Lost and Abandoned Property

I realized in the elevator on the way down here that I’d forgotten to keep my promise to tell you something about the rules involving lost property and abandoned property. Since this is fun and has some instructive value, we’ll do a little bit of that. So, what’s the first rule that comes to mind when you think about lost property? (Finders keepers.) Yes, that’s the first thing you think of. But you must realize that rule only applies if the true owner cannot be found. The true owner who claims his lost property is entitled to it in almost every instance. That’s a good rule, right? Now suppose the true owner cannot be found, and there’s a dispute between two or more people with some claim to it. What are the legal rules? In some cases, “finders keepers” applies. A customer walks into a shop and finds a bundle of cash on the floor. The true owner never shows up to claim it. Now there’s a dispute between the shop owner and the customer who found the cash on the floor. What’s the rule? Well, it’s the customer who keeps the cash in that situation. But there’s a different rule if the cash is found on a table — then it belongs to the shop owner. I ran across another case involving a chimney sweep who found a valuable jewel in the ashes of a chimney. He took it to a jeweler to be appraised. The jeweler kept it, and the chimney sweep sued him. As between the two of them, who gets to keep it? The chimney sweep — that’s pretty obvious.

How about this one: Five boys are walking along a railroad track, just hanging out with each other, and they find a bundle of old clothes with a folded-up sock, and they’re playing with it like a ball, throwing it back and forth. Then the sock bursts open and a large amount of cash falls out. The five of them start arguing: Who has a right to the cash? The one boy who first picked up the bundle of old clothes? Or the five boys who saw the cash fly out of the sock? The court said that all five get to share it, because they discovered the cash; the first boy discovered only a sock, and as long as he thought it just a sock he might very well have thrown it away. (Did the first boy get to keep the sock?) Let me look that up — yes, he got to keep his one-fifth of the cash and the sock to boot.

How about where “finders keepers” is not the rule? An amateur scientist is driving along a road and sees a meteorite streaking toward the earth. He sees it smash into a farmer’s field. He runs across the field and claims the meteorite. Who gets to keep it? The farmer does, even though he might never have known it was there if the passerby hadn’t seen it. The law has a doctrine called “accretion,” which holds that when you own physical land, you automatically own and keep all things that naturally fall on it. When you think about it, that makes a lot of sense. The rain falls on it — you wouldn’t want to give others a right to intercept the rain that a farmer needs. Dirt that drifts onto it, bees and pollen fall on your land. Meteorites fall in the same category — they are materials that fall naturally onto your land, accreting to it. (Does it have to be a natural substance? What about cash falling on the floor of the shop?) Accretion has to do with things that merge into or become a part of the land, as distinguished from objects on it. (Are you truly allowed to keep the rain that falls on your land? You can’t keep the stream that flows through your land. If you collect all the rain on your land, are you obligated to dump it into the stream that goes through your land?) No, you can keep the rain, if you could find some way of collecting it. In Bermuda, for example, all the houses have roofs that divert the rain into cisterns, because they need it for drinking water, since they have no other source of fresh water. So yes, the general rule is that you can keep the rain. There’s an intersection here with the law of trespass. Every time it rains, water from your land dribbles and flows off onto your neighbor’s land. That’s a natural flow that does not involve any initiation of force. But if you collect all the rainwater from your land into a big pipe and send it shooting across your neighbor’s land, so that it erodes his land, that’s a trespass — even though it’s the same water, and the same quantity of water which, if allowed to flow naturally, would be entirely permissible. If you artificially channel it in that way, it’s a trespass.

Swimming pool cleaners are hired to clean a pool. They find valuable rings at the bottom. Do they belong to the cleaners or to the homeowners? They belong to the owner of the pool. So you see, there are a lot of interesting cases on ownership of property, and your law school class on property law often starts out with these, probably because they’re just interesting. The point here is this: These rules don’t so much provide predictability, because you don’t act in reliance on such a rule in going about your daily life — you don’t plan on finding lost property (unless you’re a salvage company, in which case you bone up on the law of abandoned and wrecked property), and therefore you don’t need predictability from the viewpoint of your own actions. If you happen to find lost property, you or your lawyer looks up the rule to find out whose it is. The important thing about these cases is what I said last time: They declare in advance what rule the government must follow, so that the judge cannot act subjectively, capriciously, or with favoritism. He must look at statutes and precedent and decide on that basis. That introduces objectivity into the law.

Family Relations

Family relationships are an important part of life. This is one of things you want to do in life: enter into long-term relations with other people, start families, have babies. Marriage is a type of contract, with many rules that you become subject to if you choose to enter into that contract. The law declares in advance that, if the marriage ends in divorce, what’s going to happen to the property that’s accumulated during that marriage, how it will be divided. We talked before about real property acquired by a husband and wife coming in the form of “tenancy by the entireties,” a type of joint ownership in which neither spouse can sell their half interest without the others’ consent. Neither can one pledge his or her half-interest as security for a loan without the other’s consent. But on the other hand, if the parties going into that family relationship don’t like some of the rules, what’s the name of the arrangement they can enter into, to vary it? A prenuptial agreement. In a prenup, these default rules can be changed around to suit the parties. In Maryland, there was a time, as late as 1984, when prenuptial agreements were not enforced by the courts. They were held to be violations of “public policy” and therefore null and void. What public policy can you think of that the court might have had in mind? (Community property?) Not that so much as — anyone else? (The sanctity of marriage?) Yes, that’s it. The idea is that the law provides financial penalties for the breakup of a marriage, partly as an incentive to keep the marriage alive. If a prenuptial agreement can give the husband a free pass to go cheat on his wife and get out of the marriage with a minimum of financial damage, the idea is that the prenup would undermine the institution of marriage. The state was held to have an interest in upholding the duty of a married couple to stay together — wait a minute, I’ve got to put on the rose-colored glasses here, I’m straying into horror stories. This is just by way of describing what used to be. In 1984, the Maryland courts saw the light and began to uphold prenuptial agreements.

Again, there’s an “off-the-rack” solution for married couples. They can enter into a marriage contract with a very simple signature on a piece of paper. How about same-sex couples; do they have that same option? Not in the state of Maryland. Marriage is defined in the state of Maryland as a union between a man and a woman. In Vermont, they have this same-sex civil union contract. Do you have any idea whether a same-sex couple can achieve the same type of legal protection for their activities that a man and a woman can? (There are something like two hundred and seventy-eight rights you can get by getting married but you cannot achieve by contract. It’s like an astronomical number. Like Social Security, you can’t ever get Social Security.) Okay, well we’ve got to put our rose-colored glasses on — are there any rights that a same-sex couple could not achieve contractually in a laissez-faire society with objective law, where no such governmental entitlement programs as Social Security existed? How many of those two hundred and seventy-eight rights are legitimate rights? I don’t have a final answer on this, but I do know that any two consenting adults can enter into concurrent ownership of property and voluntarily achieve, by contract, the right of survivorship (when one owner dies, title passes automatically to the other, outside the probate system). They can certainly enter into agreements to share their property and determine how it will be divided if their union ends. I don’t have a final answer, but I would suggest that the legal system can approximate — if the system hasn’t quite caught up with a way of doing business or a way of living that people want to achieve, the likelihood is that there will be stopgap measures to fill in until the law gets around to declaring rights in a more modern way. The interesting thing here is, by putting yourself in the position of a same-sex couple who cannot take advantage of the institution of marriage, you see the value added by objective law. Marriage is a great “package” of rights, just like corporation law. Without access to the package, you’re stuck negotiating and agreeing to each separate item ahead of time; such an effort consumes time, so it discourages many from undertaking it. Lawmakers save legal energy by putting together “off-the-rack” legal solutions, analogous to the way clothing manufacturers who stock retail stores are an improvement over a society with only fabric stores that sell bolts of uncut fabric, along with scissors, thread, and sewing machines.

What’s another obvious family relationship? Parent and child. A lot of the consensual opting-in and opting-out is not available here. Why? Children don’t have the capacity to consent. Here again, the law declares its position in advance, through objective law, as to which types of people in society have the capacity to consent to a waiver of their rights. At both ends of life, you have cases of people lacking capacity — either they are too young, or if they are too old they may lose mental capacity, or they may be so dependent upon another person who provides food, shelter, and medical care, to the point where the person could be under duress and be unable to exercise free will, because they are essentially under threat of having their support withheld. So, parents do not have the option, in a prenuptial agreement, to agree that neither parent will have to pay child support if there’s a divorce; the court would have something to say about that, because the child has not consented, and cannot consent, to not being supported by its parents.

Estates and Trusts

Let’s take a minute in the area of “estates and trusts.” Anyone know what a trust is? (One person gives money to an organization to manage it for the benefit of another person.) What’s a situation in which you might want to do such a thing? When might you want to give money to a trustee, to hold and manage for a beneficiary? You might have a child or grandchild you want to provide for, or a spouse, or the Ayn Rand Institute. (It could be for yourself.) Yes, it could be for yourself during your life and then to your children afterwards. What other type of person might you want to benefit? A sibling. What kind of a child might you want to set up a trust for? Do you need it for the trustworthy, productive, level-headed, highly responsible child — or do you need it more for the other child, the wastrel, the prodigal son, the one who has not matured to the point where you can rely on him to manage significant money. You don’t want him to waste it on the first venture that comes along the pike. So you place a sum of money in trust with a trusted friend, a bank, a lawyer, and you set up rules defining how the money can be used. You could specify that the child gets five thousand dollars per year until the principal is exhausted — or, you could specify that all the money is retained for emergencies, with the child expected to support himself in the meantime. (Do you have to define what’s an emergency?) If you want to opt-in to the law’s default definitions of such terms as “emergency,” you can do so. You and your lawyer understand, when drafting the trust document, that the words you use have specific legal meanings, declared by statute and case law over the centuries. Those meanings are not just what you might find in the dictionary. They are highly refined “terms of art” backed up by hundreds or thousands of cases defining what they mean in particular situations. Your lawyer, with knowledge of that background, can choose the precise language that carries out your particular goals. Or, if you have a very particular situation in mind, you can simply describe that in the trust document, and that language will be binding. Here again, the legal system provides a vast menu of choices and options by which to order your affairs. Your lawyer is like the waiter in a French restaurant who has to interpret what the words mean, so you can know whether you are getting beef or snails; the lawyer can interpret the terms of art that may have different meanings from what you assume they have.

Now let’s look at the trustee, who is holding a hundred thousand dollars of your money in trust. Can he take the money and spend it on himself? (It’s been known to happen.) Yes, and I’m handling a case right now against a trustee who did just that. But what duty would you expect a trustee to have toward the beneficiary? (A fiduciary duty.) Okay, the name of the duty is “fiduciary.” But what would you expect that to mean? (He has to spend it for the welfare of the beneficiary, assuming that’s what the trust tells him to do. He can’t put it into speculative investments; he has to be conservative.) Right, there are two aspects to the duty of a trustee. One is to deal with the trust’s assets in the legitimate interests of the beneficiary, and the other is to keep it in the way a prudent person would guard his own assets. If you happen to be a risk-friendly person who likes to take wild investments, and if you lose your money have no problem just starting over, you cannot use that same standard if you’ve agreed to serve as a trustee — unless, again, the trustee is granted that kind of unusual discretion in the language of the trust document. You can vary the standard definition of fiduciary duty. But if you don’t say anything, the law gives certain content to the fiduciary duty. (If you don’t specify what the trustee is supposed to do with the money, and they put it in a savings account that makes some interest. Is the trustee allowed to keep that interest, or give it to the beneficiary?) No, in the absence of an agreement to the contrary, all of the trust’s assets and income accrue to the beneficiary. The trustee is entitled only to a fee, which can be set in the agreement or, if not specified, determined by the trust statute (normally a percentage of the assets of the trust). On the internet, you can find all sorts of documents, and in researching for this course I came across Linda McCartney’s Last Will and Testament (she died in 1998). In setting up a trust for her children, she waived the so-called “self-interested transaction” rule. The general rule is that a trustee cannot transact business in such a way that he benefits in any way. So, for example, normally a trustee cannot form a company and invest the trust assets in that same company, so that he the trustee would benefit. But in Linda McCartney’s will, she opted out of that, she waived it. The trustee of her children’s trust could enter into a self-interested transaction. (Linda McCartney’s brother is the trustee.) Yes, and what would that tell you about why she waived that aspect of the law? She trusts him to do the right thing. On the other hand, if you’re giving the money to a bank to handle, or to a lawyer who you don’t know as well as a relative; in those cases, the law’s default position against self-interested transactions makes sense. (She’s protecting her brother from a lawsuit by the beneficiaries.) That’s true, but if the rule against self-interested transactions had not been waived, then presumably the brother would not enter into any such transactions, and there would be no lawsuit.

Note that when we use the term “duty,” which the law uses a lot, it’s not an altruistic duty, an unchosen obligation to serve your fellow man. You have to choose to be a trustee; it cannot be thrust upon you. If I name Jack as a trustee in my will, and my lawyer shows up at Jack’s door the day after I die and says, “Jack, congratulations, you’re a trustee for Tom Bowden’s child,” Jack can say, “Sorry, I don’t want that job.” Consent, agreement, the judgment of rational people, is present at every step of legal transactions.

We talked about corporations before, and how you might want a “buy-sell agreement” to keep stock in the family. Trusts come in handy for such purposes too. A lot of times, a bank that lends money to a family-owned company wants the voting stock to be put into a trust, with the trustee being a reliable, levelheaded businessman who can be counted on to make good business decisions, not influenced by the petty, non-ssential strife that can sometimes afflict families, and not subject to being voted by family members lacking good business judgment.

So we’ve been talking about all the options you have to order your affairs under the law, in such a way as to make the things happen that you want to happen. Any questions? (I hope and assume that you can set up a living trust with yourself as the trustee and your beneficiary as the secondary trustee.) Correct, you can have a living trust with yourself as the trustee, and then the person you name would be the person who is the beneficiary after you’re deceased. You thereby give that person rights in the trust assets while you’re alive; you can no longer “waste” the assets as you could if you had retained full absolute ownership. The flexibility of this — I’ve just touched the surface of the narrow area of trusts, not even delving into corporations, partnerships, land transactions — the whole law of trusts is a vast area, and there are people who specialize in it for a lifetime.

The law normally talks about “estates and trusts” — what are estates? Generally, they involve what happens to your property after you die. We’re going from cradle to grave here; we started off talking about the personal liberties that anyone has, even a baby: Eat, sleep, breathe, remain free from violence. Now we’re talking about disposing of your property after death. In our legal system, you can decide where your property will go. But first, let’s ask what happens if you don’t make out a will? Is your property put out in the street so people can fight over it? That would be anarchy. What’s the legal approach? (It goes to probate.) Well, I wouldn’t say that. “Probate” comes from the Latin word for “proof,” and it applies to “proving” a written will. A will is admitted to probate for proof that it is, in fact, the last will and testament of the deceased. If it is, then those provisions must be carried out. (What happens generally is that the state determines they are going to get some of it.) You don’t want to wear these rose-colored glasses again, do you? Sometimes the state may get some of the money, but that would not be true in a laissez-faire society, unless we’re talking about minor administrative fees, so let’s leave that aside. If you die without a will, do they just open up the front door of your house and let people take your belongings by force? (The rules set up in the law decide who gets what.) Yes, you are considered “intestate,” which means “without a will.” There are rules for what happens to your property if you don’t designate a so-called “legatee” (one who receives a legacy). The government has preordained rules to go by. A judge cannot say, “Well, he didn’t leave a will, and my brother-in-law needs some new living room furniture, I think I’ll give it to him.” Such subjectivism is out the window when you have clear, firm rules of intestacy. In Maryland, just to take one example, if you die without a will, leaving a spouse and a minor child, each of them gets half of your assets. That’s the rule. If you don’t like the rule, write your will differently. If there’s a spouse, no children, but a surviving parent, then the spouse gets fifteen thousand dollars plus half the remainder, and the parent gets what’s left. If there’s a spouse but no children and no parents, the spouse gets everything. Those are the rules in Maryland. Reasonable people could differ about how those divisions could be made, and other states have somewhat different rules. But whatever state you live in, you can find out what the rules are and perhaps decide not to write a will, if the default rules are satisfactory to you. The state is constrained in making its decisions by the written law. (I worked on a will a couple of years ago, and one of the things the attorney told me to come up with was a list of all known relatives in all branches of the family. Is that part of a standard legal procedure?) It’s not required by law, but it might make sense to do. It would allow the executor of the will to know in advance what individuals are “out there” who might make a claim, valid or invalid. And it would permit the person writing the will to consider the merits of each potential legatee in deciding whether or not to leave them money. Sometimes a stray relative will challenge a will, claiming that the deceased intended or promised to leave him something. If that relative’s name is on a list that was reviewed and assessed when writing the will, a court could regard that as strong evidence against a challenger. The complexities are endless; this is why the services of good lawyers are so valuable.

What form does the will need to be in, to allow the court to have objective evidence of the intent of a person who’s now dead? The law provides specific rules for indicating consent objectively. I ran across an interesting 1910 case called Stinson’s Estate, a Pennsylvania case. In that state, as in most places, the law requires that you sign a will at the end, to indicate your consent to what precedes your signature. That’s the most basic form of consent we associate with legal documents, right? — signing your name at the end. Your signature defines the end of the document and therefore the limit of your consent. If someone comes along after your death and staples another piece of paper to your will, leaving him all your money, that’s an obvious fraud that the courts will not tolerate.

Well in this case, a woman took out a piece of paper and wrote out a will in her own handwriting, a so-called “holographic” will. Holographic wills are perfectly valid, so long as the law’s requirements are observed. She wrote her will on a single folded piece of paper, resulting in four pages whose orientation was like the pages of a book. She proceeded to write her will starting on page one, then skipped to page three, then went back to page two and signed it there. In this case, a challenger asked the court to deny the will’s efficacy because it was not signed “at the end” as required by statute. So, the court faced the following issue: When the statute says “at the end,” does it mean the physical end or the logical end of the document? What decision do you think is proper? (The logical end.) Yes, and in this case, the court made the right decision; it’s the logical end, and the will was enforced.

(I wanted to go back to your discussion of what happens if you don’t write a will, where the money goes. It seems kind of arbitrary how you apportion money; before you get out your rose-colored glasses, I’m thinking it is kind of arbitrary, but if you didn’t have that, you’d just have complete anarchy, because you wouldn’t know what to do with the property.) Yes, the court has to make some kind of a decision in the absence of a will as to how property should be disposed of. Since reasonable people could differ, you come up with a rule that would carry out the intent of most people if they had expressed their intent. Most people want their money to go to their family, so that’s the logical, reasonable thing for the legislature to provide, in the absence of any other agreement. There’s no valid objection, because everyone has the ability to opt out. So, it’s more reasonable that it go to the family than, say, to the state or to strangers. (When my father died intestate, the money would have been divided between the wife and four children, but the four children signed over their portions to my mother, so she was taken care of.) Yes, under the law all the children would have gotten shares, but they realized that the mom had to be taken care of, and so they signed over their shares — consent just permeates an objective legal system. What do you need to do, in order to live? You need to act on your own judgment. What the legal system does, in essence, is to implement consent. It allows everyone to consent to the application of force on themselves and their property in order to achieve their goals.

We talked about seeing the lawyer as the waiter in a French restaurant who interprets the words on the menu. You can sit down and write out a will on your own, but I’d suggest you go to a lawyer, because there are many terms that may have a different meaning in the law from what you might assume. I don’t know that any of you would think to use the term “issue” at all when writing out a will. “I leave all my property to my issue.” Does that term even mean anything to you? To the lawyers it means something. At least in the state of Maryland, there’s a definition of this term. Your lawyer can use the term in the right place, to carry out your intent. In Maryland, “issue” means “every living lineal descendant except a lineal descendant of a living lineal descendant.” In other words, it means your child but not your grandchild — unless your child is deceased, in which case it includes the grandchild. “Lineal descendant” is defined elsewhere in the statute, to include your adopted child, your birth child, your illegitimate children, but not a foster child or a stepchild. Again, that’s what the terms mean in the law. If a particular term does not serve your purposes, you can use another term. All of these definitions interlock, so you benefit from having a good lawyer to write out your will, to make it reflect your desires. The law offers you a toolkit, a menu of options, which taken together are sufficient for you to achieve any proper goal.

George Washington’s Last Will and Testament is a fascinating document, and so I’m going to use it to wrap up our factual section, because it brings into focus some of the different things we’ve been talking about. This was written in 1799. It’s interesting because he didn’t take my advice — he sat down and wrote it without a lawyer. At the end, he says modestly, you can tell that I didn’t use a lawyer, but I hope I’ve been plain enough to be understood. And he was; the document was a model of clarity. But if there’s any dispute, Washington said, I want you to go and get three honorable men to look at it and decide according to what they think I would have wanted, and whatever they decide should have the same effect in your minds as a decision of the Supreme Court of the United States.

First he disposes of his personal property. He leaves mementoes to various people. He leaves his slaves to his wife, with the direction that they are to be freed after his wife dies. He leaves all his personal, physical papers to his nephew, Bushrod. He disposes of his telescope and other items, and after he’s given away all these mementoes, he says: “These bequests are not made for the intrinsic value of them, but as mementoes of my esteem and regard.” So here’s George Washington, reaching out even after death to honor the people with whom he struggled together in building a nation. The one that really gets to me is that he left several swords to different people, the swords he carried into battle. This is what he wrote in his will: “These swords are accompanied with an injunction not to unsheath them for the purpose of shedding blood, except it be for self defense, or in defense of their Country and its rights; and in the latter case, to keep them unsheathed and prefer falling with them in their hands to the relinquishment thereof.” How about that? What a man of honor. As an aside, you can use your will to express to your progeny and the people who are dear to you, what you thought of them. Your lawyer may not suggest it to you, when you have your will written up, but you can say, “I leave a third of my estate to my son, who has given me joy throughout life and who has made me proud of him.” You can leave a bequest to a friend along with an expression of what you think of that person, and why you have included him in your will. So, a will can be a tool for more than just the dry disposition of assets; it can be used in the way George Washington did, to express your affection and admiration for the people who survive you. It’s a way of reaching out from the grave and affecting the living in positive, benevolent ways.

Washington also had certain loan contracts in force at the time of his death, both debts he owed and debts he was owed. In one case, he forgives a debt owed to him by the estate of his deceased brother. He also had shares of stock in various business organizations, and he left those to different people. In one case, he put shares of stock in trust — he took twenty shares of his stock in the Bank of Alexandria and left them in trust to establish a free school, for the benefit of orphans and children of the poor. So, notice: He’s leaving stock in a corporation in trust for the benefit of the children of the poor — you see how he’s using the legal relationships available to him, to carry out his goals and achieve his values. He sets forth rules in the trust, such as: Only dividends are to be paid, with the principal (the stock) remaining untouched.

Last but not least, Washington disposed of his vast holdings of real property: land and buildings he owned. Remember, he started his life as a surveyor, and he was always very cognizant of land as an asset. He acquired land throughout his life in large quantities, in the area where his namesake city was later established.

Any questions on any of the specifics, before we wind up? (Did you ever see Ayn Rand’s will?) No, I never have. It may be publicly available, probably is, because I have heard people talking about what’s in it, but I’ve never seen it. (In order to enforce a law, someone has to file suit; someone has to have an interest, must have damages. Who would file suit if someone used one of Washington’s swords for a purpose that he didn’t allow?) So, if someone used one of Washington’s swords against the purposes he set forth in his will — say, to commit a crime — who would sue? The answer is that’s not an enforceable clause in the will. It’s directed to the honor and good character of that person, in the way of an admonition to be of good character. He gives with them with an “injunction” not to use them for bad purposes, with “injunction” meant not in the legal sense of a court-enforced injunction, but a moral admonition. (When you’re talking about the lineal descendants: If you have five people benefiting from a will, and one of the five says, “You know, that person is not one of the five, is not a lineal descendant, because I don’t believe the paternity is correct.” Now that would be up to that person to prove that the other is not actually the child of the deceased?) Yes, if someone wants to challenge the way property is being distributed under a will, or even without a will, the person who seeks the assets must go into court and challenge it, and there would be an evidentiary hearing to decide whether, in fact, the challenged person is a living lineal descendant of the deceased. That suit could be brought by anyone with an interest in the estate; that is, anyone with an enforceable interest. (So, when you leave things in a will, certain things are enforceable, and other things are just what you would like to have happen, but you can’t legally control it.) Yes, certain things you say in a will may not be enforceable in a will after you’re dead, but the technicalities of that are deeper than we can go into right now.

The Payoff

Let’s wrap up with a mental exercise that allows us to look back on all the different aspects of the law that we’ve looked at: personal liberty, real property, personal property, intellectual property, personal services, business organizations, family relations. What I want to do is project the biggest, most complicated, most difficult project that you could think about undertaking. Then let’s see if the American legal system is up to the task. Are there enough tools in that kit — enough items on that menu — to facilitate achievement of that most complex project? Go ahead and throw out some ideas — I know which one I’m probably going to use, but if you can beat me to the punch, I want to hear it. (A company to send a crew up to some asteroid to mine it.) Mining an asteroid — good, but I think my idea beats you on that. (Dismantle the government.) We’re not going to dismantle this government; we’re going to reform it. (Form a new government.) What I want to discuss is productive, business-type enterprises rather than a political revolution. In other words, I’m talking about the projects we undertake within the context of a good government, which is why we have a government — to allow us to achieve our personal values in peace. (Open a nationwide school system.) Good idea. Anyone else? Think big. (Build a Dyson sphere encompassing the earth and the sun.) Build a sphere encompassing the earth and the sun. (It’s been proposed.) And that would be for what, power generation, or protection from something? (I forget all the reasons, but we would live there.) Ah, a new place to live. (I think it would involve dismantling Jupiter, to get the material.)

Here’s what we’re going to use: We’re going to talk about colonizing Mars, or exploring Mars. Not so much the governmental aspects of setting up a colony, but how do you get there. What are the things you’d have to do in order to explore and settle Mars. What are the activities — not anything legal, but the actions necessary. (You’d have to get investors.) But who’s going to invest in something if you don’t have a plan? You need a plan, an idea. Who comes up with plans? Entrepreneurs, intellectuals, thinkers, scientists. How do they do it? What do they use? Their minds, their brains. When they’re just thinking about this, they’re not necessarily intersecting yet with the person or property of other people. This is the personal liberty aspect that we began the course with. And we’ve seen how personal liberty is protected, primarily by criminal laws. While someone is coming up with the Mars plan, no one can lawfully assault, rape, rob, or murder them.

What’s the next step, after a plan? (Form a corporation.) They need to form some kind of organization, but they obviously know one person can’t do it himself with his own bank account from his backyard, like the Wallace and Gromit movie where the characters build a moon rocket in their basement. They need a business organization so they can start to bring in — what? (Money.) Money, capital. So, they enter into loan agreements and securities agreements to bring in capital. (What if you have a novel idea you want to protect?) Ah, if you have a novel idea on the rocket propellant or the rocket design, you will want to patent those, so you have intellectual property issues. Or, you might want to copyright your plan of action. And how are you going to invent a rocket? Unless you’re superhuman, you’re going to need staff, people who are employees. So, you’ll need contractual relationships with those employees. (You’ll need subcontractors.) But we haven’t gotten to building the rocket yet — we’re still planning and inventing.

So you hire ten designers, and five of them come up with really good ideas on the job; who owns those patents? The company does, under the work-for-hire doctrine that we discussed. So now there’s a corporation in place, staffed with a few engineers, endowed with intellectual property. Now you have to start the physical project of getting to Mars. What do you need? So far it’s operating out of this guy’s basement. You need land and buildings: offices, a factory floor to assemble the rocket, a launch pad, control center — you’ll need land and buildings in different countries. That’s real property. Plus you need goods of various kinds: computers, engines, wiring, steel plate, thousands of ingredients that will be assembled into a rocket. The legal rules governing all these types of property will chart out the paths down which the Mars company will travel in making these arrangements. What else? (Easements?) That’s an interesting possibility: What if your rocket is ascending into space and dropping some debris on your neighbor’s land? You might need to negotiate the purchase of an easement, to permit your spacecraft to fly (at relatively low levels) over their land. What else? What about nuisance: When you locate the launching pad, you’re not going to be able to place it next to someone’s house, because then you’re causing a nuisance where you could get your operating shut down, and you don’t want that to happen. But because you (through your lawyer) know how the legal system will define and deal with nuisances, you can buy land where you know it’s not going to create a nuisance for someone else. You might have to go out in the ocean and buy an island, who knows?

We’ve got the rocket built, we’re testing it, what else? (Insurance.) Yes, well insurance is a whole area of contract we haven’t even dealt with too much. Contracts permeate everything. Anything you want to enter into a contract about, in an objective legal system, is fair game. If there’s not a preexisting path that the law has carved out, you can go off the beaten path and create a new avenue of consent through a unique contract. For example, we looked at the casino deal: They knew that, because of their future plans for a themed transportation system and a recreation lake, there might be future disputes over how they would tie into the casino, and they dealt with that potential in advance, so they would have a set of consents on record before a big problem arose.

We have the rocket ready to go, and we launch it. What about if, in the middle of this, the majority stockholders go into debt and, in order to raise money, they sell their stock to a competing exploration company that then shuts down the project. Do you want that to happen? No, of course not. How do you prevent that? You have a buy-sell agreement providing that, if a stockholder needs to sell stock, he agrees to offer it back to the company, or the other shareholders, at a prearranged price or formula. This keeps the project going.

Here’s the final question: Is there any gap in the legal system that’s going to throw a stumbling block in the way of this most complicated project? Is there anything we cannot do that we need to do? Is there any predictability we need that we can’t get? To go from a plan in someone’s mind to the actuality of settling Mars? (We need to figure out property rights on Mars.) Yes, but that gets into the issue of forming a new country, or colonizing under the American flag, which is beyond the scope of what I want to cover. (Referring to a history of New York I’ve been reading, you look about corporate settlements in New York, the company set the rules; you weren’t worried about creating a new country.) Yes, corporations in the very beginning, before there’s a new country, the corporation may set the rules. I think very early on, if you’re going to colonize Mars, you want it to be a territory of the United States of America.

By the silence, I gather there is no obstacle. You could imagine problems: One of the stockholders becomes ill and places his stock into a voting trust so that it can continue to be voted intelligently for the future of the project. Many eventualities can be covered. My point is this: if we have our rose-colored glasses on, and we’re looking at the virtues of the American legal system, focusing on its many objective aspects, it has all the elements we need to accomplish anything we want to accomplish in life. If you’re that white-knuckle flier who’s constantly worried about turbulence in the legal system, and the crash that’s sure to happen, what you need to do is turn your mind intellectually to the fact that you’re riding in a sleek, complex, efficient, powerful and well-functioning machine that is taking you through the air, and appreciate its virtues even as you worry about the thunderstorm that may be in front of you.

The legal system contains a law or a rule pertaining to practically every situation in which physical force needs to be applied for productive purposes, onto the person or property of another. That’s the chief way we produce goods in a division of labor economy. That’s how we sustain our lives. To the extent the laws are objective, the laws provide clear answers to the constant question: Will my action infringe on someone else’s rights? If the answer is yes, it will violate rights, then the law prohibits the action. We talked about the crime of assault; the law erects, in essence, a red light at that intersection of my person and the other person’s body. But if the answer is no, it will not violate rights, because the application of physical force has been consented to, then the action is permitted by law, and in effect the law places a green light at that intersection. We talked about consenting to a haircut, surgery, or a hug. By declaring its position on all of these issues, the American legal system accomplishes two crucial goals: It declares in advance what the government’s treatment of that case will be, thus making it impossible for the courts to act capriciously or subjectively — and it provides predictability, through rules that allow citizens to order their affairs and make their plans with the assurance that the government will not interfere because they are not initiating force against others.

We started this course by thinking about how many ways there are that we need to consent to the application of force on ourselves and our property, and how many ways others need to consent to our application of force. Just think about if you’re an employee, you go into your employer’s place of business and manipulate all sorts of equipment or machinery that is not your property. How can you do that? Through a consensual, contractual relation with your employer. It’s through such consensual arrangements that the achievements of an advanced industrial civilization are brought into physical reality. As I said in the course description, law is what gives us laser beams and Lexus cars, power plants and Broadway plays, fair trials and philosophical conferences such as this one.

When you walk out of this course, you will need to take off your rose-colored glasses, I realize that. You will have to again submit yourselves to the constant barrage of the headlines, the myriad inventions of nonobjective law that get all the attention. But as you reenter the fight and continue to struggle for freedom in America, what I want you to carry with you is an ability to see our legal system in a new light. I hope you will be able to recall that the system has many virtues that often go unnoticed and unappreciated. When we look to the future, I hope this course helps you to keep your main focus where it belongs, which is on changing the culture — replacing faith with reason, replacing altruism with selfishness, replacing collectivism with individualism and individual rights — these are the big battles. If we can accomplish all that and turn the culture around, then it’s only a matter of time before political power comes our way. And when that day comes, when Objectivists have political power, I submit that the task of reforming the legal system will seem like a piece of cake compared to changing the culture.

All the essential elements of a system of objective law have been invented and are already in place. Yes, they’ve been corrupted and defaced. But the primary task will be repeal: To repeal bad laws, the nonobjective laws that have been added to the system over the decades. Repeal is a simple task, compared to fashioning good law in the first place. What would be difficult is if we had to construct a new legal system, if we had to re-create five hundred years of case law and statutes from scratch. We don’t have that task. We don’t need to build a new legal system. That’s the good news I want to leave you with.

In closing, I’d like you to promise me this one little thing. Occasionally, every once in a while, when you’re out driving, and you come up to a green light — or better yet, when it’s late at night and you come to that string of green lights stretching off into the distance — if you could just take a brief moment to appreciate the American legal system and what it does for you — take that tiny moment to celebrate American law.

Thank you.

We have three minutes for questions; are you exhausted and want to go home? (When you repeal a law, does it stay around in the books? We seem to have libraries full of law, books of cases and so forth.) I think repealing laws will be very, very easy. There are many laws such as the antitrust laws that can be repealed with one stroke. The only problem may come in phasing out some laws like Social Security or zoning, where people have made investments based on those laws being in force, and their lives might be ruined if you repeal bad laws at one stroke. So, you might have a transitional period of designing phaseouts so that people’s affairs are not thrown into chaos by the change. But wouldn’t it be great if that were our problem? (Largely you have case law that’s built up over the years, with one irrational judgment on top of another. How do you deal with that?) How do you repeal bad case law? Most of it is based on bad statutes. If you repeal the statute, that bad case law simply evaporates; it stays, of course, on the yellowed pages of musty books (will digital casebooks have virtual yellowing and virtual musty smells?), but it ceases to be relevant in the absence of the statute being interpreted and applied in the particular cases. To the extent that the law is based in cases, as judge-made law apart from statutes, you may have to simply enact a statute that provides a correct rule, and would supersede the bad case law. You have this tremendous intellectual achievement of the law that cannot die, short of literally obliterating all the texts. We will never lose the achievement of the American legal system: It’s an intellectual creation like Atlas Shrugged. As long as there is one copy left, it will not die. That’s what we can take heart from, is that we have it as a foundation — it’s not going anywhere, and when the time comes to make use of it, it will be there for us. So, let’s just relax, in the sense that we have a lot to build on, we’re closer than you may think to enjoying a system of objective law, and let’s put our efforts where they belong, in changing the culture. That’s not to say that every one of you is not going to battle the legal system in some way, because that’s what you’ve got to do. It’s like when you’re swimming in the ocean, and the undertow takes you to where, when you reach down with your feet, you can’t feel sand under you, and the water’s too murky to see where the bottom is. It would be comforting if the water were clear enough to see that you’re just a few inches from being able to put your feet down onto solid ground and walk to shore. That’s the feeling I want to give you — yes, we may be treading water, even drifting away from shore, but we’re closer to being able to stretch our legs to touch the ground than may appear if all you do is look at the depressing headlines.

