Archive for the ‘It Is So Ordered’ Category

Copyright v. Facebook

August 9, 2011





Westercreek, Circuit Judge, writing for the court:

Marjorie Thoroughgood is the daughter and personal representative of the estate of her mother, Mildred, who sued the three defendant corporations and one individual for copyright infringement. The district court threw the case out, granting summary judgment to the defendants. Mildred has since died and her estate appeals.

Mildred was a professional photographer who made – or took1 – a famous photograph which her daughter alleges was stolen by the three defendants. Mildred was driving one afternoon on U.S. Highway 84/285 north of Espanola, New Mexico, when her eye was caught by a cemetery on the side of the road in the village of Hernandez. It was almost sunset and a full moon was rising above cemetery and mountains behind. Mildred threw on her brakes, pulled over, and grabbed for her camera. Jumping out of her car she immediately realized that the sun would be setting in moments and that the sunlight on the crosses in the cemetery would soon be gone, ending the chance to make the photo. She also recognized that she would have to expose for the full moon, otherwise it would be nothing more than a solid, boring, white circle in the resulting photograph. (the luminance of the moon – 250 c/ft2.)

Mildred was a photographic Luddite who refused to use the pervasive photo-manipulation computer program known as “Photoshop.” In her eyes it was not only pervasive, it was pernicious; a view which, as we shall see, is relevant to this appeal.

Mildred quickly set the manual controls on her digital camera for the proper exposure for the moon and snapped the picture. She planned on making more exposures but it was too late. The sunlight was off the crosses. Hers was the only car that stopped and she was the only person who photographed the scene.

Excited, Mildred hurried to her hotel room in Santa Fe and downloaded the photo to her computer. The results were more that even she had hoped for. It was the best photograph she had ever made. The moon’s exposure was perfect and all the photo needed was some “burning and dodging”, a standard photo-development technique.

Mildred wanted to share the photo with her friends, family, and professional peers so she uploaded a small digital copy to her Facebook page. (She also put a watermark copyright notice across the face of the photo, thinking she was protecting her copyright, we suppose. We would show you the photo, but we’re afraid Facebook might sue us.)

The very next day a new employee of Facebook’s marketing department was trolling around the site, looking for photographs that Facebook could use in a new advertising campaign. The employee, Hazel Smithers, stumbled on the photo which Mildred had already named, “Moonrise, Hernandez N.M.” Young Smithers immediately recognized that it was a fine photo that, because of its scenic value, religious iconography, and astronomical interest, would appeal to Facebook users and the general public. But the digital file of the photo was too small for Facebook’s advertising department and it had that troublesome watermark copyright notice splayed all over it.

Without notice to Mildred, Hazel Smithers ran the photo through the “Photoshop” program that Mildred hated and completely removed the watermark. Then she ran it through another computer program which increased the file’s size so that it could be used in digital and print advertising. Facebook then launched an advertising program prominently featuring Mildred’s photo.

Not only that. Subsequently Facebook was contacted by Google which put the image on a line of coffee mugs, tee shirts, bookmarks, and pens in one of its advertising campaigns. Google paid Facebook one million dollars plus change for a sub-license to use the photo.

Then a vice-president of defendant ExxonMobil got one of Google’s coffee mugs with Mildred’s photo on it and thought the photo would make a wonderful addition to ExxonMobil’s latest advertising campaign encouraging Americans to get out on the “Open Road” using ExxonMobil’s gasoline. ExxonMobil paid Facebook two million dollars for the use of Mildred’s photo.

Eventually Facebook sold the rights to the photo to Simon Legree, a hedge-fund manager, for ten million dollars. Legree has since sold more than 1,000 copies of the photo at an average price of $5,000 per print.

Remember that Mildred knew nothing about these corporations using her photo or Legree selling it. They told her nothing and they paid her nothing.

She found out when her daughter showed her ExxonMobil’s full-page “Open Road” advertisement in the New York Times which was consisted only of her photo, a short caption, and a corporate logo. Up until that time the only people who ever saw an actual print of the photo were patrons of the small art gallery where Mildred showed her work.

