Lost Property Property

How appropriate -- a member of GW's maintenance staff knocked on my office door this morning and handed me something someone had left in one of our bathrooms and asked me to return it to the rightful owner. What was this lost property? It was a copy of "PROPERTY LAW" by Joseph Singer.

So who owns it now? The popular lore is "finders keepers, losers weepers," but this rule is not accurate. The finder does acquire title to the found property that is superior to that of any third party, but the finder's title is still subordinate to that of the rightful owner.

In Armory v. Delamirie, 93 Eng. Rep. 664 (K.B. 1722), pp. 95-96 of the Singer book, a chimney sweep's boy found a jewel and took it to a goldsmith's for identification. The goldsmith kept the jewel and offered the boy only three halfpence. A court later ruled that the boy, the finder of the jewel, was not the true owner, but had a title superior to anyone but the true owner, and so could recover the jewel, or its value, from the goldsmith, a third party who had no title.

So the GW employee who found the book had the right to keep it against the demand of anyone but the rightful owner, a right that he has now transferred, I would say, to me. I'm keeping the book until the rightful owner shows up.

Tax Protestor News Goes Mainstream!

Heavens, today's New York Times Magazine has a long article on tax protestors! As faithful readers know, tax protestors are one of my eccentric interests.

The NYT article mostly features Peter Hendrickson, currently under indictment for tax crimes. It also mostly employs the curious journalistic convetion of not taking sides -- it says that Hendrickson claims that most ordinary wages aren't subject to income tax, and that the IRS claims that they are, and it points out that tax protestors have no success in the courts, but it doesn't really resolve the point about who's right. The only argument that the article definitively rejects is the 861 argument, which it characterizes as an argument that "claims (erroneously) that Section 861 of the Internal Revenue Code holds that only income earned outside the country is taxable."

Thank goodness for the "erroneously." Look, I appreciate that journalists like to remain neutral, and that convention is quite useful and appropriate whenever a topic is remotely debatable, but some things just aren't. There is still a flat earth society, and I suppose you could quote a flat earth as "claiming" that the earth is flat and a real geologist as "claiming" that it's round, but what's the point? Don't journalists have some responsibility not to mislead readers into believing that something is a matter for legitimate debate and opinion when it isn't?

Well, we lawyers aren't perfect either, I suppose, but I think the article could more clearly have explained that tax protestors are a fringe group, not part of a legitimate debate.

Different Unfair System

CQ Politics reports that if every state divvied up its electoral votes by congressional district (as Maine and Nebraska, but no other state, do), then Obama would still have won the election, but by a smaller margin. Instead of getting all 55 of California's electoral votes, Obama would have won only 44, with McCain getting 11; on the other hand, Obama would have picked up 11 EVs in Texas instead of 0, so that's a wash. The biggest change would have been in Florida, where Obama would have won only 12 EVs instead of all 27, with 15 switching to McCain. Overall, with all the pluses and minuses considered, Obama's victory would have been 301-237 instead of 365-173.

It's kind of interesting, I suppose, but really, why do we care what would have happened under some different unfair system? The current system, under which most states allocate their electoral votes on a winner-take-all basis, is obviously unfair, in that a candidate who gets 51% of a state's popular vote wins 100% of its electoral vote, while a candidate who gets 49% of a state popular vote gets 0 electoral votes in that state -- all the votes for that candidate are effectively discarded. On a nationwide basis, this means that the candidate with fewer popular votes can win the election, as, of course, occurred in 2000. This will happen if the "winning" candidate candidate wins enough states by a slim margin, while the "losing" candidate wins states by big margins. CQ's hypothetical system (and the actual Maine and Nebraska systems) just reproduce this unfairness at a different level.

