(Vanity) The Lawyer's Escape Clause, or Social Uncertainty Principe

grey_whiskers ^ | 10-1-2007 | grey_whiskers

[grey_whiskers]

This article is in honor or the opening of the latest session of the Supreme Court.

There is a famous law in Physics known as Heisenberg’s uncertainty principle. If you have only heard of it in the mainstream press, you may have heard of it incorrectly. Some think it means that you cannot tell where anything is – like your car keys, or the last pair of socks in the dryer, only worse. The actual scientific definition is more complicated, and it says that you cannot simultaneously know the position and the momentum of a particle with infinite precision; in fact, within limits, the more closely you nail down one number, the more uncertain the other one gets!

Great, you say, stifling a well-deserved yawn. Why is this being mentioned on a political site? Because I think there is a great analogy to this in society and law. Call it the “Societal Uncertainty Principle” or the “Lawyer’s Escape Clause”. While the scientific principle can be derived from a number of different perspectives, and assigned hard numbers, the LML is a general rule of thumb, and only qualitative. It can be described as follows:

One cannot by increasing the detail in a law, remove all the loopholes.

or

Any attempt to remove loopholes from a law just makes the law easier to sidestep.

A good example of this can be seen in the definition of pornograhy, where a US Supreme Court Justice wrote of hard-core pornography, “I know it when I see it!” (And he was a graduate of Yale Law School!) Surely, there is a statement which it would be easy for a lawyer to drive a truck through…or, looking at the the other way, a prosecutor. Now, in order to help prevent abuses of power by the government, something more concrete, and less arbitrary is needed. However, this too can be taken to extremes.

Consider therefore the classic example from the textbook Legal Language by Peter Meijes Tiersma. This is an actual quote from a statute which was attempting to regulate nude dancers (I also found it on the web as a Nassau County statutes, and it is there I pull the quote from):

The area at the rear of the human body (sometimes referred to as the gluteus maximus)
which lies between two imaginary straight lines running parallel to the around when a
Person is standing the first or ton of such line being 1/2 inch below the ton of the vertical
cleavage of the nates (i.e. the prominence formed by the muscles running from the back
of the his to the back of the leg and the second or bottom of such line being 1/2 inch
above the lowest point of the curvature of the fleshy protuberance (sometimes referred
to as the gluteal fold). and between two imaginary straight lines, one on each side of the body
(the "outside lines"), which outside lines are perpendicular to the around and to the
horizontal lines described above and which perpendicular outside lines pass through the
outermost point(s) at which each nate meets the outer side of each lea. Notwithstanding
the above Buttocks shall not include the leg, the hamstring muscle below the gluteal
fold, the tensor fasciae latae muscle or any of the above-described portion of the human body
that is between either (i) the left inside perpendicular line and the left outside
perpendicular line or (ii} the right inside perpendicular line and the right outside
perpendicular line. For the purpose of the previous sentence the left inside
perpendicular line shall be an imaginary straight line on the left side of the anus (i) that
is perpendicular to the around and to the horizontal lines described above and (ii) that is
1/3 of the distance from the anus to the left outside line, and the right inside
perpendicular line shall be an imaginary straight line on the right side of the anus (i) that
is perpendicular to the around and to the horizontal lines described above and (ii) that is
1/3 of the distance from the anus to the right outside line. (the above description can
generally be described as covering 1/3 of the buttocks centered over the cleavage for
the length of the cleavage.)

Now, what is the problem here? Yes, it is specific. “Try to spin your way out of THAT, Mr. Defense Lawyer!” is what the authors of this item probably had in mind. Why doesn’t this work? It’s TOO specific. If the lawyer can show that their client was “showing more cheek than usual” (as was said of Tiffany Case in Diamonds Are Forever, but that it what they were doing does not fit exactly within the definition, there is a good chance that there client will walk. And the law will have defeated its own purpose.

And so what can often happen is that legal practice, precedent, and ordinary behaviour go from one ridiculous extreme to another, as lawyers take advantage of either the hyperprecision or the vagueness of the written word in order to press their case.

Footnote: A good story follows (taken from www.breakthechain.com):

This is the best lawyer story of the year, decade, and probably the century.

A Charlotte, NC, lawyer purchased a box of very rare and expensive cigars, then insured them against fire among other things. Within a month having smoked his entire stockpile of these great cigars and without yet having made even his first premium payment on the policy, the lawyer filed claim against the insurance company.

In his claim, the lawyer stated the cigars were lost "in a series of small fires." The insurance company refused to pay, citing the obvious reason: that the man had consumed the cigars in the normal fashion.

The lawyer sued....and won! In delivering the ruling the judge agreed with the insurance company that the claim was frivolous. The Judge stated nevertheless, that the lawyer held a policy from the company in which it had warranted that the cigars were insurable and also guaranteed that it would insure them against fire, without defining what is considered to be unacceptable fire," and was obligated to pay the claim.

Rather than endure lengthy and costly appeal process, the insurance company accepted the ruling and paid $15,000.00 to the lawyer for his loss of the rare cigars lost in the "fires."

NOW FOR THE BEST PART... After the lawyer cashed the check, the insurance company had him arrested on 24 counts of ARSON!!!! With his own insurance claim and testimony from the previous case being used against him, the lawyer was convicted of intentionally burning his insured property and was sentenced to 24 months in jail and a $24,000.00 fine.

Alas, according to snopes.com, the above is merely an urban legend. Sometimes justice really is blind.

The moral? The law alone is not sufficient to grant justice, as long as it is fallible (and corruptible) people writing, enforcing, and interpreting the law. As John Adams wrote, "Our Constitution was made only for a moral and religious people. It is wholly inadequate for any other."

[grey_whiskers]

Pass me a cigar, and
Cheers!