So what you have, by analogy, is a series of intersections with traffic lights at each one, each of them showing green. So with the UCC, you get a series of declarations by the government: Here’s how this type of action will be treated. The government declares, Here are the green lights; here are the actions you can take that will not be deemed an initiation of force — and here are the red lights, indicating what you may not do without being deemed liable for initiating force.

Here’s just one other example, before we leave the area of personal property, the property that’s not land or buildings or intellectual property. The UCC has rules on how to deal with checks. Normally, you make it out: “Pay to the Order of” the electric company, or a store, or whatever. But have you ever made out a check to two or more people? In business, it happens a lot. Suppose you’re the owner of land on which a building is being erected. If the people supplying labor and materials to that building are not paid, they are entitled to establish a mechanic’s lien against the building, and have it sold at a court-ordered sale in order to pay their bill. You, as the owner, are responsible to make sure everyone gets paid, because you are getting the benefit of their work in a form that can’t be refunded. If the plumber isn’t paid, he can’t just haul away the pipe he has already installed deep within the walls of the building, so the law afford him a remedy of having the building sold and paying him out of the proceeds of sale. In order to protect themselves, owners pay the general contractor with a joint payee check, made out to both the general contractor and the subcontractor. The check will say “Pay to the Order of: [Contractor] and [Subcontractor].” The Uniform Commercial Code specifies that the bank must not honor the check unless it bears the endorsement of both companies on the back. This puts the subcontractor in a good position, because the general contractor can’t just cash the check and use it to pay someone else. Neither the the contractor nor the subcontractor can cash the check without the other’s consent; this gives the subcontractor legal leverage to make sure it gets paid. This benefits the owner of the project, because a subcontractor who has been paid in full has no right to establish a mechanic’s lien against the owner’s property.

But suppose a check is made out: “Pay to the Order of: [Contractor] or [Subcontractor].” Then how many people have to sign? Only one — if either of them endorses it, the bank can lawfully honor it. Now, suppose the check is made out this way: “Pay to the Order of: [Contractor/Subcontractor].” If there’s only one endorsement on the back, can the bank lawfully honor the check? Yes, because the slash mark (technically, a “virgule”) means “or.” This is not self-evident, so you want the law to say in advance how that mark will be treated. (Do the banks have to go by this rule?) Conceivably a bank could opt out of this rule and establish a different one; but the great advantage of staying with the UCC rules is that you have a tremendous number of cases that interpret what these procedures mean. So you have a much greater degree of certainty about your transaction if you do business under the UCC. Now you could opt out of the UCC and have your own set of agreements with depositors that’s completely different from the way anybody else does banking. You would have tremendous problems integrating that business into the rest of the economy, but theoretically it’s possible. A more plausible scenario is that businesses will have different rules when an industry is in its infancy, and let the market determine which rules best promote certainty and flexibility.

Let me give you an actual court case, involving a check made out as follows:

Pay to the Order of: John Jones

Martha Smith and Fred Smith

How many people have to sign that check before the bank can lawfully cash it? Three? Two? One? It’s ambiguous. A reasonable person could say: “Either John must sign it, or Martha and Fred must sign it.” But another reasonable person could see it as requiring all three individual signatures. Is it self-evident who is right? No. When this case came into court, the decision was that either John could sign it, or Martha and Fred together could sign it, and either would be sufficient. What I want you to appreciate about the legal system is that where a rule is needed, a rule is supplied. You can’t have it both ways, and you don’t want to leave the parties in a state of uncertainty, where they have to duke it out. Once this decision is made and published, then the next time someone wants to achieve this same result, they can make out the check this way with some certainty that the court will interpret it the same way the second time, according to the doctrine of stare decisis, which requires the court to honor prior decisions as controlling the future.

So what you have with the UCC is a declaration of certain general rules, plus — as an add-on, for clarification and improvement — all the different individual cases that present and resolve small ambiguities around the borderlines of those rules. The result is that your lawyer can consult not only the general rules but the case law that fits your particular situation. This is a plug for the role of lawyers, who serve a valuable role in getting you into the more complex areas of the law, to find out what the law is going to be in a particular situation, so the client can be advised in advance. As a result, the law becomes more and more precise over time. A client might come to me and say, “I’ve got a check made out this way; what should I do? Can I cash it or not?” And I might advise him, if he’s John Jones, to go ahead and cash it, and the bank must accept it.

Now I want to talk about a terrific question that Blake Scholl asked me after class, and do some clarification, give you something of a new perspective on what we’ve been talking about. We’ve discussed three categories of action — personal liberty, real property (land and buildings), and personal property — and I gave some examples of questions a good person would have, a person who wanted to avoid initiating force against his fellow citizens. If I own land next to another building, can I excavate the soil and sell it, even if it means the building next door will collapse? The law provides a clear answer: No, you cannot deprive the building next door of its subjacent support. If I’m a husband, can I sell my half of the marital house to my brother, without my wife’s consent? Again, there’s a clear answer: No, I can’t. If I get an order for a hundred computers to ship by July 1, can I accept that offer simply by shipping the order? Clear answer: I can accept by shipping on time. What I suggested last time, somewhat implicitly, I’m going to say explicitly today. The legal system has an answer for just about every question you might have in going forward with your planned activities. That’s good, because it gives you predictability — you can act with confidence, knowing you are not violating anyone’s rights. Under our traffic light analogy, you can “step on the gas” in pursuit of your goals — as long as you have a “green light” of legality, you can move forward with confidence that you will not deprive another of his values without his consent. I talked about the tremendous saving of time, freeing up energy for productive activity, because you don’t have to start from scratch and negotiate an agreement every time you want a haircut or a pack of gum. I also indicated that the law offers a number of default positions that kick in when the parties haven’t agreed explicitly, such as the “gap filling” rules of the Uniform Commercial Code, and you have shipping terms such as “f.a.s.,” which is a term of art with a definite legal meaning. You might think it means “fast and soon,” but what it really means is the seller has to deliver the goods alongside the ship in order to fully perform. And the gap-filling rules allow “f.a.s.” to be read into the contract even if it’s omitted by mistake, by looking at the past dealings of the parties or custom in the industry.

Then the question came up from Blake at the end of class last time, and it’s a good question: What business does the law have, adding value in this sense? Is it part of the essential function of government, or is it beyond the proper function of government? Why does government not leave everybody to their own devices and step in only to retaliate? After all, the essential function of government, its raison d’etre, is to administer retaliatory force against those who initiate its use. It occurred to me that my mode of presentation may have implied in some way that the government is doing us some kind of a favor, the way some people think it’s doing when it operates hospitals and schools — it’s going outside its proper province to create the social value of predictability. So I want to correct any such impression by attempting to relate more closely the crucial logical connection between this predictability on the one hand, and the essential purposes of government on the other. I want to approach this by means of a mental exercise. Let’s imagine a government with no laws. You have a police force, a court system, jails, everything you need except laws. Let’s say there’s just one principle, namely, that no one should initiate force against another person. Now a dispute arises, over a contract, say. The aggrieved party files a suit — of course, you don’t really know how to file a suit, since there are no laws that tell you what form it goes in. But somehow you get the case into court, and the judge goes behind closed doors, takes the evidence, makes a decision, and let’s say he issues a decision that you would agree is correct, reasoning from the basic principle to the result. Suppose further that there are no reported cases, no cases written up and published. So the parties go back to their daily lives. Even though justice was done in the particular case, what’s wrong with this picture? (No information is made available to the rest of society that’s usable in predicting the results of future action we might want to take.) Right — if, for example, the case involved that joint payee check, we would have no guidance about how to make it out the next time. (I don’t understand why that information wouldn’t be made public, in the same way — ) We’re just doing a hypothetical where it’s kept secret, and the point is to imagine a government without all these laws that we’re celebrating in this course. The effect of that is that you don’t have the information you need for predictability. But let’s put that aside. What else is wrong? (We don’t know that any future decision would reach the same just result.) Well, we might know there are good judges and honest policemen, and we have a pretty good idea that they will do the right thing the next time. You’re getting very close. (You don’t know whether the decision was reached validly or not.) I’m asking you assume that it was. (It’s inefficient.) Yes, it’s inefficient and time-consuming, because you have to build from scratch, from basic principles through inferences to the end result; it’s much more efficient to have specific rules in advance. But again, that goes to efficiency in conducting our lives — (The reason this case came to court in the first place, assuming these are reasonable honest people who made this contract, is that it’s a very difficult issue, highly derivative, hard to go from the basic principle of non-initiation of force to whatever the specifics of the case are.) Okay, it’s difficult to get there, which is why you need precedent — but push aside what I’ve been emphasizing up till now, because I’m trying to correct what may be an impression I’ve given, to give you another perspective. (I’m just trying to understand why it is — it seems there’s this emphasis on predictability, but consistency isn’t necessarily a value.)

Let me just make the point, because it’s not self-evident, and this is why I’m bringing it up. Apart from the predictability aspect, I want to look at: What is the role of law in controlling and governing what the government does? What’s the role of law in binding the government to behave in a certain way in the future? To make sure it doesn’t make arbitrary decisions. Without a pre-existing rule that binds the government, isn’t there a tremendous area left open for arbitrary or subjective decisions? The fundamental reason that we need law is to control the government, not to give ourselves predictability. Ayn Rand pointed out that the functions of government, because government has a legal monopoly on the use of force, the functions of government have to be strictly controlled, so that no hint of subjectivism or whim or caprice can possibly affect any of its actions. The government holds a legal monopoly on the use of force in a given geographical area, and its role is to exercise all retaliatory force in the society, but only against those who initiate its use. In my course on “Concretizing the Principles of Objective Law,” I compared the government to a giant computer-controlled robot, sitting out in the middle of Iowa or Kansas, with a tremendous power to exert force on everyone in society — and how is it going to be controlled? What’s the computer program that’s going to control that robot, and who’s going to write the code for that program? We as the citizens have to write the code, and the code has to be objectively based and knowable to all, because it’s controlling the government. And then I analogized the laws of an objective legal system to the computer program that controls that robot, keeping it on the straight and narrow. So, another way of looking at what we’ve been talking about is that every time a new statute is enacted — every time a new court case is decided — the government is controlled more and more. Its options for the future are more limited. It’s more and more tightly controlled, because every statute announces: If this situation comes to the attention of the police or is brought before a court, it must be regarded this way, not some other way. In this case of the joint payee check, if that same situation comes before the court again, it must be decided this way and not the other way. The legal system itself is more and more tightly constrained by the law, as time passes. As a byproduct, we have the tremendous predictability we’ve been discussing. You can separate them for the purpose of analysis; they’re really one and the same thing, one being a byproduct of the other. The more essential element is that the law binds the government. (Of course, this principle applies only when each new law or case satisfies the requirements of objective law — if you multiply nonobjective laws, then the effect is reversed, and government’s actions become less constrained and more arbitrary.)

It’s for this reason, I think, that we should welcome the tendency of the government to enact laws on new and emerging situation, such as new technologies. There’s a new uniform law that’s being enacted by states all across the country regarding electronic transactions over the internet. When a signature is required on a deed, will an electronic signature be recognized by the court as equivalent to an ink signature on paper? Without legislation, the fact of emerging technology could lead to a lot of ambiguity, with one state making a decision that it’s equivalent, and another saying it’s not. The legislature steps in and declares in advance: We, the government, are going to decide these cases this way. If you come to us with a deed bearing an electronic signature, assuming it meets the specified standards, we are going to consider it a valid signature. That eliminates the possibility that a judge, reasoning from more general principles, could decide the case the other way — and as a byproduct affords us the predictability we need in ordering our affairs. (Could you talk a bit about the value of having individual states with their own laws that might conflict from state to state? It seems to me we have federal laws and state laws, but they don’t always match. Is that valuable?) I haven’t done a lot of original thinking on that. Certainly historically, that’s the way it grew up, and that’s why we have it. Is there a good objective reason for keeping it? I think so, probably, because as long as all the laws are objective — which means, aimed at protecting individual rights — what you realize as soon as you get out into the real world is that reasonable people can disagree about a number of solutions, all of which are within the ambit of individual rights. There are different ways to protect rights, different solutions. What happens is that the states can try different things, and — this sounds pragmatic — and “see what works.” We are not omniscient. It could be that certain solutions to problems are more practical than others. It’s difficult sometimes to predict. When you are engineering a new machine, you plan it out on paper and predict how it’s going to behave, based on your past experience — but then when you build it and hook it up to a power source, you may find that it oscillates in ways you hadn’t predicted, necessitating a redesign. So, I tend to favor the continuation of a federal system — not like the current approach, with states denying rights in various ways, but all states protecting individual rights in different ways. (It just occurred to me that this might undermine objectivity in the law, if there are explicit definitions of things — ) It’s a good point — the existence of the laws of fifty states can undermine objectivity, especially when a company is trying to do business nationally, and it has to keep track of the laws of all fifty states. Of course, that’s a nightmare today, when you have nonobjective law running rampant, with the states competing as to how deviously they can infringe on people’s rights. Wait a minute — I need to put on the rose-colored glasses. I needed that. Again, we’re looking at the virtues of the system. And this whole course, by the way, assumes that all of the laws we are discussing are, in fact, protective of individual rights. So, if you feel that one of these is debatable, and you believe I’m using a bad example, something that really isn’t consistent with individual rights, please push that aside for purposes of getting the message of the course. My intent is to give you cases and laws that really are consistent. I’m kind of torn between pedagogy and accuracy. If I were going to be completely accurate, I would bring in ten cases of breach of contract where someone didn’t pay his bill, and the other party went to court and collected it. That’s the legal system doing the right thing — but it’s boring. So I’ve tried to bring in more unusual or interesting cases, but then they sometimes have more complexity, or cloud the issue, or are more on the borderline and raise issues that are extraneous to the course. That’s why I brought up the Luray Caverns case the other day, because I wanted to deal with trespass; but that case had a number of other aspects that were just confusing, and it really didn’t make the point I wanted to make.

So, to sum up, when the Oregon legislature comes up with a form for consenting to assisted suicide, that’s not just giving us predictability as some kind of “extra service” beyond the proper function of government, the way the government might open a school or hospital. That’s the legislature binding the courts, so that when a prosecutor comes in and says, “This doctor murdered his patient,” the doctor can wave this consent form in his face and say, “This is a complete defense; I did not murder my patient.” That doctor can be sure he won’t be prosecuted, because the government is bound by that law. There could be reasonable disagreements as to what a proper consent to assisted suicide should look like. In the absence of that law, the doctor might come in with a letter in the patient’s handwriting, saying “I want to commit suicide, and I request the doctor to prescribe a lethal dose of medication.” A judge and jury could then hear witnesses testify about the deceased and his intent. You might get the right result — or you might not. The doctor might be convicted or murder, because there exists a range of options in what constitutes “enough” evidence of consent, and the judge might rule that the handwritten letter falls short. It doesn’t necessarily mean the court is corrupt. You’re trying to minimize, to the point of elimination, the possibility of subjectivism and variability in judicial opinions.

Intellectual Property

Let’s continue our whirlwind tour of the American legal system, touching down like a tornado at various trailer parks along the way. We’ve dealt with personal liberty, real property, personal property, so let’s move on to intellectual property. Everyone knows the basics of intellectual property: You have copyrights, patents, and trademarks, plus your good reputation is part of your intellectual property. You realize that there are federal and state laws that set the rules. So, in the area of copyright, for example, the law deals with each aspect of getting copyright, from how to apply for it, to what you have to show in order to defend your copyright in court. There are all sorts of potential ambiguities in these questions that are worked out, in advance, in the statutory and case law, so that the margin for error is slim and getting slimmer every day. For example, suppose you are an employer whose employee has come up with an original musical composition written in the course of his employment, during his regular working hours. Who owns the copyright in that? The employer owns it, because it’s a work made for hire. That’s the position the court must take, if it comes before them, in the absence of an agreement to the contrary. If you present the judge with a written agreement that the composition is not a work for hire, then it’s the employee’s work, and he has the copyright in it. So you have this tremendous ability to opt in, opt out, change the procedures. But you have certain well-traveled roads at whose intersections the government has erected traffic lights to tell you what you can do without initiating force against others, and what you must not do lest the court find you liable for initiating force. You can make your own arrangements, and there may be — and I’m drawing a picture of a curving road with intersections that come up around blind corners, where there’s no traffic light — situations where there is no specific law or case that applies. You can set off down a path that has not been trod before, by consenting to various new types of legal relations — but you take the risk of uncertainty as to how the government will view your actions and agreements. We’ll get to that a bit more when we talk about corporation law.

Let’s discuss an interesting case in the area of copyright involving music by Igor Stravinsky, The Rite of Spring. Anyone seen Fantasia, the Walt Disney movie? Well then, you’ve heard The Rite of Spring, because it’s the music that accompanies the dinosaur death scene, where the sun gets very hot, and the dinos start dragging, and eventually you see their bones, and they’re gone. This case involved the copyright to that music, which Stravinsky originally owned but assigned to a company. Disney then came to this company that held the rights and said, We’d like to use this music in an animated feature called Fantasia. Disney paid six thousand dollars for a license that permitted Disney to record the music, in any manner, medium, or form, for use in a motion picture. The piece could be used throughout the movie or only in parts of it. The piece could be chopped up, rearranged, adapted, or even retitled. A further condition was that the movie be exhibited in theaters having valid licenses from the American Society of Composers, Authors, and Publishers (ASCAP). Stravinsky’s copyright holding company reserved all rights that were not specifically granted. It may be of some interest to you that his original thirty-four-minute piece was shortened to twenty-two and one-half minutes for the movie, and it was rearranged — so what you hear is not the original Rite of Spring. The movie came out in 1940. It was shown in theaters and re-released seven times in theaters prior to 1991. So far, no problem with copyright.

At this point, however, Disney decided to release the movie on videotape and laserdisc. The Stravinsky interests came to court and said, You don’t have the right to do this; we didn’t grant you this right. We granted you the right to use this music in a motion picture that would be displayed in theaters. Videotapes and laserdiscs are different — people buy those, take them home, and play them time after time without paying any more money. That is a different type of entertainment medium than we contemplated when we sold you the license. Of course, back in 1939 when they negotiated this agreement, nobody had conceived these new technologies, so they didn’t write anything in the contract about it. Nevertheless, when the case came to court in the 1990s, one party or the other had to win. Which would it be? The court had to make a decision. The court looked at two basic schools of thought. One approach held that a grant of rights in a specific medium like motion pictures includes only those uses that fall within the unambiguous core meaning of the term, namely exhibition in motion picture theaters, and does not extend to new technologies like televising or videotapes. Another approach held that permitted uses include whatever uses can reasonably be said to fall within the medium as described in the license. The Stravinsky interests argued that it had to decide in their favor because artists are normally poor and struggling and lack the leverage that the giant corporations have. The court rejected that egalitarian appeal and said, Let’s just use neutral principles of contract interpretation. The court decided in favor of Disney, holding that Stravinsky would have needed to insert some kind of language of limitation if he wanted to forbid the movie from being sold in a new format. The court said it’s the same movie, just in a different form. As for the clause requiring that the movie be exhibited in theaters with valid ASCAP licenses, the court took evidence and found that clause inapplicable because, over the years, even prior to the invention of video technology, that industry practice had ceased, so it was no longer necessary to show the movie in a theater with a valid ASCAP license. How many people think that decision is correct? A few of you. How many think it’s incorrect? We have a division of opinion. I think a reasonable person could decide either way on it. The point, though, is not to obtain a plebiscite on this particular case but to observe that, after this decision, the law is now clearer than it was. In the future, you can write your contract to include a clause that deals with new technologies, and in fact that is very commonly done today. You can have a broad, blanket clause that says, We’re buying the rights to use this copyrighted work in any new technology whatsoever. The other thing is that the next time this kind of case comes to court, the court will tend to decide it the same way if the facts are similar, based on stare decisis. So we see the government being more tightly controlled, hence more predictable, than it was before the case was decided.

Another quick example in copyright of the government doing the right thing: Every time you have a successful author, it seems like they’re some parasite who comes out of nowhere and accuses the author of plagiarizing the outline of the novel he wrote twenty years ago, and asks the court to award a share of the millions of dollars that the bestseller earned. This particular case (Glanzmann v. King, 1988 U.S. Dist. Lexis 15705) involves Stephen King’s novel, Christine. The novel features an evil, haunted 1958 Plymouth Fury that menaces people in typical Stephen King fashion. The lawsuit was filed by an Air Force sergeant stationed at Cape Kennedy (now Cape Canaveral) whose job was to clean and restore recovered nose cones. He wrote a short story in his spare time called “The Side Swiper.” The story begins with the protagonist, Jeff Berger, sideswiping a parked car, then finding that the Corvette he was driving remained miraculously undamaged. “The next night he sideswipes a car and kills a man,” the court continues. “this excites him. He continues to run down random people with his Corvette. All this is told . . . with little detail or suspense. Ironically, Berger is killed by a hit-and-run driver. The psychiatrist who is narrating the story then inherits the Corvette, implying that the killings may continue.” That’s the story written by the Air Force sergeant. Then the court goes on to examine King’s novel Christine for pages and pages. “Stephen King’s Christine is an intricately developed, suspenseful novel about a car named Christine with supernatural powers,” the court’s decision states. “One of Christine’s main characters is Arnie Cunningham, a typical high school nerd with acne and no athletic ability who’s obsessively drawn to Christine, a 1958 Plymouth Fury with big fins.” The written decision goes on to quote purple passages and prose featuring Stephen King’s incomparable ingenuity, motivation, details and surprises, in such a way as to make utterly ridiculous the claim that Stephen King stole anything from “The Side Swiper.” At the end, the court says: “Plaintiff’s style clearly lacks the vivid, expressive style of Christine and instead is terse, grammatically incorrect, and artless. Although there exists minor similarity in ideas, there exist no similarities in expression.” And the court just throws out the case. (Glanzmann then took a frivolous appeal for which he had to pay King’s court costs.) So here’s an example of the court doing the right thing. And the courts are doing the right thing all across the country, across the board, in many cases as we sit here today.

Personal Services

Let’s continue to cover the waterfront, so that we hit briefly on every type of activity we could possible need to undertake in order to sustain our lives. Let’s discuss personal services — we want to trade our labor, our work, with others. What are some of the legal relations we can enter into, to trade our labor for something we value? Employment, obviously — you become an employee, enter into an employer-employee relation. When you do that, the law provides a wide range of rules that govern its decisions when confronted with a problem involving such a relationship. You’re an employee for Company A, but in the nighttime you moonlight for Company B, which is a direct competitor. Can you do that? Reasonable people could differ. On the one hand, it’s a free country; it’s your life, and if you want to work for another company in your free time, it ought to be your right to work for a competitor. It so happens, however, that the default position is that the law requires a duty of loyalty. If you are an employee of Company A, you cannot work for Company B against your first employer without its consent. Company A can permit you to compete, but the default position is that you cannot. (What if the two companies are in different industries and don’t compete?) Then the law says, it’s a free country and you can work for anybody you want.

If there’s a breach of the employment contract, either party can go to court and seek damages. What if you own a casino in Las Vegas and Barbra Streisand promises to come on New Year’s Eve of 2002 and sing for your customers? You have a binding contract. But the day before she’s due to arrive, she says: Sorry, I’m not coming — I got a better offer from Caesar’s Palace. What can you do? You can sue, but can the court order her to come and sing at your casino? Who says yes? How is the court going to do that? Suppose the court orders her to sing. In some contracts, the court can order a party to perform its side of the bargain. That’s called “specific performance” as a remedy. But can you really make Barbra Streisand sing, and sing beautifully enough to entertain your customers, when she doesn’t want to? Won’t she resent being there? And won’t that affect her performance? No, the specific performance doctrine does not normally apply to personal service contracts. The court will not normally make you come and perform because you can’t force a mind. You can force a body, by taking money out of a bank account to pay damages, or you can require a party to sign a contract to sell a house if they have broken a promise to do so. But there is something else the court can do that has an effect on her body, and on where she will be on New Year’s Eve. The court can prevent her from performing at Caesar’s Palace — you can get a court order called an injunction, which enjoins (prevents) her from singing for your competitor. You don’t want your competitor getting all the customers you were hoping to get. Bottom line: There are myriad rules that define the rights of employers, employees, independent contractors, retailers, professionals, and other people who trade their services and their labor.

Business Organizations

Let’s move on to the topic of business organizations. Suppose you’re Barbra Streisand — you’re very talented. You sing. You enter into a contract to sing. It’s a very simple thing; all you need is yourself in order to perform. But you’re also Barbra Streisand, the creative person, bubbling over with energy to undertake more projects: say, making movies. Can she make a movie with only her own talent and bank account? She can’t. She needs what? — to organize the effort to make a movie? She will need to finance it, get producers, hire actors, a director, screenwriters, lighting — so this is a big project. How is she going to organize that effort? Does she want to run all the money through her own personal bank account, the same one that she uses to pay her home mortgage? Will she want her own assets exposed to creditors if the project fails? No. She’ll want to form a corporation that can be financed, and if the movie fails, she’s not personally liable for the debts. As soon as she opts into the corporate form, she takes advantage of the corporation laws that govern the many relations between the stockholders and the board of directors — between the board of directors and the officers — between the officers and various employees — between the creditors and the corporation. Now, with all that corporate law in place, you can answer the following question if it arises: What if the company’s ten stockholders come onto the movie set one day and start telling the actors how to act? After all, they’re the owners. “I’m one of the owners of this movie company — you there, stand over to the side, you look better in that light.” And the director says, “Wait a minute, you don’t have any right — ” “But I’m one of the owners.” Or, suppose an actor shows up at the shareholders’ meeting and says, “I vote to get rid of this director; he has no talent.” But wait a minute — he can’t vote at the shareholders’ meeting — or can he? The answers to these questions are not self-evident; the rules have to be declared. What is a corporation? How does it work? What are the rules that govern it? When you form a corporation, what you get is this tremendous body of law that sets forth the rights of all the different people in this organization, so that the government, in essence, creates this string of green traffic lights that facilitates action. You know the feeling you get when you’re driving home at night, you’re tired, and you’re on a side street and then turn onto a main boulevard — and before you what you see is a string of traffic lights, all of them green, stretching out into the distance, and as you drive homeward you discover that they’re timed in such a way that if you keep your foot on the gas at a moderate speed, the lights are green for you all the way. It’s a feeling of comfort and ease. That’s the emotional equivalent of entering into a legal relationship where the parties’ rights are clear — the red lights and green lights are clear, and you can proceed from the idea for the movie, to executing the idea, to finishing it, with the comfort and knowledge that the legal rights of the parties are clear.

Most corporations are not General Motors or some giant enterprise, but rather they are small businesses and family corporations. You know how families can get on each others’ nerves. The business may consist of the dad, two brothers, and a nephew who own the stock of a company, and each one owns twenty-five percent. Normally, if you have stock in General Motors, you can sell it to whoever you want. But if you’re the dad, and you’re setting up this family business, do you really want your son selling his twenty-five percent to his drug-dealer biker friend to pay his dope debt? No. You want to keep the corporation in the family. The default rule in corporation law is that you can sell your stock to anyone. For this reason, people enter into so-called “buy-sell agreements.” These provide that if you cease to be an employee of the company, you must sell your stock back to the company at a preordained price. Just to give you an idea how this works, I offer a 1964 case called Jones v. Harris. It actually starts back in 1953, when the plaintiff took ten percent of the stock in a radio-television business. This is at the dawn of television, and it’s kind of like the internet in the 1990s — no one knows where it’s going to go. This plaintiff entered into a buy-sell agreement providing that, when his employment terminated, he had to sell the stock back at book value. Book value, under that state’s corporation law, meant the value of the corporation as shown on the books of the company. That’s often substantially less than the company might sell for on the market. In 1958, this plaintiff’s employment terminated, but he balked at selling his shares back at book value. Ten percent of the book value would get him twenty-six thousand dollars, whereas ten percent of the market value would get him two hundred and fifty thousand dollars. So he said, I’m not selling the stock back; I’m going to court, because I want the two hundred and fifty thousand. What do you think the court said? That’s right — you’ve got your rose-colored glasses on. The court did the right thing; it said, in effect, “you agreed to sell it back at book value, and so you’re stuck with twenty-six thousand dollars. Get used to it — get out of court.” Is this anti-climactic? Are we disappointed because we don’t have an interesting twist in the law? The court did the right thing. And many times every day, the court does that.

Has anyone been to Las Vegas? Anyone been to the Monte Carlo? A few of you. This example involves the creation of the Monte Carlo hotel and casino, from nothing but an idea. It starts with a vision, some capital, and some land. What I’m holding in my hand is the joint venture agreement of Victoria Partners, the organization that created the Monte Carlo casino. This is the way it started, with this contract. You can go on the internet, if you’re so inclined, and download many different legal documents, including contracts such as this one, involving interesting ventures you may have heard of. This is a sixty-five-page contract between two joint venturers. What’s a joint venture? It’s a type of partnership between existing entities. In this case, a corporation and a partnership came together to form a joint venture. There’s a whole separate area of the law, with strings of green lights and red lights, that defines how joint ventures work. One of the first things this contract says is that the Partnership Act of the state of Nevada governs the agreement. That Partnership Act has a series of rules and case law to guide the interpretation of this contract, which contains thousands of terms, each of which has a specific legal meaning that’s been set forth in statutes and refined in cases that can be looked up, and that have been looked up by the lawyers who drafted this agreement. A company called Mirage contributed the land (it had torn down an old casino and had a vacant lot). Another company called Gold Strike came in with thirty million dollars in cash. Gold Strike promised to use its money to construct the building. To accomplish that, a complex matrix of contractual relations will be necessary. The owner of the project will be the joint venture, which will hire an architect to design the building, a construction manager to give overall direction to the construction process, and a general contractor to actually undertake the construction. The general contractor, in turn, will enter into subcontracts with other companies for masonry, plumbing, electric, drywall, flooring, and the like. Then all of those subcontractors have contracts with their material suppliers, and with their laborers and other employees. Not to mention the financing, which involves another web of contractual relations. In the joint venture, the parties waived their rights to seek a judicial partition of the land. Remember we talked about how joint owners of property have the right to partition, which involves dividing the property in half physically, giving separate title to the owners. No one wanted that to happen, so they adjusted the default position to eliminate that possibility. The “off-the-rack” law gave way to a “custom-tailored” approach. The lawyers are like tailors who custom-fit the law to meet the expectations and goals of these particular entrepreneurs. The contract states how the profits will be shared. It provides that the joint venture will automatically dissolve if the project isn’t underway by a certain deadline. It makes clear that the joint venture has no rights in Mirage’s trademarks — remember our discussion of intellectual property. Mirage has a certain reputation and trademarks; just because Mirage has become a joint venturer, that doesn’t give the joint venture any right to capitalize on its reputation beyond what the contract provides. There’s a themed transportation system for the casino; if Mirage builds a resort nearby, Mirage is obligated to connect the resort to this casino, supplying an obvious economic benefit. But there’s another clause stating that if Mirage builds a recreational lake, Mirage is obligated to give serious consideration to making that lake available to Monte Carlo patrons, but there is no absolute obligation to do so, as there was with the themed transportation system. So as they go forward, these parties have some confidence that their promises will be understood by the court and enforced by the court, if necessary. I pulled off the internet the tax assessment list for Clark County, Nevada, and as of 2001 the Victoria Partners Monte Carlo Hotel and Casino was the twelfth most valuable property in the county, with an appraised value of three hundred and twenty-eight million dollars. That’s from the initial investment of thirty million dollars and that which was added to it in financing and development effort. What I’m trying to get across here is the liberating effect of the legal system in allowing projects like this to be created and go forward.

All this was by way of background. Now we’re going to go into the types of activities we need to undertake, to sustain our lives. Let’s start by reminding ourselves what individual rights are. I’ll quote from Ayn Rand, a couple of passages that get to the breadth of what I want to address here today: “Rights are conditions of existence required by man’s nature for his proper survival. If man is to live on earth, it is right for him to use his mind, it is right to act on his own free judgment, it is right to work for his values and to keep the product of his work. If life on earth is his purpose, he has a right to live as a rational being; nature forbids him the irrational.” (“Man’s Rights”) In another passage from that article, she states that the right to life entails “the freedom to take all the actions required by the nature of a rational being for the support, the furtherance, the fulfillment, and the enjoyment of his own life.” You cannot get any broader than that. So, if that sets the standard, then I want you to think about as we go along: Does the legal system live up to this standard? Does the legal system facilitate our undertaking all the actions required by a rational being for his survival over the long term? Are there any gaps in the legal system that stand in the way of our pursuit of the most complex and challenging goals that we can pose for ourselves?

Before we get to outer space and the most complex projects, let’s start a little more basic. As we move about in our daily lives, we need to have an answer constantly, every second, to the basic question: Will the act that I intend to take infringe on the rights of others? Will it involve the initiation of force against others? Because, as we said in the traffic light example, we are all good citizens. This is the other advantage of the rose-colored glasses: we’re not only abstracting away from the vices of the legal system, but from the vices of people in society. We’re looking at the ideal society and saying: If we’re living under a legal system, how does it help us, the rational, the productive, the ones who do not want to initiate force against others? So, the traffic light helps us — it stands for the intersection of our actions with the persons and property of others.

Personal Liberty

What are the actions required by a rational being for his survival? Let’s start at a very basic level. Can we think of actions that don’t require us to come in contact with the person or property of others? Sleeping. Eating. Thinking. Talking — there, you’re getting into a borderline where — this is an interesting theoretical issue — the fact that talking actually unleashes physical force into the environment and on other people, and there are situations in which noise, such as talking, can be an initiation of force. Let’s leave that for later. Anything else? Reading. Breathing. Walking or exercising on your own property. It’s a fairly short list, but it doesn’t get you very far. It’s all necessary, but these solitary actions don’t represent the complete menu of actions that we need to undertake to sustain our lives.

If you look at these activities from the perspective of the legal system, you will not find a law that says you have a right to sleep, a right to eat. (With the exception of the Constitution, which says or should say more clearly — that you have a right to life, liberty, property, and the pursuit of happiness — but you won’t find a particular sleeping statute that says you are permitted to sleep. Why is that? You don’t have a green light, in other words. (I would think that it’s because it’s implicit in the right to life.) Yes, but there’s no law saying you can or can’t do it because — to have a law permitting you to sleep would imply that you sleep by permission, that you eat by permission. The fact is that you have a right to do anything so long as it’s not prohibited. And prohibitions come into play only when your actions intersect with, impinge upon, the person or property of others. So, you should not have laws until the exercise of your personal liberty intersects with the person or property of another. What kind of laws do you have when that starts to happen? What laws do you have when your intended actions start to impinge on someone else? What’s the big category you think of right off the bat? Criminal law — crimes. List some of them: murder, rape, theft, assault, battery, burglary, trespass, breaking and entering — all these and many others are crimes. What these laws do, in a very simple manner, is put up a red light at the intersection of your desire to act with the person or property of another, and the law says: You cannot do it; it’s illegal, and you will be punished. It’s a very simple — it’s the most simple type of law. It looks ahead only to the effect of the immediate action, and it erects a stop light. An indication of how primitive it is, is that almost any society will have some kind of law against criminal acts — even totalitarian dictatorships have criminal laws that protect citizens against violence. So, for example, if I form an intention to bash your teeth in, my intent goes up to where your person or property starts. In Maryland, there’s the crime of assault, which is defined as intentionally causing serious physical injury to another. There’s a separate definition of serious physical injury: It’s defined as injury that creates a substantial risk of death, causes permanent or protracted disfigurement, loss of function, or impairment of any bodily member or organ. So, you can look it up, if you want to know whether something you want to do is legal.

