fan's hope is eternal, truly indestructible. We refuse to take in the lessons of the past, no matter how many, no matter how bitter. We cling to our hope. We thrive on it. It is our sustenance, it defines us, it is our essence. On, England!
3.5.2006 12:58pm
therut:
I'm wondering where I could find or search all Arkansas Supreme court Cases that have ever dealt with the interprepretation of the Arkansas "2nd amendment". Maybe Dave Kopel knows. Where would I go to get the info?
3.5.2006 1:12pm
Justin_F (mail):
I have a question about the whole South Dakota abortion laws - Say some doctor performs an abortion and the Supreme Court overturns Roe v. Wade (not likely but just say) and upholds the South Dakota law. Is that doctor (or mother) really guilty of murder, legally? Basically, is there a test-case exception when you're testing the continuing validity of constitutional precedent?
3.5.2006 1:13pm
Ian Best (mail) (www):
I have a couple of observations on the terms "blog," and "blawg." I am curious what other readers think.

1. If "log," in the word "blog," is seen as rooted in "logos," the "word," then one can ask if the "b" in "blog" could be given a more significant meaning (something beyond "short for web"). My own preference is that the "b" in "blog" be considered as the Greek letter "beta."

"Beta" has applicability from a scientific perspective. My own knowledge of math and the hard sciences is very limited. (I'm in law school, after all.) But at a simplistic level, "beta" can imply instantaneous penetration, i.e. beta radiation. So a "blog," meaning a "beta log(os)," could be defined as a "word," embodying "thought" and "reason," that "instantly penetrates." For the definition to make sense, "logos" would have to be plural, with a "blog" embodying numerous words that are instantly penetrating.

2. There are two reasons why I dislike the word "blawg." First, "blawg" just looks like an unserious, contrived word, and many legal bloggers have indicated disdain for the term. Second, and more importantly, "blawg" sounds exactly the same as "blog." Because the words are homonyms, there is simply no way to disinguish between "blawg" and "blog" in conversation. So if a person gives a speech and refers to a "blawg," listeners will not be able to instantly discern whether he is talking about a regular blog or a legal blog.

The term "legal blog" makes it clear that something other than a general blog is meant. For oral communication purposes, "legal blog" clarifies while "blawg" obscures.

***
I have posted these at my own site, with a little more explanation. I am sincerely interested in what other people here think, especially since the VC has its share of scientifically proficient readers. Please let me know either in the comments here (on this open thread) or by commenting at my own blog, www.3LEpiphany.typepad.com. (Prof. Kerr, I apologize if you don't want people mentioning their own blogs in comments to your open thread post.)
3.5.2006 1:23pm
John Jenkins (mail):
Therut, if you have Westlaw access you can use that and just check the annotations for that provision. Alternatively, you can find the annotated statutes for Arkansas at your local law library and do it that way.
3.5.2006 1:29pm
WB:
I'm curious about whether Roe v. Wade / Casey will actually be overturned in the near future, or if all of the media flap about the legislative changes in the midwest is overrated.

I'm also trying to remember how to customize my viewing of the VC to filter out certain posters.

And I'm wondering if there's anything to an article I read in Atlantic Monthly by Jonathan Rauch arguing (speculating?) that a centrist candidate could take the country by storm by basically turning on his/her own base. He argues that Koizumi and Sharon did this in Israel and Japan, and there's reason to believe that it might work in the United States if done correctly. I think that would be great. I'm equally sickened by the Neases, Falwells, Arons, Robertsons, Dembskis, Coulters, Roves, Moores, Koses, Carters, Deans, Chomskys and Sheehans of the world. If the disaffected center is as large as Rauch thinks it might be, it would be really cool if a candidate could target that.
3.5.2006 1:30pm
Robert Ayers:
WB asks whether a centrist candidate could "take the country by storm by basically turning on his/her own base" and cites Koizumi and Sharon.
An interesting thought.
In Israel, Sharon was elected as "the old Sharon"; he
got to "turn" after his election. It will never be clear if the "new Sharon" was electable.
Japan had the situation of a forever-in-power LDP, where the public electons ratified the choice te LDP made in private Koizumi did not have to take the *country* bystorm, just convnce the LDP. (There are mayors in Japan who have run against the LDP ...)
So it seems to me that in the USA you would have to describe the *route* by which a candidate gets elected. Does he/she run in the primaries as part-of-the-base and then try to do a u-turn between the primaries and November? Or does he/she run anti-base in the primaries? Neither seems like an easy road ...
3.5.2006 1:52pm
marghlar:
bornyesterday: isn't that problem applicable to human beings? after all, we continually replace our own substance with building blocks taken from food and air. I believe we are entirely new every seven years or so. Since we are treated as continuous entities under the law, that would make the Ship of Theseus the same thing.

I guess you could consider the second ship like a clone of a person. Probably considered a new being or construct.
3.5.2006 1:59pm
Mark at UofC:
Everyone should watch this video of an Arab-American woman psychologist being interviewed on al-jazeera, in which she defends western civilization. It really is quite astounding.

Video

Transcript
3.5.2006 2:39pm
SteveMG (mail):
Why can't dogs learn how to eat whipped cream?

Every dog I've had tries to bite the first piece/glop offered. Every time.

Once he/she figures out that it's not a solid food or substance, then he/she starts to lick the cream.

Granted, this isn't as high falutin' as Arkansas court laws on the Second Amendment but, in my book, it's running a close second.

Actually, to me, it's ahead but I'm trying not to sound too silly.

SMG
3.5.2006 2:40pm
Bruce Hayden (mail) (www):
Interesting all the things thrown out here on an open thread. Do sometimes they stick and people start the types of arguments we see on other threads?
3.5.2006 2:47pm
Tom952 (mail):
IAN:
I have a couple of observations on the terms "blog," and "blawg." I am curious what other readers think.

Blog is a shortened version of Web Log.

Blawg is probably a Georgia thing, like "Go Dawgs!"
3.5.2006 2:58pm
gerry (mail):
to Mark at U of C
Why hasn't everybody in the western world seen this video? Why hasn't it been mentioned in the TIMES? Post? Mags? I have seen nothing of it on the majors or the talk shows.
3.5.2006 2:58pm
Tom952 (mail):
Mark U of C:

That is indeed an astounding interview worthy of worldwide attention. Maybe the Prof's can suggest a way to direct more attention to it. I hope she doesn't get killed for speaking out so clearly.
3.5.2006 3:09pm
Bottomfish (mail):
In response to marghlar, let me point out that an infant is born with all the neurons it will ever have. Truly I was a genius in my younger days.
3.5.2006 3:34pm
Old Dominion (mail):
Why can't dogs learn how to eat whipped cream?

Every dog I've had tries to bite the first piece/glop offered. Every time.

Once he/she figures out that it's not a solid food or substance, then he/she starts to lick the cream.


Well, how do you expect them to eat it? With a spoon?
3.5.2006 3:49pm
CEB:
Re: the interview linked by Mark at UofC:
I would argue that there are not "civilizations," there is only Civilization, a refinement of humanity that has manifested itself in many ways throughout history all over the world. It is not a western or European accomplishment; the Muslim world has made many contributions. There are multiple societies and cultures, but Civilization is a singular entity.
3.5.2006 3:49pm
Mike Brown:
Blawg is probably a Georgia thing, like "Go Dawgs!"