If we're going to think about different systems of allocating electoral votes, what would be interesting would be to consider what would happen if states allocated their electoral votes proportionally to the statewide popular vote (as was proposed, but not adopted, in Colorado in 2004). This would be a lot fairer than the current system, although there would still be some issues about accounting for fractions. If a state has, say 5 electoral votes, and one candidate gets 70% of the popular vote while another candidate gets 30%, it's necessary to say whether the 70% candidate should get 3 of the state's 5 EVs (60%) or 4 (80%). Obviously, there's no perfect way to make this decision. Also, third-party candidates who get, say, 5-10% in a particular state would have to be accounted for. But such a system would be fairer than what we have now, or the CQ/Maine/Nebraska system of reproducing the current unfairness at the congressional district level. Fairest of all would be to eliminate the electoral college and elect the President by popular vote.

Of course, in politics, things don't get decided by what's fairest, but by what best promotes the interests of those in control of the system. A popular-vote system would have far-reaching, perhaps difficult-to-predict effects. It is predictable that a candidate would have much more incentive to run up popular vote margins in big states. Currently, a candidate who's ahead 60%-40% in California has little incentive to spend any money there, but under a popular vote system the leading candidate would have every incentive to try to run the vote total up to 70%, which would be 3 million more votes. And candidates would probably spend less in small states -- why work hard to push your vote up an extra 10% in Wyoming when that's only another 60,000 votes?

So small states would strenuously resist a change from the current system. But why should small states have a disproportionately large impact on our presidential elections?

Jurors Behaving Badly

Interesting article in the NY Times the other day about the increasing number of mistrials necessitated by jurors using the Internet to investigate cases on their own -- in violation of their instructions, of course. Even more interesting, though were the letters the Times received in response to the story. The bulk of the letters suggested that we just have to accept this new phenomenon, and some even suggested that it's a good thing that jurors are breaking out of the artificial straightjacket created by the rules of evidence and judicial control of the information that jurors are supposed to see.

Sorry, but the jurors who do this are behaving badly. I won't defend every one of the rules of evidence -- some of them are indeed rather artificial -- but most of them are there for a reason, and nothing could illustrate the reasons better than the thought of jurors doing bootleg Internet research.

The last thing we want is jurors deciding things based on what they read on the Internet. There's a lot of useful information on the Internet, but it's also filled with garbage. For example, as my faithful readers know, if you believe what you read on the Internet, you'd conclude that there is no law requiring Americans to pay income taxes. I regularly correspond with people who believe just that based on their Internet research. If jurors need to decide what the law requires, or whether a vaccine causes injury, or whether AIG had a contract with its employees to pay bonuses, do we really want them making the decision based on which side has more presence on the Internet? No, we don't.

Besides, the search for truth in a trial setting depends on the adversary system. Parties and their lawyers respond to what the other side presents. If jurors are surreptitiously trolling for information on the Internet, the parties can't respond because they don't know what jurors are seeing.

Yes, the trial system is somewhat artificial, but jurors having unrestricted access to any trash on the Internet is worse.

Wasted Energy

D.C. voting rights are progressing on the Hill, but with the unfortunate addition (in the Senate) of provisions voiding the city's gun control laws. Whether you like guns or hate them, the District's gun laws should be made by its elected representatives, not by our non-representative congressional overlords.

Unfortunately, D.C. is salivating so badly for a vote in Congress that our Mayor has actually said that he'd take the gun part if that's what's needed to get the vote.

Doesn't anybody understand that this is all wasted effort? The D.C. Voting Rights Act is patenly, blatantly, utterly unconstitutional. All that's going to happen is that its passage will lead to a 1-2 year court battle, following which it will be overturned unanimously in the Supreme Court. And then the energy necessary to get somewhere on D.C. voting rights will have been expended. Congress will have changed by then -- who knows who'll be in control. It'll be a decade before anything happens on this issue again.

This is our best chance to do something about D.C. voting rights, and we're expending the energy on a bill that won't change a thing because it's unconstitutional. We should seize this chance to do something effective.

Those Bonuses

The big news is that AIG has outraged everybody by paying $165 million in bonuses to the very employees who brought the company to the brink of bankrupty, necessitating a $180 billion federal bailout.

I won't comment on the outrageousness of it -- that's clear enough, I think -- but I am surprised by the outpouring of commentary from lawyers and law professors (including one of my own colleagues, Lawrence Cunningham) who claim that AIG could have gotten out of its alleged contractual obligation to pay the bonuses.