So, we have all these stop lights, red lights, that stop one from initiating force against others. But what about the situations — and again, let’s stop here for a minute. We’re pretty much leaving criminal law behind, because it’s so elementary, and because it’s so little a part of the productivity of the rational members of society. What are some of the actions where we want to exert force on others, and they consent to it — or you consent to the exertion of force on yourself? (A massage.) A massage — perfect. Now we’re getting into life in all its richness. Give me more. (Surgery.) Right. Or, what did I talk about last time at the Hair Cuttery? (A haircut). More, more. (Sex. Football.) Or, the little-known sport of sex-football, which its own — keep going. (Physical therapy, occupational therapy. Transportation.) Yes, getting an airplane ride — someone else is transporting your body with their vehicle. Keep going. Hugs and kisses, pats on the back. Me giving you a lecture; I’m exerting physical force on you by speaking. My words are impinging on your ears by means of sound waves. You’ve consented to that. However, if I take the tape of my talk, put it in a boom box, and sit it next to your table at dinner, it’s the same content, the same idea that physical force is being exerted, but you haven’t consented to that — you don’t want to hear it at dinner. You want to hear it in this particular room, at this particular time. Let’s go to another category: your property. What are some of the cases in which you want to exert force on other people’s property with their consent? (Landscape architects. Building trades.) Building trades, where I’m the owner of land and I hire someone to build on my land. (Housekeeping and maids.) Yes, it’s your house — it’s trespass if the maid comes in without your consent, but we’re not concerned here with criminals. We’re looking at what sustains our lives, and the cleaning service helps to do that, so you want to give that consent, to come in and work on your property. (Utility lines.) You’ve got land that you own; you could say, “Keep your water and sewer and telephone off my land — don’t trespass on my property.” But wait a minute — that’s no way to live. You want them to come on your land. So you consent to it. (Mail delivery.) It’s trespass if someone comes and throws papers on your property; but of course you would consent to particular people coming on your property to deliver the mail.

What value does the law add to our need and desire to undertake these activities? The law doesn’t actually accomplish these tasks. The law doesn’t deliver the mail or give haircuts. What value does the law add? (It defines conditions under which these things can take place.) That’s true, but let’s be a little more specific. (It defines how you consent.) Yes, but what I’m going to say is that the law gives you a menu of legal relationships that you can enter into voluntarily or not. If you don’t want to allow utilities on your land, then the entire law of underground utilities and easements just doesn’t apply to you. But if you do want utilities on your land, you can “buy into” it by selecting from the vast menu of legal options, utility easements. And what that does is open up to you a vast network of predefined red lights and green lights that you don’t have to negotiate one-by-one. Remember we said that if the traffic light is not working, and all the cars in the intersection come to a dead stop, the only way to get traffic going again is for everyone to get out of their car and negotiate an agreement as to who’s going to go first, second, and so forth, and that works for the first dozen cars, and then the next dozen have to start all over again, until somebody recreates the law of traffic lights. The law of traffic signals then provides the default rule, the rule that governs everyone in the absence of an agreement to the contrary. As long as it has the force of law, the flow of traffic is regulated through the intersection, and everyone is able to go about their business without initiating force against another person. That’s the great value of legal objectivity.

If you choose, for instance, to have surgery, you sign a consent form, and you agree with the doctor that you will have surgery — say, to have your appendix removed. Just by that consent, which is a very — it may involve a discussion, or reading a document — but in the space of a half-hour or hour, executing this consent, what happens is that the doctor now has your consent to a variety of actions extending forward into the future. If you show up at the hospital, the doctor and his staff can put you in a room, they can tell you to take your clothes off, they can stick needles in your arms, they can put you under anesthesia, they can slice open your body, they can take things out of it (or put things in),they can patch you back up, and the doctor — this is the wonderful certainty you get with an objective law of consent — the doctor can act with assurance at each step of the way, knowing he has your consent. Even though the patient and doctor never sat down and negotiated every single item of what could happen. It’s done in terms of principles. It’s like, once that agreement and consent are signed, a whole string of green lights pops up on the horizon, showing the doctor the path he can travel from now to the operation and beyond, even while you are under anesthesia and unable to consent. There are also red lights along the way, defining certain types of force on your body that are forbidden. For example, if you consented to amputation of your left leg, he can’t take off your right leg. There’s a red light there — it’s not a blanket consent, it’s a delimited consent.

As long as we’re talking about consent, let’s talk about the forms of consent. What does the law have to say — we’re accumulating data here. We don’t yet have all the data we need to talk in more conceptual terms about what the virtues of the system are, but we’re looking at some aspects of it. Remember the haircut example: How did the store consent to my walking on their property without my worrying about trespass? They put up a sign. How did I consent to getting my hair cut? I walked in and sat down in a chair; I didn’t even need to say anything. The law conforms to practice. The law, at its most objective, makes the form of consent consistent with how people want to do business in their daily lives. The form of consent is appropriate to the gravity, the importance of the transaction. Take another example: Let’s suppose Dr. Kevorkian is still practicing, instead of being in jail. He’s got an office with a door that says: “Dr. Kevorkian – Please Come In.” I walk in and sit down in a chair, and nurse comes over and starts strapping an intravenous tube on my arm. I say, “Wait a minute — what are you doing?” And she says, “You came in for a suicide, didn’t you?” I say, “No, I just came in to ask about it; I haven’t consented to it yet.” Obviously, it would be inappropriate for the law to imply consent for a transaction of such gravity, from the mere act of sitting in a chair. So, if you look at the Oregon assisted suicide statute, there’s a consent form entitled “Request for Medication To End My Life in a Humane and Dignified Manner.” It’s a form you fill out. You give your name, describe the disease that your physician has determined is terminal. You request your doctor to prescribe medicine to end your life. And then you get a choice of either informing your family or not doing so. This simple declaration has to be signed by you and two other people who know you, they saw you sign the form, that you appear to be of sound mind and not under duress by family, hospital, or others, and they have to certify that you are not their patient. At least one witness must not be a relative; so, it gets at the issue of family pressure on somebody to end his life. And there are some other parts. The point is that the legislature, when it’s trying to be objective, prescribes a form of consent that’s appropriate to the transaction. I think this complexity of consent is appropriate, because it requires and provides objective evidence of consent in a situation where the person who would otherwise testify to it is going to be dead. It’s therefore appropriate for the court to say, if I can employ the pathetic fallacy, that “if you want me, the government, to protect you, the physician, you must bring objective evidence into court, and this is the form of evidence you need to have, in order to avoid being prosecuted for murder.” I think that’s a reasonable approach. Jack? (David’s in junior high school. I think it’s very interesting that they can take him away from me and make him go to school without my consent, pretty much. But it seems like every once in a while, I have to sign a paper to consent to some stupid thing or another which it didn’t seem to me that he would really need consent.) Put these on — Jack needs to wear the rose-colored glasses, because he’s dragging us back into the irrationality of the non-objective law of education. The general question you might ask is: How does the law approach the subject of consent, and what is necessary for the law to recognize consent in any given transaction? And I think the general approach in objective law is to tailor the form of consent to the nature and gravity of the transaction, so that as much as possible consent is given in the way people want to do business. When you’re going for a haircut, you don’t want to have to enter into a written contract with two witnesses, one of whom is not related to you. It would be ridiculous. Who would want to do that in their daily lives? But when you go to buy a house, the transaction has so many implications, and is so subject to error because of how people may differ in their understanding of oral conversation, you need some written evidence for courts to enforce everyone’s rights.

Let’s take another example of how the law addresses the form of consent: Sexual intercourse. A man and a woman are out on a date, and they’re back at her apartment. They’re kissing, and they’re becoming intimate, and the man wants to have sex. At some point during this process, the woman says “No — don’t.” Can the man keep going even though she said no? Well, in Maryland he can keep going. In Maryland he can keep going, because consent to sexual intercourse in Maryland is conveyed by actions. What particular type of actions? Physical submission, which can also be looked at as the absence of resistance. If you want to consent to sexual intercourse in Maryland, all you have to do is not physically resist. One very important exception to this is that if the man exerts overwhelming force that makes resistance futile, impossible, or dangerous, then the rule does not apply. So, if he draws a knife, a gun, threatens to kill, strangle, then that rule does not apply. It also does not apply if the woman is put under a drug or is asleep or not able to consent. The point here is that the law achieves two things: It tries to ensure, in a situation where it’s always going to be he said/she said, because these things take place in privacy, the law is looking for objective evidence of rape, and it’s saying that if physical resistance is required, then there is more likely to be physical evidence that third parties can observe — bruises, cuts, scrapes, or whatever. The other thing is that the law is trying to give the maximum freedom of the couple to have the sexual act be what they want — preserve the romance, if you will, for some people for whom that kind of dialog might be part of the experience. Whether you agree with that rule or not, and you may not, it’s an example of the variety of approaches that the law has in addressing consent. This is another example of law conforming consent to the way people want to behave in real life. Nobody wants to require notarized documents for consent to sexual intercourse, even though the consequences — including making a baby — may exceed those of buying a house, for which a notarized document is required. Now, when there actually is initiation of force, the law provides remedies: crimes and punishments. I’m going to skip over this, because that’s the typical way we as Objectivists look at the legal system, or think about it first off. There’s initiation of force, then there’s a punishment by the court. What we’re trying to focus on is the more positive and facilitative aspect of the law.

Real Property

Let’s move on from issues of personal liberty to activities that involve real property. What is “real property” in the law? Basically it’s land and buildings. Don’t ask me why that property is “real,” which implies that everything else is unreal, which is not the case. The land we’re standing on, the building we’re in, our actions relative to such land and buildings comes under the heading of real property. What are some of the questions we have to ask if we want to walk around?

First, at the very most basic level, is there anything you can do in life without having some impact on the land? (Fly.) Fly — well, you’ve still got to land your airplane. I would suggest that there is no activity that does not require some interaction with the land. Things start to quickly get complicated in the questions that you have to ask. If the question is, “Can I bash Lowell’s teeth in?” the answer is very simple: That’s a crime, and no, you can’t do it. It’s just one big red traffic light. But suppose Lowell and I own land next to each other, two adjacent lots. Lowell builds a stone warehouse on his land; my land is vacant. One day I decide, the dirt on my land has some value; I’m going to sell it. I hire a company to come in and start excavating, removing all the dirt, including the earth right next to the property line. And I’m thinking well, it’s my land, my dirt, I’m going to take it out. Can I do that? Or, if I’m married, and I own a house with my wife, can I sell my half of the house without her consent? That’s a question that can come up. If my neighbor’s tree is overhanging onto my lawn, can I cut off the overhanging branches, or not? If I have a field on the other side of someone else’s property, can I cut across my neighbor’s property to get to my field? You may have to answer that question. If by mistake I go onto your land, not knowing it’s your land, and cut down trees and make them into valuable objects, do I have to give you back the wood in the form of the valuable object that I’ve made? If I’m a tenant in that barber shop we talked about, and the building burns down, do I have to keep paying rent? These are questions — and there are a million others like them — that have to be answered as soon as you start to carry out your life’s activities on land. The answers to these questions are not self-evident. You could hire lawyers and negotiate every possibility ahead of time, but then — as we saw with the traffic light example — life would grind to a halt. You’d become paralyzed trying to work out everyone’s rights from scratch through voluntary agreement.

In the old days, you had no choice as to how you related to the land. In the feudal era, you were born onto the land with a certain status — you were a lord, or a peasant, or a serf, or a knight, and you owed certain duties to others based on your relationship to the land, but that relationship itself was one of status. In modern times we have a system of contract, in which you can change, alter, modify your relation to the land and freely enter into transactions with other people relating to the land which are in accord with your own judgment of how you want to use the land. Remember, we get back to the right to life as the right to exercise your own judgment as to how you will use your own property to produce the goods and values necessary to live your life. We’ve been talking about consent — to a haircut, to surgery, to sexual intercourse. Consent, I want you to think of as applied judgment. The judgment of your mind is one thing, but when you start to exercise it in reality, by far the most common method by which you exercise your judgment is consenting — getting someone’s consent for you to exert force on their person or property, or giving consent for somebody else to exert force on your person or property.

So, with respect to land, there’s a vast menu of possibilities. There’s a type of ownership called “fee simple absolute,” which is the most basic form of land ownership. It means the land is yours, exclusively yours, and you can do anything you want with it; no one else has any right to tell you what to do with it. But suppose you have another goal; suppose you’re getting up there in years and you need money. You’ve got a lot of money tied up in your land, but you want cash. You could sell the property and in return get cash and what’s called a “life estate,” which means you get to live on the land, in the house, until you die, and then the purchaser gets it in fee simple. So, in that situation, the person owning the life estate has the right to control the land during that time, but the so-called remainderman — the person who’s going to take over after you die — has other rights that will affect some of the things you can do with the land. Instead of being able to do just anything with it, in that situation you cannot just tear down the house; you could if it were fee simple absolute, but the remainderman’s interest in having the house intact when you die prevents you from doing that.

You also have options of concurrent ownership. You may want to go into a business, which involves erecting a building on land, but you can’t afford to do it on your own. Two or more people or companies can own land as tenants in common; they can both use the land, but there are certain rules about what happens to the values created on that land and who gets them. If Jack and I own land together, I can go onto that land, set up a fruit stand, make a hundred dollars, and I keep all the money; Jack gets nothing, even though we own the land together. Why? Because Jack had an equal opportunity to go on the land and use it for productive efforts, but he didn’t take advantage of it — I did, however, and so I get to keep the money. But if I effect what’s called an ouster, and I prevent Jack from using the land (say, by erecting a locked fence), I have to split the hundred dollars with Jack. So, the law provides rules on this type of transaction.

There’s another form of joint ownership: If you get married and buy a house, there’s an automatic form of joint tenancy that arises called “tenants by the entireties,” which means neither the husband nor the wife can sell the property without the other’s consent. That’s because the law regards that as the default intention of married people. Importantly, they can opt out of that if they want. They can take title as tenants in common, and then each has the right to sell his individual interest to whoever they want. Just describing this option, however, shows why the law gravitated toward the default position of “tenants by the entireties”: How often will it happen that a husband or wife would tolerate the sale of a half-interest in the marital home to some stranger, or even to a relative? How many husband will want the threat of their mother-in-law being sold a half-interest in the house, with the right to legally occupy it?

The law provides default positions in a big menu, and it’s like ordering at a restaurant — you pick out “tenancy in common,” “joint tenancy,” “tenancy by the entireties,” “fee simple absolute,” and you can modify each of these to suit your needs. If not every provision is suitable, you can change it.

Let’s return to one of the examples I started with, involving adjoining lots where I want to sell off the dirt from my property. Under the law, when two people own adjacent land, there’s a right of so-called “subjacent support.” If Lowell’s stone building depends on my land, my earth, for its lateral support — that is, if his warehouse would fall down without my land remaining in place — the law does not permit me to excavate my dirt and make his building fall down. There’s a red light there preventing me from doing that. On the other hand, we can opt out of that default position. If my aim in buying land is to excavate and sell the dirt, then I can try to negotiate contracts with the surrounding landowners before I buy my property, and get them to waive their right to subjacent support (perhaps for a fee). Or, without Lowell’s consent I can excavate my dirt so long as I erect some kind of structure or retaining wall that serves the same support function as the removed earth.

Suppose joint tenants aren’t getting along, and they want to get out of the deal. What can they do? They can file in court an action for “partition,” and they can have the court divide the land in half physically, or if that’s not feasible, the court can sell it and split the proceeds half-and-half. There is a range of options, then, within each one of these menu choices that governs what happens down the line.

Another interest in land is the “easement.” This is a right to cross over or under someone else’s land to accomplish a purpose of your own. This solves the age-old conundrum of the supposed injustice of the capitalist system, because you’re going to be landlocked, and you’re going to be trapped and starve to death because the people surrounding your land won’t let you out. But you don’t buy a landlocked house unless you have an easement to access the road. Who would buy a house without an easement to cross over other people’s property to get to the grocery store and the hospital and the school? It wouldn’t make any sense.

Let’s talk a little about the forms of consent. We mentioned the deed — I think everyone’s familiar with the deed. There are certain requirements of a deed to transfer an interest in real property. It has to be in writing and contain the names of the parties. It has to describe the interest being transferred, using these legal terms of art: “fee simple absolute,” “joint tenancy.” And behind each of these words are many volumes of law interpreting what they mean in particular factual situations. This is all work that has been done for you, so you don’t have to do it again. You don’t have to sit down with the buyer of your house and spell out every implication of every term; by using the correct legal term, you adopt the law surrounding that term; you “buy into” that default position. You could think the law as analogous to as a computer program; if you sit down at a word processing program, you can punch a couple of buttons, type in some text, push another button, and out comes a printed page. But suppose the computer came only with an operating system and a programming language like Unix or C++, and you had to program the computer to perform the word processing functions. You could do that, maybe, but it would take you forever, and you would have no time left to type the letter that you wanted to type. The reason you can get a printed page from pushing just a few buttons is that you are taking advantage of all the work that the programmers have done over the years to make it easier for you. By the same token, all the work done over the centuries by lawyers, judges, and legal scholars, has given you the equivalent of a fantastically complex computer program whose “buttons” are legal concepts you can just check off, sign your name to. These facilitate hugely complex actions such as hundreds of people living in a single apartment building owned by a landlord. The concepts define what can and cannot be done by default, always subject to revision by consent of everyone involved. The law makes your life so much easier in this way.

Listen to the facts of this case out of North Carolina involving a so-called chain of title to real estate. In the 1930s, there was a deed containing an agreement that this town in North Carolina called Brevard was purchasing five acres in the middle of a one-hundred-and-twenty-acre parcel for purposes of a landfill. Later on, a couple bought a house on the surrounding acreage, and they went to court and ask that the dump be closed down as a nuisance. The court looked at the chain of title, which is the series of deeds, filed in the government’s land records, leading up to the deed of the couple challenging the dump. The deeds are available to anyone, in writing, to trace the title. The judge said to the couple, in effect, “this dump is in your chain of title; you should have been aware of it; you consented to the presence of this dump when you bought your house, so get out of my court. We’re not going to let you shut down the dump, because you bought your house knowing the dump was in your chain of title.”

This is just one of several examples I’m going to give you of the court doing the right thing. I love the examples where they do the wrong thing, because it always gets a groan or a laugh or a resigned shudder of despair. But we have to remember that the courts, every day, are doing the right thing, in a million cases. That’s what keeps us going, keeps the lights on, puts the furniture here. (Can you expand — when these people brought their house, they had a title search done. Are we talking about an obligation of the title search company to let these people know what’s in their chain of title.) We’re assuming that the title company did its job and issued a report that showed the dump in the chain of title. If the company didn’t, and breached its contract, there might be a lawsuit against them. There would be an indication in the title report that the dump is there.

The law provides remedies when there are problems involving real property. A couple of interesting cases: Has anyone been to the Luray Caverns in Virginia? Very interesting, beautiful caves. The story of how they were discovered is interesting: There was a fellow called Andrew Campbell, the town tinsmith, who was out searching for caves one day. While searching, he was trespassing on farmers’ property. This was an era of cave exploration and discovery. He carried along a candle so that he could detect updrafts coming out of the ground, indicating the presence of a cavern. At one location, a big breeze came out of a limestone sinkhole. He spent four hours digging away the loose rock, and then the explorer slid down a rope into these magnificent caverns. So, this guy was the discoverer. The trouble is that he was trespassing on the land of a farmer who also happened to be in debt up to his eyeballs. So, the biggest creditor of the farmer took the farmer to court, foreclosed on the property, and sold it at auction; it drew only a small price, insufficient to pay off the debt. But later, when the creditor found out that the Luray Caverns were located under this land, he came back and said, I want the land resold, because I want title to the caverns. The court said, you’re right, this was a trespass; we need to overturn this sale and sell it again. The second time around, the proceeds were enough to pay off the farmer’s debt. So here’s another example of a court doing the right thing, giving a remedy for trespass where it exists. (In the Luray Caverns thing, the sale was made to the guy who discovered the cave, right?) No, actually in the Luray Caverns case, the details were that the land was sold at auction by foreclosure, by the court, and it was sold to some third party whose name we don’t know or care about, but at a low price that did not reflect that there was this valuable cave entrance on the land. When the creditor found out about it, he had the sale overturned and had it resold with the cave being part of the package. That made the farm more valuable, and so the creditor got more money for the sale the second time.

Another interesting case, Weatherby v. Green (1871), involves the inadvertent use of another’s property and the law of “accession.” Back then, commodities were stored in wooden barrels, with the sides consisting of barrel staves held together with barrel hoops, which bind the staves together into a watertight vessel. In this case, a man named Weatherby went onto some land, cut down trees, and manufactured barrel hoops out of the wood. The problem was that the trees were not his property to cut; he had gone onto a neighbor’s property innocently, through a misunderstanding. The rightful owner, Mr. Green, came to court and said, I want my wood back. Weatherby said, okay, but it’s now in the form of these very valuable hoops. Green says, I don’t care if it’s hoops or furniture or violins or what it is — I want it all back, it’s mine. The trial court took evidence and found out that the wood in its virgin state was worth twenty-five dollars, while the value of the hoops was seven hundred dollars. The court said, in effect, “Mr. Weatherby, it’s not your wood; Mr. Greene gets the hoops valued at seven hundred dollars.” Naturally, Weatherby doesn’t like that outcome and takes an appeal. On appeal, that verdict was reversed. The appellate court said that under the law of accession, the damages for that act, taken in good faith without an intentional trespass, consist of the amount of money that the wood was worth when it was cut. Does that sound like a reasonable rule? Sounds like a reasonable rule to me. Again, it’s one of these default positions that the law erects. There’s an exception to this rule, though: If you trespass intentionally and take the wood, the property owner can recover the wood in whatever form it’s in. If it’s now a three-thousand-dollar violin, you get the wood back, because it’s an intentional wrong. (About the trespassing, intentional vs. accidental, how does the law determine what your intent was?) The court takes evidence and figures it out, the same way you would figure out anyone’s intent in your own life. I don’t think there’s any great mystery to that. (I assume there would be some cases where accident would not be possible, as if there were enormous big fences and barbed wire and big signs saying “Warning, Do Not Trespass.” You couldn’t possibly claim oh, it was an accident. Even if you were not paying attention and it was an accident, then you were negligent.) Yes, there are situations where the evidence clearly shows that the trespass must have been intentional. (Suppose it was some kind of misunderstanding and it was actually — he wasn’t trespassing per se, but the act of cutting the wood and taking it off the property was the issue there, correct?) Yes, in that particular case, the damages were not merely for trespass, which might have been nominal damages, maybe a dollar, but the real value of the hoops, whether the wood’s rightful owner got either twenty-five dollars for the value of the wood or seven hundred dollars worth of hoops.

There’s a whole area involving landlord-tenant relations. Living and working on your own property is not your only option; you can rent it out to other people. Again, there’s a whole menu of options you can enter into as a landlord or tenant.

Still in the area of remedies with respect to real property, there’s a doctrine called “nuisance.” This is the idea that certain activities by others can prevent an owner from enjoying his own land. The case I’m going to give you involves a person who built a house in Buffalo, New York, in 1910. In that year, the particular area where the house was built was already a growing industrial area. There were seven railroads in the area, and freight tracks and rail yards in every direction. It was well known that cheap transportation draws factories in. The land was well suited for factories. There were factories in the general area (eight industrial plants within a mile of the house that this plaintiff built). The plaintiff came into this area and built a house in the middle of it. Then, some years later, a company built a coke oven on the other side of the street from this house. This is not a pleasant neighbor to have; it’s running twenty-four hours a day, giving off steam, dirt, soot, and these are accumulating in the plaintiff’s house. So this plaintiff goes to court and says, Shut down the coke oven, it’s a nuisance. And the court said no, it’s not a nuisance — or more precisely, it is a nuisance, but you came to the nuisance. You knew this was an industrial area when you bought the property and built the house. In essence, the industrial uses were there first and had squatters’ rights. At the time the coke oven was built, there were twenty industrial plants within less than a mile of the house. The court made it clear that the result would have been different if the house had been built out in the woods where there was no industry, and then the coke oven was built next door — then it would be a nuisance, and she could sue to shut it down. This is another example of the law providing remedies for disputes involving the use of real property. You may not agree with any particular rule, but the point here is that the law covers all these eventualities, specifying a default position on the rights and remedies of the parties, so that people can proceed with their lives without negotiating agreements on everything from scratch. (Would nuisance be a more rational way to cover zoning for the people who say that, without zoning laws, you would have situations like that?) Yes, the law of nuisance would be one of the key laws that substitute for what people try to do with zoning, which is to try to keep incompatible uses physically apart. The other way, of course, is through consensual agreements of the people on the surrounding land. Certainly this woman, if she had wanted to protect her house, could have entered into agreements before she built, specifying that the surrounding property owners would never build a coke oven or similar facility as long as she was living there. (It’s one thing to build a house in an industrial area. It’s another for the coke oven, with soot in her house, if that wasn’t there before, that’s actually impinging on her — ). It’s certainly an exertion of force, but what the court was saying in essence was that she consented to that, by moving into that area. The court thought the area was clearly in the process of industrializing and that she assumed that risk that there would be a coke oven next door. You could debate — this is somewhat on the borderline, and I brought it up just because I thought it interesting. I could perhaps pose a clearer case where the house is out in the country, and then the coke oven does have to shut down.

The point, again, is that the law has a rule for everything. If you don’t like it, you can usually opt out of it, through contract.

Personal Property

A third big category of action (after personal liberty and real property) is that involving personal property — things, or what they call in law school “chattels,” also sometimes called “goods” in the context of buying and selling. Once you’re on land in a building, you want to make things, create things, and trade them. How does the law facilitate those types of actions? There’s a whole section of the law in every state called the Uniform Commercial Code that sets forth the default rules that govern when you’re trading goods back and forth. Once again, it’s like a computer program that allows you to push a few buttons and have a tremendous number of options open up to you.

Consider the forms of consent. The Uniform Commercial Code tries to conform its rules to how people want to do business. So, it says that you can accept any offer to enter into a contract by simply performing it. Suppose you are Dell Computers, and you get an order for a hundred Model 4100 computers to ship by July 1. You don’t have to go into a long song and dance to accept that order — you just ship the computers. If you do it by July 1, you’ve accepted the order. If you don’t ship until July 2, though, you haven’t properly accepted the offer by performance, and he so the buyer is no longer obligated to accept the Dell shipment. On the other hand, the parties can change that default position, as by the buyer typing on the purchase order: “Acceptance must be by a signed sales order.”

Suppose you sell some goods and you have to agree with the buyer about where they will be delivered, that is, where ownership will change hands: At the factory where they’re made? At the place where shipping will start, such as at a railroad yard? At the buyer’s place of business? This is a mundane detail, but it makes a big difference if you’re in the business of buying and selling. Just imagine if the goods are damaged in transit, you need to know who owns them at that particular point, for insurance purposes. So the Uniform Commercial Code contains various concepts: “f.a.s.” means free alongside, where ownership changes hands alongside the ship that’s going to take the goods to the seller; “f.o.b.” means free on board, meaning that ownership does not change hands until the seller gets the goods into possession of the carrier that’s going to deliver it; “c.o.d.” means cash on delivery, meaning that ownership changes hands upon delivery, when the buyer pays cash for it. Each of these legal concepts can be accessed by a simple notation on an invoice or bill of sale; but the meaning of the term, and all the different disputes that could arise under that concept, are contained in the law, so that the parties don’t have to start from scratch and build them up.

The Uniform Commercial Code also provides so-called “gap filling” rules. Sometimes people inadvertently leave important terms out of their contracts — the price, the place of delivery. Under the UCC, there are rules that look to the parties’ previous course of dealing — where have such items been delivered before, in previous transactions? Or, what’s the normal industry practice? If all these references fail to supply the missing term, then the Code may provide a rule of its own. So, there’s a tremendous comfort level, a certainty that your transaction will go forward despite a mistake by the parties, and that it will go forward without any party infringing on the other’s rights.

This is a course in law appreciation. Using real-life illustrations, these lectures examine the many ingenious, interlocking legal mechanisms whose objectivity makes possible the achievements of an advanced civilization — laser beams and Lexus cars, power plants and Broadway plays, fair trials and philosophical conferences. By stressing the virtues of the American legal system rather than its vices, this course offers a refreshing perspective. It provides a respite for the advocates of individual rights, who — battered by a seemingly endless onslaught of non-objective laws — risk losing sight of just how strong a foundation already exists for them to build upon.

Note on audience participation: Whenever audience participa­tion played a part in this course, I have pre­sented the participants’ comments or questions in both parentheses and italics. For example, in the following passage . . .

What was the judge thinking? (He doesn’t seem to have been thinking at all.) Well, what does he say he was thinking about? Can you tell from the context?

. . . it was an audience member who said, “He doesn’t seem to have been think­ing at all,” in response to my open question to the class.

Note on comments: I welcome comments through the Substack platform. It’s been twenty-five years since I offered this course, and so there are lots of things I would say differently, or add, or subtract, if I were originating this subject matter today. Moreover, I have not updated the examples to reflect changes in the law, so be prepared to travel back in time, legally speaking. If readers have constructive suggestions, I may implement them by changing the text, with or without notice. I view this course the way Elon Musk views the software that controls his self-driving Tesla automobiles — aiming at perfection through continual iteration. It’s not primarily a historical document.

Welcome to “A Celebration of American Law.” This is a course in law appreciation. Why do we need such a course? I would say, for the same reason we need a course in art appreciation. We want to understand in conceptual terms how the various parts or elements of the object being studied combine to achieve a certain effect. So, when Mary Ann Sures is giving one of her insightful presentations on a painting, she explains how the artist used perspective, foreshortening, light and dark, color, composition, all these elements in order to cause a certain effect upon the viewer. Once we’ve engaged in that kind of esthetic study, then the next time we look at that particular piece of artwork, we do so with renewed interest, with renewed understanding, with renewed pleasure, because we see it in a new light. At that point we can say more about the artwork than simply, “I saw it and I liked it.” We can say that we truly appreciate it. And of course, as we go along in life and our knowledge and understanding deepen, then our appreciation deepens for the object of our study.

I would define “appreciation,” then, as a positive evaluation based upon conceptual study and reflection. To appreciate our values is to understand them on a deeper level, so that our attachment to them grows stronger, so that we are more likely to keep them close to our breast and cherish them, because we understand them. Now if appreciating art is a good thing, and it is a good thing, then appreciating law is also a good thing. My goal in these next five hours or so is to convey to you some facts with which which you can enhance your appreciation of the American legal system.

Now, I’m going to submit that this is a somewhat more difficult task than appreciating a work of art, and I can think of four reasons for that. You may be able to think of more after we’re done. The first and most obvious thing is that a legal system is not a perceptual concrete like a painting or a sculpture. A legal system is an abstraction, referring to thousands or tens of thousands of laws, court cases, courts, judges, courthouses, and so forth, operating over time — and changing over time — within a given governmental structure. In terms of definition, I don’t have a real firm definition of legal system. It’s a little bit different from government. The way I’m using it will be clear, I think, as we go along. Basically, a legal system as I refer to it is the government minus the military (because we’re not really concerned here with military and foreign policy). It’s basically the rest of the government with kind of a twist, in that our focus is on the law itself more than the governmental institutions, such as the police and the courts, even though they are obviously part of the system. Our focus is on the laws — what they say and what they do, and what effect they have on our daily lives. Moreover, in contrast to a work of art, which is fixed and unchanging, the legal system is a human institution that’s undergoing constant change. So, I cannot flash a slide up here on the screen and give you the object of our study as we can in an art appreciation class. Out of necessity, therefore, a significant part of this course will be my attempt to depict in broad brushstrokes the outlines of the American legal system, some of the areas I want you to focus on, but without taking you to law school for three years, I can’t really give you the thorough grounding in the law. We’re going to be relying on your life experience, and your continued study to make this thing work. What I’m going to do is give you, in addition to some content, some different perspectives or ways of looking at the legal system, which I hope you’ll take out of the course with you, and be able to use year after year to the end of your lives, to look at the legal system in a different light. So, you don’t have to get all the content in these five hours, but what I hope you get is an approach that will serve you well later.

A second difficulty in appreciating the American legal system — and this may be the most difficult to surmount — is that in its current state it is a hopeless muddle of good and bad elements, virtues and vices. There are a tremendous number of bad laws out there. The temp­tation, especially for Objectivists, is to focus on the negative elements of the current system to the exclusion of the positive. And this is very understandable, for at least two reasons that I can think of.

First, because the trends are bad, because the new things that are happening in the law tend to be bad, then they dominate the headlines, and the headlines are taken up with the latest horror story out of Washington, DC, or out of some courthouse or legislature. So you’ve got just in the past ten years laws like the Americans with Disabilities Act, which penalizes the able and gives special favors to the disabled — the Family and Medical Leave Act, which prevents employers and employees from reaching their own agreements regarding employment leave. I went through the United States Code before I came here and jotted down a few new laws that just caught my eye. I don’t even know what they’re about — I just jotted down the titles, because the titles tell it all. This is just in the last couple of years: Here’s the Arctic Tundra Habitat Emergency Conservation Act, and the description of that is it’s designed to protect mid-continent geese and the biological diversity of the ecosystem on which migratory birds depend. That’s the Arctic Tundra Act. Then there’s the Depiction of Animal Cruelty Act, and the Children’s Health Act of 2000. Anytime you see a law with the word “children” in the title, you know it’s a massive violation of the rights of adults. Children are the big excuse to regulate everything from seat belts in cars, to tobacco products. Court cases come and go: the O.J. Simpson case, the Florida punitive damages verdict against the tobacco industry, and lately the antitrust prosecution — persecution — of Bill Gates and Microsoft. I’ll give you a case that came across my desk recently, involving OSHA, the Occupational Safety and Health Administration. I’m doing this just to give you your — I know you want this negative stuff, so I’m going to give you a little of it. This involved — anybody here from North Carolina? This involved a place called Troutman Quick Lube. It’s like Jiffy Lube — a place where you take your car in to get the oil changed. You drive your car in, and there’s a service bay with a pit below the floor level, where the guy stands who changes the oil. You drive your car over the pit, so that your car doesn’t have to be raised up on a lift. Well, there was an employee at Troutman Quick Lube whose job was to guide the cars in, directing customers with hand signals, like an airport worker on the tarmac uses to guide a pilot to the landing gate. So, one day this attendant is guiding a car into the garage, but little does he know that the driver of this car has a grudge against this particular attendant, plus a history of violent behavior, and he turns out to be a homicidal maniac. He guns the car and runs over the attendant and kills him. Now, who gets blamed? Troutman Quick Lube gets blamed. Why, do you think? OSHA comes out and cites Troutman Quick Lube for violating the occupational safety and health laws. You want to guess why? (He should have been wearing a bright orange jacket.) No, it wasn’t that. The government said Troutman’s procedures should have been set up differently. How could they have done it differently, in hindsight, to avoid this happening? The attendant shouldn’t have been in the line of traffic — he should have stood over to the side. OSHA said, you exposed your employee to a danger of death by having him stand in front of the car. But wait a minute: I can’t predict there’s a homicidal maniac in every car that drives in. And you can’t do the job as well from the side, because you don’t have the right perspective on the car’s tires relative to the pit, and because the driver needs to see your hand signals in front, which is only feasible if you’re in front of the car rather than over to the side. And the company had an emergency plan: if somebody’s accelerator gets stuck, the attendant just needs to jump out of the way. It’s only a short distance, and it makes sense. That’s what you’ve got to do in the .000001 percent of instances when there’s a problem. The rest of the time you stand there and guider the driver. But that logic didn’t impress the OSHA authorities, and they cited the company for violating the so-called General Duty Clause, which requires employers to provide a safe place to work. And on top of that, they fined Troutman for not reporting the accident to OSHA within eight hours, the way you’re supposed to when there’s a fatality. They reported it to the police, of course, but nobody dreamed that OSHA would have an interest in this case, which is essentially a murder in the workplace. So, that’s just one example of a million cases that come across your desk, that make you throw up your hands in despair.