It is well-settled American law that a copyright attaches to a work of art the instant it is created. (The defendants do not dispute that Mildred’s photo is a work of art so we save for another day the vexing legal question of whether photography is art.) So Mildred’s photo was copyrighted the instant she clicked the shutter on her camera. Putting a copyright notice on the small version she uploaded to her Facebook page was quaint legal surplusage. Not surplusage was Mildred’s registration of the copyright of the photo. She sent the government $35.00 to register the photo, necessary if she ever wanted to sue for statutory damages. Frantically Mildred tried to tell the defendants and the world that the photograph was hers. She held press conferences to which no one came, she blogged about it furiously, wrote hundreds of letters to editors, posted notices on her Facebook pages, tweeted on her Twitter page, set up her own web site, and bored anyone who would listen with her tale of copyright infringement. No one cared, least of all the defendants.

So Mildred added up the money the defendants made on her photo (About eight million dollars, not including the revenues each corporation earned from the advertising campaigns, but we’ll see that the actual amount doesn’t matter.) and asked for the money, but defendants ignored her. She sued, but as we saw, the lower court threw her case out.

Broke, starving, depressed and in despair, she threw herself in the path of a speeding ExxonMobil tanker truck, was run over, and killed.

The Constitution of the United States, in Article I, Section 8, Clause 8, gives Congress the power to enact copyright law. Congress has used the power to preempt state law entirely. 17 U.S.C. § 301(a) Exclusive jurisdiction of copyright disputes in vested in the federal courts of which we are one. 28 U.S.C. § 1338. No creator has a complete natural right to prevent others from copying or exploiting her invention so copyright law steps into that void by giving a time limited protection to creators of works that are copyrightable. Promoting progress by stimulating the creation and publication of as many works of art, literature, music, architecture, copyrights afford to creators a limited property interest in their creations, although that interest is subordinate to the public good. By creating her photograph Mildred became a person protected by the copyright laws of the United States and, unless she otherwise forfeited the right, could sue anyone, including these defendants for money damages for infringing her rights. Title 17, U.S.C. Section 504. Not only could she get the money she lost, she could also force the defendants to disgorge to her all the money they made using her photograph. Title 17, U.S.C. Section 504. Not only would these defendants owe her eight million dollars, they would also owe her all the profits made as a result of their advertising campaigns.

But remember that Mildred, rest her soul, uploaded the photo to her Facebook page. That, it turns out, was a mistake. Facebook is a social networking computer site privately owned by defendant Facebook, Inc. The service is free to the more than 750,000 benighted souls who use the service. But the service, like lunch, isn’t really free. Users must agree to a contract before they can use Facebook and Mildred agreed to Facebook’s usage terms before setting up her account. She made a binding contract with Facebook. That contract included this provision:

For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission . . . : you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License).

For a contract written by a lawyer, that one is fairly clear. In return for using Facebook’s service Mildred gave to Facebook an absolute right to use any photograph she uploaded. For free. Not only that, she also gave Facebook the right to sell her uploaded photos to anybody it wanted to. Also for free. Google, ExxonMobil, and Legree bought the rights directly from Facebook, sold to them in perfect harmony with the binding contract between Facebook and Mildred.

The contract contained another provision, adding that the license she had granted to Facebook ended when she deleted her content, “unless your content has been shared with others, and they have not deleted it.”

When Mildred discovered what she had done by uploading “Moonrise” she immediately deleted the photo and had all her friends do the same.

Too late. She bore the burden of proof that all copies had been deleted from computers all over the world and this she cannot do. Not that it matters. She shared the content with Facebook and it certainly hasn’t deleted her content. The owners of Facebook know a gold mine when they see one.

So Mildred must lose her case. Her contract with Facebook trumps the Nation’s copyright laws.

That leaves only the defendants’ requests for costs and attorney fees. Section 505 of the Copyright Act permits courts to award costs and reasonable attorney fees to the winners of copyright litigation.  The learned district judge looked over defendants’ cost bills and attorney fees and awarded them a total of three million dollars for costs and fees. Finding no abuse of discretion, we affirm the award and order Mildred’s estate to pay up.

The laity may grumble about this result in this case, thinking it unjust. They might think that defendants stole millions of dollars from Mildred and they may well be right, but it was all perfectly legal.


1“Professional” photographers like to use the verb “made” when referring to their photographs. Presumably this is an effort to distinguish themselves from the rest of us who merely “take” pictures. But everyone owns a digital camera these days and six billion photos have now been uploaded to just one photo-sharing site, so the “professionals” are swimming upstream. The semantic dispute bores this court and we take no position on it, other than to warn the “professionals” not to give up their day jobs.


Is the Air Force Legal?

June 6, 2010

Thoroughgood v. United States Air Force
District Judge Strychnus issued this ruling from the bench today.