Actually, Denise Howell of Bag and Baggage takes credit for coining the term blawg, at least according to wikipedia and Denise Howell.
3.5.2006 4:01pm
Syd (mail):
bornyesterday (mail) (www):
Is there a legal solution to the metaphysical identity problem commonly known as the Ship of Theseus?

i.e. Does the law consider the ship that is entirely made up of non-original pieces the original ship? And what if the original pieces are all saved and then reassembled so that we now have two "identical" ships?


Nick Chopper fell in love with a girl was cursed by a witch so that he kept cutting off parts of his body with his axe, which were then replaced with metal. Eventually all were replaced and he was totally metal, the Tin Woodsman of Oz.

Captain Fyter later courted the same girl, was cursed by the same witch, so that he kept cutting pieces of his body with his sword. Eventually all were replaced and he was totally metal, the Tin Soldier of Oz.

Some of the severed parts of their bodies, which never decayed, this being Oz, were used to make Chopfyt, half Nick, half Fyter, who married the girl Nick and Fyter were courting.

Discuss the legal status of the Tin Woodsman, Tin Soldier, and Chopfyt. Can the girl be arrested for bigamy?
3.5.2006 4:13pm
SteveMG (mail):
Well, how do you expect them to eat it? With a spoon?

There you liberals go again accusing us conservatives of "blaming the victim."

No, when I offer a glop of cream off my finger, my dog should be immediately able to understand that the cream is simply licked off my finger.

No biting is necessary.

I've had four dogs in my life. And none of them could figure it out. And they were a mixed breed of both sexes. No Larry Summers-type suggestions needed.

Not asking a lot here, it seems to me. Call it "tough love" if you must or "compassionate conservatism".


SMG
3.5.2006 4:16pm
logicnazi (mail) (www):
I'm still feeling annoyed at the ridiculous 'legal' argument being made for reparations over at concuring opinions. This argument really amounts to nothing more than slavery was really bad so we ought to compensate people for it.

I just don't understand what makes people take such simplistic positions on what are obviously very complex and tough questions of social policy. When will people learn that the simple rules we use in interpersonal interactions (if you hurt someone pay them back) just can't be applied simplemindedly to groups and nations?. If people realized that groups were just arbitrary collections of individuals, sometimes associated causally or socially or otherways, instead of insisting on anthropomorphisizing them we might be able to deal with problems like reparations or questions about average ability/interest (summers thing) with less insanity.
3.5.2006 4:29pm
Old Dominion (mail):
No, when I offer a glop of cream off my finger, my dog should be immediately able to understand that the cream is simply licked off my finger.

No biting is necessary.

I've had four dogs in my life. And none of them could figure it out. And they were a mixed breed of both sexes. No Larry Summers-type suggestions needed.

Not asking a lot here, it seems to me. Call it "tough love" if you must or "compassionate conservatism".


Perhaps they don't recognize it as whipped cream. They might think it is tapioca or even divinity fudge. Dogs are color blind, you know. You don't evince much respect for our differently-abled canine brethren and sistren.

Anyway, by what right do you seek to impose your subjective moral values? You need to have more appreciation of the wonderful tapestry that is America today. Dog culture may not value efficiency as much as your culture does but it takes time to fully explore the experience. In the end, who is to say the licking alone is really better than biting and licking?
3.5.2006 4:37pm
David Maquera (mail) (www):
Iran delenda est!
3.5.2006 4:42pm
SteveMG (mail):
In the end, who is to say the licking alone is really better than biting and licking?

Good point (ahem).

As Wittgenstein said, if a lion could talk we wouldn't be able to understand it.

If a dog could talk, we wouldn't understand why he bites the cream. For the dog, biting is the "better" action since his interaction with his environment calls for it. An environment that we can't comprehend and he can't explain.

Or the dog is just stupid. Because the cream just falls to the floor and makes a mess.

And I keep offering it to them.


SMG
3.5.2006 4:49pm
Marcus1 (mail) (www):
I've been blawging recently on Kelo, with this forum in mind. My position is that the "public use requirement" is a judicial invention, and that judicial conservatives who support it, while ignoring its lack of textual or historical support, are being hypocritical.

Their best argument seems to come down to "Come on, you don't really think our framers would have allowed that! And look -- there are the words "public use" in the Constitution."

If there are any Kelophiles here who would like to check it out, I'd be very interested in their responses.
3.5.2006 5:08pm
John Jenkins (mail):
Maecus, my response is that you're begging the question. Your logic is that because the Fifth Amendment doesn't specifically prohibit takings for private use such takings are therefore permissible. That's not necessarily true, but your argument assumes that it is in order to prove that it is so.

I don't see anywhere in the Constitution that permits the government to take private property and transfer it to another private party. Given that there is no such enumerated (or implied) power, it wouldn't make sense to limit it in the Fifth Amendment.
3.5.2006 5:31pm
Wild Pegasus (mail) (www):
Jerry Seinfeld made his bones making fun of the stupid things people do in their ordinary lives. So he should have definitely known not to name his son "Shepherd". I mean, what is the deal with these celebrity names? Shepherd Seinfeld spells swirlie, I say.

- Josh
3.5.2006 5:39pm
Mark at UofC:
Gerry: I don't know why it hasn't gotten more coverage at least somewhere. My roommate's father, a professor at Tulsa, found it and sent it to him. I've since emailed it to several friends. I though posting it on here might encourage others to do the same. Perhaps enough blogosphere buzz will prop it up.

Tom952: I too was surprised at her audacity. Honestly, I was surprised they even let her speak as at length as she did without cutting her off or interupting. All they managed was a coy, "Are you a heretic?"

CEB: With all due respect, those who claim there is only one 'civilization' haven't studied any civilization. Western civilization is not new term and is clearly dilineated from the middle east and the eastern world. What you are referring to is 'humanity'.
3.5.2006 5:45pm
Allen Asch (mail) (www):
I was wondering why I haven't seen more coverage of Wall Street Journal reporter Jeanne Cummings's story that during Supreme Court oral arguments on the Texas redistricting cases, Chief Justice John Roberts seemed to be "mocking" MALDEF attorney Nina Perales to the extent it made Cummings uncomfortable.

The video clip of Cummings story on PBS's "Washington Week" is available at:

http://tinyurl.com/o9h8m

The transcript of "Washington Week" will be available on March 6 on this page.

I found the story interesting because I've seen various other stories about how the Roberts Court is going to be one of humility, civility and, if possible, consensus. If other witnesses saw the oral arguments the same way Jeanne Cummings did, it might counter the "conventional wisdom" about the Roberts Court.

Allen Asch
3.5.2006 5:52pm
Mary Katherine Day-Petrano (mail):
"Is there a legal solution to the metaphysical identity problem commonly known as the Ship of Theseus?

i.e. Does the law consider the ship that is entirely made up of non-original pieces the original ship? And what if the original pieces are all saved and then reassembled so that we now have two 'identical' ships?"

