The Universe of Discourse

Sat, 09 Dec 2017

Legal Nerdsniping

The Volokh Conspiracy is a frequently-updated blog about legal issues. It reports on interesting upcoming court cases and recent court decisions and sometimes carries thoughtful and complex essays on legal theory. It is hosted by, but not otherwise affiliated with, the Washington Post.

Volokh periodically carries a “roundup of recent federal court decisions”, each with an intriguing one-paragraph summary and a link to the relevant documents, usually to the opinion itself. I love reading federal circuit court opinions. They are almost always carefully thought out and clearly-written. Even when I disagree with the decision, I almost always concede that the judges have a point. It often happens that I read the decision and say “of course that is how it must be decided, nobody could disagree with that”, and then I read the dissenting opinion and I say exactly the same thing. Then I rub my forehead and feel relieved that I'm not a federal circuit court judge.

This is true of U.S. Supreme Court decisions also. Back when I had more free time I would sometimes visit the listing of all recent decisions and pick out some at random to read. They were almost always really interesting. When you read the newspaper about these decisions, the newspaper always wants to make the issue simple and usually tribal. (“Our readers are on the (Red / Blue) Team, and the (Red / Blue) Team loves mangel-wurzels. Justice Furter voted against mangel-wurzels, that is because he is a very bad man who hates liberty! Rah rah team!”) The actual Supreme Court is almost always better than this.

For example we have Clarence Thomas's wonderful dissent in the case of Gonzales v. Raich. Raich was using marijuana for his personal medical use in California, where medical marijuana had been legal for years. The DEA confiscated and destroyed his supplier's plants. But the Constitution only gives Congress the right to regulate interstate commerce. This marijuana had been grown in California by a Californian, for use in California by a Californian, in accordance with California law, and had never crossed any state line. In a 6–3 decision, the court found that the relevant laws were nevertheless a permitted exercise of Congress's power to regulate commerce. You might have expected Justice Thomas to vote against marijuana. But he did not:

If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined,” while those of the States are “numerous and indefinite.”

Thomas may not be a fan of marijuana, but he is even less a fan of federal overreach and abuse of the Commerce Clause. These nine people are much more complex than the newspapers would have you believe.

But I am digressing. Back to Volokh's federal court roundups. I have to be careful not to look at these roundups when I have anything else that must be done, because I inevitably get nerdsniped and read several of them. If you enjoy this kind of thing, this is the kind of thing you will enjoy.

I want to give some examples, but can't decide which sound most interesting, so here are three chosen at random from the most recent issue:

  • Warden at Brooklyn, N.Y., prison declines prisoner’s request to keep stuffed animals. A substantial burden on the prisoner’s sincere religious beliefs?

  • Online reviewer pillories Newport Beach accountant. Must Yelp reveal the reviewer’s identity?

  • With no crosswalks nearby, man jaywalks across five-lane avenue, is struck by vehicle. Is the church he was trying to reach negligent for putting its auxiliary parking lot there?

Check it out.

[ Addendum 20171213: Volokh has just left the Washington Post, and moved to Reason, citing changes in the Post's paywall policies. ]

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Sun, 22 Mar 2015

Examples of contracts you should not sign

Shortly after I posted A public service announcement about contracts Steve Bogart asked me on on Twitter for examples of dealbreaker clauses. Some general types I thought of immediately were:

  • Any nonspecific non-disclosure agreement with a horizon more than three years off, because after three years you are not going to remember what it was that you were not supposed to disclose.

  • Any contract in which you give up your right to sue the other party if they were to cheat you.

  • Most contracts in which you permanently relinquish your right to disparage or publicly criticize the other party.

  • Any contract that leaves you on the hook for the other party's losses if the project is unsuccessful.

  • Any contract that would require you to do something immoral or unethical.

  • Addendum 20150401: Chas. Owens suggests, and I agree, that you not sign a contract that gives the other party ownership of everything you produce, even including things you created on your own time with your own equipment.

A couple of recent specific examples:

  • Comcast is negotiating a contract with our homeowner's association to bring cable Internet to our village; the propsed agreement included a clause in which we promised not to buy Internet service from any other company for the next ten years. I refused to sign. The guy on our side who was negotiating the agreement was annoyed with me. If too many people refuse to sign, maybe Comcast will back out. “Do you think you're going to get FIOS in here in the next ten years?” he asked sarcastically. “No,” I said. “But I might move.”