Nobody in this course — certainly not I — is going to deny that there are many, many bad cases and laws out there. However, Objectivists have a second tendency when faced with bad laws, because not only are the bad laws out there, but we know what’s wrong with them. We have the principles and the knowledge to say, “that’s wrong, and I know why, and I know how you could fix it.” So, we can’t help ourselves in reacting to these bad laws. And the combination of the fact that we have good reactions and good solutions, with the fact that the trends are all downward, makes it very difficult for us to focus on the positive elements of the system. We’re not in a position right now to turn the culture around, to have the political influence to make the laws the way we want them. So we’re faced with a constant alternative: Either spend the entire day reading the paper and sputtering in rage, throwing the paper down and stomping on it — or eventually subconsciously or whatever, of succumbing to some degree of cynicism, despair, resignation, that things are just bad, getting worse, and we’re in a hopeless situation. So, and judging especially from my experience with the last class, it will be very, very difficult for us to look past the vices and defects in the system, to look at and appreciate its virtues. So, this is the second difficulty we are going to have: abstracting away from the vices to look at the virtues. But I think we should make the effort, because if we’re going to appreciate the virtues of the system, we have to do it conceptually and abstractly by focusing mentally on those good aspects. It’s never going to hit us in the face perceptually. There is never going to be a series in the New York Times on all the objective virtues of our legal system. It’s never going to be thrown in your face. So, we’re going to have to work to get at it.

If you find this analogy to art appreciation helpful, you might recall Mrs. Sures’s lectures in this particular conference when she discussed Leonardo’s The Last Supper. At one point, she observed that this painting is on a wall with a door underneath it that was enlarged in such a way as to cut out part of the painting of the Last Supper, including Christ’s feet, which would have been showing under the table and which would have been an additional element that you would want to appreciate about that work of art. In addition, over time the painting’s colors have deteriorated, and the shapes have deteriorated, to the point where we’re not entirely sure exactly what it should look like, and did look like when da Vinci painted it. But Mrs. Sures didn’t focus or dwell on those negatives. She went ahead and looked at what was left, and analyzed that for its values. In a sense, a lot of are white-knuckle flyers through the process of cultural change, and it’s hard, but you’ve got to focus on this wonderful machine that’s carrying us through the sky, and its value, and the fact that it can keep us aloft despite turbulence. Now in this connection, I just want to remind you of what Ayn Rand had to say, over and over, about our role as political advocates. We are not primarily fighting against bad laws but in favor of good laws. We are not primarily fighting the negative — we are trying to achieve the positive. In one of her articles in 1971, she said: “It is useless to be against anything unless one knows what one is for. A merely negative stand is always futile — as, for instance, the stand of the conservatives, who are against communism, but not for capitalism. One cannot start with or build on a negative; it is only by establishing what is the good that one can know what is evil, and why.” (“Brief Summary,” The Objectivist, Sept. 1971) So, this is the context in which I’m asking you to temporarily, for a few hours, put aside complaints about the law and look only at its virtues. Now, this is in a specific context. It’s in the context of all of us as Objectivists looking at what’s going to be necessary to establish a good society, an ideal society. So the point here is to take an x-ray picture, so to speak, of the legal system and see if it’s got good bones, see if its structure is there. It may be covered with boils and warts on the outside, but does it have that basic health on the inside? So, it’s in that context as social reformers that I’m speaking to you, not in the context of how the legal system may impinge on any particular person’s life. If John Allison were in the room, and BB&T were being prosecuted by the Department of Justice for antitrust violations, I wouldn’t say “John, everything’s great in the legal system, it’s wonderful, you’re just being too pessimistic by being concerned about it and worried about it and staying up all night.” Obviously, context is everything. All of you have got horror stories about the legal system. We’ve all seen injustice done, and I don’t mean to dismiss that or not take it seriously. But it’s in that context that when, for instance, I’m talking about land use, landlord-tenant relations, rent, I won’t be talking about rent controls, zoning laws, eminent domain, property taxes and other issues that you might think necessary to give a balanced view. I’m not trying to give a balanced assessment of the legal system as it is in 2001, in all its aspects. I’m looking at what foundation there is for change in the future.

So it’s in that connection, and because I know this may be a difficult burden for you, that I’ve brought along with me this pair of genuine, California rose-colored glasses. And if any of you feel the need to ask a question that takes us off-track and into the horrors and the depredations and the depravity of the American legal system, I will pass these glasses back to you, let you put them on, and the world will look different, and better.

A third difficulty facing us in appreciating the value of the American legal system — and by the way, these are not preliminaries so much as the start of the work, so don’t think we’re not getting down to brass tacks yet, because we are — a third difficulty in appreciating the virtues of this system is that most of you are not accustomed to focusing on the legal aspect of your relationships with others. When you get a parking ticket, when you get married or buy a house, you bump up against the system. But most of us in our daily lives don’t focus on our legal relationships with others. We don’t focus on the legal aspect of it. But in order to appreciate the legal system, we’re going to have to shift that focus and do that kind of focus. Has anyone here been fortunate enough to go to law school? One person. I found that when I went into law school and when I came out, there was a difference in the way I looked at things. It’s like that movie, The Sixth Sense, the little boy in there who says, “I see dead people” — well, I see legal relationships, and I want you to see legal relationships.

So let’s do a little exercise to show you what I mean. I’m going to draw a picture, an amateurish picture. This is this lecture room. Every dot is a person in the room. I’m going to draw a rectangle with dots in it representing the people in the classroom. I’m drawing another rectangle outside the classroom to represent Second Renaissance Conferences. I’m drawing another rectangle out here to represent the Doubletree Hotel, which is the place where we’re having this conference. And I want us to look just for a minute, by way of an exercise, at the legal relations of all of us.

How many of us have some kind of contract or arrangement with Second Renaissance Conferences? Everybody better raise their hand, or you don’t belong in here. So, I’m drawing lines from everybody to Second Renaissance. Now, what relations do you have with the hotel? On a very basic level, some of you have rooms at the hotel, and we are all guests of the hotel. I have a contract with Second Renaissance to give these lectures. What’s the legal relation between all of you and me? There’s no direct contractual relation. You give money to Second Renaissance to attend, and Second Renaissance gives money to me as payment. So there’s no direct contractual relationship between you and me. So, if I walk out of here right now and never come back, you can’t sue me. But you could sue Second Renaissance Conferences, and it could sue me. How about among you in this room? I see some family members here; I see David and Jason, Beth and King. Are there other people with a family relationship, marriage or kinship? So, there are formal legal relations among some of you. There may be other relations of a more temporary nature. Maybe you live together without being married. Maybe you’re roommates at the conference. Maybe after the conference you’ll be living together, have certain sharing arrangements — you never know. We’re not even talking yet about the nature of the legal relations or what they do for us; we’re just getting accustomed to the fact that there are legal relationships all around us, in the air. We’ve got a taping service back here in the corner that’s taping the words I say. I don’t have a contract with them; Second Renaissance has. None of us has a contract with them. But I can draw a box here for the taping service, and they probably has a contract with Second Renaissance Books, or what’s now known as the Ayn Rand Bookstore. The taping service will provide the tapes, and then the Ayn Rand Bookstore may sell copies of this tape to you or others. Now, suppose one of you walks out of here and leaves a purse or wallet. What kind of legal relationship do you think might be created? (Isn’t there actually a law that you have to make an attempt to return lost items?) Yes, there’s a concept in the law called bailment, which is the idea that you put your property in the temporary custody of someone else, like a warehouse, and they have certain duties to take care of your property — not necessarily to ensure that nothing bad happens to it, but to use reasonable care in looking after it. So when you have an accidental leaving of a purse or wallet, there’s a constructive bailment relation that emerges between you and the hotel, so that when the hotel janitor finds the purse, he can’t just take it home and keep it. He has to take it to the lost-and-found and make some kind of reasonable effort to safeguard it until you come and get it. We’ll talk a bit later about what happens if the true owner doesn’t show up, because that’s just fun to talk about. David? (This sounds very subjective.) Which, the bailment? (Yes.) David, I think you’re in need of rose-colored glasses. Of course there’s subjectivity in the law. Everything I say, you can find some fault with, and literally in the legal system, every aspect of the laws I’m going to discuss is riddled with shipworms, to at least some extent, below the waterline. Yes, David? You’re still raising your hand, with the glasses on. (Now that I have these glasses, is there a bailment going on?) Oh okay, I can have the glasses back now; that’s a good question. Questions will be permitted to the effect of, “Aren’t there laws pertaining to this or that that you haven’t discussed?” And I will be happy to say yes, there are such laws, there is an approach in the legal system to that. The immediate question is whether there’s a bailment between you and me, with respect to the rose-colored glasses? Yes, when I gave you the glasses, you had a reasonable duty to take care of the glasses and not stomp on them.

How about this lectern, this podium, this wooden thing? Who has rights in this piece of property? It has an owner certainly; let’s assume that’s the hotel. In the absence of any other agreement, the hotel would have an exclusive right to control and use this podium. But a lot of other people have an interest in it. Who are some of them? Second Renaissance Conferences has a contractual interest in having it here for me to use. Do I have an interest in it? Yes, through Second Renaissance, I have an interest in making sure it’s here, and in moving it around to suit my needs. Do you in the audience have a right in this podium? No, no right to come up here and manipulate this podium, at least while I’m talking. How about — let’s throw in the bank here, just to make this more complicated. Suppose Doubletree Hotel needs financing to operate this whole business, keep the lights on, keep the employees paid, and they have a line of credit. So they get loans from the bank, and I’ll draw another rectangle here on the whiteboard. The bank lends money, and Doubletree promises to pay it back. But, does anybody know what typical arrangement is made to collateralize the loan? The bank takes a security interest in the building and its contents; they want to have assets to go after if Doubletree doesn’t pay back its loan. So, the bank says “Doubletree, you’ve got a building, you’ve got all this furniture in the building. If you, Doubletree, don’t pay the loan back, we want to have the sheriff come in and sell this podium at auction. The bank has a “security interest” in this particular podium; that’s a legal relationship, a kind of invisible filament that you don’t see, but it’s there and it’s real — and if, unbeknownst to us, Doubletree is not paying its bills, then the sheriff could come in through that door, come up to the podium, grab it, take it out and sell it.

Any questions so far? That’s our third difficulty in appreciating the value of our legal system. Jason: (You asked if any of us have an “interest” in the podium. Is “interest” a technical legal term?) What I meant by the question was an ownership interest that would permit you to physically manipulate it. Now maybe your relation with Second Renaissance and the hotel is such that, after class, you could come up, stand by it, put a Coke on it, or move it away to make room for a dance floor, so you have some privileges in it, within a certain context, but not within the context of the lecture itself. But let’s not get sidetracked on the terminology.

Let’s look at a fourth and final problem facing us in appreciating the value of the American legal system. That’s the need to focus abstractly on the legal system’s effects on our daily lives, on our activities. What is the “value added,” so to speak (and I want to give credit to Paul Blair for this, because he was asking me some pointed questions after the lectures last week that got me to thinking about this) — what is the value added by the legal system to the transactions by which we build an advanced industrial civilization? The legal system cannot take credit for the actual productive activity of building a building, or creating a new invention, or building a machine. But what you need to think about is: How is the legal system facilitating the unleashing or release of economic productivity? Let’s take another little example, just to get us thinking about this. And again, this is not truly preliminary so much as getting into the heart of the matter. And the example I’m going to use is going to get a haircut, which believe it or not I did before coming to the conference — even though it’s thinning, there’s still enough there for me to pay for a haircut. So I went to the Hair Cuttery, which is like what used to be called a barber shop — you walk in and get a haircut without an appointment. So I drive up in my car to a strip shopping center and here’s the Hair Cuttery, with a sign over it bearing its name. I walk right in the door and sit down. They ask my name, I tell them Tom. They put that in a computer that puts me on a waiting list. After a while, they call my name. I go back and sit in the shampoo chair and get a shampoo. They invite me to the barber chair and I sit down. They start to trim my hair. They ask me what I want, I say a trim. They finish up. I get up, go to the front counter. I give them fifteen dollars. On the wall there’s a price chart — it’s a twelve dollar haircut. I give them fifteen dollars and walk out the door. Now I’ve got a haircut and they’ve got my fifteen dollars. That’s a typical transaction in daily life. Maybe three or four words were spoken. I gave them my name and told them what I wanted: “Tom” and “trim” were about the only words spoken. What has the legal system done to facilitate what just happened?

Ask yourself some questions: How did I know that I could just walk into that building, onto that land, without trespassing against, and initiating force against, and violating the rights of, the owner? How did I know that? They’ve got a sign up there that says “Hair Cuttery,” but it doesn’t say, “Mr. Bowden, please come into my shop.” It doesn’t say that explicitly, does it? Suppose the owner comes out and says, “What are you doing in here? I’m calling the cops. You’re trespassing.” and I say, “Well, there’s a sign that says ‘Hair Cuttery.’” And he says, “So what? I just like to have a sign that says ‘Hair Cuttery’ on my property. That’s my concern, not yours. It’s my property. How dare you enter it?” The policeman, if called, would not drag me away. Why? How did I know that I was permitted to go in? Because we have an understanding of the law. There is actually a law of contract and a law pertaining to what constitutes an offer to enter into a building and do business there. You can actually look it up, and this idea that Lin suggested that we are business invitees — that would be the more technical, legal term for it. You’re a business invitee when there’s a sign outside that, in normal understanding, means “Come on in and get a haircut.” You could look it up, but you don’t. Why not? It’s like breathing and eating and talking — it’s all automatized, you’ve done it so often, it’s in the atmosphere. But what we’re trying to do is crystallize it out of the atmosphere and hold it in our hands and say, this is valuable — the law that permits us to act this way adds value. It adds value because, what would I have to do if we didn’t have that law, and I wanted a haircut? I see the Hair Cuttery sign and go up to the door, but how do I really know who owns that land? Suppose I go up to the door and say, “Excuse me, could I get a haircut?” and the guy inside says “Yes.” How do I know that he even owns the building, that he has permission to let me in? I don’t. If you start to imagine the amount of negotiation and conversation you’d need in order to get something done in the absence of law, you start to appreciate what we’re talking about.

How did the barber know she could take the scissors out and start cutting my hair? If I were walking down the street, could this same person come up to me and start cutting my hair — throw me down to the sidewalk and start cutting? Of course not. How did the stylist know? (You sat down in the chair and gave your name.) Okay, suppose I sit down in the barber chair and she comes up and starts cutting my hair, and I say “Get away from me! I’m calling the police! This is assault and battery, an offensive contact that violates my rights.” How can that stylist be sure she can cut my hair without being guilty of assault and battery? We all know that you can just sit down in the chair and not say anything, and the stylist will just start cutting. The point is that you don’t have to negotiate a contract; the law implies a consent to that haircut just by the act of choosing to sit down in the chair. So, what the law is doing is conforming itself to the way people want to live their lives. Every time you run into somebody, step on somebody’s property, you don’t want to sit down with lawyers to enter into a negotiation about what you’re consenting to and what’s going to happen next. So the legal system gives you, in essence, prefab or precut consensual solutions, or patterns of consent where one act, or one signature on a piece of paper, has large implications that leave you free to not spend all your time in legal negotiation and discussion about consent.

Not all the questions are this easy. You know you can walk into the Hair Cuttery because the sign is there and everybody knows that stores are open to the public. But suppose you’re the tenant, and you’re renting that shop from a landlord. And the shop burns down in the middle of the night. It’s gone, destroyed, all your equipment up in smoke. And the fire is not your fault and not the landlord’s fault. Can you, the tenant, refuse to pay the rent the next month, without thereby initiating force against the landlord? Can the landlord refuse to pay for your lost barber equipment? It burned down with his building; can he refuse to pay for it? The point is not so much to answer the questions right now as to say, it’s not self-evident whether the rent should stop or who should have to pay for the equipment. The landlord could say, “It’s not my fault that the building burned down; I still want rent.”

We’ve now reviewed four difficulties that stand in our way of law appreciation, and they’re mostly difficulties of abstraction: (1) abstracting away from everything else to look at the legal system, (2) abstracting away from its vices to look at its virtues, (3) abstractly focusing on the legal relations among ourselves , and then (4) abstractly focusing on the effects of the legal system on our daily lives and activities. So we are going to have to be at a high level of conceptual focus in this class. I know it’s a 9 a.m. class. How many people here are morning people, how many are evening people? Oh no, we have more evening that morning people. I think if we can keep our energy up, I have every confidence this audience will surmount these difficulties, take these in stride, and arrive at the end of the course with a greater appreciation of this legal system.

Now let’s do another little exercise, to get us deeper into what I’m talking about. We’ll take a very simple type of legal device — the traffic light. It’s got a red light, a yellow light, and a green light. And you’ve got intersecting streets. I’m drawing a picture of an intersection with a traffic light. We’re all immediately aware of how traffic lights work; they have a calming effect on traffic. They tell us when we can come and go. They control the flow of traffic through an intersection and make for a smooth flow. Suppose, just as a mental exercise, you go to sleep one night and wake up the next morning with complete amnesia about the traffic laws, and the traffic lights have disappeared. You get up and get dressed, have breakfast, get in your car to drive to work. And you come to the first busy intersection where there used to be a traffic light and there is none. All you see is cars coming at your from all directions. What are you going to do? (Slow down.) Right; what’s next? At the intersection you’re going to stop. If everyone’s coming to the intersection without a traffic light, and everybody’s forgotten the traffic rules, who’s going to do anything besides stop? Jack? (I’m going to turn around and go home.) Jack’s going to turn around and go home, and that is the message of the course; Jack’s got it. He’s excused from the rest of the course. If we don’t have the rule of law, then we might as well go back to the cave and the jungle. We might as well go back home, because we are going to be in a completely primitive state of affairs. But let’s play this out, because I want to use this episode later. So we agree we’re all going to stop. What’s the premise on which we stop? Safety. Is it only danger to us? We’re afraid of being crashed into, but what else are we afraid of? We’re afraid of crashing into someone else. Why? Why do we care? We value life; we don’t want to hurt others. Take that a little bit further. What is your regard for other people at this intersection. You don’t want to hurt them. Why? What value do they have to offer you in society? It’s the trader principle. They’re the people who are going to work, where they will serve your coffee and provide your groceries and manufacture your cars and so forth. You want them to flourish and be healthy. You want to avoid initiating force against them. So you stop. What’s next? Everybody’s stopped at the intersection. You still want to get to work. What are you going to do? (Drive out slowly and see whether anyone starts coming.) Well, that’s one option, but suppose everyone does that; now there’s a jam-up here in the middle of the road. (Make contact with other drivers.) Right — you’re going to make contact with other drivers. You might wave to someone, to indicate “come forward.” But what’s the problem with that? I wave to this person, but what about the rest of them? We may arrive at a little agreement — this driver can come across in front of me, and I won’t regard that as forceful against me because I gave consent, permission. That doesn’t apply to the other people at the intersection. So, that’s not going to work.

So pretty soon everybody is going to be out of their cars, talking, trying to come to some consensual arrangement of how we’re going to get through this intersection. And it’s a complete mess. You can’t do it; even if the first ten cars manage to do it, the next ten cars are going to have the same problem. It’s going to be a tremendously difficult thing to accomplish. Pretty soon, somebody is going to get angry and get in their car and drive, and then somebody else is going to follow, and there will be a crash, and a fistfight, and a gunfight. It’s anarchy.

What does this illustrate? On one level, it illustrates that traffic signals are effective devices. On a deeper level, it illustrates that they are effective because they present objective, understandable, knowable directions that everyone regards as having the force of law, that actually have the force of law. But the deeper premise that we just mentioned is: The reason they work, the reason people observe the traffic signal, is that everyone in the situation wants to interact without initiating force against anyone else. This is the good part of wearing rose-colored glasses, because we get to pretend that all the citizens are objective, all the citizens are good people, because this is what we’re building toward — a society in which (almost) everyone wants to do the right thing. We all want to interact without initiating force, without violating others’ rights. We just want to know in advance whether what we want to do is in danger of hurting someone. That’s what we want out of the law. As Objectivists, if we know anything, we know that the cardinal sin of social interaction is initiating force against another’s person or property. It follows that a primary social virtue is to respect the rights of others and refrain from initiating force. But then the question arises: How do you do that? By what mechanism can you achieve a state of affairs where we all know in advance whether what we’re planning to do is going to violate our neighbors’ rights?

In primitive societies, if you want a contrast, you don’t have a legal system. As a result, you have great uncertainty in all social interactions. I was on vacation in Vermont recently, sitting in the lodge reading the New York Times, and came across this article out of the New York Times Magazine dated July 1, 2001, titled “The Poor Man’s Capitalist.” It’s an article about a Peruvian economist named Hernando DeSoto. Who’s heard of this guy? Three people. This is a guy who likes to go around and look at primitive economies, and what he finds there is that poor people are not as poor as you might think they are. They have wealth, but it’s not titled. It’s not protected by the legal system in any way that permits them to use it, to trade it, to put it up as collateral. Remember we talked about the Doubletree Hotel putting all its furniture and equipment up as collateral to borrow money from the bank. If you’re a poor person in Haiti and you’ve got this little shack, and you want to open a food stand in the market, and you want to borrow some money from a bank to do that, you can’t do it because you don’t have a deed, you don’t have title. In fact, the example DeSoto likes to use to describe this uncertainty is, he’s talking about parts of the world, I believe it was in Haiti, where the question is: How do you know how far you can walk before encroaching on your neighbor’s land? The answer is that you can walk until your neighbor’s dog starts barking. That’s how they know where your land ends and someone else’s begins. What DeSoto is doing is discovering in these poor economies exactly what we’re trying to discover in this course, which is: What is the value added by the legal system, by the titling of assets and property, and the achievement of certainty in social interaction? Now the thing that bugs me about DeSoto is he comes at it in a particularly pragmatic way, apparently ignorant of the centuries of development of capitalism and the overwhelming proof that property rights are essential to growth, and the overwhelming examples in America and other countries of how you achieve it. So, in typical pragmatist fashion, he goes to Haiti and spends seven years watching the peasants and the natives, and he says gee, if these people had deeds to their property, they could achieve growth. He puts in a plan, gets funding, and after five years there, he says gee, this is really working — maybe we should try it in Ecuador or Peru. So this is the way economic truth gets distorted in a pragmatist approach, philosophically, to the point where it’s virtually unrecognizable. He’s got his hand on a true fact, but he doesn’t need to hang around in Haiti to figure this out.

In contrast to primitive societies, we know exactly how far we can go before we encroach on our neighbors’ land, right down to the inch. How do we know? We have deeds, written documents stating where your property begins and ends. If you look at the description — it’s called a metes and bounds description — you start at a point that’s a stake in the road and go five hundred feet to a tree and turn right and go twenty feet to a rock and turn left — and it describes the perimeter of your property. That deed is recorded in the courthouse. You can use that deed to decide where you’re going to build a fence, and where you’re going to tell your neighbor that he can’t go without your consent.

So in essence, as we go along, there’s going to be one basic question that the legal system helps us answer: Does this particular act that I’m contemplating involve an initiation of force? Will what I want to do violate someone else’s rights? This is the cardinal social question. If I step on the gas and proceed through this intersection, will I be crashing into anyone else? These are the questions the legal system helps us to answer. We could answer them, if given enough time, we could work out the laws of stop signs among all of us eventually, if someone sat at this intersection over a period of months and stopped everyone who came to the intersection and got everyone’s consent to a stop sign system, and hand out a brochure with the rules. You could rebuild the legal system from a state of anarchy. But think how much time and effort that would take. Then think how much time and effort you’re being saved by having these laws in place.

Now a few other matters before we wind up for the day. This course, as you may see, is going to be more descriptive than prescriptive. We’re going to be describing and appreciating the legal system, as opposed to saying how to make it better. I assume, based on conversations with people who took the class last week, my premise is that it’s pretty clear that to reform the legal system is essentially a matter of repealing bad laws. The act of repealing a bad law is not a particularly complex constructive act. It’s nowhere near, qualitatively, the same as having to construct a new law. My whole point here is that there are relatively few new laws that we would have to create in order to achieve an objective legal system. What we’re primarily going to have to do is repeal the bad laws. The only complication there comes in the possible need to phase out certain laws over time, if there is reliance on bad laws, but that’s a technical matter that shouldn’t detain us too long.

Another thing you’ll notice is I’m not putting a lot of emphasis on remedies, on what happens when you get to court, what happens when force is initiated. That’s the way we normally think of the legal system: arresting criminals and punishing them, or getting into court on a breach of contract. What we want to do is step back and look at ourselves as good citizen actors who want to avoid getting in such situations in the first place. We want to be productive and achieve great things. How is the legal system helping us, the great forgotten majority? So we’re going to be de-emphasizing the remedy phase of the law (although it’s still there and still important).

A couple of other disclaimers or points of clarification. My professional focus is as a litigator on the civil side of the law. I have labored in the vineyards of the law for something like eighteen years; I started law school in 1983 and became a lawyer in 1987. So my experience is in the civil law, and that’s one reason, but not really the main reason, why most of this course is going to be on the civil side of things. The main reasons are that the civil laws — the laws of contract, property — are statistically by far the bulk of all laws and the bulk of all court cases, and they account for the great majority of our interactions with each other. We’re not criminals. Criminals are a small sliver of a minority in any advanced, civilized society. Criminal acts can be marginalized for purposes of our discussion. By contrast, ownership of property and the exchange of property permeate our lives every day. I quote from Leonard Peikoff in Objectivism: The Philosophy of Ayn Rand: “The immense field of civil law indicates the range and kinds of disagreements possible to non-criminals.” And later in that book: “‘Civil courts, Miss Rand observes, are the most crucial need of a peaceful society. Criminals are a small minority; contractual protection for honest undertaking, however, is a daily necessity of civilized life.’” That’s what we’re talking about here, the honest undertakings.

A disclaimer: Nothing that I say here is intended to minimize the difficulty of turning around the culture, or to indicate that that’s not the first priority. In order to change the legal system, we must first turn the culture around. I trust that this audience doesn’t need much detail on that.

Another preliminary: many of the things I’m going to talk about are debatable on a practical level. If I say there’s a rule on this, and here’s the rule, and it gives clarity, you may say “That’s the wrong rule” or “Couldn’t it be different?” Yes it could, but this class cannot turn into a debate on that, because we could spend forever. The legal system is the product of centuries of intellectual development. Many of these concepts came about four hundred or five hundred years ago, when things were a lot different, so the terminology may be hard to understand, the concepts may be arranged in a way that, if we were starting from scratch, maybe we wouldn’t do it that way. But if our only house is a house that was built a hundred years ago, and it’s got some problems with ventilation and plumbing, it’s likely in many situations we’re going to stay in it, and remodel it and improve it, instead of tearing it down and starting over. So, in case it’s not clear, when I go into particular cases in detail, you don’t have to take notes necessarily on those particulars, because my point — I’m going to make a special effort not to overload the crow, not to give you too much information. My temptation was to make this course almost like law school, and really get you into the whole substance of the American legal system. I made lists that would be very impressive. But my feeling was that the lists would just overwhelm you. So I am going to depend on your further study and effort to fill in the gaps, but I’m going to indicate the broad outlines.

We’re about out of time. Let me just see — I think this is a good place to stop; we’ll pick up next time, and start to get into the particular areas of activity we need to undertake to sustain our lives. We’re going to be looking at those conceptually and ask, how does the legal system add value to what we want to do? Because at the end of the course, I want you to see — and we’ll do an exercise in this — that there really is no human endeavor that the law cannot facilitate our undertaking, no matter how complex we make it.

• Part 1: Introduction

• Part 2: The Importance of Concretizing

• Part 3: Derivation of Law

• Part 4: Formulation of Law

• Part 5: Enactment of Law

• Part 6: Application of Law

• Part 7: Enforcement of Law

• Part 8: Conclusion

A Celebration of American Law

• Day One

• Day Two

• Day Three

• Day Four

The Remarkable Rationality of the Common Law, by Arline Mann

Arline Mann practiced law for approximately thirty-five years, first as a litigator at Sullivan & Cromwell and then as founder and head of the Global Employment Law Group at Goldman Sachs. Following her retirement, she began to paint in watercolor, and her work has since been accepted in more than forty competitive national and international exhibitions. She had a solo museum show in 2025 at the Customs House Museum in Tennessee (where she lives part-time) and will have a solo exhibition in New York City in 2027.

I went to law school because I wanted a profession. I began without enthusiasm, certainly without passion — in fact, without much interest. A great deal of my first semester was taken up with studying the traditional common law — the law formed in the courts of England over hundreds of years (the law on which American law is based). By the end of my first semester, I stood in reverence of the common law and the common law system.

Why? Because the traditional common law is astonishingly, breath­taki­ngly right, in the sense that it bans physical force and protects individual rights. Its remarkable level of truth, of completeness, of sophistication, rose up and up, from the Middle Ages to the pinnacle of the late eighteenth century. For most of this hour, I’ll try to show you a glint, a sparkle, of the common law at that pinnacle.

I’m going to talk a bit about the common law in overview. Then we’ll do a rather whirlwind survey of the history of law, and then we’ll look at several splendid principles of the common law, somewhat randomly chosen, with a few bits on how the law has gone astray in modern times.

One word to the lawyers in the audience: Do not be alarmed if you find some of the discussion simplified or incomplete. We couldn’t cover everything, so don’t yell at me.

How does the common law system work? Parties who have a dis­pute come before a judge, or a judge and jury (let’s assume for now just a judge). Each side tells its story, with witnesses and so forth, and the judge decides what the facts really are. That is, he tries to figure out what happened. Then the judge determines the appropriate legal principles by looking at earlier cases, or at laws passed by Congress, or at the Constitution. Sometimes the case is novel and he has to formulate a new principle. The judge applies the principle to the facts and announces a result.

Let’s look at an example. Assume that Leonardo agrees to sell Raphael a clean cow in return for Raphael’s horse. Leonardo tries to deliver the cow, but Raphael claims the cow is a little dirty and refuses to turn over his horse. Leonardo sues Raphael. The judge will first determine the facts: Did Leonardo promise Raphael a clean cow? Was the cow dirty? Does it make any difference to Raphael if the cow is dirty? Then the judge will consider the applicable legal principles he knows from prior cases and other sour­ces. For example, if one party to an agreement fails to perform, the other party need not perform. But in this case, the agreement was part­ly performed; the cow was delivered, but not clean, as promised. If this court has never encountered a case like this, involving partial performance of an agreement, the judge may have to formulate a new principle, based on the general ones he already knows. He might decide as follows: If a contract has been “substantially” performed by one side, the other party must do what he promised, but he may sue for any damages afterwards. So, applying the new principle, Raphael cannot back out of the contract simply because the cow was soiled; he will have to take Leonardo’s cow and deliver his horse, but Leonardo may have to pay for the cost of a cow wash.

The rules of law announced by the courts in this way over hundreds of years, in the context of deciding individual cases, are the common law.

In the United States, there are several sources of law. One, as we’ve seen, is the common law, the court decisions. But there are also our federal and state constitutions, and there is legislation. While common law is de­veloped to resolve specific disputes brought to the court, legislation is law enacted ­by bodies like the United States Congress outside the context of any specific dispute. But whether a rule of law is embodied in a court pronouncement or a law passed by Congress, we are talking about state­ments of principle, and principles always require interpretation and appli­cation. Consequently, there will forever be a need for courts to decide how the principles apply to particular disputes between particular parties, like Leonardo and Raphael. The common–law process would not become passé no matter how precisely principles of law were formulated.

Let’s take just a sip of the common law. I want to show you at the outset that even without any background in law, it is easy to see through common law rules to their “good bones,” the sturdy principles from which they are derived.

There is a basic common law rule that when one person initiates physical force against another, the victim may use physical force to defend him­self. But how does the law establish exactly when physical force may be used in self-defense and how much force may be used?

Physical force may be used in self-defense only when, and only to the extent that, it would appear necessary to a reasonable man in that situation. Now, great leeway is afforded the victim; the law understands that the victim must act quickly, under great stress, perhaps in the dark, after being attacked. But if the force used by the victim exceeds what would appear necessary to a reasonable man in that situation, the law says that it is no longer self-defense. If you knock your attacker unconscious and then ten minutes later, when he’s still out cold, shoot him, you were not acting in self-defense; in fact, you may very well be a murderer.

I think these rules are as right as rain. The victim is in this frightening emergency situation through no fault of his own, so the “reasonable man” standard does not require that he judge precisely right. If someone jumps in front of you and waves an authentic looking gun in your face, you are not required to judge correctly whether the gun is real or fake. If you shoot, and the gun turns out to be a toy, you won’t be punished. But you would if the gun were two inches long and played the Anniversary Waltz, no matter how frightened you were. The victim is asked to judge only as well as we can reasonably expect him to judge. The standard is objective, not intrinsic and not subjective. The law does not look at what was actually necessary and disregard how the facts would appear to the victim. And the law does not look solely at what the victim thought was necessary. The law looks at the facts as they would impress a reasonable person.

But that is the limit of self-defense. When the victim goes beyond what reasonably appears necessary to defend himself, he is initiating force. Remember the purpose of government and law in a proper society: As Ayn Rand wrote in her essay “The Nature of Government,” “government is the means of placing the retaliatory use of physical force under objective control.” It is not up to each individual to decide when it is appropriate to use force; that is the province of law. In a proper society, there is one and only one situation in which self-defense may be exercised: when there is no possibility of resorting to the law. Every other response to the initiation of force is vigilantism and anarchy. When­ever possible, decisions as to guilt and punishment should be made in the courts, by objective standards.

Well, this all seems pretty obvious. Was there really any chance of it going wrong? There was. And it has gone wrong. I recall reading about certain murders committed by women who had been married to physically abusive men for years. These women killed their husbands when the women were in no immediate danger; for example, while the husband was asleep. In these cases, the woman had never made any effort to leave her husband or go to the police for help. Nevertheless, some courts accepted the argument that the woman acted in self-defense. There’s nothing subtle here; this kind of decision simply washes away the traditional common law standard for self-defense and substitutes some version of phony “psychological” force for physical force.

With that first example of the common law’s rationality and one modern development, let’s take a look at common law history.

We’ll start at about 600 A.D., when the Anglo-Saxons dominated England, in an era of chaos and unpredictable violence. It was the Dark Ages — an era in which philosophy denounced reason and advocated faith. What could the law have been like in such a society? Well, there were things like the “hue and cry.” If a person thought he saw somebody do something wrong (or, I suppose, if he didn’t much like his neighbor), he called on the community to join in a chase and an unceremonious execution. No laws about what was right and wrong. No procedural rules about how to determine guilt or innocence. Just mob rule.