Once more Marjorie Thoroughgood comes to this court.  This time, it seems, she has been reading her copy of the Constitution of the United States. This case is an example of the mischief that happens when ordinary citizens read the Constitution.  Such reading is better left to trained lawyers and judges.  This court feels like the Catholic Church must have felt after the invention of the printing press and ordinary people started reading the Bible on their own instead of listening to their priests tell them about it.  All kinds of deviltry resulted.

Nevertheless, here she is with a real case and it is the job of this court to decide it.  I do not sit here to avoid difficult decisions.  The People pay me to make decisions and I do.  And since I was just speaking of the Bible, I remind the public that I am not like many judges: I know the point of that story in the Bible about King Solomon and the baby:  Solomon did not cut the baby in half.  Cases come to me; I input the facts, mechanically apply  the law and out comes a legal decision.  I don’t cut babies in half.   What is more, my personal beliefs play no role at all.  I am an unfeeling but purely rational thinking machine.  I am completely unemotional, lack all bias, feel no prejudice, always use the “Oxford” comma,  and never render a decision based upon my own upbringing, background, and experiences.

I am a robot of the law.

Which is why this is such a perplexing case.  Mrs. Thoroughgood wants me to issue a court order outlawing the United States Air Force.  Yes, you read that correctly.  She wants me to shut down the entire United States Air Force. Even the Thunderbirds!

The Thunderbirds

She bases this astounding suggestion on actual words she finds in the Constitution; put there by our sainted Founding Fathers.  So there is no mistake, I quote those words exactly as they appear in the Constitution:

Congress shall have the power . . .
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;

Those are the actual words.  You can look them up.  They are found in the Constitution at Article I, Section 8.  The careful reader will note at once that no mention is made of an Air Force.  Only a Navy and an Army are noted.  Worse, the words “Air Force” appear no where else in the document either.  I know: I read the entire Constitution word for word last night and it is completely silent on the subject of an Air Force.  Not one word anywhere in the entire thing, including all the Amendments, about an “Air Force”. Not even in Article 2, Section 2, where we are told:

The President shall be Commander in Chief of the Army and Navy of the United States . . . .

Not a word about an “air force.” Those are the words of the Constitution and I can’t change them less I be accused of being one of those liberal activist judges who are always trying to usurp power by “interpreting” the Constitution.  Unless I depart from the Original Intent of the Fathers, I have to apply the words they wrote, consequences be damned.

Thus it appears that neither Congress nor the President is authorized to establish or pay for an Air Force. Congress attempted to do it in the National Security Act of 1947, creating the Air Force as a separate branch of the military and ending the U.S. Army Air Corps, which served nobly and well in World War II. The modern Air Force provides the Nation with its aerial, space, and cyber warfare capabilities. But even an Act of Congress cannot stand if it contravenes express language of the Constitution. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).  It is for the Judicial Branch to make such decisions and I am the Judicial Branch for this case. See generally, Posner, “What am I, a Potted Plant?” Overcoming Law (1995)

I can imagine the consternation this court’s ruling will create, but I can’t help that. The injunction will issue. Costs to Ms. Thoroughgood.



A new blog category exists now entitled “It Is So Ordered.” Into that category will be dumped all these faux judicial opinions which will issue from time to time from officious, dim-witted fake judges, many of whom – coincidentally – will come from the “originalist” or “fair meaning” school of judging so admired by Justice Scalia.


The two photos of the USAF Thunderbirds were taken by USAF TSgt.Sean M. White and are in the public domain.

The Correct Spelling of Chile

April 4, 2010


United States v. Dowdy

Judge Henbane writing for the Court:

Defendant Maureen Dowdy is a columnist for the “New York Sun” newspaper.  Indicted and tried for misspelling the word “chile” in her columns, a jury found her guilty and the lower court sentenced her to seventy years at hard labor.  She appeals her conviction and sentence.

During the years that Defendant Dowdy was employed by the newspaper, her column was read widely throughout the nation. From time to time she used the word “chile” in her column but deliberately misspelled it, writing “chili[sic].” Indeed a plague of misspellings of “chile” afflicted the land, entrapping many innocents into spelling the word wrongly. One study indicated that 47 per cent of the adult populace habitually misspelled the word. See, Posner, 16 Jr. of Law and Econ. 344.

Confronted with this crisis, Congress acted; passing the law under which defendant Dowdy was arrested and prosecuted.  99 U.S.C. Section 0000045, makes it a felony to misspell “chile.”

