Tag Archives: law

Omniscience by Contract

Most of this has already happened on Tumblr, but right now I’m the only one with all the information and that needs to be fixed.

There’s a species of monster that can only be harmed by inherited silver. You might recognize it if you’ve read Fool Moon, the second Dresden Files book. Purchased silver has no effect, but borrowing someone else’s inherited silver without owning it does work. (If you think it shouldn’t, just assume that after each maybe-sale it’s the original owner running the test instead. It’ll still depend on the right thing.)

The problem here is that “ownership” isn’t exactly an innate feature of, well, anything. Reality does not include microscopic flags saying “this molecule of chair is the property of Jorge F. Hardoy,” even when it’s true. This is why garage sales aren’t considered a subfield of chemistry. Except that in a universe containing that werewolf, property rights are an intrinsic fact about property. All that common sense stuff goes out the window. (Unless of course the defenestration process might break a window that belongs to someone else. Apparently the universe tracks that kind of thing.)

If it weren’t for the fact that it only applies to things made of silver, this could have all kinds of uses. And we can work around that. It isn’t necessarily clear whether we should care about the opinion of the laws of physics, but everyone would want to know whether the Tree That Owns Itself can actually own things. And does the inheritance requirement track clinical death, legal death, or some other thing? It’d be very weird if it’s the information-theoretic version. These need to be tested.

But there’s one best thing to try. (I wish I could say I came up with it, but someone else did.) We know the Inexplicable Magic Ownership Sensors can distinguish between silver that has been sold and silver that hasn’t. So you write a contract that says the sale only takes place if [literally any statement goes here] is true. If the owner sells it to the user under that contract, then the werewolf can be harmed by the silver if and only if the statement is false.

The limitation here is that it’s not obvious whether such a contract would be valid. You’d essentially be contracting for “one of us owns this, but nobody knows which.” A real-life judge, who can’t see ownership by magic, would have to assign it to someone. And either option would mean it doesn’t depend on whether the arbitrary statement was true. An invalid contract is good news from a self-preservation point of view, but bad news for attaining omniscience.

I asked my Contracts professor this, and apparently when a contract depends on something that is already either true or false (as opposed to something that might happen but is not certain, which is what a “condition” properly means), the actual condition is the verification. If the silver affects the beast, then we know that either the statement is true or the contract was invalid. Yes, this runs the risk of an “it’s invalid because it’s invalid” loop that doesn’t give us any information. But if it doesn’t affect it, then the contract is valid and the statement is false. And if it is possible for the contingency to occur, then the contract is valid. So there’s no risk of that loop after all, and we will find out one way or the other.

Also, the professor—who in addition to being a professor at a top law school is also the sort of person who had to reschedule class a couple times because she was speaking to the U.N.—said it was an interesting enough question that she’d ask some colleagues. I don’t know who, but I assume they’re similarly credible. Anyway, more information!

One source, a Realist, says that this doesn’t work. The plan is assuming that there has either been a sale or there hasn’t. But there isn’t a well-defined answer to that question unless a judge has decided or clearly would decide one way. There’s no Platonic realm of Actual Contractness that affects vampires but not us. (In the first email I got, my professor said vampires instead of werewolves; I didn’t correct that because it’s the same in every way that matters, so that’s what got forwarded. It’s vampires now.) And, well, this Realist point of view is true. Property is a social construct almost as much as money is. But in that case, how does the vampire know? Its skin is detecting something when it decides whether or not to burn, and that probably isn’t “what would a judge say.” Common sense, window.

The other person responding kind of surprised me by saying that the existing legal system is already equipped to handle this. They also included the excellent line, “Is the student unaware of the magical powers of judges?”

This is just an ordinary(ish) case of burden of proof. If for some reason a legal dispute turned on whether Richard III had a severe spinal condition, a judge would listen to historical evidence and testimony from the team that found his skeleton. If it’s the same question about Joe the Random Fifteenth-Century Peasant, the plaintiff would just have a much harder time meeting the burden of proof. Sometimes there are statutes saying what to do if there’s no evidence, like if multiple family members die in the same accident and who gets the inheritance depends on who died first, but having to rule on an undecidable question is a thing that is known to happen.