In time, some foggy rules of right and wrong were defined and admini­stered by feudal lords and the church courts. Basic crimes, for example, like murder and theft. And there were also the beginnings of crude methods of determining guilt. One such method was ordeal. You’ve probably heard of this. An accused thief might be thrown into a lake. If he floated, he was innocent; if he sank, he was guilty. Actually, it sometimes was the other way around! (If you sank, you were innocent.) In any event, you can see that these early methods of determining guilt and innocence were strict­ly supernatural.

When we reach the Middle Ages, the thirteenth century and the rediscovery of Aristotle, there begin to be somewhat more precise formulations of legal wrongs and better ways of ascertaining guilt. One very important element in this progression was the transfer of power, over a long period of time, from local feudal lords and the church to the crown. This process of centralization was a crucial step in the formation of the “common” law, in its original sense as “common” to all the realm of England. Through the thirteenth century, these little seedlings of royal, nationwide law continued to grow and to take over from the more arbitrary and unpredictable local law and, in time, from the law of the church. This same period saw the beginning of the use of “writs.” A writ was a document issued by the king, telling a subject that he could begin a legal proceed­ing in a local or royal court. It was the writs that truly formed the content of the common law. Each writ identified an injury the legal system would redress. You would betake yourself to the registrar of writs to get one of these things issued. Each writ had a name — wonderful, arcane names like “replevin,” which was a writ you would use if someone had wrongfully taken your cloak, for example, or some other personal property. Embedded in each writ were the elements you had to prove and the remedy you received, if you succeeded in proving them. Some of the rules embodied in the writs were medieval, but many, many, were surprisingly good — basic, sound rules about property, negligence, contracts. In time, however, the writ system got just a tad out of hand. In the mid-twelfth century, there were fewer than fifty writs; in the mid-thirteenth century, there were about five hundred. The writs were formal­istic and narrow. If you didn’t pick exactly the right writ, you lost. The end.

This isn’t surprising. Writs were not statements of rights, or of any fundamental principles that might integrate the various writs. Writs were merely statements of permissions the king was willing to dole out in order to satisfy clamors for justice and achieve some semblance of order. And thus it makes perfect sense that they would be very specific and concrete. This was a totalitarian society, and as in any such society, the law was, pure and simple, what the ruler chose to enforce.

The years of the Renaissance, the fourteenth and fifteenth centuries, and then the sixteenth and early seventeenth centuries, were years of wondrous growth in the common law. The reason, of course, was the dissemination of philosophical ideas stressing that this world is real, that reason is competent to understand it, that the goal of life is happiness on earth. And as the era of the divine right of kings waned, the notion of representative government and individual “entitlements,” though still vaguely grounded, spread.

And then, in the seventeenth century, John Locke, among others, gave the common law a gift: a theory of individual rights — natural, inalienable rights. As Harry Binswanger discussed in his lectures on “John Locke’s Political Philosophy,” Locke believed that individual rights arise from man’s nature, and that while individuals convey to government the task of executing the law, they retain these rights. It was these ideas that led to the formation of the United States, the drafting of the United States Constitution, and the creation of a governmental system explicitly based on the concept of individual rights and limited government. The lawyers in the audience will know that it was about this time that Blackstone wrote his famous treatise, organizing and celebrating the common law in the context of nat­ural rights.

What effect did all this have? The concept of individual rights steadied the common law, by providing the foundation it had lacked for those hundreds of years. The concept of rights clarified, strengthened, integrated, and made consistent the good, the noble, the true blue, in the common law. It caused much of the feudal, the primitive, the historically accidental, to fall away. The concept of rights burned the common law pure.

For the rest of this talk, we’ll look at principles that are characteristic of the common law during this period, its epoch of high glory.

First, we’re going to cover four crucial system-wide common law principles. We’ll start with precedent and stare decisis (“the deci­sion is fixed”). A precedent is simply the decision of a court in a case. Note that the precedent is not just the principle of law an­nounced by the judge, but the principle in the context of the facts. The precedent is not just the rule that a victim may use a “reasonable” amount of force in self-defense. The facts of the case surround and cradle the principle announced; the context of the principle, as well as the principle, is an integral part of the law.

Stare decisis means adherence to precedents. It is the policy of the common law to stand by precedent. There are questions about which courts must obey the precedents of which courts, but the important point here is that once a precedent has been laid down, the courts will follow that precedent. This means that they will apply the same principle in future cases where the facts are substantially the same. Or, in other words, where the principle reasonably applies. So, once a court has decided that the reasonable man standard is the correct standard for self-defense, that court and all courts under it must apply the same standard to every appropriate case that follows. Judges can’t go off on a frolic and ignore settle principles. The principles will be binding even if all the judg­es on that court are replaced with others and, to a large extent, in spite of jogs in the political mood of the nation. If an error has been made and a precedent is wrong, of course it should be corrected, but great deference is paid to precedent, and changes are not made casually.

Stare decisis makes the law. Imagine that the members of this audi­ence ­were the judges of the courts of Califor­nia — perfectly honest, intelligent judges who understand the principle of individual rights. And then imag­ine that you were all deciding cases without any obligation to follow any principle other than those set forth in the United States Constitution, without being bound by more specific rules rooted in factual examples. The “law,” if you could call it that, would be inconsistent, unpredictable. And not all judges are honest and brilliant. Stare decisis helps there, too. By requiring judges to adhere to time-tested, intellectually tested law, stare decisis helps prevent errors and corruption, and curbs the effects of bad philosophy. Stare decisis makes principles, broad and narrow, binding on individual judges.

A second system-wide principle: A judge’s power is limited to the particular dispute before him.­ It is the job of a judge to decide actual cases, not to make gratuitous pronouncements of law. Consequently, the law distinguishes between the findings of the court that are necessary in order to resolve the dispute before it and the comments that the court just happens to make along the way. Only the necessary conclusions are law, and only those conclusions are followed as precedent in subsequent cases. Let’s say Ginger calls Whitney a lapsed Catholic, and Whitney responds by pulling out a few handfuls of Ginger’s hair. Ginger files a criminal complaint against Whitney, and Whitney claims that she acted in self-defense. The judge trying the case would have to decide whether an insult is sufficient justification to react with physical force. That deci­sion, which is necessary to decide the case, is law and will be considered precedent. But if the court happens to opine that it should be a crime to skip church, no one need pay the least bit of attention. It is just the bab­bling of a person who happens to be a judge. The bottom line is: courts cannot prance about making up law; a court may create only as much law as is necessary.

Concepts of State of Mind. Our third system-wide topic is the state of mind, or level of intent, of the wrongdoer. The common law is quite sophisticated on this topic. It recognizes a range of states of mind and corresponding moral culpability, and it punishes accordingly.

At the top of the range, in terms of seriousness, are intentional acts. If you are driving your car, and you see someone you loathe walking along the sidewalk, and deliberately aim at and hit him, that would be an inten­tional wrong.

Negligence is another major category of state of mind. Negligence is carelessness. A person acts negligently when he fails to exercise the level of care one would expect of a reasonable person. Back in your car, if you were looking the other way and missed a red light and hit the person on the sidewalk, you were negligent. The shopkeeper who fails to check for banana peels on the sidewalk outside his store is negligent. The negligent person does not know that someone will be injured, he doesn’t mean them to be injured; but if he thought more, or judged bette­r, he would see that some injury might very well occur as a result of his actions, that some injury was foreseeable. In this way, the law holds people responsible for the moral breach involved in failing to focus and think.

Between intent and negligence is an intermediate level: recklessness. Taking our car example, if you knew your brakes were faulty but drove anyway, you were reckless. The person who drives when drunk is reckless. A reckless person may also not intend to harm anyone, but he either knows there is danger — and ignores it — or should have known, just by a moment’s consideration. The possibility of harm is more obvious, more foreseeable, than with negligence. And as the obviousness of the danger escalates, as the level of evasion rises — as it begins to look more and more like the person just didn’t care — the act becomes more serious than negli­gence and approaches intent.

A word here on the distinction between criminal and civil law. In a criminal proceeding, the government makes the charges, and the main purpose is punishment — often incarceration, sometimes death. Criminals are punished partly for practical reasons — to protect other people — but the focus in a criminal proceedings is really on justice, on the moral issue. In a civil case, a private individual or group, believing he or it has been injured, or is about to be injured, makes the claim, and the main purpose is to obtain compensation or some other remedy for the victim.

The dividing line between criminal and civil wrongs is labeled state of mind. If you injure someone, they may sue you in a civil suit and seek compensation from you, whether you intended to injure them or were just sloppy, whether you deliberately stabbed them or negligently dented their car bumper. But criminal law covers less ground. It is only when your act is intentional or, sometimes, reckless, that you may be convicted of a crime and deprived of your liberty or your life. You commit a crime not when you have merely made a mistake, but only when you intended to violate someone else’s rights. You go to jail for aiming the car at the person, not for missing the red light; for deliberately knock­ing someone to the ground, not for forgetting to check the sidewalk in front of your store for banana peels.

What happens when someone is hurt but there is no intent or negli­gence? Should a person be responsible under the law, criminally or civilly, where his conduct results in injury to another person through no fault of his own? The traditional common law say no, and I think the answer should be no. If you get into your car, begin driving, have a heart attack and injure someone else, when you had no reason to believe you might have a heart attack, you should not be legally responsible. You should not have to pay the injured person, and you should not go to jail. You may have caused the injury, but only in a mechanical, involuntary sort of way — really your heart muscle caused the injury, not your mind. You didn’t “initiate” physical force, in any moral sense; in fact, there is nothing you could reasonably have been expected to do that would have prevented the injury. It was, simply, an accident, which the common law, properly, lets lie.

There is a rule of law that holds that in certain cases, one should be legally responsible for injuries caused by conduct that was neither intentional nor negligent. This rule of law is called “strict liability.” I don’t have time to go into it here, but it is one of the topics in the panel discussion being presented by The Association for Objective Law on Monday after Dr. Peikoff’s talk.

We have one last system-wide concept to talk about: injury, or damages. We have discussed the fact that the law generally punishes or com­pensates only when someone has done something morally reprehensible. But is a bad action enough? It is not. With certain limited exceptions, the law does not act unless someone has been injured, or can show some damage. The mandate of the government is limited: it protects rights. Period. It is not philosophy, or religion. It does not, nor would we want it to, make moral pronouncements, or punish immorality that has had no effect on anyone. I did mention exceptions (if you can call them that). In civil cases, the law may act to prevent an imminent injury. It doesn’t punish or compensate; it just steps in to put a hold on things until the respective rights of the parties can be sorted out. There is another exception in criminal law. Criminal law actually punishes attempts — cases where the criminal comes very close to injuring someone, but doesn’t quite. In those instances, what we have is the opposite of the heart attack case: Some force outside the wrongdoer enters the picture to prevent the harm. If it were up to the wrongdoer, he would have succeeded, and the criminal law, which we’ve said focuses on the moral issue, takes notice.

We have time now to look at a few wonderful specific common law rules.

Fraud. Our first topic is fraud. Here’s an example: Carl owns a warehouse in New York. Carl tells Donald, who lives in Cali­fornia, that the warehouse is built of stone and is “fireproof.” Donald pays Carl and stores his goods in Carl’s warehouse, partly because he believes that the warehouse is stone. In fact, the warehouse is built of wood. The warehouse burns down, and Donald’s good are destroyed.

Ayn Rand explained that fraud involves the use of physical force. As with all physical force, the wrongdoer obtains a value without the owner’s consent. In direct physical force, like assault, or robbery, the value is obtained (or destroyed) by a gun, a fist. In fraud, the value is initially wrested from the victim by false pretenses or promises, and then kept with a fist. As in direct physical force, the value is obtained by undermining the victim’s ability to exercise his own judgment and choices. The de­frauder knows that if the intended victim knew the truth, he would not turn over the value.

I’m going to discuss three basic elements of common law fraud. I’ll just list them first and then I’ll say a bit about each. The elements are:

• A false statement of fact by the wrongdoer;

• The victim’s justifiable reliance on the false statement; and

• Damage to the victim resulting from the reliance.

Returning to the nefarious Carl, our question is: Is he guilty of fraud? Carl said the warehouse was stone. Was this a false statement of fact? It certainly was false, since the warehouse was wood. And it was a state­ment of fact; it was not merely a statement of Carl’s opinion. If Carl had said, “I think this is really a terrific warehouse. You’d be making a great business decision by storing your goods here,” the common law would say there was no fraud, even if Carl’s opinion turned out to be wrong. The common law is correct on this point; fraud is punished because it sabotages the victim’s ability to exercise his own judgment. The only way to accomplish that, other than by direct physical force, is by making the facts of reality appear other than as they are. A statement of opinion is some­thing else entirely: one can choose to believe or not believe someone else’s opinion (assuming that you know it’s an opinion).

The second element we’ll discuss is the victim’s justifiable reliance on the false statement. There are two issues here, both concerning causation. The victim must (1) actually have relied on the statement in making his decision, and (2) he must have been justified in doing so. So, if Carl told Donald the warehouse was stone, but Donald used Carl’s warehouse solely because it was located in New York and didn’t give a hoot if it was fireproof, he will not succeed in a suit for fraud when the warehouse burns down — maybe negligence or some other theory, but not fraud. Donald didn’t rely on the false statement in making his decision. He chose Carl’s warehouse for other reasons. The false statement hasn’t caused Donald’s injury.

What about the question of whether the reliance was justified? Assume that Carl’s mother tells Donald that Carl is a liar and the warehouse is wood. And assume that Donald does nothing. Donald is in trouble. He has received credible information that contradicts the fraudu­lent informa­tion, yet he has chosen to ignore it; he will have a difficult time establish­ing fraud. In this situation, Donald was not reasonable, or justified, in relying on what Carl told him — not, at least, without investigating further. Remember, the law properly punishes fraud because it deprives the victim of his ability to act by his own reason. If no sensible person would have been taken in by Carl’s false statement or relied upon it, it is difficult to say Carl deprived anyone of anything; Donald did it to himself.

Finally, in order to establish fraud, the victim must show that he has been damaged as a result of the false statement. Again there are two elements: (1) damage, and (2) a causal connection between the false statement and the damage. So, let’s say most of the elements of fraud are present: Carl lies about the warehouse being stone, and Donald justifiably relies on this false statement and stores his goods in Carl’s warehouse, and the warehouse burns down, but Donald’s goods are saved. Donald will lose his suit for fraud, because he has not been damaged. Or, on the second element, the causal connection, if Donald’s goods are destroyed because of a flood in the warehouse, Donald’s suit for fraud will fail. In that case, Donald was damaged, but the damages are not the result of the false state­ment. The flood would have damaged Donald’s goods whether the building was stone or wood. Remember what we’ve said before about the law requiring damages. The law generally does not punish immorality that doesn’t injure anyone.

These are merely a few scattered issues on one legal topic. Just within the law of fraud, there must be hundreds of equally level-headed rules. But lest these principles begin to look not only clean and sensible, but inevitable and simple-minded, contrast them with some more recently manufactured law. Today we have something I believe was almost non­existent in the common law: regulatory law. Regulatory law requires you to take some action — some often quite burdensome action — not because you have invaded a right or are about to do so, but simply because someone, someday, might invade a right. Fraud is one of the many areas of law that have been debased by modern regulatory law. Lots of regulatory law treats as fraud things that never in anyone’s wildest dreams would have been considered fraud under traditional common law. For example, the twentieth century brought us regulations such as those enforced by the Food and Drug Administration. Some of these regulations require filings with the federal government and certain disclosures to the public — on food labels, for example. Failure to make the filings or disclosures is viewed as a kind of fraud. No matter that there is no false statement, no reliance, no injury to anyone, no physical force, no moral culpability. The traditional common law rules have simply been — swept away.

Contracts. Let’s step back into the land of reason, and another area of the common law: contracts.

A contract is a legally binding agreement to exchange values.

As Ayn Rand wrote in “The Nature of Government,” the breach of a contract involves physical force because the person breaching the contract obtains goods or services, refuses to pay, and then keeps the goods and services without right, by mere possession, by force. The other party did not agree to deliver these values except in return for others. The breach may be intentional or just a result of bad judgment.

We’ll talk about one legal concept in the area of contracts: anticipatory repudiation.

In anticipatory repudiation, one party repudiates his contractual duties before the time set for his performance of those duties. Let’s say Eldon agrees to sell Smoky a truck. Smoky is to pay Eldon for the truck on January 1. Eldon is to deliver the truck to Smoky on January 2. Eldon knows that Smoky needs the truck to do a moving job on January 3. But say that in December, weeks before the dates set for Smoky to pay for and Eldon to deliver the truck, Eldon says he won’t sell Smoky the truck, or he just ups and sells it to somebody else. Eldon has repudiated the contract before the date on which he is to perform by delivering the truck.

Does Smoky have to wait all through December until January 2 to find out whether Eldon will change his mind again and sell Smoky the truck? After all, Eldon isn’t supposed to do anything under the contract until January 2, so there hasn’t been any breach, right? Does Smoky have to risk not having a truck to perform his moving job? If Smoky buys anoth­er truck in December, will he then be obliged to buy Eldon’s truck too, if Eldon is ready to sell on January 2? Does Smoky have to pay Eldon the money on January 1?

Of course not. Anticipatory repudiation is a good example of how non-ritualistic the law is, how smart in understanding its own principles. The actual rule of law is that if you enter into a contract and it becomes clear that the other party is not going to perform, you don’t have to con­tinue to perform yourself. And you don’t have to wait around for an actual breach while your damages mount up; you may sue for damages immediately. So Smoky doesn’t have to pay on January 2. He can buy another truck in December and be reasonably confident that he won’t have to buy Eldon’s, or if he wants, he can sue Eldon in December and try to enforce his bargain.

Of course, you say, what other rule could there be? Well, the law might have said: “How can you sue for breach when there hasn’t been one? And how do you know the other person won’t perform? Even if he says every five minutes that he won’t, and even if he’s sold the truck to someone else, he might buy it back.” But this would ignore several facts: one critical value to be gained by a contract is the ability to rely on what is promised in order to plan one’s life long-range; that is, predictability. If the person with whom you’ve made a contract disrupts your ability to rely on him by threatening not to perform, it undercuts this critical value. I think one could argue that this is a breach in itself. Or, there’s another way of looking at it: the rule of anticipatory repudiation recognizes an important epistemological principle, the principle of contextual certainty. Where it is contextually clear that the contract will be breached, the law treats it as a breach.

Okay, how about some “new and improved” contract law?

Some of the modern contract rules are not quite as carefully wrought as the ones we’ve just discussed. Today, for example, we have the rule that certain contracts are unenforceable because they are “against public policy.”

Now there has always been a perfectly valid rule, unfortunately called a “public policy” rule, that the courts will not enforce agreements to violate someone’s rights. If Velda hires Mugsy to kill Velda’s husband to get some insurance money, and Mugsy doesn’t do it, you will not be terribly surprised to hear that Velda cannot sue Mugsy for damages. And there were, historically, some invalid public policy exceptions to the enforcement of contracts as well. Under usury laws, the courts would not enforce contracts for loans at very high rates of interest. If the borrower refused to pay the high interest, the lender was out of luck. But the category of “public policy” exceptions to the enforcement of contracts has, in recent times, become immensely bloated. Now, if the legal philosophers, the government, the legislature, or some powerful-enough pressure group doesn’t like a particular kind of agreement, it is characterized as being against public policy. Certain terms of installment contracts on refrigerator purchases are just erased by the law, because someone has decided the purchaser was charged too much. Antitrust laws prohibit certain business combinations and price fixing agreements. And in some of these cases, like antitrust, the government not only refuses to enforce the contract if one party breaches it, but also punishes the parties, even sends them to jail, just for making the contract. Not exactly the treatment afforded contracts by the common law’s thoughtful, respectful rules. As always, where the government goes beyond its mandate to protect rights, there is only one thing it is capable of doing: invading rights.

Evidence. Our last area of the law is evidence. Evidence is the area of the law that establishes objective rules of proof to ascertain when there has been a violation of the law. Once we know the rule that murder is a crime, we need to know how to prove guilt or innocence under that rule; we need to know what can properly go on in a courtroom to establish whether there has or has not been a murder in a particular instance. Trials and similar proceedings are methods of establishing the truth, as best we can, and for this, specific methods are required. Just as the substance of the law, like a law against murder, must be objective, so must the procedural rules about how to determine whether a murder has been committed. So evidence answers questions like: Who has the burden of proof? How much proof is required? What witnesses may give evidence? What docu­ments and other items may be offered as proof?

Here’s one nifty issue in the area of evidence: fact vs. opinion. Parties to lawsuits­ are generally permitted to offer only factual evidence in support of their cases, not somebody’s subjective opinions or inferences. It is not appropriate for the prosecution in a murder case to put a witness on the stand who says, “I’ve read a lot of mystery novels, and I think the French maid did it.” Why should we care about the random opinion or speculation of a witness? The judge and jury want and need the facts.

But the law does make an exception where, quite simply, it is sensible to do so. Opinion evidence may be allowed where there is reason to believe the opinion has merit, where it is reliable. This is so especially where there is a need, in the context of that case, to hear the opinion. So, for example, opinion testimony is often allowed where the average person is qualified to form a reliable opinion. JoJo is accused of drunk driving, and Brenda saw JoJo just before he got into his car. Brenda will be permitted to testify that she saw JoJo stumble, of course, because that’s just factual evidence. But she may also be permitted to testify that, in her opinion, JoJo was drunk, because most people can judge this accurately. Another exception is for the “expert witness,” such as the doctor in a medical malpractice case who testifies as to how a medical procedure is customarily performed. You can see that in cases such as this, where the witness’s judgment is reliable, the testimony begins to approach fact; it’s more than the run-of-the-mill opinion.

Another bright, down-to-earth common law rule.

I hope you now share just a bit of my sense of wonder about the common law. And I think wonder is the right word. When I began working on this talk, I thought: One question I certainly will have to answer is why the common law was so good, even before it had any foundation in rights. But I still don’t know the answer. (And I think this is an area ripe for some enterprising legal historian.) The common law certainly was at its best when philosophy was at its best, but so many miraculous rules of law were fully and correctly formed before there was any real concept of rights.

As we’ve seen, however, this does not mean that the common law can survive intact, floating free without the proper philosophical base. It desperately needs a better grounding in the concept of individual rights. No matter how glorious the details of the common law, only a correct philosophical base can make the law incorruptible.

In the meantime, they are still there, mostly, rules of law you all know and ones you’ve never heard of: self-defense and bailments; stare decisis and res ipsa loquitur; tenancy in common, promissory estoppel, collateral es­toppel, and trial by jury. Still there mostly, beautiful and solemn, guarding and protecting you.

Let me start with a couple of things you may not know about the EPA. I want to read from the statute book, wherein the policies that the EPA is sup­posed to enforce are set down in law, written back in the 1970s. First, the EPA is “to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can ex­ist in productive harmony, and fulfill the social economic, and other require­ments of present and future generations of Americans.

Another statement of policy: the EPA is directed “to use all practicable means, consis­tent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and re­sources to the end that the Nation may fulfill the responsibilities of each generation as trustee of the environment for succeeding gen­erations; assure for all Americans safe, healthful, pro­ductive, and estheti­cally and culturally pleasing surroundings . . . .”

Those are some of the general policies that the EPA is to enforce. The EPA also has responsibility under law for enforcing certain par­ticular statutes, among them the Resource Conservation and Recov­ery Act, known as RCRA. That act charges the EPA with the more specific duty of cleaning up groundwater contamination. To what level, to what degree of cleanliness? To a level that will “protect hu­man health and the environment.” Under the authority of this act, the EPA has the power to dictate the way companies store and dispose of hazard­ous waste.

In this reported case, McLouth Steel Products Corporation maintained certain air pollution equipment. I believe they were smokestacks, equipped with scrubbers or some device that would capture pollutants before they could get into the air. The byproduct of this collection was a combination of sludge and dust that contained lead and cadmium, which are hazardous to health if in­gested. This sludge had to be stored in a landfill. By law, the waste had to be stored and managed under a set of very rigorous and ex­pensive controls involving monitoring and all sorts of expenses. The waste in the first instance is presumed to be a threat; however, the company can come in with a petition to “de-list” the waste if it can prove that there is no hazard. So, there is a procedure, a so-called petition for de-listing. If a company succeeds with that petition, then the rigorous and expensive controls need not be complied with. So McLouth Steel filed a petition with the EPA to have this sludge waste de-listed. The EPA then faced the factual question, how likely is it that this particular sludge will leak into the surrounding groundwater and con­taminate other people’s wells and water supplies?

To decide this question, the EPA needed some kind of rule, a standard to measure by. Now at this point, you’ll remember from the Chocolate Milk Man­ufacturers case, there’s a procedure that agencies are supposed to follow in adopting a rule. They’re supposed to publicize it in the Fed­eral Register, open it up for public comments, and only after due delibera­tion publicly enact it as a rule. Well, the EPA adopted a different approach. They had something called “regulation by memo.” Under this practice, the agency just cooked up an internal memorandum, and without following the prescribed procedures, simply gave it the force and effect of law by applying it to particular cases. Now, to deal with landfill cases such as the one involved in the McLouth Steel case, the EPA had come up with a model called VHS, which stands for “vertical and horizontal spread.” This was a physical model of what would happen if certain pollutants were to leak into the surrounding soil, describing how they would spread horizontally and verti­cally. The VHS model, by design, does not take ac­count of the specific facts as to how particular waste is being stored. McLouth Steel could have stored this sludge in stainless steel drums, double thickness, packed in ten feet of concrete with seismic sen­sors — any sort of science fiction precautions you can imagine — and the VHS model takes none of that into consideration. It is assumed in this model that the stored waste will leak. This is what’s called “reason­able worst case assumptions.” The model assumes that the waste will leak, and the EPA’s reason for ignoring the specific fact of how likely it is that the waste will actually leak, is that “it cannot be guaranteed that the site specific circumstances will not change.” So, not only are you guilty until proven innocent, but you cannot even prove yourself innocent unless you can guarantee that nothing could ever happen to allow seepage of the hazardous waste, ever in the future history of the world.

So, in this case the EPA used the VHS model to decide that McLouth Steel’s sludge waste should not be de-listed, should not be declared non-haz­ardous, and therefore McLouth Steel was still subject to all the rigorous controls and expenses associated with the storage. McLouth Steel was not happy about this. It went to court and challenged the internal memo establishing the VHS model, and challenged the process of “regu­lation by memo.” The court agreed with McLouth Steel. The court decided the case in McLouth Steel’s favor and told the EPA, you cannot apply this VHS model to McLouth Steel’s case or any other case until it’s been properly promulgated as a rule. The court remanded the matter, back to the EPA for further action. You might think that’s a good result.

But what did the EPA do? Did it promulgate the VHS model and enact it according to required procedures? No, that would be giving the agency too much credit.

Did it just notify everyone that the old memo was still in effect? No, that’s giving the agency too much credit.

Did they just issue another memo? Nope.

Believe it or not, the agency just ignored the whole thing. Two and a half years later after the court’s decision against it, the EPA had still not acted on McLouth Steel’s petition to de-list its waste. They simply put it in a drawer and ignored it.

In every one of its administrative decisions following the McLouth Steel case, the EPA sim­ply continued to use the forbidden VHS model. (As a footnote to this discussion, when I was researching follow-up cases, every company that I found in litigation was in the bankruptcy court system. If you shoot enough arrows into a body, it will die, but you may not ever know which arrow killed it.)

Now let’s talk about all this from the perspective of our categories. Where’s the objectivity, or lack of it, in this case? (In terms of derivation, I don’t think the EPA has the right to do anything, actually. Its objective is wrong.) In terms of derivation, what is the government supposed to do, when deriving and validating a law? What’s the fundamental principle they should be looking at? (Whether they are protecting your rights.) Yes, your individual rights. And what’s the way that individual rights can be violated? By physical force. So, the government needs to identify whether there is initiation of physi­cal force before writing law in the first place. Do you see that in the laws I quoted here? No, they are not waiting for the initiation of force. They are assuming a threat that may or may not even exist. So, the government is not retaliating in defense of people who are the victims of the initiation of force in the form of leaking pollutants. So, the deriva­tion is faulty from the beginning.

The law is trying to protect “the environment,” which (if it is anything defin­able) has no rights. They are legislating on behalf of future gen­erations, which are only potential people. They want man and nature to exist in “productive harmony.” What in the world does it mean to exist in productive harmony with nature? This is nonobjective deri­vation and formulation. If it’s supposed to be enforcing a policy to be a trustee of the environment for succeeding generations, and provide esthetically and culturally pleasing surroundings, those are issues of nonobjective formulation and derivation. (It’s a direct invasion of property rights, because it’s not for the government to dictate what’s done with property.) It’s an invasion of prop­erty rights. So, not only are these laws and rules not protecting against the initiation of force, the law in itself initiates force against companies to force them to spend money and engage in practices that are not necessary for any legitimate governmental purpose. (The question in my mind is, if this is so apparent, and there must be good lawyers and smart businessmen out there who are on the hook, why don’t they stand up and go to bat?) Why don’t they stand up and go to bat? Well, they did in this case, on the one ground they knew could suc­ceed. And there comes a time when practicalities rule. I don’t know this to be the fact in this case, but after you’ve spent twenty, thirty, forty, a hundred thou­sand, two hundred thousand dollars on lawyers to press a case like this before the agency, and then to appeal it to the United States district court, and then to the circuit court of appeals, and get a favorable opin­ion, and then get it sent back to the agency, only to have the agency ignore it — there comes a time when you ei­ther make peace with the system and give up, or you go out of busi­ness, or both. (Is there nothing that provides for an individual or a busi­ness when he fights the government and wins, to be reimbursed for what­ever hell he went through, financially and otherwise?) Are there provi­sions under the environmental protection laws for you to be reim­bursed in a case like this? I doubt it. There are certain provisions in statutes that allow recovery of attorney fees in suits against the gov­ernment. (But then, the game is stacked, and it’s impossible for you to win, if they want to whip you.) That’s right, and this is an example of how that can happen. There are some agencies that would take this ruling and enforce it, do the right thing, but I picked this case be­cause it shows the dangers of all the different aspects of nonobjec­ti­vity.

Let’s move on to formula­tion, because this is the next issue. Is this law objectively formulated? Are any of these laws objectively formulated? Do you know what is meant? No, you’re shaking your heads. You cannot know what these laws mean. The Resource Conservation and Recovery Act specifi­cally is designed to protect human health and the environment. Well, what does it mean to protect the environment? It is simply meaningless. So, as we discussed, wherever you have a vague and meaningless law, it opens up a wide oppor­tunity for government’s arbitrary discretion, which is exactly what’s going on here. (Why is it not unconstitutional? Pro­tecting people who don’t exist, protecting inanimate matter, which is not protected under the Constitution. Has anyone ever tried to take it to court and see what they would do?) I don’t know if anyone has ever pursued that option. If you’ve got a couple of hundred thousand dollars to throw at it, I’m sure there’s a lawyer out there who would take it, but it’s unlikely that such a theory would prevail. We could say it should prevail, but unlikely as a practical matter that it would in court. If you want to fund that case, come up to me after class and we’ll talk about it. (Bring my wallet.) Yeah, check your wallet.

What other aspects that we’ve discussed in class are implicated here? What’s objective or nonobjective about the enactment of the VHS model? Why is “regulation by memo” nonobjective? What did we say was the essential aspect of objective enactment? It’s supposed to be done in public, according to procedures that are known and have to be followed, ending with a vote or other action based upon the merits established in the preceding procedures. This memo is an updated Star Chamber proceeding. It’s a memo cooked up in some back room, some office at the EPA, and simply enforced. You don’t know who did it, you don’t know why, you don’t know what considerations went into it, and you have no opportunity to fight back. A company defending itself should at least have an opportunity to say, “Look, this memo makes no sense; here’s my alternative memo, my alterna­tive model, for how to deal with these petitions to de-list.” (Well, is it actually published, though, when they finally come up with this memo, or is it just sort of — so even the people who are subject to it don’t even know that it exists, only after the fact?) Well, your question is, is it published? It’s not published where it’s supposed to be, in the Federal Register, for public comment. But it is published, in the sense that it’s given to the people who are subject to it. But it’s given to them as a fait ac­compli, as a rule that’s binding on them. The specific timing I don’t know. (Someone could have laid up tens of millions of dollars to build a project and right in the middle of the project, someone delivers a letter and says your entire project is invalid because it violates this memo which we wrote up last night.) Yes, that could be an even worse horror story. You could imagine ramifications of this kind of thing.

How about application? Is this an example of objective or nonob­jective application of the law? Back when the EPA was deciding whether to grant McLouth Steel’s petition to de-list, in that pro­ceeding, was there objective application of the rule? No. Why not? (Because they failed to take into account information about how safely the materials were stored.) Exactly. The evidence, the actual facts of real­ity, were ignored by the rule, so that the initial application of the law was nonobjective. The VHS model itself and the rule in which the model is embodied simply do not take account of the actual facts.

How about the court decision dealing with the McLouth Steel case? How do you analyze that, within this context? Remember that the court sent the matter back to the EPA be­cause of what about the VHS model? (They didn’t really rule on the law, they ruled that the agency wasn’t following established procedures.) Right. On procedural grounds, what we would call lack of objective enactment, the matter was sent back to the EPA for corrective action. So in that lim­ited sense, wouldn’t we have to say that the court decision was ob­jective? It was doing the right thing within that limited context. That’s the one ray of rationality in this whole mess.

