I was reading a schlock spy novel this morning, in which one of the characters tells a joke to another character. Since Brian Leiter's mention of my blog in his blog has brought a number of philosophers to this site, I thought I would repeat the joke, because it raises an interesting and completely unimportant philosophical question, which is exactly right for a blog, yes?
JOKE: Two lawyers go into a bank together to do some business. While they are there, an armed gunman holds up the bank and says, "Line up and empty your pockets. I am going to take all of your cash." The first lawyer stuffs a handful of cash into the second lawyer's pocket. The second lawyer says, "What are you doing?" The first lawyer replies, "This is everything I owe you."
Philosophical question: Has the first lawyer satisfactorily fulfilled his moral obligation to the second lawyer?"
If any lawyers are reading this, has the first lawyer fulfilled his legal obligation to the second lawyer?
I could tell you what Talmudic Law would say about this (although it is not a philosophical response per se - it seems to me it does make some philosphical sense):
ReplyDeleteThe lawyer did not fullfill his obligation for two reasons:
1. As money (at least paper money) has no intrinsic worth of its own but merely serves as a means of communication between people to the effect of "deliver the carrier of this piece of paper a product worth so and so" it could not be, properly speaking, acquired.
Now, one who owes another an amount of money, in reality has an obligation to place the latter in a position to acquire goods worth so an so. As this condition is not fulfilled in this case, the first lawyer did not fulfill his duty.
2. But even if he had placed oranges, for example, in the other's pocket, he still would have not fulfilled his obligation. And this for the following reason:
For one's property to become that of another, it must be acquired by the latter through an act that demonstrates his or her consent.
Now, if the second lawyer would have been stupid enough to acquire the oranges a moment before giving them to the robber, then the first lawyer would have fullfiled his legal obligation (I do not know about his moral one..). But as lawers are usually not stupid...
Sounds like a chicken story to me [see Representative Sue Lowden], but I bow to the wisdom of Talmud.
ReplyDeleteThe Talmud has a very metaphysical conception of ownership - i.e. not as mere social convention...
ReplyDeletemaybe "realist" (in the technical philosophical sense) is a better word than "metaphysical"
ReplyDeleteIt`s highly likely that the first lawyer places himself in far greater danger by stuffing his cash into the others pockets-if he is unable to appease some hyped up gunman by handing over the green stuff when he`s most likely dressed in thousand dollar suit etc. and obviously not short of money, then wouldn`t that enrage the gunman?
ReplyDeleteIf he was fully aware of any increased threat to his person then I would say he had surpassed his moral obligations
I'll take a stab at it while I take a break from writing an essay on objectivity in virtue ethics. :)
ReplyDeleteThe first lawyer's intention was not to pay back the debt, but to minimize his losses (i.e. to avoid getting robbed, and then paying back the debt). Any other description would be troubled by the timing of it all. Nor was the outcome anything like what usually happens when one pays back one's debt, that the lender is once again able to do with that money what he wills (at least for a moment).
Bad motives + inadequate outcome = wrong action.
Somehow I now feel like one of those annoying people who don't understand that explanations of jokes are invariably less funny than the joke itself.
My personal take would be no. I think my reasoning would more or less follow the intent of the Talmudic comment above, though I am not at all conversant with Talmud.
ReplyDeleteLawyer 1 was loaned something having a certain utility value. Assuming he had been loaned $100, then he received the full usefulness of it, agreeing to repay in-kind. Although he received cash-for-cash, Lawyer 2 did not receive utility-for-utility and has not been repaid according to the intent of the original agreement.
The root of the joke is the conflict between the letter and the intent of the law. It does raise several thorny issues regarding loans in general, but at the personal level, I think this makes for a good ethical/moral position.
Strictly from a legal point of view I would say that he hasn't satisfied his obligation. When one pays back a debt, one must do so in a manner which insures that the recipient actually is in receipt of the money and is compensated for the debt owed. Since the second lawyer knows that the first lawyer will not actually keep the money, he has not fulfilled his obligation the the lender. Should the thief let the lawyers keep their money as he greatly cares about lawyers as perhaps one had kept him out of prison in the past for a similar crime, and he did not want to sully his reputation with the bar in order to assure continued good representation, in that case then the debt would be satisfied. But one must pay back the money in a manner in which the other will be able to benefit from it being paid back and in this instance the borrower knows that the lender will not be able to keep his money. I am not Jewish so I cannot speak for the Talmud but I think this interpretation would be acceptable under the Uniform Commercial Code. Now if the lender were a professional lender and the lawyer was just their agent, such as a representative of a bank or finance company, then a court might find that such a lender might have a duty to protect himself from being robbed since it had the resources to do so, and in that case it is possible that a court could rule that the debt had been satisfied. I know the two outcomes are in conflict with one another but if I were a judge hearing the case, this is how I would rule. The law is not sterile and courts often bend and twist the rules to reach a "just" outcome, "just" being what the court often considers just. An Alito or Roberts might find that the corporate lawyer for the finance company or bank had not been compensated, but a judge Sontameyer or a Judge Ginsberg might find my analysis compelling. The law is not static and can be bent to fit a particular set of facts and I have found that is indeed the way it works in the real world. Often small facts unrelated to the case can often make the case be decided one way or another. Such is the way of the world.