Having pondered some on this, I think that if one had a maritime lien on the original ship, that was not judicially satisfied and released, then said lien would attach to the two reassembled identical ships, even with change of ownership.
3.5.2006 5:57pm
Mary Katherine Day-Petrano (mail):
"bornyesterday: isn't that problem applicable to human beings? after all, we continually replace our own substance with building blocks taken from food and air. I believe we are entirely new every seven years or so. Since we are treated as continuous entities under the law, that would make the Ship of Theseus the same thing.

I guess you could consider the second ship like a clone of a person. Probably considered a new being or construct."

No, not quite — one is a ship, one a person. One cannot hold a maritime lien in a person, unless perhaps the person is on navigable waters and the Thirteenth Amendment has been repealed.
3.5.2006 6:03pm
Mary Katherine Day-Petrano (mail):
"Well, how do you expect them to eat it? With a spoon?

There you liberals go again accusing us conservatives of "blaming the victim."

No, when I offer a glop of cream off my finger, my dog should be immediately able to understand that the cream is simply licked off my finger.

No biting is necessary.

I've had four dogs in my life. And none of them could figure it out. And they were a mixed breed of both sexes. No Larry Summers-type suggestions needed.

Not asking a lot here, it seems to me. Call it "tough love" if you must or "compassionate conservatism".


SMG"

Maybe you erred by not giving them a demonstrattion and licking it first. So they didn't get it.
3.5.2006 6:07pm
Marcus1 (mail) (www):
John Jenkins,

Fair enough, but also not the conventional conservative position on Kelo, which says that the liberals on the SC ignored the plain language of the 5th amendment.

IMO, the Due Process Clause prevents takings purely for private benefit. So I'm not dismissing the idea that there is any limitation. But that would be a different question than whether it was a "public use" or merely a "public purpose," as the analysis has focused under the eminent domain clause.
3.5.2006 6:10pm
marghlar:
John Jenkins: I don't see anywhere in the Constitution that permits the government to take private property and transfer it to another private party. Given that there is no such enumerated (or implied) power, it wouldn't make sense to limit it in the Fifth Amendment.

If the federal constitution nowhere delegates a power to the federal government, nor explicitly prohibits it, the tenth amendment would reserve it to the states. QED. Now, maybe you have a Barnett-style 14th Amendment unenumerated right not to have property taken for private use under the Priv. or Immunities clause, but that wasn't argued in Kelo (and would of course go against a hundred years of constituitonal interpretation).

Now back to the truly pointless argument:

Bottomfish: In response to marghlar, let me point out that an infant is born with all the neurons it will ever have. Truly I was a genius in my younger days.

To say that the neurons are still there, is not to say that their atoms are the same atoms that once composed them. Cells are made of lots of interchangeable components. DNA is constantly rebuilt, as are cell walls and structures. Mitochondria reproduce, and die off. Just like you are made up of new stuff all the time, so are your individual cells that last a long time.

Thus, to say that we have the same neurons, is not to say that those neurons are made of the same stuff. In fact, I believe it is precisely the opposite. (Maybe there is a microbiologist out there who can set us straight...) I would admit that it is possible that some of the calcium (or lead -- yikes) in our bones is the same as when we were born, given the very slow rates of pharmocokinetic exchange across the blood/bone barrier. But most of our bodies is regenerated pretty quickly. Keep in mind too that you have a lot more mass now than you did when you were born -- most of your molecules have been incorporated along the way, not been a continuing part of you.

Taken as a whole, I would doubt very much that more than a few grams of any of us was present continuously in our bodies since birth (remember, mostly cartilage, not bone, at that point). In fact, I'm not sure if even that few grams would be the same. Hence, we are very like the Ship of Theseus.

We are pattern, not substance.
3.5.2006 6:10pm
Jeff H (mail):
Here's a question.

Most folk are familiar with the kidnapper's technique of having the victim hold up a current newspaper in a photogarph to "prove" that the kidnappee is still alive. My question to the group is this: Suppose you wanted to preserve a moment in time - showing for example that a conversation took place on a certain date - how would you go about it? To be concrete: I have a conversation on March 5, 2006; how would I prove it took place on that date?

Background newspapers wouldn't work since those could be saved. Background television playing probably wouldn't work thanks to TIVO. I'd be thrilled to hear thougts on this.
3.5.2006 6:16pm
Kovarsky (mail):
the number of people per capita has been stable for the last 13 years.
3.5.2006 6:19pm
Noah Klein (mail):
Jeff,

Don't courts just have people attest to a fact like a conversation took place on a certain day?

Noah
3.5.2006 6:26pm
Mary Katherine Day-Petrano (mail):
"Now back to the truly pointless argument:

Bottomfish: In response to marghlar, let me point out that an infant is born with all the neurons it will ever have. Truly I was a genius in my younger days.

To say that the neurons are still there, is not to say that their atoms are the same atoms that once composed them. Cells are made of lots of interchangeable components. DNA is constantly rebuilt, as are cell walls and structures. Mitochondria reproduce, and die off. Just like you are made up of new stuff all the time, so are your individual cells that last a long time.

Thus, to say that we have the same neurons, is not to say that those neurons are made of the same stuff. In fact, I believe it is precisely the opposite. (Maybe there is a microbiologist out there who can set us straight...) I would admit that it is possible that some of the calcium (or lead -- yikes) in our bones is the same as when we were born, given the very slow rates of pharmocokinetic exchange across the blood/bone barrier. But most of our bodies is regenerated pretty quickly. Keep in mind too that you have a lot more mass now than you did when you were born -- most of your molecules have been incorporated along the way, not been a continuing part of you.

Taken as a whole, I would doubt very much that more than a few grams of any of us was present continuously in our bodies since birth (remember, mostly cartilage, not bone, at that point). In fact, I'm not sure if even that few grams would be the same. Hence, we are very like the Ship of Theseus.

We are pattern, not substance."

This sounds ok, but I am wondering how this argument holds when we are talking about autistics assymetrical brains. What happens to all the white matter? Are autistic cells replaced with autistic cells, autistic cells replaced with normal cells (there does not seem to be an extrinsic proof for this), or once an autistic cll is it forever young?
3.5.2006 6:42pm
Mary Katherine Day-Petrano (mail):
On Kelo:

Really, in a practical way, alls one would have to do to buck the Supreme Court trend is bring a Kelo-Title II Americans With Disabilities Act case against the public governmental entities with the eminent domain power, use Title II to require them to integrate the disabled and fund the ADA by using Kelo takings to construct masses of affordable safe housing or the disabled (hey, it eliminates the Bush-problem with HUD funding cuts) -- and bingo, the clash of cultures would cut back Kelo in no time.
3.5.2006 6:45pm
Mary Katherine Day-Petrano (mail):
"or the disabled"=for the disabled
3.5.2006 6:47pm
CEB:
Jeff H:
It depends on what you mean by "prove." In a legal sense, you only need to prove by a preponderance of the evidence, or beyond a reasonable doubt. This can be accomplished by eyewitness testimony or other evidence. You seem to be asking about something like "absolute proof." which cannot be properly applied to the material, historical world. "Proof," unless qualified as, e.g., legal proof, only makes sense in formal systems like logic &arithmatic.
3.5.2006 7:14pm
bornyesterday (mail) (www):
bornyesterday: isn't that problem applicable to human beings? after all, we continually replace our own substance with building blocks taken from food and air. I believe we are entirely new every seven years or so. Since we are treated as continuous entities under the law, that would make the Ship of Theseus the same thing.