For our purposes, this is great. It means that whether there was a sale really does depend on the question we want it to.
I’m not actually sure whether this was meant to imply “fortunately, in this case it’s being decided by magic and isn’t limited by what could be proven in court.” If so, we win. But even if the validity does depend on what a judge would say if it went to court, we still win.
If the answer to the question the contract depends on could be proven in court the normal way, then testing the silver on the vampire would just be a really powerful shortcut.  If the answer can’t be determined, and there’s no ordinary evidence, then the burden of proof might be met just by whether the silver affected the vampire. So it still depends on the right thing.
Either way, anyone who inherited a bunch of silver can get any question answered and more or less take over the world at their convenience. They just have to deal with vampires and lawyers to do it.

But don’t go signing these contracts just yet. There are a bunch of pitfalls I ignored here.
—A contractual condition might technically have to be a future event. (The relevant hornbook says this, but two experts said it probably wouldn’t ruin everything.)
—If there’s any ambiguity, an alleged condition will be interpreted as an obligation. For what we care about, this would be bad.
—It smells kind of like a wager, and those aren’t valid contracts according to the Statute of Anne. (Yes, Queen Anne. Yes, that Queen Anne. Yes, this law is from 1710.)
—There may be consideration problems. One of the Actual Competent People mentioned this case.
—It might get interpreted on other grounds, like “both people are acting as if there was a sale, so there was.”
—You have to capture a vampire, and keep it captured indefinitely.

And those are just the ones I know about. These are all solvable if you’re careful and know what you’re doing, but just remember to consult a lawyer before trying any contract-based divination.

One last thing: To keep exams anonymous, students aren’t supposed to write anything that would tip a professor off as to who wrote which set of answers. This hypothetical is pretty identifying. I wasn’t the only person who knew about it, but when I asked it after class the other students present heard me say “werewolves.”
And that is how I got banned by the Student Disciplinary Code from talking about vampires in a Contracts exam.

In Which the Cucumber Gets Unconstitutionally Sentenced to Use a Sippy Cup

Note: All references to legal rules are either U.S. ones or Tennessee ones. This is because at the time that this Silly Song came out, the studio was based in Nashville. And what are the odds that there are TWO towns populated by anthropomorphic vegetables?

Bumblyburg has some really scary legal practices.

The first relevant line in that video was Larry’s, “Spilling soda’s not a crime; if it is, I’ll do time.” He’s factually wrong with that conditional, but it’s just a figure of speech. Nothing to see here.

Cue the judge.

Order! Order, in the court! I judge you the clumsy sort. By the dictates of our law I sentence you to safety straws.

Larry’s entire trial takes about thirteen seconds, counting the ominous pauses. Not cool. He never had a chance to defend himself, and he never got a lawyer or a jury or anything else like that. But the worst part is, what is he even on trial for?

Based on Larry’s figure of speech earlier, this is meant to be a criminal prosecution. He’s not suing the restaurant to prevent them from giving him the titular tableware, and this isn’t an appeal up the chain of command. (Because of course “judge” comes after “maitre d’.” Obviously.) It’s pretty clearly supposed to be a criminal trial. Especially since criminal charges are the only things that actually result in sentencing. I’m not going to say Larry’s sentence was disproportionate to his behavior, but there were some pretty severe irregularities.

Start with the thing that is not a problem: No jury.
Larry doesn’t have a right to a jury in this case. He only automatically gets one if the crime is punishable by six months in prison, which this isn’t. A few states do include that right for small offenses, but Tennessee is not one of them. So, despite appearances, there’s no problem with lack of jury. But there are quite a few problems, any one of which could give him a winning appeal.

Thing One: What were the charges?
Larry appears to be on trial for whether he’s going to spill. If that’s the charge, these proceedings are very questionable. Maybe we could give the Bumblyburg legal system the benefit of the doubt, and assume that a) Spilling soda is in fact a crime in this jurisdiction, and b) they were accusing him of some specific instance of spillage in the past. Or however many counts of it, based on the number of spills since the statute of limitations kicked in. But without the judge saying what he’s guilty of, this is a problem.