Now, how about objective enforcement? What does it mean for the EPA to let the court decision sit in a drawer for two and a half years? (Basically, they’re forcing the company not to proceed with de-listing.) Okay, but what does it say about how the EPA regards itself? Is it subject to the law? No, it regards it­self as outside the law, outside the court system. It’s a law unto itself. How is the EPA any different from Constable Luney, who said, in essence: “I am the law. I don’t care a damn for his booklaw.” (He was honest about it.) Constable Luney is a hundred times more honest about it in 1851 in California. He comes right out and says it. The EPA is too cowardly to say it. They just sit in their little bureaucratic offices and ignore the law. (Well, I have a question. The court ruled that so-and-so should do such-and-such. But now, does the court just as­sume that so-and-so is going to do such-and-such? Do they have any fol­low-up powers to make sure that they do it?) Yes, there are follow-up proce­dures, but they rest with the parties. If the court sends a matter back to an administrative agency, and the agency does not act on it, it’s up to the private party, McLouth Steel, again to start another legal proceeding to force the EPA to rule. So it becomes a very expensive, drawn-out, time-consuming and oppressive process. I didn’t see any subsequent history to this case. (Isn’t there a certain amount of injustice in that? After a ruling has been made, and then it’s not followed through, then shouldn’t the court costs have to be paid by the other party?) It shouldn’t happen in the first place. From beginning to end, this whole procedure, from the law it­self, to the application, to its enforcement, shouldn’t have had to happen in the first place. So, it is a tremendous injustice. (Yeah, well, this would seem parallel to someone being convicted of murder, and then they just let him go. The court rules and they ignore the ruling.) Or someone’s ac­quitted of murder and they keep him in jail. Take your pick. (The great injustice here is not only that this can happen and does happen, apparently, and we don’t know about, but there’s nothing in the law that provides the proper protection for the people.) From Day One, the rights of the people are being ignored and invaded, not protected. So, the whole tone of this thing is set from the derivation of these laws and regulations in the first place. Once you have nonobjective law in content, then it corrupts the rest of the system. Certainly, this whole area of ad­ministrative law is one that we could talk about. We haven’t in de­tail, but administrative agencies in this country are vested with huge amounts of discretion based on nonobjective laws in the first place. So, the Federal Trade Commission and the Securities and Exchange Commission and the Federal Communications Commission and all these various alphabet agencies are operated under laws that are nonobjective, so they have tremen­dous discretion to rule the lives of the industries that they regulate, and everyone who’s had contact with these agencies knows the dubi­ous and devious techniques that they use to control you. Leon, a question? (That doesn’t surprise me. What surprises me is there’s nothing in the law to cor­rect these injustices.) Well, it surprises you that there’s nothing in the law to correct the injustices. But the whole point of the laws is to create injustices. The people who make these laws want the government to act in a certain way that is unjust. They don’t want to cure that, they want to keep it going. (Leon’s not talking about in this particular law. He’s talking about in the general law, there’s nothing to protect us against this kind of injus­tice. If you could get the money back, then it would be easier to fight it. That’s the great injustice, that there’s nothing there in general to protect people.) Well, I’m not sure I would agree that that’s the injustice, just not getting your costs back. I think the injustice in the first place is the law and its enforcement. (If a guy goes out and kills somebody, that’s bad, but if there’s nothing to properly punish that guy, that’s worse.) Right. Well, under the system as it’s set up, you can’t really punish these agencies. I mean, you can win a particular court case, and I would have to say that most agencies, if they had lost this court case, would probably go back and throw out this VHS model and enact another model properly. But it would still be nonobjective, and there would be no way to get your costs or damages back, because the whole point of the law is for the government to exercise arbitrary, nonobjective con­trol over your lives. So you’ll never see a law that builds into it recom­pense for the injustices that the law is designed to wreak upon you. (If an agency defies a court ruling, you can’t go just with a cheapo lawyer and say, get an injunction to say “you will now enforce this ruling that was made a year ago or two years ago”?) It’s not cheap, but you can certainly do it. I don’t mean to imply that it can’t be done. But it’s another huge court case, I guarantee you. (When Leon is say­ing that there’s nothing in this law that’s going to allow us recompense, we assume then from your state­ments that there’s nothing in the Constitution, Bill of Rights, nothing in the United States legal system, this is like a Rus­sian Czar, these federal agencies that have unlimited, or almost unlimited power, and we have no practical recompense.) No practical recompense. Under a proper theory of consti­tutional interpretation, I think you could sweep away a lot of these laws. But we don’t have that, and as a practical matter, today you’re dealing with a system that has the de­sign that it has, and has this kind of effect. Lowell, a question? (Am I not right, then, that when the Supreme Court has been asked on these matters, that they have actually said that this is a legislative issue and we won’t rule on it? Not in this specific case, but in other parallel regulatory cases.) Well, what the Supreme Court would normally say in a case like this is that the power to regulate interstate commerce has been vested in Con­gress by the Constitution, and this is a proper exercise of Con­gres­sional discretion, to delegate this kind of matter to an agency such as the EPA. This whole procedure has been upheld over the decades, so you’re not going to have — (So, if you don’t like what this particular law says, your remedy is legislative, not judicial, is their standard view.) Yes, there’s not any magic bullet court case out there that’s going to cut the legs out from under this arbitrary system and tomorrow we wake up and have a wonderful government. (We’ve got he entire history of antitrust law backing the EPA, all the decisions that have been made back­ing arbitrary rules by government.) Yes, this is what I tried to say ear­lier. The United States government has been inconsistent in striking down laws as vague on constitutional grounds. They will do it in certain minor cases, but in the big cases they don’t have the guts or the principles to do it. (If you follow through the logic of this situation, if the Supreme Court ruled that the EPA was wrong, the EPA could ignore it.) Exactly. The EPA could ignore the Supreme Court. And again, this is an unusual case, and I don’t want to give the impression that every bad aspect of this case happens every single day. Most agencies will obey a ruling of the circuit court. I picked this case to show you how bad it can get, and to illustrate all five of the different categories of objec­tivity.

I want to wrap this course up, and then I have a little treat for you. My theory is that you sit down to a meal for nutrition, and you want to eat all your meat and vegetables and so forth, and you’ve all done that very pa­tiently. My approach to eating is that everybody deserves a little bon-bon at the end, with little or no nutri­tional value, pure pleasure. So I have a little item that I’d like to take the last few minutes of class to read to you.

First, the serious conclusion. I started this course by describing the trial by ordeal, the trial by water. My purpose in be­ginning with that was to give us a kind of benchmark by which we could remind ourselves at a glance how far we’ve come in the centu­ries that separate us from the Dark Ages. I know when you deal with a case like McLouth Steel it’s hard to recall that. But if you look at the big picture, and I hope I’ve given you some indication that there is ob­jectivity in our system, there’s a lot of it, there’s a lot of good things in the law, and we are a whole lot better off now in the development of a legal system than we were in the Dark Ages. And I just want to give you one quotation that sums up eloquently the reverence I feel for the philosophers, the lawyers, the judges, the lawmakers who have bequeathed to us, this current generation, a very rich legacy of objective law that we can use to build a better system in the future. The author of this quotation is Sir James Mackintosh, a figure of the Scottish Enlightenment. He said, and I agree:

There is not, in my opinion, in the whole compass of human affairs so noble a spectacle as that which is displayed in the progress of jurisprudence; where we may con­template the cautious and unwearied exertions of wise men through a long course of ages, withdrawing every case, as it arises, from the dangerous power of discretion and subjecting it to inflexible rules, extending the dominion of justice and reason, and gradually contracting within the narrowest possible limits the domain of brutal force and arbitrary will.

With that thought, I will draw the main presentation to a close, in the hopes that I have achieved my goal of concretizing the principles of objective law.

But let’s end with an after-dinner mint, all pleasure without nutrition. I came across a lot of things in researching this course that I couldn’t find a way to fit in. This homemade will is one of them. This is the Last Will and Testament of Herman Oberweiss, of­fered for probate at the June 1934 term of the County Court of Anderson County, Texas. This is the actual text of Herman’s Last Will and Testa­ment which, as he will explain to you, he wrote out himself; he didn’t want to use a lawyer. I was tempted to improve the punctuation and capitalization, but I refrained from that because you really get a feel for Herman’s lack of formal education coupled with a strong will, if you’ll forgive the pun. This is what Herman wrote out almost a century ago. Read it slowly to puzzle out what he’s saying. What tickles me about this document is how Herman just took the bull by the horns and said what he wanted to say, complete with all the slang terms and misspellings he could cram in. He wasn’t intimidated by legal formalities. He used the law to achieve his purposes, and isn’t that way it should always be?

I am writing of my will mineself, that this lawyer want he should have too much money. he ask to many answers about the family. First think i dont want my brother Oscar to get a god damn thing i got. He is a mumser and he done me out of four dollars fourteen years since.

I want it that Hilda my sister she gets the north sixtie akers of at where i am homing at now. i bet she dont get that loafer husband of hers to brake twenty akers next plowing. She cant have it if she lets Oscar live on it. i want i should have it back if she does.

Tell mama that six hundret dollars she has been looking for ten years is berried from the bakhouse behind about ten feet down. She better let little Fredrick do the digging and count it when he comes up.

Pastor Ticknitis can have three hundret if he kisses the book he wont preach no more dumhead talks about politics. He should a roof put on the meeting house with and the elders should the bills look at.

Mama should the rest get, but i want it so that Adolph should tell her what not she should do, so no more slick irishers sell her vaken cleaner. they noise like hell and a broom dont cost so much.

I want it that mine brother Adolph be my executer and i want it that the judge should please make Adolph plenty bond put up and watch him like hell. Adolph is a good bisness man but only a dumpph would trust him with a busted pfennig.

I want dam sure the schlaimial Oscar dont nothing get. Tell Ad­olph he can have a hundret dollars if he prove judge Oscar dont nothing get. that dam sure fix Oscar.

[Signed] Herman Oberweiss

That’s the Last Will and Testament of Herman Oberweiss. I laugh every time I read it. I guess it’s not entirely objective, but I understand it all the same. What do you think?

This is a suit fore Mule Steel­ing in which Jesus Ramirez is indited for steeling one black mare mule, branded 0 with a 5 in it, from Sheriff Werk. George Werk swares the mule in question is hisn, and I beleeve so to. On hearing the caze I found Jesus Ramirez gilty of feloaniusly and against the law made and provided and the dignity of the people of Sonora, steeling the aforesade mare mule, sentenced him to pay the costs of Coort $10 and fined him $100 more as a terrour to all evil dooers. Jesus Ramirez not having any munney to pay with, I rooled that George Werk shuld pay the costs of coort, as well as the fine, and in defalt of payment and the said one mare mule be sold by the Constable John Luney or other officer of the Court to meet the expenses of the Costs of the Coort, and also the payment of the fine aforesaid.

H.P. Barber the lawyer for George Werk insolently told me there were no law for me to rool so. I told him I didn’t care a damn for his booklaw, that I was the law myself. He continued to jaw back. I told him to shut up but he wouldn’t. I fined him $50 and committed him to gaol for 5 days for comtempt of Coort in bringing my roolings and dissis­sions into disreputableness and, as as a warning to unrooly persons not to contradict this Coort.

That’s Constable Luney. That’s a man who regards himself as above and outside the law. That’s an example of nonobjective enforcement, because even though the law that was being enforced there, the law against stealing a mule, was a valid law, it was being nonobjectively enforced by a judge who went outside the bounds of the law to establish his own standards and his own rules.

We’re now going to turn to a case in a similar vein, Brown v. State of Mississippi. It’s a 1936 case decided by the United States Su­preme Court. The facts are these: Raymond Stewart was murdered in a small town in the backwoods of Mississippi. The same night that his body was discovered, the county sheriff’s office arrested three black men for the crime. Over the weekend, they confessed to the murder. On Monday, a committee of citizens heard the confession for them­selves. On Wednesday, the grand jury indicted these three for mur­der. On Thursday at 9 a.m., the trial began. On Friday, the trial was over, the verdict: Guilty. The sentence: Death for all three. That’s Mississippi justice in the fast lane. But the inordinate speed with which the system worked was not even the point here. We have to go back to that weekend when these people confessed. I want to talk to you about what happened during that weekend. To do that, I’m going to read at some length from the Supreme Court’s opinion, to give you the flavor of what’s going on here:

The crime with which these defendants, all ignorant negroes, are charged, was discovered about 1 p.m. on Friday, March 30, 1934. On that night one Dial, a deputy sheriff, accompanied by others, came to the home of Elling­ton, one of the defendants, and requested him to accompany them to the house of the deceased, and there a number of white men were gathered, who began to accuse the defendant of the crime. Upon his denial they seized him, and with the participation of the deputy they hanged him by a rope to the limb of a tree, and, having let him down, they hung him again, and when he was let down the second time, and he still protested his innocence, he was tied to a tree and whipped, and, still declining to accede to the de­mands that he con­fess, he was finally released, and he returned with some difficulty to his home, suffering intense pain and agony. The record of the testi­mony shows that the signs of the rope on his neck were plainly visible during the so-called trial. A day or two thereafter the said deputy, ac­companied by another, re­turned to the home of the said defendant and arrested him, and departed with the prisoner towards the jail in an adjoining county, but went by a route which led into the state of Alabama; and while on the way, in that state, the deputy stopped and again severely whipped the defendant, declaring that he would continue the whipping until he confessed, and the defendant then agreed to confess to such a statement as the deputy would dictate, and he did so, after which he was delivered to jail. . . . Further details of the brutal treatment to which these helpless prisoners were sub­jected need not be pursued. It is sufficient to say that in pertinent respects the transcript reads more like pages torn from some medieval account than a record made within the confines of a modern civiliza­tion which aspires to an enlightened constitutional government. . . . The defendants were brought to the courthouse of the county on the following morning, April 5, and the so-called trial was opened, con­cluding the next day, April 6, 1934. It resulted in a pretended con­viction with death sentences. The evidence upon which the conviction was obtained was the so-called confessions. Without this evi­dence, a peremptory instruction to find for the defendants would have been inescapable. The defendants were put on the stand, and by their testimony the facts and the details thereof as to the manner by which the confessions were extorted from them were fully devel­oped, and it is further disclosed by the record that the same deputy, Dial, under whose guiding hand and active participation the tortures to coerce the confessions were administered, was actively in the performance of the supposed duties of a court deputy in the courthouse and in the presence of the prisoners during what is denominated, in complimentary terms, the trial of these defendants. This deputy was put on the stand by the state in rebuttal, and admitted the whippings. It is interesting to note that in his testimony with reference to the whipping of the defendant Ellington, and in response to the inquiry as to how severely he was whipped, the deputy stated, “Not too much for a negro; not as much as I would have done if it were left to me.”

That’s all I’m going to read you out of Brown v. State of Missis­sippi. The convictions were reversed. The point here of course is that this is unjust and nonobjective enforcement, even if these people were guilty. What’s the status of a forced confession, one that’s ob­tained by the kind of force that’s described here by the Supreme Court? What’s the epistemological status of that? It’s arbitrary, meaningless. I would regard it as an assemblage of sounds delivered on order to achieve blessed relief from pain. That’s all it is. A forced confession should have no evidentiary weight in a court of law. The worst thing about this case was that the confessions, ac­cording to the Supreme Court’s opinion, were the only evidence on which the convictions were ob­tained. There did not appear to be evi­dence connecting them to the crime. So I offer this as an illustration of the dangers of permitting government agents to regard themselves as above the law, as separate and apart from the law, as not bound by the law.

Laws can contradict each other. A given law can contradict a higher­ law. That’s what we typically think of when the courts find a law unconstitutional. All it means is that it’s in conflict with a higher law, the Constitution. One law can contradict another law that’s on the same level. The legislature could enact something this year that contradicts something it enacted five years ago. A part of one law can contradict another part of the same law, which is Betsy’s example of the Health Care Omnibus Bill. It would almost be certain that there would be many conflicts and contradictions in a bill of that size that would have to be ironed out. And even if there is in fact no contra­diction, reasonable people can sometimes read the same law and come to dif­ferent interpretations of how that law should be applied.

So, that’s conflict among or between laws. Similarly, people can con­tradict each other in presenting the facts. The traffic light was green — no, no, the light was red. The gunman was a white male — no, he was a black male. This is the stuff, the meat and potatoes of trials that happen in court­rooms every day. Somebody has to sort out who’s telling the truth when two or more witnesses or pieces of evidence contradict each other. We know that contradictions cannot exist in reality, but since it’s possible for hu­man beings to act on, or attempt to act on, contradictory premises, there have to be rules and procedures for the elimination of these contradictions. I think they fall under three basic cate­gories: objective rules of evidence, interpretation, and procedure.

Rules of evidence are guides to the court in trying cases. They en­sure that the inquiry into guilt or innocence is at all times adhering to reality. So you have rules, for instance, that witnesses must have personal knowledge of the case. They have to be the ones who know. The hearsay rule, which we’ll talk about shortly, is designed to make sure that the person on the witness stand is a person who knows the facts firsthand. The relevance rule requires that the evidence in court has to bear on the issue. It cannot be irrelevant or prejudicial. So there are a number of rules of evidence that keep the courts adhering to real­ity.

Rules of interpretation guide the courts in interpreting written documents such as contracts and statutes. Many of these rules have been around for centuries, and they provide principled guides to inter­preting written language. I’ll rattle off a few of them, to give you the gist. You look at the “plain language” of a document, such as a con­tract. You read it and say, what does it mean? You also consider the context in which the words were written, the factual context. You examine the subject matter of the action: Is it whaling? Is it a lease of property? You look at the consequences that will ensue if your proposed interpretation is accepted. And you consult reason and the spirit of the law, the pur­pose of the law. So, you take all these factors together in interpreting statutes and contracts. There are many other rules of interpretation pertaining to different subject matters.

Finally, you have objective rules of procedure, which basically en­sure that everyone gets a fair trial. There are hundreds of these. Court documents have to be in writing, in a certain format, so that everybody knows what’s going on. If you file a complaint, the com­plaint has to make sense. It can’t be frivolous. The court cannot ex­ercise power over you until and unless you have received fair notice of what you are accused of having done. This involves service of process (in a civil case) and indictment or charging document (in a criminal case). If you’ve ever been sued, you know you’ve got to be handed a piece of paper that alerts you to the fact that you have to appear in court on a certain day. That’s an objective requirement.

So, having given you the general category, let’s get down to concretizing and go to Dallas County v. Com­mercial Union Insurance Company. This is a case involving rules of evidence. It was decided by a federal appeals court in 1961. The judge’s name was the Honorable John Minor Wisdom — one of my all-time favorite names for a judge, right up there with Judge Learned Hand.

This case involved the hearsay rule. As its name suggests, the hear­say rule has to do with evidence offered in the form of, “I heard someone say . . . .” The person heard someone say something outside of court, and he wants to tell everyone in court what they said. The rule states that a witness cannot come into court and testify as to what someone else said outside court. The basic premise, which Objectivism en­dorses, is that the ultimate origin of all knowledge of reality is sense impression. A witness is normally restricted to testifying about sense impres­sion — what he saw, what he heard, what he smelled, what he tasted. He was there, he was a witness. That is important because the judge or jury has to determine the facts from what they see in court, in front of them. The trier of fact has to look at the witness and ask himself the following questions, either consciously or subconsciously: Is the witness lying or telling the truth? And as a means to answering that question: Does he answer questions readily and forthrightly, in the way people do when they are consulting their memories of events they witnessed? Or does he seem to be thinking up the answer as he goes along? Is he sweating or wringing his hands, displaying anxiety out of proportion to the understandable anxi­ety of testifying in court? Or is he relatively calm and direct? When he’s asked a question, does he answer quickly and with certainty, or does he shoot a glance over to his wife or his lawyer seeking the an­swer, waiting for someone to suggest the answer? All the verbal and nonverbal clues as to whether someone is telling the truth are what you want to see in person, in court. You know, if you’ve watched Matlock or Perry Mason, that cross-examination is the occasion when one’s ad­versary gets a chance to ask the embarrassing questions, the ones that will catch you in a lie if you’re lying in the first place. Cross-ex­amination has been called “the greatest legal engine every invented for the discovery of the truth.” That’s a quote from John Henry Wigmore, a well-known expert on the rules of evidence. That may be overstated a bit, but by its very nature cross-examination has to occur in the physical presence of the judge or jury, so that the trier of fact can actually assess the truth of what’s being said. The hearsay rule recog­nizes that the jury’s pipeline to the truth is the testimony of witnesses who saw and heard and felt what happened. The hearsay rule is de­signed to make sure that pipeline is not blocked or clogged.

So, back to the facts of the case. This is not Dallas County in Texas, but Dallas County, Ala­bama, the county seat of which is Selma, incidentally the site of civil rights demonstrations in the 1950s. On a sunny Sunday morning in July 1957, the clock tower of the Dallas County Courthouse in Selma commenced to leaning, and started making loud cracking and popping noises, and then it simply collapsed, telescoping right down into the courtroom below it. Remember, it’s Sunday morning, so there’s no court in session. No one is injured, but the clock tower is a ruination. The damages exceed a hundred thousand dollars. Who is going to pay for the repairs? The county government had taken out an insurance policy on the court­house to protect against fire and lightning. Wit­nesses testified that five days before the collapse, this clock tower had been struck by light­ning. And, when the wreckage of the tower was examined, they found charred wood. So the government made a claim on its insurance policy, saying lightning had caused the col­lapse. But the insurance companies refused to pay, as they often do, and the county sued.

At the trial, the insurance companies pre­sented their own theories as to why the tower collapsed. They said it had a faulty design, it was poorly constructed, it had gradually dete­riorated over the fifty or more years since it had been built, and there were structural weaknesses caused by recent installation of an air conditioning system on the roof. The county said, wait a minute, all these theories are wonderful, and we’re very impressed with them, except for one thing: How do you explain the charred wood? The air conditioning equipment didn’t burn the wood. None of the structural theories you’re offering accounts for the charred wood. The insurance companies then said, no, we can account for that. And the lawyer pulls out of his briefcase a yellowed piece of paper which is a newspaper article dating from June 9, 1901, more than fifty years before this trial, from the Morning Times of Selma. The newspaper article re­ported on a certain fire that had struck the courthouse during its construction more than fifty years ago. The article said that the un­finished dome of the courthouse was in flames at the top, and soon fell in. The insurance companies said, that is what accounts for the charred timber you saw. When they rebuilt the courthouse after the fire, they must have used some of that charred timber to rebuild, some of it that was structurally sound but nevertheless had charring on the surface.

Now, suppose you’re the lawyer for the county. The lawyer for the opposition pulls this article out of his briefcase and says, “Your Honor, we offer Exhibit A into evidence.” What do you do? Leap to your feet and say, “Objection! Hearsay! Your Honor, we can’t cross-examine a newspaper. The author of this article is long dead. How can this jury ascertain whether this reporter was telling the truth?” Now, based on what we’ve said so far, you would have to say, well maybe the county is right. But what you come to find when you study the hearsay rule is that there are numerous exceptions to it, based on what are called indicia of reliability. These are indications that the evidence, even though it is hearsay, is sufficiently reliable for purposes of trial. Here are some of the questions that the court asks to determine whether this newspaper article should come into evidence:

First, how likely is it that this newspaper reporter was biased in fa­vor of or against one of the parties to this case? Not likely at all; impossible, in fact. The article was written fifty years ago, while this case only happened a year or two ago. It’s impossible that one of the par­ties “got to” this reporter and bribed him or induced him in any way through favoritism to write something that was false, to benefit one party or the other.

Second, how likely is it that this reporter was telling the truth about this fire? Well, it’s virtually certain. Selma was a small town at this time. A fire at the courthouse under construction was big news. The newspaper would certainly have sent a reporter to the scene. It wouldn’t have relied on second- or third-hand information. And you could not imagine a town newspaper like this reporting a fire at the courthouse that didn’t happen. It’s just inconceivable.

So, for these reasons (and I think this is an objective analysis), the court decides that this newspaper article should come into evi­dence. Now this is as against, and in contrast to, the insurance companies calling a witness, and the witness says, “Well, you know, I was at lunch yes­terday with Maude, the editor of the Morning Times of Selma, and she told me, she’s getting a little up there in age, but she remembers clear as a bell fifty years ago, that courthouse burned, and she’s sure of it.” Now that’s classic hearsay, and that does not come into evi­dence. Why? Because you have to bring Maude in for the jury to decide whether she’s telling the truth. She might have been bribed or have an interest in the case, so you need her on the stand for cross-examination. But the newspaper article comes into evidence because it has sufficient indicia of reliability. And in fact, the in­surance companies win this case. They convince the jury that the lightning bolt did not cause this collapse. I think this case is very in­teresting, because you could imagine that the outcome might have actually hinged on that newspaper article. If you were on the jury, I can see how you could say that this failure to account for the charred timber could be pretty important if lightning damage is the issue. If the in­surance companies have no explanation for that, they might have lost. So that’s the hearsay rule in action, and I think that’s an objec­tive application of it.

By means of contrast, let’s deal briefly with another case on rules of evidence. This one illustrates a nonobjective rule. The case is is Rusk v. Sowerwine, the year is 1810, and the court is the Maryland Court of Ap­peals. The plaintiff was a man named Rusk. He sued to obtain posses­sion of a slave. But in order to prove his ownership of the slave, he needed testimony from a freed black woman named Minta. But he couldn’t put on the evidence, not in Maryland in 1810, because the rule of evidence in that year in that state was that a free black person is an incompetent witness in a case where the parties are free white Chris­tians. So Minta was not permitted to testify, and the appellate court affirmed that result. Without Minta’s evidence, Rusk could not prove his case. So ironi­cally, Rusk (who was himself a free white Christian), lost his case be­cause of a law designed to shield free white Chris­tians from the testimony of blacks. Now this is an obvious example of a nonobjective rule of evi­dence. It leaves the case to be decided on nonobjective criteria, that is, on what­ever evidence was allowed to come in but without the cru­cial evidence that only Minta was able to offer about who actually owned the slave. That was the only issue in the case.

Now let’s move from rules of evidence to rules of interpretation. One of my favorite cases in this area, involving conflicting interpre­tations of the same law, appears in an ancient source, in the writings of Cicero (106 – 43 B.C.), who was a giant of Roman philosophy, especially the philosophy of law. There was law in olden times that provided essentially as fol­lows: When a storm comes upon a ship at sea, and the ship is carrying pas­sengers with cargo, possessions and property, when a storm threatens to sink that ship, anybody who aban­dons ship forfeits his right to all his property on the ship, in favor of anyone who remains on the ship and saves it from the storm. How about that for a legal rule? The idea is to encourage everyone to exercise his free will in the face of danger to save the ship instead of jumping overboard and leaving the ship to founder. And in justice, it recognizes that the brave souls who stay on board and save the ship are entitled to possession of what they have saved. I guess it’s debatable, but I think that is a good law.

Now, here is what happened in the particular case Cicero mentions. A storm came up that was so dangerous, so vicious, that every single sailor and passenger abandoned ship — all but one. The only person left on board was a sick passenger, who by reason of his disability was unable to jump ship. So what happened? As luck would have it, the storm abated and the ship drifted into port, and this passenger must have found the ancient equivalent of the Yellow Pages and called up a lawyer to help him sue for possession of all the property on the ship. And in the letter of the law, you could say he was entitled to it. On the other hand, if you interpret the law according to its purpose, as Cicero wanted us to do, you would say, along with the court in its holding, “The sick man is not within the reason of the law.” It would not be equitable for him to take title to all that property, and benefit from such a windfall, because his remaining on the ship wasn’t a choice that earned him a reward. It was pure accident. I think that’s an example of objective interpretation, by examining the purpose of the law, and the unjust consequences that would ensue from giving every­thing to the sick passenger, the court was able to reach a proper conclusion.

Let me move on to rules of procedure, the third in my series of three categories within objective application of the law. Now as I said, there are a million rules of procedure. They tend to be dry and boring. But by way of il­lustration, I can’t resist throwing in the case of Mayo v. Satan and his Staff. This is a Pennsylvania case from 1971. Here, the title of the case really says it all. The plaintiff, Mayo, actually tried to sue Satan and his staff. I’m talking about the real Satan — Beelzebub, the Prince of Darkness, the Devil himself. The plaintiff alleged in his complaint that Satan had “on numerous occasions caused the plaintiff misery and unwar­ranted threats against the will of the plaintiff,” and that Satan had placed “deliberate obstacles in his path and had caused the plaintiff’s downfall.” The first problem the court had, and this is kind of funny, the judge thought maybe the case should be a class action instead of an individual suit. The case was being treated with the seriousness it de­served, which was not much. But the actual basis on which the case was thrown out was on a rule of procedure. Every defendant is entitled to fair notice that he’s being sued so he can frame a defense. And in this case, there was no evidence that the plaintiff had served notice on the Devil to appear in court. Case dismissed.

Finally, I cannot leave the topic of objective application of the laws without citing an example of one of Ayn Rand’s many brilliant insights on the nature of objectivity. You will recall her point that passionate valuing is no barrier to objectivity. There is no false alter­native between being personally motivated and being objective. Rand wrote: “Most people . . . think that abstract thinking must be ‘imper­sonal’ which means that ideas must hold no personal meaning, value or importance to the thinker. . . . But ‘personal’ does not mean ‘non-objective’ . . . . [T]he more passionately personal the thinking, the clearer and truer.” And I thought of this quote when I came across some words written by Judge Kirby Benedict. Judge Benedict was a judge in New Mexico in its early days as a territory, in the mid­dle of the nineteenth century. At this time, New Mexico was an uncivilized wilderness populated by primitive Indians where there were tiny pockets of Western civilization and law. One of the decisions handed down by Judge Benedict has become legendary in the annals of frontier jus­tice. The year was 1861, and Judge Benedict had just presided over the jury trial of one José Maria Martin. This man was shown in court to have been a cold-blooded killer whose crime was aggravated by great ferocity. Having presided over the trial and heard the guilty verdict from the jury, Judge Benedict is now going to deliver his sentence. And as you listen to this, just imagine if some judge were to talk like this today:

José Maria Martin, stand up! José Maria Martin, you have been indicted, tried and convicted by a jury of your country­men of the crime of murder, and the court is now about to pass upon you the dread sentence of the law. As a usual thing, José Maria Martin, it is a painful duty for the judge of a court of justice to pronounce upon a human being the sentence of death. There is something horrible about it, and the mind of the court naturally revolts from the perform­ance of such a duty. Happily, however, your case is relieved of all such unpleasant features and the Court takes positive delight in sentencing you to death!

You are a young man, José Maria Martin; apparently of good phys­ical condition and robust health. Ordinarily you might have looked forward to many years of life, and the Court has no doubt you have, and have expected to die at a ripe old age; but you are about to be cut off in consequence of your own act. José Maria Martin, it is now the spring-time, and in a little while the grass will be springing up green in these beautiful valleys, and on these broad mesas and mountain sides flowers will be blooming; birds will be singing their sweet carols, and nature will be putting on her most gorgeous and her most attractive robes, and life will be pleasant and men will want to stay, but none of this for you, José Maria Martin; the flowers will not bloom for you, José Maria Martin; the birds will not carol for you, José Maria Martin; when these things come to gladden the sense of men, you will be occupying a space about six by two beneath the sod, and the green grass and those beautiful flowers will be growing above your lowly head.

That’s what I would call objective sentencing. I like that.

We have a little time for questions. Betsy? (Something just recently came up in California about the hear­say law where they, as a result of the O.J. Simpson trial, they passed a law that now allows things like diaries of deceased people to be taken into evidence in a court, and I was just curious what you thought about that?) Diaries are certainly hearsay, in that they are out-of-court state­ments introduced in court to prove the matter that’s in the diary. And the court would go through the same kind of analysis we dis­cussed, to de­termine whether they are inherently reliable. But there are some checks and balances that are not present there that were present in the news­paper article. For instance, the public scrutiny of the reporter’s work. He knows that if he doesn’t tell the truth, everybody reading the paper is going to see the falsehood, and it will harm his reputation. He’s got a big incentive to be accurate. But in the case of a di­ary, there is no such public scrutiny, so a person could write falsehoods in his diary without fear of being discovered. (For instance, Nicole Brown’s diaries, where she wrote that her hus­band had threatened her with physical harm.) You’d have to look at the facts and apply the hearsay rule. It’s a complicated rule, and there’s a lot of law that has grown up around it. I don’t mean to suggest that it’s simple enough for me to know what should be done with Nicole Brown Simpson’s diaries.

Ginny? (I was wondering if you would comment on why Congress was allowed for so long to pass one set of rules for us and one set of rules for themselves, which seems to be somewhat corrected but isn’t completely cor­rected?) You’re referring to the fact, for instance, that members of Con­gress were able to discriminate on the basis of sex in hiring, whereas ordinary citizens were not. I don’t know any justification for it, if that’s what you’re asking. There’s no justification at all, it’s just pure arbitrary fa­voritism. They’re deciding to impose rules on us that they are not imposing on themselves. There’s no justification for it. (I just thought, what recourse does an ordinary citizen have against a Congress that engages in this kind of behavior?) Well, what recourse do you have? Probably not much, aside from voting them out of office. It’s very difficult to sue a member of Con­gress or Congress as a whole, which is what you’d have to do in that case. I’m not an expert in that. There may be a way to bring a test case on that, but I would think that someone would have done it if there was a way, and I don’t recall it having been done. (There’s something wrong when this can happen.) Sure it’s wrong, but Congress and legislators are more difficult to discipline than judges. For instance, a judge can render a bad decision, but then can be overruled by a higher court, so justice can be had within the sys­tem. But there is no higher authority over Congress; the President cannot say, “Congress, you must pass a law subjecting yourselves to OSHA and sex discrimination laws and so forth.” So, there is no easy answer to that one.

King, do you have a question? (Just a clarification on the Dallas County case. Who had to prove what? Why was the insurance company having to prove that the charred wood was from something other than lightning? Wouldn’t the county have to —) The burden of proof was on the county to show that the loss was caused by something within the coverage of the insurance policy. So, they put on testimony about the recent lightning strike, five days before the collapse, which would have been a covered cause. That was enough evidence for a reasonable jury to conclude that it collapsed because of lightning. So then the insurers, in their own defense, had to put on evidence that lightning was not the only cause that could explain this charred wood — the fire from decades prior would explain it. So, that was offered in defense.

(I don’t mean to take the side of Congress, but I believe that the exemp­tions were originally intended because of separation of powers. It wasn’t considered right for Congress to put themselves under control of agencies under the direction of the executive branch.) Oh, so there was a wider constitutional dimension to exempting Congress from these laws on sex discrimination and workplace safety? That’s entirely possible; I’m not an expert in that area. Of course, the essential error is that those laws in the first place should not be ap­plied to anybody. But there may be good constitutional reason for that.

King? (In the cases of Pacific Gas and Trident Center, you said that the Trident Center case was necessarily under the purview of the Pacific Gas decision. ­Wasn’t the judge allowed to break precedent?) In that particular case, no. It has to do with the way our federal system works. The federal courts are sometimes called upon to interpret and apply state law to a particular question. When a federal court applies state law, it has to follow the state law as interpreted by the state’s highest court, unless there is some federal constitutional dimension that overrides the state law. Then, the federal court can set aside the state law and ap­ply the Consti­tution and even invalidate the state law. But this rule of contract interpretation was not seen as raising a constitutional is­sue. Now, if you really work on it and think about it, there probably is some kind of constitu­tional dimension to it, especially if we had rational courts inter­preting the Constitu­tion. But as it’s seen now, in the current state of jurisprudence, it’s a pretty settled issue that the law of contracts is state law, and the federal court has to enforce it as interpreted by the particular state’s highest court.

Another question? (That reminds me, I had a question. Has there ever been a case where someone argued this law is just impossible for any­one to understand, therefore it should be thrown out?) Has there ever been a case where the allegation was it’s unconsti­tutional because it’s so huge that you cannot comprehend it, such as might have been said of the health care package that Clinton put for­ward? I’m not aware of any such case, but I’ve only read a tiny fraction of what’s out there. There may very well be one.

Lowell? (Incomprehensible is usually the defense in pornography cases be­cause the court keeps struggling with what’s the definition of pornogra­phy. It keeps overturning whatever gets put into legislation.) Yes, I think I’ve mentioned that obscenity and pornography are one of those areas that are not objectively formulated and you can’t really understand what it’s all about. With that we’ll close until next time.

Most of the concretes in this area come down to publicity and doing things in the open, to keep the government on the straight and narrow. So we have, for in­stance, public elections to select our agents, and we require these agents to meet and legislate in public, to hold public hearings, public votes. We require trials to be public. Decisions have to be written down and published. Virtually everything has to be done so that we, the citizens, can keep track of what’s going on. There’s a quotation from Andrew Carnegie that always struck me as wise. He was talking about investing, and responding to the conventional wisdom “Don’t put all your eggs in one basket.” Carnegie would say, “Put all your eggs in one basket, and then watch that basket.” That’s what we do with government — we put all our eggs, the exercise of retaliatory force, in one basket, and then we watch that basket like a hawk. So, objective enactment comes down to making sure that we know what’s being done when the laws are enacted, and that they are enacted according to procedures that are “scrutinizable,” if that’s a word. Now, a lot of this involves things you may have learned in high school civics class, so I’m not going to dwell on them overmuch, partly because I was unable to find many interesting cases that concretize the issue. There is a book I would recommend in part, called The Death of Common Sense, by Philip How­ard, and I rec­ommend it only for the concrete examples that he gives. He has a lot of examples of the administrative process, the process of administrative law, regulatory agencies, the alphabet agen­cies at the federal, state, and local levels. He gives examples of how administrative law has run amok and escaped proper scrutiny. I don’t agree with the thesis of his book, which is essentially that these agencies need more discretion. He actually thinks that strict rules for administrative agencies are more stultifying and harmful to business than discretion would be. Of course, the answer is to get rid of them altogether rather than tinkering with their meth­ods.