Yes it is. The Ship of Theseus is just the longest standing continual "simple" way of examining the continuity of identity of an object.

Discuss the legal status of the Tin Woodsman, Tin Soldier, and Chopfyt. Can the girl be arrested for bigamy?


IANALOEALS (or even a law student). So I don't know. That's why I posted here. :)

No, not quite — one is a ship, one a person. One cannot hold a maritime lien in a person, unless perhaps the person is on navigable waters and the Thirteenth Amendment has been repealed.


Unless you posit the existence of a soul or something outside of the standard existence, what produces the difference between a ship and person besides the lucky (or unlucky) arrangement of atoms that allow for sentience? And does the law recognize the soul or does it hinge upon that coincidental arrangement? How much of law actually focuses on the continuity of identity, or is it just accepted?

Now back to the truly pointless argument


I'd have to say that the question of identity is probably a much more important question. Though, dependent of how law deals with identity, it can definitely be a trivial question.
3.5.2006 7:23pm
John Jenkins (mail):
If the federal constitution nowhere delegates a power to the federal government, nor explicitly prohibits it, the tenth amendment would reserve it to the states. QED.

If and only if you ignore the Ninth Amendment reserving rights to the people.

Now, maybe you have a Barnett-style 14th Amendment unenumerated right not to have property taken for private use under the Priv. or Immunities claus.e, but that wasn't argued in Kelo

Nor was it argued in Kelo that the state had a right to take the land for private use, so your argument is moot. Because N.H. does not have by state constitution or statute the power to take land for private use and the 5th Amendment's takings clause has been incorporated against the states, my position remains intact. In point of fact, I do think that P&I was intended to incorporate the restrictions on the federal government against the states, but that argument was lost 120 years ago.

In any event, Marcus is right to point out the severe due process problems presented by condemnation for transfer to another private party.

BTW, for your ship-enjoying pleasure, Article 9 treats unidentifiable accessions to collateral as becoming part of the collateral, so replacing parts piecemeal has no effect in secured transactions at any rate--your interest in personal property would remain (this works better with a car, or small boat since large ships would be governed under federal admiralty law).
3.5.2006 7:27pm
logicnazi (mail) (www):
First of all it simply isn't true we are born with all the neurons we will ever use. In fact women even gain neurons from pregnancies (neurons actually enter their brain from the fetus). Though it is substantively true, the brain doesn't regenerate from damage in the same way as other body parts.

As for the ship of thesius example the draft provides the best example with people.

However, I think this becomes most problematic in the question of stolen property. Imagine a classic car stolen in the 1940s but passed through many buyers each of which replaced various parts of the car. If today the car now shares no pieces in common with the original car but the theft early in the car's history is discovered what part of the car does the current owner owe to the original owner?

What if it isn't totally replaced? If only one part of the car is in common with the original stolen vehicle is the entire car vulnerable to suit as stolen goods or just the one small piece that comes from the original car. In face of a suit by the original owner could one dismantle the car and return only the original parts?
3.5.2006 8:46pm
Glenn W Bowen (mail):
1st Amendment dhimmified-

CORVALLIS, Ore. (AP) — A student's column in the Oregon State University campus newspaper has prompted protests by Muslim students, who say it is offensive to their faith.

..."The pain that it caused ... did not subside with time," said DD Bixby, the Barometer's editor-in-chief. "It kind of just festered."

She said editors have been checking copy with Muslim students, and on Tuesday deleted one paragraph from a piece scheduled to be published the next day.


http://www.kezi.com/content/contentID/12758
3.5.2006 9:04pm
Tom952 (mail):
JEFF H.
To be concrete: I have a conversation on March 5, 2006; how would I prove it took place on that date?

OK. You video record the conversation displaying the newspaper of the day. Ergo, the conversation happened after the newspaper was published. Following the conversation, you maim a part of yourself prominently visible in the video - slice off an ear for example. Then you go to the emergency room for treatment and save the hospital records as evidence of when your ear separated. The video places your conversation AFTER the newspaper was published, and BEFORE you cut off your ear. Voila!
3.5.2006 9:20pm
John Jenkins (mail):
logicnazi, the statute of limitations would have long since run and the law would not care.
3.5.2006 9:29pm
marghlar:
John, you aren't refuting my points, you are raising new ones -- which I don't necessarily disagree with. You had previously said that the failure of an enumerated power to take private property for transfer to another private party in the federal constitution prevents the states from exercising such a power. The tenth amendment, of its own force, negates such an interpretation.

Whether the constitution elsewhere creates an unenumerated right in such a regard, is irrelevant to the point that your 5th Amendment/lack of enumeration argument was erroneous.

As to the unenumerated rights discussion, I think that structurally it makes more sense to find restraints on state power in the 14th amendment than in the ninth, though of course it would be textually permissible to find them in either place. I think you could make a fair case, both historically and as a matter of present sentiment, that IF such rights are protected by the constitution (and you must know there are arguments on both sides of that question), it is fair to say that Kelo might abridge them. But I would want that question briefed and argued before I would ask the SCOTUS to decide it. And of course they would have to reverse a long tradition of narrow construction of certain provisions of the constitution in order to do so defensibly.

As to the Due Process clause -- what are we talking about here? As a matter of textual construction, I think it is quite a strain to say that Kelo takings are precluded, as long as there is a notice/hearing process to enable residents to challenge the factual basis of such takings. As for our modern institution of substantive due process, I think that very few courts would agree with you, although I can certainly see a Right of Privacy/SDP argument about the fundamental liberty in the sanctity of the home or some such thing.

Anyway, regardless of the source, I think you need to acknowledge that the only way that Kelo is indefensible is through the application of an unenumerated rights approach. And I'd like to know -- do you generally support finding such rights in the constitution? That gives a LOT of discretion to SCOTUS to tell the other branches of government how to do their jobs. Is that a result that you approve of?
3.5.2006 9:38pm
byomtov (mail):
Self-mutilation seems like an awfully difficult way to get a March 5 time stamp. What about a postmark? Just mail the video.
3.5.2006 9:50pm
Mary Katherine Day-Petrano (mail):
"Unless you posit the existence of a soul or something outside of the standard existence, what produces the difference between a ship and person besides the lucky (or unlucky) arrangement of atoms that allow for sentience? And does the law recognize the soul or does it hinge upon that coincidental arrangement? How much of law actually focuses on the continuity of identity, or is it just accepted?"

I guess some people on this thread are not law students, bar applicants, or lawyers. *sigh* It may be that some people have souls and likewise some do not, and perhaps even ships have souls. But that is irrelevant to the thousands of years old admiralty law governing the law of ships, except perhaps that to save to soul of a ship salvage is rewarded at the highest order of merit.

