The difference between a law professor making a flagrantly absurd analogy and a non-lawprof is that the former has no excuse for being intellectually dishonest. But that’s of little comfort to Vassar’s Barry Lam.
Barry Lam received his B.A. in Philosophy and English at the University of California, Irvine (2001), and his PhD in Philosophy at Princeton University (January 2007). His current research focuses on the nature of epistemic rationality and justification.
Maybe his epistemic research seeks to prove there is no such thing as rationality and justification? If so, he’s a friggin’ brilliant scholar rather than a disgrace.
How final is death? In some ways, its completely final. For instance, we don’t give the dead any voting rights. And we don’t do it for a very good reason. We think that political power belongs in the hands of those who are affected by political decisions, and the dead are not around to be affected by political decisions.
There is also an argument to be made that death is final because a person is dead. As in, no life, no breathing, no thought, maggots having a feast with what remains of their flesh. That we don’t give the dead voting rights isn’t really a critical aspect of proof of death. Lack of brain function would do better. So what’s Lam’s point?
But there’s is a practice where we don’t treat death as final at all. The law says that people can control their personal wealth after death, sometimes indefinitely. Within certain limits, the living are bound by law to execute the spending wishes of the dead, even if it means doing things that are not in the best interests of the living. People can actually earn money after their deaths, and what happens with that money is determined by what the dead person wanted, not what the living want. There are large and growing sectors of the economy dedicated only to executing the wishes of the dead.
Yeah, no. An estate is not the antithesis of death. While living people make decisions on what becomes of their assets, and it may be held in their estate, their executor (who is usually a living person as reflected by the lack of maggots crawling around in their eye sockets) can use the assets in the estate to “actually earn money” until the estate is finalized and distributed to heirs and beneficiaries.
There’s a contradiction here. We think that spending wishes are preserved at death, but not voting wishes. In effect, we think its unjust to limit the power of the living over the political institutions that affect them, but not the economic ones. The contradiction is not philosophically tenable. Nothing about death favors the preservation of property rights, but not political rights. Either death is final, or it is not, and the living are either required everywhere to give weight to the wishes of the dead, or not at all.
There is no contradiction here. There is something seriously wrong at Vassar that they are paying this fellow to teach students. In a simpler world, an estate would be distributed instantaneously upon death, but, of course, this isn’t a simple world, and there are taxes and debts to be paid, property to be sold, beneficiaries to be found and court orders to be obtained. And there are a variety of permutations of this, including trusts of the Spendthrift and Q-Tip varieties, that allow a person, while living, to decide how his assets will be distributed after death.
Why shouldn’t dead people be entitled to vote in perpetuity? Is it not enough to say “because it’s nuts”? There is no philosophical tenability involved. Estates don’t exist because death isn’t final, but because a living person’s assets must end up somewhere upon his demise. But the real reason is that this is an absurd conflation of inapposite concepts tied together by an academic who has shit for brains and yet is still allowed near students.
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Chicago aside, how would the dead vote work, anyway? Do we hire a medium and conduct a seance? And how far back do we go? 10 years dead? 100? 1000?
Or perhaps his real point is that wills, trusts, and all such things should be done away with, and all a decedent’s property should escheat to the state immediately on his death.
You’ve got to admit, escheat is one of the coolest words in law.
I vote for “Champerty”
Well, if you’re going down that road, there’s always barretry, but don’t eschew escheat.
Incorporeal heriditaments, baby
Spoken like a fertile octogenarian in perpetuity.
And “reliction.”
If, on my deathbed in early November of 2020, I tell my son to cast my ballot for Donald Trump if I do not survive to Election Day, he will not be able to follow my wishes no matter how much I wanted him to, because the law (properly) does not let the dead decide political questions. But if, on that same deathbed, I tell him in a will to give my money to Donald Trump, he will be required to follow my wishes, no matter how much he does not want to, because the law lets the dead decide property questions.
A will is not the command of a living person. By definition it has no effect until I am dead. The law could have developed in a way that required me to give my property away while I was still alive if I wanted to control who it went to, and if I chose to hold on to to to the bitter end to have it escheat to the state, or pass to relatives, or any of a thousand other possibilities.
This is not a new observation. You can find online an article in the Pennsylvania Law Review published 100 years ago titled “Control of Property by the Dead.” Professor Lam may have been a little cute in how he expressed the idea, but it was hardly “an absurd conflation of inapposite concepts.”
Rarely has this been so appropriately used.
The real question, though, is if I buy a politician, should he stay bought after I die?
What makes you think he’ll stay bought while you’re alive? Somebody will always have more money than you.
Listen, Roger and I are playing in this imaginary, absurdist sandbox. If you can’t hold down the giraffe while I go get the brightly colored machine tools, you should just leave until you learn to play nicely.
Roger, applying your philosophy across the board will lead to a lot more dead non-voters because you just wiped out the source of most organ transplants. Can’t have those dead folks deciding what to do with their organs!
If only they’d been forced to donate their organs when they were alive………
Or the law could say that all organs are available for transplant, regardless of what the deceased thought before dying, increasing the source of organ transplants and saving more lives. I don’t really have a “philosophy” to apply here, I just think it’s an interesting blind spot to not recognize the tension between letting the dead control what happens to some things and not others.
Roger, the difference in questioning how law and policy apply to estates, which has nothing to control by dead people but decisions made by people while alive that become effective upon their death, and dead people voting. There is absolutely nothing remotely analogous about them.
How about this?
You vote early in the vote of 2020 but die the day before actual election day, maybe even while exiting the early voting site. Do we throw your ballot out even though you cast it while alive because you are now dead on election day or do we honor your expressed wish, legally recorded, and count the ballot you cast before you died?
This is what wills are like, you make specific arrangements for actions to be carried out, they just cannot be fulfilled until after your death.
Another awful analogy.
Welcome to the sandbox! But, uhh, I just saw the cat right where you’re digging a minute ago.
“Why shouldn’t dead people be entitled to vote in perpetuity?” I’ve heard that they do vote, especially in Chicago.
Reading Lam’s thoughts reminds me what I vastly prefer working against a good lawyer than a bad one. I tell clients this and they have a tough time understanding. Responding to a brief or an argument that is not based on logic (or relies on a poor analogy) is difficult, in that the most apt response is typically This is Idiocy. But I try to have decorum in my practice so I don’t say that.
The best response I can come up with aside from calling Lam is an idiot, is that he is confusing dead people with living people. It is a minor error.
Eg, “the living are bound by law to execute the spending wishes of the dead.” Substitute “living person’s wishes on the condition of his death” for “dead (person)” and the statement is accurate.
It’s a variant of Brandolini’s Law.
Brandolini, like Murphy before him, was an optimist.
I had no idea that some commenters on this blog are dead.
It’s like you have a death wish.
Why not just take this to the logical conclusion here? The words of the dead are to be erased and all memories of them forgotten, immediately, so as to not cause undue political influence on the living. History shall bear no influence on the future.
Yesterday, Bari Weiss, and today, Barry Lam.
It’s a Bari, Barry interesting week so far.
And I think I’m keeping it 50/50 on gender, but I wouldn’t bet my life on it.
50/50/0/0/0/0/0… isn’t anywhere near even.
You’re going to need to make a lot more participation ribbons, you cishetero patriachal shitlord, you.