The memorial for Judge Williams

Thanks to Judge Pam Sargent and all others who made possible the memorial yesterday afternoon for Judge Williams, and to Chief Judge Conrad, Judge Sargent, Judge Birg Sergent, Ronnie Montgomery, Joe Wolfe, David Harless, Randy Ramseyer, Jack White, and Don Williams for their words. I was glad to get a chance to speak about the Judge once more.

What the Supreme Court said about whether a tomato is a vegetable

Last night I caught the tail end of the seed library presentation at the library in Abingdon and one of the seed people said that a tomato is botanically a fruit but the Supreme Court has ruled that it is a vegetable. So, of course, I had to look up the case, which is Nix v. Hedden, 149 U.S. 309 (1893). The issue before the Court in Nix was whether the tax collector for the Port of New York could collect a federal tax on imported "vegetables in their natural state" with respect to imported tomatoes, where the tax did not apply to "fruit." The opinion was written by Justice Gray, who preceded Justice Holmes on the Court and had a similar background as a well-to-do Bostonian who had served on the appeals court in Massachusetts.

Justice Gray wrote that the terms "fruit" and "vegetables" did not have any special meanings, that the Court was bound to take judicial notice of their ordinary meanings, that dictionary definitions were not evidence but aids to the "memory and understanding of the Court" regarding the ordinary meanings, and that while "[b]otanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans, and peas," nevertheless, "in the common language of the people, whether sellers or consumers of provisions, all these are vegetables which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery, and lettuce, usually served at dinner in, with, or after the soup, fish, or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert." And so, a tomato is a vegetable, because of how we talk about it when we eat it, regardless of what the scientists say - and the tax collector wins. Surely, my old professor David Yalden-Thomson would have approved of this analysis, as he believed the most profound sentence ever written was that "the meaning of a word its use." The Nix case is sometimes cited for its use of dictionaries.

Referencing the Court's decision, this article makes the case for tomatoes as dessert. If tomato tarts and tomato yogurt took the notion by storm, would a tomato then become a fruit as that term was used in subsequent legislation? I wonder. Pictured below are what I think are some of what are my dad's favorite tomato, the Pink Lady.

On joining up with Bearing Drift

Norm Leahy has included me in the latest crop of new contributors to Bearing Drift, describing me as "[o]ne of the grand old men of the Virginia blogosphere." As long as I have been a blog writer, I have been a blog reader, and the Bearing Drift contributors include several grand old men and women of the Virginia blogosphere whose words I have pondered for many years. Thank you for the invitation.

On the black dog syndrome

I have read from time to time of the Black Dog Syndrome, which is probably a myth. It is interesting to think about why would there be a preference for or against a dog of a particular color, and how could it ever be proven. This topic is also of interest because of the three dogs I have owned since 1991, Ladybug (2010 - present), Chrissy (1991 - 2006), and Jenna (2007-2008).

Comparing law and science

I have been studying this article titled "The Law of Physics & the Physics of Laws," by Judge Kelsey, published in 2012 in the Regent University Law Review, in which he endeavors to "rake through the ashes of science (as well as some of its hot coals)" in the pursuit of "symmetries that reinforce our understanding of the law."

In the first section, titled "An Underlying Order," he points to the historical view of common law scholars that the law like sciences derived from universal truths, that were capable of being discovered incrementally through the process of deciding individual cases. It brings to mind the concept from Revolutionary times, that all men "are endowed by their Creator with certain unalienable Rights," that were natural laws that preceded the institutions of the legislatures and the courts. It also makes me think of the dismissal by Justice Holmes and other "legal realists" of the validity of the quest for natural law.

The second section makes interesting comparisons between the physical laws of inertia and the doctrine of stare decisis, and also between Newton's law of motion and the adversary system. He suggests that judicial precedents have "mass," that consist of "the strength of judicial consensus on the truth of the precedent and the longevity of its journey over time," that must be overcome for the law to change, and that absent sufficient force for change to overcome this mass, the precedents will "simply move from age to age along their original trajectories." He also suggests that the adversary system in its reliance on the concept that "truth can best be found in the competing contest between opposing forces" corresponds with the Newtonian concept that "all forces in come in pairs."

The third section compares the difficulty of categorizing and determining the truth, in law and in science. He compares the difficulty of scientists in characterizing the nature of light with the challenge for lawyers of drawing the line between law and equity - a task which continues into the modern age, for example, where there is an issue of the right to a jury trial. He concludes with the problem of "doubt," in science and the law, which seems to me the most interesting of these several points - how do we overcome the problem of knowing what is true, when the quest for truth itself may obscure the truth? The priority of the opposing parties is to win the case, with the result that " lawyers and jurists alike have known for centuries that irrefutable truth is almost always, if not invariably, garbled by the exercise of discovering it."

This article seems like the introduction to a seminar on the philosophy or history of law, the sort of class that I signed up for whenever I could, back in the day, when I had professors like John Simmons and Charles McCurdy.

On launching out into the deepest waters

A few days ago, Mitt Romney gave the commencement address at Southern Virginia University, as shown here, and advised the graduates to go out into the deep waters, like Jesus instructed Peter and the other fishermen. In particular, he told them to get married and have children. I can't say that I was trying to keep up with Romney, but I jumped into the deep end in 2011 and married Jill and started living with four step-children, three of them girls. My biggest regret to date is that the oldest - the prom girl in red with her old step-dad - will be gone from our house all too soon, but then again Romney in the same speech declared that is the "new American Dream," getting the children out of the house you own. It has been a few years since I last posed with a high school senior.

On whether a man be an idiot or not

In Ingram v. Com., the Virginia Court of Appeals in a published opinion by Judge Kelsey, joined by Judge McCullough and Senior Judge Haley, disposed of Mr. Ingram's claim that he was entitled to a jury trial on the claim that he should be required involuntarily to undergo psychiatric treatment. In reject Ingram's claim, Judge Kelsey noted the following:

"Though wholly unrelated to claims for monetary damages, the ancient common law writ of 'de idiota inquirendo' authorized juries to 'inquire whether a man be an idiot or not' and, if so, to transfer 'the profits of his lands and the custody of his person' to the king or his designee. 1 William Blackstone, Commentaries on the Law of England *303. A similar writ could be issued against a 'non compos mentis,' described in the common law as a mere 'lunatic' who 'by disease, grief, or other accident, hath lost the use of his reason' yet still has 'lucid intervals.' Id. at *304.

These common law writs, however, have little in common with a Code § 37.2-1101 proceeding."

Many is the case in which it might have been asked whether I or other counsel or a litigant or witness whether he "be an idiot or not."

Today Provo, tomorrow the world

This article explains how Google plans to take over wireless internet access from the telcos, one Google Fiber home at a time.

On Judge Lynn Brown

The Johnson City paper has this entertaining story on the retirement of Judge Lynn Brown from Northeast Tennessee.

One of those stories told was this: "Another memorable case was the two murder trials of Steven Allen Jones, who was convicted both times . . . . Jones became enraged after the second conviction and Brown ordered him gagged. The bailiffs used defense attorney Gene Scott’s spare tie as the gag."