As far as lucky, unlucky, sentience, or coincidental arrangement of atoms, those matters are more of a phiilosophical nature than any part of the law of admiralty.
3.5.2006 9:52pm
Mary Katherine Day-Petrano (mail):
"BTW, for your ship-enjoying pleasure, Article 9 treats unidentifiable accessions to collateral as becoming part of the collateral, so replacing parts piecemeal has no effect in secured transactions at any rate--your interest in personal property would remain (this works better with a car, or small boat since large ships would be governed under federal admiralty law)."

Interesting how few take Article 9 secured transactions in pers. p. and also admiralty. I do not think, however, there is such a clear cut line between when Article 9 (usually codified under State law) vs. admiralty applies as correlated to the size of a ship. Admiralty law generally subjects State law to federal preemption if the State law is in conflict with admiralty, so regardless of the size of the ship, it is more accurate to say one has to compare the particular Article 9 provision to the admiralty law and see of there is a conflict to determine which law applies. Myself, I have always wondered how a case with a perfected UCC filing statement under Article 9 would play out in light of a Vessel recording statute or maritime lien. One foreseeable problem is the ship can navigate out of the jurisdiction of the UCC filing statement. At any rate, a very interesting comment.
3.5.2006 10:02pm
John Jenkins (mail):
Marglahr, my argument wasn't "erroneous" as you put it. You're the one injecting new arguments after the fact.

The argument I was refuting is this: "The text of the Fifth Amendment doesn't speak to takings for private use, therefore such takings are permissible."

My argument is that there was no enumerated or recognized right of governments to take property for private use, so the fact that "private takings" are not mentioned is dispositive of nothing.

There is no error in that argument, unless you ascribe to a theory of untrammeled federal government power. In which case, there remains no error in my argument, but a disagreement over premises.

You will note that my original post does not refer to Kelo at all. In short, your "response" is precisely non-responsive. When you decide to say that certain arguments "weren't made in Kelo," it's apparently permissible, but when I parry with the same argument it isn't. Now that I know that you want to have a different argument, we can do that.

First, Kelo is entirely consistent with earlier cases on public takings. The question in Kelo was what constituted a public use. Petitioners argued that transfer to a developer was no a public use. The Court found otherwise, deciding that where there is a plan for development (as in Kelo), such a taking was a taking for public use and was therefore permissible.

"nor shall private property be taken for public use, without just compensation."

Seems simple enough, right? Government cannot take property for public use. But, if there is a public use and there is just compensation, it's okay to take property (incidentally, this is where the public use prong comes from, but what the hell, that's an entirely different argument). We all agree on that (I think) and that it applies to the federal government.

Through selective incorporation, it also applies to the states. So states unequivocally cannot take private property for public use without paying just compensation.

I guess we disagree as to whether government has the power to take private property for private use. My argument on that issue is simple. Government derives it's power from the people. We give up rights to protect ourselves, most importantly the monopoly on the use of force. If I would have no right to take my neighbor's property for my own, then I have no right to have government do it for me. Government lacks those powers we cannot have given it. You may disagree, but again, that's a difference of premises.

As to due process, the argument is this: If you have caused me harm in some way (either through breach of contract or tort) and I want redress, I have to sue you, get proper service, and get a judgment at trial, and have that judgment executed before I can get your property.

Fundamentally important in this is the "harm" portion. I can't just go into court and say I want your stuff and have them give it to me. There is no reason to presume that the government has any more right than I do to do that (government having only the rights surrendered by the people). If I harm the government somehow, or the public, through violations of certain laws and the government sues me and takes a judgment, them the government can take my stuff. That's due process, and one important ingredient in the system is a wrong to be righted.

If we allow the government to simply take land for other private "higher" uses, there is no process that is sufficient for that. I have done no wrong, and therefore there is no cause to take my property (even in forfieture cases, the purpose is to show the wrong so that the government can take the property).

If you find this non-responsive to your claims, I'm afraid I'll have to ask you to delineate your argument more clearly for my obviously inferior understanding.
3.5.2006 10:20pm
John Jenkins (mail):
MKDP, I do not know what the federal rules on maritime liens are. Location of the collateral has nothing to do with perfection in Article 9 cases though, except in cases of perfection by possession and fixture filings. It's all based on the location of the debtor.

I say that size matters because I know that small boats and ships that are registered and titled in states are subject to Article 9 perfection provisions (usually with certificate of title perfection under Rev. 9-311). Presumably there is some point ships are no longer to be registered with states, but I have no idea where it is (maybe it's size, maybe it's ocean-going capability, maybe it's something else).
3.5.2006 10:36pm
bornyesterday (mail) (www):
I guess some people on this thread are not law students, bar applicants, or lawyers. *sigh* It may be that some people have souls and likewise some do not, and perhaps even ships have souls. But that is irrelevant to the thousands of years old admiralty law governing the law of ships, except perhaps that to save to soul of a ship salvage is rewarded at the highest order of merit.


You don't have to guess. I said as much. And of course it's a philosophical question. That's what I said originally: "metaphysical." And I guess I should have been more clear in that I was hoping for a more general answer as to continued identity than just admiralty law. I've gotten an answer that law just sort of accepts the continuity of identity for humans despite the cycling of atomic/cellular makeup? But what is the underlying philosophical basis of law (if any) that differentiates between humans, animals, plants and inanimate objects?
3.5.2006 10:47pm
marghlar:
My argument is that there was no enumerated or recognized right of governments to take property for private use, so the fact that "private takings" are not mentioned is dispositive of nothing.

And my point was: the enumeration of rights in the federal constitution is textually irrelevant to the existence of those rights at the state level. It says so, quite plainly. The federal constitution doesn't exist to give any powers to the states -- it only takes powers away. It was a way for extant state governments to form a union together -- thus, they didn't need to define their own power, because they already had it.

I referred to Kelo because that was clearly the source of the original comment. I thought the subsequent discussion was at least proceeding by oblique reference to Kelo. I apologize if I unduly cabined your points by that understanding.

My argument on that issue is simple. Government derives it's power from the people. We give up rights to protect ourselves, most importantly the monopoly on the use of force. If I would have no right to take my neighbor's property for my own, then I have no right to have government do it for me. Government lacks those powers we cannot have given it. You may disagree, but again, that's a difference of premises.

It seems like much of the rest of your argument proceeds from some natural rights assumptions I don't share. I think we have the rights we as a society create; I have trouble buying the idea that any rights exist out there in the ether, independent of us. I in fact do have the power to take another person's property, as do we all. A right not to have that happen exists only to the degree that we, through our mechanism of a State, have created it, and continue to enforce it. Now, we may or may not think that property transfers are good policy, but it is clearly possible for governments to require them. So the only question is, is there a mechanism set up that would prevent a government from doing so.

For that, I look at what the Constitution says, and how it has been enforced. I think there are decent arguments that it might prohibit such transfers...but I think it is foolish to say that a failure to enumerate a federal power deprives a state of that power. In fact, the Constitution expressly says the opposite. So I don't buy your argument re: failure to enumerate.

Perhaps it will help to give an example. The Constitution doesn't say that either the federal goverment, or the states, can outlaw murder. Nevertheless, the States can do so. Why? Because the Constitution doesn't grant such a power to the federal government, nor deny it to the States. Hence, the Tenth Amendment expressly reserves such a power to the States.

