Saturday, March 7, 2015

When a fish is not a "tangible object" and why this matters

A brief note on the intriguing case of Yates v. United States, decided by the U.S. Supreme Court on February 25, 2015: This case asked whether a fish is a "tangible object," and answered: no. (By a 5 - 4 majority, with the deciding vote cast by Justice Alito, who agreed with the result but did not concur in the reasoning of the plurality opinion by Justice Ginsburg.)

How could a fish not be a tangible object? Obviously the dictionary would confirm that a fish is a tangible object -- it can, in fact, be touched. But "tangible object" in this statute, the Supreme Court concluded, did not mean all objects encompassed in the dictionary meaning of the words. Instead, to make a long story short, the Court concluded that in this particular statute -- part of the Sarbanes-Oxley law, enacted after the Enron bankruptcy and aimed, at least most directly, at preventing future massive financial frauds -- and as part of the statutory phrase "knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object," the words "tangible object" referred to objects "used to record or preserve information." (Plurality opinion at 20.) What Mr. Yates had done was to throw undersize fish overboard, to avoid federal fish & wildlife penalties.

That's all interesting. I'm not sure that Justice Ginsburg has the better of the argument in terms of the various tools of statutory interpretation she and Justice Kagan, who wrote the dissent, employ. (This case is a wonderful one for teachers of statutory interpretation, like me; in three quite short opinions it runs through many of the rules that currently play an important part in how statutes are read.) But the case certainly stands for one proposition: dictionary meaning, inconsistent with context, doesn't always control. And that might be a good sign for the Affordable Care Act, which poses a similar problem: does the statute, which permits tax credits only to people who buy their insurance from a health care exchange created by a state, actually, in context, also permit tax credits to people who buy their insurance from a health care exchange created by the federal government in a state that chose not to create its own? The fate of the Affordable Care Act rests, to a very large extent, on this precise question of statutory interpretation. 

Saturday, February 28, 2015

Why is intelligence so rare?

This is just a question:

Whether or not life itself is a miracle, or the product of divine action, on the planet we live on life is all over the place. Life has existed on Earth for billions of years. Living creatures inhabit all sorts of environments, some of them seeming almost completely uninhabitable.  

And yet, so far as we know, no species except our own has attained our level of intelligence in all those aeons. Why is this? 

Our own history tells us that intelligence is an extremely useful trait to acquire; without it we would certainly not be kings and queens of the jungle. That suggests that if this trait had evolved before, it would have been likely to flourish. 

Is the reason it didn't evolve before that the ability to think as we do is such a huge genetic alteration that its arrival could require billions of years to take place as a matter of sheer biological luck? Well, the evidence doesn't seem to support this "huge alteration" idea, because lots of creatures have some measure of cognitive ability. At least some other animals, including parrots, dogs and chimpanzees, can learn something of our languages (which seem to be one of the most distinct of our intellectual accomplishments). Any number of animals -- perhaps even plants! -- have enough cognitive capacity to form purposes and try to achieve them. Our intelligence is greater than all theirs, we believe, but it doesn't seem totally unlike what they have. 

So if life on earth is prolific, and intelligence a useful and genetically reasonably available trait, and if evolution over millions of years has explored one way after another for achieving survival, why was intelligence so late to show up?

On the importance of small acts of kindness

Elsewhere in Justice: A Personal Account (2014), Edwin Cameron speaks about the impact on his life of acts of individual kindness. He grew up poor, and during one holiday, with no warning, a well-dressed woman showed up at his mother's door, asked if this was the Camerons' residence, and handed Edwin an envelope with cash in it. Not a huge amount of cash, but enough to make a difference that Christmas, materially and emotionally. (232-34) Later, as a scholarship student at an elite boys high school, he was the beneficiary of several quiet gifts of cash that made it possible for him to attend without being humiliated by poverty. (234-35)

To the extent these gifts should be seen as part of a social structure, they were instances of affirmative action for whites and perhaps more specifically for Afrikaners (Cameron's home language was Afrikaans (36-37)), and Cameron emphasizes this important point. (237)

But Cameron also emphasizes another important aspect - the profound impact of, and necessity for, individual acts of kindness. (235-36) On this too he is surely right, though not only because, as he reminds us so vividly, such individual acts can matter deeply for those whose lives they change. Individual charity is not a substitute for the just social institutions that the South African constitution aspires to create, Cameron reminds us, but I think it is unlikely that a society without personal charity ever could achieve just social institutions, and if it did, I'm not at all sure we would like the "justice" that society embodied. A society consists of individual people, and the state of their hearts matters for the society as a whole. 

Put a little differently, much as Hamlet did to Horatio, there are more things in heaven and on earth than are dreamt of in some philosophy. The exact meaning of individual acts of kindness may be hard to explain or measure, but they can help transform the lives of everyone involved nonetheless.

The dead hand of the past, casting its vote

From The Star-Ledger for Saturday, February 28, 2015, an editorial called "Giving life to law that would count votes of the dead": New Jersey State Assemblyman Robert Dancer, a Republican from Ocean County, NJ, proposes to count the votes of the dead.
In an event of an untimely death -- meaning one that occurs between the time someone casts an early mail-in ballot and the actual election -- he is seeking to pass a law that would allow dead people to vote legally. He says their ballots should still count.
      Essex County Clerk Chris Durkin agrees. "Their voices should still be heard. ... Even in death," he told NJ Advance Media's Matt Friedman, in what we hope sounded like a voiceover to a horror movie.
The editorial writers are amazed, and rightly so. Really, you can't make this stuff up.

