From: kevin@rotag.mi.org (Kevin Darcy)
Subject: Re: Jim Kalb is NOT crazy, just confused?
Organization: Who, me???
Date: Sun, 26 Jul 1992 01:34:00 GMT

In article <1992Jul20.224702.4823@panix.com> jk@panix.com (Jim Kalb) writes:
>wlsmith@valve.heart.rri.uwo.ca (Wayne Smith) writes:
>
>[I had written:]
>
>>>The chance of breaking something from a single act of picking up a dish
>>>in a china shop is considerably less than 1/100.  Nonetheless, it
>>>doesn't seem (to me, at any rate) as a violation of the customer's right
>>>to be left alone to stick him with the responsibility of paying for the
>>>dish if it does break.  The reason is that china breaking is the kind of
>>>thing that tends to happen when people pick up china, so it's forseeable
>>>and the actor is held responsible.
>
>>The main purpose of picking up china is to see if it is worthy of 
>>purchase, or to aid in identification.  You make it sound as if the 
>>purpose was to break it by way of handling.  Because it is an object 
>>which someone else owns, then you are responsible for it while in your 
>>care.  It is not because dammage is a possible consequence that the 
>>viewer is held responsible...
>
>My point was that even though the purpose is just as you say, if it 
>breaks the customer is held responsible.  Intent to break is not 
>required and I am sorry if it sounded like that was what I thought -- I 
>meant the opposite.  However, it does seems to me that the breakage must 
>be the (at least somewhat) forseeable result of the customer's act for 
>the customer to be held responsible.  For example, if the customer 
>picked up a dish and while he was holding it a bullet fired by someone 
>who was robbing the shop broke it, the stick-up man and not the customer 
>would be held responsible even though the dish was in the customer's 
>care at the time and would not have been broken if the customer had not 
>moved it from where it was.

Ah, but that's because violation of statute raises a legal PRESUMPTION of
the violator's negligence, not just because the result was "unforeseeable". 
It's one of the more subtle weapons the law has against criminal activity -- 
a criminal always risks becoming a magnet for all sorts of civil liability 
when he or she commits their criminal act; civil liability which is heaped ON 
TOP OF any criminal penalties levied by the state for violation of statute. 
Usually, this civil liability is invisible, since most criminals don't have 
"deep pockets" to plunder in civil court, but against rich criminals, e.g. 
drug kingpins and/or mobsters, I imagine it can be a pretty potent attack.

Anyhow, the violation-of-statute angle distorts your analogy. Why not just
pick a casebook example of "remote and unforeseeable" consequences to make
your point. I recommend the famous _Palsgraf_ case (_Palsgraf v Long Island
Railway_, 248 N.Y. 330 (1928))...

>>Indeed, as was pointed out above, pregnancy from sex is statisticly 
>>(sp?) unlikely.  From an unbiased point of view, only the most likely 
>>outcome of an action or event should hold the title of the forseeable 
>>consequence of that event.  So in the case of sex, the forseeable 
>>consequence is pleasure (or a headache, or an argument, or sleep... :)  
>>)
>
>I don't think that's right -- it's recognized in law and in common moral 
>judgment that an action can have several forseeable consequences, and in 
>a proper case people can be held responsible for even rather unlikely 
>consequences.  For example, if someone gives me a rifle for Christmas 
>and I try it out by shooting it at passing cars, I'm guilty of homicide 
>if I kill someone even if (because I'm such a bad shot) by far the most 
>likely outcome was a series of misses.  

You're probably guilty of manslaughter, actually, since you never intended
to kill any PARTICULAR person. See, the criminal law CAN make a distinction
between premeditated and merely foreseeable consequences. 

Frankly, I don't buy Wayne's argument that only the _most_ likely 
consequence of an event should be considered "foreseeable". The most likely
consequence of pulling the trigger on a handgun is for it to propel a 
bullet at high speed out of its barrel, but that's not the only FORESEEABLE
consequences of the action, particularly if some living person's cranium is 
6 inches away along the bullet's trajectory. And of course the law treats 
the resulting homicide as intentional.

On the other hand, I don't concur with Jim that "foreseeability" is the key 
here, if we're talking about a criminal matter -- criminal INTENT is, or to 
lapse into jargon again, the _mens rea_ of the actor(s). The couple having 
sexual intercourse may acknowledge the POSSIBILITY of an unwanted pregnancy, 
but that doesn't mean they INTEND to conceive. Therefore, it's hard to justify 
"punishing" them for their "violation".

>For that matter, a father is 
>responsible for the support of his offspring, even if it was a one-night 
>stand and he didn't intend to become a father.

You're not the only one who has discerned the fundamental inconsistency 
between the pro-choice abortion position and the current law wrt paternity
child-support, Jim. However, I find the general concensus to be that it
is better to reform the latter, than to violate people's Bodily Autonomy
by legislating against abortion. If you want to discuss this issue in more
detail, I would recommend doing so in alt.abortion.inequity. Otherwise, you
might reawaken the wrath of this newsgroup's resident net.cops...

							- Kevin