As to substantive due process: I think that is textually implausible. I think the constitution, properly read, prohibits taking life, liberty or property without certain procedures. It doesn't say that they can't be taken. So I don't think you can get the right you are looking for from the DP clause.
3.5.2006 10:55pm
The NJ Annuitant (mail):
1st Amendment dhimmified---
Actually, the first amendment is not implicated because there is no state action. What you see here is insane political correctness . I would have encouraged the Muslims not to read any articles that they found painful, or if they find reading to be broadening, then come to the realization that most of us are not Muslims, and get over it. Personally, I am deeply offended by radical Islam. What are those complaining Muslim students prepared to do about the offensive features of Islam?
3.5.2006 10:57pm
marghlar:
bornyesterday: Holmes said it best: The live of the law isn't logic, its experience. We don't have time to wait for answers to philosophical conundrums that may be unanswerable...we need to regulate human conduct now, in order to prevent societies from falling apart. Thus, the law is usually quite good at avoiding logical mysteries that have little effect on everyday private conduct...the law is pragmatic, not philosophical, for the most part.
3.5.2006 10:58pm
John Jenkins (mail):
bornyesterday, you're asking the wrong questions, I'm afraid. Law doesn't concern itself with those issues. The law assumes that an individual has an identity and it's constant. It does the same thing with property. Government is the ultimate pragmatic enterprise.

That said, if you want philosophy here it goes.

The object with replaceable parts is not defined by its parts but by its relationship with some agent.

Everything is a series of relative perceptions. We call the different perceptions different things. Seeing, touching, feeling, whatever. We all accept (even as we sometimes consciously deny it) a set of shared perceptions of each other.

Our perceptions of humans, animals, plants and objects are different, therefore when we sit down to write laws, we treat those things differently based on our different perceptions. As a practical matter, the validity of our perceptions are irrelevant (though I suppose if we're wrong about squirrels or mice and they are the manifestation of God in the world, we're potentially in a lot of trouble). So long as we share the perceptions, we can order society around them. If you're taking LSD, all bets are off.
3.5.2006 11:12pm
John Jenkins (mail):
marghlar, if we differ on first principles, then agreement is probably not possible. You want to ignore what are understood to be the government's powers when it suits you (taking of private property) but cite it when you think it helps you (prohibiting murder). Your inconsistencies make me think you're being disingenuous.

You think there is a government power to take property and transfer it to someone else. Let's start from there Apparently you believe that is a power inherent in government. Why do you believe that? (one thing at a time: we'll hopefully get to all of the issues.)
3.5.2006 11:24pm
M.A. (mail):
Why is Bush proposing unconstitutional legislation?

I have no strong feelings about the line-item veto. Obviously Presidents (of both parties) think it's cool. But shouldn't Bush be spending time working on, I don't know, something that wasn't just ruled unconstitutional by at least five people who are still on the SCOTUS?

2006: the year of pointless busy work.
3.5.2006 11:40pm
marghlar:
Here's my problem: you write, "what are understood to be the government's powers." What does that mean? Understood by whom? In what way is that understanding relevant?

In answer to your question: I am a legal positivist. I think that government has whatever powers we give it. In the context of the state governments (which is what this conversation was about), that means, by way of the federal and state constitutions: the states have absolutely any possible power not given to the federal government, not denied by the federal constitution, and not denied by the state constitutions or statutes. That is how we have designed our governments.
3.5.2006 11:41pm
bornyesterday (mail) (www):
bornyesterday: Holmes said it best: The live of the law isn't logic, its experience. We don't have time to wait for answers to philosophical conundrums that may be unanswerable...we need to regulate human conduct now, in order to prevent societies from falling apart. Thus, the law is usually quite good at avoiding logical mysteries that have little effect on everyday private conduct...the law is pragmatic, not philosophical, for the most part.


and

bornyesterday, you're asking the wrong questions, I'm afraid. Law doesn't concern itself with those issues. The law assumes that an individual has an identity and it's constant. It does the same thing with property. Government is the ultimate pragmatic enterprise.


Thanks to both of you. That answered my question as well as possible.

That said, if you want philosophy here it goes


I know the philosophy of the Ship of Theseus. I was honestly interested in how law deals with it. It's good to know that it is essentially pragmatic when it comes to ideas like that.
3.5.2006 11:48pm
John Jenkins (mail):
You know what I meant, because you relied on the understanding that government can prohibit murder. You're being mendacious on this point.

As to the rest, we obviously disagree on first principles. That being the case, we cannot agree on this issue. I don't think the government can rightly do something that it's constituents could not have rightly done. You think otherwise. Both of those are a priori positions that we can't really argue out (at least not here, and in any event they depend on earlier assumptions and neither of us has the time, nor I expect the inclination, to play Socrates and interlocutor at this point).

But your description of how we designed our governments is, I think, incorrect. There is a huge body of common law we inhereted and incorporated and your position doesn't account for it. It is a fundamental part of our governmental order.

It would be interesting to know whether you are also an ethical positivist, or just a legal positivist. As you noted earlier, I am clearly an adherent to the natural law philosopy (which I might add is the philosophy under which our governmental order was in fact established, so I think is more persuasive in the specific case).
3.5.2006 11:55pm
Antares79:
Crash??!? Come on...
3.5.2006 11:58pm
Anderson (mail) (www):
The Jackson, MS Clarion-Ledger blurbed the VC, and other blogs, on Page One re: the Cory Maye case, which is finally getting some attention.

Wow, y'all have REALLY arrived now ....
3.6.2006 12:11am
John Jenkins (mail):
I'm guessing more people read VC in a day than subscribe to that paper :-)
3.6.2006 12:14am
marghlar:
Mendacious? How rude. And at least not intentionally. I didn't mean to state that murder can be prohibited because of any societal understanding. I thought I said:

"The Constitution doesn't say that either the federal goverment, or the states, can outlaw murder. Nevertheless, the States can do so. Why? Because the Constitution doesn't grant such a power to the federal government, nor deny it to the States. Hence, the Tenth Amendment expressly reserves such a power to the States."

Thus, I didn't say that it was some amorphous understanding that made the state able to regulate murder. I said it was because the 10th Amendment expressly permits the states to do so, by deduction, and because the state constitutions permit the states to do so. In the absence of meaningful restraints, the State can clearly do whatever it wants. It has most of the guns. At least, it can do what it wants until we revolt and restructure it.

Am I an ethical positivist? Yeah, I'd say I probably am. I may have intuitions about proper behavior, but I have no means of determining whether they have truth values or not. I think that ethics is largely a social construct, which serves salutary social functions. I don't think it existed before people thought about it, nor will it be meaningful once we are extinct. Nor does it have constant content from time to time and place to place.

As to the common law traditions: what you, and a lot of traditionalists overlook, is that the common law tradition was one of evolution and change. We developed those rules by trial and error, and changed them frequently. Thus, to say that the Framers viewed the common law as an external constraint upon the State is misleading -- they thought it could be overruled by statute, and were worried that if they didn't enact traditional freedoms into the constitutional text, they could rightly be taken away by the state.