Sunday, February 22, 2015

Looking back at the effects of anti-apartheid lawyering in South Africa

Constitutional Court Justice Edwin Cameron, in his perceptive and often moving book Justice: A Personal Account (2014), revisits the old question of whether using the law against apartheid did more harm than good. He firmly maintains that on balance this work, in which he himself played  an active part, was on balance well worth doing - and I agree. 

But along the way he makes a startling point (see page 59 of his book). He says that both the attackers and defenders of this work "were right." The attackers' point, he writes, was that "the legal system provided a cloak that legitimated apartheid - enabling it to be enforced for longer under a guise of respectability," and he agrees that "without the law, apartheid may not have been as efficient as it was for so long."

Cameron's observation is open-minded and interesting. The question of whether such a boomerang effect took place was important at the time, and remains worth considering now. Moreover, I think he is right that law was an efficient tool for the administration of apartheid. 

It doesn't necessarily follow, however, that without law apartheid would have ended sooner. It would surely have been more horrendous, as Cameron emphasizes, but whether its even more grotesque injustices would have led to its earlier demise is hard to say. In fact Cameron, while saying that those who attacked lawyers' work within the system had a point, doesn't actually endorse the proposition that apartheid without law would definitely have ended earlier; what he writes on this score is phrased more tentatively and speculatively.

Even if law facilitated and extended apartheid, moreover, it doesn't follow that anti-apartheid lawyering had that effect as well. That conclusion would have to rest on more attenuated logic. The first step would be the proposition that anti-apartheid lawyering lent legitimacy to apartheid (by enabling apartheid’s advocates to paint it as an institution with open courts honestly hearing even claims that challenged apartheid). I think it is quite possible that anti-apartheid lawyering lent some measure of legitimacy to the courts - but whether it either encouraged the defenders of apartheid as a whole or weakened the convictions of apartheid's challengers is quite another matter. And even if it did have such effects to some degree, there was a lot going on the later years of apartheid besides court cases. My guess is that the most potent sources of supporters' and attackers' convictions lay outside the courts, and that any boomerang effects of anti-apartheid lawyering were very modest.


Happily, this is one issue that history has made easier to resolve. It's clear that the years of the most intense anti-apartheid lawyering were also the years when that system, with or without some measure of legal legitimation, was skidding towards its welcome end. And that means we can instead rejoice in the commitment to the idea of meaningful law that the anti-apartheid lawyers helped create as one contribution to the new South Africa.

Saturday, February 21, 2015

Customary law in the USA?

From a New Jersey paper, The Montclair Times for Thursday, Feb. 19, 2015, an article titled “Squatter’s rights case dismissed” (by Andrew Segedin, a staff writer for the paper): This article reports a lawsuit filed by a squatter who had occupied a vacant house and now sought to prohibit others from disturbing his peaceful occupation. The plaintiff says in his complaint:

Noble Drew Ali stated that ‘The Moors were living up and down the Mississippi River before the Europeans came here’ …. Whoever my ancestors were, I am today and whatever they owned I own according to specific laws of inheritance. Furthermore, under the inheritance laws this land sits on the parallel … which is sacred to my ancestors, therefore I own the before-mentioned land.

Not surprisingly, the federal court in which the plaintiff filed this lawsuit dismissed it. Apparently the property in question had been foreclosed on, and was empty when the plaintiff moved in. It’s possible that this case, seen in a broader economic lens, is an illustration of the impact of the mortgage crisis; one owner losing his home, no one else ever buying it, and finally someone else, perhaps also facing housing problems, moving in.

But there’s a special twist here: the article reports that Montclair’s township attorney says “that similar cases involving ‘Moorish Americans’ have occurred across the nation.” According to a brief filed in the case, there have been “dozens” of these cases involving the “Moorish Science Temple of America.”

What’s most striking about this, to me, is that the Moorish American argument is framed as a legal argument, invoking “specific laws of inheritance.” The formal law of the land doesn’t acknowledge these laws’ existence, and in that sense they are an elaborate fiction. But it is very interesting that those making these claims assert that they are legal claims, much as another extreme group, the “sovereign citizens,” do. It seems that in the United States today, the language of law is so powerful that even those who seek to disregard many of the duly enacted laws still present their positions as based in law too.


One more thought: how can they just make up law? Well, actually making up law has a long and continuing history. One term for this way of creating law is “customary law.” Many nations rest in part on customary law; South Africa, for instance, recognizes in its constitution that customary law is in fact law. To some extent, the entire world rests on customary law, in the form of those provisions of international law which, though never enacted by treaty or otherwise, have acquired the force of law by universal consent. So the impulse to create law is not at all unusual. And what’s oddest of all is that since customary law is the law of custom, if these invented legal provisions ever become truly customary, then they might well be law after all.

Saturday, February 7, 2015

A history of holiness and war

One of the many, many contested political questions about Israel is whether Jews have some historic claim to live there. Debating this question involves looking back over more than 2000 years of history, and trying to assess the claims of both Jews and Muslims to this land.

It's worth looking at this history, and I know only a very little about it now, but I think that ultimately what it proves is probably only that both Jews and Muslims have longstanding claims to this land. (That's not trivial, but it doesn't get us far on deciding today's questions.)

There is another lesson from this history, though, and that is that this small area (Israel is similar in size to New Jersey) has been fought over again and again. Babylonians, Greeks, Romans, Crusaders, Mamlouks, Ottomans, and the British have all held sway over the area, until defeated by rebels or by the next conquerors from outside. It's true that much of human history probably would look this way if we knew all the details; in Israel, where every step you take enters a new historical site, the details are more clear. But I suspect that the passions this area has engendered have made it even more the subject of struggle and war than many other places have been.

This land that is holy to so many doesn't have much of a history of the peace that holiness might be thought to bring. And its history makes it hard to believe that any arrangement there is likely to be permanent. In a way that is liberating; arrangements may change -- life will go on.