The best-laid plans of mice and men go oft awry

Posted: 02 December 2014
Updated: 16 December 2017

Legal ideas and interesting cases

  1. Look at the idea that broad discovery rules expanded substantive rights. I think it may have accelerated them, but that they would have eventually arrived. Plus liberal discovery allows the law to be applied more precisely. If discovery were limited, then maybe automobiles would have become strict liability cases or maybe manufacturers would have very little liability. By allowing discovery, it is possible to find a middle ground.
  2. Moussaoui—lied about his role in September 11, 2001 attacks
    1. Capturing the Friedmans—there were certainly lies in the case
    2. John Mark Karr—lied about killing JonBenét Ramsey
    3. Khalid Shaikh Mohammed—wanting to take credit for lots of terrorism
    4. Should lying lead to punishment—especially capital punishment?
    5. The legal process should detect lies
    6. The effect of not finding the lie is that we waste money on the wrong criminal and possibly even stop looking for the right criminal
    7. Compare to the Iranian nuclear claims. They are lying about their progress and we are facilitating the lie. It could lead to another war or confrontation that is not necessary.
  3. Common interest communities and contracts as ways to enforce and create new rights and responsibilities
  4. The President and maybe some leaders of Congress should be forced to resign if there is a war.
  5. Have university students attempt to build all patents. If they can build them, then the application is specific enough. If they work, then the designs are real. If the item does what is says it will do, then the novelty can be tested.
  6. Compare how arguments and truths are constructed in law to the sciences. I think that the process law uses to discover truth is flawed or inefficient.
  7. To prevent gerrymandering, require that all districts 1) are contiguous, 2) never divide a political district (city, county, MUD) (this element needs work), 3) that all districts have the smallest circumference possible. This is a mathematical function and can be calculated using modern computers. To challenge this in court, the plaintiff would have to show that there is another map where the sum of all circumferences is smaller than the current map.
    1. Preventing gerrymandering would prevent political parties from purposely protecting their districts. It might actually protect some candidates, but at least it would not be because the entrenched parties made it that way
  8. The information structure of the law is a mess. The universe of opinions should be arranged in such a way that it is easy to find. The WordPerfect document sent to the law clerks in the ND Ill by the Chief Judge which lists all of the controlling cases for the 7th Cir. is a perfect example of why this information should be easier to find. There is a lot of duplicative research.
  9. Opinions should be written using symbolic logic. This would allow for the law to have a solid analytical structure. It would also allow each side to use logical analysis to prove or disprove their case.
  10. What actions should the government take?
    1. Monopoly on the use of force
      1. Anything that tends to produce violent self-help is a candidate for government regulation
    2. Collective action problems
      1. Global warming is a collective action problem
      2. Education is a collective action problem
        1. WICKARD v. FILBURN is an example where the people of the US had a real problem (wheat prices in sharp decline due to overproduction), but the solution was not for the government to intervene in the market. The solution should have been easy and cheap access to education. We had too many farmers and we needed to teach most of them new skills. That is essentially what WWII did—it took our farmers and turned them into soldiers, then they went to college instead of back to the farm.
      3. Tragedy of the commons
      4. Burnham 495 US 604 at 627 talks about how the Court can decide to overrule the states. This is a collective action problem. If the states don’t have an incentive to enact a new rule that is truly fair, then the federal government should do it. In our system, the court can make law.
    3. Prevent advantage taking
      1. Tyranny of the majority—minority viewpoints should not be excluded simply because they are minority or powerless
      2. Prevent money or other power from being used to damage others (e.g. indentured servitude)
      3. Managing asymmetry in bargaining power
  11. When talking about the origin and nature of freedoms, rights, obligations, and powers, I should develop two different vocabularies. One to describe those aspects in their “natural” or original state, and one to describe their just, fair, or normative state. Maybe something like this: Actual-Power or Original-Power (e.g. the power to inflict pain on weaker persons), and Fair-Power or UnFair-Power or Just-Power or Unjust-Power (e.g. Fair-Power might be the categorical imperative).
  12. Examine the linguistic role of Just, Justice and Justices. Some people think that the Supreme Court should not interpret the law or apply justice the way they do. I think that is a losing argument until they change the vocabulary. It is silly to say that a Justice should not do justice because the word “jus” means “to speak”.
  13. Language as destiny—to enforce rights, one must use force. So, enforcement of international law is ultimately about force.