Finally: to say that since the Framers believed in natural law, natural law is more relevant to constitutional interpretation, is to assume an original intent/meaning interpretive convention that I am not sure is justified or justifiable. If they are dead, and I am not, why should their views control the content of how I interpret our governing documents?
3.6.2006 12:30am
marghlar:
Mendacious? How rude. And at least not intentionally. I didn't mean to state that murder can be prohibited because of any societal understanding. I thought I said:

"The Constitution doesn't say that either the federal goverment, or the states, can outlaw murder. Nevertheless, the States can do so. Why? Because the Constitution doesn't grant such a power to the federal government, nor deny it to the States. Hence, the Tenth Amendment expressly reserves such a power to the States."

Thus, I didn't say that it was some amorphous understanding that made the state able to regulate murder. I said it was because the 10th Amendment expressly permits the states to do so, by deduction, and because the state constitutions permit the states to do so. In the absence of meaningful restraints, the State can clearly do whatever it wants. It has most of the guns. At least, it can do what it wants until we revolt and restructure it.

Am I an ethical positivist? Yeah, I'd say I probably am. I may have intuitions about proper behavior, but I have no means of determining whether they have truth values or not. I think that ethics is largely a social construct, which serves salutary social functions. I don't think it existed before people thought about it, nor will it be meaningful once we are extinct. Nor does it have constant content from time to time and place to place.

As to the common law traditions: what you, and a lot of traditionalists overlook, is that the common law tradition was one of evolution and change. We developed those rules by trial and error, and changed them frequently. Thus, to say that the Framers viewed the common law as an external constraint upon the State is misleading -- they thought it could be overruled by statute, and were worried that if they didn't enact traditional freedoms into the constitutional text, they could rightly be taken away by the state.

Finally: to say that since the Framers believed in natural law, natural law is more relevant to constitutional interpretation, is to assume an original intent/meaning interpretive convention that I am not sure is justified or justifiable. If they are dead, and I am not, why should their views control the content of how I interpret our governing documents?
3.6.2006 12:31am
marghlar:
sorry for the double posting...
3.6.2006 12:35am
John Jenkins (mail):
As to the common law traditions: what you, and a lot of traditionalists overlook, is that the common law tradition was one of evolution and change. We developed those rules by trial and error, and changed them frequently. Thus, to say that the Framers viewed the common law as an external constraint upon the State is misleading -- they thought it could be overruled by statute, and were worried that if they didn't enact traditional freedoms into the constitutional text, they could rightly be taken away by the state.

Some of them were so worried. Others weren't. The compromise was the Bill of Rights, including the Ninth Amendment. The debates on that issue are pretty interesting actually.

Finally: to say that since the Framers believed in natural law, natural law is more relevant to constitutional interpretation, is to assume an original intent/meaning interpretive convention that I am not sure is justified or justifiable. If they are dead, and I am not, why should their views control the content of how I interpret our governing documents?

Because the people who wrote them were and it is necessary to approach it from that perspective to understand the meaning intended. Your question is akin to asking, why should I read a French text as French when I am American? The answer is that you will otherwise not understand what is written.

Am I an ethical positivist? Yeah, I'd say I probably am.

Well, then I was right, we really can't go any further :-)
3.6.2006 12:39am
marghlar:
The answer is that you will otherwise not understand what is written.

Nonsense. To the degree that we continue to consent to be bound by the constitution, it is far from clear that we are consenting to extra-textual interpretive glosses of a long-dead generation. When the text has multiple colorable meanings, I see no persuasive reason to automatically defer to the enacting generation's interpretation. It isn't clear that they would want to have such a powerful control over a far-future generation operating under very different concerns and conditions of life. Nor is there any justification for giving them such power over our lives.

To be clear: I think society has consented to be bound by the words they enacted. I doubt we have consented to their understandings of what searches are reasonable. Nor is it clear that they would want us to be so.

I think its sad that you say we can't discuss the content of constitutional law if we disagree about ethical premises.
3.6.2006 1:10am
Kovarsky (mail):
Ethics is an evolutionary construct! Yay! Societies that don't punish murder don't survive!

I'm sorry, I just don't get how rights can exist independent of any authoritative text. I'd love to have this explained to me without reference to religion or superficially invoking natural law.

and don't forget, we will be greeted as liberators in iraq.
3.6.2006 1:13am
Perseus (mail):
Could someone explain why the president plans to ask for a line-item veto when he hasn't gotten around to using his regular veto? (Insert snarky remarks about the line-item veto and the Administration's claims about inherent executive power here: ________________).
3.6.2006 1:41am
Kovarsky (mail):
(Insert snarky remarks about the line-item veto and the Administration's claims about inherent executive power here: ________________).

What does the president need a constitutional amendment to abrogate legislative compromises, when he apparently has it already?
3.6.2006 1:55am
Brandonks (mail) (www):
Did you notice how unhappy the audience at the Oscar's were with being the butt of John Stewart's jokes?

Did not seem like they shared his sense of humor.
3.6.2006 3:37am
therut:
Did their big heads shrink any or did their noses just go higher in the air with a sniff.
3.6.2006 3:43am
Kovarsky (mail):
The joke about Cheney shooting Bjork has to be one of the best I've ever heard.
3.6.2006 4:53am
Cornellian (mail):
"Crash" wins the Best Picture Oscar????

What a travesty. The New York Times was totally correct in describing it as "liberal speechifying masquerading as a movie."
3.6.2006 5:38am
Kovarsky (mail):
Cornellian,

Good point. It's a flawed movie because it is speechifying - not because the substance of its speechifying is liberal. At least that's the point, I can assure you, that Tony Scott is making. I get the feeling you're attempting to lump Tony Scott's criticism in with O'Reilly's, which completely misses the point.
3.6.2006 5:51am
Rich Rostrom (mail):
John Jenkins: re the stolen car - A Corvette stolen thirty-seven years ago was returned to its original owner recently. See http://www.nbc4.tv/news/6157896/detail.html
3.6.2006 6:04am
Cornellian (mail):
"Crash" would not be a better movie if its speechifying was conservative rather than liberal. I don't know what Bill O'Reilly has to say about the movie since I never listen to him or to talk radio of any sort.

Someone writing in the LA Times recently stated that he (or maybe it was a she) hoped that Crash would win, not because it is a good movie (it isn't) but because its negative portrayal of LA, if given the great exposure of an Oscar win, might help to stem the tide of New Yorkers and Canadians moving there and driving up housing prices. I suppose that's probably the only positive thing that could be said about a win for "Crash."
3.6.2006 7:05am
logicnazi (mail) (www):
Statute of limitations and stolen property?

I thought that stolen property did not become 'yours' after a certain amount of time and that the statute of limitations was irrelevant. The statute of limitations puts limits on how long you may be held liable/prosecuted for a crime. However, isn't the reason the original owner gets back the stolen property the theory that it was always his property?

I mean if this wasn't the case what is the explanation for all these really old painting lawsuits? However, it is entierly possible I am just misunderstanding something.
3.6.2006 7:55am
Mary Katherine Day-Petrano (mail):
"You don't have to guess. I said as much. And of course it's a philosophical question. That's what I said originally: "metaphysical." And I guess I should have been more clear in that I was hoping for a more general answer as to continued identity than just admiralty law. I've gotten an answer that law just sort of accepts the continuity of identity for humans despite the cycling of atomic/cellular makeup? But what is the underlying philosophical basis of law (if any) that differentiates between humans, animals, plants and inanimate objects?"