The one case I’m going to give you is Chocolate Milk Manufactur­ers Association v. Block, decided in 1985 by a federal court. This case involved the U.S. Department of Agriculture, one of those adminis­trative agencies I mentioned. They proposed a rule — administrative agencies are always proposing rules. The rule was to specify what foods would be in­cluded in a certain government-funded giveaway program, to provide food to women, infants, and children. (Again, timeout: I’m asking you to look at the method and not the content on these cases. You have to abstract away from the content if you can.) There is a specific process that governs the department’s en­actment of new rules. They have to be proposed and published in the Federal Register, and then there’s time for public com­ment before they’re enacted, so that everyone who is going to be affected by a rule can have notice of what’s in store and say some­thing in their own defense. This particular rule proposed including milk among the approved foods, without differentiating between regular milk and chocolate milk (which the chocolate milk propo­nents call “flavored milk”). There was nothing in the proposed rule to differentiate between the two types of milk. And in fact, since 1946, when this particu­lar giveaway program had started, chocolate milk had always been included within “milk.” Then some nutritionists and commenters wrote to the agency and said, wait a minute, chocolate milk has too much sugar in it. Why don’t you eliminate it from the list of approved foods?

Here’s the key point: Nobody in the agency had proposed taking chocolate milk off the list. They just sat down and did it. Somebody struck chocolate milk off the list, and so the rule that was eventually adopted excluded chocolate milk. As you might imagine, when this rule arrived at the headquarters of the Chocolate Milk Manufacturers Association, they were not pleased. They sued, and they said in essence: This rule­making proposal gave the chocolate milk industry no clue that they were about to be excluded. The court agreed, say­ing: “An agen­cy . . . does not have carte blanche to establish a rule contrary to its original proposal simply because it receives sug­gestions to alter it during the comment period. An interested party must have been alerted by the notice to the possibility of the changes eventually adopted from the comments.” For these reasons, the regulation was struck down, and the USDA had to go back to the drawing board.

I think this is a pretty obvious, if not pedestrian, example of nonobjec­tive enactment, where the enactment is done outside public scrutiny, without warning, outside established channels, and it simply lands on you one day. What comes to mind is the executive order in Atlas Shrugged called Directive 10-289, which simply appeared in the newspaper one day with a moratorium on all sorts of productive activities. Again, I didn’t find many cases in this area, and I think the reason is that these rules are very seldom broken. We are not at the decadent and corrupt stage where we just wake up one morning and rules appear like thunderbolts in the newspaper, without warning. Betsy? (One of the biggest objections to the Hillary Clinton medical care bill was that it was all formulated in secret, and people didn’t have input into it, and it was too complicated to even read.) Right, there were a lot of secret meetings leading to the formulation of the Clin­ton health care bill, but that was eventually proposed in a formal manner and publicly scrutinized after that. (As much as you can scru­tinize a hundred pounds worth of documents.) Yes, and of course that gets into the area of objective formulation, too. If a law is so long, so complicated, that the human mind literally cannot comprehend it, then you have a problem, and that’s true of a lot of our laws today. That would be a separate ground of objection. (Was Nixon’s wage-price freeze enacted overnight? And if so, was it challenged in court?) I don’t know about that; my guess is that it came from some sort of emergency powers legislation, which would have been invalid in the first place because it emanated from the Com­merce Clause under the premise that the government has plenary power over the nation’s commerce. So, there is certainly nonobjective derivation as well as, probably, nonobjective enactment. All emergency legisla­tion has to be suspect from that point of view.

Let’s concretize this point with the case of Joyner-Pitts v. State, a 1994 decision of the Court of Appeals of Maryland. This is a criminal case. The de­fendant was Jason Lamont Joyner-Pitts. He was accused of murdering his girlfriend’s seventeen-month-old child, Shalena. He was tried before a jury, and the judge in the case instructed the jury that they must be convinced of Joyner-Pitts’s guilt beyond a reasonable doubt. The jury came back with a verdict: guilty. The sentence was twenty years. Then Joyner-Pitts filed an appeal, saying: wait a minute, you can’t convict me because the judge’s instruction to the jury on rea­sonable doubt was so confusing, so rambling, so resistant to under­standing, that the jury did not know what standard to apply in judg­ing my guilt. Therefore the verdict is tainted and has to be thrown out.

Okay, to begin with, what do a judge’s instructions to the jury have to do with the ob­jective formulation of law? Is this really law? My answer is yes, it is law. In our jury trial system, we don’t expect the jury to hear the evi­dence in a case and then go back to a jury room containing a library of law books, and then they pull all the books off the shelf and start teaching themselves the law. That’s completely unrealistic. The jury is composed of laymen who have no knowledge of the intricacies of the law. Under our system, the judge has the job of instructing the jury as to what the law is. He has to formulate it in such a way that it is understandable to the jury. So, in this particular context, what the judge says about reasonable doubt to the jury, is the law that the jury gets. If it’s not clear, then the law has not been objectively formu­lated.

Back to our case. I invite you to sit back and put yourself in the po­si­tion of the jury. You’ve heard the evidence of Joyner-Pitts’s guilt. Imagine you are in a jury box in a courtroom in Prince George’s County, Maryland, just east of the Washington, DC, and imagine that you are listening to Judge Vincent Femia, and he’s going to ex­plain to you the concept of reasonable doubt. This is from a tran­script of the actual instructions. These are the actual words that the judge uttered and that the jury heard.

Let us return back to the state’s burden, called the state’s bur­den of proof. This burden of proof requires that the State of Mary­land convince twelve of you, as I said, that a crime has been com­mitted. And Mr. Jason Lamar Joyner-Pitts is the actor. When I say convince twelve of you, they must convince you beyond a reasonable doubt. Of all the elements that together make up the crime of his involvement, this “beyond a reasonable doubt” is sort of a mouthful of lawyer talk. That phrase is the name that we in the law centuries ago attached to the state of mental conviction at which you must arrive before you can put your hand and say, “I will vote for guilty on that.” Anything short of that you must vote, not voting for guilty you are squarely in the corner of innocence. That state of mind has been variously described as that you be as convinced of what needs to be proven to prove this man’s guilt as you would have to be convinced of something very weighty in your own lives, such as adopting a child, buying a home, getting married. I’ve actually heard it described, when I prac­ticed back in the sixties, judges just used to sit up here and say, “Ladies and Gentlemen of the jury, you will be said to be convinced beyond a reasonable doubt when you are convinced to a moral certainty.” And they usually shook their finger. The problem with that, I always found, was that sort of replaced one totally incomprehensible legal concept with another totally incomprehensible legal concept. Amazingly, the jury would just sit there like they knew what the judge was talking about. I sort of tended to deal in exam­ples. You appreciate, I trust, that in your life, and in my life, every day, every day, we make hundreds of decisions, literally. It is how we get through the day. Some of them are almost mind­less in their im­portance. I use this as an example of that: When you got up this morning, you put your shoes on. Think back to when you got up this morning and put your shoes on. How much thought did you spend this morning on the following question: I wonder what shoe I will put on first today? I will answer for you just like you would have, if called upon. I put the shoes on just like I did every day of my life. I didn’t think about it much. That’s not true — you did think about it. It is a whole series of conscious decisions. Your eyes have to make observa­tions to relay the information to the brain. The brain transmits in­formation and instructions to the arm, the hands, the feet, the legs, otherwise you would put your shoes up on your ears. It’s a whole se­ries of conscious decisions; you can’t put your shoes on in your sleep, not and stay happily married. It’s a low level of decision making. Why? The consequences to your well being and your daily life are almost nil. If you get your shoe on the wrong foot, you will change it because it hurts. On the other hand, suppose when you got up this morning, you had to decide whether or not to get married. Who amongst you would not give a bit more thought to that question than the question of what shoe you will put on. Once again I answer for you: Bet you. Marriage is a biggie. Marriage is one of those decisions in life that will smash you right up against the wall. It will get you physically, financially, emotionally, turn you every which way but loose. Before a sane man or woman enters into that allegedly holy state, they want to know the who, the what, the when, and the god-forbid, the why. To the extent that you, especially I, would have to be convinced to get married, need you be convinced of the elements of the crime and this man’s par­ticipation. You must be convinced of those elements and his participation as you would have to be con­vinced of a weighty matter in your own lives. For indeed, taking an oath to pass upon the guilt or innocence of a fellow human being is a weighty matter in your own life. That is the level at which you per­sonally must arrive before you may raise your hand and say, “I will vote for guilty.” What is that level? I have no idea. There is no way I can tell you. Why? You are different human beings. As you are differ­ent human beings, things will impress you differently. You have a different sense of values, a different sense of weight. My wife and I have been mar­ried for thirty-six years. Over that period, I’ll be you we’ve made tens of thousands of familial decisions, joint decisions, having to do with the family. But if you want to go out and buy fur­niture, it takes a heck of a lot more to convince my wife than it takes to convince me. She knows if she can get me into a store, I will buy everything between me and the door to get out. I’m not an informed consumer. I’m a paranoid consumer. I’m a psychotic consumer. On the other hand, my wife buys nothing before she steps on it, bounces on it, tastes it, holds it up to the light, asks four people she never met before in there what they think of it, and that’s for a roll of Bounty. You should see her when she’s buying sofas and everything, it is an experience. We will make a joint decision; it takes a heck of a lot more to convince her than it takes to convince me. We bring our in­dividual experiences to bear on it. So you don’t think that I pick on her, if you go out to buy a car, my wife only asks one question: Will it show dirt? I live on a country road. Not, “Does it come with a mirror, does it have a warranty, does it have all four tires?” Does it show dirt, because I live on a country road. On the other hand, I crawl around, look under the hood, look underneath, kick it, bang it, pretend I know what I’m doing, which I don’t, of course, it takes more to con­vince me to buy an auto­mobile than it would to convince her. The decision is a joint decision. I do not know at what level you individu­ally will be said to be convinced beyond a reasonable doubt. The standard I just explained to you. What­ever that level is for you, that is the level at which you must arrive before you can decide: Mrs. Lindsey [the jury foreman] mark me down in the guilty column. Anything short of that level is not guilty. Please note, I’m not telling you you must be convinced beyond all doubt. That is not the stan­dard of the law. It is not the duty of the State to convince you to a mathematical certainty of any of these elements. Let’s be honest about it. If nobody got married until they were convinced beyond all doubt, we would all be single. Why? Because we are human beings. We always have that nagging reticence in making important deci­sions. If something can go wrong, it will happen to me. We’ll give it a name. We call in Murphy’s law. We’re not talking about that nagging reticence. We’re talking about a doubt to which you can ascribe a reason. I’m not convinced of this because I do not believe this. The reason itself has to be reasonable. You can’t say, don’t believe that because it’s raining outside. You can say that, but that is not reason­able. Indeed, it is a reason, but it is not a reasonable reason. We are talking about being convinced beyond a doubt, based upon reason, a reasonable doubt.

Now, are you primed and ready to retire to the jury room? What is wrong with this formulation? Just give me some of the top of your head. Amy? (There’s got be a rea­sonable standard. It’s not just based on the individual. You’re supposed to try and project some reasonable person, and how would that person decide the case.) So it should be— (He’s telling them just to go on their indi­vid­ual experiences, even feelings, it sounds like.) So it should be a more ob­jective standard than your own individual feelings. What else? There’s a lot more to this. What principle of epistemology does this violate? (The Crow.) The “crow epistemology,” the idea in Objectivism that a human mind can only hold in mind a very limited number of points at once. Listening to this from the judge, the crow is gone, flying out the window. You’ve got so many home­spun examples and so much about the wife buying a roll of Bounty and the judge buying a car, how do you keep a focus on what you’re supposed to be focusing on. Ed? (The examples he gave are really irrelevant, also. He’s talking about importance, not method of decision, so a rational juror would just junk the whole instruction.) Right, many of the examples don’t illustrate the principle at issue. How about, what does he do explicitly that causes a problem? What does he himself admit to? (He doesn’t know how to do it.) He doesn’t know how to do it. On three or four different occasions, he says this is an incomprehensible legal concept, I don’t know the level, I don’t know how to explain it to you. He says that outright. Even one of those is poison to a rational jury who’s trying to grasp a difficult concept. Anything else? Betsy? (Well, actually there were some parts of it I liked, be­cause he did take an inductive approach to explaining a concept like reasonable doubt.) Fair enough. It’s valid to take an inductive approach, and judges will often do this, and this is part of the point of allowing judges latitude to explain the concept to a jury, because the judge is a particular person in a particular courtroom talking to particular peo­ple. It may be a rural court­room, it may be urban. The examples you give may need to vary with the type of people you see on the jury. You may give a more complex example to a jury that is more capable of understanding it. If you see the jury’s eyes glazing over, you may want to change your example. There is latitude and legitimate dis­cretion to a judge, to use examples to bring the point home. But of course, I think we would agree that, from these par­ticular examples, you cannot arrive by induction at a proper principle. Let me say, at the very end, I think he had one good point that was very nicely put. He explained that a juror cannot say, my doubt is based on the fact that it is raining outside, because that’s totally irrele­vant to the question of guilt. That’s a doubt, you could call it a doubt, but it’s not a rea­sonable doubt. I didn’t have much quarrel with that part of it. But what is he paying attention to, as much as, or instead of, reality? (How each individual feels about something. Everyone’s going to have a different standard.) Yes, feelings. Not only that, but it’s his stream of consciousness. As much as the law, he’s focusing on his own stream of consciousness. My wife and I, how much trouble it is to get married, on and on — there’s a lot more personal observation there than needs to be.

We could go on, but I think this is a good example of nonobjec­tive formulation of the law. You cannot clearly and precisely under­stand this concept of reasonable doubt from this instruction, and I think it was proper for the Court of Appeals of Maryland, the highest court in the State, to throw out the guilty verdict and send it back for another trial, with another instruction. Now, you’re going to ask me, was he convicted the second time around? I don’t know. (I’m not a lawyer, but I have a question. If the decision was thrown out on this technicality, why was he tried again? Doesn’t the law say you can’t be put in double jeopardy?) Well, that would be called a mistrial, because the particular instruc­tion was not proper, so it would be like a misapplication of the law. It would go back for a second trial. Double jeopardy would apply only if a properly conducted trial resulted in acquittal.

Charles, a question? (Judge Femia’s instruction is especially astonishing because all of the judges in Maryland have written objective paragraphs of what reasonable doubt is, and they read that.) Correct. There are so-called pattern jury instructions where all the judge has to do is read the instruction that’s been approved in past cases, and therefore he can’t be faulted for staying with that instruction. The problem is that there can be good reasons for wanting to personalize it, for wanting to make it more accessible, because the pattern instructions are often in terms of broad abstractions, and you do need to concret­ize. I don’t have any problem with some concretization, if it’s short, clear, to the point. So, I wouldn’t want to keep judges bound to the pattern instructions.

Ed, a question? (Well, I have the same question. Wouldn’t the state mandate that regardless of what you do to clarify and personalize, that you must read the standard instructions to the jury? Wouldn’t that be part of the state law?) They don’t require that you read a particular set of instructions, but they require that you cover the basic elements that are contained in the stan­dard. He didn’t do it, so that’s why they ordered a new trial. (Would it be better if they always required you to read a standard set of instruc­tions?) It might be, and they do. It’s just that you don’t have to read it verbatim or in any particular order. You are allowed to personalize it for the jury, because of the considerations that I talked about earlier. You’re dealing with partic­ular people who have to be motivated, convinced, and instructed on how to do a very, very difficult task. You want to give the judge the dis­cretion, on the spur of the moment, to say, “Well, I’d better start at the end with this jury, and go to the beginning, or this particular point in the middle is going to grab this jury based on the evidence in the case, that may be the better focus, so there has to be discretion within limits.” It’s the same principle of objectivity within any field. It’s not subjective, but it’s not intrinsic either. It would be an intrinsic approach to just say it’s got to be these words with no attention given to the particular circumstances of the case.

King, do you have a question? (What, in this case and perhaps in general, is the punishment for the judge who gave bad instructions?) Does the judge get any punishment for this? No. He suffers the embar­rassment of being reversed in writing, in print, and he suffers the scorn of his fellow judges. If he is corrupt, he can be brought before the judicial discipline committee, but in this kind of case, that’s what the appeals process is for. This is an honest error, presumably, on the part of this judge, who thought he was doing the right thing. But there’s no punish­ment, no way to sue the judge, no way to bring this home to him other than the appeal. The appeal makes sure that the right thing is done, because another judge will get the case and will not repeat the same mis­take. If Judge Femia keeps making that same mistake, then ultimately there would be a remedy of impeachment or judicial discipline if he’s just so far out of reality that he can’t obey a decision of a superior court. Be­lieve me, these judges read carefully when they get reversed, and they don’t normally do the same thing again. In fact, the judge may gleefully tell the parties in the next case that he would very much like to rule in a certain way, but he would be overturned, so he’ll have to do the opposite. (Is there a standard of competency for judges?) Yes. They have to be able to discharge the duties of a judge, and if they cannot, they are subject to being removed by the judicial discipline committee. If they become infirm, sick, mentally addled, they can be removed from office. (Do they have to be challenged through this mechanism of challenging their decisions?) There are two different aspects. This is the appeal on the merits of the case. This does not attack the judge’s competency. This just says I, as a particular defendant, should get a new trial. The judge simply goes on about his business and hopefully does the right thing next time. There’s a separate procedure for disciplining a judge if he is out of contact with reality and cannot judge cases across the board anymore, as opposed to making a particular error in a particular case. So there’s a mechanism to deal with the isolated error, and there’s a mechanism to deal with across-the board incompetency of the judge. You can think of judges as employees: you don’t fire an employee for isolated errors, but you do fire them for incompetence.

Another question? (On a mistrial, where the judge confused the jury, who do the whole trial over again? Why not bring the jury back in and have another judge do it?) The members of that particular jury are dispersed, they may have even moved out of state, they’ve forgotten the evidence. You need a jury that has just heard the evidence fresh to deliver the verdict. And besides, the previous jury is going to be so confused by the faulty instructions from the first trial, now they’re going to be wondering, how is this new instruction different from what the previous judge said? That jury is tainted. You have to move on.

Let’s move on another case, Coates v. City of Cincinnati. It’s a 1971 Su­preme Court decision. Again, we’re still on this issue of objective formulation. In that case, Dennis Coates was a student involved in a sidewalk political demonstration. This is back in the early 1970s, with Nixon, military action in Vietnam and Cambo­dia, lots of unrest, lots of demonstrations. Now we don’t even know what conduct Coates was arrested for, because the court doesn’t care since ordi­nance is invalid on its face. Here’s what the ordinance said. It is illegal for “three or more persons to as­semble on any of the sidewalks and there conduct themselves in a manner annoying to persons passing by.” That’s the ordinance. And the court says, we don’t care what he did — if he’s arrested on the strength of this ordinance, then he has to be set free because this ordinance is unconstitutionally vague. And the court points out that there is a constitutional standard for definiteness, and this particular ordi­nance, which establishes “annoyance” as the legal standard, is unascer­tainable. Conduct that annoys one person may not annoy another. The court ruled that no standard of conduct is specified in the law, leaving men of common intelligence having to guess at the meaning of the ordinance. The court held that a court can properly forbid people from block­ing sidewalks, assaulting other people, littering, whatever — as long as the crime is objectively defined. But “it cannot constitutionally do so through the enactment and enforcement of an ordinance whose vio­lation may entirely depend upon whether or not a policeman is an­noyed.” So I think that’s a good objective decision.

Now, I don’t want to leave you with the impression that the Supreme Court can be re­lied upon to strike down any and all improperly formulated laws, be­cause there are many more on the books, from antitrust laws that outlaw combinations “in restraint of trade” (whatever that is), to ob­scenity laws that require adherence to com­munity standards (what­ever those are), to the recently passed communications act that out­laws transmission of “indecent” material (whatever that is). Many instances of nonobjective formulation have always been with us. If you go back to ancient England and look at the crime of sod­omy, you will not see it written down or defined anywhere. In fact, when they wrote out an indictment in those days, they simply wrote down that the defendant was charged with “that horrible crime not to be named among Christians.” They would have defended this practice by pointing out that everybody knew what they were talking about, but that would not pass muster today as objective formulation.

Now there are a couple of cases I’d like to discuss in tandem, the Pa­cific Gas case and the Trident Center case. Again, we’re thinking about the ques­tion of objective formulation, meaning how do you put the law into words so that everybody can understand what it says. These two cases are interesting not so much for their facts as for the philosophical utterings of the judges involved.

The opinion in the first case is written by Chief Justice Traynor of the Supreme Court of California in 1968. These two decisions are separated by twenty years. The second decision is in 1988, written by Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Cir­cuit. The subject matter of both passages I’ll be dealing with is essen­tially philosophical, and the issue is language. Specifically, whether men’s thoughts and intentions can be captured in language, so that strangers looking at those words years later can know objectively what was meant by those words. This is an essential issue in objec­tive formulation.

In the Pacific Gas case (I’m not going to go nearly as much into the facts of these cases, so I can get right to the quotations I want to get to), Justice Traynor in essence held it is philosophically im­proper for a judge to read a contract and determine what it means. Remember, this is California in 1968; that’s about all I can say by way of explanation. Here are some excerpts from Justice Traynor’s opinion: “If words had absolute and constant referents, it might be possi­ble to discover contractual inten­tion in the words themselves and in the manner in which they were ar­ranged. Words, however, do not have absolute and constant referents.” So, we can see, from an Objectivist point of view, that he’s set­ting up the straw man of intrinsicism and getting ready to knock it down. He contin­ues by ridiculing what he calls “the possibility of perfect verbal ex­pression.” He says this belief is “a remnant of a primitive faith in the inherent potency and inherent meaning of words.” Then there’s a footnote where he fleshes out what he means by this “primitive faith” to which he is equating the words of a twentieth-century contract. (Don’t look for a subject and a verb in this quotation, because it’s just a footnote listing his substantiation for this concept of a “primitive faith in the inherent potency” of words):

The elaborate system of taboo and verbal prohibi­tions in primitive groups. The an­cient Egyptian myth of Kern, the apoth­eosis of the word, and of Thoth, the scribe of truth, the giver of words in script, the master of incantations, the avoidance of the name of God in Brahmin­ism, Ju­daism, and Islam. Totemistic and protective names in medieval Turkish and Finno-Yugarian languages. The Swedish peasant custom of curing sick cattle smitten by witchcraft by making them swallow a page torn out of a psalter and put in dough.”

Okay, that’s Justice Traynor’s idea of what it would mean for a party to believe words have intrinsic meaning — a party would be allying himself with that primitive tradition if he were to take the contract and simply read it and say what it means.

In the context of this case, the issue is the parol evidence rule, which says that if a contract is clear — that is, if you can just read it and see what it means — then you cannot allow the parties to get on the witness stand and put a spin on it to say what they wanted it to mean, twenty years ago when they signed it. So, it’s a rule to keep out of court what amounts to irrelevant evidence — if the con­tract speaks for itself, the parties cannot take the stand and testify about it. So, in this particular case, the trial court had invoked the parol evidence rule to prevent such testi­mony by the parties. On ap­peal, Justice Traynor sent the case back down to the lower court to allow the parties to get on the stand and explain what they really meant by the words. That’s the practical result of the case. So, what we have in pattern is, if words have no intrinsic meaning that you can just get by being a passive mirror, opening your eyes and seeing the meaning, then we have to select between conflicting subjective inter­pretations given by the witnesses on the witness stand.­ What’s miss­ing is any concept of an objective interpretation of contractual language.

Now, let’s skip ahead twenty years to Judge Kozinksi. He’s writ­ing for the federal court in the Trident Center case. Once again, it’s a very similar type of case involving a contract. It’s a lease writ­ten by commercial parties dealing at arm’s length, a very complicated lease; each side had an army of lawyers in the negotiation phase. Their sole focus was on choosing particular words to capture in writing what they meant to do. And it’s the same issue of interpretation on appeal: Can a judge read the lease it and tell what it means, or is he required to allow witnesses to get on the stand so that everyone can say what they think it means?

The twist or quirk in this is that Judge Kozin­ski is in a federal court, but he’s required to apply the law of California in a case involving a lease, for reasons we don’t have to go into. So, he’s legally bound by the decisions of the Supreme Court of California, including the one we just talked about, Justice Traynor’s 1968 decision in Pacific Gas, which had never been over­ruled.

So, here’s Judge Kozinski, who starts off by conceding that Pacific Gas controls the outcome of his case. He says:

Pacific Gas casts a long shadow of uncertainty over all transactions negotiated and executed under the law of California. It also chips away at the foundation of our legal system by giving credence to the idea that words are inade­quate to express concepts. Pacific Gas undermines the basic principle that language provides a meaningful constraint on public and private conduct. If we are unwilling to say that parties dealing face-to-face can come up with language that binds them, how can we send any­one to jail for violating statutes consisting of mere words lacking ab­solute and constant referents? How can courts ever enforce decrees not written in language understandable to all but encoded in a dia­lect reflecting only the linguistic background of the judge? Can lower courts ever be faulted for failing to carry out the mandate of higher courts when perfect verbal expression is impossible? Are all attempts to develop the law in a reasoned and principled fashion doomed to failure as remnants of a primitive faith in the inherent potency and the inherent mean­ing of words?

That’s Judge Kozinski’s lament, his protest. In this particular case, he is legally required to send the case back to the lower court, for the witnesses to get on the stand and explain what the words mean. But he’s registering this protest, and he hopes that others will read his thoughts and think about them. Such protests are called obiter dicta, which is a Latin phrase designating words not necessary to render a decision — words that a judge inserts in order to influence people in the future to do the right thing. That’s one of the wonderful things about our system of written deci­sions. There are all sorts of rational dialogs going on in the hallways, as it were, in which judges attempt to persuade other judges and lawmakers to see the wisdom of an alternative way of reasoning.

One further word of warning: what I want you to focus on in all these cases is the method that a court is using, as opposed to the content of the par­ticular case. Objectivity itself is a process or meth­od which has to have some content but can have a variety of dif­ferent contents. So, when I give you a case involving property rights in finback whales in Massachusetts in the 1880s, that does not mean that in the hierarchy of law that whaling is somehow more important than murder, contract, or other areas of the law you might be expecting to be discussed. My examples in this course are drawn from a variety of sources — criminal, civil, old cases, new cases, bad cases, good cases — with the goal of concretizing and illustrating. I’ve also tried to stay away from borderline cases. Hope­fully all of these cases are clear enough to give you the main principle; they are not designed to provoke discussion about narrow or borderline issues.

So, on to our first case: Commonwealth v. Lewis, decided in 1980 by the Supreme Judicial Court of Massachusetts. It’s a murder case. The defendant was Randolph Lewis. Along with four companions, Lewis assaulted a man named Richard Poleet on April 19, 1976. More than two years later, on May 30, 1978, Poleet died from the injuries inflicted on him. Lewis was indicted for murder. He stood trial and was convicted. Then he appealed, arguing that he should not be held responsible because of the “year-and-a-day rule.”

Well, what’s that? The year-and-a-day rule was a child of the common law. Common law is judge-made law, the law of individual decisions in individual cases, accumulating accreting over the years into principles or rules of law. Common law has an ancient and honorable history. In this connection, I high­ly recom­mend to you Arline Mann’s lecture on the rationality of the common law. The common law developed over the centuries, in England primarily, as wise judges applied rational, commonsense solutions to the problems they encountered in particular cases. There is nothing inherently nonobjective about judge-made law, complaints from conservatives notwithstanding. Some of the best law we have was created by judges. So, throughout this course, when we look at how the law is derived and form­ulated, there is no neat division between the legislature writing the law and the judg­es applying the law. It’s not that neat, and it doesn’t have to be that neat. In many of the cases we’ll examine, judges derived and validated the law themselves. Even in cases where the legislature passed the law, the judges will supply the reasoning to give us an insight into objectivity, or the lack of it, as the case may be.

So, back to Randolph Lewis. The year-and-a-day rule is a judge-made rule developed centuries ago in the misty recesses of legal history. What the rule said is that no man can be convicted of murder unless the victim dies within a year and a day of the assault. The basis of the rule lay in the problem of proving causation. Let’s listen in on what the court said by way of explanation in this case:

In the con­dition of medical science until recent times, it would have been hard to establish convincingly a line of causation between an act and a relatively distant death, and it was thus plausible to make the presumption . . . that a death more than a year removed from the assault . . . arose from a natural rather than the criminal cause.

You see sense in this, right? In the old days, if one person hit his neighbor in the head with a brick and the neighbor fell down and died, that was obviously a homicide. Even if the neighbor lapsed into a coma and died after a few days, it was obviously a homicide. But if the neighbor bled a lot and got sick and then recovered and went about his business for a couple of years, and then keeled over and died, in the premodern times there was no medical science that could establish causation between the assault and the death. Now today, we might be able to take a CT scan and determine that the hemorrhage that killed him was a direct result of the brick, but in the old days when the principle originated, that kind of a caus­al link would have been the purest guesswork. So what the courts did was to say there is a time limit beyond which we will not accept a verdict of murder. In effect, the court said to accused mur­derers: If you didn’t hit him hard enough to make him die before a whole year goes by, then you didn’t hit him hard enough to hang for murder. Now, listen again to the Massachusetts court:

These reasons are far from persuasive today as justification for the rule. In particular the rule appears anachronistic upon a consideration of the advances of medical and related science in solving etiological problems as well as in sustaining or prolonging life in the face of trauma or disease.

So, today we all know you there are cases where you have respirators keep people alive for years, yet when they die, there’s no doubt about the actual cause of death. “Thus,” the court continued, “the relatively short time limit is seen as not only capricious but as senselessly indulgent toward homicidal malefactors.” Malefactors such as Randolph Lewis. The court concluded: “We share the view that the rule is no longer supportable in reason ­and that its relegation to the shades of history may be accomplished by court decision.”

That’s the payoff passage I want you to focus on. That’s a signal that objective derivation is taking place here. The year-and-a-day rule is “no longer supportable in reason.” I like this case because it shows how objectivity, adherence to reality, can lead to different rational conclusions and rules of law in different factual­ settings. I think the year-and-a-day rule was valid when it was developed but is no longer valid now.

As a result of the court’s decision, Randolph Lewis stayed in jail, where he belonged; that was a good result. The year-and-a-day rule in Massachusetts was abolished.

Is there a question? (In the Lewis case, you have particular circumstances where medical evi­dence can be brought to bear on the case. So, why do you throw out the rule for everybody in Massachusetts? Maybe the rule does not apply in this case, but maybe it applies in another case where somebody dies after a year and a day, but medical evidence can’t provide the tie.) The reason the rule is out is because there’s no longer a need for a pre­sumption, because now we have enough science to tell in each individual case what the causation is. (So, you just make the evidence a part of the case, and you throw away the rule?) That’s right. You throw away the rule, but in each case it has to be proven beyond a reasonable doubt that the accused actually committed the act that actually caused the death, so you have to have medical testimony.

On to another case: In the Matter of the Motion To Admit Miss La­vinia Goodell to the Bar of This Court. This case title makes reference to the fact that when a lawyer is licensed to practice, he is said to be admitted to the bar of the court. So, this is a case involving­ wheth­er Miss Lavinia Good­ell should be allowed to become a lawyer. The case was decided in 1875. In that year, in the state of­ Wis­consin, as in every other state, only males could be admitted to the practice of law.

Is maleness an objective requirement for lawyers? Let’s hear what Chief Justice Ryan had to say in 1875:

This is the first application for admission of a female to the bar of this court, and it is just matter for congratulation that it is made in favor of a lady whose character rais­es no personal objection, some­thing perhaps not always to be looked for in women who forsake the ways of their sex for the ways of ours. We find no statutory authority for the admission of females to the bar of any court of this state, and with all the respect and sympathy for this lady which all men owe to all good wo­men, we cannot regret that we do not. We cannot but think the common law wise in excluding women from the profession of the law. The profession enters largely into the well being of society, and to be honorably filled and safely for society, exacts the devotion of life. The law of nature destines and qualifies the female sex for the bear­ing and nurture of the children of our race, and for the custody of the homes of the world and their maintenance in love and honor. And all lifelong callings of women inconsistent with these radical and sacred duties of their sex, as is the profession of the law, are departures from the order of nature, and when voluntary, treason against it. There are many employ­ments in life not unfit for female character. The profession of the law is surely not one of these. The peculiar qualities of womanhood, its gentle graces, its quick sensibility, its tender susceptibility, its purity, its delicacy, its emotional impulses, its subordination of hard reason to sympathetic feeling, are surely not qualifications for forensic strife. It would be revolting to all female sense of the innocence and sanctity of their sex, shock­ing to man’s reverence for womanhood and faith in wo­man, on which hinge all the­ bet­ter affections and humanities of life, that woman should be permitted to mix professionally in all the nastiness of the world, which finds its way into courts of justice, all the unclean issues, all the collateral questions of sodomy, incest, rape, seduction, fornication, adultery, pregnancy, bastardy, legitimacy, prostitution, lascivious cohabitation, abortion, infanticide, obscene publications, libel and slander of sex, impotence, divorce, all the nameless catalog of indecency, all the vices and infirmities of society with which the profession has to deal, and which go toward filling judicial reports which must be read for accurate knowledge of the law. This is bad enough for men. Reverence for all womanhood would suffer in the public spectacle of woman so instructed and so engaged. Discussions are habitually necessary in courts of justice which are unfit for female ears. The hab­itual presence of women at these would tend to relax the public sense of decency and propriety. If, as counsel threatened, these things are to come, we will take no voluntary part in bringing them about.

That’s Chief Judge Ryan, writing in 1875. He would like us to believe that he is only obeying the law of nature, the order of nature. He’s using these trappings of objectivity to give his opinion a majestic aspect. But what is this opinion really based on? Is this opinion based on “women can’t do it”? No, it’s based on “women shouldn’t do it.” Why? Because of considerations of public decency, the public sense of order, men’s respect for women. All these are social, essentially conventional views of sexual roles that are derived from religious faith or collective opinion, not from the objective requirements of life for human beings, including women.

I think Judge Ryan could have done a lot better here, at least in retrospect, perhaps anachronistically. He could have gone back to first principles and declared that this rule in question violated a woman’s constitutional right to the equal protection of the law. He would have been the first to say that. But it would have made for a better opinion. He could have at least moved in the right direction, expressed frustration that he’d really like to do this but could not see a way under the law. But he didn’t take that approach. He took the easier way out and what I’m sure, by his lights, was the right way out. But from our perspective, what I want to show is that he’s not being objective. The decision is not based on adherence to reality. It’s based on essentially collective, subjective, societal considerations not grounded in the principle of individual rights.

We talked about how the focus, the adherence to reality, must be as broad as it can possibly be. You have to adhere to all aspects of reality that are relevant. When we looked at the example of the year-and-a-day rule, the court paid attention not only to the law of murder but to the current state of medical science and technology as they applied to the problem of proving causation. I offered that as an example of objectivity in derivation, a court in touch with all relevant aspects of reality. Then we looked by contrast at the case of Miss Lavinia Goodell, where there was a failure to come in contact with all the aspects of reality that bore on her right to practice law as a woman in Wisconsin in 1875.