Wrong. Abysmally Wrong

In her column, published by her newspaper, defendant questioned the wisdom of the law.  In the columns she deliberately and flagrantly misspelled chile repeatedly, using the felonious “chili.”  The jury quite properly convicted her.  The very learned trial judge imposed the 70-year sentence and this appeal resulted.

The defendant seeks to avoid her just criminal conviction by arguing that the statute making it a crime to misspell “chile” is unconstitutional because it violates her right to Free Speech and the right of a Free Press.  As far as we can tell, this is the first time in the history of the Republic that someone has seriously suggested there is a constitutional right to misspell.

The First Amendment to the Constitution of the United States provides that Congress shall make no law “. . . abridging the freedom of speech, or of the press. . . .” The Amendment speaks only of protecting free speech and a free press.  No where does it protect misspelled speech.  As Justice Scalia is fond of noting, “The Constitution is a legal document that says some things and doesn’t say others.” It doesn’t say that misspelling ordinary words is a constitutionally protected right.

If the Founding Fathers had wanted to protect misspelled speech they could easily have done it, simply by adding two words to the Amendment.  They could have prohibited Congress from abridging the right to “free or misspelled” speech.  They did not.

The defendant tries to get around this obvious conclusion by reminding us that the Fathers constantly capitalized words improperly.  For instance, the Preamble of the Constitution consists of only one sentence, which is fifty-two words long.  Sixteen of the words, more than 30 percent, are capitalized.  Defendant argues that this flagrant misuse of capitals constitutes misspelling and proves that the Founding Fathers intended to protect poor spellers and bad spelling.  This is an argument about insulting the Founding Fathers, not about the merits. Even a cursory review of their letters and other writings establishes that they were well-educated people suffering only from ignorance about chile which was not widely available in the East at that time. For that matter, it still isn’t. Just try to find some Hatch Big Jim chiles in Washington, D.C. or New York City.

Defendant also calls our attention to the fact that many great writers of English were chronic misspellers.  We’ll assume that’s true. It has to be or her goose is cooked. She cites, as one example, Shakespeare’s abominable spelling.  Shakespeare frequently misspelled his own name. No matter. Shakespeare was not a citizen of this country and therefore not bound by our laws.  If Shakespeare were alive today and living here, we would send him to jail in a New York minute if he couldn’t decide how to spell his own name or misspelled “chile.” In fact, we might send him to jail anyway. Hamlet takes far too long to make up his mind.

Six Known Shakespeare Signatures

Nor is it any help to defendant that loosely educated people cannot spell well.  Imagine what would happen to our language and Nation if people were free to misspell.  Teachers could no longer have spelling tests, newspapers would be unreadable, blogs incomprehensible, and no one would have the slightest idea how to spell “chile.”  Children would never learn the wise and venerated rule, “i” before “e” except after “c” [and after the “l” in “chile.”] The desire to misspell is not the power to misspell as long as this court sits.

Finally, defendant resorts to that last refuge of all such scoundrels, the dictionary.  She cites the American Heritage Dictionary of the English Language (3rd ed).  There we see an astonishing thing.  We see the word “chile” misspelled.  But the fact that the editors of the American Heritage Dictionary are criminals too is no help to Ms. Dowdy.  There are no free throws in criminal trials and the fact that other people may also have violated the statute is not a defense for Ms. Dowdy’s own illegal conduct.

This court has notified the appropriate authorities and we are confident that the editors of any dictionary misspelling “chile” will soon be in jail along with Ms. Dowdy. Perhaps they will have spelling bees to pass the time.

The judgment and sentence are affirmed.



December 8, 2009

The Supreme Court is slow issuing opinions so far this term. That makes it hard on bloggers waiting to take the Court to task over its opinions.  To fill the gap, I have begun writing opinions for the Court.  Here is the first of this term.


City of Mudville, California v. The Great-tailed Grackle

[December 8, 2009,]

JUSTICE MILDEW delivered the opinion of the Court.

The town of Mudville, California, allows its citizens to bring private law suits to stop public nuisances.  The municipal ordinance defines a public nuisance as “Anything which is . . . indecent or offensive to the senses.”  The nuisance must, “Affect at the same time an entire community or neighborhood, or any considerable number of persons.”