Now, as Cunningham rightly points out, it's impossible to be sure about this issue without seeing the contracts and knowing a lot more facts. Also, contract law is not my area. But really, I am surprised at some of this commentary. You can't just throw out the names of contract doctrines that apply in rare cases. Some of the authors have suggested the defense of "impracticability." But it's not impracticable to pay the money -- AIG has the money. Yes, if AIG had gone bankrupt, things would be very different. But it didn't. And "frustration of purpose" is even more remote. The classic case for that doctrine was one where someone rented a room for the purpose of viewing a coronation, and the coronation got cancelled. Now that's frustration of purpose. Here, as far as I can tell, employees were promised bonuses for continuing to work for the company until a certain date, which they did. I can't see the doctrine's applicability. Even "change in underlying assumptions" seems a stretch.

I'm not saying that there might not be a defense. Maybe there is. There could have been some fraud involved, I suppose. But it seems to me that some of the authors are doing what we law professors criticize courts for doing sometimes -- getting caught up in the political aspect of the situation and failing to apply the law neutrally. The starting point is that if you've promised to pay money, you should do it. You can't go flailing around for a defense just because your promise to pay was kinda dumb in the first place. Maybe there is a defense, but we shouldn't go grabbing defenses that don't apply.

In fairness, some of the authors, particularly Cunningham, are perhaps more just trying to point out that one should think carefully about possible defenses than they are saying that the defenses would necessarily apply. It's hard to disagree with that. But I am highly skeptical about some of the suggested defenses.

And I definitely disagree with the suggestion that AIG should just breach the contracts, let the employees sue, and coerce them into settling for less. Remember, AIG is now effectively a U.S. government agency -- we own 80% of the company. How would we feel if any other government agency did this? If the Department of Justice, during the U.S. Attorneys scandal, had said, "yeah, we have some people we'd like to get rid of, so we've decided to stop paying their salaries. Sure, we owe them the money. But let them sue us. We figure they'll be willing to settle for half rather than fight us for years to get what we really owe them." We'd be outraged. The government in particular should honor its contracts.

Catching Up

Sorry, faithful readers, for the long delay. I was away -- in India.

A few thoughts about my time away:

* On the first day of my trip, India-themed Slumdog Millionaire won the Best Picture Oscar. As I've mentioned before, that was a good picture, but the love interest was not compelling. Let's face it, Jamal spends the whole time mooning after a woman he barely knows. So I liked it but I wouldn't put it quite in the "best picture" category.

* While we're talking about the film, there was an indignant article in the Hindustan Times criticizing the film for its "'factually incorrect' portrayal of foreigners’ shoes being stolen at Taj Mahal, and touts harassing tourists." Having now traveled to the Taj Mahal and many other tourists sites in India, I can certify that (a) no one ever tampered with my shoes, even though I had to leave them at the door many times, but (b) boy, was I harassed by touts. I had a marvelous time and I recommend India to others, but you definitely have to be prepared to have unwanted products and services thrust upon you aggressively many times each day.

* I worked my way through several India-themed books: Jhumpa Lahiri's Interpreter of Maladies, The Namesake by the same author, George Orwell's Burmese Days (set in the period when Burma was part of India), and Rohinton Mistry's A Fine Balance. All quite good but very sad. I presume happy things happen in Indian literature sometimes. But not in these books. I recommend any of them, but reading them all in a row was rather depressing. Don't try that at home.

* I visited Delhi, Agra, Jaipur, Jodhpur, Udaipur, and Varanasi. Highlights of the trip included the Presidential gardens in Delhi (magnificent, but only open in February), the Taj Mahal in Agra(however high your expectations are, it will exceed them), the Jantar Mantar in Jaipur (it looks like a bizarre, abstract sculpture garden, but it's actually an 18th-century astronomical observatory), the Fort in Jodhpur, the palace in Udaipur, and a sunrise boat trip on the Ganges in Varanasi.

Back to business.