Now we’re going to move on to one of my favorite cases, the fin­back whaling case that I promised you, Ghen v. Rich, decided in 1881 by the U.S. District Court in Massachusetts. This is one of a group of cases I came a­cross on how one ac­quires a prop­erty right in wild animals. This is part of a larger topic that fascinates me, how you acquire prop­erty rights in any material resource in the first instance — the unowned becoming owned, becoming property, be it land or animals. This particular case involved property rights in fin­back whales. In the 1880s in Massachusetts, whaling was a big industry. This was before petroleum had come into wide­spread use for lubrication and lighting, so whale oil was used for those purposes. Whale blubber was reduced to oil and used for cooking, and made into soap, perfume, cosmetics. Whale bones were used to make needles as well as corsets, so women could have that shapely, 1881 fashionable look. Whale bones were ground up and used for fertilizer. Whales were an important natural resource.

In the early spring, finback whales would swim into the Massachusetts Bay. Now, if you think about whales back in the 1800s, you may think of Captain Ahab on the open ocean, searching for Moby Dick. When he sees Moby Dick, he climbs into his little boat and rows toward the whale, throws the harpoon, Moby Dick goes underwater and swims, dragging the boat. The whale gets tired out, surfaces again, and they harpoon him again. That’s a method used to kill whales in the 1800s.

But the type of whales you could get with that method did not include the finback whale. The finback and the blue whale had always, throughout the centuries, evaded man’s best attempts to capture and kill them, because they were too big and too fast. They could swim up to thirty-five miles per hour, and they weighed something like eighty-five tons. So with the tech­nology and the ships back then, you couldn’t row fast enough, and even if you got the harpoon in them, they were too strong for you to wear them down. It took a technological breakthrough to bring these living treasure troves under man’s dominion and control.

The author of that breakthrough was a Norwegian named Sven Foin, and he invented a couple of things. He invented a harpoon that shot out of a gun, so instead of just throwing it, you shoot it, and it goes a lot faster and farther. But even that would not have been enough to get the finback whale. So Foin invented the bomb lance — not a particularly sophisticated name for a harpoon with a little grenade attached to it. Once this grenade hit the whale, it was triggered by a timing device to explode, either killing the whale outright or mortally wounding it. So, by the year 1881, when the Ghen case came up, this kind of finback whaling was well established in the Massa­chusetts Bay area, and the practice was as follows: You’d go out and find a finback whale, shoot the bomb lance into it, and once the grenade exploded, watch the whale sink out of sight. When he’s mortally wound­ed, he’s not the kind of creature you want to tangle with. So, he sinks out of sight, and two or three days later, he rises to surface, dead, and washes up on a beach. And the custom was, anyone who found one of these whales would send a message to Province­town, which was the center of the Massachusetts Bay whaling industry, and the whaler who had killed it would come and take possession of that carcass. Now, you may ask, how did they know who killed that particular whale? The answer was that the bomb lances had inscriptions on them, similar to the brands on cattle in the Wild West, so you would know because the lance would still be sticking out of the whale’s side.

Under the prevailing custom, the owner would come and take possession of the whale, cut it up for blubber, and harvest it in every possible way. The finder of the whale would receive a small salvage fee, a portion of the proceeds in recognition of his small role in finding the whale and sending the message. At the time of this case, Ghen, the plaintiff, had been engaged in the fin­back whaling business for about ten years. One day, he and his crew killed a whale with a bomb lance. The whale sank, and three days later it rose again from the dead and washed up on the beach, where it was found by a man named Ellis, seventeen miles from where it was killed. It was obvious the whale had been killed by a bomb lance, in contrast to the situation where a whale dies of natural causes and washes up on a beach. In that latter instance, the finder would be entitled to keep it. Ellis found this whale, killed by a bomb lance. But does he notify Provincetown? No, he simply takes possession of the whale, holds an auction, and sells it to Mr. Rich, who proceeds to get rich by harvesting the whale. Ghen finds out about this and sues Ellis and Rich. The court looks at this case and asks, what are the rights of these parties? The question is, what does the court do in deciding this case? The court starts looking at all the various facts of reality involved.

Here are some of the things that the court recognizes. It takes a lot of skill and experience and money to hunt and kill these finback whales. There is exposure, hardship and risk involved; few people are hardy and courageous enough to engage in the trade. The court also finds it significant that the practice of notifying Provincetown was well established in the community, acquiesced in by the community, and known to all the people involved. The court evaluates the correctness of this particular custom, saying: “It requires in the first taker the only act of appropriation that is possible in the nature of the case.” The court was taking recognition of the fact that you can’t lash this huge, eighty-five-ton whale to the side of your ship as you normally might with a smaller whale. You can’t put it on your back and carry it home, as you would a deer. If you shoot a deer in the woods and you leave it, and abandon it for three days, any chance finder would probably have a right to it, because the hunter should have taken possession of it before then. But the court here says that, in the nature of the case, and the facts of this kind of industry, the only act of appropriation necessary and possible is for the whale hunter to shoot his bomb lance and, when the whale floats to the surface days later, assert ownership of it. Then the court takes the custom back a step further. Listen to this quote: “Unless it is sustained, this branch of industry must necessarily cease, for no person would engage in it if the fruits of his labor could be appropriated by any chance finder.” So there’s a recognition here, which could be more philosophically explicit, but nevertheless a recognition that production depends in the first instance upon recognition of the right of the producer to keep the product of his work. That’s the moral basis of all property law. In this case, the whale was made valu­able by Ghen’s work. A dead whale on a beach has actual value, made actual from the mere potential of a living whale swimming out in the bay.

So I offer this case as a good example of objective derivation, or valid­ation, of the law. The court is adhering to all relevant aspects of reality. In this particular case, the court approved the established custom, found in Ghen’s favor, and entered judgment against Rich. I think that final decision is the right one. This is the kind of broad-ranging, pro-man, reality-oriented adjudication that you’d like to see more of.

All right, let’s try another case. This is a bonus case, because when I prepared this course, I thought I only had a fifty-minute hour, like they do in college, so I cut and I cut and I cut some more. Then I got here and was told that I have a full hour, so I added back this case that I had cut, the case of Loving v. Virginia. The case was decided in 1967 by the Supreme Court of the United States. Loving was a white man who had committed the crime of marrying a black woman. In Virginia at this time, in the 1950s, miscegenation was a crime, miscegenation being a mixing of the races through marriage or cohabitation. People of different races who got married in Virginia the 1950s were subject to a conviction on felony charges and a possible five years in prison. In the trial where Richard Loving and his wife were convicted for this crime, the judge declared: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents.” The judge, in enforcing the law, gave the Lovings a one-year jail sentence, but then he said, I’ll suspend that sentence — all you have to do is leave Virginia for the next twenty-five years. A very generous judge, right?

Richard Loving and his wife tried moving to the District of Columbia, but they were rural Virginia folk, they were not city folk. They could not abide life in the city, so they sneaked back into Virginia and hid, for the next several years. With the aid of family and friends, they stayed out of the way of the sheriff and other authorities, managing to raise a number of children. Eventually they got tired of living the lives of fugitives, and they sent a message to U.S. Attorney General Robert F. Kennedy, asking what could be done. Kennedy sent the case to the American Civil Liberties Union, and the ACLU brought suit, challenging the constitutionality of this law. They argued that the law deprived the Lovings of the equal protection of the laws. To defend its anti-miscegenation statute, when the case finally made its way to the Supreme Court in 1967, the Commonwealth of Virginia had to send an attorney to Washington to make the case. His name was R.D. McIlwaine, and through the technology of audiotape, his argument was preserved for history.

Just a little interesting background on this. I’m sure the lawyers in the audience already know, but there was a bit of a tempest over these tapes a few years ago. The Supreme Court had taped these oral arguments for many years but had never let them be published. The particular fellow who assembled the tapes I’m quoting from had signed an agreement saying that he would listen to the tapes for research purposes only — but then he just proceeded to publish them for sale and dared the Court to do anything about it. He called their bluff. Justice Rehn­quist made some noises, and some of the other Justices made some noises, but nothing ever happened, because how can a court prevent the publication of the record of a public proceeding? When we get to a later chapter, you’ll see why that would be a violation of objective application of the law. It’s preposterous.

So, let’s look at attorney McIlwaine’s argument in defense of the anti-miscegenation statute. He’s trying to say that the statute doesn’t violate the Fourteenth Amendment’s equal protection clause. As you read this, ask yourself: what are the premises under­lying his argu­ment?

This statute serves a legitimate legislative objective of preventing the socio­logical and psychological evils which attend interracial marriages and is an expression, a rational expression, of a policy which Virginia has a right to adopt. . . . We start with the proposition on this connection that it is the family which constitutes the structural element of society, and that marriage is the legal basis upon which families are formed. Consequently, this court has held in numerous decisions over the years that society is structured on the institution of marriage, that it has more to do with the welfare and civilizations of a peo­ple than any other institutions, and that out of the fruits of marriage spring relationships and­ ­responsibilities with which the state is­ necessarily required to deal. Text writers and judicial writers agree that the state has a natural, direct, and vital interest in maximizing the number of successful marriages which lead to stable homes and families and in minimizing those which do not. It is clear from the most recent available evidence on the psycho-sociological aspect of this question that intermarried families are subjected to much greater pressures and problems than are those of the intra-married, and that the state’s pro­hibition of interracial marriage for this reason stands on the same footing as the prohibition of polygamous marriage, or incestuous marriage, or the proscription [sic] of minimum ages at which people may marry, and the prevention of the marriage of people who are mentally incompetent.

At this point, Chief Justice Warren asked McIlwaine: “There are people who have the same feeling about interreligious marriages, but because that may be true, would you think that the state could prohibit people from having interreligious marriages?” McIlwaine’s answer: “I think that the evidence in support of the prohibition of interracial marriages is stronger than that for the prohibi­tion of interreligious marriages,” and he cited a textbook stating that racial intermarriage is inadvisable “because they are most frequently, if not solely, entered into under the present-day circumstances by people who have a rebellious attitude toward society, self-hatred, neurotic tendencies, immaturity, and other detrimental psychological factors.”

Okay, let’s discuss this. What are the premises underlying McIlwaine’s argu­ment in defense of the anti-miscegenation statute? (Well, I think he said that the state should maximize the number of stable marriages.) Why? (Under the premise that the family is the basic unit of civilization.) Yes, “the family is the basic structural element of society,” and then marriage is the underpinning of the family. So, you have to have a stable marriage. (I call that collectivism.) Yes, it’s collectivism. It’s a double dose of collectivism. The health of society is the ultimate goal, as if we could measure that or understand what it means apart from the individuals who compose that society. And then, there’s another minor form of collectivism that we have to enshrine in the law, and that’s the healthy family, whatever that is, in order to achieve a healthy society. Well, what’s missing from that picture? The individuals. Where are they? The whole premise is that the petty, individual desires of little people who feel romantic love have to yield in favor of what’s necessary for a healthy society. This is not an objective approach to law, it’s a focus on the collective subjective. The court’s focus is not on individual rights and the aspects of reality that are necessary to implement that principle.

Fortunately, the ultimate decision by the Supreme Court went the other way from McIlwaine’s argument. The court struck down this law. I’ll read just a small part of the Supreme Court’s decision, written by Chief Justice Earl Warren:

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. To deny this fundamental freedom on so insupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. . . . Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

I think that’s an example of objective validation. There are problems with it that we could discuss, but when you are affirming that freedom resides with the individual, and cannot be infringed by the state, you have some contact with the objective nature of rights, and you’re on the right track.

Before closing out this topic, I want to make passing reference to the fact that there is an abundance of material not in the form of case law, which is what we’re focusing on, that constitutes objective derivation of law. For example, consider the Federalist Papers — lengthy, cogent essays on how one derives the various clauses of the Constitution from the requirements of political reality. This course focuses on reported cases, rather than legislative hearings and the like, because court cases are usually more concrete, taking the form of little stories, and our mission is to concretize the principles. But I don’t want to leave the impression that case law is the only place you’ll find objective validation.

There is also material outside the case law indicating nonobjective approaches. We’ve said there are two contrasting nonobjective approaches: the intrinsic and the subjective. First quiz: Which one is this?

That’s the intrinsic approach, right? In our context, that’s the idea that law is inscribed upon our consciousness (in this case, literally inscribed upon tablets) from outside, from some super­natural dimension, without the need for rational scrutiny. This is the idea of consciousness as a passive mirror or receptacle of revealed truth. Like it said on a bumper sticker that I saw once, which captures this whole atti­tude: “God said it, I believe it, and that’s that.” To give you the flavor of this, I want to quote briefly from a recently published scholarly treatment of Jewish law, which was translated from the ­original Hebrew by a professor of mine. This is a treatise by Me­nachem Elon, the Deputy President of the Supreme Court of Israel currently. The interesting thing about the excerpt is that he takes as an example, to show the ultimate basis for Jewish law, an issue we just discussed: how one gains title in the first place to unowned property. So it’s an interesting contrast to the Ghen v. Rich case, where the judge was looking at how a whaler acquires property rights in a whale. Here’s what the Israeli Justice Elon says:

For example, there is a rule that ownership of chattels [things] is ac­quired by ­meshika “pulling” or taking physical possession. What is the source for the binding nature of this rule? It was legislated as a takana. When we continue to ask, what is the basis for the binding effect of this takana, the answer is the halach­ic authorities enacted it. Where is the authority for them to enact the takana? The answer is the Torah confers on them the authority to enact takanot, and there is a basic norm that whatever the written law provides is binding on the Jewish legal system. What is the source for the authority and the binding force of this basic norm? With this ques­tion we leave jurisprudence and pass into the sphere of faith. A basic article of the Jewish faith is that the source for the authority of the Torah is the Ruler of the universe, he who gave the Torah, which reflects his will and his­ commandments. When we consider the question from the perspective of Judaism, in its full and most inclusive sense, we must conclude that Judaism cannot be per­ceived merely as a collection of legal norms, separate and independent from its other normative categories, such as religious or ethical. All these had one basic norm, and one single supreme value, the command of God as embodied in the Torah, given to Moses at Sinai.

There it is, in two paragraphs—how you get from God to the Bible to the laws of Israel. I think it’s instructive and illuminating, and I think this is an honest presentation in the sense that he’s telling it how he sees it.

I want to start by going back in time to ancient England, to the time of the Saxons and the first English kings. In the olden days, when a crime was committed, the trial might look very different from those we have today. For one thing, it could take place in a church, not a courtroom. It was called the trial by ordeal. My research uncovered two basic types of trial by ordeal. One was trial by fire, the other trial by water. Trial by fire, I am told, was for the upper classes; trial by water was for the common people. No reflection on this audience, but I have chosen trial by water to discuss. It doesn’t mean I think you’re common; if we had all day, I could go through both of them.

What I’m going to describe is taken from the Code of Ath­elbert, one of the early English kings. The goal of the ordeal of trial by water is to determine whether an accused is actually guilty or innocent of a particular crime. The premise underlying it is that God, through supernatural intervention, will rescue an innocent person, refuse to allow him to suffer the ordinary consequences of physical injury.

Here’s the procedure. Three days before the ordeal, the accused eats nothing but bread and water, salt and herbs. This is all in the Code. He attends mass each of the three days. On the day of the ordeal, he attends communion and makes an offering. Then he swears an oath that, according to the public law, he is innocent of the accusation.

Then comes the ordeal. Again, it takes place in a church. A big pot of water is brought to a rolling boil. The witnesses range themselves on either side of the accused. The witnesses have all fasted and abstained from their wives during the night. The priest sprinkles holy water over them all, and each of them tastes the holy water. The priest gives them all the Bible and Christ’s cross to kiss. They’re getting in touch with that mystical, spiritual dimension, you see, making sure all the right connections are in place.

­Then the accused is led up to the cauldron. Two of the witnesses check to see if the water is indeed boiling. If the accusation is made by only one person, then the defendant must plunge his hand into the boiling water up to his wrist. If he is accused by three people, then he plunges his arm in up to the elbow. He then removes his scalded arm amid intense pain and agony, and the wound is wrapped in bandages and sealed, and they wait three days. Then they unwrap the bandages. The way the Code reads, if the wounds are “discolored” (mean­ing, infected and ugly), then God has declared the person’s guilt. But if the wounds are “clean” (uninfected), then God has declared his innocence. That’s trial by ordeal, trial by water. (I think the trial by fire had something to do with nine hot plowshares, and you had to do a little dance on them — just as bad as the trial by water, but in a different way.)

Okay, let’s discuss What is missing from this picture? (Justice.) Justice is missing. Okay, let’s get a little more specific, a little more concrete. (Evidence.) Evidence of what? (Of the crime.) Like what evidence? (That it occurred, that this guy did it.) Yes — and his motive for doing it. And where are the witnesses? Plus, the accused is not even allowed to offer a defense. A lot of things are missing; we could go on and on. But here’s the essential point: we expect the law, the court, the trial to be concerned with the facts of reality, because without that objective focus, the results of a trial will be unjust. We instantly recognize that the trial by ordeal fails the test because the law’s focus is on some­thing besides reality — in this case, the tenets of a mystical faith — and we dismiss the trial by ordeal as a relic of the Dark Ages, having no place in modern times.

Today, the trial by ordeal is dead and buried, and I don’t think we have to fear its revival, at least not in that particular form. But we are not safe from the ordeal of nonobjective law. It is all around us. Its arbitrary dictates are no longer based upon the will of God, or trying to figure out what God wants for us, but on the voice of the people, and trying to discern the will of the collective. And the results are the same: injustice, fear, and stagnation.

How do we fight it? This audience knows that the ultimate decider is philosophy and that only the correct philosophy, Ayn Rand’s philosophy of Objectivism, will allow us to determine rationally what laws are proper, and why. It’s correct philosophy that will allow us to establish a society governed by objective law, a society whose hallmarks are justice, self-confidence, and social progress.

The purpose of this course is to deepen our understanding of objectivity in law by concretizing the various principles through illustrative cases. Before we get into the actual cases, however, I want to stress that I am depending on a very broad philosophical context. I’m assuming the entire prior structure of Ayn Rand’s philosophy of Objectivism — all of its metaphysics, all of its epistemology, all of its ethics, and really all of its politics except the particular aspect of it that I’m discussing, objective law. These topics have been ably analyzed and concretized by others. Having said that, I just want to remind you of three key concepts that are especially relevant here. So hold your breath while we plunge in, and we’ll come up for air in just a couple of minutes.

Objectivity. In his treatise Objectivism: The Philosophy of Ayn Rand, Leonard Peikoff started his chapter on objectivity by explaining that “thinking, to be valid, must adhere to reality.” He proceeded to discuss Ayn Rand’s view of objectivity at length, summing up its essence as volitional adherence to reality by the method of logic. Obviously, we can’t treat the entire subject of objectivity here, but what I want to do is set that string humming, in the hope that it will vibrate throughout the next few hours, because we’ll keep coming back to that theme: the necessity of adhering to reality, looking at all the relevant facts, according to the method of logic, and judging them by an objective ethical standard. In essence, that’s objectivity in the law.

Individual Rights. What is the standard of objectivity in the law? It is the principle of individual rights. As Ayn Rand has explained, a right is a “moral principle de­fining and sanctioning a man’s freedom of action in a social con­text.” Individual rights, properly conceived, are conditions of existence required by man’s nature for his proper survival. There’s only one basic right, the right to life, which means “the freedom to take all the actions required by the nature of a ra­tional being for the support, the furtherance, the fulfillment, and the enjoyment of his own life.” Corollaries of the right to life are the rights to liberty, property, and the pursuit of happiness. The only way to violate rights is through physical force, the initiation of physical force either directly, or indi­rectly through fraud or its derivatives. Again, I refer you to Dr. Pei­koff’s treatise for details, and of course to Ayn Rand’s writings, especially “Man’s Rights.”

Law. Harry Binswanger wrote an article that I recommend and that I’ve relied on enormously in designing this course. It’s called, appropriately enough, “What Is Objective Law?” It was first published in the newsletter for the Association for Objective Law, on whose Board of Directors I am proud to have served. Later it was published in the Intellectual Activist. In that article, Dr. Bins­wanger gave the following definition: “A law is a rule of social conduct enforced by the government.”

With these key concepts in mind, we can examine the nature of objective law by focusing on its purpose. I take as my text for this course the following passages from Ayn Rand’s essay, “The Nature of Government,” where she wrote:

The fundamental difference between private action and government­al action, a difference thorough­ly ignored and evad­ed today, lies in the fact that a government holds a monopoly on the legal use of physical force. It has to hold such a monopoly, since it is the agent of restraining and combating the use of force. And for that very same reason, its actions have to be rigidly defined, delimited, and circumscribed. No touch of whim or caprice should be permitted in its performance. It should be an impersonal robot, with the laws as its only motive power. If a society is to be free, its government has to be con­trolled.

Elsewhere in the same essay she stated: “A government is the means of placing the retaliatory use of force under objective control — i.e., under objectively defined laws.”

I want to focus on this analogy suggested by Ayn Rand, this idea that the government should be an impersonal robot, with the law as its only motive power. I want to pause and actually visualize this metaphor and expand on it. Like all such exercises, the analogy is not perfect, and it will break down at various points. It is only a device to get us thinking about the issues in a fresh way; very soon, once it has served its purpose, we will dispense with the analogy and look directly at the law.

So let’s imagine for purposes of this course that America has decided to replace its present governmental institutions with a giant robot, a robot that will exercise the government’s legal monopoly on the use of physical force. We’ll imagine we’ve actually constructed this ma­chine — it’s in exist­ence. Now we can all have our own robot fantasies. I have my own; you can substitute yours. I see this robot in the form of a giant structure in the middle of some prairie in Kansas. It’s several miles square; I see it with chain link fence around it, razor wire on top. It doesn’t move around like a robot you might see in a science-fiction movie. It’s a huge structure that has every item of technology imaginable that would be useful to a governmental robot. Its mechanical ears can listen in on any conversation, whether electronic or normal speech. Its mechanical eyes can observe the conduct of any citizen in any place. With the aid of satellites, the robot can detect threats to our borders.

But it’s not just a passive observer — it has the power to wield force. It has energy beams that can be focused in any direction, at any person. This beam of energy can immobilize, incapacitate, and arrest any citizen. The target of that beam is at the robot’s mercy until the beam is turned off, and the same energy beam when increased in intensity has the power to kill.

Now that is one powerful machine. You’ve got to look at it; you’ve got to visualize it. The red lights are flashing to keep airplanes from flying into it. It’s got a field of generators vibrating, and the electricity is crack­ling — you can smell the ozone in the air. This machine is ready to go. It’s all plugged in. It’s a beast of enormous power, the power of life or death over every citizen. Each mechanical system has been tested and certified to be in working order.

The one system that remains to be put in place is the most important one. It’s the central computer, the “brain” that will control the robot’s operation. The computer is still unpro­grammed; not a line of code has been written for it. Before the transfer of power can take place — before the monopoly on the use of legal force can be transferred to the robot — the computer has to be programmed. Everybody knows that the machine is capable of many things but will do nothing unless programmed. If you buy a computer from the store and put a word processing program on it, you’ve got a word processor. But if you erase that program and put a video game on it, you’ve now got a video game machine that’s no longer a word processor. The machine does what it’s programmed to do. It’s a blank slate, tabula rasa, like a human infant at birth.

So you’ve got this giant robot out on the prairie with the brain of an infant, the brain of a newborn. What instructions do you want the programmers to give that giant robot’s computer brain, to transform it from a piece of machinery into a government? How carefully do you want the programmers to circumscribe its actions? How scary would it be if the robot were pro­grammed to obey the orders of random individuals? Or if they held a lottery, and the winner each day got to decide what the program would tell the robot to do? That would be unthinkable, because it would mean the robot is not dedicated solely to the protection of individual rights.

Remember that when Ayn Rand suggested viewing government as an impersonal robot, she made it clear that it would have “the laws as its only motive power.” In other words, if the government can be viewed as an impersonal robot, then law is the software that controls the governmental machine. Our task, then, is to figure out how to write that software.

Objective Derivation of the Law. First, the robot has got to be able to recognize a violation of rights when it happens. We know that physical force and its derivatives are the only way rights can be violated, but we also recognize that not every application of force is a crime. Imagine that a surgical operation is commencing in a hospital. The surgeon takes out a scalpel and cuts into the patient’s chest, and suddenly the robot’s energy beam immobilizes the surgeon’s hand, and the patient bleeds to death. You don’t want that to happen. The computer has to be able to recognize the difference between the initiation of force and what else? What other types of physical force are there? (Force that’s consented to.) Consensual force is probably the most important form of physical force in our lives. The consensual application of force is involved in everything that makes life possible and worthwhile — everything from hugs and kisses to haircuts to football tackles to brain surgery to employees controlling a company’s assets. Physical force that’s consensual is all around us. The com­puter has to recognize the difference between consensual and nonconsensual force. The robot has to tell the difference between the initiation of force and the retaliatory use of force. If there’s a mugging going on, and the victim pulls out a gun and is about to shoot the mugger, you don’t want the energy beam to stop the victim and let the mugger finish the job. Laws have to be derived from and validated by reality by looking at all the relevant facts. Most impor­tantly, laws have to be aimed at the protection of individual rights.

Objective Formulation of the Law. What else? Once the computer’s been programmed to recognize actions that should be illegal, we must program it to inform us of what’s in its brain, what has been deemed illegal. Imagine the robot has one of those big signs, like in New York’s Times Square, a running banner that gives us the laws’ content. Do we want that message to come out in the form of computer code, a string of ones and zeros, or in hexadecimal code? No, because we couldn’t understand that; it has to come out in English. Should we tolerate half the pixels on the sign being burned out, so we can barely decipher the words? No, obviously all the pixels have to be working. This is the second aspect of objectivity we’ll be discussing: laws have to be objectively formulated. They have to be put into words in such a way that they’re clear, concise, and understandable by the people to whom they apply.

Objective Enactment of the Law. What else? We want to make sure that we, the citizens, are in control of the robot. We are the ones who built the beast; we own it. It’s there to serve our needs, by protecting our rights. We want to hire the programmers, dictate which programmers have access to the computer, and make sure we know their background and qualifications. We don’t want anyone to have secret access to the computer. We want every step of the programming process to be public. We want to know precisely what programs are being installed, and why. This is the third aspect of legal objectivity we’ll be discussing: objective enactment of the law. Government is the agent of its citizens; we delegate our self-defense to the police and to the military. Government exists and functions only by the consent of the governed. Objective enactment is our way of ensuring that the government does exactly what we want it to do. That is our right as citizens.

Objective Application of the Law. What’s the robot going to do when there are two witnesses to a murder, and one says the gunman was a black male, the other says a white male? Do we want to the robot to flip a mechanical coin to choose between the different stories? Of course not; we want the decision to be objective, based on evidence. Or, let’s say there is a contradiction within the programming, a “bug” that sets up a conflict. After all, these are going to be pretty complicated computer programs if they’re going to deal with every initiation of force in an entire society. What if there’s a problem with the programming? Do we want the computer to grind to a halt? This is the fourth aspect of legal objectivity we’ll be discussing: objective application of the laws. The computer needs logical rules for sorting out contradictions and disputes — rules of evidence to make sure the focus in gathering evidence is where it should be, on the facts of reality. The computer needs objective rules of interpretation, so that the laws are applied logically to achieve their proper purposes. And it needs objective rules of procedure to ensure all citizens get a fair shake and a fair trial.

Objective Enforcement of the Law. Is that everything? What if there’s a big red button on the side of the robot that says “Press here for energy beam.” Should you be allowed to just walk up and press the button? Of course not. All of our careful programming up to now — the deriva­tion, the formulation, the enactment, the application — all those would be utterly useless if the government were not controlled by and subservient to these various programs. There can be no severance of the link between the programs we’ve put in place and the operation of the government. This is the fifth and final element we will discuss: objective enforcement. It means, in brief, that the people in society who actually have the guns — the police, the military, the executive branch of gov­ernment — must at all times remain subordinate to the laws that have been objectively derived, formulated, enacted, and applied. Those who enforce the law must respect the law.

I think the analogy has served its purpose. We can unplug the computer and let it cool down, drop the analogy and go right to the point that I hope is obvious by now. If a giant robot would need to be rigidly controlled by fail-safe computer programs that permit no err­or, no deviation, from its reason for existence — then a nation’s government, our government, would need to be rigidly controlled by a similar set of commands.

In real life, these commands are not computer programs but objective laws. Objective laws are the programs, the commands, that control the government’s actions, ensuring that government adheres to reality at every moment. Reality in this context means the principle of individual rights and the facts necessary to implement that principle in reality. What I would offer by way of a definition is as follows (this is my phrasing): Objective law is law that defines, delimits, and circumscribes a government’s every act so that government can legally do nothing but implement the principle of individual rights. I think this definition is consistent with Ayn Rand’s statement, “All laws must be based on individual rights and aimed at their protection.”

Now that we’ve put the robot analogy aside, it’s time to plunge into the cases. One of the marvelous things about our legal system is that judges are required by law to state in detail, and in writing, the reasons for each of their decisions. If you’ve ever been to a law library, you’ve seen shelves and shelves of books containing written decisions, each one examining the facts of the case and applying the law to the facts. There is a wonderful division of labor that goes on in the law, because whenever a case comes up in the present that implicates a particular principle or rule of law, you can pull out the case books to review and examine what wise people have said over decades, even centuries, on that particular issue. So we don’t have to reinvent the wheel every time we come across a new case. Cases that are written up in a case book are called “reported” cases. Reported cases are a unique repository of legal reasoning and a terrific source for us to employ in concretizing the principles of objective law. I have tried to select cases whose unique and interesting facts make them memorable.

I should say at the outset that I have no intention of introducing any new theoretical material in this course. The theory comes from the works of Ayn Rand, as ex­pounded by Dr. Peikoff and Dr. Binswanger. My purpose here is simply to concretize the broad abstractions of legal objectivity in order to deepen your understanding of the abstractions by tying them more closely to reality, and to give you a scheme of analysis by dividing up the broad concept of legal objectivity into different aspects.

Dr. Peikoff presented a course a few years ago called “Understanding Objectivism,” which I highly recommend. In that course, he stressed the need to prove our philosophical ideas, making sure our key concepts are rooted in reality (traceable back to sense perception). He used the example of a truck. When somebody says to you, “Look out for that truck!” you don’t have to stand there and go through a process of reasoning before you jump back out of the way, because that concept “truck” in your mind is tied so closely to reality. In discussing the need for proof of our philosophical ideas, Dr. Peikoff said:

Proof is really nothing but taking an abstract idea and endowing it with the vividness, the immediacy, the compelling quality of the percept of the truck that we talked about. So, if you really proved an idea, it should stand in your mind like that truck, as a fact which is there, real, perceivable, unanswerable, absolute. Now of course, this is easy to say but hard to do.

The principle of objective law is one of those abstractions that needs to be proven and concretized. In this course, I’ve tried to select illustrative cases whose unique and interesting facts make them memorable, so they can bring that truck-like immediacy to the principles of objective law.

In another course, called “A Celebration of American Law,” I explain how objective law makes it possible for civilized man to engage in the most complex and enduring enterprises without initiating force against others. By so doing, objective law proves itself a necessary (but not sufficient) condition for civilized life. But before considering such a topic, we need to understand what objective law is. Then we can better understand how it works, and what it does for those who live in such a system.

I’ve mentioned five aspects of legal objectivity. In that connection, I’m thrilled to have heard Dr. Peikoff’s lectures the past couple of days at this conference on “Unity in Epistemology and Ethics,” and I’m ­not at all defensive about the fact that my categories are not neat little boxes or “watertight compartments” that never overlap. Initially I was worried about that. It’s messy to divide these things, but I think you’ll get the general idea. Dr. Binswanger, in his book The Biological Basis of Teleological Concepts, has a marvelous phrase in the introduction, where he says “it is still up to us to divide nature at its joints — i.e., according to the fundamental similarities and differences in the subject matter.” I think that’s a wonderful way of looking at knowledge, no matter what field you’re looking in — you look for the joints, the dividing lines — that are there in reality. You tug at the bones and they come apart where there’s a joint.

Few of these lectures have made the transition to written form. There are some good reasons for this. Certain lectures are merely “first drafts” of ongoing, important work by serious scholars that will someday be published in book form. To publish the first groping steps toward that final product would accord them a status they do not deserve. Inevitable changes would need to be explained, and they would compete for the attention of the same reader. Such authors wisely refrain from publishing their early work.

In other cases, there is insufficient interest in making an editorial review to reduce the effects of off-the-cuff wordings, redundancies, colloquialisms, and other features that inevitably make transcripts of oral presentations problematic.

Happily, I don’t see either of these obstacles as dispositive in this case. I don’t plan further work on this subject, and I have freely made editorial changes to render the transcript more amenable to consumption by reading.

Back in the twentieth century, a work needed to reach a certain audience, measured in the thousands, in order to excite a publisher’s financial interest. If a work was not of that echelon, it would simply not be published. With the advent of the internet, however, publishing technology has changed radically. As costs have plummeted, it has become feasible for niche markets to be better served; relatively unpopular ideas can now be made available at low cost all over the world.

One lecturing to an audience familiar with Objectivism can assume an intellectual context that isn’t possessed by the general public. The same is true of edited transcripts such as those I am providing here. I will be satisfied if these lectures reach the niche market of Objectivists and those interested in Objectivism as it pertains to law.

In transforming these live lectures into cold type, I have enthusiastically seized every opportunity to correct errors, both of locution and content, and to eliminate redundancy, hedging, and all of the other aspects of oral presentation that, when transposed to the printed word, obstruct rather than enhance understanding. At the same time, I have steadfastly resisted the temptation to make this presentation appear as if it were designed from the inception to be read. It wasn’t. It was designed to be heard in a lecture setting, with discussion, and no matter how many adjustments I make, it will always retain that character.

So, be aware that because these lectures were given to people already familiar with the basics of Objectivism, many explanations were omitted that would be necessary to inform an audience unfamiliar with that background. It would be impossible to cure that problem here, because understanding Objectivism requires a serious amount of study and reflection. However, I have occasionally included hyperlinks making reference to the Objectivist literature where explanations of essential background material can be found.

This course was presented at a 1996 philosophical conference called “Ideas for the Rational Mind,” held at the McLean Hil­ton Hotel in Ty­sons Corner, Virginia. This conference, organized and operated by Sandra Schwartz, was at­tended by more than two hundred people from the Unit­ed States and several foreign countries. My course, titled “Concretiz­ing the Principles of Objective Law,” was offered twice at this conference. What appears below is based on the second week’s presentation (delivered July 7, 8, 11 and 12, beginning at 9 a.m. each day). The blurb for the course read:

The laws of a proper legal system must be objectively derived, formulated, enacted, applied, and en­forced. This course concretizes each of these five aspects of legal objec­tivity by examining actual court cases, which have been chosen for their unusual and memorable (even entertaining) facts. Because each aspect of objectivity is ground­ed in at least one easily remem­bered concrete, the broad abstractions of legal objectivity take on a more perceptual immediacy. The result is a richer understanding of what objective law means in practice. No knowl­edge of the law or reading of cases is required.

Note on audience participation: Whenever audience participa­tion played a part in this course, I have pre­sented the participants’ comments or questions in both parentheses and italics. For example, in the following passage:

What was the judge thinking? (He doesn’t seem to have been thinking at all.) Well, what does he say he was thinking about? Can you tell from the context?

it was an audience member who said, “He doesn’t seem to have been think­ing at all,” in response to my open question to the class.

Note on comments: I welcome comments through the Substack platform. It’s been thirty years since I offered this course, and so there are lots of things I would say differently, or add, or subtract, if I were originating this subject matter today. If readers have constructive suggestions, I may implement them by changing the text, with or without notice. I view this course the way Elon Musk views the software that controls his self-driving Tesla automobiles — aiming at perfection through continual iteration. It’s not primarily a historical document.