    Or, you know, I might get sick of Comcast and want to go back to whatever I was using before. Or my satellite TV provider might start delivering satellite Internet. Or the municipal wireless might suddenly improve. Or Google might park a crazy Internet Balloon over my house. Or some company that doesn't exist yet might do something we can't even imagine. Google itself is barely ten years old! The iPhone is only eight!

  • In 2013 I was on a job interview at company X and was asked to sign an NDA that enjoined me from disclosing anything I learned that day for the next ten years. I explained that I could not sign such an agreement because I would not be able to honor it. I insisted on changing it to three years, which is also too long, but I am not completely unwilling to compromise. It's now two years later and I have completely forgotten what we discussed that day; I might be violating the NDA right now for all I know. Had they insisted on ten years, would I have walked out? You bet I would. You don't let your mouth write checks that your ass can't cash.

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Sat, 21 Mar 2015

A public service announcement about contracts

Every so often, when I am called upon to sign some contract or other, I have a conversation that goes like this:

Me: I can't sign this contract; clause 14(a) gives you the right to chop off my hand.

Them: Oh, the lawyers made us put that in. Don't worry about it; of course we would never exercise that clause.

There is only one response you should make to this line of argument:

Well, my lawyer says I can't agree to that, and since you say that you would never exercise that clause, I'm sure you will have no problem removing it from the contract.

Because if the lawyers made them put in there, that is for a reason. And there is only one possible reason, which is that the lawyers do, in fact, envision that they might one day exercise that clause and chop off your hand.

The other party may proceed further with the same argument: “Look, I have been in this business twenty years, and I swear to you that we have never chopped off anyone's hand.” You must remember the one response, and repeat it:

Great! Since you say that you have never chopped off anyone's hand, then you will have no problem removing that clause from the contract.

You must repeat this over and over until it works. The other party is lazy. They just want the contract signed. They don't want to deal with their lawyers. They may sincerely believe that they would never chop off anyone's hand. They are just looking for the easiest way forward. You must make them understand that there is no easier way forward than to remove the hand-chopping clause.

They will say “The deadline is looming! If we don't get this contract executed soon it will be TOO LATE!” They are trying to blame you for the blown deadline. You should put the blame back where it belongs:

As I've made quite clear, I can't sign this contract with the hand-chopping clause. If you want to get this executed soon, you must strike out that clause before it is TOO LATE.

And if the other party would prefer to walk away from the deal rather than abandon their hand-chopping rights, what does that tell you about the value they put on the hand-chopping clause? They claim that they don't care about it and they have never exercised it, but they would prefer to give up on the whole project, rather than abandon hand-chopping? That is a situation that is well worth walking away from, and you can congratulate yourself on your clean escape.

[ Addendum: Steve Bogart asked on Twitter for examples of unacceptable contract demands; I thought of so many that I put them in a separate article. ]

[ Addendum 20150401: Chas. Owens points out that you don't have to argue about it; you can just cross out the hand-chopping clause, add your initials and date in the margin. I do this also, but then I bring the modification it to the other party's attention, because that is the honest and just thing to do. ]

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Thu, 16 Aug 2012

The weird ethics of life insurance
Many life insurance policies, including my own, include a clause that says that they will not pay out in case of suicide. This not only reduces the risk to the insurance company, it also removes an important conflict of interest from the client. I own a life insurance policy, and I am glad that I do not have this conflict of interest, which, as I suffer from chronic depression, would only add to my difficulties.

Without this clause, the insurance company might find itself in the business of enabling suicide, or even of encouraging people to commit suicide. Completely aside from any legal or financial problems this would cause for them, it is a totally immoral position to be in, and it is entirely creditable that they should try to avoid it.

But enforcement of suicide clauses raises some problems. The insurance company must investigate possible suicides, and enforce the suicide clauses, or else they have no value. So the company pays investigators to look into claims that might be suicides, and if their investigators determine that a death was due to suicide, the company must refuse to pay out. I will repeat that: the insurance company has a moral obligation to refuse to pay out if, in their best judgment, the death was due to suicide. Otherwise they are neglecting their duty and enabling suicide.