Thing Two: Where is the judge getting his information?
The judge just appeared out of nowhere and convicted Larry at the drop of a gavel. Perhaps the judge saw the whole thing and was convicting Larry based on his own knowledge, but that would also be an issue. A judge can never preside and act as a witness in the same case. This is so bad that it is one of the things where an appeals court can overturn the trial even if no lawyer makes an objection. (This is convenient for Larry since he didn’t get a lawyer.)

Thing Three: No lawyer.
Larry should get a lawyer. Period. It’s a criminal charge, so he’s entitled to a defense. There wasn’t a prosecutor either, so at least it went both ways, but that doesn’t exactly help. Larry is just going to accept what the judge hands down, because he doesn’t know there are rules keeping loose cannon judges like this guy in line. There are all kinds of cases about why you need a defense lawyer, what kind of lawyer, how much lawyer, and so on. No lawyer is not really an option, and we didn’t see Larry waive his right.

Thing Four: No actual evidence.
This one is a bad case of prosecutorial epic fail. They have a room full of witnesses and some written records, and they didn’t bother using any of it in the trial. So Larry never got a chance to refute it, let alone offer his own evidence. This kind of undermines the entire point of a trial, and that’s not even an exaggeration. They could have proven him guilty; there was more than enough evidence for that. But they didn’t. Fortunately, there’s another issue: Since it’s not on the record, then when Larry appeals the decision the higher court will see that the lower one used no evidence whatsoever to convict. Could they have done it any worse?

Thing Five: Improper use of character evidence.
What exactly were the facts that the judge used against Larry? None. Just “I judge you the clumsy sort.” This is using a character trait to establish conformity therewith on particular occasions. It’s saying that since he’s a clumsy kind of guy, he therefore must be guilty of spilling on whatever particular incidents he’s accused of. This is exactly how you are supposed to avoid using character evidence, and it’s that judge’s job to make sure it doesn’t get used that way. Fail. Since Larry was convicted on literally no other evidence except this, the appellate judge would have to grant the appeal for this reason, too.

Larry isn’t going to get off on a technicality; he’s going to get off on all the technicalities. Fortunately, he didn’t have to bother with the appeal because a phone call from the governor put everything right.

Thing Six: the pardon.
First of all, a stay of execution* comes from a court, not a governor. Not a hugely important mistake, considering this scans better. What governors can actually do is pardon people. This is good news for Larry; it means that not only does the punishment get cancelled (and permanently), but the crime is officially both forgiven and forgotten. If it ever comes up again, he doesn’t have a record of a prior conviction for spilling.

The down side is that this legal system is terrifying. You can just be minding your own business or trying to convince someone to do you a favor, and then BAM! A judge comes out of nowhere and convicts you for something you didn’t know was a crime. I hate it when that happens to me. The only way out is if the governor personally pardons you within the thirteen seconds it takes for the trial. He probably spends all day waiting by the phone in case he needs to undo this judge’s latest exploit.

The only way it would be worse than having the law enforced hilariously unevenly would be if they actually did apply it to everyone. Any crime of the magnitude of spilling soda or worse is automatically prosecuted and punished with no defense. The only way you can escape it is by knowing the governor. This is not a friendly legal system.

*Execution refers to execution of the sentence, not necessarily to the death penalty. Literal execution was never supposed to be on the table in this case. But then, neither was the grape juice.

Note: I flipped a coin to decide what pronouns to use for the governor, since it’s never specified in the Silly Song. It came up female. But then I realized that if VeggieTales were to have a generic political authority figure, they would cast Archibald Asparagus, Mr. Nezzer, or Madame Blueberry. Only Archibald hadn’t already been shown, so I decided he was the governor and used male pronouns.

Is Aragorn Actually the Rightful King?

Warning: Contains politics.

I was going to write this as a fake court decision because the last one was fun to write, but it turns out that U.S. law doesn’t actually apply in Gondor and their supreme court decisions are only rarely available on the Web. And I considered writing it as “historical” fiction, but then I’d have to write characters. So I’ll just explain it directly.