ReplyDeleteTo Buck:
ReplyDeleteIf that is the case - it is somewhat worrying: that the Judge's ethnicity should determine the outome of a case? But it is just me being naive, I guess...
On the other hand, it would be probably a greater reason for worry if the litigants' ethnicity should make a difference...
ReplyDeleteI was not suggesting ethnicity as the criteria. I was suggesting political philosophy, Alito and Roberts being conservative and likely to support the corporate client; Sontameyer and Ginsburg being liberal and likely to help the small guy (if anyone reading this understands that many lawyers are not wealthy or famous or immensely wealthy but struggle just like the rest of the working world). Of course, one could argue I was making an argument for women vs. men - let's assume the two lawyers were women. Could that affect the outcome of the case. Could sexism play a role in the outcome of the case? Or suppose one lawyer were in the Federalist Society, how would that affect the outcome of the case. Oh, the possibilities are endless. Or suppose one lawyer were black and one were white, how might some of the judges view the case. Would it make a difference? We don't know but can speculate but often the justices don't know these factors. But these factors often play a role in the law even at the very beginning of a case. Think of racial profiling and what happened to Mr. Gates at Harvard.
ReplyDeleteLet me add something to make the conversation here even more interesting and to drive home a point. Suppose one of the lawyers was named Lilly Leadbetter, who had just completed job training through a company education program and thus just obtained her law school education and was just starting out on her own and the other lawyer represented the client who Leadbetter owed money to, the Goodyear Tire and Rubber Credit Union. And Leadbetter handed the corporate lawyer the money and said: I was told to pay you for the money I owed the credit Union so here it is. Now how might that affect the outcome of the case?
ReplyDeleteWould it be fair to treat Lilly Leadbetter as unfairly as she was previously treated by the Supreme Court which I presume most people know about. Should Goodyear get off the hook again?
Ah - sorry. I did not mean anything very sophisticated. I am writing those comments from Israel and have no idea who those people are (but I would look them up..)
ReplyDeleteI apologize for another comment just after the previous two but let me add one more wrinkle to the Lilly Leadbetter scenario. Suppose Ms. Leadbetter had borrowed $20,000 from her parents and had it in cash to deposit in the bank to pay off the loan to the Goodyear Tire Credit Union. The reason Leadbetter was doing this was because the credit Union was charging her 12% and her parents felt that since the banks were paying so little interest, that they would pay off Lilly's loan and let Lilly pay them back at 3%. In this circumstance should Lily be allowed to claim that under the circumstances, she was in fact in the process of paying off the credit union and since she had given the lawyer the money that Goodyear told her to pay off her loan to, she had paid Goodyear and thus should Goodyear should not be allowed to "collect" its money twice with Lilly or Lilly's parents having to shoulder the loss? And I promise, no more scenarios. If anyone is thinking of going to law school, this might be one of the questions that you would get on your one exam that determined your whole grade for the course, the exam being given at the end of the term. Of course, there would probably be five or six or seven questions asked, or there could be one big question with dozens or hundreds of subsections and scenarios, depending on which professor you had gotten.
ReplyDeleteBut let's look at this in a more realistic fashion. Even if the FDIC chose not to cover these losses, the FDIC website says that most banks have insurance policies to protect the bank's customers in case of a bank robbery. So perhaps this issue would never really be something we would need to ask, assuming of course that the amount of money was below the new $250,000 FDIC threshold of coverage.
ReplyDeletehttp://www.fdic.gov/consumers/consumer/information/fdiciorn.html
The moral to the story: Choose you bank wisely and make sure you are covered. Even in a case where the bank is not covered by insurance, your own homeowners or business policy may protect you from robbery up to a certain amount and it may be possible to recover from the bank based on tort law - that is, the bank has a duty to protect its customers from robbery and negligently failed to do so. In that case, no one takes a loss except the insurance company or the FDIC.
A much better outcome all around. (unless you own the insurance company)