Jury Nullification, Adverse Possession, and Liability of Parents for Actions of Their Children

Continuing a policy begun with a presentation at The Jefferson School in 1989, The Association for Objective Law presented a panel discussion at the 1999 Lyceum conference. The panel members were:

• Tami Lefko, a lawyer who specializes in intellectual property law, especially in issues related to the Internet, with the firm of Irell & Manella in Los Angeles,
• Jim McCrory, a lawyer in Albuquerque, New Mexico with a limited practice in real estate and oil and gas leasing, president and member of the Board of Directors of The Association for Objective Law,
• Steve Plafker, a retired deputy district attorney in Los Angeles and member of the Board of Directors of The Association for Objective Law.

Harry Binswanger moderated. As announced in a handout distributed to all Lyceum attendees, three topics were discussed:

• Jury nullification. Is a jury (or judge) ever justified in refusing to follow the law? A yes answer violates the rule of law; the law loses one of its crucial requirements: predictability. On the other hand, what about unjust laws: drug laws, laws against prostitution, anti-trust, the Internal Revenue Code and so forth?
• Adverse possession. Under certain circumstances, an owner of land can lose his title because someone else occupies the property. Can this apparent violation of property rights be justified? If so, how?
• Liability of parents for actions of their children. A child takes a gun into a school and murders as many of his classmates as he can find. Would it be proper to send his parents to jail for his action? Should the parents be required to pay restitution? If the answer to either question were yes, under what circumstances?

For each of the topics, a panelist summarized the law, and the audience and panelists engaged in a lively discussion.

JURY NULLIFICATION

Steve Plafker began by describing a famous historical example: the trial of John Peter Zenger, who, in 1735, was tried on a charge of seditious libel for some statements he had made critical of public figures. His lawyer, Andrew Hamilton, sought to defend him on the grounds that the statements were true—despite the fact that, under the law at the time, truth was not a defense. In fact, the opposite was the case. The saying was, “The greater the truth, the greater the libel.”¹ Hamilton was successful; the jury acquitted Zenger.

This was an act of jury nullification, defined generally as the power of a jury to ignore the facts or the law in coming to its verdict. In a definition that Objectivists sometimes find attractive, it is defined as the power of the jury to judge the law: i.e., to decide the case against an immoral law.

This issue raises two questions. Should the law allow jury nullification? And, given the opportunity, should an Objectivist engage in the act of civil disobedience by engaging in nullification?

Those in favor of jury nullification generally have three kinds of argument. First, the pure historical argument: the jury has this power under the definition of the jury, taken from the English common law and early American experience. In support of this argument, the trial of William Penn for blasphemy and the Zenger case are cited. The same cases are used in the second argument: the jury’s power to say no is the last protection against tyranny. Finally, there is a sloppy argument to the effect that this is part of a democracy.

A number of people in the audience were in favor of jury nullification. They found it difficult for an Objectivist to stand by while an injustice was perpetrated. How, for example, could one not take the opportunity to prevent a businessman from being the victim of anti-trust laws?

However, jury nullification is a violation of the rule of law. If A “law” is a rule of social conduct enforced by the government. And a “rule” is something settled, codified, principled—not some board’s momentary consensus, to be swept away in the next wave of public opinion², then either may it be swept away by the consensus of twelve people chosen on an ad hoc basis to apply it in a particular situation. In particular, as Dr. Binswanger pointed out, an Objectivist is in a particularly bad position to support ad hoc applications of the law. We form a tiny minority holding very unconventional views. If law is left up to the private judgment of a group of people, Objectivists will be among the first victims.

ADVERSE POSSESSION

Jim McCrory began with a hypothetical example. Smith buys a farm from Doe and lives on and works it for 20 years. Then, Jones shows up and proves that Doe never owned the land. (Doe had given Smith a fraudulent deed, which cannot transfer title; one cannot sell what one does not own.) Who now owns the farm?

Under the rule of adverse possession, Smith gets the farm. Adverse possession is a common law rule that transfers title from a titular owner to another who, for twenty years, is in possession that is “open, notorious, continuous, hostile and adverse.” (Many states have passed statutes replacing the common law rule with different requirements.)

The reason for the theory of adverse possession is the same as that of any statute of limitations—to require people to be prompt in asserting their rights. Delay results in evidence being lost, witnesses moving away and memories fading. The original English law of adverse possession, enacted in 1540, had a 60 year period. The period was reduced to 20 years in 1623. The rule is very old and well established.

The adverse possessor gains title in a manner similar to John Locke’s description of the way an individual gains ownership of previously unowned land: “As much land as a man tills, plants, improves, cultivates, and can use the product of, so much is his property.”³

Under the law of adverse possession, the same actions that gave the original owner his title will divest his successors of it: “[God] gave [land] to the use of the industrious and rational—and labor was to be his title to it—not to the fancy or covetousness of the quarrelsome and contentious.”⁴

As pointed out by Dr. Binswanger during the panel discussion, this explains why nomadic tribes, such as certain American Indians, acquired no title to land, but Pueblo Indians who had built houses and farmed in the same location did get title—and have it today.

A good example of the application of the Lockean theory is the Homestead Act of 1862, which gave title to persons who lived on a tract of land and worked it for five years as set out by statute.5 And, for an interesting supermodern application, see the recent article, Mars: Who Should Own It by Ronald Pisaturo.

LIABILITY OF PARENTS FOR ACTIONS OF THEIR CHILDREN

Tami Lefko summarized the law of parental liability for their children’s bad acts.

All fifty states hold parents civilly liable for actions of their minor children. Thirty-eight states have criminal statutes punishing parents for minors’ acts. Typical of the latter is a Salt Lake City ordinance that requires a parent to attend counseling when a minor has committed a criminal act. If the parent refuses, the parent will be guilty of a crime.

These criminal laws tend to require parents to exercise reasonable care over their children, but they do not define the term. They amount to strict liability criminal laws: that is, no intent to do a bad act is required on the part of the parent. It was noted that at the same time the law deprives parents of autonomy to raise their children, it makes them more liable for their children’s acts. Most of the audience agreed that holding parents civilly liable was appropriate. The victim of a child’s negligence should be compensated. On the other hand, most, although not all, regarded criminal liability for a parent as wrong. It punishes one person for the acts of another. It was noted that it is not government’s job to make good citizens of us but rather to punish those who initiate force—those who break laws. Holding parents liable is unnecessary since the laws of accessories and accomplices make one liable for criminal acts of others in appropriate situations.

__________________________________

References and Note:

1. This rule was defended on the basis that a truthful criticism was more likely than a false one to provoke revenge.
2. Harry Binswanger, “What is Objective Law?” The Intellectual Activist, January 1992, page 8.
3. John Locke, The Second Treatise of Government 32.
4. Id. 34
5. Ayn Rand, “The Property Status of Airwaves” in Capitalism: The Unknown Ideal, reprinted from The Objectivist Newsletter, April 1964.
6. The Intellectual Activist, Vol. 13, No. 9 (September 1999).

Copyright © 1999 The Association for Objective Law. All rights reserved. Republished in Capitalism Magazine by permission of TAFOL.