Aragorn, for the none of you who don’t already know, was the Heir of Isildur, the descendant of the old kings who used to rule Gondor literal thousands of years earlier, and is remembered as one of history’s great legendary heroes. In the volume titled “the Return of the King,” he returned and started kinging. But the book skipped over the bit where that was questionably legal.

I’m not just talking about the fact that history is written by the victors (Although, the book that we call the Lord of the Rings was written by a professional scribe hired by Aragorn and based on notes taken by friends of Aragorn, so there is that.) It’s a little-known fact that someone else had tried to claim the throne of Gondor for precisely the same reasons, and got denied because his claim wasn’t good enough.

A thousand years before Aragorn, King Ondoher of Gondor died without an heir. There was a man called Arvedui, a prince of Men in the North, and when he heard that Gondor was short one king, he decided to go claim the throne. He could do that because he was the Heir of Isildur…sound familiar? The problem was that Isildur had been king of Arnor, a kingdom best known for not being Gondor. His brother Anarion ruled Gondor. So Arvedui, descended from Isildur, lost the throne to a second cousin of the recently dead king. (Second cousin once removed, if you’re keeping score.)

Isildur had actually been high king of both kingdoms for a while, but then he gave Gondor to his nephew, meaning there was a bit of confusion about whether the nephew, Meneldil son of Anarion, was king or regent. In 1945 (Arvedui’s lifetime), the Council of Gondor, the closest thing Gondor had to a Supreme Court, said that Meneldil had been king. And so the throne belonged to the nearest living relative of Anarion’s line. By all accounts Earnil was actually a good king, so happy endings all around. (At least for one more generation until the Witch-King annihilated the kingdom of Arnor in the North leaving only a few Rangers and also rendered Earnil’s successor missing-presumed-dead so that Gondor had no king and was ruled by Stewards. Other than that.)

Point is, according to established precedent, being the Heir of Isildur was not enough to claim the throne of Gondor. But Arvedui had another claim: His wife, Firiel, was the daughter of the late Ondoher, so she should become Ruling Queen. And then he would get to be King Consort or something. This was because in Numenor, the lost ancient forerunning kingdom of Gondor and Arnor, women could inherit the throne, so Firiel should inherit the throne of Gondor. This is rather like if someone tried to make an argument from what the legal system was like in Atlantis. The law in Gondor had not yet been settled, but the Council decided to stay sexist. They installed war hero Earnil instead.

About a thousand years later, Aragorn came by with exactly the same claim. He was the Heir of Isildur, he was descended from Arvedui and Firiel, so he was in the direct line from both Isildur and Anarion, and he was a war hero. Unfortunately for him, those exact claims had already been weighed and found wanting when his ancestor tried them.

The Council had said that Arvedui couldn’t be king, so being descended from Arvedui must not be good enough. And Firiel couldn’t rule, so Aragorn couldn’t inherit the kingship from her side either. He argued that he was the heir of Elendil, who was the father of Isildur and Anarion and king of both nations, but since Aragorn was from Isildur’s side of the family and that side has no claim to Gondor’s throne, that shouldn’t have helped. He got away with it because Faramir took his side (Arvedui definitely didn’t have the luxury of being allied with the Steward), but history ultimately forgot about the sketchy legal details.

Aragorn’s claim was ultimately that he might not have been descended from the kings of Gondor, but he was descended from the kings of the United Kingdom of Gondor and Arnor from before the split. And after everybody accepted that claim, he re-founded Arnor and ruled the Re-United Kingdom of Gondor and Arnor. Historically, that wasn’t a good enough claim (remember, it failed when Arvedui tried it), but let’s assume that it was.

Gondor and Arnor were founded by Elendil and his sons when they escaped from Numenor. Numenor was something like Atlantis: A formerly great island nation that descended into less-than-greatness and eventually sank in unusually impressive display of divine retribution. Only the good guys made it out, led by Elendil, and they founded the newer kingdoms to try to preserve some of the good stuff about Numenor. Even in Aragorn’s time, men of Gondor would always look west before every meal, because they were remembering how much better Numenor was.