I guess your statement you are not a lawyer was neither clear nor conspicuous. You don't have to tell someone who graduated law school and passed the bar examination how to define words. And FYI I took a lot of philosophy calsses as an undergrad. Why would you "hope for" a philosophical feely-feely discussion on a legal blog? Lw students, bar applicants, and lawyers just apply the law. There really isn't time in the fast paced, standardized format, expensive legal research post-modern litigation world for philosophizing about one's position. We are educated with a doctorate to spot issues, and the question of ships will always raise issues of admiralty law. Your last question really would require someone to explain to you all that is learned at more than a hundred thousand dollar three year doctorate education -- if that is what you are looking for, why don't you sign up for some student loans and head off to law school? Otherwise, your hopes for the conversation you seek will likely be dashed on legal blogs, and perhaps you should find some blogs for philosophers. Just trying to be helpful.
3.6.2006 10:02am
Jam (mail):
SteveMG: A dog can only bite or lick (lap?) food to ingest it. If it decides, after a sniff, that it might be worth eating and it appears to be solid it will bite it. Next dog you have try spreading a thin layer of whipped cream on a plate and see what it does and let us know. OK?
3.6.2006 10:02am
Mary Katherine Day-Petrano (mail):
John -- "MKDP, I do not know what the federal rules on maritime liens are. Location of the collateral has nothing to do with perfection in Article 9 cases though, except in cases of perfection by possession and fixture filings. It's all based on the location of the debtor.

I say that size matters because I know that small boats and ships that are registered and titled in states are subject to Article 9 perfection provisions (usually with certificate of title perfection under Rev. 9-311). Presumably there is some point ships are no longer to be registered with states, but I have no idea where it is (maybe it's size, maybe it's ocean-going capability, maybe it's something else)."

You raise some good points. I would think one would likely get away with relying predominently on Article 9 in the case of some small boat, family backyard situation but mostly because admiralty lawyers are either specialized themselves or very expensive (requires Board Specialty Certificaton in Florida); thus, the boat owner you have in mind would not likely put up a vigorous defense.

Having said that, I know both my husband and myself, who have taken admiralty in law school, and also have litigated a very vigorous federal admiralty case ourselves, would raise federal preemption of Article 9 by the federal admiralty law to the extent there were a conflict if that issue ever arose. Maritime liens are prescribed under the United States Code, to be specific I would have to go into my maritime lien files as I do not have those code number memorized. However, maritime liens have their own perfection and priority scheme, for example, placing salvage at the top of the priority list. I am sure, for instance, a salvage claim would subject and Article 9 security interest to either federal preemption or to a subordinate priority position regardless of what Article 9 says.

I am aware many smaller boats and even sailing vessels are registered and titled in the States; however, there is also a Federal Vessel recording statute, and there is a huge difference between the law of the land and the law of the sea, including jurisdiction. While an admiralty claim can be brought in a State court, I would think in most jurisdictions the Federal court would provide one with judicial officers more well versed with the laws of admiralty. That is only my observation speaking from experience and the many admiralty cases I have read; however, I do recognize there are probably some communities in which State courts in a navigable waters community may have acquired this expertise, and in that case, the choice of forums would likely depend more on other advantages or disadvantages to choosing one or the other rather than the expertise of the judicial officer.

Another thing, is there are many ships that are foreign-flagged. This Carver yacht my husband and I have under arrest in admiralty has been continuously in the Florida waters for more than 6 years, and the purported claim alleges that it is registered in a boat registry in the Cayman Islands (a foreign Country). We only have unreliable xerox copies, not original documents to substantiate a Cayman registry. The previous owner registered it under the Vessel recording statutes under a different name than the now ship has painted on its transom. We know the Vessel has not been registered with the State of Florida and, inexplcably, has not paid Florida State sales or use taxes for the 6 years it has remiained in Florida waters with no real effort to sell it. So the area you speak of is indeed very interesting.

And I would think all the more interesting if teh boat is a houseboat with fixtures.
3.6.2006 10:27am
Mary Katherine Day-Petrano (mail):
John --

And another thing, is if you really want to mick things up, submit the ship with Article 9 security interest, a maritime lien, and salvage claim to bankruptcy. Yikes!
3.6.2006 10:29am
Mary Katherine Day-Petrano (mail):
"bornyesterday: Holmes said it best: The live of the law isn't logic, its experience. We don't have time to wait for answers to philosophical conundrums that may be unanswerable...we need to regulate human conduct now, in order to prevent societies from falling apart. Thus, the law is usually quite good at avoiding logical mysteries that have little effect on everyday private conduct...the law is pragmatic, not philosophical, for the most part."

Thank you marghlar, you said it much better than I.
3.6.2006 10:33am
Mary Katherine Day-Petrano (mail):
Kovarsky -- "Ethics is an evolutionary construct! Yay! Societies that don't punish murder don't survive!

I'm sorry, I just don't get how rights can exist independent of any authoritative text. I'd love to have this explained to me without reference to religion or superficially invoking natural law."

Mmmm ... pirates come to mind. And I agree with you.
3.6.2006 10:38am
Michael Kleber (mail):
Jeff H: "To be concrete: I have a conversation on March 5, 2006; how would I prove it took place on that date?"

Make a videotape of the conversation, including the newspaper. Put the video on your computer, then take a cryptographically secure one-way hash function and apply it to the video clip. The resulting hash is a long number which is easy to produce given the video clip, but such that it would be extremely difficuly to create another video clip which would give rise to that same hash.

Then take out an ad in the next day's paper, saying "I have a video clip whose hash is ___________." The video clip plus the public record of its hash prove that the clip couldn't have been made any later.

This is a well-known cryptography problem — see e.g. section 4.1 of Bruce Schneier's Applied Cryptography, titled "Timestamping services." There are companies like www.surety.com that provide this kind of service in a way which doesn't force you to take out newspaper ads yourself. According to Schneier, "a timestamp has appeared in every Sunday's New York Times since 1992."
3.6.2006 12:04pm
Bill (mail):
What's up with Bush trying to get a line item veto? Does this move show insufficient respect for the Supreme Court's previous decision on the matter (Clinton v. New York)? I don't doubt that law could be written that would not fall to the specific constitutional objections in that opinion. But what would such a law have to look like? Are any of you hill lawyers looking into that?

One completely impractical way to avoid the line item veto issue would be for Congress to pass every single budget item as a separate piece of legislation. Aside from the inconvenience of separate votes and signings, I'm completely sure that there are some balance of power reasons why we don't do it that way. But our way of legislating also has its serious defects, no?

One question that all this raises is how much of a role the Supreme Court should take in holding congress to some "constitutional standard" regarding the form its legislation takes. The principles behind the separation of powers would also be violated, after all, if Congress passed the entirty of its annual legislation in a single bill. Thinking about it this formally is a bit silly. But it does seem that there are lines to be drawn here and why should SCOTUS not be contributing to the drawing?
3.6.2006 12:46pm