But the company's investigators will not always be correct. Even if their judgments are made entirely in good faith, they will still sometimes judge a death to be suicide when it wasn't. Then the decedent's grieving family will be denied the life insurance benefits to which they are actually entitled.

So here we have a situation in which even if everyone does exactly what they should be doing, and behaves in the most above-board and ethical manner possible, someone will inevitably end up getting horribly screwed.

[ Addendum 20120816: It has been brought to my attention that this post constains significant omissions and major factual errors. I will investigate further and try to post a correction. ]

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Wed, 21 Jan 2009

The loophole in the U.S. Constitution: recent developments
Some time ago I wrote a couple of articles [1] [2] on the famous story that Kurt Gödel claimed to have found a loophole in the United States Constitution through which the U.S. could have become a dictatorship. I proposed a couple of speculations about what Gödel's loophole might have been, and reported on another one by Peter Suber.

Recently Jeffrey Kegler wrote to inform me of some startling new developments on this matter. Although it previously appeared that the story was probably true, there was no firsthand evidence that it had actually occurred. The three witnesses would have been Philip Forman (the examining judge), Oskar Morgenstern and Albert Einstein. But, although Morgenstern apparently wrote up an account of the epsiode, it was lost.

Until now, that is. The Institute for Advanced Study (where Gödel, Einstein, and Morgenstern were all employed) posted an account on its web site, and M. Kegler was perceptive enough to realize that this account was probably written by someone who had access to the lost Morgenstern document but did not realize its significance. M. Kegler followed up the lead, and it turned out to be correct.

Kegler's Morgenstern website has a lot of additional detail, including the original document itself.

Now came an exciting development. [Gödel] rather excitedly told me that in looking at the Constitution, to his distress, he had found some inner contradictions, and he could show how in a perfectly legal manner it would be possible for somebody to become a dictator and set up a Fascist regime, never intended by those who drew up the Constitution.
But before I let you get too excited about this, a warning: Morgenstern doesn't tell us what Gödel's loophole was! (Kegler's reading is that Morgenstern didn't care.) So although the truth of story has finally been proved beyond doubt, the central mystery remains.

The document is worth reading anyway. It's only three pages long, and it paints a fascinating picture of both Gödel, who is exactly the sort of obsessive geek that you always imagined he was, and of Einstein, who had a cruel streak that he was careful not to show to the public. Kegler's website is also worth reading for its insightful analysis of the lost document and its story.

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Wed, 12 Sep 2007

The loophole in the U.S. Constitution: the answer
In the previous article, I wondered what "inconsistency in the Constitution" Gödel might have found that would permit the United States to become a dictatorship.

Several people wrote in to tell me that Peter Suber addresses this in his book The Paradox of Self-Amendment, which is available online. (Suber also provides a provenance for the Gödel story.)

Apparently, the "inconsistency" noted by Gödel is simply that the Constitution provides for its own amendment. Suber says: "He noticed that the AC had procedural limitations but no substantive limitations; hence it could be used to overturn the democratic institutions described in the rest of the constitution." I am gravely disappointed. I had been hoping for something brilliant and subtle that only Gödel would have noticed.

Thanks to Greg Padgett, Julian Orbach, Simon Cozens, and Neil Kandalgaonkar for bringing this to my attention.

M. Padgett also pointed out that the scheme I proposed for amending the constitution, which I claimed would require only the cooperation of a majority of both houses of Congress, 218 + 51 = 269 people in all, would actually require a filibuster-proof majority in the Senate. He says that to be safe you would want all 100 senators to conspire; I'm not sure why 60 would not be sufficient. (Under current Senate rules, 60 senators can halt a filibuster.) This would bring the total required to 218 + 60 = 278 conspirators.

He also pointed out that the complaisance of five Supreme Court justices would give the President essentially dictatorial powers, since any legal challenge to Presidential authority could be rejected by the court. But this train of thought seems to have led both of us down the same path, ending in the idea that this situation is not really within the scope of the original question.

As a final note, I will point out what I think is a much more serious loophole in the Constitution: if the Vice President is impeached and tried by the Senate, then, as President of the Senate, he presides over his own trial. Article I, section 3 contains an exception for the trial of the President, where the Chief Justice presides instead. But the framers inexplicably forgot to extend this exception to the trial of the Vice President.