  14. Instead of sanctions against a country, what about a law suit?
    1. Establish causes of action, procedures, and damages.
    2. [This sub-point looks crappy) If a judgment is entered against the country, then the various US states can enforce the remedies. If the remedies are money, then the state can impose taxes and duties to collect them (like garnishing wages). These allow the states to still stay engaged. Engagement is better for changing their bad behavior and it also promotes the US economy.
  15. Power is the source of all legitimate action.
    1. The original state was might makes right. The strongest individual acted with impunity. Then a group of people pooled their power together to have more than the individual. This group now made the rules, but if they didn’t cooperate, then their power fell apart and another group/individual could act with impunity. So, whatever agreement they made between each other was the “fair” because it preserved their power. Especially because it preserved their freedom from the tyranny of the individual.
    2. This explains a lot of things we intuitively understand.
    3. I think it explains animal “rights”. The animal has some power and we dominate it. If we treat the animal “correctly” then the animal will not rebel. If we do things that are “wrong” and the animal uses its power to rebel, then we generally think that it was a good response.
    4. It explains why we eventually head towards an equal power government. It also explains why we don’t abuse dead bodies. This is similar to the equal dignity argument, but the equal dignity argument fails because it doesn’t explain why we are so willing to debase the outgroup. The outgroup is not part of the equal power arrangement, so they do not need any respect. This borders on the social contract theory.
  16. The standards used by the SC are all junk. They allow the state to act unless the actions infringe on a right. If the people cannot properly define their rights, then the state can do whatever it wants. I think that the state should only act when it can show it is protecting someone’s rights. This will limit the number of things the state can do. It shifts the burden of proving rights to the state.
  17. Article 31 of the Vienna Convention of the Law of Treaties is written in passive voice so it is not clear who is directed to interpret the treaty in good faith. If it directs the state to interpret, then the court should tend to defer to the state’s interpretation. If it directs the court to interpret in good faith, then it is not important for the court to defer.
  18. Federal law says that procedure does not trump substantive rights in some situations. Does that conflict with Breard v. Greene where the defendant lost a substantive treaty right to a procedural rule?
  19. World Bank loans vs. the interest of countries
    1. When the World Bank makes a loan to a country, they do it with conditions. The two parties make the loan so the country can perform action P. They both think that result Q will come from action P.
    2. If both sides perform the contract but Q does not happen, can the country avoid repayment?
    3. Frustration of purpose?
    4. Mutual mistake? Restatement 2d 152
      1. Mutual
      2. Basic Assumption
      3. Who bore risk R2d 154—the world bank is in a better position to bear the risk
    5. Conditional repayment—read the contract to say that repayment is conditioned on the idea that Q happens
    6. Impracticality R2d 261
      1. UCC 2-615
      2. Completely impossible
      3. Not promisor’s fault
      4. Unforeseen contingency—they expected Q would happen—by definition they was a contingency that neither party foresaw.
  20. Economists use money as a proxy measure for happiness. But, force could also be a proxy measure. It will look different, but it might be more accurate.
    1. Some people will not use force because they think it is moral wrong to use force. So, they would “spend” less force in the “market” on something. The idea is that they should “spend” the amount that they value for the object. Then we can measure the value of the object. If they spend less on the object than they value it, then we get an imperfect measure of the value of the object.
    2. [Not sure what I meant by this:] Potential problem (or improvement): money is not a replenishing resource while force is potentially replenishing
  21. It appears that while there is a big discussion whether standards or rules are better, no one has made an attempt to describe what the elements of a good standard/rule are:
    1. Predictability
    2. Reviewability
    3. Precedential value
    4. Treat equally situated parties the same
    5. To do justice
  22. How do you make just laws in an unjust system?
    1. If the current voting system is corrupt (unjust), then how you we decide if certain laws are just? All of the following types of laws assume that our underlying system is fair.
      1. Term limits
      2. Ballot access
      3. Campaign finance
  23. Punitive damages in tort law
    1. Forcing the P to share punitive damages is a type of double jeopardy. It allows the state/public to collect twice for the same act.
    2. Allowing the state to collect money from a private tort action reduces the incentive for the state to publicly prosecute for crimes.