So if they were going to accept claims of being related to pre-Gondor royalty, why should they have stopped at Elendil? They could have found an heir of Elros Tar-Minyatur himself, the legendary founder of Numenor from before it was corrupted. All the most noble leaders of Men including Aragorn had nearly pure Numenorean blood, and Elros was the original Numenorean. Elros had been dead for most of human history, but his brother was still around. (His brother was an Elf. Don’t ask.) Clearly the most royal ruler possible would be whoever had the nearest kinship to Elros.

Aragorn was a descendent of Elros. History does not record the exact number of generations between them, but it was at least forty-eight. In the year that Aragorn assumed the crown, there was one nearer mortal relative. Elros’ brother was too much of an Elf to want to rule over Men, but his niece was human. (I said don’t ask.) She was more royalty than Aragorn was, and by ancient Numenorean law she could have inherited the throne.

You might think it’s a problem that Aragorn was a descendent of Elros and she wasn’t, but even he isn’t in the direct line of heirs. (One of his ancestors was a sister of the heir and never inherited the scepter). If Aragorn’s claim was being considered, then it must already be decided that it was perfectly fine for the ruler to be from a line of ancestry that diverged from the original way back in the distant past. And if that was acceptable, then the same logic would lead a bit further and point to a different candidate.

You heard it here first, people: Arwen for Queen!

OK, I should probably explain which parts are serious. All the genealogical facts should be accurate. Any mistakes are actual mistakes. The Arvedui incident did happen that way, but since the Council of Gondor doesn’t work by stare decisis, it doesn’t have to be considered binding precedent. So the present Council can ignore the last one if they want to.

(Although, I don’t remember anything in the books about the Council even being asked to confirm Aragorn as king. Maybe it happened off-page, but if it didn’t happen then that would be a big problem. Seems like a mistake that Aragorn wouldn’t make, so I’ll assume it did happen. If it did, that would entirely take care of the legitimacy issue, so it seems like something that shouldn’t have been left out.)

Aragorn is the best available candidate for king, but if they’re going to be a monarchy then he’s probably not good enough. That’s because he isn’t actually descended from Anarion. It would be like if the British royal line died out and they gave the crown to that guy in Australia who’s descended from an alternative line of succession. Except worse. Faramir was the guy who really had the law behind him if he wanted to rule (only as Steward, not king), but he recognized that having Aragorn on the throne would be the best thing for Gondor anyway. And since Aragorn is awesome and I’m not a strict monarchist, I’m not going to say Faramir was wrong.

About Arwen, well, I don’t actually think she has a real claim to the throne of Gondor. Claim to the throne of Numenor, debatably worth mentioning, (if Numenor still existed), although that would actually belong to Aragorn since he’s at least somewhere on a straight line of descent from the kings of Numenor. Or more realistically, there’s some minor character that we’ve never heard of who is also descended from Numenorean royalty (That describes, like, everyone in Gondor) but from a branch that split off later than Aragorn’s did. My point with bringing Arwen into this is that when you start creatively interpreting the law to allow the result you want, it might go a bit farther than you expect. Aragorn is still the best available that we know of.

Elros is irrelevant to the throne of Gondor and was only brought in because I had to make a case for Arwen somehow. But if you’re going to go back before Meneldil to Elendil, there’s no obvious reason why you couldn’t also go back further to Elros. Aragorn still wins, though, because his ancestry diverged from the relevant kings only three thousand years ago, and that’s more recent than anyone else can prove. He really is the best candidate there is, and Arwen’s family tree is just an interesting bit of trivia.

Of course, anyone who managed to slog through all the names probably already identified the problems with Arwen’s “claim,” plus a few more that I don’t know about besides.

Long live the King!

Sanguine v. Westley School for the Undead

Sanguine v. Westley School for the Undead,  283 F.3d 203.

STOKER, Circuit Judge.

OPINION OF THE COURT.

In this action brought pursuant to 42 U.S.C. § 1983, Vlad Sanguine seeks monetary damages to compensate him for the 2008 decision of the Westley School for the Undead to expel him from high school after he was found carrying a cross to school. Sanguine argues that the School’s action violated his right to expression of religion; the School argues that its action was necessary for school safety.