Mildred Thoroughgood brought this lawsuit, demanding that the authorities of Mudville do something about the Great-tailed Grackles which live there.  The grackles, Ms. Thoroughgood claims, are “offensive to the senses” and must be eradicated.  A judge in Mudville agreed with her and ordered the birds extirpated.
grackle (2 of 3)
The birds appeal, asking this Court to reverse the judgment below and dismiss the case.

Great-tailed Grackles are large birds with, as the name implies, large tails.  They live mainly west of the Mississippi River of the United States and often dwell together in large flocks, like humans.  Foraging for seeds and insects, they go about making their living in fields and towns throughout the American Southwest and Southern California.

But, according to Ms. Thoroughgood, they make many unpleasant sounds.  Indeed one authority writes, “Song a series of loud, unpleasant noises: mechanical rattles, sliding tinny whistles, harsh rustling sounds, and sharp hard notes.”  (Sibley, Field Guide to Birds of Western North America, at 443)

No evidence to the contrary appearing, this Court accepts as fact that they make unpleasant sounds. We also note that even the renowned Cornell University refers to the poor birds as a “pest species.”

If that were all the evidence, we might be inclined to uphold the decision of the Mudville court that grackles are a pain and should be eliminated.  But that was not all the evidence.

grackle (3 of 3)
The grackle population appears to grow with the human population.  This makes Great-tailed Grackles, like pigeons, an inevitable by-product of the rapid growth of the American West.   Like people, grackles find irrigation and urbanization beneficial. The only way to get rid of them is to get rid of the people.

Grackles are good parents too.  Most of the parental duties, it is true, are left to the females but males fiercely defend their nestlings and fledglings.  Interestingly, more females survive the first year than males.  That may explain the transient nature of their pair bonds and the flamboyant mating behavior of the males.  Nobody knows for certain how long they live, but one banded male lived for twelve years.

Finally, we find the testimony at trial of The Fat Finch persuasive.  Those people had a female Great-tailed Grackle living in their yard which has lost a leg.  This one-legged female  successfully reared offspring.  Her fledglings didn’t seem to care that she has only one leg and neither does she.  Such tenacity in the face of adversity should be rewarded, not punished.

One-legged Grackle

The law of nuisance, as William Prosser once wrote, is an “impenetrable jungle.”  If grackles want to live in that jungle, let them. We discern in this case application of that old legal maxim, “The law disregards grackles.”

Accordingly, we reverse the decision below and order the case dismissed.  Let the grackles go.

JUSTICE SCALITO, dissenting.

I hate nature.  I never go outside if I can avoid it.  I used to play tennis outdoors but found the unfiltered air disagreeable.  Moreover, I’ve never been west of the Mississippi and don’t intend to go.  Therefore, I am completely disinterested in the fate of Great-tailed Grackles.

But, because I hate nature and grackles are a part of nature, I hate grackles.  If the government wants to eradicate them I find nothing in my copy of the Constitution preventing it.


UPDATE: The Supreme Court not only follows the election returns, it follows this blog.  Immediately after my opinion in the grackle case was posted the Court issued four opinions.  All about boring legal issues.  You can get to those opinions via this link but, trust me, mine is more interesting.

Your Car Insurance

September 29, 2009


Benson,, Plaintiffs v. All-Hands Insurance Co., Defendant.

JUSTICE HEMLOCK delivered the opinion of the Court.

In what turned out not to be a very good idea, Mark Benson decided to go have a drink with his friend Bill Edmunson.  Driving in Benson’s car, they headed to Angelino’s bar, about ten miles south of Troutsville, New Mexico, the small town in which they lived.

truchaslgThey had several beers and then several more.  When the time came to leave, both were desperately drunk.  Somehow, in their alcohol-induced stupor, they decided that Edmunson was in better shape to drive, so Benson gave him the keys to his car and sat in the front passenger seat.

About three miles up the road, Edmunson drove Benson’s car into a stately — and innocent — Ponderosa Pine tree, causing massive damage to the car and personal injuries to both its drunken inhabitants. Benson’s injuries were minor, but Edmunson’s were significant.  Nothing in the record before us discloses what happened to the tree, but trees lack standing to sue, so that doesn’t matter.  See Sierra Club v. Morton, 405 U.S. 727 (1972), Douglas, J., dissenting at 741 et seq.

Benson had no car insurance.  Edmunson did, but they were not in Edmunson’s car; they were in Benson’s.  All-Hands Insurance Corporation was Edmunson’s insurer.  He also had uninsured motorist coverage as a part of that All-Hands policy. Benson, the one with no insurance, sued All-Hands for his injuries and the damage to his car.  Edmunson piled on, suing All-Hands for his injuries.  And they sued each other too.

