Monthly Archive for December, 2006

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We use our constitution

After year of Constitutional law, and a semester of Criminal Procedure 1, where I and another 150 of my fellow classmates spent 4 months studying the 4th 5th and 6th Amendments, I can say a few things about our constitution. First, it’s not prefect. However, when it comes to constitutions, they really don’t have to be. What matters the most is that we use ours. Unlike other countries that praise the sanctity of human life in there constitution only to put it aside for a "real politik" approach to resolving disputes, i.e. might makes right, like China; we use ours. In the 2000 election, in the case of Bush v. Eschipemertu Gore, in a situation which would have undoubtedly caused a civil war in other countries, each side got their lawyers, and not militias, and went to court to show how the constitution applied to this situation. Each tried to find the right, which gave them the might, in the Constitution. Criminal Procedure 2 next semester promises to be more lessons in applying and using it.

Musings on Implied Warranty of Habitability

Musings on Implied Warranty of Habitability I was reflecting on an argument that was put forth last week as to why a jurisdiction would adopt the implied warranty of habitability. It was a way for society to have all it’s members internalize one of the costs associated with keeping a person alive in this world, i.e. shelter! However, this was done to improve the quality of life in an area so that the externalities which are projected by the poor aren’t felt by the higher echelons of society . Now couple that idea with this fact; that most jurisdictions have adopted the implied warranty of habitability. It appeared to me that this gave rise to a slight paradox, mainly that an area had to have a certain population density in order to justify the adoption of the implied warranty of habitability. Why the requirement of a certain population density before the acceptance of the implied warranty of habitability? Very simple, if the purpose of the legal rule is to counteract the externalizes of the poor, then that presupposes that they are being felt by the other members of society. Yet, that statement itself presupposes that the proximity between these echelons is such that each is capable of feeling the others externalizes. Fore, if each were far removed from the other then their externalizes would not be felt by the other, which would render the adoption of the implied warranty of habitability a waste of judicial resources, because it would not remedy anything. This lead me to conclude that a certain population density is a necessary condition to justify the adoption of the implied warranty of habitability. Yet again, as I refer back to the previous observation, most jurisdictions have adopted the implied warranty of habitability, even the ones with LOW POPULATION DENSITY! How can this be; after all that was said above! Well in my attempt to resolve this paradox I came upon another reason at work in this legal calculus, which is counterintuitive and yet remarkable. The adoption of the implied warranty of habitability was moved to preserve the STATUS QUO. Visualize, If you will, that jurisdiction adopting the implied warranty of habitability is like throwing a stone into a puddle. What happens? Waves caused by the stone propagate out in circular pattern disrupting the clam waters in the vicinity of the puddle where it was dropped, except in our analysis it’s not water which is the medium of transmission for the change; it’s market forces. Slumlords and their unfortunate client s pull up stakes and move to a jurisdiction where the law is such that they can conduct themselves as they were use to be able to do before the adoption of the implied warranty of habitability. However, this upsets the equilibrium which existed in the jurisdiction which neighbored the one which adopted the implied warrant of habitability originally. The only viable solution is for the jurisdictions thus affected to adopt the implied warranty of habitability themselves, for the purpose of forcing the transients who have crossed into their jurisdiction to keep moving and not become domicile there. This measure prevents the establishment of a new equilibrium which would be adverse to the desire and wishes of the middle-class, i.e. the creation of slums. However, though that choice maybe effective at returning things to the way they were before, a jurisdiction is choosing, as a collective conscious in effect, NOT TO ABSORB THE CHANGE created by the other; a necessary corollary to that decision is that the wave (of humanity?) will continue to propagate out this time affecting the neighbors of the neighbors of the original jurisdiction who first adopted the implied warranty of habitability. This pattern will continue, a self perpetuating legal chain reaction, until every jurisdiction is enveloped. The only possible exception exception are jurisdictions with very, very, very low populations, such that as the waves of change bring people, they are willing to let them stay because the people already there don’t feel their presence. So from afar it may appear that our society is idealistic or progressive for so widely accepting the implied warranty of habitability, but a more careful analysis tells us otherwise. If anyone has a formal rebuttal to this argument and it’s logic please post it. I’d really like to be a rational optimist.