The district court’s judgement is AFFIRMED.

I. FACTUAL BACKGROUND

In the fall of 2008, Vlad Sanguine was a student at the Westley School for the Undead. On October 30, he came to school carrying a five-inch wooden cross with the inscription “Cathedral of St. John Calvin.” Sanguine testified that he received the cross from a friend and he himself had never been to that cathedral, as he cannot set foot on hallowed ground.

The School expelled Sanguine for bringing a dangerous weapon to school in violation of their zero-tolerance policy. State law encourages such policies, requiring schools to institute procedures that “impose swift, certain and severe disciplinary sanctions on any student” who “brings a dangerous weapon” onto school property, or “[p]ossesses a dangerous weapon” on school property. The parties have stipulated that a cross may cause intense fear to many of the students at the Westley School if they see it, and physical pain on contact.

II. PROCEDURAL BACKGROUND

In April of 2009, Sanguine’s sire and guardian initiated an action on Sanguine’s behalf in the United States District Court pursuant to 42 U.S.C. § 1983. After reaching legal majority, Sanguine was substituted as the plaintiff. Sanguine claimed that his expulsion violated his right to free expression of religion.

The School moved for summary judgement, on the grounds that Sanguine, like many of the more vampiric students and faculty at the Westley School, is a thing of Satan and therefore cannot be a Christian, meaning that the religious belief Sanguine expressed is not one that he sincerely held. The district court granted this motion.

Sanguine appealed this judgement, and this court held that it was in error. The statement that something is “of the devil” is a theological question, which it is not the function of the district court to answer. After the case was remanded, the district court found that while the belief was sincerely held, this is outweighed by the fact that the School’s decision was necessary to maintain safety of its campus. On appeal, this court agreed to review that question de novo.

III. ANALYSIS.

Precedent has established in Tinker v. Des Moines Independent Community School Dist. that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” It is against this background that we turn to consider the level of First Amendment protection accorded to Sanguine’s actions in inflicting a dangerous object on a high school attended by hundreds of students who could have been harmed.

It has been affirmed repeatedly that students’ rights are more limited than those of adults. As Justice Burger wrote in Bethel v. Fraser (478 U.S. 675),

“In New Jersey v.T. L. O., 469 U.S. 325 (1985), we reaffirmed that the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings. As cogently expressed by Judge Newman, “the First Amendment gives a high school student the classroom right to wear Tinker’s armband, but not Cohen’s jacket.””

If a school can prohibit a student wearing a jacket with an obscene message even if that message is political in nature, then it must also be acceptable to prohibit expression of a religious message if that message is itself intrinsically dangerous.

A Westley School disciplinary rule prohibits “conduct which significantly interferes with the educational process.” Similar rules have been upheld in courts (Bethel v. Fraser, supra.) Sanguine’s conduct was in bringing a cross to a school full of children who would be put at risk by it. It is uncontroverted that that religious symbol of self-sacrifice and eternal life causes harm to undead creatures who prolong their own existence by draining others’. Where many of those individuals are students, this would necessarily put those students in danger and disrupt the school environment.

In addition to their duty to educate, schools act in loco parentis. Given this enormous responsibility, and the potentially devastating consequences of weapons on campus, a strict weapons policy can be a necessary measure to protect students. In this case, while the cross was not intended as a weapon, it could easily injure some of the students or disrupt classes by its mere presence. For the reasons set forth above, we AFFIRM the decision of the district court.

(Later) 

Sanguine v. Westley School, Supreme Court of the United States, PER CURIAM.

OPINION OF THE COURT:

Vampires don’t exist. Reversed.

NOTE: Philosophy won’t let me claim credit for all of this, because since I am a lazy person some parts of this have been taken directly from actual court cases (especially Seal v. Morgan and Bethel v. Fraser.) Those parts are mostly ones that don’t involve vampires. Since I am a lazy non-lawyer, this should not be taken as any kind of representation of what an actual court would say. Before bringing a cross to a school full of vampires, consult a lawyer.