    3. The state can circumvent higher burdens of proof by going to private torts.
    4. The combination is an erosion of the rights of the D.
  24. Foreign aid—especially the issue of corruption
    1. Corruption can undermine many foreign aid attempts
    2. Instead of fighting corruption directly, try to use it to make the foreign aid more effective
    3. Plus, build in a system that will reduce the corruption over time
    4. Hypo:
      1. I want to build and fund a school in a poor country
      2. Identify the people/roles that must be bribed so that the school can be successful
      3. Make the corruption public—make it clear that we are paying them
      4. Set the level of corruption pretty high—give them a crap load of money and make it very public
      5. The publicity will create competition for those jobs—people will want the job because of the corruption
      6. Have the corruption in contract form
    5. With a large, comprehensive foreign aid package, or if all of the foreign aid organizations are working together, then the political and legal system in the country can be changed
      1. Have all of the corruption rates decrease over time
      2. Link the continued payment of corruption to specific reforms and improvements in the law
      3. Those improvements are ones that will eliminate or reduce all types of corruption
      4. If the targets are not met, then the corruption payments will be reduced or eliminated. Or the payments will be made to someone else. This gives every corrupt official an incentive to make sure the targets are met
      5. Even though the long-term result of the legal reforms would be the elimination of corruption, the short term rewards for the individuals is enough that they will want to make the reforms.
      6. This is similar to how companies continue to compete in a declining market
  25. Legal terms are semiotic. Understanding this will help to choose statutory interpretation techniques that are more valid.
  26. Law is arrogant in that it does not build on knowledge from other fields
    1. Law uses arguments that philosophy has rejected as invalid
    2. Semiotics could contribute to legal interpretation.
    3. Memes could be useful.
  27. Use of “automated agents” to form a contract in e-commerce
    1. The silly interpretation is that the user clicks and sends an offer and that the automated agents accepts the offer based on the programming. ZAREMBA, INTERNATIONAL ELECTRONIC TRANSACTION CONTRACTS BETWEEN U.S. AND EU COMPANIES AND CUSTOMERS 18 Connecticut Journal of International Law 479 (2003)
    2. The correct interpretation is that the creation and publication of the program (the automated agent) is the offer. The user’s click is the acceptance.
    3. To prove this, first deconstruct the “automated agent”. Explain an algorithm. Explain that the offer is really a very complex offer with many conditions. E.g., items must be in stock, no prices were incorrectly input, or the user is in a state that allows shipment of the product.
    4. Then go through case law and show that courts have upheld similar conditions on paper contracts. Then say that it must follow that a paper contract with all of the conditions must be upheld also.
    5. Then say that the difference between a paper contract and an electronic contract with the same conditions is very small, and that it should be treated the same way.
    6. One difference: notice. When the conditions are in paper form, the offeree can see the conditions. When the conditions are in algorithmic for, the conditions may not be apparent. Still, this is not a contract formation issue. It is a notice issue. And, the lack of notice should not burden the buyer (offeree or computer user)–it should burden the party that programmed the computer (the offeror, the seller, or company).
  28. Nuisance cases are distinguished from trespass because trespass requires a “physical object” to enter the land. Blasting cases, for example, allegedly do not involve a “physical object.” Our modern understanding of physics, however, proves that sound only travels through matter, so if there is sound, there must be a “physical object.” The proper formulation may be: trespass creates makes it impossible for the owner to occupy that portion of the land. It is much easier to displace air than it is to displace a fence. This would also make it clear that excessive smoke or “particles” can be trespass—if the “nuisance” is so pervasive that the owner cannot displace all of it.
  29. Tort cases—comparative contribution
    When multiple parties caused the injury, some jurisdictions use joint and severally liable. Other use comparative contribution and only require a tortfeasor to pay for her contribution to the injury. This can leave some plaintiffs un-whole—if one of the tortfearors cannot pay her contribution. This is unfair. Tortfeasors must take their victims as they find them. The most common use of this is the eggshell plaintiff. This principle should apply to satisfaction—comparative contribution should not leave an injured party unsatisfied.
  30. Death penalty cases discriminate against blacks. This is not unconstitutional. McKleskey v. Kemp, 481 US 279 (1987). But, does this violate some federal statutes? Section 1983 or something else? Can one argue that the structure of the judicial systems tends to unlawfully discriminate and that the system must be changed because of the tendency?
  31. Hibel, 542 US 177 (2004) requires people to identify themselves to a police officer. I think this is a possible First Amendment violation because of the forced speech aspect.
  32. Caballes, 543 US 405 (2005) says that cops can use drug dogs during a traffic stop as long as they don’t extend the time of the stop. Can a cop run an instant DNA test on the spot if it doesn’t extend the time?
  33. If American torture violates international law, and if the US won’t prosecute, what alternatives are there?
    1. Any court can enforce international law if the host countries can’t or won’t enforce it
    2. ICJ?

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