The Civic Lens

There is an old problem, older than Plutarch but attributed to him, about a ship. The Athenians preserved the ship on which Theseus was said to have returned from Crete. As time went by the timbers rotted and were replaced, plank by plank, beam by beam until not a single piece of original wood remained. The ancients wondered if the ship, when it was completely repaired, was still the ship of Theseus, or if at some unmarked moment in the long process of replacement the ship had quietly become an entirely different ship, with the name of the old one. The puzzle has amused philosophers for two thousand years without an answer and for most of that time it was just that, a philosopher’s diversion with no stakes attached to the answer. There are stakes in modern company law, because a company is a Ship of Theseus which can be prosecuted and whether or not it is the same ship is going to answer for the crimes of the ship it used to be. In the language of the law the corporation is an artifici...

Imagine that tomorrow a national newspaper carries a detailed and entirely made up story that a man who died last year spent his life secretly embezzling from the charity he founded. Everything said in the article is a lie. The paper knows it’s a lie. The piece is designed to destroy the reputation the man spent decades building. Had he lived, it would have been one of the simplest cases in all defamation law—a false statement of fact, published to third parties, clearly damaging to his reputation, with actual malice on the part of the publisher. He would win, and win big, almost certainly. He is dead, so he has no case, and no one acting on his behalf has any case. The article can be published with something close to total legal impunity, and the reason goes to the very foundations of what defamation law thinks it is actually protecting. The rule is old, uniform and expressed in almost identical terms in all the common law world. In the United States, there is generally no cause of ac...

Donald Miller Jr., a sixty-one-year-old man, walked into the Hancock County Probate Court in Findlay, Ohio, on October 7, 2013, sat down, and waited to be told if he was alive. He had driven himself there, was in reasonable health, and answered the judge's questions in a clear voice, describing with the flat detail of a man recounting an ordinary stretch of his life where he had been for the last quarter of a century. He was breathing. Everybody in the room could see that. The trouble was that a document filed nineteen years ago had him listed as dead, and the man and the document had collided head on. The story that took him there began in 1986. Miller, by his own admission, had lost his job, was drinking heavily and owed a large and growing amount of child support, which his ex-wife later estimated at around twenty-six thousand dollars by the mid-1990s. Instead of facing any of this, he just took off and ended up in different places, is what he told the court, and that phrase cap...