[ Addendum 20090121: Jeffrey Kegler has discovered Oskar Morgenstern's lost eyewitness account of Gödel's citizenship hearing. Read about it here. ]

[ Addendum 20110525: As far as I know, there is no particular reason to believe that Peter Suber's theory is correct. Morgenstern knew, but did not include it in his account. ]

[ Addendum 20160315: I thought of another interesting loophole in the Constitution: The Vice-President can murder the President, and then immediately pardon himself. ]

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Sun, 09 Sep 2007

The loophole in the U.S. Constitution

Gödel took the matter of citizenship with great solemnity, preparing for the exam by making a close study of the United States Constitution. On the eve of the hearing, he called [Oskar] Morgenstern in an agitated state, saying he had found an "inconsistency" in the Constitution, one that could allow a dictatorship to arise.
(Holt, Jim. Time Bandits, The New Yorker, 29 February 2005.)

I've wondered for years what "inconsistency" was.

I suppose the Attorney General could bring some sort of suit in the Supreme Court that resulted in the Court "interpreting" the Constitution to find that the President had the power to, say, arbitrarily replace congresspersons with his own stooges. This would require only six conspirators: five justices and the President. (The A.G. is a mere appendage of the President and is not required for the scheme anyway.)

But this seems outside the rules. I'm not sure what the rules are, but having the Supreme Court radically and arbitrarily "re-interpret" the Constitution isn't an "inconsistency in the Constitution". The solution above is more like a coup d'etat. The Joint Chiefs of Staff could stage a military takeover and institute a dictatorship, but that isn't an "inconsistency in the Constitution" either. To qualify, the Supreme Court would have to find a plausible interpretation of the Constitution that resulted in a dictatorship.

The best solution I have found so far is this: Under Article IV, Congress has the power to admit new states. A congressional majority could agree to admit 150 trivial new states, and then propose arbitrary constitutional amendments, to be ratified by the trivial legislatures of the new states.

This would require a congressional majority in both houses. So Gödel's constant, the smallest number of conspirators required to legally transform the United States into a dictatorship, is at most 269. (This upper bound would have been 267 in 1948 when Gödel became a citizen.) I would like to reduce this number, because I can't see Gödel getting excited over a "loophole" that required so many conspirators.

[ Addendum 20070912: The answer. ]

[ Addendum 20090121: Jeffrey Kegler has discovered Oskar Morgenstern's lost eyewitness account of Gödel's citizenship hearing. Read about it here. ]

[ Addendum 20160129: F.E. Guerra-Pujol has written an article speculating on this topic, “Gödel’s Loophole”. Guerra-Pujol specifically rejects my Article IV proposal for requiring too many conspirators. ]

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Wed, 29 Nov 2006

Legal status of corpses in 1911 England
As you might expect from someone who browses at random in the library stacks, I own several encyclopedias, which I also browse in from time to time. You never know what you are going to find when you do this.

I got rid of one recently. It was a 1962 Grolier's. Obviously, it was out of date, but I was using it for general reference anyway, conscious of its shortcomings. But day I picked it up to read its article on Thurgood Marshall. It said that Marshall was an up-and-coming young lawyer, definitely someone to watch in the future. That was too much, and I gave it away.

But anyway, my main point is to talk about the legal status of corpses. One of the encyclopedias I have is a Twelfth Edition Encyclopaedia Britannica. This contains the complete text of the famous 1911 Eleventh Edition, plus three fat supplementary volumes that were released in 1920. The Britannica folks had originally planned the Twelfth Edition for around 1930, but so much big stuff happened between 1911 and 1920 that they had to do a new edition much earlier.

The Britannica is not as much fun as I hoped it would be. But there are still happy finds. Here is one such:

CORPSE (Lat. corpus, the body), a dead human body. By the common law of England a corpse is not the subject of property nor capable of holding property. It is not therefore larceny to steal a corpse, but any removal of the coffin or grave-cloths is otherwise, such remaining the property of the persons who buried the body. It is a misdemeanour to expose a naked corpse to public view. . .

(The complete article is available online.)

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