Confronted with two drunks, both demanding money from it, the insurance company balked. The law required Benson to have insurance on his car and he didn’t.  Edmunson was also guilty.  He drove an uninsured car.  (The learned trial judge was absolutely right to ignore his pleas that he didn’t know that the car was uninsured.  The statute is clear: “No person shall drive an uninsured motor vehicle.”  Ignorance is no excuse.)

The trial judge agreed with All-Hands and dismissed the claims against it, leaving the two impecunious drunks to duke it out alone. This appeal followed.

We begin with the scofflaw Benson; required by state law to have insurance, he had none. But that doesn’t answer the question before us: Can he recover for his injuries from Edmunson’s insurance company?  Edmunson complied with the law and bought insurance.  That insurance policy covered Edmonson from any liability he might have to other people.  Benson is such a person under Edmunson’s policy and, if Edmunson caused his damages, he can recover from All-Hands.

So Benson can recover his minor damages from Edmunson and All-Hands has to pay.  What about Edmunson?  Can he recover for his significant injuries?


Edmunson’s policy insured anyone to whom he might become liable.  But Edmunson can’t be liable to himself for any number of reasons, not the least of which is that, if he sued himself, the case caption would be Edmunson v. Edmunson and lawyers would assume it was a divorce case and not read our opinion and what good are our opinions if nobody reads them? See generally,  Winchester, “Freedom of Speech, Corporations, and Cats.”

Edmunson’s insurance policy does not protect him from his own negligence, it only protects others from his negligence. Any other outcome would allow Edmunson to sue himself and he can’t do that.  This court does not rewrite contracts and this insurance contract says that Edmunson is not insured against himself.

Expecting that ruling, Edmunson has another argument in his quiver: If he isn’t insured under his primary policy, that means he is “uninsured” and can therefore recover from his “Uninsured Motorist” coverage!  That argument fares as well as the olive in my martini will this evening.

New Mexico, Edmunson says, has a strong public policy underlying its requirement that everybody ought to have coverage against uninsured drivers.  He has the gall to quote our own words to us:

new_mexico_7In New Mexico, it is statutorily mandated that insurance companies include in     automobile policies uninsured coverage. . . . See § 66-5-301(A), (C). This requirement embodies a strong public policy “to expand insurance coverage and to protect individual members of the public against the hazard of culpable uninsured motorists.” See Romero v. Dairyland Ins. Co., 111 N.M. 154, 156, 803 P.2d 243, 245 (1990).

Well.  It is true that Edmunson was uninsured against his own bad driving but that is his fault, no one else’s.  We presume that All-Hands would have sold him insurance against himself had he offered to pay for it. (In states with “no-fault” auto insurance laws, All-Hands sells exactly that kind of policy called, “Personal Injury Protection.”) Edmunson cannot be heard to complain about the law in New Mexico.  If he doesn’t like it here, he can move.  We don’t care.

Besides, All-Hands is a corporation and Mr. Edmunson is merely a natural person.  Corporations are creatures of the law.  We must treat them every bit as well — if not better —  as we treat real persons. Mr. Edmunson is one of God’s creatures and we leave it to God to decide what to do with him.  All-Hands Corporation is one of our creations and we take care of our own.  Mr. Edmunson cannot recover anything from All-Hands even though he’s the one who paid for the insurance and complied with the law.
We know that the laity may grumble about this result, thinking it unfair.  After all, we are punishing Edmunson, who obeyed the law and rewarding the scofflaw Benson, who didn’t. But the law follows logic where ever it leads.  Justice Holmes twice wrote that the life of the law has not been logic but experience.  Balderdash!  (Justice Holmes is overrated anyway.  Wrong about logic, he was also wrong about many other things.  For examples see, Buck v. Bell (mandatory sterilization),  Adkins v. Childrens’ Hospital (women), Schenk v. U.S. (arson), and especially wrong about corporations and illegal monopolization, American Banana Co. v. United Fruit.)

The law and logic of this case flow on like the Mississippi in full flood, inexorable, irresistible, but not always benignant, and we go where it takes us.


The persons (natural and unnatural) portrayed in this fake judicial opinion are fictitious.  Any resemblance between them and any living person is coincidental.  The law described in the opinion may not be the law in your state, however, if you think you are covered by your own insurance policy for your own negligent driving, go read your policy and think again.