Monday, September 24, 2018

Finders, Keepers, Losers, Trump

by Michael C. Dorf

Last week, while in North Carolina surveying some of the damage caused by Florence, the president came across a property on which a yacht had washed ashore during the storm. According to the NY Times story:
“Is this your boat?” Mr. Trump asked the homeowner. 
When the man shook his head and said “No,” the president turned with a grin and replied, “At least you got a nice boat out of the deal.”
Then, the real-estate-tycoon-turned-president added: “They don’t know whose boat that is. What’s the law? Maybe it becomes theirs.”

This was, admittedly, not an important moment in the Trump presidency, but it is a reminder that the man whose principal claim to power is business acumen has no idea how a system of capitalism actually works. Nor does he have any sense of justice in a regime of private property.

Let's begin with the law. Ownership of a vessel in navigable waters is generally governed by federal admiralty law, which is admittedly complex, with common law rules and statutes, distinctions between the law of salvage and the law of finds, and many more nuances. But under no circumstances does the owner of a ship lose title to that ship just because it washes ashore in a storm. Yes, there are circumstances in which a finder or salvager can make a claim to an abandoned ship, but where the owner of a ship can be readily identified through reasonable effort, the owner retains title. At most, the finder may be entitled to compensation for measures taken to preserve the ship.

Indeed, those aren't principles that are in any way special to admiralty or maritime jurisdiction. They are features of North Carolina law for ordinary property also. In North Carolina, one who comes into possession of lost property is not entitled to keep it and indeed can be found guilty of feloniously receiving stolen property if he or she "knows or has reasonable means of knowing or ascertaining the owner," but does not make an attempt to contact the owner and simply keeps it.

How could anyone--much less the president--think that simply finding property entitles one to keep it? If you find a wallet on the sidewalk or at a restaurant, the law doesn't just permit you to keep the wallet or the cash in it.

But perhaps I'm being uncharitable. After all, the president appears to have believed that ownership of the boat was unknown. He said: "They don't know whose boat that is."

Yet no sensible system of property would divest the original owner of title simply because the finder doesn't know who owns the item in question. Any sensible system (and the actual system under the law) would ask whether ownership is knowable through reasonable effort. As this video of the incident pretty clearly shows, the boat was in sufficiently good condition that ownership was and is very likely very easy to ascertain.

At the risk of making too much of this curious moment, I'll make three observations about the character of the president.

(1) This is further evidence that Trump's moral development was arrested when he was in grade school, where the principle finders-keepers-losers-weepers has currency.

(2) Even on the playground, finders-keepers is a principle that is favored chiefly by bullies. Suppose a child finds something of value. If the rightful owner cannot be identified, there is no occasion to invoke finders-keepers-losers-weepers. That principle only comes into play if the rightful owner identifies himself. "Hey! That's my ball." The finder responds: "Finders-keepers-losers-weepers." Anyone on the losers-weepers side of the conflict will immediately recognize the unfairness of the claim and only submit to it if in fear of violence from the finder-keeper. Trump is a bully.

(3) Trump is also Holmes's bad man. In The Path of the Law, O.W. Holmes, Jr., famously proposed:
If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.
Suppose it really were lawful for the owner of property on which a boat washed up to keep the boat, without undertaking any inquiry into who owned the boat. A person with any conscience at all would nonetheless think he had some moral obligation to undertake such an inquiry.

Here's another way to think about that. Suppose you discovered--to your great surprise--that under the law of the state in which you live, if you find a wallet, you are legally permitted to pocket the cash and make as many credit card purchases as you can using the cards in the wallet. Still, if you found a wallet, would you not feel a moral obligation to contact the wallet's owner? That's because you, dear reader, have a conscience. Our president does not. But alas, that's hardly news.